dnrn^U Ham ^t\\\Mx\ Hihtara 
 
KF 156.S56™" ""'""^''y Library 
 
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 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924022836377 
 
THE 
 
 CYCLOPEDIC 
 
 DICTIONARY OF LAW 
 
 COMPRISING 
 
 THE TERMS AND PHRASES OF AMERICAN JURISPRUDENCE, INCLUDING 
 
 ANCIENT AND MODERN COMMON LAW, INTERNATIONAL 
 
 LAW, AND NUMEROUS SELECT TITLES FROM 
 
 THE CIVIL LAW, THE FRENCH AND 
 
 THE SPANISH LAW, ETC., ETC. 
 
 WITH 
 
 AN EXHAUSTIVE COLLECTION OF LEGAL MAXIMS 
 
 BY 
 
 WALTER A. SHUMAKER 
 
 AND 
 
 GEORGE FOSTER LONGSDORF 
 
 ST. PAUL, MINN. 
 
 K-EEFE-DAVIDSON LAW BOOK CO. 
 
 1901. 
 
COPYRIGHT, 1901, 
 
 BY 
 
 KEEFE-DAVIDSON LAW BOOK CO. 
 
 WEBB PUBLISHING CO.. PEESS, ST. PAUL, MINN. 
 
PREFACE 
 
 The purpose of this dictionary is to present, within one volume of con- 
 venient size, every legal deiinition or other appropriate matter which is req- 
 uisite to any probable need of the student or the practitioner. It is be- 
 lieved that, on the one hand, both convenience and economy require that a 
 work designed to be primarily a dictionary of the law should not exceed a 
 single volume. On the other hand, no law dictionary is complete if it fails 
 to define every word or phrase, ancient or modern, which the searcher may 
 reasonably expect to find therein. Moreover, while a mere general definition 
 is ordinarily sufficient as to foreign and obsolete terms, yet in respect to those 
 terms of jurisprudence which in themselves describe recognized topics of the 
 law, or are of present interest, or are in a format'ire state, a bare definition 
 is of no particular value. 
 
 These topical terms the authors have endeavored to treat encyclopedic- 
 ally, avoiding the comprehensiveness of a treatise or commentary, but exhibit- 
 ing all the elements of a subject in a complete and logical manner. They real- 
 ize that only by those having legislative authority can definitions of such 
 terms be framed which will be in every particular correct, and, like all writ- 
 ers dealing with modern law, they can do no more than present the result 
 of a critical examination of the adjudged cases. In addition to this, it has 
 been the aim to make the work exhaustive as a glossary, covering all matters 
 within the research, not only of the practitioner and the student of the law, but 
 of the lay student of ancient laws and history. The principal terms of the Sax- 
 on, Norman, and Old Scotch law, and of International and Feudal law, with 
 many titles from other foreign systems, and the great variety of entire and 
 fragmentary phrases in various languages to be met with in old law books and 
 records, are defined and explained. Particular attention has been given to the 
 Givil Law, long explanatory articles being devoted to the more important Ro- 
 man customs and institutions. 
 
 There has been considerable discussion in the past as to the propriety 
 of including in a law dictionary terms and phrases no longer in current 
 use. To the authors it seems that a dictionary which does not include such 
 terms fulfills but a small part of its essential purpose. The law of the pres- 
 ent day is rooted in the antiquities of the English common law, and that, in 
 
its turn, is inextricably interwoven with, the law of the civilians. No question 
 of law can be exhaustively investigated without bringing the searcher in 
 contact with a multitude of legal terms and phrases now regarded as ob- 
 solete. The authors are unwilling to believe that the modern tendency toward 
 codification and superficial case-learning has progressed so far that there is 
 no longer a demand for the definitions and explanations which will enable 
 the student to trace the doctrines of the law to their head-waters, and the 
 practitioner to investigate particular questions with equal thoroughness. 
 
 A considerable collection of the terms of Spanish law has been inserted, 
 in the belief that the annexation and close political relation to the United 
 States of countries lately under Spanish rule will make a definition of such 
 terms desirable to the practitioner. 
 
 The collection of maxims of the law is believed to be the most complete 
 ever given in a single work. These maxims are placed throughout the book in 
 their proper alphabetical order. 
 
 While it has been the effort to make the treatment as nearly exhaustive 
 as possible within the realm of the terms of jurisprudence, this very exhaus- 
 tiveness precludes any excursion beyond the scope of a law dictionary proper. 
 The so-called "adjudged words and phrases," that is to say, the jtidicial in- 
 terpretation of words having no distinctive legal meaning, but interpreted 
 solely in the light of their context or use in particular connections, have been 
 omitted, as have the ordinary terms of our language having no technical sig- 
 nificance. The technical terms of commerce and of the stock exchange form 
 a well-defined exception, -and it is thought tha^t the collection of these is the 
 most extensive ever attempted in a work of. this character. 
 
 The known and settled habits of the profession in associating particular 
 principles with certain terms have been regarded, and therefore the definitions 
 have, wherever practicable, been given under the specific words deemed most 
 likely to suggest themselves to the searcher, instead of being grouped under 
 some broad generic head. In the interest of space, some few exceptions to 
 this rule have been made: (1) Where a word has several forms, it is de- 
 fined under that best known or most correct, and from the others a cross-refer- 
 ence made to such definition. (2) Where the treatment of a general head 
 necessarily includes the statement and definition of a number of terms in- 
 cluded therein as elements or classes, cross-references are usually made to such 
 general head for such definition, though in many cases a brief definition is 
 given under the specific title, and a reference to the general title for further 
 discussion. 
 
 As to the sources from which the matter herein contained was obtained, 
 the basis of the work was the edition of 1867 of Bouvier's Law Diction- 
 ary, the original work of Mr. Bouvier, so far as it was consistent with 
 the scope of the present dictionary, being so far classic as to be incapable of 
 improvement, and presenting an element of authority which no new produc- 
 tion could assume. To this, however, matter was added, more than doubling 
 the number of terms defined, and developing, in the light of modern author- 
 ties, the discussion and definition of modern terms, which have been largely 
 
reformulated by the authors. The English dictionaries of Sweet, Wharton, 
 and Stroud have been principally resorted to for the explanation of distinct- 
 ively English terms and institutions, while for the terms of ancient law, free 
 use has been made of the dictionaries of Cowell, Spelman, and Jacob, and the 
 treatises of Bracton, Britton, Viner, Coke, Littleton, Bacon, Blackstone, Chit- 
 ty, Stephen, and Maine, as well as the American classics of Story, Greenleaf, 
 and Kent. 
 
 The terms of the civil law are mainly derived from the J^ovels, Digest, 
 Institutes, and Code of Justinian, the Lexicon of Calvin, and the treatises of 
 Mackeldey, Heineccius, and Pothier. The scholarly work of Mr. Burrill has 
 been of great assistance. In "formulating the definitions of modern terms, 
 reference has always been had to the standard text books dealing with the sub- 
 ject, and the number of these is too great for enumeration, due credit being 
 given in the body of the work for all definitions derived from such sources. 
 
 The more modern dictionaries of Anderson, Abbott, Black, and Rapalje & 
 Lawrence have been used for reference and comparison. 
 
 The materials collected would have made two volumes of the size of the 
 present work, but by diligent revision and condensation, it is believed that all 
 that was useful and within Its scope has been preserved. 
 
 Waltbe a. Shumakee. 
 Geoege Fostee Longsdoef. 
 
 St. Paul, Minn., jSTovember 25, 1901. 
 
ABBREVIATIONS 
 
 OF THE 
 
 LESS-KNOWN AND ANCIENT BOOKS REFERRED TO IN THIS WORK. 
 
 Bouv. Inst. Bouvier's Institutes of American 
 
 Law. 
 Bracton. Bracton, de Legibus et Consuetu- 
 
 dinibus Angliae. 
 Branch, Princ. Branch's Principia Legis et 
 
 Aequitatis. 
 Brande. Brande's Dictionary of Science, etc. 
 Brissqnius. Brissonius de Verborum Signifi- 
 
 catione. 
 Britt. Noveau Dictionaire Civil et Canon- 
 
 ique de Droit et de Pratique. 
 BrooJce, Air. Brooke's Abridgment. 
 Broom, Leg. Max. Broom's Legal Maxims. 
 Brown. Brown's Law Dictior«,ry and Insti- 
 tute (1874). 
 Burge, Col. & For. Law. Burge on Colonial 
 
 and Foreign Law. 
 Burn, Ecc. Law. Burn's Ecclesiastical Law. 
 Burr. Sett. Gas. Burrow's Settlement Cases. 
 Butler, Go. Litt. Butler's Notes to Coke on 
 
 Littleton. 
 Butler, Hor. Jur. Butler's Horae Juridicae. 
 Bynk. 06s. Jur. Bom. Bynkershoek's Obser- 
 
 vationum Juris Roman Libri. 
 Bynk. Quaest. Jur. Put. Bynkershoek's 
 
 Quaestiones Juris Publici. 
 
 Galv. Lex. Calvini Lexicon Juridicum. 
 
 Gas. temp. Hardw. Cases tempore Hard- 
 wicke. 
 
 Gas. temp. Lee. Cases tempore Lee (Bng. 
 Ecc.) 
 
 Oas. temp. Tan. Cases tempore Talbot. 
 
 Gassiod. Yar. Cassiodori Variarum. 
 
 Ghart. Foresta. Charta de Foresta., 
 
 Gierke, Prax. Clerke's Praxis Curiae Admi- 
 ralitatis. 
 
 Go. Entr. Coke's Entries. 
 
 Co. Litt. Coke on Littleton. 
 
 Gode. Codex Justiniani. 
 
 Gode Giv. Code Civil. 
 
 Gode Theodos. Codex Theodosianus. 
 
 Golg. Giv. Law. Colquboun on Roman Civil 
 Law. * 
 
 Go?nyn. Comyn's Reports. 
 
 Comyn, Dig. Comyn's Digest. 
 
 Conf. Ghart. Conflrmatio Cbartarum. 
 
 Gonsol. del Mare. Consolato del Mare. 
 
 Cooper, Just. Inst. Cooper's Justinian's In- 
 stitutes. 
 
 Abhott. Abbott's Law Dictionary (1879). 
 
 Adams, Rom. Ant. Adams' Roman Antiqui- 
 ties. 
 
 Ainsioorth, Lex. Ainsworth's Lat.-Eng. Dic- 
 tionary (1837). 
 
 Arg. Fr. Merc. Law. Argyle's French Mer- 
 cantile Law. 
 
 Artie. Cleri. Articuli Cleri. 
 
 Artie, sup. Chart. Articuli super Chartas. 
 
 Assis. de Jerus. Assises de Jerusalem. 
 
 Aul. Gell. Hoot. Att. Auli Gellii Noctes At- 
 ticae. 
 
 Ayliffe, Pand. Ayliffe's Pandect. 
 
 Ayliffe, Par. AylifEe's Parergon. 
 
 Aeuni, Mar. Law. Azuni's Maritime Law. 
 
 Baa. Air. Bacon's Abridgment. 
 
 Bac. Max. Bacon's Maxims. 
 
 Bac. Read. Uses. Bacon's Reading on the 
 Statute of Uses. 
 
 Barr. Obs. St. Barrington's Observations on 
 the Statutes. 
 
 Beames, Olanv. Beames' Glanville. 
 
 Beawes, Lex Merc. Beawes' Lex Mercatoria. 
 
 Bell, Gomm. Bell's Commentaries on the 
 Law of Scotland. 
 
 Bell, Diet. Bell's Dictionary of the Law of 
 Scotland. 
 
 Ben. Adm. Prac. Benedict's Admiralty Prac- 
 tice. 
 
 Benl. Benloe's Reports. 
 
 Benth. Jud. Ev. Bentham's Rationale of Ju- 
 dicial Evidence. 
 
 Biret, Vocab. Biret's Vocabulaire des Cinq 
 Codes (1862). 
 
 Bl. Gomm. Blackstone's Commentaries. 
 
 Blount. Blount's Nomo Lexicon. 
 
 Bohun, Curs. Catio. Bohun's Cursus Cancel- 
 lariae. 
 
 Bohun, Inst. Leg. Bohun's Institutio Legalis. 
 
 Bonnetti, Ital. Diet. Bonnetti's Italian Dic- 
 tionary. 
 
 Bonnier, E. des Preuves. Bonnier's E. Traite 
 des Preuves (1852). 
 
 Boote, Hist. Boote's Historical Treatise of a 
 Suit at Law. 
 
 BouOh. Inst. Boucher's Institutes au Droit 
 Maritime. 
 
 Boul. P. Dr. Com. Boulay-Paty Droit Com- 
 mon. 
 
ABBREVIATIONS 
 
 Corp. Jur. Can. Corpus Juris Canonici. 
 Corp. Jur. Civ. Corpus Juris Civilis. 
 Corp. Jus. Canon. Corpus Juris Canonique. 
 Cowell. Cowell's Interpreter. 
 Cruise, Dig. Cruise's Digest. 
 
 Dalloz. Dalloz, Dictionaire General et Rai- 
 
 sonne de Legislation (1835). 
 Dane, Ahr. Dane's Abridgment. 
 Decret. Childeh. ad h. Salic. Decreta Childe- 
 
 berti ad Legem Salicam. 
 Dial, de Scacc. Dialogus de Scaccario. 
 Dig. Digestum or Digesta. The Digest or 
 
 Digests of Justinian. 
 Diss, ad Flet. Selden's Dissertatio ad Ple- 
 
 tam. 
 Doct. and Stud. Doctor and Student. 
 Doct. Plac. Doctrina Placitandi. 
 Doviat, Civ. Law. Domat's Civil Law. 
 Domat, Dr. Pub. Domat's Droit Publique. 
 Domat, Liv. Prel. Domat's Livres du Droit 
 
 Public. 
 Dufresne. Dufresne's Glossary. 
 Dugd. Orig. Jur. Dugdale's Origines Juridi- 
 
 ciales. 
 Durand. Spec. Jur. Durandi Speculum Ju- 
 ris. 
 
 Emerig. Tr. des Assur. Emerigon Traite des 
 
 Assurances. 
 Ersk. Princ. Erskine's Principles of the 
 
 Law of Scotland. 
 Esp. N. P. Bspinasse's Nisi Prius Reports. 
 Esprit des Lois. Montesquieu's Spirit of 
 
 Laws. 
 
 Ferriere, Diet, de Jur. Perrlere's Dictionary 
 of Jurisprudence. 
 
 Feud. Lib. Feudorum Libri or Liber. 
 
 Fitzh. Nat. Brev. Fitzherbert's Natura Bre- 
 vium. 
 
 Fleta. Fleta, seu Commentarius Juris Ang- 
 lici. 
 
 Fleury, Hist. Fleury's History of the Ori- 
 gin of French Laws (1724). 
 
 Flor. Wigorn. Plorentius Wlgornensis, Flor- 
 ence of Worcester. 
 
 Foelix, Droit Int. Princ. Foelix, Droit Inter- 
 national Prive. 
 
 Forniul. Solen. Formulae Solemnes. 
 
 Fortesc. de L. L. Angl. Fortescue de Laudi- 
 bus Legum Angliae. 
 
 Francis, Max. Francis' Maxims. 
 
 Gaius, Inst. Gains' Institutes. 
 
 Cfibb. Bom. Emp. Gibbon's Decline and Pall 
 
 of the Roman Empire. 
 CHbs. Code. Gibson's Codex. 
 Gilb. For. Bom. Gilbert's Forum Romanum. 
 Olanv. Glanville, de Legibus et Consuetu- 
 
 dlnibus Regni Angliae. 
 GodolpU. Ecc. Law. Godolphin's Ecclesias- 
 tical Law. 
 Oodolph. OrpTi. Leg. Godolphin's Orphan's 
 
 Legacy. 
 Grand Const. Norm. Grand Coustumier of 
 
 Normandy. 
 Greg. Turon. Gregory of Tours. 
 Grot, de Acquit. Grotius de Aequitate. 
 Grotius de Jure Belli. Grotius de Jure Belli 
 
 ac Pacis. 
 Guyot, Inst. Feod. Guyot's Institutes Peo- 
 
 dales. 
 
 Halifax, Anal. Halifax' Analysis of the Ro- 
 man Civil Law. 
 
 HalU. Tech. Terms. Halkerston's Technical 
 Terms of the Law. 
 
 Hargr. Co. Lilt. Hargrave's Notes to Coke 
 on Littleton. 
 
 Heath, Max. Heath's Maxims. 
 
 Heinec. Elem. Jur. Camb. Heineccii Ble- 
 menta Juris Cambialis. 
 
 Heinec. Elem,. Jur. Civ. Heineccii Elemen- 
 ta Juris Civilis. 
 
 Hincmar. Epist. Hincmari Epistolae. 
 
 Holthouse. Holthouse's Law Dictionary. 
 
 Hotom. in Verb. Feud. Hotomannus de Ver- 
 bis Feudalibus. 
 
 Houard, Ang. Sax. Laws. Houard's Anglo- 
 Saxon Laws. 
 
 Hov. Ann. Hoveden's Annals. 
 
 How. St. Tr. Howell's State Trials. 
 
 Hub. Prael. Jur. Civ. Huberi Praelectiones 
 Juris Civilis. 
 
 Hugo, Hist. Dr. Rom. Hugo's History Druit 
 Romain. 
 
 Ingulph. Hist. Croyl. Ingulphi Historia 
 
 Croylandiae. 
 Inst. Institutes of Justinian. 
 Inst. Institutes of Lord Coke. 
 Inst. Gler. Instructor Clericalis. 
 Irving, Civ. Law. Irving's Civil Law. 
 
 Jacob. Jacob's Law Dictionary. 
 
 Jornand. de Beb. Get. Jornandes de Rebus 
 
 Geticis. 
 Jul. Frontin. Julius Frontinus. 
 
 Kaufm. Maclceld. Civ. Law. Kaufmann's Edi- 
 tion of Mackeldey's Civil Law. 
 
 Eelham. Kelham's Norman Dictionary. 
 
 Kennetl. Kennett's Glossary. 
 
 Kennett, Par. Ant. Kennett's Parochial An- 
 tiquities. 
 
 Eitch. Cts. Kitchin on Courts. 
 
 Kluber. Dr. des Gens. Kluher's Droit des 
 Gens. 
 
 L. Alam. Law of the Alemanni. 
 
 L. Baiwar. or Boior. Law of the Bavarians. 
 
 L. Ripuar. Law of the Ripuarians. 
 
 L. Salic. Salic Law. 
 
 Law Fr. Diet. Law French Dictionary. 
 
 Law Lat. Diet. Law Latin Dictionary. 
 
 LL. Aluredi. Laws of Alfred. 
 
 LL. Atheist. Laws of Athelstan. 
 
 LL. Burgund. Laws of the Burgundians. 
 
 LL. Canuti R. Laws of King Canute. 
 
 LL. Edw. Coiif. Laws of Edward the Con- 
 fessor. 
 
 LL. Gal. Cong. Laws of William the Con- 
 queror. 
 
 LL. Hen. I. Laws of Henry I. 
 
 LL. Inae. Laws of Ina. 
 
 LL. Longobard. T.aws of the Lombards. 
 
 LL. Malcolm. R. Scot. Laws of Malcolm, 
 King of Scotland. 
 
 LL NeapoUt. Laws of Naples. 
 
 LL. Wisegothor. Laws of the Visigoths. 
 
 LL. Wm. Noth. Laws of William the Bas- 
 tard. 
 
 Lamb. Archaion. Lambard's Archaionomia. 
 
 Lamb. Eiren. Lambard s Eirenarcha. 
 
 Lamb. Explic. Lambard's Explication. 
 
 Las Partidas. Las Siete Partidas. 
 
ABBREVIATIONS 
 
 Lee. Elm. Lecon's Elementaires du Droit 
 
 Civile. 
 Lib. Feud. Librl Feudorum; the Books of 
 
 Feuds. 
 Lib. Nig. Scacc. Liber Niger Scaccaril; 
 
 Black Book of the Exchequer. 
 Lib. Barnes. Liber Ramesiensis; Book of 
 
 Ramsey, 
 Lib. Rub. Scacc. Liber Ruber Scaccarii; 
 
 Red Book of the Excheauer. 
 Lieber, Giv. Lib. Lleber's Civil Liberty. 
 Litt. Littleton's Tenures; Littleton's Re- 
 ports. 
 Locc. de Jur. Mar. Loccenius de Jure Mari- 
 
 timo. 
 Lyndio. Prov. Lyndwode'S Provinelale. 
 
 Mackeld. Giv. Law. Mackeldey's Civil Law. 
 
 Mp^d. Form. Angl. Madox' Formulare Angli- 
 canum. 
 
 Mad. Hist. Exch. Madox' History of the Ex- 
 chequer. 
 
 Magna Chart, or Cart. Magna Charta, or 
 Carta. 
 
 Magna Rot. Pip. Magnus Rotulus Pipae; 
 Great Roll of the Pipe. 
 
 Manw. For. Law. Manwood's Forest Law. 
 
 Mascard. de Prob. Masoardus de Probationi- 
 bus. 
 
 Merlin, Quest, de Droit. Merlin's Questions 
 de Droit qui se Presentent le Plus Fre- 
 quemment Dans les Tribunaux (1819). 
 
 Merlin, Repert. Merlin's Repertoire. 
 
 Meyer, des Inst. Judiciares. Meyer, des In- 
 stitutiones Judiciares. 
 
 Mirr. Mirror of Justices. 
 
 Molloy de Jur. Mar. Mblloy <de Jure Mari- 
 timo. 
 
 Mon. Angl. Monastlcon Anglicanum. 
 
 Mozley & W. Mozley & Whitely's Law Dic- 
 tionary (Eng.) 
 
 Murat. Antig. Med. Aevi. Muratori's Antiq- 
 ultates Medii Aevi. 
 
 Nov. Novellae, Novels. 
 
 Nov. Recop. Novisima Recopilacion. 
 
 Noy, Max. Noy's Maxims. 
 
 Old Nat. Brev. Old Natura Brevlum. 
 Onuphr. de Interp. Toe. Eccles. Onuphrius 
 
 de Interpretatione Vooum Bcclesiae. 
 Ord. Mar. Ordonnance de la Marine. 
 Ort. Hist. Ortolan's History of the Roman 
 
 Law. 
 Ort. Inst. Ortolan's Institute de Justinian. 
 Ought. Oughton's Ordo Judiciorum. 
 
 Paillet, Dr. Pub. Paillet's Manuel de Droit 
 Francais. 
 
 Palg. Rise, etc. Palgrave's Rise and Prog- 
 ress of the English Commonwealth. 
 
 Par. Ant. Parochial Antiquities. 
 
 Pardessus, Dr. Com. Pardessus' Cours de 
 Droit Commercial. 
 
 Petron. Satyric. Petronius' (Titus) Arbiter, 
 Satyricon, etc. 
 
 Pitc. Cr. Tr. Pitcairn's (Scotch) Criminal 
 Trials. 
 
 Pitisc. Lex. Pitisci's Lexicon. 
 
 Plac. Abbrev. Placitorum Abbreviatio. 
 
 Plowd. Plowden's Commentaries and Re- 
 ports. 
 
 Poth. Pothier (De Change, De Rente, Obli- 
 gationes, De la Procedure Civil, De la Pro- 
 cedure Criminelle, Des Fiefs, De Pandec- 
 tae). 
 
 Puffendorf. Puftendorf's Law of Nature. 
 
 Quon. Attach. Quoniam Attachiamenta» 
 
 Rapalje & L. Rapalje & Lawrence's Law Dic- 
 tionary. 
 
 Reeve, Hist. Eng. Law. Reeve's History of 
 the English Law. 
 
 Reg. Brev. Registrum Brevium. 
 
 Reg. Jud. Registrum Judiciale. 
 
 Reg. Ma]. Regiam Majestatem. 
 
 Reg. Orig. Registrum Originale. 
 
 Boca, de Nav. et Nau. Roccus de Navibus et 
 Naulo. 
 
 Bog. Hov. Roger de Hovenden, Chronica. 
 
 Rolle, Abr. RoUe's Abridgment. 
 
 Rot. Glaus. Rotuli Clausi; Close Rolls. 
 
 Rot. Pari. Rotuli Parliamenti; Parliament 
 Rolls. 
 
 Rot. Pat. Rotuli Patentes; Patent Rolls. 
 
 Santerna de Ass. Santerna de Assecurationi- 
 
 bus et Sponsiouibus Mercatorum. 
 Savigny, Hist. Rom. Law. Savigny's History 
 
 of the Roman Law. 
 Savigny, System. Savigny's System des Leu- 
 
 tlgen Romischen Rechts. 
 Schmidt, Civ. Law. Schmidt's Civil Law of 
 
 Spain and Mexico. 
 Seld. Mare Glaus. Selden's Mare Clausum. 
 Seld. Tit. Hon. Selden's Titles of Honor. 
 Shep. Touch. Sheppard's Touchstone. 
 Skene de Verb. Sign. Skene de Verborum 
 
 Significatione. 
 Spelman. Spelman's Glossary. 
 St. Gloc. Statute of Glocester. 
 St. Marlb. Statute of M'arlbridge. 
 St. Mert. Statute of Merton. 
 St. Mod. Lev. Fin. Statute Modus Levandi 
 
 Fines. 
 Staundf. PI. Cor. Staundford's Placita Coro- 
 
 nae. 
 Staundf. Prerog. Staundford's Exposition of 
 
 the King's Prerogative. 
 Style, Pr. Reg. Style's Practical Register. 
 
 Termes de la Ley. Termes de la Ley (1G85). 
 Tomlins. Tomlins' Law Dictionary. 
 Trye, Jus FiMz. "Trye's Jus Filizarii. 
 
 Vicat. Vicat's Vocabularium Juris Utriusque 
 ex Variis Ante Editis. 
 
 Viner, Abr. Viner's Abridgment. 
 
 Vinn. ad Inst., or Vinnius. Vinnius' Com- 
 mentary on the Institutes of Justinian'. 
 
 West, Symb. West's Symboleography. 
 Wharton. "Wharton's Law Lexicon. 
 Whishaw. Whishaw's Law Dictionary. 
 Wooddesson, Lect. Wooddesson's Lectures. 
 
 Y. B. Year Book. 
 
(1) 
 
 A PRIORI 
 
 A 
 
 
 In Latin Phrases. A preposition, de- 
 noting from, by, in, on, ot, at. 
 
 In French Phrases. A preposition, de- 
 noting of, at, to, for, in, with. 
 
 In Citation of Reported Decisions. 
 
 tJsed for adnrsus (versus) in some law re- 
 ports. See Abb. Prac. (N. Y.; O. S.) 
 
 In Roman Criminal Law. The judges 
 
 were furnished with small tables covered 
 with wax, and each one inscribed on it the 
 initial letter of his vote, — "A." (the initial 
 letter of ahsoiro) when he voted to absolve 
 the party on trial; "C." (the initial letter of 
 coiKlciiinn) when he was for condemnation; 
 and "N. L." (the initial letters of iioii liquet) 
 when the matter did not appear clearly, 
 and he desired a new argument. 
 
 In Roman Elections. It was used in 
 
 elections as the initial letter of initiqiio (for 
 the old law), being a vote against the pro- 
 posed law; an affirmative vote being in- 
 dicated by "U. R." iut rogas, as you pro- 
 pose). 
 
 Among the Puritans. An "A" of red 
 
 cloth was hung upon the dress of a con- 
 victed adulteress. 
 
 A CANCELLIS (Law Lat.) A chancellor. 
 See "Chancellor." 
 
 A COELO USQUE AD CENTRUM (Lat.) 
 Prom the heavens to the center of the earth. 
 
 A COMMUNI OBSERVANTIA NON EST 
 recedendum. There should be no depart- 
 ure from common observance (or usage). 
 Co. Litt. 186; Wingate, Max. 203; 2 Coke, 74. 
 
 A CONSILIIS (Lat. consiliinv, advice). A 
 counsellor. The term is used in the civil 
 law by some writers instead of a resimiixix. 
 Spelman, voc. "Apocrisiarius." 
 
 A DATU, or A DATO (Law Lat.) From 
 the date. 2 Salk. 413; Cro. Jac. 135. 
 
 A Die Datus. From the day of the 
 
 date. 2 Salk. 413; 2 Crabb, Real Prop. p. 
 248, § 1301; 1 Ld. Raym. 84, 480; 2 Ld. 
 Raym. 1242. 
 
 A DIGNIORI FIERI DEBET DENOMI- 
 natio et resolutio. The denomination and 
 explanation of a person or thing ought to 
 be derived from the more worthy. Wingate, 
 Max. 265; Fleta, lib. 4, c. 10, § 12. 
 
 ,AFORFAIT ETSANSGARANTIE(Fr.) A 
 
 phrase used in the indorsement of nego- 
 tiable instruments; substantially the same 
 as "without recourse." 
 
 A FORTIORI. By (or from) the stronger 
 reason. Applied to the argument that, be- 
 cause of the concession or establishment of 
 a given proposition, another included in it 
 is by the greater reason true. 
 
 A GRATIA. By grace; not of right. Also 
 
 written vx iiintia. 
 
 A LATERE (Lat. Inliia. side). 
 
 In Respect to Property Rights. (1) Col- 
 lateral. Used in this sense in speaking of 
 the succession to property. Bracton, 20b, 
 62b. (2) Without right. Bracton, 42b. 
 
 In Ecclesiastical Law. Apostolic. A 
 
 legate a latci-o is one having full powers to 
 represent the pope as if he were present. 
 Du Cange; 4 Bl. Comm. 306. 
 
 A LIBELLIS (Law Lat.) An officer who 
 had charge of the lihclli or petitions ad- 
 dressed to the sovereign. Calv. Lex. 
 
 A name sometimes given to a chancellor 
 {(■(uiecUdi'nis) in the early history of that 
 office. Spelman, voc. "Cancellarius." See 
 "Chancellor." 
 
 A L'liVIPOSSIBLE NUL N'EST TENU. 
 
 No one is bound to do what is impossible. 
 
 A MAN I BUS (Law Lat.) An officer who 
 wrote for the emperor; one whose hand 
 (iiKiiius) was used for writing; an amanu- 
 ensis. Calv. Lex. 
 
 A ME (Lat. pf/o, I). "A term denoting, in 
 the feudal law, direct tenure of the superior 
 lord. 2 Bell, H. L. Sc. 133. 
 
 To withhold a inc (from me) is to obtain 
 possession of my property unjustly. Calv, 
 Lex. 
 
 To pay a inc. is to pay from my money. 
 
 A MENSA ET THORO. See "Divorce." 
 
 A NON POSSE AD NON ESSE SEQUITUR 
 argumentum necessarie negative licet non 
 affirmative. From impossibility to nonexist- 
 ence, the inference follows necessarily in 
 the negative, though not in the affirmative. 
 Hob. 336b. 
 
 A PIRATIS AUT LATRONIBUS CAPTI 
 llberi permanent. Those captured by pirates 
 or robbers remain free. Dig. 49. 15. 19. 2; 
 Grotius de Jure Belli, lib. 3, c. 3. § 1. 
 
 A PIRATIS ET LATRONIBUS CAPTA 
 
 dominium non mutant. Things captured by 
 pirates and robbers do not change owner- 
 ship. 1 Kent, Comm. 108, 184; 2 Woodde- 
 son, Lect. 258, 259. 
 
 A POSTERIORI (Lat. by the later reason). 
 In logic. An argument proceeding from ef- 
 fects to causes. 
 
 A PRENDRE (Fr. to take, to seize). 
 Rightfully taken from the soil. 5 Adol. & 
 E. 764; Nev. & P. 172; 4 Pick. (Mass.) 145. 
 See "Profit a Prendre." 
 
 A PRIORI (Lat. by the prior reason). In 
 logic. An argument proceeding from causes, 
 to effects. 
 
A QUO 
 
 (2) 
 
 AB IRATO 
 
 A QUO (Lat.) Prom which. 
 
 Terminus a Quo. The point from 
 
 which distance is reckoned. 
 
 Court a Qua. The court from which a 
 
 cause is removed. 
 
 Judge a Quo. The judge of such court. 
 
 Ad Quem. To which; the correlative. 
 
 A RENDRE (Pr. to render, to yield). 
 Which are to he paid or yielded. Profits a 
 rendre comprehend rents and services. Ham- 
 mond, N. P. 192. 
 
 A RESCRIPTIS VALET ARGUMENTUM. 
 
 An argument from rescripts (i. e., original 
 writs in the register) is valid. 
 
 A RESPONSIS (Law- Lat.) In ecclesias- 
 tical law. One whose oflBce it was to give 
 or convey answers; otherwise termed re- 
 sponsalis and apocrisLarius. One who, being 
 consulted on ecclesiastical matters, gave an- 
 swers, counsel, or advice; otherwise termed 
 a consiliis. Spelman, voc. "Apocrisiarius." 
 
 A RETRO (Lat.) In arrear. Pleta, lib. 
 2, c. 55, § 2. 
 
 A RUBRO AD NIGRUM (Lat. from red to 
 black). As a rule of interpretation, to refer 
 from the (red) title or rubric to the (black) 
 body of the statute. It was anciently the 
 custom to print statutes in this manner. 
 Ersk. Inst. 1. 1. 49. 
 
 A SUMMO REMEDIO AD INFERIOREM 
 actionem non liabetur regressus neque aux- 
 ilium. Prom the highest remedy to an infe- 
 rior action there is no return or assistance. 
 Pleta, lib. 6, c. 1; Bracton, 104a, 112b; 3 
 Sharswood, Bl. Comm. 193, 194. 
 
 A TEMPORE CUJUS CONTRARII ME- 
 moria non existet. Prom time of which 
 memory to the contrary does not exist. 
 
 A TERME (Law Pr.) Por a term. 
 
 A Terme de sa Vie. Por the term of 
 
 his life. Y. B. T. 1 Edw. II. 16; Y. B. M. 
 3 Edw. II. 55, 57. 
 
 A Terme Que Passe Est. Por a term 
 
 which is past. Y. B. M. 4 Edw. IIL 59. 
 
 A TORT (Law Pr.) Of or by wrong; 
 wrongfully. De ses arc.ts a tort pris, of his 
 beasts wrongfully taken. Y. B. M. 3 Hen. 
 VI. 20. 
 
 ATOUT LACOMMUNE D'ENGLETERRE. 
 
 To all the people of England. St.. Articuli 
 sup. Chartas, c. 1. 
 
 A VERBIS LEGIS NON EST RECEDEN- 
 dum. Prom the words of the law there 
 should be no departure. Broom, Leg. Max. 
 (3d London Ed.) 555; Wingate, Max. 25; 5 
 Coke, 119. ' 
 
 A VINCULO MATRIMONII. See "Di- 
 vorce." 
 
 AB. In Latin phrases. A preposition hav- 
 ing the same significance as "A" (.g. r.) 
 "A" is used before words beginning with 
 
 consonants, and "Ab" before those begin- 
 ning with vowels. 
 
 AB ABUSU AD USUM NON VALET CON- 
 sequentia. A conclusion as to the use of a 
 thing from its abuse is invalid. Broom, Leg. 
 Max. 17. 
 
 AB ACTIS (Lat. actus, an act). A notary; 
 one who takes down words as they are 
 spoken; a name anciently applied to the 
 chancellor. Du Cange, "Acta;" Spelman, 
 voc. "Cancellarius." See "Chantjellor." 
 
 A reporter who took down the decisions 
 or acta of the court as they were given. 
 
 AB AGENDO. Disabled; unable to act. 
 
 AB ANTE (Lat. ante, before). In advance. 
 
 AB ANTECEDENTE (1.3,1. antecedens). Be- 
 forehand. 5 Maule & S. 110. 
 
 AB ANTIQUO (Lat.) Of old. 
 
 AB ASSUETIS NON FIT INJURIA. No 
 
 injury is done by things long acquiesced in. 
 Jenk. Cent. Cas. Introd. viii. 
 
 AB EPISTOLIS (Lat.) An officer having 
 charge of the correspondence (epistolae) of 
 his superior or sovereign; a secretary. 
 Calv. Lex. 
 
 AB EXTRA (Lat. extra, beyond, without). 
 Prom without. 14 Mass. 151. 
 
 AB INCONVENIENTI (Lat. ineonveniens) . 
 Prom hardship; from what is inconvenient. 
 An argument ab inconvenienti is an argument 
 drawn from the hardship of the case. 
 
 AB INITIO (Lat.miMwm, beginning). Prom 
 the beginning; entirely; as to all the acts 
 done; in the inception. An estate may be 
 said to be good, an agreement to be void, 
 an act to be unlawful, a trespass to have 
 existed, at) initio. Plowd. 6a; 11 East, 395; 
 10 Johns. (N. Y.) 253, 369; 1 Bl. Comm. 440. 
 
 Before. Contrasted in this sense with ex 
 post facto (2 Bl. Comm. 308), or with postea 
 (Calv. Lex. voc. "Initium"). 
 
 AB INITIO MUNDI (Lat.) Prom the be- 
 ginning of the world. 
 
 AB INTESTAT. Intestate. 2 Lower Can. 
 219. 
 
 AB INTESTATO (Lat. testatus, having 
 made a will). From an intestate. Used both 
 in the common and civil law to denote an 
 inheritance derived from an ancestor who 
 died without making a will. 2 Bl. Comm. 
 490; Story, Confl. Laws, 480. 
 
 AB INVITO (Lat. invitum). Unwillingly. 
 See "In Invitum." 
 
 AB IRATO (Lat. iratus, an angry man). 
 By one who is angry A devise or gift made 
 by a man adversely to the interests of his 
 heirs, on account of anger or hatred against 
 them, is said to be made ab irato. A suit to 
 set aside such a will is called an action ab 
 irato. Merlin, Repert. 
 
AB OLIM 
 
 (3) 
 
 ABATEMENT 
 
 AB OLIM (Law Lat.) Of old. 3 Bl. Comm. 
 96. 
 
 ABACTOR (Lat. 0.6 and agere, to lead 
 away). One who stole cattle in herds. Ja- 
 cob. Abigeiis (q. v.) was the term more com- 
 monly used to denote such an offender. 
 
 ABADENGO. In Spanish law. Lands, 
 towns, and villages belonging to an abbot, 
 and under his jurisdiction. All lands be- 
 longing to ecclesiastical corporations, and as 
 such exempt from taxation. Bscriche, Die. 
 Raz. Lands of this kind were usually held 
 in mortmain, and hence a law was enacted 
 declaring that no land liable to taxation 
 could be given to ecclesiastical institutions 
 "ningun realengo non pase a abadengo," which 
 Is repeatedly insisted on. 
 
 ABALIENATIO (Lat. alienatto). The most 
 complete method of transferring lands, used 
 among the Romans. It could take place 
 only between Roman citizens. Calv. Lex. 
 
 ABANDONEE. A party to whom a right 
 or property is abandoned or relinquished by 
 another. Applied to the insurers of vessels 
 and cargoes. Lord Ellenborough, C. J., 5 
 Maule & S. 82; Abbott, J., Id. 87; Holroyd, 
 J., Id. 89. 
 
 ABANDONMENT. Relinquishment; sur- 
 render; desertion; waiver. 
 
 Of Property. The relinquishment of 
 
 property or right with intent not to reclaim 
 the same. It implies a relinquishment to 
 the public generally, or to the next comer; 
 a surrender to a particular person not being 
 an abandonment. 11 Cal. 363. To consti- 
 tute an abandonment there must be (1) an 
 Intent to abandon (21 Cal. 291; 49 Minn. 
 148; 49 N. Y. 346), and (2) an unequivocal 
 act of abandonment (77 N. C. 186; 42 Conn. 
 377; 116 Mo. 123). Mere nonuser is not suf- 
 ficient (61 Mo. 178; 15 N. H. 412); but 
 abandonment may be presumed from long- 
 continued nonuser (43 Pa. St. 427; 34 Me. 
 394). 
 
 Of Invention. Either a relinquishing 
 
 of a contemplated invention before it is per- 
 fected, or a permitting of the use of an 
 invention by the public, constitutes an 
 abandonment of the invention to the public, 
 and prevents the inventor from enforcing 
 any exclusive claim to the same. 4 Pish. 
 Pat. Cas. (U. S.) 300. 
 
 Of Duties. The willful and unauthor- 
 ized desertion or forsaking of a duty, as 
 a contract or a service, or of a person as 
 to whom the abandoner is charged with a 
 duty, as of a child by its parents, or of a 
 wife by her husband. In case of abandon- 
 ment of domestic relations, an intent to 
 cause a permanent separation is necessary. 
 See "Desertion." 
 
 To Underwriters. The right of an in- 
 sured, who has suffered a loss, to relinquish 
 the residue to the underwriters, and claim 
 for a total loss, though the insured property 
 is capable of recovery and repair. This 
 right is confined to marine insurance, un- 
 
 less specially given by the policy. May, Ins. 
 § 421. 
 
 For Torts. The ancient right of the 
 
 owner of an animal or of a slave which had 
 committed an injury for which the owner 
 was civilly liable to surrender it to the 
 injured person in satisfaction. The doctrine 
 has been applied to vessels, and authorizes 
 the owner to surrender the vessel in satis- 
 faction of a debt contracted by the master. 
 By Rev. St. V. S. § 4285, the right to sur- 
 render a vessel and exonerate the owner 
 from personal liability was extended to dam- 
 ages by collision. 
 
 ABANDUN, or ABANDUM. Anything se- 
 questered, proscribed, or abandoned. Aban- 
 don, i. e., in hanniim res missa, a thing banned 
 or denounced as forfeited or lost; whence 
 to abandon, desert, or forsake, as lost and 
 gone. Cowell. Pasquier thinks it a coali- 
 tion of a ban donner, to give up to a prescrip- 
 tion, in which sense it signifies the ban of 
 the empire. Wharton. 
 
 ABARNARE (Lat.) To discover and dis- 
 close to a magistrate any secret crime. 
 Leges Canuti, c. 10. 
 
 ABATAMENTUM (Lat. abatare). An en- 
 try by interposition. Co. Litt. 277. An abate- 
 ment. Yelv. 151. 
 
 ABATARE. To abate. Yelv. 151. 
 
 ABATEMENT {Fv. abattre. Law Ft. abater, 
 signifying to throw down). 
 
 In Practice. A suspension of all pro- 
 ceedings in a suit, from the want of proper 
 parties capable of proceeding therein, as on 
 the death of a party pending the suit. 2 
 Paige (N. Y.) 211. 
 
 In modern practice the term signifies gen- 
 erally the suspension of a suit by any mat- 
 ter arising after its commencement. 
 
 Abatement in chancery differs from an 
 abatement at law in this: That in the lat- 
 ter the action is entirely dead, and cannot 
 be revived in the absence of statute (3 Bl. 
 Comm. 168), but in the former the right to 
 proceed is merely suspended, and may be 
 revived by a supplemental bill in the nature 
 of a bill of revivor (21 N. H. 246; Story, Eq. 
 PI. § 354; Mitf. Eq. PI. [by Jeremy] 57). 
 
 In Pleading. The overthrow of an ac- 
 tion caused by the defendant pleading some 
 matter of fact tending to impeach the cor- 
 rectness of the writ or declaration, and 
 which defeats the action for the present, but 
 does not debar the plaintiff from recom- 
 mencing it in a better way. Steph. PI. 47; 
 3 Bl. Comm. 168; 1 Chit. PI. (6th London 
 Ed.) 446; Gould, PI. c. 5, § 65. 
 
 It has been applied rather inappropriately 
 as a generic term to all pleas of a dilatory 
 nature; whereas the word "dilatory" would 
 seem to be the more proper generic term, 
 and the word "abatement" applicable to a 
 certain portion of dilatory pleas. Comyn, 
 Dig. "Abatement" (B) ; 1 Chit. PI. (6th Lon- 
 don Ed.) 440; Gould, PI. c. 5, § 65. In this 
 general sense it has been used to include 
 pleas to the jurisdiction of the court. 
 
ABATEMENT OF FREEHOLD 
 
 (4) 
 
 ABDUCTION 
 
 In Contracts. A reduction made by the 
 
 creditor for the prompt payment of a debt 
 due by the payer or debtor. Weskett, Ins. 7. 
 
 Of Customs Duties. The deduction 
 
 from, or the refunding of, duties sometimes 
 made at the custom house, on account of dam- 
 ages received by goods during importation 
 or while in store. See Act Cong. March 2, 
 1799, § 52; 1 Story, U. S. Laws, 617; An- 
 drews, Rev. Laws, §§ 113, 162. 
 
 Of Legacies. The reduction of a leg- 
 acy, general or specific, on account of the in- 
 sufficiency of the estate of the testator to pay 
 his debts and legacies. When the estate of 
 a testator is insufficient to pay both debts 
 and legacies, it is the rule that the general 
 legacies must abate proportionably to an 
 amount sufllcient to pay the debts. See 
 "Ademption." 
 
 Of Nuisances. The prostration or re- 
 moval of a nuisance, whether by action, or 
 summarily by an individual. 3 Bl. Comm. 
 5. See "Nuisance." 
 
 Of Taxes. A diminution or decrease in 
 
 the amount of tax imposed upon any person. 
 The provisions for securing this abatement 
 are entirely "matters of statute regulation (5 
 Gray [Mass.] 365; 4 R. I. 313; 30 Pa. St. 
 227; 18 Ark. 380; 18 111. 312), and vary in 
 the different states. 
 
 ABATEIVIENT OF FREEHOLD. A wrong- 
 ful entry by a stranger on lands of a 
 decedent before the heir or devisee has 
 taken possession. 3 Bl. Comm. 167. See, 
 also, "Amotion;" "Intrusion;" "Disseisin." 
 
 ABATOR. One who abates or destroys a 
 nuisance. 
 
 One who, having no right of entry, gets 
 possession of the freehold to the prejudice 
 of an heir or devisee, after the time when 
 the ancestor died, and before the heir or 
 devisee enters. Litt. § 397; Perk. § 383; 2 
 Prest. Abstr. 296, 300. See Adams, Bj. 43; 
 1 Washb. Real Prop. 225. 
 
 ABATUDA. Anything diminished; as, )))0- 
 neta nhatudri, which is money clipped or di- 
 minished in value. Cowell. 
 
 ABBACY. The government of a religious 
 house, and the revenues thereof, subject to 
 an abbot, as a bishopric is to a bishop. Cow- 
 ell. 
 
 ABBREVIATE. In Scotch law. An ab- 
 stract. Brsk. Inst. bk. 2, tit. 12, § 43. 
 
 ABBREVIATE OF ADJUDICATION. In 
 
 Scotch law. The recorded abstract of an 
 adjudication (q. v.) 
 
 ABBREVIATIO PLACITORUM. An ab- 
 stract of ancient judicial records, prior to 
 the Year Books. See Steph. PI. (7th Ed.) 
 410. 
 
 , ABBREVIATION. A shortened form of a 
 word obtained by the omission of one or 
 more letters or syllables from the middle 
 or end of the word. 
 
 The abbreviations in common use in mod- 
 ern times consist of the initial letter or 
 
 letters, syllable or syllables, of the word. 
 Anciently, also, contracted forms of words, 
 obtained by the omission of letters inter- 
 mediate between the initial and final let- 
 ters, were much in use These latter forms 
 are now more commonly designated by the 
 term "contraction." Abbreviations are of 
 frequent use in referring to text books, re- 
 ports, etc., and in indicating dates, but 
 should be very sparingly employed, if at 
 all, in formal and important legal docu- 
 ments. See 4 Car. & P. 51; 9 Coke, 48. No 
 part of an indictment should contain any 
 abbreviations except in eases where a^ ^ac 
 simile of a written instrument is necessary 
 to be set out. 1 East, 180, note. The va- 
 riety and number of abbreviations is as 
 nearly illimitable as the ingenuity of man 
 can make them, and the advantages arising 
 from their use are, to a great extent, coun- 
 terbalanced by the ambiguity and uncer- 
 tainty resulting from the usually inconsid- 
 erate selection which is made. 
 
 ABBREVIATIONUM ILLE NUIVIERUSET 
 sensus accipiendus est, ut concessio non sit 
 inanis. Such a number and sense is to be 
 given to abbreviations that the grant may 
 not fail. 9 Coke, 48. 
 
 ABBREVIATORS. In ecclesiastical law. 
 Officers whose duty it is to assist in drawing 
 up the pope's briefs, and reducing petitions 
 into proper form, to be converted into papal 
 bulls. 
 
 ABBROCHMENT. In old English law. 
 The forestalling of a market or fair. 
 
 ABDICATION. A renunciation; a putting 
 away; a renunciation of the sovereignty by 
 an incumbent thereof. 
 
 James II. of England, Charles V. of Ger- 
 many, and Christiana, Queen of Sweden, are 
 said to have abdicated. When James II. of 
 England left the kingdom, the commons 
 voted that he had abdicated the government, 
 and that thereby the throne had become 
 vacant. The house of lords preferred the 
 word, "deserted," but the commons thought 
 it not comprehensive enough, for then the 
 king might have the liberty of returning. 
 
 Also applied to the renunciation or sur- 
 render of any oflice, and in this sense it has 
 been distinguished from "resignation," the 
 latter being the giving up of an office to the 
 appointing power from whom it was re- 
 ceived, or who has the power to fill the 
 vacancy, while abdication is the renuncia- 
 tion of an office which was conferred by 
 act of law. See, however, 26 Barb. (N. Y.) 
 487. 
 
 ABDUCTION. 
 
 In England. By St. 3 Hen. VII. c. 2, 
 
 the taking of any woman having property, 
 or being heir apparent thereto, to be mar- ' 
 ried or defiled. 
 
 Under the present statutte- (24 & 25 Vict, 
 c. 100), the taking of any woman, having 
 certain property or expectancies, to be mar- 
 ried or defiled; the taking of such a woman, 
 being under the age of twenty-one years! 
 
ABEARANCE 
 
 (S) 
 
 ABISHERSING 
 
 out of the possession of the person having 
 lawful charge of her; the taking of any 
 woman of any age by force, with intent to 
 cause her to be married or defiled; the talk- 
 ing of any unmarried girl, under the age of 
 sixteen years, out of possession of the per- 
 son having lawful possession of her; or the 
 taking of any child, under the age of four- 
 teen years, with intent to deprive its lawful 
 guardian of its custody. 
 
 — —In the United States. In most, if not 
 all, of the United States, the crime is regu- 
 lated by statute; but allowing for statutory 
 variations, the elements may be stated as: 
 (1) The taking, which must be by some af- 
 firmative act of force or persuasion. 6 
 Park. Cr. R. 129, 86 N. Y. 369. (2) Prom the 
 custody of a parent or guardian; but a mere 
 enticing for the forbidden purpose to a place 
 near her home, to which she is shortly per- 
 mitted to return, is sufficient. 90 111. 274. 
 In some states this is not essential. (3) For 
 the purpose of making the female a prosti- 
 tute or concubine, or of procuring her to 
 be forcibly married or defiled. The purposes 
 inhibited vary with the statutes, some of 
 the above being omitted, and In some states 
 that of fornication being added. The pur- 
 pose need not he accomplished. 4 N. Y. 
 Cr. R. 306; 5 N. Y. Cr. R. 61. (4) In some 
 states, the female is required to have been 
 of previous chaste character, or to be be- 
 low a given age. Where these elements 
 actually exist, defendant's ignorance of 
 them is no defense. 115 Mo. 480. 
 
 ABEARANCE. Behavior; as, a recogni- 
 zance to be of good abearance signifies to 
 he of good behavior. 4 Bl. Comm. 251, 256. 
 
 ABEREMURDER. In old English law. 
 An apparent, plain, or downright murder. It 
 was used to distinguish a willful murder 
 from chance-medley, or manslaughter. Spel- 
 man; Cowell; Blount. See "Homicide." 
 
 A B ESSE (Lat.) In the civil law. To be 
 absent; to be away from a place. Said of a 
 person who was extra continentia urbis, be- 
 yond the suburbs of the city. 
 
 ABET. In criminal law. To encourage or 
 set another on to commit a crime. This 
 word is always applied to aiding the com- 
 mission of a crime. To abet another to 
 commit a murder is to command, procure, or 
 counsel him to commit it. Old Nat. Brev. 
 21; Co. Litt. 475. See "Accessary." 
 
 ABETMENT (Law Lat. uhcttum. ahhcttum ; 
 Law Fr. alette). In old criminal law. An 
 encouraging or instigation. Staund. P. C. 
 lOr; Cowell; Blount. 
 
 ABETTATOR. See "Abettor." 
 
 ABETTOR. An instigator, or setter on; 
 one that promotes, procures, or assists in, 
 the commission of a crime; a principal in 
 the second de^*c. 
 
 The distinction between abettors and ac- 
 cessaries is the presence or absence at the 
 commission of the crime. Co. Litt. 475; 81 
 111. 333; 44 Iowa, 104. Presence and partici- 
 
 pation are necessary to constitute a person 
 an abettor. 4 Sharswood, Bl. Comm. 33; 1 
 Hall (N. y ) 446; Russ. & R. 99; 9 Bing. N. 
 C. 440; 13 Mo. 382; 1 Wis. 159; 10 Pick. 
 (Mass.) 477. 
 
 ABEYANCE (Fr. ahhayer, to expect). In 
 expectation, remembrance, and contempla- 
 tion of law; the condition of a freehold when 
 there is no person in being in whom it is 
 vested. ' 
 
 In such cases, the freehold has been said 
 to be in niiliilms (in the clouds), and in 
 (jrciiiio legis (in the bosom of the law). It 
 has been denied by some that there is such 
 a thing as an estate in abeyance. Fearne, 
 Cont Rem. 513. See, also, the note to 2 
 Sharswood, Bl. Comm. 107. 
 
 ABIDING BY. In Scotch law. A judicial 
 declaration that the party abides by the 
 deed on which he founds, in an action where 
 the deed or writing is attacked as forged. 
 Unless this is done, a decree that the deed 
 is false will be pronounced. Paterson, Comp. 
 It has the effect of pledging the party to 
 stand the consequences of founding on a 
 forged deed. Bell, Diet. 
 
 ABIGEAT. A particular kind of larceny, 
 which is committed not by taking and carry- 
 ing away the property from one place to 
 another, but by driving a living thing away 
 with an intention of feloniously appropriat- 
 ing the same. 
 
 ABIGEATUS (Lat.) In the civil law. The 
 offense of stealing or driving away cattle. 
 Dig. 47. 14. 2. See "Abigeus." 
 
 ABIGEUS (Lat. ahigere). One who steals 
 cattle in numbers. 
 
 This is the common word used to denote 
 a stealer of cattle in large numbers, which 
 latter circumstance distinguishes the ahigeus 
 from the fur, who was simply a thief. He 
 who steals a single animal may be called 
 fur; he who steals a flock or herd is an 
 ahigeus. The word is derived from ahigere, 
 to lead or drive away, and is the same in 
 signification as ahactor, ahigeatores. ahiga- 
 tores, ahigei. Du Cange; Guyot, Rep. Univ.; 
 4 Bl. Comm. 239. 
 
 A distinction is also taken by some writers 
 depending upon the place whence the cat- 
 tle are taken; thus, one who takes cattle 
 from a stable is called fur. Calv. Lex, 
 "Abigel." 
 
 ABILITY. In divorce law. Power of hus- 
 band to provide, as element of wife's right 
 to alimony. It is sometimes called "facul- 
 ty." 
 
 ABISHERSING. Quit of amercements. It 
 originally signified a forfeiture or amerce- 
 ment, and is more properly inishcring, viish- 
 crsing, or miRl;erhig. according to Spelman. 
 It has since been termed a liberty of free- 
 dom, because, wherever this word is used 
 in a grant, the persons to whom the grant 
 is made have the forfeitures and amerce- 
 ments of all others, and are themselves free 
 from the control of any within their fee. 
 
ABJUDICATIO 
 
 (6) 
 
 ABSCONDING DEBTOR 
 
 ABJUDICATIO (Lat. abjudicare). A re- 
 moval from court. Calv. Lex. It has the 
 same signification as foris judioatio, both in 
 the civil and canon law. Co. Litt. 100b; 
 Calv. Lex. 
 
 AfeJURATION (Lat. abjuratio, from ahju- 
 rare, to abjure, to forswear or renounce on 
 oath). A renunciation of allegiance, upon 
 oath. Sometimes loosely used in the sense 
 of "abandonment." 
 
 ABLEGATI. Papal ambassadors of the 
 second rank, who are sent with a less exten- 
 sive commission to a court where there are 
 no nuncios. This title is equivalent to "En- 
 voy" (g. V.) 
 
 ABLOCATIO, or ABLOCATION. A let- 
 ting out to hire for money. Wharton. 
 
 ABODE. Dwelling place. See "Resi- 
 dence." 
 
 ABOLITION (Lat. abolitio, from abolere, to 
 utterly destroy). The extinguishment, ab- 
 rogation, or annihilation of a thing. 
 
 In the civil, French, and German law, abo- 
 lition is used nearly synonymously with par- 
 don, remission, grace. Dig. 39. 4. 3. 3. There 
 is, however, this difference: Grace is the 
 generic term; pardon, according to those 
 laws, is the clemency which the prince ex- 
 tends to a man who has participated in a 
 crime, without being a principal or accom- 
 plice; remission is made in cases of invol- 
 untary homicides and self-defense. Abolition 
 is different, — it is used when the crime can- 
 not be remitted. The prince then may, by 
 letters of abolition, remit the punishment, 
 but the infamy remains, unless letters of 
 abolition have been obtained before sen- 
 tence. Enc. D'Alembert. 
 
 ABON DANCE (Law Pr.) In old practice. 
 Surplusage. Y. B. P. 7 Hen. VI. 12. 
 
 ABORDAGE (Fr.) The collision of ves- 
 sels. 
 
 ABORTION. The expulsion of the foetus 
 at a period of utero gestation so early that 
 it has not acquired the power of sustaining 
 an independent life. 
 
 It may be either innocent, as when acci- 
 dental, or criminal. Criminal abortion is 
 the willful production of the miscarriage of 
 a pregnant woman, whether by the adminis- 
 tration of drugs, or the use of instruments, 
 or other means, the same not being neces- 
 sary to save her life. At common law, the 
 woman must have been quick with child 
 (78 Ky. 204; 63 Mich. 229), but this is no 
 longer necessary (49 Iowa, 260; 33 Me. 48; 
 83 N. C. 360; 45 Ark. 333). It is an aggra- 
 vation of the offense, and in some states 
 constitutes manslaughter, if the death of the 
 woman is produced. 
 
 ABORTIVE TRIAL. A term descriptive 
 of the result when a case has gone off, and 
 no verdict has been pronounced, without the 
 fault, contrivance, or management of the 
 parties. Jebb & B. 51. 
 
 ABORTUS. The fruit of an abortion; the 
 child born before its time, incapable of life. 
 
 ABOuflSSEMENT (Pr.) An abuttal or 
 abutment. See Guyot, Rep. Univ. "Aboutis- 
 sans." 
 
 ABOVE. Higher; superior; as, court 
 above; bail above. 
 
 ABRIDGE. In practice. To shorten a 
 declaration or count by taking away or sev- 
 ering gome of the substance of it. Brooke, 
 Abr. "Abridgment;" Comyn, Dig. "Abridg- 
 ment;" 1 Viner, Abr. 109. 
 
 To abridge a plaint is to strike out a part 
 of the demand, and pray that the tenant 
 answer to the rest. This was allowable 
 generally in real actions where the writ was 
 de libera tenemento, as assize, dower, etc., 
 where the demandant claimed land of which 
 the tenant was not seized. See 1 Wm. 
 Saund. 207, note 2; 2 Wm. Saund. 24, 330; 
 Brooke, Abr. "Abridgment;" 1 Pet. (U. S.) 
 74 ; Stearns, Real. Actions, 204. 
 
 To abridge damage Is to reduce the same 
 after the rendition of the verdict. 
 
 ABRIDGMENT. An epitome or compen- 
 dium of another and larger work, wherein 
 the principal ideas of the larger work are 
 summarily contained. 
 
 ABROGATION. The destruction of or an- 
 nulling a former law by an act of the legis- 
 lative power, or by usage. 
 
 It is a total annulment, as distinguished 
 from derogation, which is a repeal of part. 
 Abrogation may be express or implied. 
 
 Express Abrogation. That literally 
 
 pronounced by the new law either in general 
 terms, as when a final clause abrogates or 
 repeals all laws contrary to the provisions 
 of the new one, or in particular terms, as 
 where it abrogates certain preceding laws, 
 which are named. 
 
 Implied Abrogation. That which takes 
 
 place when the new law contains provisions 
 which are positively contrary to the former 
 laws, without expressly abrogating such 
 laws; for it is a maxim, Posteriora derogant 
 prioribus (10 Mart. [La.] 172, 560) ; and also 
 when the order of things for which the law 
 had been made no longer exists, and hence 
 the motives which had caused its enactment 
 have ceased to operate, Ratione leg is omnino 
 oe.isante cessat leir. Toullier, Dr. Civ. tit. prel. 
 § 11, note 151; Merlin, Repert. 
 
 ABSCOND. To go in a clandestine man- 
 ner out of the jurisdiction of the courts, or 
 to lie concealed, in order to avoid their 
 process. 
 
 ABSCONDING DEBTOR. One who ab- 
 sconds from his creditors. 
 
 The statutes of the various states, and 
 the decisions upon them, have determined 
 who shall be treated in those states, respect- 
 ively, as absconding debtors, and liable to 
 be proceeded against as such. A person 
 who has been in a state only transiently, 
 or has come into it without any intention 
 of settling therein, cannot be treated as 
 
ABSENCE 
 
 (7) 
 
 ABSQUE 
 
 an absconding debtor (2 Gaines [N. Y.] 318; 
 15 Johns. [N. Y.] 196; 4 Watts [Pa.] 422); 
 nor can one who openly changes his resi- 
 dence (3 Yerg. [Tenn.] 414; 5 Conn. 117). 
 For the rule in Vermont, see 2 Vt. 489; 6 
 Vt. 614. It is not necessary that the debtor 
 should actually leave the state. Y Md. 209. 
 
 ABSENCE. The state of being away from 
 one's domicile or usual place of residence. 
 
 In its specific applications, particular 
 qualifications are usually added. Thus, to 
 toll the statute of limitations, the absence 
 must generally be from the jurisdiction. 
 To raise a presumption of death, the where- 
 abouts of the absent person must be un- 
 known, and the absence must continue a 
 certain time, — usually seven years. 
 
 In Scotch Law. Default of appearance. 
 
 ABSENTE (Lat. ablative of absens). Be- 
 ing absent. A common term in the old re- 
 ports. "The three justices, absente North, 
 C. J., were clear of opinion." 2 Mod. 14. 
 
 ABSENTEE. One who absents himself 
 from a state, from his residence, or from 
 an office or place where official duty is to 
 be performed. Applied to a landlord who 
 resides in a country other than that from 
 which he draws his rents. McCuUoch, Polit. 
 Bcon. 
 
 In Louisiana Practice. Either a non- 
 resident or a resident who has departed from 
 the state, leaving no one to represent him. 
 14 La. 447; 15 La. 81; 16 La. Ann. 390. 
 
 A resident temporarily absent, but retain- 
 ing his domicile, so that service may be 
 made on him there, is not an absentee. 16 
 La. Ann. 390; 18 La. Ann. 695. 
 
 A curator ad hoc (q. v.) may be appointed 
 for an absentee. 
 
 ABSENTEES, or DES ABSENTEES. The 
 name of a parliament held at Dublin, 10th 
 May, 8 Hen. VIII. 
 
 ABSENTEM ACCIPERE DEBEMUS EUM 
 qui non est eo loci in quo petitur. We must 
 call him absent who is not in that place in 
 which he is sought. Dig. 50. 16. 199. 
 
 ABSENTIA EJUSQUI RE1PUBLICAE 
 cause abest, neque ei neque alii damnosa 
 esse debet. The absence of him who is 
 employed in the service of the state ought 
 not to be prejudicial to him nor to others. 
 Dig. 50. 17. 140. 
 
 ABSOILE. To pardon; to deliver from 
 excommunication. Stamford, P. C. 72; Kel- 
 ham. Sometimes spelled assoile (q. v.) 
 
 ABSOLUTA SENTENTIA EXPOSITORE 
 non indiget. An absolute, unqualified sen- 
 tence (or proposition) needs no expositor. 
 2 Inst. 533. 
 
 ABSOLUTE (Lat. absolvere). Complete; 
 perfect; final; without any condition or in- 
 cumbrance; as an absolute bond (simplex 
 obligatio), in distinction from a conditional 
 bond. 
 
 ■ Absolute Estate. One that is free 
 
 from all manner of condition or incumbrance. 
 See "Condition." 
 
 Absolute Rule. One which, on the 
 
 hearing, has been confirmed and made final. 
 
 Absolute Conveyance. One conveying 
 
 unconditional title, as distinguished from a 
 mortgage or other conditional conveyance. 
 1 Powell, Mortg. 125. 
 
 Absolute Rights. Such as appertain 
 
 and belong to particular persons merely as 
 individuals or single persons, as distin- 
 guished from relative rights, which are in- 
 cident to them as members of society. 1 
 Sharswood, Bl. Comm. 123; 1 Chit. PI. 364; 
 1 Chit. Prac. 32. 
 
 Absolute Property. Where a man hath 
 
 solely and exclusively the right and also 
 the occupation of movable chattels; distin- 
 guished from a qualified property, as that of 
 a bailee. 2 Sharswood, Bl. Comm. 388; 2 
 Kent, Comm. 347. It includes not only the 
 property, but the right to an immediate and 
 unqualified possession. 7 Barb. (N. Y.) 590. 
 
 Absolute Covenant. One which is un- 
 conditional or unqualified. 
 
 Absolute Interest. One which is so 
 
 completely vested in the individual that he 
 can by no contingency be deprived of it 
 without his own consent. 
 
 Absolute Law. The law of nature, 
 
 which alone is immutable in theory. 1 
 Steph. Comm. 21 et seq. 
 
 Absolute Warrandice. In Scotch law. 
 
 A warranty against all incumbrances what- 
 ever. 1 Kames, Eq. 290, 293. 
 
 ABSOLUTIOIVI. 
 
 In Civil Law. A sentence whereby a 
 
 party accused is declared innocent of the 
 crime laid to his charge. 
 
 In Canon Law. A juridical act, where- 
 by the clergy declare that the sins of such as 
 are penitent are remitted. The formula of 
 absolution in the Roman Church is abso- 
 lute; in the Greek Church it is deprecatory; 
 in the Reformed Churches, declaratory. 
 Among Protestants it is chiefly used for a 
 sentence by which a person who stands ex- 
 commmunicated is released or freed from 
 that punishment. Enc. Brit. 
 
 In French Law. The dismissal of an 
 
 accusation. 
 
 The term "acquitment" is employed when 
 the accused is declared not guilty, and "ab- 
 solution" when he is recognized as guilty, 
 but the act is not punishable by law, or he 
 is exonerated by some defect of intention or 
 will. 
 
 ABSOLUTISM. That government in 
 which public power is vested in some per- 
 son or persons, unchecked and uncontrolled 
 by any law or institution. 
 
 The word was first used at the beginning 
 of this century, in Spain, where he who 
 was in favor of the absolute power of the 
 king, and opposed to the constitutional sys- 
 tem introduced by the Cortes during the 
 struggle with the French, was called abso- 
 
 ABSQUE. In Latin phrases. A preposi- 
 tion denoting without, or except for. 
 
ABSQUE TALI CAUSA 
 
 (8) 
 
 ACCAPITARE 
 
 ABSQUE TALI' CAUSA (Lat. without 
 such cause). In pleading. A form of repli- 
 cation in an action ex delicto, which works 
 a general denial of the whole matter of the 
 defendant's plea of de injuria. Gould, PI. c. 
 7, § 10. 
 
 ABSQUE IMPETITIONE VASTI (Lat. 
 without impeachment of waste). A term in- 
 dicating freedom from any liability on the 
 part of the tenant or lessee to answer in 
 damages for the waste he may commit. See 
 "Waste." 
 
 ABSQUE CONSIDERATIONE CURIAE 
 
 (Lat.) In old practice. Without the con- 
 sideration of the court; without judgment. 
 St. Marlb., cited in Pleta, lib. 2, c. 47, § 13. 
 
 ABSQUE ALIQUO INDE REDDENDO 
 
 (Lat. without reserving any rent there- 
 from). A term used of a free grant by the 
 crown. 2 Rolle, Abr. 502. 
 
 ABSQUE HOC (Lat.) Without this. See 
 "Traverse." 
 
 ABSTENTION. In French law. The tacit 
 renunciation of a succession by an heir. 
 Merlin, Repert. 
 
 ABSTRACT. An abridgment or synopsis. 
 In appellate practice. A condensed state- 
 ment of the evidence or record. 
 
 Of a Fine. An abstract of the writ of 
 
 covenant and the concord; naming the par- 
 ties, the parcel of land, and the agreement. 
 2 Bl. Comm. 351. 
 
 Of a Title. A brief account of all the 
 
 deeds upon which the title rests. A synop- 
 sis of the distinctive portions of the various 
 instruments which constitute the muni- 
 ments of title. See Brest. Abstr. ; Wharton. 
 
 ABUNDANS CAUTELA NON NOCET. 
 
 Abundant caution does no harm. 11 Coke, 
 6; Fleta, lib. 1, c. 28, § 1. 
 
 ABUSE. Everything which is contrary to 
 good order established by usage. Merlin, 
 Repert. 
 
 Among the civilians, abuse has another 
 signification, which is the destruction of the 
 substance of a thing in using it. For ex- 
 ample, the borrower of wine or grain abuses 
 the article lent by using it, because he 
 cannot enjoy it without consuming it. 
 
 Of Distress. The using an animal or 
 
 chattel distrained, which makes the dis- 
 trainer liable as for a conversion. 
 
 Of Female Child. Carnal knowledge. 
 
 See "Rape." 
 
 Of Process. There is an abuse of pro- 
 cess when an adversary, through the mali- 
 cious and unfounded use of some regular 
 legal proceeding, obtains some advantage 
 over his opponent. Wharton. See 63 How. 
 Pr. (N. Y.) 326; 15 App. Div. (N. Y.) 205. 
 
 ABUT. To reach; to touch. In old law, 
 the ends were said to abut, the sides to 
 adjoin. Cro. Jac. 184. 
 
 To take a new direction; as where a 
 bounding line changes its course. Spelman, 
 
 voc. "Abuttare." In the modern law, to 
 bound upon. 2 Chit. PI. 660. 
 
 ABUTTALS (Pr.) The buttings or bound- 
 ings of lands, showing to what other lands, 
 highways, or places they belong or are abut- 
 ting. Termes de la Ley. 
 
 ABUTTER. The owner of land abutting 
 on a public street, in the bed of which the 
 owner has no title or private right except 
 such as are incident to a lot so situated. 122 
 N. Y. 1; 130 N. Y. 14. 
 
 An abutter has two distinct kinds of rights 
 in a highway, — those which he enjoys in 
 common with all citizens, and those which 
 arise from his ownership of contiguous prop- 
 erty. 130 N. Y. 618. 
 
 He may or may not own the fee in the 
 street, and his rights of the second class 
 vary according to this fact. 131 N. Y. 293. 
 
 AC ETIAM (Lat. and also). The Intro- 
 duction to the statement of the real cause 
 of action, used in those cases where it was 
 necessary to allege a fictitious cause of ac- 
 tion to give the court jurisdiction, and also 
 the real cause in compliance with the stat- 
 utes. It was first used in the king's bench, 
 and was afterwards adopted by Lord C. J. 
 North in addition to the clausum fregit writs 
 of his court upon, which writs of capias 
 might issue. He balanced a while whether 
 he should not use the words nee non instead 
 of ac ctiam. See Burgess, Ins. 149-157; 3 
 Sharswood, Bl. Comm. 288. 
 
 AC ETIAM BILLAE (Law Lat. and also 
 to a bill). The initial words of a clause in- 
 serted in a writ of capias ad respondendum, 
 where bail is required, in order to express 
 the true cause of action; the writ requiring 
 the defendant "to answer the plaintljf of a 
 plea of trespass, and also to a bill of the 
 plaintiff" against the defendant, for . what- 
 ever the real cause of action may be. 3 Bl. 
 Comm. 288; Id. Append. No. 3, § 3. See 
 "Capias ad Respondendum." This clause is 
 now dispensed with, in the process of the 
 English courts. St. 2 Wm. IV. c. 39. See 
 "Bill." 
 
 AC SI (Lat.) As if. Towns. PI. 23, 27. 
 These words frequently occur in old Eng- 
 lish statutes. Lord Bacon expounds their 
 meaning in the statute of uses: "The stat- 
 ute gives entry, not simpl iciter, but with an 
 ac si." Bac. Read. Uses, Works, iv. 195. 
 
 ACAPTE. In French feudal law. A spe- 
 cies of relief; a seignorial right due on every 
 change of a tenant. A feudal right which 
 formerly prevailed in Languedoc and Guy- 
 enne, being attached to that species of her- 
 itable estates which were granted on the 
 contract of emphyteusis. Guyot, Inst. Feud, 
 c. 5. § 12. 
 
 ACCAPITARE, ACAPITARE, or ACAP- 
 tare (Law Lat.) From caput, head, or chief. 
 
 (1) To pay homage to a chief lord, on be- 
 coming his vassal. Bracton, fol. 78a; Fleta, 
 lib. 3, c. 16, § 6. 
 
ACCEDAS AD CURIAM 
 
 (9) 
 
 ACCESSARY 
 
 (2) To acknowledge the sovereignty of 
 a chief lord in special cases, as against a 
 mesne; to attorn (acupitarc et se attiiniaro). 
 Braoton, fol. 389a; Fleta, lib. 3, c. 16, § 38; 
 Id. lib. 6, c. 28, § 1. 
 
 (3) To attorn to another person than the 
 chief lord, and in derogation of his rights. 
 Fleta, lib. 2, c. 50, § 16. 
 
 ACCEDAS AD CURIAM (Lat. that you 
 go to court). In English law. An original 
 writ issuing out of chancery and directed 
 to the sheriff, for the purpose of removing a 
 replevin suit from the hundred court or 
 court baron before one of the superior courts 
 of law. It directs the sheriff to go to the 
 lower court, and there cause the plaint to 
 be recorded, and to return, etc. See Fitzh. 
 Nat. Brev. 18; Dyer, 169. 
 
 ACCEDAS AD VICE COMITEM (Lat. that 
 you go to the sheriff). In English law. A 
 writ directed to the coroner, commanding 
 him to deliver a writ to the sheriff, who sup- 
 presses a pone which has been delivered to 
 him, which commands the latter officer to 
 return the pone. 
 
 ACCELERATION. An estate is said to 
 be accelerated when it is reduced to posses- 
 sion by the extinguishment of the precedent 
 estate sooner than it would have been in 
 the due course of events. 
 
 ACCEPTANCE (Lat. acciperc). 
 
 Of Property. The receipt of a thing 
 
 offered by another with an intention to re- 
 tain it, indicated by some act sufficient for 
 the purpose. 2 Pars. Cont. 221. 
 
 The element of receipt must enter into 
 every acceptance, though receipt does not 
 necessarily mean, in this sense, actual man- 
 ual taking. To this element there must be 
 added an intention to retain. This reten- 
 tion may exist at the time of the receipt, or 
 subsequently; it may be indicated by words, 
 or acts, or any medium understood by the 
 parties; and an acceptance of goods will 
 be implied from mere detention, in many 
 instances. 
 
 An acceptance involves very generally 
 the idea of a receipt in consequence of a 
 previous undertaking, on the part of the 
 person offering, to deliver such a thing as 
 the party accepting is in some manner 
 "bound to receive. It is through this mean- 
 ing that the term "acceptance," as used in 
 reference to bills of exchange, has a rela- 
 tion to the more general use of the term. 
 As distinguished from "assent," acceptance 
 Tvould denote receipt of something in com- 
 pliance and satisfactory fulfillment of a 
 contract to which assent has been previous- 
 ly given. See "Assent." 
 
 Of Bills of Exchange. An engagement 
 
 to pay the bill in money when due. 4 Bast, 
 72; 19 Law J. 297. 
 
 Acceptances of bills of exchange are: 
 
 -(1) Absolute, being a positive engagement 
 to pay the bill according to its tenor. 
 
 (2) Conditional, being an undertaking to 
 pay the bill on a contingency. 
 
 (3) Partial, being one varying from the 
 tenor of the bill. 
 
 (4) Qualified, being either conditional or 
 partial. 
 
 (5) Supra protest, being the acceptance of 
 the bill after protest for nonacceptance by 
 the drawee, for the honor of the drawer, or 
 a particular indorser. 
 
 They are also either: 
 
 (6) Express, being an undertaking in di- 
 rect and express terms to pay the bill. 
 
 (7) Implied, being an undertaking to pay 
 the bill inferred from acts of a character 
 fairly to warrant such an inference. 
 
 ACCEPTANCE AU BESOIN. In French 
 law. Acceptance in case of need. See "Au 
 Besoin." 
 
 ACCEPTARE (Lat.) 
 
 In Old Pleading. To accept. Accep- 
 tavit, he accepted. 2 Strange, 817. Non ac- 
 ceptavit, he did not accept. 4 Man. & G. 7. 
 
 In the Civil Law. To accept; to as- 
 sent; to assent to a promise made by an- 
 other. Grotius de Jure Belli, lib. 2, c. 11, 
 § 14. 
 
 ACCEPTILATION. In civil law. A re- 
 lease made by a creditor to his debtor of 
 his debt, without receiving any considera- 
 tion. Ayliffe, Pand. tit. 26, p. 570. It is a 
 species of donation, but not subject to the 
 forms of the latter, and is valid unless in 
 fraud of creditors. Merlin, Report. 
 
 ACCEPTOR. The party who accepts a 
 bill of exchange. 3 Kent, Comm. 75. 
 
 The party who undertakes to pay a bill of 
 exchange in the, first instance. 
 
 ACCEPTOR SUPRA PROTEST. A party 
 who accepts a bill which has been protest- 
 ed, for the honor of the drawer or any one 
 of the indorsers. 
 
 ACCESS. Approach, or the means or 
 power of approaching. The right of the oc- 
 cupant of land to pass from his premises to 
 a highway. 
 
 Sometimes by access is understood sexual 
 intercourse; at other times, the opportunity 
 of communicating together, so that sexual 
 intercourse may have taken place, is also 
 called access. In this sense, a man who 
 can readily be in company with his wife is 
 said to have access to her, and in that case 
 her issue are presumed to be his issue; but 
 this presumption may be rebutted by posi- 
 tive evidence that no sexual intercourse 
 took place. 1 Turn. & R. 141. 
 
 ACCESSARY. In criminal law. He who 
 is not the chief actor in the perpetration of 
 the offense, nor present at its performance, 
 but is some way concerned therein, either 
 before or after the fact committed. 
 
 Before the Fact. One who, being ab- 
 sent at the time of the crime committed, 
 yet procures, counsels, or commands anoth- 
 er to commit it. 1 Hale, P. C. 615. 
 
 The essentials are: 
 
 (1) Absence from the scene of the crime. 
 ■9 Pick. (Mass.) 496. 
 
 (2) Actual procurement, counsel, or com- 
 mand; bare permission (1 Hale, P. C. 616) 
 or failure to disclose a known intent to com- 
 
ACCESSARY TO ADULTERY 
 
 (10) 
 
 ACCESSORY CONTRACTS 
 
 mit crime (7 Tex. App. 549) not being 
 enough. 
 
 (3) A criminal intent. 157 Pa. St. 13. 
 
 ~ Affer the Fact. One who, knowing a 
 
 felony to have been committed, receives, re- 
 lieves, comforts, or assists the felon. 4 Bl. 
 Comm. 37. The essentials are: 
 
 (1) The commission of a crime by the 
 principal. 39 Miss. 702. 
 
 (2) Knowledge thereof by the alleged 
 accessary. 42 Ga. 22. 
 
 (3) Assistance rendered to the principal 
 personally. 26 Grat. (Va.) 952. 
 
 ACCESSARY TO ADULTERY. In di- 
 vorce law. A spouse who directly com- 
 mands or procures the commission of adul- 
 tery by the other. It is a stronger term than 
 "conniver," which implies mere acquies- 
 cence, but is practically unused in America, 
 "connivance" being used to denote all non- 
 collusive participation. 
 
 ACCESSIO (Lat. an accession). An in- 
 crease or addition; that which lies next to a 
 thing, and is supplementary and necessary 
 to the principal thing; that which arises or 
 is produced from the principal thing. Calv. 
 Lex. 
 
 A manner of a;c(iuiring the property in a 
 thing which becomes united with that which 
 a person already possesses. 
 
 The doctrine of property arising from ac- 
 cessions is grounded on the rights of oc- 
 cupancy. It is said to be of six kinds in 
 the Roman law: 
 
 (1) That which assigns tp the owner of a 
 thing its products, as the fruit of trees, the 
 young of animals. 
 
 (2) That which makes a man the owner 
 of a thing which is made of another's prop- 
 erty, upon payment of the value of the ma- 
 terial taken. See, also. Civ. Code La. art. 
 491. As where wine, bread, or oil is made 
 of another man's grapes, olives, or wheat. 
 2 Sharswood, Bl. Comm. 404; 10 Johns. (N. 
 y.) 288. 
 
 (3) That which gives the owner of land 
 new land formed by gradual deposit. See 
 "Alluvion." 
 
 (4) That which gives the owner of a 
 thing the property in what is added to it 
 by way of adorning or completing it; as, if 
 
 ' a tailor should use the cloth of B. in repair- 
 ing A.'s coat, all would belong to A., but B. 
 would have an action against both A. and 
 the tailor for the cloth so used. This doc- 
 trine holds in the common law. Moore, 20; 
 Poph. 38; Brooke, Abr. "Propertiae," 23. 
 
 (5) That which gives islands formed in 
 a stream to the owner of the adjacent lands 
 on either side. 
 
 (6) That which gives a person the prop- 
 erty in things added to his own so that they 
 cannot be separated without damage. Guy- 
 ot, Rep. Univ. 
 
 An accessary obligation, and sometimes 
 also the person who enters into an obliga- 
 tion as surety in which another is principal. 
 Calv. Lex. 
 
 ACCESSION. 
 To Property. 
 
 The right to all which 
 
 one's own property produces, whether that 
 property be movable or immovable, including 
 the increase of animals, and the right to that 
 which is so united to it, either naturally or 
 artificially, as not to be readily separable. 
 See 45 Vt. 4; 2 Kent, Comm. 360; 2 Bl. 
 Comm. 404. See "Confusion of Goods." 
 
 It is sometimes used in a narrower sense, 
 as including only the acquirement by the 
 owner of property of that which is added 
 to or incorporated with it, as by the erec- 
 tion of additions to a building, the setting 
 out of trees, etc., and in this sense is to be 
 distinguished from "specification," which 
 is the transformation of property into an- 
 other species by the labor of another, as 
 by the sawing of trees into lumber. See 2 
 Bl. Comm. 404. 
 
 Distinction between "accession" and "con- 
 fusion," see "Confusion of Goods." 
 
 In International Law. The absolute- 
 
 or conditional acceptance, by one or several 
 states, of a treaty already concluded be- 
 tween other sovereignties. Merlin, Repert. 
 
 ACCESSION, DEED OF. In Scotch law. 
 A deed executed by the creditors of a bank- 
 rupt or insolvent debtor, by which they ap- 
 prove of a trust given by their debtor for 
 the general behoof, and bind themselves to- 
 concur in the plans proposed for extricat- 
 ing his affairs. Bell, Diet. 
 
 ACCESSORIUM NON DUCIT SED SEQUI- 
 tur suum princlpale. The principal draws 
 after it the. accessory, not the accessory the 
 principal. Co. Lift. 152a, 389a; 5 El. & Bl. 
 772; Broom, Leg. Max. (3d London Ed.) 
 433. Literally, the accessory does not draw, 
 but follows, its principal. 
 
 ACCESSORIUS SEQUITUR NATURAM 
 sul principalis. An accessory follows the- 
 nature of his principal. Coke, 3d Inst. 139; 
 4 Sharswood, Bl. Comm. 36; Broom, Leg. 
 Max. (3d London Ed.) 440. 
 
 ACCESSORY. Anything which is joined 
 to another thing as an ornament, or to ren- 
 der it more perfect. For example, the hal- 
 ter of a horse, the frame of a picture, the 
 keys of a house, and the like, each belong- 
 to the principal thing. The sale of the ma- 
 terials of a newspaper establishment will 
 carry with it, as an accessory, the sub- 
 scription list (2 Watts rPa.] Ill); but a 
 bequest of a house would not carry the- 
 furniture in it, as accessory to it (Domat, 
 Civ. Law, p. 2, liv. 4, tit. 2, § 4, note 1). Ap- 
 cessorium non ducit, sed- sequitur principale. . 
 Co. Litt. 152a. 
 
 Used, also, in the same sense as "Acces- 
 sary" ((/. V.) 
 
 ACCESSORY ACTIONS. In Scotch law. 
 Those which are in some degree subserv- 
 ient to others. Bell, Diet. 
 
 ACCESSORY CONTRACTS. Those made 
 for assuring the performance of a prior con- 
 tract, either by the same parties or by oth- 
 ers; such as suretyship, mortgages, and' 
 pledges. ' 
 
ACCESSORY OBLIGATIONS 
 
 (11) 
 
 ACCORD 
 
 ACCESSORY OBLIGATIONS. In Scotch 
 law. Obligations to antecedent or primary 
 obligations, such as obligations to pay inter- 
 est, etc. Brsk. Inst. lib. 3, tit. 3, § 60. 
 
 ACCIDENT (Lat. accidere, — nd, to, and 
 cadcre, to fall). An event which, under the 
 circumstances, is unusual and unexpected 
 by the person to whom it happens. 
 
 The happening of an event without the 
 concurrence of the will of the person by 
 whose agency it was caused; or the happen- 
 ing of an event without any human agency. 
 32 Conn. 85. See "Inevitable Accident." 
 
 In Equity Practice. Such an unfore- 
 seen event, misfortune, loss, act, or omission 
 as is not the result of any negligence or mis- 
 conduct in the party. Stovy, Eq. Jur. § 78; 
 35 Conn. 198. 
 
 An occurrence in relation to a contract 
 which was not anticipated by the parties 
 when the same was entered into, and which 
 gives an undue advantage to one of them 
 over the other in a court of law. Jeremy, 
 Eq. 358. This definition Is objected to, be- 
 cause, as accidents may arise in relation to 
 other things besides contracts, it is inac- 
 curate in confining accidents to contracts; 
 besides, it does not exclude cases of un- 
 anticipated occurrences resulting from the 
 negligence or misconduct of the party seek- 
 ing relief. See, also, 1 Spence, Eq. Jur. 628. 
 
 An unforeseen or unexpected event occur- 
 ring external to the party affected by it, 
 and of which his own agency is not the 
 proximate cause, whereby, contrary to his 
 own intention and wish, he loses some right 
 which it would be a violation of good con- 
 science for the person obtaining to retain. 
 2 Pom. Eq. Jur. § 823. 
 
 It differs from "mistake" in that the lat- 
 ter is based on a voluntary action of the 
 person affected under a mistaken impres- 
 sion. 
 
 ACCION, or ACCYOUN (Law Pr.) An 
 action. Kelham. Accion sur le cas, an ac- 
 tion on the case. 
 
 ACCIPERE QUID UT JUSTITIAM FA- 
 cias, non est tarn acclpere quam extorquere. 
 To accept anything as a reward for doing 
 justice is rather extorting than accepting. 
 Lofft, 72. 
 
 ACCIPITARE. To pay relief to lords of 
 manors. Oapitali domino accipitare, i. e., to 
 pay a relief, homage, or obedience to the 
 chief lord on becoming his vassal. Pleta, 
 lib. 2, c. 50. 
 
 ACCO (Law Lat.) An abbreviation of 
 actio. Towns. PI. 26. 
 
 ACCOLA. 
 
 In the Civil Law. One who inhabits 
 
 or occupies land near a place, as one who 
 dwells by a river, or on the bank of a river. 
 Dig. 43. 13. 3. 6. 
 
 In Feudal Law. A husbandman; an 
 
 agricultural tenant; a tenant of a manor. 
 Spelman. A name given to a class of vil- 
 leins in Italy. Barr. Obs. St.. 302. 
 
 ACCOMENDA. A contract which takes 
 place when an individual intrusts personal 
 property with the master of a vessel, to be 
 sold for their joint account. In such case, 
 two contracts take place, — the contract called 
 mandatum, by which the owner of the prop- 
 erty gives the master power to dispose of 
 it, and the contract of partnership, in virtue 
 of which the profits are to be divided be- 
 tween them. One party runs the risk of 
 losing his capital; the other his labor. If 
 the sale produces no more than first cost, 
 the owner takes all the proceeds; it is only 
 the profits which are to be divided. Emerig. 
 Mar. Loans, § 5. 
 
 ACCOMMODATION. A contract or obli- 
 gation made or assumed as a favor, and not 
 on a consideration. 
 
 ACCOMMODATION LANDS. A name 
 given in England to lands obtained or im- 
 proved for the purpose of augmenting the 
 value of other lands. 
 
 ACCOMMODATION PAPER. A negotia- 
 ble instrument made or indorsed without 
 consideration for the benefit of another. 
 
 ACCOMMODATION PARTY. One who 
 has signed the instrument as maker, 
 drawer, acceptor, or indorser without re- 
 ceiving value therefor, and for the purpose 
 of lending his name to some other person. 
 Neg. Inst. Law N. Y. § 55. 
 
 ACCOMMODATION ROAD. One con- 
 structed to give .access to a particular tract 
 of land. 
 
 ACCOMMODATION WORKS. The name 
 given to the facilities, such as gates and 
 culverts, which a railroad company in Eng- 
 land, which has acquired property by emi- 
 nent domain, is required by section 68 of 
 the act of 1845 to construct for the benefit 
 of the adjoining owners. 
 
 ACCOMPLICE (Lat. ad and complicate, 
 — con, with, together; plicare, to fold, to 
 wrap, — to fold together). 
 
 In Criminal Law. One who is in some 
 
 way concerned in the commission of a crime, 
 though not as a principal. 
 
 The term in its fullness includes in its 
 meaning all persons who have been con- 
 cerned in the commission of a crime, all 
 particcpes criminis, whether they are con- 
 sidered in strict legal propriety as prin- 
 cipals In the first or second degree, or mere- 
 ly as accessaries before or after the fact. 
 1 Russ. Crimes, 21; 4 Bl. Comm. 331; 1 
 Phil. Ev. 28. 
 
 ACCORD. Abbreviation of the French 
 "accordant," and English "accordingly;" 
 frequently used in the books, especially in 
 the repdrts, to denote the accordance or 
 agreement between 'one adjudged case and 
 another, in establishing or confirming the 
 same doctrine, and sometimes the accord- 
 ance of judges in opinion in the same case. 
 See "Accordant." The disagreement or op- 
 position of cases is denoted by "contra." 
 
ACCORDANT 
 
 (12) 
 
 ACCRETION 
 
 In Contracts. A satisfaction agreed 
 
 on between the party injuring and the party- 
 injured, which, when performed, is a bar to 
 all actions upon this account. Generally 
 used in the phrase "accord and satisfaction." 
 satisfaction being the performance of, the ac- 
 cord. 2 Greenl. Bv. 28; 3 Bl. Comm. 16; 4 
 Denio (N. Y.) 418; 83 Va. 397; 78 Wis. 682; 
 5 Md. 170. 
 
 Something of legal value, to which the 
 creditor before had no right, agreed on in 
 full satisfaction of the debt, without re- 
 gard to the magnitude of the satisfaction. 
 43 Conn. 462. 
 
 The substitution of an agreement in lieu 
 of a right of action betweefl the parties. 
 
 A part payment is not a good accord and 
 satisfaction, though received in full. 20 
 Conn. 559; 99 Mich. 247; 64 Barb. (N. Y.) 
 215; 8 R. I. 381; 23 Wis. 471; 79 N. C. 585. 
 
 ACCORDANT (Fr. anQ Eng.) Agreeing; 
 concurring. "Baron Parker, accordant," 
 Hardr. 93; "Holt, C. J., accordant," 6 Mod. 
 298, 299; "Powys, J., accord.," "Powell, J., 
 accord.," Id. 
 
 ACCOUCHEMENT. The act of giving 
 birth to a child. , " / 
 
 ACCOUNT. A detailed statement of mu- 
 tual demands in the nature of debt and 
 credit between the parties, arising out of 
 contract or some fiduciary relation. 45 Mo. 
 573. 
 
 A written statement of pecuniary trans- 
 actions. Abbott. 
 
 It is to be distinguished from "balance," 
 which is but the conclusion or result of the 
 account. 45 Mo. 574. 
 
 Stated Account. One which has been 
 
 approved by the parties, and the balance 
 shown by it agreed to either (1) expressly, 
 or (2) impliedly, as by retaining an account 
 rendered without objection. 
 
 Open Account. One which has not 
 
 been closed or stated. 
 
 Current Account. One kept open in 
 
 expectation of further dealings. 
 
 Book Accounts. Those evidenced by 
 
 entries in books of account. 
 
 Account Rendered. An account pre- 
 sented by the creditor to the debtor. 
 
 ACCOUNT,ACTION OF (sometimes called 
 "Account," or "Account Render"). An ac- 
 tion or writ which lay against one who was 
 required, by his official or fiduciary position, 
 to render an account. 
 
 ACCOUNT BOOK. A book kept by a 
 merchant, trader, mechanic, or other person, 
 in which are entered from time to time the 
 transactions of his trade or business. Such 
 books, when regularly kept, may be admit- 
 ted in evidence. Greenl. Bv. §§ 115^118. 
 
 ACCOUNT IN BANK. See "Bank Ac- 
 count." 
 
 ACCOUNT STATED. See "Account." 
 
 ACCOUNTABLE RECEIPT. An ac- 
 
 knowledgment of the receipt of money to 
 be accounted for by the person receiving it, 
 as distinguished from a receipt for money 
 paid in discharge of a debt. 1 Bxch. 138. 
 
 ACCOUNTANT. One who is versed in 
 accounts. A person or officer appointed to 
 keep the accounts of a public company. 
 
 He who renders to another or to a court 
 a just and detailed statement of the property 
 which he holds as trustee, executor, admin- 
 istrator, or guardian. See 16 Viner, Abr. 
 155. 
 
 ACCOUNTANT GENERAL, or ACCOMP- 
 tant general. An officer of the English 
 court of chancery, by whom the moneys 
 paid into court are received, deposited in 
 bank, and disbursed. The office appears to 
 have been established by an order of May 
 26, 1725, and 12 Geo. I. c. 32, before which 
 time the effects of the suitors were locked 
 up in the vaults of the Bank of England, 
 under the care of the masters and two of 
 the six clerks. 1 Smith, Ch. Prac. 22. It 
 is now abolished. 35 & 36 Vict. 44. 
 
 ACCOUNTING. The making and render- 
 ing of an account. Usually, but not neces- 
 sarily, applied to accountings under order of 
 court. 
 
 ACCOUPLE. To marry; married. 
 
 ACCREDIT. In international law. To 
 acknowledge. Used of the act by which a 
 diplomatic agent is acknowledged by the 
 government near which he is sent, which 
 makes his public character known, and be- 
 comes his protection, and also of the act 
 by which his sovereign commissions him. 
 
 ACCREDITULARE, or ACCREDULITARE 
 
 (Lat.) To purge one's self of an oflEense by 
 oath. Whishaw; Blount. 
 
 ACCRESCERE (Lat. to be added to). The 
 term is used in speaking of islands which 
 are formed in rivers by deposit. Calv. Lex.; 
 3 Kent, Comm. 428. 
 
 In Scotch Law. To pass to any one. 
 
 Bell, Diet. 
 
 It is used in a related sense in the com- 
 mon-law phrase ins accrrf:crii(li. the right of 
 survivorship. 1 Washb. Real Prop. 426. 
 
 In Pleading. To commence; to arise; 
 
 to accrue. Quod actio non accrcrit infra 
 .icx annos; that the action did not accrue 
 within six years. 3 Chit. PI. 914. 
 
 ACCRETION (Lat. accresccre, to grow 
 to). The increase of real estate by the ad- 
 dition of portions of soil, by gradual deposi- 
 tion through the operation of natural causes, 
 to that already in possession of the owner. 
 2 Washb. Real Prop. 451. It is immaterial 
 whether the stream be navigable or not, or 
 whether artificial causes contribute 64 111. 
 56. 
 
 "Alluvion" comprises both soil and other 
 things, such as seaweed, etc. Tiedeman, 
 Real Prop. § 686; 2 Johns. (N. Y.) 313. 
 
 The term "alluvion" Is applied to the de- 
 
ACCROACH 
 
 (13) 
 
 ACQUIESCENCE 
 
 posit itself, while "accretion" rather de- 
 notes the act. 
 
 Sometimes, however, alluvion is used to 
 denote the act of increase also, and accre- 
 tion as a generic term including, also, re- 
 liction and avulsion (ff. r.) 
 
 ACCROACH. To attempt to exercise 
 royal power. 4 Bl. Comm. 76. 
 
 A knight who forcibly assaulted and de- 
 tained one ot the king's subjects till he paid 
 him a sum of money was held to have com- 
 mitted treason on the ground of accroach- 
 ment. 1 Hale, P. C. 80. 
 
 In French Law. To delay. Whishaw. 
 
 ACCRUE. To grow to; to be added to, 
 as the interest accrues on the principal. 
 Accruing costs are those which become due 
 and are created after judgment; as the costs 
 of an execution. 
 
 To arise, to happen, to come to pass; as 
 the statute of limitation does not commence 
 running until the cause of action has ac- 
 crued. 1 Bouv. Inst, note 861; 2 Rawle 
 (Pa.) 277; 10 Watts (Pa.) 363; Bac. Abr. 
 "Limitation of Actions" (D 3); 59 Hun (N. 
 Y.) 145; 159 Pa. St. 556. 
 
 ACCRUER, CLAUSE OF. See "Survivor- 
 ship, Clause of." 
 
 ACCUMULATIONS. 
 
 (1) The income of a trust fund, when 
 reinvested as a new capital by the trustee. 
 
 (2) The suspension of absolute owner- 
 ship in the rents and profits of personalty, 
 which is, in many states, limited by stat- 
 ute. See 1 Rev. St. N. Y. p. 773, §§ 2-4. 
 
 ACCUMULATIVE JUDGMENT (or SEN- 
 tence). See "Cumulative Sentence." 
 
 ACCUMULATIVE LEGACY. A double 
 or additional legacy; a legacy given in addi- 
 tion to another given by the same instru- 
 ment, or by another instrument. 4 Ves. 
 90; IP. Wms. 424. 
 
 ACCUSARE NEMO DEBET SE, NISI 
 coram deo. No one is obliged to accuse him- 
 self unless before God. Hardr. 139. 
 
 ACCUSATION. In criminal law. A 
 charge made to a competent officer -against 
 one who has committed a crime, so that he 
 may be brought to justice and punishment. 
 
 ACCUSATOR POST RATIONABILE 
 tempus non est audlendus, nisi se bene de 
 omisslone excusaverit. An accuser is not to 
 be heard after a reasonable time, unless he 
 excuse himself satisfactorily for the omis- 
 sion. Moore, 817. 
 
 ACCUSED. One who is charged with a 
 crime. 
 
 ACCUSER. 
 
 tion. 
 
 ACEPHALI (Graeco-Lat.) Persons with- 
 out a head or superior. 
 
 In Civil Law. A sect of religious 
 
 persons enumerated among the heretics. 
 
 One who makes an accusa- 
 
 Otherwise called acciiliaUtiie. So termed, ac- 
 cording to Calvin, because their head or 
 founder was unknown, and they acknowl- 
 edged no religious superiors. Calv. Lex. 
 
 In Feudal Law. Persons without a 
 
 feudal superior; who held of no one as their 
 lord. Baronoriim Imminea el aceiihalos. LL. 
 Hen. I. c. 22. This is thought by Burrill to 
 be the passage referred to In Cowell as de- 
 scriptive of a class of levelers who acknowl- 
 edged no head or superior. 
 
 ACHATE, ACHAT, ACHATA, or ACHET 
 
 (Law Fr.) In old English law. Purchase; 
 a purchase, contract, or bargain. Per rol- 
 our dc achiilc, by color of purchase. St. 
 Westminster I. c. 1. Bought. Achate arere, 
 bought back. Dyer (Pr. Ed.) 35b. 
 
 ACHERSET. An ancient English meas- 
 ure of grain, supposed to be the same with 
 their quarter, or eight bushels. 
 
 ACKNOWLEDGMENT. The act of one 
 who has executed a deed, in going before 
 some competent officer or court, and de- 
 claring it to be his act or deed. 
 
 The acknowledgment is certified by the 
 officer or court; and the term "acknowledg- 
 ment" is sometimes used to designate the 
 certificate. 
 
 Sometimes loosely used for "admission" 
 (3. f.) 
 
 ACKNOWLEDGMENT MONEY. In Eng- 
 lish law. A sum paid by tenants of copy- 
 hold in some parts of England, as a recog- 
 nition of thei^ superior lords. Cowell; 
 Blount. Called a fine by Blackstone. 2 
 Bl. Comm. 98. 
 
 ACOLYTE. An inferior church servant, 
 who, next under the deacon, followed and 
 waited upon the priest and deacons, and 
 performed the meaner offices of lighting the 
 candles, carrying the bread and wine, and 
 paying other servile attendance. 
 
 ACQUEST. An estate acquired by pur- 
 chase. 
 
 ACQUETS. In civil law. Property which 
 has been acquired by purchase, gift, or 
 otherwise than by succession. 
 
 Immovable property which has been ac- 
 quired otherwise than by succession. Mer- 
 lin, Repert. 
 
 The profits of all the effects of which the 
 husband has the administration and enjoy- 
 ment, either of right or in fact, of the prod- 
 uce of the reciprocal industry and labor of 
 both husband and wife, and of the estates 
 which they may acquire during the mar- 
 riage, either by donations, made jointly to 
 them both, or by purchase, or in any other 
 similar way, even although the purchase be 
 only in the name of one of the two, and not 
 of both. Civ. Code La. art. 2371. 
 
 ACQUIESCENCE. A silent appearance 
 of consent. Worcester. 
 
 It is to be distinguished from avowed con- 
 sent, on the one hand, and from open dis- 
 content or opposition, on the other. It 
 
ACQUIETANDIS PLEGIIS 
 
 (14) 
 
 ACT 
 
 amounts to a consent which is impliedly 
 given by one or both parties to a proposi- 
 tion, a clause, a condition, a judgment, or 
 to any act whatever. 
 
 It imports an assent which, though im- 
 plied, is to some extent active, and Is to be 
 distinguished from laches, which is mere 
 passive neglect. 69 Cal. 255. 
 
 ACQUIETANDIS PLEGIIS. A writ of 
 justices, formerly lying for the surety 
 against a creditor who refuses to acquit him 
 after the debt has been satisfied. Reg. Writs, 
 158; Cowell; Blount. 
 
 ACQUIRE (Lat. ad, for, and guaerere, to 
 seek). To make property one's own. 
 
 It is regularly applied to a permanent ac- 
 quisition. A man is said to obtain or pro- 
 cure a mere temporary acquisition. 
 
 ACQUISITION. The act by which a per- 
 son procures the property of a thing. 
 
 The thing the property in which is se- 
 cured. 
 
 Original acquisition is that by which a 
 man secures a property in a thing which is 
 not at the time he acquires it, and in its 
 then existing condition, the property of any 
 other individual. It may result from oc- 
 cupancy (1 Bouv. Inst, note 490; 2 Kent, 
 Comm. 289), accession (1 Bouv. Inst, note 
 499; 2 Kent, Comm. 293), intellectual labor, — 
 namely, for inventions, which are secured 
 "by patent rights, — and for the authorship of 
 books, maps, and charts, which is protected 
 by copyrights (1 Bouv. Inst, note 508). 
 
 Derivative acquisition is tliat by which prop- 
 erty is procured from others, either by act of 
 law or by act of the parties. Goods and 
 chattels may change owners by act of law 
 in the cases of forfeiture, succession, mar- 
 riage, judgment, insolvency, and intestacy, 
 or by act of the parties, as by gift, will, or 
 sale. 
 
 An acquisition may result from the act of 
 the party himself, or those who are in his 
 power acting for him, as his children while 
 minors. 1 N. H. 28. See Dig. 41. 1. 53 ; Inst. 
 -2. 9. 3. 
 
 ACQUITTAL. 
 
 In Contracts. A release or discharge 
 
 from an obligation or engagement. 26 
 Wend. (N. Y.) 283. 
 
 According to Lord Coke, there are three 
 kinds of acquittal, namely, by deed, when 
 the party releases the obligation; by pre- 
 rscription; by tenure. Co. Litt. 100a. 
 
 In Criminal Practice. The absolu- 
 tion of a party charged with a crime or 
 misdemeanor. 
 
 The absolution of a party accused on a 
 trial before a traverse jury. 1 Nott & McC. 
 (S. C.) 36; 3 McCord (S. C.) 461. 
 
 Acquittals in fact are those which take 
 place when the jury, upon trial, finds a ver- 
 dict of not guilty. 
 
 Acquittals in law are those which take 
 place by mere operation of law; as where a 
 man has been charged merely as an acces- 
 sary, and the principal has been acquitted. 
 2 Inst. 364. 
 
 Effect on subsequent prosecution, see 
 "Jeopardy." 
 
 ACQUITTANCE. In contracts. An agree- 
 ment in writing to discharge a party from 
 an engagement to pay a sum of money. It 
 is evidence of payment, and differs from a 
 release in this, that the latter must be under 
 seal, while an acquittance need not be un- , 
 der seal. Both. Obi. note 781. See 3 Salk. 
 298; Co. Litt. 212a, 273a; 1 Rawle (Pa.) 391. 
 
 ACRE (Ger. aTcer; perhaps Lat. ager, a 
 field). A quantity of land containing one 
 hundred and sixty square rods of land, in 
 whatever shape. Sergeant, Land Laws Pa. 
 185; Cro. Eliz. 476, 665; 6 Coke, 67; Poph. 
 55; Co. Litt. 5b. The word formerly signi- 
 fied an open field; whence acre-fight, a con- 
 test in an open field. Jacob. 
 
 The measure seems to have been variable 
 in amount in its earliest use, but was fixed 
 by statute at a remote period. As original- 
 ly used, it was applicable especially to 
 meadow lands. Cowell. 
 
 ACT (Lat. agere, to do; actus, done). 
 Something done or established. 
 
 In its general legal sense, the word may 
 denote something done by an individual, as 
 a private citizen, or as an officer; or by a 
 body of men, as a legislature, a council, or 
 a court of justice; including not merely 
 physical acts, but also decrees, edicts, laws, 
 judgments, resolves, awards, and determina- 
 tions. Some general laws made by the con- 
 gress of the United States are styled "joint 
 resolutions," and these have the same force 
 and effect as those styled "acts." 
 
 An instrument in writing to verify facts. 
 Webster. It is used in this sense to signify 
 published acts of assembly, congress, etc. 
 In a sense approaching this, it has been held 
 in trials for treason that letters and other 
 written documents were acts. 1 Fost. C. C. 
 198; 2 Starkie, 116. 
 
 In Civil Law. A writing which states 
 
 in a legal form that a thing has been done, 
 said, or agreed. Merlin, Repert. 
 
 Private acts are those made by private 
 persons as registers in relation to their re- 
 ceipts and expenditures, schedules, acquit- 
 tances, and the like. Code, 7. 32. 6; Id. 4. 
 21; Dig. 22. 4; Civ. Code La. arts. 2231-2254; 
 8 Toullier, Dr. Civ. 94. 
 
 Acts under private signature are those 
 which have been made by private individ- 
 uals, under their hands. An act of this 
 kind does not acquire the force of an authen- 
 tic act by being registered in the office of a 
 notary (11 Mart. [La.] 243; 5 Mart. [La.; N. 
 S.] 693; 8 Mart. [La.] 568; 3 Mart. [La.; N. 
 S.] 396; 3 La. Ann. 419), unless it has been 
 properly acknowledged before the officer by 
 the parties to it (5 Mart. [La.; N. S.] 196). 
 
 Public acts are those which have a public 
 authority, and which have been made before 
 public officers, are authorized by a public 
 seal, have been made public by the author- 
 ity of a magistrate, or which have been ex- 
 tracted and been properly authenticated 
 from public records. 
 
ACT BOOK 
 
 (IS) 
 
 ACTA DIURNA 
 
 In Legislation. A statute or law made 
 
 by a legislative body. 
 
 General or public acts are those which 
 bind the whole community. Of these the 
 courts take judicial cognizance. 
 
 Private or special acts are those which 
 operate only upon particular persons and 
 private concerns. 
 
 In Scotch Practice. As a noun, an 
 
 abbreviation of actor (proctor or advocate, 
 especially for a plaintiff or pursuer), used 
 in records. "Act. A. Alt. B." an abbrevia- 
 tion of Actor, A. Alter, B.; that Is, for the 
 pursuer or plaintiff, A., for the defender, B. 
 1 Brown, 336, note; 2 Brown, 144, note; Id. 
 507, note. 
 
 As a verb, to do or perform judicially; to 
 enter of record. Surety "acted in the books 
 of adjournal." 1 Brown, 4. 
 
 ACT BOOK. In Scotch practice. The 
 minute book of a court. 1 Swinb. 81. 
 
 ACT IN PAIS. An act performed out of 
 court, and which is not a matter of record. 
 
 A deed or an assurance transacted be- 
 tween two or more private persons in the 
 country, that is, 'according to the old com- 
 mon law, upon the very spot to be trans- 
 ferred, is matter in pais. 2 Bl. Comm. 294. 
 See "In Pais." 
 
 ACT OF ATTAINDER. See "Bill of At- 
 tainder." 
 
 ACT OF BANKRUPTCY. An act which 
 subjects a person to be proceeded against 
 as a bankrupt. 
 
 The acts of bankruptcy enumerated in the 
 bankruptcy act of 1898, § 3, are (1) con- 
 cealment, transfer, or removal of property 
 with intent to hinder, delay, or defraud 
 creditors; (2) transfer of property while in- 
 solvent, with intent to give a preference; 
 (3) permitting, while insolvent, a creditor 
 to obtain a preference by legal proceedings, 
 and not vacating such preference within 
 five days; (4) making a general assignment 
 for the benefit of creditors; (5) admitting, 
 in writing, inability to pay debts, and will- 
 ingness to be adjudged a bankrupt. 
 
 ACT OF CURATORY. In Scotch prac- 
 tice. The act extracted by the clerk, upon 
 any one's acceptance of being curator. 
 Forbes, Inst. pt. 1, bk. 1, c. 2, tit. 2 ; 2 Kames, 
 Eq. 291. Corresponding with the order for 
 the appointment of a guardian, in English 
 and American practice. 
 
 ACT OF GOD. A natural cause which 
 operates without interference or aid from 
 man. 1 Pars. Cont. 635. 
 
 That which proceeds from the violence of 
 nature ; by that kind' of force of the elements 
 which human ability could not have fore- 
 ,seen or prevented. 6 Grat. (Va.) 189. 
 
 The term is sometimes defined as equiva- 
 lent to inevitable accident, but incorrectly, 
 as there is a distinction between the two, 
 although Sir William Jones proposed the 
 use of "inevitable accident" instead of "act 
 of God." Jones, Bailm, 104. See Story, 
 Bailm, § 25; 2 Sharswood, Bl. Comm. 122; 
 
 2 Crabb, Real Prop. § 2176; 4 Doug. 287; 
 21 Wend. (N. Y.) 190; 2 Ga. 349; 10 Miss. 
 572; 5 Blackf. (Ind.) 222. 
 
 All acts of God are inevitable accidents, 
 but not all inevitable accidents are the act 
 of God, i. e., caused by the forces of nature. 
 29 N. Y. 115. 
 
 See, also, "Vis Major." 
 
 ACT OF GRACE. In Scotch law. A stat- 
 ute by which the incarcerating creditor is 
 bound to aliment his debtor in prison, if 
 such debtor has no means of support, un- 
 der penalty of a liberation of his debtor if 
 such aliment be not provided. Paterson, 
 Comp. 
 
 ACT OF HONOR. An instrument drawn 
 up by a notary public, after protest of a bill 
 of exchange, when a third party is desirous 
 of paying or accepting the bill for the honor 
 of any or all of the parties to it. 
 
 ACT OF INSOLVENCY. An act indicat- 
 ing insolvency, and subjecting the party to 
 insolvency proceedings. See "Insolvency." 
 
 ACT OF LAW. A result, like the devo- 
 lution of a title, produced by operation of 
 law without the design of the parties con- 
 cerned. 
 
 ACT OF SETTLEIVIENT. The statute of 
 
 12 & 13 Wm. III. c. 2, limiting the English 
 crown to the Princess Sophia, of Hanover, 
 and the heirs of her body being Protestants. 
 
 ACT OF STATE. An act done by the 
 sovereign power of a country, or by its 
 delegate, within the limits of the power 
 vested in him. An act of state cannot be 
 questioned or made the subject of legal 
 proceedings in a court of law. 
 
 ACT OF SUPREMACY. The statute of 1 
 Eliz. c. 1, declaring the supremacy of the 
 crown over the ecclesiastical authorities. 
 
 ACT OF UNIFORMITY. The statute of 
 
 13 & 14 Car. II. c. 4, enacting that the book 
 of common prayer, as then recently revised, 
 should be used in every parish church and 
 other place of public worship, and other- 
 wise ordaining a uniformity in religious 
 services, etc. 3 Steph. Comm. 104. 
 
 ACT OF UNION. The statute of 5 Anne, 
 c. 8, by which the articles of union between 
 the two kingdoms of England and Scotland 
 were ratified and confirmed. 1 Bl. Comm. 
 97. 
 
 ACT ON PETITION. A form of sum- 
 mary proceeding formerly in use in the high 
 court of admiralty, in'England, in which the 
 parties stated their respective cases briefly, 
 and supported their statements by affidavit. 
 2 Dods. Adm. 174, 184; 1 Hagg. Adm. 1, 
 note. 
 
 ACTA DIURNA (Lat.) A formula often 
 used in signing, in the sense of "done on 
 this day." Du Cange. 
 
 Daily transactions, chronicles, journals, 
 registers. I do not find the thing published 
 
ACTA EXrERIORA, ETC. 
 
 (16) 
 
 ACTIO 
 
 in the acta diurna (daily records of af- 
 fairs). Tacitus, Ann. 3, 3; Ainsworth, Lex.; 
 Smith, Lex. 
 
 ACTA EXTERIORA INDICANT INTERI- 
 ora secreta. Outward acts indicate the in- 
 ward intent. Broom, Leg. Max. (3d London 
 Ed.) 270; 1 Smith, Lead. Cas. (4th Am. Ed.) 
 115; 8 Colie, 291; 13 Johns. (N. Y.) 414; 15 
 Johns. (N. Y.) 401. 
 
 ACTA IN UNO JUDICIO NON PROBANT 
 in alio nisi inter easdem personas. Things 
 done in one action cannot be taken as evi- 
 dence in another, unless it be between the 
 same parties. Tray. Lat. Max. 11. 
 
 ACTA PUBLICA (Lat.) Things of gen- 
 eral knowledge and concern ; matters trans- 
 acted before certain public officers. Calv. 
 Lex. 
 
 ACTE. In French law. Denotes a docu- 
 ment, 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, actes 
 de naissance are the certificates of birth, 
 and must contain the day, hour, and place 
 of birth, together with the sex and intend- 
 ed Christian name of the child, and the 
 names of the parents and of the witnesses. 
 Actcs de inaririgc are the marriage certifi- 
 cates, 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 deces are the certificates of death, which 
 are required to be drawn up before any one 
 may be buried. Les actes do Vetat chil 
 are public documents. Brown. 
 
 ACTIO. In civil law. A specific mode of 
 enforcing a right before the courts of law, 
 e. g., legin actio; actio sacrnmenti. In this 
 sense we speak of actions in our law, e. (/., 
 the action of debt. The right to a remedy, 
 thus: Ex nudo pacta nan oritur actio, no 
 right of action can arise upon a naked pact. 
 In this sense we rarely use the word "ac- 
 tion." 3 Ortolan. Inst. § 1830; 5 Savigny, 
 System, 10; Mackeld. Civ. Law (13th Ed.) 
 § 193. 
 
 The first sense here given is the older 
 one. Justinian, following Celsus, gives the 
 well-known definition: Actio nihil aliud 
 est, quan jus persequendi in judicio, quod 
 siM debetur. Which may be thus rendered: 
 An action is simply the right to enforce 
 one's demand in a court of law. Inst. 4. 6, 
 "De Actionibus." See "Action." 
 
 Divisions: 
 
 According to Nature. In the sense of 
 
 a specific form of remedy, there are various 
 divisions of actimies. Actioiie.i civiles are 
 those forms of remedies which were estab- 
 lished under the rigid and inflexible system 
 of the civil law, the jns civiles. Actiones 
 honorarine are those which were gradually 
 introduced by the praetors and aediles, by 
 
 virtue of their equitable powers, in order to 
 prevent the failure of justice which too often 
 resulted from the employment of the <ic- 
 tiones eirlivx. These were found so beneficial 
 in practice that they eventually supplanted 
 the old remedies, of which, in the time of 
 Justinian, hardly a trace remained. Mackeld. 
 Civ. Law, § 194; 5 Savigny, System. Directae 
 actiones, as a class, were forms of remedies 
 for cases clearly defined and recognized as 
 actionable by the law. Utiles actiones were 
 remedies granted by the magistrate in cases 
 to which no actio directa was applicable. 
 They were framed for the special occasion, 
 by analogy to the existing form, and were 
 generally fictitious; that is, they proceeded 
 upon the assumption that a state of things 
 existed which would have entitled the party 
 to an actio directa, and the cause was tried 
 upon this assumption, which the other party 
 was not allowed to dispute. 5 Savigny, Sys- 
 tem, § 215. 
 
 According to Subject-IVIatter. Again, 
 
 there are actiones in personam and oetiones 
 ill rem. The former class includes all rem- 
 edies for the breach of an obligation, and 
 are considered to be directed against the 
 person of the wrongdoer. The second class 
 comprehends all remedies devised for the 
 recovery of property, or the enforcement 
 of a right not founded upon a contract be- 
 tween the parties, and are therefore con- 
 sidered as rather aimed at the thing in dis- 
 pute than at the person of the defendant. 
 Mackeld. Civ. Law, § 195; 5 Savigny, Sys- 
 tem, §§ 206-209; 3 Ortolan, Inst. § 1952 et seq. 
 
 According to Object. In respect to 
 
 their object, actions are either (a) actiones 
 rei persquendae eansa coniparatae, for the re- 
 covery of property or damages, to which 
 class belong all iieiiones in rem, and those 
 of the actionem in personam, which were di- 
 rected merely to the recovery of the value 
 of a thing, or compensation for an injury; or 
 (b) aetiones poenales (called, also, actiones 
 ex delicto), in which a penalty was recov- 
 ered of the delinquent; or (c) actiones 
 mixtae. in which were recovered both the 
 actual damages and a penalty in addition. 
 Actiones poenales and actiones mixtae com- 
 prehended cases of injuries for which the 
 civil law permitted redress by private ac- 
 tion, but which modern civilization univer- 
 sally regards as crimes; that is, offenses 
 against society at large, and punished by 
 proceedings in the name of the state alone. 
 Th;:s, theft, receiving stolen goods, robbery, 
 malicious mischief, and the murder or neg- 
 ligent homicide of a slave (in which case 
 an injury to property was involved), gave 
 rise to private actions for damages against 
 the delinquent. Inst. 4. 1. De oiligationibus 
 quae ex delicto nascnntur. Id. 2. De honls 
 ri rapths. Id. 3. De lege aquilia. And see ' 
 Mackeld. Civ. Law, § 196; 5 Savigny, Sys- 
 tem, §§ 210-212. 
 
 According to Procedure. In respect 
 
 to the mode of procedure, actiones in per- 
 sonam are divided into stricfi juris, and 
 bonae fidei actiones. In the former, the 
 court was confined to the strict letter of 
 the law; in the latter, something was left 
 
ACTIO, ETC. 
 
 (17) 
 
 ACTIO EMPTI 
 
 to the discretion of the judge, who was gov- 
 erned in his decision by considerations of 
 what ought to be expected from an honest 
 man under circumstances similar to those of 
 the plaintiff or defendant. Mackeld. Civ. 
 Law, § 197a. 
 
 Besides this classification, the different 
 actions had specific names, the principal of 
 which follow. 
 
 ACTIO AD EXHIBENDUM. In civil law. 
 An action instituted for the purpose of com- 
 pelling the person against whom it was 
 brought to exhibit some thing or title in his 
 power. 
 
 It was always preparatory to another ac- 
 tion, which lay for the recovery of a thing 
 movable or immovable. 1 Merlin, Quest, de 
 Droit, 84. 
 
 ACTIO ARBITRARIA. In the civil law. 
 An arbitrary action; one depending upon- 
 the discretion of the judge (ex arhitrio judi- 
 cis pendens) ; or in which the judge was 
 allowed to determine, according to equity 
 and the circumstances of the particular 
 case, how satisfaction should be made to 
 the plaintiff (permittitur judici ex bono et 
 aequo, secundum cujusque rei de qua ac- 
 tum est naturam, aestimare quemadmo- 
 dum actori satisfieri oporteat). If the de- 
 fendant refused to conform to the decision 
 of the judge, he might be condemned at 
 discretion (nisi arbitrio judicis actori satis- 
 faciat, — condemnari deieat). Inst. 4. 6. 31. 
 
 ACTIO BONAE FIDEI. See "Actio" (4). 
 
 ACTIO CALUMNIAE. In the civil law. 
 An action to restrain the defendant from 
 prosecuting a groundless proceeding or 
 trumped-up charge against the plaintiff. 
 Hunter, Rom. Law, 859. 
 
 ACTIO CIVILIS. See "Actio" (1). 
 
 ACTIO QOMMODATI CONTRARIA. In 
 
 civil law. An action by the borrower 
 against the lender, to compel the execution 
 of the contract. Poth. Pret. a Usage, note 
 
 75. 
 
 ACTIO COMMODATI DIRECTA. In civil 
 law. An action by a lender against a bor- 
 rower, the principal object of which is to 
 obtain a restitution of the thing lent. Poth. 
 Pret. a Usage, notes 65, 68. 
 
 ACTIO COMMUNI DIVIDUNDO. In civil 
 law. An action for a division of the prop- 
 erty held in common. Story, Partn. (Ben- 
 nett Ed.) § 352. 
 
 ACTIO COMIVIUNIS. A common action. 
 A term applied by Bracton to an action 
 where the thing demanded was common, 
 and not several. Bracton, fol. 103. 
 
 ACTIO CONDICTIO INDEBITATI. In 
 
 civil law. An action by which the plaintiff 
 recovers the amount of a sum of money or 
 other thing he paid by mistake. Poth. Pro- 
 mutuum, note 140. 
 
 ACTIO CONFESSOR I A. In the civil law. 
 An afiirmative action; an action fouijded 
 
 upon the afiirmatiVe allegation of some right 
 in the plaintiff in another's land, as a right 
 of way, etc., and not upon the denial of the 
 right of another in his land. Inst. 4. 6. 2. 
 Confessoria dicitur, quia constituta est ver- 
 bis afflrmativis. Bracton, fol. 103. See "Ac- 
 tio Negatoria." 
 
 ACTIO CONTRARIA. In the civil law. 
 A contrary or cross action, as distinguished 
 from actio directa. Heinec. Elem. Jur. Civ. 
 lib. 3, tit. 15, §§ 805, 816, 826; Bracton, fol. 
 103. 
 
 ACTIO CRIMINALIS. In the common 
 law. A criminal action. Bracton, fol. 102b. 
 
 ACTIO DE DOLO MALO. In the civil 
 law. An action of fraud; an action which 
 lay for a defrauded person against the de- 
 frauder and his heirs, who had been en- 
 riched by the fraud, to obtain the restitu- 
 tion of the thing of which he had been 
 fraudulently deprived, with all its acces- 
 sions (cum omni causa) ; or, where this was 
 not practicable, for compensation in dam- 
 ages. 1 Mackeld. Civ. Law, p. 221, § 217; 
 Heinec. Elem. Jur. Civ. lib. 4, tit. 6, § 1152; 
 Dig. 4. 3; Code, 2. 21; Bracton, fol. 103b. 
 
 ACTIO DE IN REM VERSO. In the civil 
 law. An action concerning a thing convert- 
 ed to the profit of another; an action granted 
 to one who had contract with a son or slave, 
 in order to recover whatever the father or 
 master, by means of such contract, had con- 
 verted to their own advantage. Inst. 4. 7. 
 4; Dig. 15. 3; Code, 4. 26; Heinec. Elem. Jur. 
 Civ. lib. 4, tit. 7, § 1222; Halifax, Anal. bk. 
 
 3, c. 2, note 7. 
 
 ACTIO DE PECULIO. In the civil law. 
 An action concerning or against the pecu- 
 lium or separate property of a party. An 
 action to which fathers and masters were 
 liable on the contracts of their children and 
 servants, to the extent of the latter's pecu- 
 lium, patrimony, or separate estate. Inst. 
 
 4. 6. 10; Id. 4. 7. 4; Dig. 15. 1; Code, 4. 26; 
 Heinec. Elem. Jur. Civ. lib. 4, tit. 7, § 1219. 
 
 ACTIO DE PECUNIA CONSTITUTA. In 
 
 the civil law. An action for money engaged 
 to be paid; an action which lay against any 
 person who had engaged to pay money for 
 himself, or for another, without any formal 
 stipulation (nulla stipulatione interposita) . 
 Inst. 4. 6. 9; Dig. 13. 5; Code, 4. 18. 
 
 ACTIO DEPOSITI CONTRARIA. In civil 
 law. An action which the depositary has 
 against the depositor, to compel him to ful- 
 fill his engagement toward him. Poth. du 
 Depot, note 69. 
 
 ACTIO DEPOSITI DIRECTA. In civil 
 law. An action which is brought by the 
 depositor against the depositary, in order 
 to get back the thing deposited. Poth. du 
 Depot, note 60. 
 
 ACTIO DIRECTA. See "Actio" (1). 
 
 ACTIO EMPTI. See "Actio ex Empto." 
 
ACTIO EX CONDUCTO 
 
 (18) 
 
 ACTIO LEGIS AQUILLE 
 
 ACTIO EX. CONDUCTO. In civil law. 
 An action which the bailor of a thing for 
 hire may bring against the bailee, in order 
 to compel him to redeliver the thing hired. 
 Poth. du Contr. de Louage, note 59. 
 
 ACTIO EX CONTRACTU. See "Action." 
 
 ACTIO EX DELICTO. See "Action." 
 
 ACTIO EX EMPTO. In the civil law. An 
 action of purchase, or upon purchase; an 
 action which a buyer is entitled to main- 
 tain against a seller, in order to cause him 
 to deliver possession of the thing sold, with 
 its titles and fruits, and everything depend- 
 ent upon it. Poth. Cont. pt. 2, c. 1, art. 5; 
 Inst. 4. 6. 28. Otherwise called actio empti, 
 or emti. Dig. 19. 1; Code, 4. 49; Heinec. 
 Elem. Jur. Civ. lib. 3, tit. 24, § 912. 
 
 ACTIO EX LOCATO. In the civil law. 
 An action upon letting; an action which the 
 person (locator) who let a thing for hire 
 to anpther might have against the hirer 
 (conductor). Dig. 19. 2; Code, 4. 65. See 
 "Actio liOcati." 
 
 ACTIO EX STIPULATU. In the civil 
 law. An action to enforce a stipulation. 
 
 ACTIO EX VENDITO. In the civil law. 
 An action upon sale; an action which a 
 seller is entitled to maintain against a buy- 
 er to recover the price of a thing sold and 
 delivered. Inst. 4. 6. 28; Heinec. Elem. Jur. 
 Civ. lib. 3, tit. 24, § 915. Called actio ven- 
 diti. Id.; Dig. 19. 1; Code, 4. 49. 
 
 ACTIO EXERCITORIA. In the civil law. 
 An action against the exercitor or employer 
 of a vessel. See "Exercitoria Actio." 
 
 ACTIO FAMILIAE ERCISCUNDAE. In 
 
 civil law. An action for the division of 
 an inheritance. Inst. 4. 6. 20; Bracton, 100b. 
 
 ACTIO FINIUM REGUNDORUM. In the 
 civil law. An action for the determination 
 of boundaries between adjoining lands. 
 Inst. 4. 17. 6; Id. 4. 6. 20. Enumerated by 
 Bracton and Fleta among mixed actions. 
 Bracton, fol. 444; Fleta, lib. 5, c. 9, § 3. 
 See "Finium Regundorum Actio." 
 
 ACTIO FURTI. In the civil law. An ac- 
 tion of theft; an action founded upon theft. 
 Inst. 4. 1. 13-17; Bracton, fol. 444. This 
 could only be brought for the penalty at- 
 tached to the offense (taiitvm ad poenoe per- 
 seciitionem pertinet), and not to recover the 
 thing stolen itself, for which other actions 
 were provided. Inst. 4. 1. 19. 
 
 ACTIO HONORARIA. See "Actio" (1). 
 
 ACTIO IN FACTUM. In civil law. An 
 action adapted to the particular case which 
 had an analogy to some actio in jus, which 
 was founded on some subsisting acknowl- 
 edged law. Spence, Eq. Jur. 212. The 
 origin of these actions is strikingly similar 
 to that of actions on the case at common 
 law. See "Case." 
 
 ACTIO IN PERSONAM (Lat.) an action 
 against the person. See "Actio" (2). 
 
 A personal action. 
 
 This is the term in use in the civil law to 
 denote the actions which in the common law 
 are called "personal." In modern usage it 
 is applied in English and American law to 
 those suits in admiralty which are directed 
 against the person of the defendant, as dis- 
 tinguished from those in rem, which are 
 directed against the specific thing from 
 which (or rather the proceeds of the sale 
 of which) the complainant expects and 
 claims a right to derive satisfaction for the 
 injury done to him. 
 
 ACTIO IN QUADRUPLUM. In the civil 
 law. An action for the quadruple value of 
 a thing. Inst. 4. 6. 21; Bracton, fol. 103a. 
 
 ACTIO IN REM. An action against the 
 thing. See "Actio" (2). 
 
 ACTIO IN SIM PLUM. In the civil law. 
 An action for the single value of a thing. 
 Inst. 4. 6. 21. 22; Bracton, fol. 103a. 
 
 ACTIO IN TRIPLUM. In the civil law. 
 An action for the triple value of a thing. 
 Inst. 4. 6. 21. 24; Bracton, fol. 103a. 
 
 ACTIO INDIRECTA. An indirect action. 
 A species of action mentioned by Bracton, 
 probably the reverse of the actio directa. 
 Bracton, fol. 103a. 
 
 ACTIO INJURIARUM, or DAMNI INJU- 
 ria. In the civil law. An action for in- 
 juries done by beating, wounding, slander- 
 ous language, libel, and the like. Inst. 4. 4. 
 pr. 1, 12; Bracton, fol. 103b. 
 
 ACTIO JUDICATI. In civil law. An ac- 
 tion instituted, after four months had 
 elapsed after the rendition of judgment, in 
 which the judge issued his warrant to seize, 
 first, the movables, which were sold within 
 eight days afterwards, and then the im- 
 movables, which were delivered in pledge 
 to the creditors, or put under the care of a 
 curator, and if, at the end of two months, 4 
 the debt was not paid, the land was sold. 
 Dig. 42. 1; Code, 8. 34. 
 
 According to some authorities, if the de- 
 fendant then utterly denied the rendition of 
 the former judgment, the plaintiff was driven 
 to a new action, conducted like any other 
 action, which was called actio judicati, and 
 which had for its object the determination 
 of the question whether such a judgment 
 had been rendered. The exact meaning of 
 the term is by no means clear. See Savigny, 
 System, .,305, 411; 3 Ortolan, Just. § 2033. 
 
 ACTIO LEGIS. In the Roman law. A le- 
 gal or lawful action; an action of or at law. 
 Dig. 1. 2. 2. 6. 
 
 One of the sources of the unwritten law 
 of Rome. Butler, Hor. Jur. 47, So called, 
 according to Gains, either because they 
 were expressly given by the laws, or be- 
 cause they were expressed in the words of 
 the laws. Gains, Inst, iv, § 11. 
 
 ACTIO LEGIS AQUILLE. In the civil law. 
 An action under the Aquilian law; an action 
 to recover damages for maliciously or in- 
 
ACTIO LOCATI 
 
 (19) 
 
 ACTIO POENALIS 
 
 juriously killing or wounding the slave or 
 beast of another, or injuring in any way a 
 thing belonging to another. Otherwise 
 called damni injuriae actio. Inst. 4. 3; 
 Heinec. Bleni. Jur. Civ. lib. 4, tit. 3 ; Halifax, 
 Anal. bk. 2, c. 24; Bracton, fol. 103b. 
 
 ACTIO LOCATI. In the civil law. An ac- 
 tion which lay for the letter (locator) of a 
 thing against the hirer, where the terms of 
 the contract were not complied with by the 
 latter. Inst. 3. 25. pr.; Dig. 19. 2; Heinec. 
 Elem. Jur. Civ. lib. 3, tit. 25, § 928. See 
 "Actio ex Locato." 
 
 ACTIO MANDATI. In civil law. An ac- 
 tion founded upon a mandate. 
 
 ACTIO MIXTA (or MISTA). See "Ac- 
 tio" (3). 
 
 An action in which each party is actor, or 
 plaintiff; such as the actions finium regund- 
 orum, familiae erciscundae, communi divi- 
 dundo, and others. Dig. 47. 7. 37. 1. 
 
 ACTIO NEGATORIA (or NEGATIVA). In 
 the civil law. A negatory or negative ac- 
 tion; an action founded on the denial (rae- 
 gatio) of another's right; as where a right 
 of way or other servitude in a particular 
 estate is denied. Inst. 4. 6. 2; Bracton, fol. 
 103a; Heinec. Elem. Jur. Civ. lib. 4, tit. 6, 
 § 1136; Halifax, Anal. bk. 3, c. 1, note 8. See 
 "Actio Confessoria." 
 
 ACTIO NEGOTIORUM GESTORUM. In 
 the civil law. An action upon, or on account 
 of, business done. An action given in cases 
 where a person transacted the business of 
 another during his absence (cum quis nego- 
 tia absentis gesserit), or without a commis- 
 sion or authority (sine mandato). Inst. 3. 28. 
 This was of two kinds — a direct action, 
 which lay for the person whose business 
 had been transacted, against him who had 
 transacted it {domino rei gestae adversus 
 eum qui gessit), and a cross action, which 
 lay for the negotiorum gestor, as he was 
 called, against the other. Id. ; Heinec. Elem. 
 Jur. Civ. lib. 3, tit. 28, §§ 973, 974. See "Ne- 
 gotiorum Gestio." 
 
 This action is enumerated by Bracton and 
 Fleta among actions arising quasi ex con- 
 tractu, or ex quasi contractu. Bracton, fol. 
 100b; Fleta, lib. 2, c. 60, § 1. 
 
 ACTIO NON. In pleading. The declara- 
 tion in a special plea "that the said plaintiff 
 ought not to have or maintain his aforesaid 
 action thereof against" the defendant (in 
 Latin, actio non haiere debet). 
 
 It follows immediately after the state- 
 ment of appearance and defense. 1 Chit. PI. 
 531; 2 Chit. PI. 421; Steph. PI. 394. 
 
 ACTIO NOMINATAE (Lata named action). 
 In English law. A writ for which there was 
 a precedent in the English chancery prior to 
 St. 13 Edw. 1. (Westminster II.) c. 34. 
 
 The clerks would make no writs except in 
 such actions prior to this statute, according 
 to some accounts. 17 Serg. & R. (Pa.) 195. 
 See "Action;" "Case." 
 
 ACTIO NON ACCREVIT INFRA SEX 
 
 annos (Lat.) The action did not accrue 
 within six years. 
 
 In Pleading. A plea oif the statute of 
 
 limitations, by which the defendant insists 
 that the plaintiff's action has not accrued 
 within six years. It differs from non as- 
 sumpsit in this: Non assumpsit is the prop- 
 er plea to an action on a simple contract, 
 when the action accrues on the promise; 
 but when it does not accrue on the promise, 
 but subsequently to it, the proper plea is 
 actio non accrevit, etc. Lawes, PI. 733; 5 
 Bin. (Pa.) 200, 203; 2 Salk. 422; 1 Saund. 
 33, note 2; 2 Saund. 63b. 
 
 ACTIO NON DATUR NON DAMNIFICO. 
 An action is not given to one who is not 
 injured. Jenk. Cent. Cas. 69. 
 
 ACTIO NON FACIT REUM, NISI MENS 
 sit rea. An action does not make one guilty 
 unless the Intention be bad. Lofft, 37. 
 
 ACTIO NON ULTERIUS(Lat.) In English 
 pleading. A name given to the distinctive 
 clause in the plea to the further maintenance 
 of the action, introduced in place of the plea 
 puis darrein continuance; the averment be-' 
 ing that the plaintiff ought not further 
 (ulterius) to have or maintain his action. 
 Steph. PI. 64, 65, 401. 
 
 ACTIO NOXALIS. In the civil law. A 
 noxal action; an action which lay against a 
 master for a crime committed or injury done 
 by his slave, and -in which the master had 
 the alternative either to pay for the dam- 
 age done or to deliver up the slave to the 
 complaining party. Inst. 4. 8. pr.; Heinec. 
 Elem. Jur. Civ. lib. 4, tit. 8; Halifax, Anal, 
 bk. 3, c. 2. So called from noxa, the slave 
 or offending person, or noxia, the offense or 
 injury itself. Inst. 4. 8. 1. 
 
 ACTIO PERPETUA. In the civil law. A 
 perpetual or unlimited action; one not lim- 
 ited to any particular period within which 
 it should be brought. Inst. 4. 12. pr. The 
 opposite of the actio temporalis (q. v.) 
 
 ACTIO PERSONALIS. A personal action. 
 The proper term in the civil law is actio in 
 personam. 
 
 ACTIO PERSONALIS MORITUR CUM 
 persona (Lat.) A personal action dies with 
 the person. 
 
 In Practice. A maxim which formerly 
 
 expressed the law in regard to the surviving 
 of personal actions. 
 
 ACTIO PIGNORATICIA. In the civil law. 
 An action of pledge; an action founded on 
 the contract of pledge {pignus). Dig. 13. 7; 
 Code, 4. 24. 
 
 ACTIO POENAE PERSECUTORIA. In 
 
 the civil law. An action prosecuted for a 
 penalty only, and not for a specific thing. 
 Inst. 4. 6. 16. 18. 
 
 ACTIO POENALIS. In the civil law. A 
 penal action; an action brought to enforce 
 
ACTIO POENAL^S, ETC. 
 
 (20) 
 
 ACTIO SERVIANA 
 
 the payment of a private penalty. 1 Mack- 
 eld. Civ. Law, p. 193, S 196. 
 
 ACTIO POENALIS IN HAEREDEM NON 
 datur, nisi forte ex damno locupletior haeres 
 factus sit. A penal action is not given against 
 an heir, unless, indeed, such heir is bene- 
 fited by the wrong. 
 
 ACTIO PRAEJUDICIALIS. In the civil 
 law. A preliminary or preparatory action; 
 an action brought for the determination of 
 some point or question arising in another 
 or principal action, and so called from its 
 being determined before (prius, or prae judi- 
 cari) the principal action could proceed. 
 Bracton, 104a; Cowell. Of this nature were 
 actions for determining a man's civil state 
 or condition, as whether he was a freeman 
 or a slave, legitimate or illegitimate. Inst. 
 4. 6. 13; Heinec. Elem. Jur. Civ. lib. 4, tit. 
 6, § 1142; Halifax, Anal. bk. 3, c. 1, note 14. 
 
 ACTIO PRAESCRIPTIS VERBIS. In civ- 
 il law. A form of action which derived its 
 force from continued usage or the respoiixa 
 prudentumt; and was founded on the unwrit- 
 ten law. 1 Spence, Bq. Jur. 212. 
 
 The distinction between this action and an 
 actio in factum is said to be that the latter 
 was founded, not on usage or the unwritten 
 law, but by analogy to or 'on the equity of 
 some subsisting law. 1 Spence, Eq. Jur. 
 212. 
 
 ACTIO PRAETORIA. In the civil law. A 
 praetorian action; one introduced by the 
 praetor, as distinguished from the more 
 ancient actio civilis. Inst. 4. 6. 3; 1 Mackeld. 
 Civ. Law, p. 189, § 194. 
 
 ACTIO PRO SOCIO. In the civil law. An 
 action for a copartner; an action which one 
 copartner (socius) might have against an- 
 other. Dig. 17. 2; Code, 4. 37. 
 
 ACTIO PROPRIA. An action brought for 
 the recovery of a several thing (res propria), 
 as distinguished from a thing held in com- 
 mon. Bracton, fol. 103a. 
 
 ACTIO PUBLICIANA. In the civil law. 
 An action which lay for one who had lost 
 a thing of which he had bona fide obtained 
 possession before he had gained a property 
 (dominium) in it, in order to have it re- 
 stored, under color that he had obtained a 
 property in it by prescription. Inst. 4. 6. 4; 
 Dig. 6. 2.; Heinec. Bleih. Jur. Civ. lib. 4, tit. 
 6, § 1131; Halifax, Anal. bk. 3, c. 1, note 9. 
 It was an honorary action, and derived its 
 name from the praetor Publicius, by whose 
 edict it was first given. Inst. 4. 6. 4. 
 
 ACTIO QUAELIBET IT SUA VIA. Every 
 action proceeds in its own course. Jenk. 
 Cent. Cas. 77. 
 
 ACTIO QUANTI IVIINORIS. In the civil 
 law. An action given to a purchaser who 
 had paid more for a thing than it was in- 
 trinsically worth, to recover back so much 
 of the price as the thing was of less value 
 (quanti minoris), or fell short in value, by 
 
 reason of the defect. Poth. Cont. pt. 2, c. 1, 
 § 4, art. 5; 1 Kames, Eq. 271, 
 
 ACTIO QUOD JUSSU. In the civil law. 
 An action given against a master, founded 
 on some business done by his slave, acting 
 under his order (jussu). Inst. 4. 7. 1; Dig. 
 15. 4; Code, 4. 26. * 
 
 ACTIO QUOD IVIETUS CAUSA. In the 
 
 civil law. An action granted by unlawful 
 force, or fear (metus causa) that was not 
 groundless (metus probabilis or Justus), to 
 deliver, sell, or promise a thing to another. 
 Bracton, fol. 103b; 1 Mackeld. Civ. Law, p. 
 120, § 216. 
 
 ACTIO (or INTERDICTUIVl) QUOD VI 
 aut clam. In the civil law. An action 
 which lay where one forcibly or clandestine- 
 ly (vi aut clam) erected or demolished a 
 building on his own or another's ground, 
 and thereby unlawfully injured another; its 
 object. being to get everything restored to 
 its former condition, and to obtain damages. 
 Dig. 43. 24. 1. Bracton gives this action a 
 place in his system of remedies, defining it 
 as one which lay against him who had 
 erected or prostrated a building on another's 
 land, and concealed himself in order to 
 avoid being prevented from doing it (et se 
 occultavit, ne sihi proMberetur) , and ob- 
 serves that the offender might by this ac- 
 tion be compelled to restore everything to 
 its former state, at his own expense. Brac- 
 ton, fols. 103b, 104a. 
 
 ACTIO REALIS (Lat.) A real action. 
 The proper term in the civil law was rei 
 vindicatio. 
 
 ACTIO REDHIBITORIA. In civil law. An 
 action to compel a vendor to take back the 
 thing sold, and return the price paid. 
 
 ACTIO REI PERSECUTORIA. In the 
 
 civil law. An action for the recovery of a. 
 specific thing (rei persequendae cause com- 
 parata) or damages; as distinguished from 
 the actio poenae persecutoria, and the actio 
 
 \ mixta. Inst.. 4. 6. 16, 17; 1 Mackeld. Civ. 
 
 \ Law, p. 192, § 196. 
 
 ACTIO RERUIVl AMOTARUWl. In the 
 
 civil law. An action for things removed; 
 an action which, in cases of divorce, lay for 
 a husband against a wife, to recover things 
 carried away by the latter, in contemplation 
 of such divorce (divortii consilio). Dig. 25. 
 2; Id. 25. 2. 25. 30. It also lay for the wife 
 against the husband in such cases. Id. 25. 
 2. 7. 11; Code, 5, 21. 
 
 ACTIO RESCISSORIA. In civil law. An 
 action for rescinding a title acquired by pre- 
 scription in a case where the party bringing 
 the action was entitled to exemption from 
 the operation of the prescription. 
 
 ACTIO SEPULCHRI VIOLATI. In the 
 
 civil law. An action for violating a grave. 
 Dig. 47. 12; Code, 9. 19. 
 
 ACTIO SERVIANA. In the civil law. An 
 action which lay for the lessor of a farm, 
 
ACTIO SPECIALIS 
 
 (21) 
 
 ACTION. 
 
 or rural estate, to recover the goods of the 
 lessee or farmer, which were pledged or 
 hound for the rent. Inst. 4. 6. 7; Heinec. 
 Blem. Jur. Civ. lib. 4, tit. 6, § 1139; Halifax, 
 Anal. bk. 3, c. 1, note 12. 
 
 ACTIO SPECIALIS. Inthe civil law. A 
 special action; an action brought to enforce 
 the delivery of one of several single things. 
 1 Mackeld. Civ. Law, p. 193, § 196; Dig. 
 6. 1. 1. 
 
 ACTIO STRICTI JURIS (Lat. an action of 
 strict right). An action in which the judge 
 followed the formula that was sent to him 
 closely, administered such relief only as that 
 warranted, and admitted such claims as 
 were distinctly set forth by the pleadings of 
 the parties. 1 Spence, Eq. Jur. 218. 
 
 ACTIO TEMPORALIS. In the civil law. 
 A temporary action; an action limited to a 
 certain time, within which it was to be in- 
 stituted, on pain of losing it; the opposite 
 of actio iK-rpctua (q. v.) Inst. 4. 12. 
 
 ACTIO TRIBUTORIA. In the civil law. 
 An action for distribution (Lat. tribucre, to 
 distribute) ; an action which lay for the 
 creditor of a son or slave, who had traded 
 upon his peculhcm, with the knowledge of 
 his father or master, to obtain from the lat- 
 ter a distributive or proportionate share of 
 the goods traded in {pecuUares merces), or 
 their proceeds. Inst. 4. 7. 3; Heinec. Blem. 
 Jur. Civ. lib. 4, tit. 7, § 1217; Halifax, Anal, 
 bk. 3, c. 2, note 6. 
 
 ACTIO TUTELAE. In the civil law. An 
 action of tutelage. 
 
 ACTIO (or INTERDICTUM) UNDE VI. 
 In the civil law. An action or interdict 
 which lay to recover possession of an im- 
 movable thing, as land, of which one had 
 been deprived by force. So called from the 
 formal words in it, — unde tu ilium ' vi de- 
 jecisti, from which you have ejected him by 
 force. Gains, Inst. iv. 154; Inst. 4. 15. 6; 
 Dig. 43. 16. It resembled the modern action 
 of ejectment, and is adopted by Bracton in 
 his system of actions. Bracton, fol. 103b. 
 
 ACTIO UTILIS. An action for the bene- 
 fit of those who had the beneficial use of 
 property, but not the legal title; an equi- 
 table action. 1 Spence, Bq. Jur. 214. 
 
 It was subsequently extended to include 
 many other instances where a party was 
 equitably entitled to relief, although he did 
 not come within the strict letter of the law 
 and the formulae appropriate thereto. 
 
 ACTIO VENDITI. See "Actio ex Vendi- 
 to." 
 
 ACTIO VI BONORUM RAPTORUM. In 
 
 the civil law. An action for goods taken by 
 force; a species of mixed action, which lay 
 for a party whose goods or movables (bona) 
 had been taken from him by force (vi), to 
 recover the things so taken, together with 
 a penalty of triple the value. Inst. 4. 2; 
 Id. 4, 6. 19. Bracton describes it as lying 
 de rebus moMlifms vi ablatis sive roVbatis, for 
 
 movable things taken away by force, or 
 robbed. Bracton, fol. 103h. 
 
 ACTIO VULGARIS. In civil law. A legal 
 action; a common action. 
 
 ACTION (Lat. afiere, to do; to lead; to 
 conduct). A doing of something; something 
 done. 
 
 The term is, in legal usage, confined to 
 practice, having no technical meaning, in 
 the substantive law, except in the French 
 law, in which it denotes shares in a com- 
 pany, or stock in a corporation. 
 
 It signifies the formal demand of one's 
 right from another person or party made 
 and insisted on in a court of justice. 
 
 In Justinian's Institute, "action" was de- 
 fined as the right of pursuing in a court of 
 justice what was due one's self. Inst. 4. In 
 the Digest, however, it was defined as the 
 .right of pursuing, the pursuit itself, or ex- 
 ercise of this right, or the form of proceed- 
 ings by which it was exercised. Dig. 50. 16. 
 16; Id. 1. 2. 10. This definition is adopted 
 by Mr. Taylor (Tayl. Civ. Law, p. 50). In 
 modern usage, the signification of the right 
 of pursuing has been generally dropped, 
 though it is recognized by Bracton (98b), 
 Coke (2d Inst. 40), and Blackstone (3 Comm. 
 116), while the two latter senses, of the 
 exercise of the right, and the means or 
 method of its exercise, are in general use. 
 
 The vital idea of an action is a proceeding 
 on the part of one person as actor against 
 another, for the infringement of some right 
 of the first, before a court of justice, in the 
 manner prescribed by the court or the law. 
 Subordinate to this is now connected in a 
 quite common use the idea of the answer 
 of the defendant or person proceeded 
 against; the adducing evidence by each 
 party to sustain his position; the adjudica- 
 tion of the court upon the right of the plain- 
 tiff; and the means taken to enforce the 
 right, or recompense the wrong done, in 
 case the right is established and shown to 
 have been injuriously affected. 3 How. Pr. 
 (N. Y.) 318. 
 
 All proceedings in the court up to the 
 final termination of the litigation, whether 
 instituted by a party, by a third person, or 
 by the court of its own motion, are part of 
 the action, if incidental; the principal reme- 
 dy constituting the action, and founded on 
 its existence. Even when regulated by 
 special statute, such proceedings are con- 
 sidered proceedings in the action, and not 
 special proceedings, except where the stat- 
 utes otherwise declare, or the papers are so 
 entitled as to forbid their being so treated. 
 
 As distinguished from "suit," the word 
 "action" is generally applied to proceedings 
 at law, and "suit" to proceedings in equity. 
 9 Barb. (N. Y.) 300. See "Suit." 
 
 Actions are to be distinguished from those 
 proceedings, such as writ of error, scire 
 facias, mandamus, and the like, where, un- 
 der the form of proceedings, the court, and 
 
ACTION FOR POINDING, ETC. (22) 
 
 ACTOR. 
 
 not the plaintiff, appears to be the actor. 
 6 Bin. (Pa.) 9. 
 
 Actions are classified as (1) in the civil 
 law, or (2) in the common law. 
 
 (la) Civil Actions in the Civil Law. 
 
 Those personal actions which are instituted 
 to compel payments, or do some other thing 
 purely civil. Poth. Introd. Gen. aux Cou- 
 tumes, 110. 
 
 (1b) Criminal Actions in the Civil 
 
 Law. Those personal actions in which the 
 plaintiff asks reparation for the commis- 
 sion of some tort or injury which he or 
 those who belong to him have sustained. 
 
 (1c) Mixed Actions in the Civil Law. 
 
 Those which partake of the nature of both 
 real and personal actions; as actions of par- 
 tition; actions to recover property and dam- 
 ages. Inst. 4. 6. 18-20; Domat, Supp. Civ. 
 Law, liv. 4, tit. 1, note 4. 
 
 (Id) Mixed Personal Actions in the 
 
 Civil Law. Those which partake of both 
 a civil and a criminal character. 
 
 (1e) Personal Actions in the Civil 
 
 Law. Those in which one "person (actor) 
 sues another as defendant (reus) In respect 
 of some obligation which he is under to the 
 actor, either ex contractu or ex delicto, to 
 perform some act or make some compensa- 
 tion. 
 
 (1f) Real Actions in the Civil Law. 
 
 Those by which a person seeks to recover 
 his property, which is in the possession of 
 another. 
 
 (2a) Civil Actions in the Common 
 
 Law. Those actions which have for their 
 object the recovery of private or civil rights, 
 or of compensation for their infraction. 
 
 (2b) Criminal Actions in the Com- 
 mon Law. Those actions prosecuted in a 
 court of justice, in the name of the govern- 
 ment, against one or more individuals ac- 
 cused of a crime. See 1 Chit. Grim. Law. 
 
 -(2c) Local Actions in the Common 
 
 Law. Those civil actions the cause of which 
 could have arisen in some particular place 
 or county only. See "Local Action." 
 
 (2d) Mixed Actions in the Common 
 
 Law. Those which partake of the nature 
 of both real and personal actions. See 
 "Mixed Action." 
 
 (2e) Personal Actions in the Com- 
 mon Law. Those civil actions which are 
 brought for the recovery of personal prop- 
 erty, for the enforcement of some contract, 
 or to recover damages for the commission 
 of an injury to the person or property. See 
 "Personal Action." 
 
 (2f) Real Actions in the Common 
 
 Law. Those brought for the specific re- 
 covery of lands, tenements, or heredita- 
 ments. Steph. PI. 3. See "Real Action." 
 
 (2g) Transitory Actions in the Com- 
 mon Law. Those civil actions the cause of 
 which might have arisen In one place or 
 county as well as another. 
 
 ACTION FOR POINDING OF THE 
 ground. See "Poinding." 
 
 ACTION IN PERSONAM. See "Actio in 
 Personam." 
 
 ACTION IN REM. See "Actio in Rem." 
 
 ACTION OF A WRIT. A phrase used 
 when a defendant pleads some matter by 
 which he shows that the plaintiff had no 
 cause to have the writ sued upon, although 
 it may be that he is entitled to another writ 
 or action for the same matter. Cowell. 
 
 ACTION OF ABSTRACTED MULTURES. 
 
 In Scotch law. An action for multures or 
 tolls against those who are thirled to a 
 mill, i. e., bound to grind their corn at a 
 certain mill, and fail to do so. Bell, Diet. 
 
 ACTION OF ADHERENCE. In Scotch 
 law. An action competent to a husband or 
 wife, to compel either party to adhere in 
 case of desertion. It is analogous to the 
 English suit for restitution of conjugal 
 rights. Wharton. 
 
 ACTION OF BOOK DEBT. A form of 
 action resorted to in the states of Connecti- 
 cut and Vermont for the recovery of claims, 
 such as usually evidenced by a book ac- 
 count. 1 Day (Conn.) 105; 4 Day (Conn.) 
 105; 2 Vt. 366. See 1 Conn. 75; 11 Conn. 
 205. 
 
 ACTION ON THE CASE. See "Case." 
 
 ACTION ORDINARY. In Scotch law. 
 All actions which are not rescissory. 
 
 ACTION REDHIBITORY. See "Redhib- 
 itory Action." 
 
 ACTION RESCISSORY. 
 
 ry Actions." 
 
 ACTIONABLE. For which an action will 
 lie. 3 Bl. Comm. 23. 
 
 ACTION ARY. A commercial term used 
 in Europe to denote a proprietor of shares 
 or actions in a joint-stock company. 
 
 ACTION ES. Actions. Plural of actio (q. 
 v.), and is used in combination In the same 
 manner. 
 
 ACTIONUM GENERA MAXIME SUNT 
 servanda. The kinds of actions are espe- 
 cially to be preserved. Lofft, 460. 
 
 ACTIVE. That which requires action. 
 Thus, an active trust is one requiring action 
 by the trustee to execute the donor's will. 
 
 ACTON BURN ELL. An ancient English' 
 statute, so called because enacted by a 
 parliament held at the village of Acton Bur- 
 nell. 
 
 It is otherwise known as statutwm mercor 
 torum or de mercatoritus, the statute of 
 the merchants. It was a statute for the col- 
 lection of debts, the earliest of its class, be- 
 ing enacted in 1283. 
 
 A further statute for the same object, and 
 known as De MercatoriMs, was enacted 13 
 Edw. I. c. 3. See "Statute Merchant." 
 
 ACTOR (Lat. agere). In civil law. 
 
 (1) A patron, pleader, or advocate. Du 
 Cange; Cowell; Spelman. 
 
 Actor ecclesiae was an advocate for a 
 churph; one who protects the temporal in- 
 
 See "Rescisso- 
 
ACTOR QUI CONTRA, ETC. 
 
 (23) 
 
 ACTUS JUDICIARIUS, ETC. 
 
 terests of a church. Actor villae was the 
 steward or head bailiff of a town or village. 
 Cowell. 
 
 (2) One who takes care of his lord's 
 lands. Du Cange. 
 
 (3) A guardian or tutor; one who trans- 
 acts the business of his lord or principal; 
 neairly synonymous with "agent," which 
 comes from the same word. 
 
 The word has a variety of closely related 
 meanings, very nearly corresponding with 
 "manager." Thus, actor dominae, manager 
 of his master's farms; actor ecclesiae, man- 
 ager of church property; act ores provincia- 
 rum, tax gatherers, treasurers, and mana- 
 gers of the public debt. 
 
 (4) A plaintiff; contrasted with reus, the 
 defendant. Adores regis, those who claim- 
 ed money of the king. Du Gauge; Spel- 
 man; Cowell. 
 
 ACTOR QUI CONTRA REGULAM QUID 
 adduxit, non est quidiendus. A pleader 
 ought not to be heard who advances a propo- 
 sition contrary to the rules of law. 
 
 ACTOR SEQUITUR FORUM REI. The 
 plaintiff must follow the forum of the thing 
 in dispute. Karnes, Law Tr. 232; Story, 
 Confl. Laws, § 325k; 2 Kent, Comm. 462. 
 
 ACTORE NON PROBANTE REUS AB- 
 solvitur. If the plaintiff does not prove his 
 case, the defendant is absolvedi Hob. 103. 
 
 ACTOR! INCUMBIT ONUS PROBANDI. 
 The burden of proof lies on the plaintiff. 
 Hob. 103. 
 
 ACTORNAY. In old Scotch law. Attor- 
 ney; an attorney. Skene de Verb. Sign. voc. 
 "Actornatus." 
 
 ACTRIX (Lat.) A female actor; a fe- 
 male plaintiff. Calv. Lex. 
 
 ACTS OF COURT. Legal memoranda 
 made in the admiralty courts in England, in 
 the nature of pleas. For example, the Eng- 
 lish court of admiralty disregards all tenders 
 except those formally made by acts of court. 
 Abb. Shipp. 403; Dunlop, Adm. Prac. 104, 
 105; 4 C. Rob. Adm. 103; 1 Hagg. Adm. 157. 
 
 ACTS OF SEDERUNT. In Scotch law. 
 Ordinances for regulating the forms of pro- 
 ceeding, before the court of session, in 
 the administration of justice, made by the 
 judges, who have the power by virtue of a 
 Scotch act of parliament passed in 1540. 
 Brsk. Princ. bk. 1, tit. 1, § 14. 
 
 ACTUAL DAMAGES. See "Damages." 
 
 ACTUAL DELIVERY. See "Delivery." 
 
 ACTUAL FRAUD. See "Fraud." 
 
 ACTUAL NOTICE. See "Notice." 
 
 ACTUAL OCCUPATION. See "Occupa- 
 tion." 
 
 ACTUAL OUSTER. See "Ouster." 
 
 ACTUAL POSSESSION. See "Posses- 
 sion." 
 
 ACTUAL TOTAL LOSS. In marine in- 
 surance the complete destruction of the in- 
 sured vessel, so that it cannot be recovered 
 or repaired, as distinguished from construc- 
 tive tdtai, which authorizes an abandon- 
 ment to the underwriters. 25 Ohio St. 64. 
 See "Abandonment." 
 
 ACTUARIUS (Lat.) One who drew the 
 acts or statutes; one who wrote in brief the 
 public acts. 
 
 An officer who had charge of the public 
 baths; an officer who received the money 
 for the soldiers, and distributed it among 
 them; a notary. 
 
 An actor (g. v.) Du Cange. 
 
 ACTUARY. The manager of a joint- 
 stock company, particularly an insurance 
 company. Penny, Cyc. 
 
 A clerk, in some corporations vested with 
 various powers. 
 
 In Ecclesiastical Law. A clerk who 
 
 registers the acts and constitutions of the 
 convocation. 
 
 ACTUM (Lat. agere). A deed; some- 
 thing done. 
 
 Datum relates to the time of the delivery 
 of the instrument; actum, the time of mak- 
 ing it; factum, the thing made. Gestum de- 
 notes a thing done without writing; actum, 
 a thing done in writing. Du Cange, "Actus." 
 
 ACTUS (Lat. agere, to do; actus, done). 
 
 In Civil Law. A thing done. See 
 
 "Actum." 
 
 In Roman* Law. A servitude which 
 
 carried the right of driving animals and 
 vehicles across the lands of another. 
 
 It included also the iter, or right of pass- 
 ing across on foot or on horseback. 
 
 In English Law. An act of parlia- 
 ment. 8 Coke, 40. ' 
 
 A foot and horse way. Co. Litt. 56a. 
 
 ACTUS CURIAE NEMINEM GRAVABIT. 
 An act of the court shall prejudice no man. 
 .lenk. Cent. Cas. 118; Broom, Leg. Max. (3d 
 London Ed.) 115; 1 Strange, 126; 1 Smith, 
 Lead. Cas. 245-255; 12 C. B. 415. 
 
 ACTUS DEI NEMINEM FACIT INJURI- 
 
 am. The act of God does wrong to no one, 
 — that is, no one is responsible in damages 
 for inevitable accidents. 2 Bl. Comm. 122; 
 1 Coke, 97b; 5 Coke, 87; Co. Litt. 206a; 4 
 Taunt. 309; 1 Term R. 33. See "Act of 
 God." 
 
 ACTUS INCEPTUS CUJUS PERFECTIO 
 pendet ex voluntate partium, revocari po- 
 test; si autem pendet ex voluntate tertiae 
 personae, vel ex contingent!, revocari non 
 potest. An act already begun, whose com- 
 pletion depends upon the will of the parties, 
 may be recalled; but if it depend on the 
 consent of a third person, or on a contin- 
 gency, it cannot be recalled. Bac. Max. 
 reg. 20. See Story, Ag. § 424. 
 
 ACTUS JUDICIARIUS CORAM NON JU- 
 dice irritus habetur; de ministerial! autem 
 a quocunque provenit ratum esto. A judi- 
 cial act before one not a judge is void; as 
 
ACTUS LEGIS, ETC. 
 
 (24) 
 
 AD EXHAEREDITATIONEM 
 
 to a ministerial act, from whomsoever it 
 proceeds, let it be valid. Lofft, 458. 
 
 ACTUS LEGIS NEMINl EST DAMNOSUS. 
 
 The act of the law is hurtful to no one; an 
 act in law shall prejudice no man. 2 Inst. 
 287. 
 
 ACTUS LEGIS NEWINI FACIT INJURI- 
 
 am. The act of the law does no one wrong. 
 5 Coke, 116; 2 Sharswood, Bl. Comm. 123. 
 
 ACTUS LEGITIMI NON RECIPIUNT MO- 
 dum. Acts required by law admit of no 
 qualification. Hob. 153; Branch, Princ. 
 
 ACTUS ME INVITO FACTUS, NON EST 
 meus actus. An act done by me against 
 my will is not my act. Bracton, 101b. 
 
 ACTUS NON REUM FACIT NISI MENS 
 rea. The act does not make a person 
 guilty unless the intention be guilty also. 
 This maxim applies only in criminal cases; 
 in civil matters it is otherwise. Broom, Leg. 
 Max. (3d London Ed.) 270, 275, 329; 7 Term 
 R. 514; 3 Bing. N. C. 34, 468; 5 Man. & G. 
 639; 3 C. B. 229; 5 C. B. 380; 9 Clark & F. 
 531; 4 N. Y. 159, 163, 195; 2 Bouv. Inst, note 
 2211. 
 
 ACTUS REPUGNUM NON POTEST»IN 
 esse producl. A repugnant act cannot be 
 brought into being, i. e., cannot be made ef- 
 fectual. Plowd. 355. 
 
 ACTUS SERVI IN IIS QUIBUS OPERA 
 ejus communiter adhibita* est, actus doml- 
 ni habetur. The act of a servant in those 
 things in which he is usually employed is 
 c.onsidered the act of his master. Lofft, 
 227. 
 
 AD. In Latin phrases. A preposition de- 
 noting at, by, for, near, on account of, to, 
 until, upon. 
 
 AD ABUNDANTIOREM CAUTELAM 
 (Lat.) For greater caution. 
 
 AD ADMITTENDUM CLERICUM. For 
 
 the admitting of the clerk. A writ com- 
 manding the bishop to admit his clerk, up- 
 on the success of the latter in a guare im- 
 pedit. 
 
 AD ALIUD EXAM EN (Lat.) To another 
 tribunal. Calv. Lex. 
 
 AD ALIUM DIEM. At another day. A 
 common phrase in the old reports. Y. B. 
 P. 7 Hen. VI. 13. 
 
 AD ASSISAS CAPIENDAS. To take as- 
 sizes; to take or hold the assizes. Bracton, 
 fol. 110a; 3 Bl. Comm. 185. Ad assisam 
 capiendam, to take an assize. Bracton, fol. 
 110b. 
 
 AD AUDIENDUM ET TERMINANDUM. 
 To hear and determine. 
 
 AD BARRAM (Lat.) To the bar; at the 
 bar. 3 How. St. Tr. 112. 
 
 AD CAMPI PARTEM. For a share of the 
 
 field or land {ut particeps flat) for cham- 
 pert. Fleta, lib. 2, c. 36, § 4. 
 
 AD CAPTUM VULGI. Adapted to the 
 common understanding. 
 
 AD COLLIGENDUM BONA DEFUNCTI. 
 
 To collect the goods of the deceased. Spe- 
 cial letters of administration granted to one 
 or more persons, authorizing them to collect 
 and preserve the goods of the deceased, are 
 so called. 2 Bl. Comm. 505; 2 Steph. Comm. 
 241. These are otherwise termed "letters 
 ad colligendum," and the party to whom 
 they are granted, a "collector." 2 Rev. St. 
 N. Y. p. 19, §§ 38, 39. 
 
 AD COMMUNEM LEGEM. At common 
 law. The name of a species of writ of en- 
 try, now obsolete. 
 
 Formerly, when tenants for life in dower 
 or by the curtesy aliened the land which 
 they held, the reversioner might, after their 
 death, have the writ to recover possession. 3 
 Bl. Comm. 183, note (z) ; 1 Rose. Real Ac- 
 tions, 93, 94. 
 
 AD COMPARENDUM. To appear. Reg. 
 Orig. 60a. Ad comparendum, et ad standum 
 juri, to appear and to stand to the law, or 
 abide the judgment of the court. Cro. Jac. 
 67. 
 
 AD COMPOTUM REDDENDUM. To ren- 
 der an account. 
 
 AD CURIAM. At or to court. 
 
 AD CUSTUM, or AD CUSTAGIA. At the 
 
 cost. 1 Sharswood, Bl. Comm. 314; Toul- 
 lier. Dr. Civ., Cowell; Whishaw. 
 
 AD DAMNUM (Lat. damnae). To the 
 damage. 
 
 In Pleading. The technical name of 
 
 that part of the writ which contains a state- 
 ment of the amount of the plaintiff's injury. 
 
 The plaintiff cannot recover greater dam- 
 ages than he has laid in the ad damnum. 
 2 Greenl. Ev. § 260. 
 
 AD DEFENDENDUM (Lat.) To defend. 
 1 Bl. Comm. 227. 
 
 AD DIEM (Lat.) At a (or the) day. 
 
 AD EA QUAE FREQUENTIM ACCIDUNT 
 jura adaptantur. The laws are adapted to 
 those cases which occur more frequently. 
 Coke, 2d Inst. 137; Wingate, Max. 216; Dig. 
 1. 3. 3; 19 How. St. Tr. 1061; 3 Barn. & C. 
 178, 183; 2 Cromp. & J. 108; 7 Mees. & W. 
 599, 600; Vaughan, 373; 5 Coke, 38, 128; 6 
 Coke, 77; 11 Exch. 476; 12 How. (U. S.) 312; 
 Broom, Leg. Max. (3d London Ed.) 41. 
 
 AD EXCAMBIUM (Lat.) For exchange; 
 for compensation. 
 
 AD EXHAEREDITATIONEM. To the dis- 
 herison, or disinheriting. 
 
 The writ of waste calls upon the tenant 
 to appear and show cause why he hath com- 
 mitted waste and destruction in the place 
 named ad exhaereditationem, etc. 3 Bl. 
 Comm. 228; Pitzh. Nat. Brev. 55. 
 
AD EXITUM 
 
 (25) 
 
 AD QUAESTIONEM, ETC. 
 
 AD EXITUM (Lat.) At the end of the 
 pleadings; at issue. Steph. PI. 24. 
 
 AD FACTUM PRAESTANDUM. In Scotch 
 law. The name given to a class of obliga- 
 tions of great strictness. 
 
 A debtor ad fac. praes. is denied the bene- 
 fit of the act of grace, the privilege of sanc- 
 tuary, and the cessio bonorum. Ersk. Inst, 
 lib. 3, tit. 3, § 62; Karnes, Eq. 216. 
 
 ADFIDEM. In allegiance. 2 Kent, Comm. 
 56. Subjects born in allegiance are said to 
 be born ad fldem. 
 
 AD FILUM AQUAE. To the thread of 
 the stream; to the middle of the stream. 2 
 Cush. (Mass.) 207; 4 Hill (N. Y.) 369; 2 N. 
 H. 369; 2 Washb. Real Prop. 632, 633; 3 
 Kent, Comm. 428 et seq. 
 
 A former meaning seems to have been, to 
 a stream of water. Cowell; Blount. Ad 
 medium filvm aquae would be etymological- 
 ly more exact (2 Eden. Inj. 260), and is often 
 used; but the common use of ad filum aquae 
 is undoubtedly to the thread of the stream 
 (3 Sumn. [U. S.] 170; 1 McCord [S. C] 580; 
 
 3 Kent, Comm. 431; 20 Wend. [N. Y.] 149; 
 
 4 Pick. [Mass.] 272). 
 
 AD FILUM VIAE (Lat.) To the middle 
 of the way. 8 Mete. (Mass.) 260. 
 
 AD FIN EM (Lat, abbreviated ad fvi.) To 
 the end. 
 
 AD FIRMAM. To farm. 
 
 Derived from an old Saxon word denoting 
 rent, according to Blackstone, occurring in 
 the phrase, dedi concessi et ad flrmam. tra- 
 didi, I have given, granted, and to farm let. 
 2 Sharswood, ' Bl. Comm. 317. Ad flrmam 
 noctis was a fine or penalty equal in amount 
 to the estimated cost of entertaining the 
 king for one night. Cowell. Ad feodi fir- 
 mam, to fee farm. Spelman; Cowell. 
 
 AD GAOLAS DELIBERANDAS (Lat.) To 
 deliver the gaols; to empty the gaols. Brac- 
 • ton, fol. 109b. 
 
 AD GRAVAMEN (Lat.) To the injury. 
 AD HUNC DIEM (Lat.) At this day. 
 
 AD IDEM (Lat.) To the same point or 
 effect. 
 
 AD INDE (Lat.) Thereunto. 
 
 AD INFINITUM (Lat.) Indefinitely; with- 
 otit limit. 
 
 AD INQUIRENDUM (Lat. for inquiry). In 
 practice. A judicial writ, commanding in- 
 quiry to be made of anything relating to a 
 cause depending in court. 
 
 AD INSTANTIAM (Lat.) At the instance. 
 
 AD INTERIM (Lat.) In the meantime. 
 
 An oificer is sometimes appointed ad in- 
 terim, when the principal officer is absent, 
 or for some cause incapable of acting for 
 the time. 
 
 AD JUDICIUM. To judgment; to court. 
 
 AD JUNGENDUM AUXILIUM. To join- 
 ing in aid; to join in aid. See "Aid Prayer." 
 
 AD JURA REGIS. To the rights of the 
 king; a writ which was brought by the 
 king's clerk; presented to a living, against 
 those who endeavored to eject him, to the 
 prejudice of the king's title. Reg. Writs, 61. 
 
 AD LARGUM. At large; as, title at 
 large; assize at large. See Dane, Abr. c. 
 144, art. 16, § 7. 
 
 AD LITEM (Lat. lites). For the suit. 
 
 Every court has the power to appoint a 
 guardian ad litem. 2 Kent, Comm. 229; 2 
 Sharswood, Bl. Comm. 427. 
 
 AD LUCRANDUM VEL PERDENDUM. 
 
 For gain or loss. 
 
 AD MAJORAM CAUTELAM (Lat.) For 
 greater caution. 
 
 - AD MANUM. Ready at hand. 
 
 AD MEDIUM FILUM AQUAE. To the 
 
 middle thread of the stream. 
 
 AD MEDIUM FILUM VIAE. To the mid- 
 dle thread of the way. 
 
 AD MELIUS INQUIRENDUM. A writ 
 directing a coroner to hold a second or 
 further inquest. 
 
 AD MORDENDUM ASSUETUS. Accus- 
 tomed to bite. A term applied to ferocious 
 animals. ^ 
 
 AD NOCUMENTUM. To the nuisance. 
 Formal words in the assize of nuisance. 3 
 Bl. Comm. 221. 
 
 AD OFFICIUM JUSTICIARIORUM SPEC- 
 tat, unlculque coram els placltanti justi- 
 tlam exhibere. It is the duty of justices to 
 administer justice to every one pleading 
 before them. Coke, 2d Inst. 451. 
 
 AD OSTENDENDUM (Lat. toshow). For- 
 mal words in old writs. Fleta, lib. 4, c. 65, 
 § 12. 
 
 AD OSTIUM ECCLESIAE (Lat.) At the 
 church door. 
 
 One of the five species of dower formerly 
 recognized at the common law. 1 Washb. 
 Real Prop. 149; 2 Bl. Comm. 132. See 
 "Dower." 
 
 AD PROXIMUM ANTECEDENS FIAT 
 relatio, nisi impediatur sententia. A rela- 
 tive is to be referred to the next anteced- 
 ent, unless the sense would be thereby im- 
 paired. Noy, Max. (9th Ed.) 4; 2 Exch. 
 479; 17 Q. B. 833; 2 Hurl. & N. 625; 3 Bing. 
 N. C. 217; 9 Coke, 13; 13 How. (U. S.) 142. 
 
 AD QUAERIMONIAM. On complaint of. 
 
 AD QUAESTIONEM FACTI NON RE- 
 spondent judices; ad quaestionem legis 
 non respondent juratores. Judges do not 
 answer to a question of fact; jurors do not 
 answer to a question of law. Co. Lift. 295b; 
 8 Coke, 308 (155). Or, as the converse is 
 
AD QUEM 
 
 (26) 
 
 AD VOLUNTATEM 
 
 sometimes affirmatively stated: Ad quaes- 
 tionem juris respondent indices; ad quaes- 
 tionem facti respondent juratores, judges 
 answer to a question of law; jurors, to a 
 question of fact; or ad quaestiones legis 
 judices, et nan juratores respondent, judges, 
 and not jurors, respond to questions of law. 
 7 Mass. 279. 
 
 AD QUEM (Lat.) To which. 
 
 The correlative term to a quo (q. v.), 
 used in the computation of time, definition 
 of a risk, etc., denoting the end of the period 
 or journey. 
 
 The terminus a quo is the point of be- 
 ginning or departure; the terminus ad quern, 
 the end of the period, or point of arrival. 
 
 AD QUOD CURIA CONCORDAVIT. To 
 
 which the court agreed. 
 
 AD QUOD DAMNUM (Lat.) What injury. 
 
 A writ issuing out of and returnable in- 
 to chancery, directed to the sheriff, com- 
 manding him to inquire by a jury what 
 damage it will be to the king, or any other, 
 to grant a liberty, fair, market, highway, or 
 the like. 
 
 The name is derived from the character- 
 istic words denoting the nature of the writ, 
 to inquire how great an injury it will be to 
 the king to grant the favor asked. Whi- 
 shaw; Fitzh. Nat. Brev. 221; Termes de la 
 Ley. 
 
 > AD QUOD NON FUIT RESPONSUM 
 (Law Lat.) To which there was no an- 
 swer. A phrase used in th^ reports, where 
 a point advanced in argument by one party 
 was not denied by the other; or where a 
 point or argument of counsel was not met 
 or noticed by the court; or where an ob- 
 jection was met by the court, and not re- 
 plied to by the counsel who raised it. 3 
 Coke, 9; 4 Coke, 40. 
 
 AD RATIONEM PONERE. To cite a 
 person to appear. 
 
 AD RECOGNOSCENDUM. To recognize. 
 Fleta, lib. 2, c. 65, § 12. Formal words in 
 old writs. 
 
 AD RECTE DOCENDUM OPORTET, 
 primum inquirere nomina, quia rerum cogni- 
 tio a nominibus rerum dependet. In order 
 rightly to comprehend a thing, inquire first 
 into the names, for a right knowledge of 
 things depends upon their names. Co. 
 Litt. 68. 
 
 AD REPARATIONEM ET SUSTENTA- 
 tionem. For repairing and keeping in suit- 
 able condition. 
 
 AD RESPONDENDUM. See "Capias ad 
 Respondendum;" "Habeas Corpus." 
 
 AD SATISFACIENDUM. See "Capias ad 
 Satisfaciendum." 
 
 AD SECTAM. At the suit of. 
 
 It is commonly abbreviated. It is used 
 where it is desirable to put the name of the 
 defendant first, as in some cases where the 
 
 defendant is filing his papers; thus, Roe 
 ads. Doe, where Doe is plaintiff and Roe de- 
 fendant. It is found in the indexes to cases 
 decided in some of our older American 
 books of reports, but has become pretty 
 much disused. 
 
 AD STUDENDUM ET ORANDUM. For 
 
 studying and praying; for the promotion of 
 learning and religion. A phrase applied to 
 colleges and universities. 1 Bl. Comm. 467; 
 T. Raym. 101. 
 
 AD TERMINUM ANNORUM. For a term 
 of years. 
 
 AD TERMINUM QUI PRAETERIT. A 
 
 writ of entry which formerly lay for the 
 lessor or his heirs, when a lease had been 
 made of lands and tenements, for term of 
 life or years, and, after the term had ex- 
 pired, the lands were withheld from the 
 lessor by the tenant, or other person pos- 
 sessing the same. Fitzh. Nat. Brev. 201. 
 
 The remedy now applied for holding over 
 is by ejectment, or under local regulations, 
 by summary proceedings. 
 
 AD TRISTEM PARTEM STRENUA EST 
 suspicio. Suspicion lies heavy on the un- 
 fortunate side. 
 
 AD TUNC ET IBIDEM. In pleading. 
 The technical name of that part of an in- 
 dictment containing the statement of the 
 subjeotrmatter's "then and there being^ 
 found." Bac. Abr. "Indictment" (G 4) ; 1 N. 
 C. 93. 
 
 AD ULTIMAM VIM TERMINORUM. To 
 the utmost import of the terms. 
 
 AD USUM ET COMMODUM. To the use 
 and benefit. 
 
 AD VALENTIAM. See "Ad Valorem." 
 
 AD VALOREM (Lat.) According to the 
 valuation. 
 
 Duties may be specific or ad valorem. 
 Ad valorem duties are always estimated, at a 
 certain per cent, on the valuation of the 
 property. 3 V. S. St. at Large, 732; 24 Miss. 
 501. 
 
 AD VENTREM INSPICIENDUM. To in- 
 spect the womb. A writ for the summon- 
 ing of a jury of matrons to determine the 
 question of pregnancy. 
 
 AD VIM MAJOREM VEL AD CASUS 
 fortuitos non tenetur quis, nisi sua culpa 
 intervenerit. No one is held to answer for 
 the effects of a superior force, or of an ac- 
 cident, unless his own fault has contributed. 
 Fleta, lib. 2, c. 72, § 16. 
 
 AD VITAM. For life. 
 
 AD VITAM AUT CULPAM. For life, or 
 until misbehavior. 
 
 Words descriptive of a tenure of office 
 "for life or good behavior," equivalent to 
 quamdiu 'bene se gesserit. 
 
 AD VOLUNTATEM. At will. 
 
AD WARACTUM 
 
 (27) 
 
 ADHIBERE 
 
 AD WARACTUM. See "Waractum." 
 
 ADCORDABILIS DENARII. Money paid 
 by a vassal to his lord upon the selling or 
 exchanging of a feud. Enc. Lond. 
 
 ADDICERE (Lat.) In civil law. To con- 
 demn. Calv. Lex. 
 
 Addictio denotes a transfer of the goods 
 of a deceased debtor to one who assumes 
 his .liabilities. Calv. Lex. The giving up to 
 a creditor of his debtor's person by a magis- 
 trate; also the transfer of the debtor's goods 
 to one who assumes his liabilities. 
 
 Also used of an assignment of the person 
 of the debtor to the successful party in a 
 suit. 
 
 ADDITIO PROBAT MINORITATEM. An 
 addition proves inferiority. Coke, 4th Inst. 
 80; Wingate, Max. 211, max. 60; Litt. § 293; 
 Co. Litt. 189a. 
 
 ADDITION (Lat. additio, an adding to). 
 
 Whatever is added to a man's name by 
 way of title or description, as additions of 
 mystery, place, or degree. Cowell; Termes 
 de la Ley; 10 Wentw. PI. 371; Salk. 5; 2 
 Ld. Raym. 988; 1 Wils. 244. 
 
 Additions are: 
 
 (1) Additions of estate, as "esquire," 
 "gentleman," and the like. These titles can, 
 however, be claimed by none, and may be 
 assumed by any one. In Nash v. Batters- 
 by, 2 Ld. Raym, 986, 6 Mod. 80, the plaintiff 
 declared with the addition of gentleman. 
 The defendant pleaded in abatement that 
 the plaintiff was no gentleman. The plain- 
 tiff demurred, and it was held ill; for, said 
 the court, it amounts to a confession that 
 the plaintiff is no gentleman, and then not 
 the person named in the count. He should 
 have replied that he is a gentleman. 
 
 (2) Additions of mystery, as scrivener, 
 painter, printer, manufacturer, etc. 
 
 (3) Additions of places, descriptions by 
 the place of residence, as "A. B., of Phila- 
 delphia," and the like. See Bac. Abr. ; 
 Doct. Plac. 71; 2 Viner, Abr. 77; 1 Lilly, 
 Reg. 39; 1 Mete. (Mass.) 151. 
 
 In French Law. A supplementary pro- 
 cess to obtain additional information. 
 Guyot, Rep. Univ. 
 
 AODITIONALES. Additional terms or 
 propositions to be added to a former agree- 
 ment. 
 
 ADDONE, or ADDONNE (Law Fr.) Given 
 to. Kelham. 
 
 ADDRESS. 
 
 . In Equity Pleading. That' part of a 
 
 bill which contains the appropriate and 
 technical description of the court where 
 the plaintiff seeks his remedy. Coop. Eq. 
 PI. 8; Bart. Suit in Eq. 26; Story, Bq. PI. 
 § 26; Van Heythuysen, Eq. Draft. 2. 
 
 In Legislation. A formal request ad- 
 dressed to the executive by one or both 
 branches of the legislative body, requesting 
 him to perform some act. 
 
 ADEEM. To recall or revoke. See 
 "Ademption." 
 
 ADEUANTADO. In Spanish law. The 
 military and political governor of a frontier 
 province. His powers were equivalent to 
 those of the president of a Roman province. 
 He commanded the army of the territory 
 which he governed, and, assisted by per- 
 sons learned in the law, took cognizance of 
 the civil and criminal suits that arose in 
 his province. This office has long since 
 been abolished. 
 
 ADELING, or ATHELING. Noble; ex- 
 cellent. A title of honor among the Sax- 
 ons, given to the king's children and heirs 
 to the crown. Clito; Spelman. 
 
 ADEMPTION. The extinction of a spe- 
 cific legacy by the testator's parting with 
 the subject thereof during his life. Also 
 applied to the payment by the testator dur- 
 ing his life of a general legacy; but this 
 is more properly known as "satisfaction." 
 9 Barb. (N. Y.) 35; 3 Duer (N. Y.) 477. 
 
 The term is not applied to devises. 108 
 N. Y. 535. 
 
 ADEO (Lat.) So; as. Adeo plene et in- 
 tegre, as fully and entirely. 10 Coke, 65. 
 
 ADEQUATE CONSIDERATION. Onewhich 
 is a fair equivalent in value for the benefit 
 obtained. 
 
 ADEQUATE REMEDY. A legal remedy, 
 to be "adequate,"' so as to exclude the juris- 
 diction of equity, must be "as practical and 
 efficient to the ends of justice and its prompt 
 administration as the remedy in equity." 
 S Pet. (U. S.) 210. See 134 U. S. 338. 
 
 ADESSE. In the civil law. To be pres- 
 ent; the opposite of abesse. Calv. Lex. 
 
 To advocate, to undertake the manage- 
 ment of a cause. Calv. Lex.; Brissonius. 
 
 ADEU. See "Adieu." 
 
 ADFERRUMINATIO. In the civil law. 
 The welding together of iron; a species of 
 adjunction (q. v.) Called, also, ferruminatio. 
 Mackeld. Civ. Law, § 268. 
 
 ADHERENCE. In Scotch law. The 
 name of a form of action by which the mutu- 
 al obligation of marriage may be enforced 
 by either party. Bell, Diet. 
 
 ADHERING (Lat. adhacrcre, to cling to). 
 Cleaving to, or joining; as, adhering to the 
 enemies of the United States. 
 
 The constitution of the United States, 
 (article 3, § 3) defines treason against the 
 United States to consist only in levying 
 war against them, or in adhering to their 
 enemies, giving them aid and comfort. 
 
 A citizen's cruising in an enemy's ship, 
 with a design to capture or destroy Ameri- 
 can ships, would be adhering to the ene- 
 mies of the United States. 4 How. St. Tr. 
 328; Salk. 634; 2 Gilb. Ev. (Lofft Ed.) 798. 
 
 ADHIBERE (Lat.) In the civil law. To 
 
ADIATION 
 
 (28) 
 
 ADJQNCTION 
 
 apply; to employ; to exercise; to use. Ad- 
 hibere diligentiam, to use care. Adhibere 
 vim/io employ force. Dig. 4. 2. 12. 2. 
 
 ADIATION. A term used in the laws of 
 Holland for the application of property by 
 an executor. Wharton. 
 
 ADIEU (Law Pr. without day). A com- 
 mon term in the Year Books, implying final 
 dismissal from court. Literally, "to God." 
 Frequently written "Adeu." Y. B. T. 5 
 Edw. II. 173. 
 
 ADIRATUS. Lost; strayed; a price or 
 value set upon things stolen or lost, as a 
 recompense to the owner. Cowell. 
 
 ADIT. Approach or access. As used in 
 mining law, a horizontal opening by which 
 a mine is entered, or by which water and 
 ores are carried away. Also called "drift." 
 
 ADITUS (Lat. adire). An approach; a 
 way; a public way. Co. Lift. 56a. 
 
 ADJACENT. Next to or near. 
 
 Two of three lots of land might be de- 
 scribed as adjacent to the first, while only 
 the second could be said to be adjoining. 
 1 Cooke (Tenn.) 128. 
 
 ADJECTIVE LAW. That which regu- 
 lates procedure; so called from its function 
 to aid the substantive. Holland, Jur. 78. 
 
 ADJOINING. Touching Qr contiguous, as 
 distinguished from lying near or adjacent. 
 52 N. Y. 395. 
 
 ADJOURN. In strictness, to put off to a 
 day specified. Also to suspend business for 
 a time; to defer or delay. 14 How. Pr. (N. 
 Y.) 54. See "Post-ponement." 
 
 ADJOURNAL. In Scotch practice. A 
 term applied to the records of criminal 
 courts. Books of Adjournal (old Scotch, 
 "Bukis of Adiornale") were the original rec- 
 ords of criminal trials, most of which are 
 now lost. 1 Pitc. Crim. Tr. pt. 2, p. 225. 
 An act of adjournal is an order of the court 
 of justiciary, entered on its minutes. Shaw, 
 Rep., Appendix. 
 
 ADJOURNAIVIENTUM EST AD DIEM 
 dicere seu diem dare. An adjournment is 
 to appoint a day or give a day. 4 Inst. 27. 
 Hence the formula "eat sine die." 
 
 ADJOURNATUR (Law Lat. from ad- 
 journare, to adjourn). It is adjourned. A 
 word with which the old reports very fre- 
 quently conclude a case. 1 Ld. Raym. 602; 
 1 Show. 7; 1 Leon. 88. 
 
 ADJOURNED SUMMONS. In English 
 practice. A summons or citation issued in 
 chambers, and adjourned into court for ar- 
 gument. 
 
 ADJOURNED TERM. A continuation of 
 a previous or regular term. 4 Ohio St. 473; 
 22 Ala. (N. S.) 27. Gen. St. Mass. c. 112, § 
 
 26, provides for holding an adjourned law 
 term from time to time. 
 
 ADJOURNMENT. The dismissal by 
 some court, legislative assembly, or prop- 
 erly authorized officer, of the business be- 
 fore them, either finally, which, as popu- 
 larly used, is called an adjournment sine 
 die, without day, or to meet again at another 
 time appointed, which is called a temporary 
 adjournment. See "Postponement." 
 
 In Civil Law. A calling into court; a 
 
 summoning at an appointed time. Du Cange. 
 
 ADJOURNMENT DAY. In English prac- 
 tice. A day appointed by the judges at the 
 regular sittings for the trial of causes at 
 nisi prius. 
 
 ADJOURNMENT DAY IN ERROR. In 
 
 English practice. A day appointed some 
 days before the end of the term, at which 
 matters left undone on the affirmance day 
 are finished. 2 Tidd, Pr. 1224. 
 
 ADJOURNMENT IN EYRE. The ap- 
 pointment of a day when the justices in 
 eyre mean to sit again. Cowell; Spelman; 
 Sharswood, Bl. Comm. 186. 
 
 ADJUDICATAIRE. In Canadian law. A 
 purchaser at a sheriff's sale. See 1 Low (U. 
 S.) 241; 10 Low. (U. S.) 325. 
 
 ADJUDICATION. 
 
 In Practice. A judgment; giving or 
 
 pronouncing judgment in a case. See 
 "Former Adjudication." 
 
 In Scotch Law. A process for trans- 
 ferring the estate of a debtor to his creditor. 
 Ersk. Inst. lib. 2, tit. 12, §§ 39-55; Bell, Diet. 
 (Shaw Ed.) 944. 
 
 It may be raised not only on a decree of 
 court, but also where the debt is for a 
 liquidated sum. The execution of a sum- 
 mons and notice to the opposite party pre- 
 vents any transfer of the estate. Every 
 creditor who obtains a decree within a year 
 and a day is entitled to share with the first 
 creditor, and, after ten years' possession 
 under his adjudication, the title of the cred- 
 itor is complete. Paterson, Comp. 1137, 
 note. The matter is regulated by St. Feb. 
 26, 1684, p. 1672, c. 19. See Ersk. Inst. lib. 
 2, c. 12, §§ 15, 16. 
 
 ADJUDICATION CONTRA HAEREDITA- 
 tem jacentem. In Scotch law. Adjudica- 
 tion against a renouncing heir. Brought by 
 the ancestor's creditor to establish his debt 
 against thfe realty when the heir apparent 
 renounces his right of inheritance. 
 
 ADJUDICATION IN IMPLEMENT. In 
 
 Scotch law. An action to enforce a contract 
 to convey. 
 
 ADJUNCTION (Lat. ad imwere, to join to). 
 In civil law. The attachment or union per- 
 manently of a thing belonging to one per- 
 son to that belonging to another. This 
 union may be caused by inclusion, as if one 
 man's diamond be set in another's' ring; by 
 soldering, as if one's guard be soldered on 
 
ADJUNCTS 
 
 (29) 
 
 ADMINISTRATION 
 
 another's sword; by sewing, as b'y employ- 
 ing the slllt of one to malce the coat of 
 another; by construction, as by building on 
 another's land; by Writing, as when one 
 writes on another's parchment; or by paint- 
 ing, as when one paints a picture on anoth- 
 er's canvas. Inst. 2. 1. 34; Dig. 41. 1. 9. 2. 
 See 2 Bl. Comm. 404; 1 Bouv. Inst, note 499. 
 
 ADJUNCTS. Additional judges some- 
 times appointed in the high court of dele- 
 gates. See Shelf. Lun. 310. 
 
 ADJUNCTUM ACCESSORIUM. 
 c'essory or appurtenance. 
 
 An ac- 
 
 ADJURATION. A swearing or binding 
 upon oath. 
 
 ADJUSTMENT. In insurance. The de- 
 termining of the amount of a loss by fire 
 or marine disaster. 2 Phil. Ins. §§ 1814, 
 1815. 
 
 ADJUVARI QUIPPE NOS, NON DECIPI, 
 beneficio oportet. We ought to be favored, 
 not injured, by that which is intended for 
 our benefit. The species of bailment called 
 "loan" must be to the advantage of the bor- 
 rower, not to his detriment. Story, Bailm. 
 § 275. See 8 Bl. & Bl. 1051. 
 
 ADLEGIARE. To purge one's self of a 
 crime by oath. 
 
 ADMANUENSIS. A person who swore 
 by laying his hands on the Book. 
 
 ADMEASUREMENT OF DOWER. A 
 
 remedy which lay for the heir, on reaching 
 his majority, to rectify an assignment of 
 dower made during his minority, by which 
 the doweress had received more than she 
 was legally entitled to. 2 Bl. Comm. 136; 
 Gilb. Uses, 379. 
 
 The remedy is still subsisting, though ,of 
 rare occurrence. See 1 Washb. Real Prop. 
 225, 226; 1 Pick. (Mass.) 314; 2 Ind. 336. 
 
 In some of the states, the special pro- 
 ceeding which is given by statute to enable 
 the widow to compel an assignment of dower 
 is termed an "admeasurement of dower." 
 
 ADMEASUREMENT OF PASTURE. A 
 remedy which lay in certain cases for sur- 
 charge of common of pasture. 
 
 It lay where a common of pasture appur- 
 tenant or in gross was certain as to num- 
 ber; or where one had common appendant 
 or appurtenant, the quantity of which had 
 never been ascertained. The sheriff pro- 
 ceeded, with the assistance of a jury of 
 twelve men, to admeasure and apportion 
 the common as well of those who had sur- 
 charged as those who had not, and, when 
 the writ was fully executed, returned it to 
 the superior court. Termes de la Ley. 
 
 The remedy is now abolished in England 
 (3 Sharswood, Bl. Comm. 239, note) ; and in 
 the United States (3 Kent, Comm. 419). 
 
 ADMEZATORES (from Ital. mezzo.tHra, 
 middle). In old Italian law. Persons chosen 
 by the consent of contending parties to de- 
 
 cide questions between them. Literally, me- 
 diators. Spelman. 
 
 ADMINICLE. 
 
 In Scotch Law. Any writing or deed 
 
 introduced for the purpose of proof of the 
 tenor of a lost deed to which it refer^. 
 Ersk. Inst. lib. 4, tit. 1, § 55; Stair, Inst. lib. 
 4, tit. 32, §§ 6, 7. 
 
 In English Law. Aid; support. St. 
 
 1 Edw. IV. c. 1. 
 
 In Civil Law. Imperfect proof. Mer- 
 lin, Repert. 
 
 ADMINICULAR (from admiiiiciihim, q. v.) 
 Auxiliary to. "The murder would be ad- 
 minicular to the robbery," i. e., committed 
 to accomplish it. Story, J., 3 Mason (U. S.) 
 121. 
 
 ADMINICULAR EVIDENCE. In eccle- 
 siastical law. Evidence brought in to ex- 
 plain and complete other evidence. 2 Lee, 
 Ecc. 595. 
 
 ADMINICULATE. To give adminicular 
 evidence. 
 
 ADMINICULATOR. An officer in the 
 Romish church, who administered to the 
 wants of widows, orphans, and afflicted per- 
 sons. Spelman. 
 
 ADMINICULUM (Lat.) In the civil and 
 old English law. Aid or support; some- 
 times rendered adminicle (q. v.) Juris ad- 
 miniculum, the support of the law. Dig. 
 26. 7. 39. 9. Gvm juris adminiculo concur- 
 rente, with the support of right concurring. 
 Bracton, fol. 38b. 
 
 Cumulative or corroborative testimony. 
 
 That which belongs to a thing as acces- 
 sory. 1 Mackeld. Civ. Law, 347, note(d). 
 
 Whatever pertains to judicial proceed- 
 ings, writs, records, etc. Pleta, lib. 2, c. 3, 
 § 4. 
 
 ADMINISTRATION (Lat. adminlstrare, 
 to assist in). Management or control. 
 
 Of Government. The management of 
 
 the executive department of the govern- 
 ment. Those charged with the manage- 
 ment of the executive department of the 
 government. 
 
 Of Estates. The management of the 
 
 estate of an intestate, or of a testator who 
 has no executor. 2 Bl. Comm. 494. The 
 term is applied broadly to denote the man- 
 agement of an estate by an executor, and 
 also the management of estates of minors, 
 lunatics, insolvents, etc., in those cases 
 where trustees have been appointed by au- 
 thority of law to take charge of such es- 
 tate in place of the legal owners. 
 
 The species of administration are: 
 
 Ad Colligendum. That which is 
 
 granted for collecting and preserving goods 
 about to perish {bona peritura). The only 
 power over these goods is under the form 
 prescribed by statute. 
 
 Ancillary. That which is subordinate 
 
 to the principal administration, for collect- 
 ing the assets of foreigners. It is taken out 
 in the country where the assets are locally 
 
ADMINISTRATION SUIT 
 
 (30) 
 
 ADMISSION 
 
 situate. Kent, Comm. 43 et seq. ; 1 Williams, 
 Ex'rs, Am. Notes; 14 Ala. 829. 
 
 Cum Testamento Annexe. That 
 
 whlcli is granted where no executor is 
 named in the will, or where the one named 
 dies, or is incompetent or unwilling to act. 
 Such an administrator must follow the 
 statute rules of distribution, except when 
 otherwise directed by the will. Williams, 
 Ex'rs; 2 Bradf. Sur. (N. Y.) 22. The resid- 
 uary legatee is appointed such adminis- 
 trator, rather than the next of kin. 1 Vent. 
 217; 4 Leigh (Va.) 152; 2 Add. (Pa.) 352. 
 
 De Bonis non. That which is grant- 
 ed when the first administrator dies be- 
 fore having fully administered. The per- 
 son so appointed has in general the powers 
 of a common administrator. Bao. Abr. "Ex- 
 ecutors" (Bl); Rolle, Abr. 907; 22 Miss. 
 47; 27 Ala. 273; 9 Ind. 342; 4 Sneed (Tenn.) 
 411; 31 Miss. 519; 29 Vt. 170; 11 Md. 412. 
 
 De Bonis non cum Testamento An- 
 nexe. That which is granted when an ex- 
 ecutor dies leaving a part of the estate 
 unadministered. Comyn, Dig. "Administra- 
 tors" (Bl). 
 
 Durante Absentia. That which sub- 
 sists during the absence of the executor, 
 and, until he has proved the will. It is gen- 
 erally granted when the next of kin is be- 
 yond sea, lest the goods perish, or the debts 
 be lost. In England, it is not determined 
 by the executor's dying abroad. 4 Hagg. 
 Ecc. 360; 3 Bos. & P. 26. 
 
 Durante iVIinori Aetate. That which 
 
 is granted when the executor is a minor. 
 It continues until the minor' attains his law- 
 ful age to act, which, at common law, is 
 seventeen years. Godolph. Orph. Leg. 102; 
 5 Coke, 29. 
 
 Pendente Lite. That which is grant- 
 ed pending the controversy respecting an 
 alleged will or the right of appointment. 
 An officer of the court is appointed to take 
 care of the estate only till the suit termi- 
 nates. 2 P. Wms. 589; 2 Atk. 286; 2 Cas. 
 temp. Lee, 258; 1 Hagg. Ecc. 313; 26 N. H. 
 533; 9 Tex. 13; 16 Ga. 13. He may main- 
 tain suits, but cannot distribute the assets. 
 1 Ves. Sr. 325; 2 Ves. & B. 97; 1 Ball & B. 
 192; 7 Md. 282. 
 
 Public. That which the public admin- 
 istrator performs. This happens in many of 
 the states by statute in those cases where 
 persons die intestate, not leaving any who 
 are entitled to apply for letters of adminis- 
 tration. 3 Bradf. Sur. (N. Y.) 151; 4 Bradf. 
 Sur. (N. Y.) 252. 
 
 Special. That which is limited either 
 
 in time or in power. Such administration 
 does not come under the statutes of 31 Edw. 
 III. c. 11, and 21 Hen. VIII. c. 5, on which 
 the modern English and American laws are 
 founded. 
 
 Domestic. That had at the residence 
 
 •of the decedent. 
 
 Foreign. An administration under the 
 
 sanction and jurisdiction of a different state 
 or nation. It may be domiciliary or an- 
 cillary. 
 
 ADIVIINISTRATION SUIT. In English 
 
 practice. A suit usually by a creditor for 
 the administration of the insolvent estate 
 of a decedent. 
 
 ADMINISTRATIVE LAW. That branch 
 of the criminal law which regulates the 
 manner in which the different agencies of 
 the governing body are set in motion to 
 punish crime, as opposed to the penal law, 
 which describes offenses, and prescribes 
 punishments. 
 
 ADMINISTRATOR. A person author- 
 ized to manage and distribute the estate of 
 an intestate, or of a testator who has no ex- 
 ecutor. See "Administration." 
 
 In English law, administrators are the 
 officers of the ordinary appointed by him in 
 pursuance of the statute, and their title 
 and authority are derived exclusively from 
 the ecclesiastical judge, by grants called 
 "letters of administration." Williams, 
 Ex'rs, 331. At first the ordinary was ap- 
 pointed administrator under the statute of 
 Westminster II. Next, St. 31 Edw. III. c. 
 11, required the ordinary to appoint the 
 next of kin and the relations by blood of 
 the deceased. Next, under 21 Hen. VIII., he 
 could appoint the widow, or next of kin, or 
 both, at his discretion. 
 
 ADMIRALTY. 
 
 In England. A court which has a 
 
 very extensive jurisdiction of maritime 
 causes, civil and criminal. 
 
 A court of admiralty exists in Ireland, 
 but the Scotch court was abolished by 1 
 Wm. IV. c. 69. See "Vice Admiralty Courts." 
 
 In American Law. A tribunal exer- 
 cising jurisdiction over all maritime con- 
 tracts, torts, injuries, or offenses. 2 Pars. 
 Mar. Law, 508. 
 
 The court of original admiralty jurisdic- 
 tion in the United States is the United 
 States district court; Prom this court caus- 
 es may be removed, in certain cases, to the 
 circuit, and ultimately to the supreme court. 
 
 ADMISSION (Lat. ad, to; rmttere, to send). 
 
 In Evidence. Concession or volun- 
 tary acknowledgment made by a party of 
 the existence or truth of certain facts. 
 
 As distinguished from a confession, the 
 term is applied to civil transactions, and 
 to matters of fact in criminal cases where 
 there is no criminal intent. See "Confes- 
 sion." 
 
 As distinguished from consent, an admis- 
 sion may be said to be evidence furnished 
 by the party's own act of his consent at a 
 previous period. 
 
 Direct, called also "express," admissions, 
 are those which are made in direct terms. 
 
 Implied admissions are those which re- 
 sult from some act or failure to act of the 
 party. 
 
 Incidental admissions are those made in 
 some other connection, or involved in the 
 admission of some other fact. See 1 
 Greenl. Ev. § 194. 
 
 In Pleading. The acknowledgment 
 
 or recognition by one party of the truth of 
 some matter alleged by the opposite party. 
 
ADMISSIONALIS 
 
 (31) 
 
 ADSCRIPTITI 
 
 Partial admissions are those which are 
 delivered in terms of uncertainty, mixed up 
 with explanatory or qualifying circum- 
 stances. 
 
 Plenary admissions are those which ad- 
 mit the truth of the matter without quali- 
 fication, whether it be asserted as from in- 
 formation and belief, or as from actual 
 knowledge. 
 
 At Law. In all pleading in confes- 
 sion, an admission of the truth of the oppo- 
 site party's pleading is made. Express ad- 
 missions may be made of matters of fact 
 only. 
 
 Of Attorneys. The act by which attor- 
 neys and counsellors become recognized as 
 officers of the court, and are allowed to 
 practice. The qualifications required vary 
 widely in the different states. 
 
 In Corporations or Companies. The 
 
 act of a corporation or company by which 
 an individual acquires the rights of a mem- 
 ber of such corporation or company. 
 
 In trading and joint-stock corporations, no 
 vote of admission is requisite; for any per- 
 son who owns stock therein, either by orig- 
 inal subscription or by conveyance, is in 
 general entitled ~to, and cannot be refused, 
 the rights and privileges of a member. 3 
 Mass. 364; Doug. 524; 1 Man. & R. 529. 
 
 ADIVIISSIONALIS. In European law. An 
 usher. Spelman. 
 
 ADiVllTTANCE. In English law. The act 
 of giving possession of a copyhold estate. It 
 is of three kinds, namely, upon a voluntary 
 grant by the lord, upon a surrender by the 
 former tenant, and upon descent. 
 
 ADIVIITTENDO IN SOCIUM. In English 
 law. A writ associating certain persons to 
 justices of assize. 
 
 ADMONITIO TRINA. The third warning, 
 given to one standing mute, before the in- 
 fliction of the peine forte et dure. 4 Bl. 
 Comm. 325. 
 
 ADMONITION. A reprimand from a 
 judge to a person accused, on being dis- 
 charged, warning him of the consequences 
 of his conduct, and intimating to him that, 
 should he be guilty of the same fault for 
 which he has been admonished, he will be 
 punished with greater severity. Merlin, 
 Hepert. The admonition was authorized as 
 a species of punishment for slight misde- 
 meanors. 
 
 A caution by the court to jurors as to the 
 rules for their conduct while hearing or 
 deliberating on a case. 
 
 ADMORTIZATION. The reduction of prop- 
 erty of lands or tenements to mortmain, in 
 the feudal customs. 
 
 ADNICHILED. Annulled; cancelled; made 
 void. 
 
 ADNIHILARE (Law Lat. from ad, to, and 
 ■nihil, nothing). In old English law. To re- 
 duce to nothing; to treat as nothing; to 
 
 hold as or for nought; to avoid. Pleta, lib. 
 2, c. 63, § 1. 
 
 AdiHchile is used in St. 28 Hen. VIII. o. 7, 
 and adnicMlate by old English writers. 
 Rich. Diet. 
 
 ADNOTATIO (Lat. notare). A subscrip- 
 tion or signing. 
 
 In the civil law, casual homicide was ex- 
 cused by the indulgence of the emperor, 
 signed with his own sign manual, called ad- 
 notatlo. Code, 9. 16. 5; 4 Sharswood, Bl. 
 Comm. 187. 
 
 ADOLESCENCE. That age which fol- 
 lows puberty, and precedes the age of ma- 
 jority. It commences for males at fourteen, 
 and for females at twelve years completed, 
 and continues till twenty-one years com- 
 plete. 
 
 ADOLESCENTIA (Lat. from adolescere, 
 to grow). In the civil law. Adolescence 
 (g. V.) 
 
 ADOPTION. The act by which a person 
 takes the child of another into his family, 
 and treats him as his own. 
 
 A juridical act creating between two per- 
 sons certain relations, purely civil, of pater- 
 nity and filiation. 6 Demolombe Code Nap. 
 § 1. 
 
 ADOPTIVUS (Lat. from adoptare, to 
 adopt). In the civil law. Adoptive. Ap- 
 plied both to the parent adopting, and the 
 child adopted. Inst. 2. 13. 4; Id. 3. 1. 10-14. 
 
 AD-PROMISSOR (Lat. promittere). One 
 who binds himself for another; a surety; a 
 peculiar species of fidejussor. Calv. Lex. 
 
 The term is used in the same sense in 
 the Scotch law. The cautionary engage- 
 ment was undertaken by a separate act; 
 hence, one entering into it was called ad- 
 promissor (promissor in addition to). Ersk. 
 Inst. 3. 3. 1. 
 
 ADQUIETO. Payment. Blount. 
 
 ADRECTARE. To do right, satisfy, or 
 make amends. 
 
 ADRHAMIRE (Law Lat. from old Fr. ar- 
 rimir). In old European law. To under- 
 take, declare, or promise solemnly; to 
 pledge; to pledge one's self to make oath. 
 Also written arhamire, arramire, and arra- 
 mare. Spelman. 
 
 ADROGATION. In civil law. The adop- 
 tion of one who was impubes, — that is, if 
 a male, under fourteen years of age; if a 
 female, under twelve. Dig. 1. 7. 17. 1. 
 
 ADSCEN DENTS (Lat.) In the civil law. 
 Ascendants. Dig. 23. 2. 68; Code, 5. 5. 6. 
 
 ADSCRIPTI (Lat. scriiere). Joined to by 
 writing; ascribed; set apart; assigned to; 
 annexed to. 
 
 ADSCRIPTITI (Lat.) A species of slaves. 
 
 Those persons who were enrolled and lia- 
 ble to be drafted as legionary soldiers. 
 Calv. Lex. 
 
ADSCRIPTITII GLEBAE 
 
 (32) 
 
 ADVANCES 
 
 ADSCRIPTITII (or ADSCRIPTITI) GLE- 
 
 bae (Lat.) In old Englisli law. Annexed, 
 bound, or adstrlcted to the soil; employed in 
 cultivating it, and in performing other rural 
 services for the owner. Harg. Co. Litt 
 note 1 to lib. 2. "Ascriptitious to the 
 soil." Bl. Law Tr. 96-98. A term applied 
 to tenants by villein socage, and commonly 
 supposed to denote a condition approach- 
 ing nearer to that of slaves than of freemen. 
 Harg Co. Litt ubi supra. But, according 
 to Bracton, they were so called becailse, so 
 long as they did the appointed services, they 
 had the privilege not to be removed from 
 the soil (gaudent privilegio quod a gleha 
 amoveri non poterunt), and were in fact 
 freemen. Bracton, fols. 7a, 209a; Id. fol. 
 4b. See Fleta, lib. 1, c. 8, § 3. The term 
 is also used in old Scotch law. Skene de 
 Verb. Sign. voc. "Bondagium." 
 
 ADSCRIPTITIUS, ADSCRIPTICIUS, or 
 adscriptitlus (Lat. from adscriptiis). In the 
 civil law. United, annexed, or bound to. 
 AdscriptUil were a class of cultivators who 
 were annexed to the land, without the pow- 
 er of leaving it, and whose earnings or 
 peoulium belonged to their owners or mas- 
 ters. Code, 11. 47. 19. There was very lit- 
 tle difference between them and slaves. 
 See Code, 11. 47. 21. And see further, as to 
 their condition. Id. 23. 24; Nov. Inst. 54; 
 Const. Imp. Just. 2. 
 
 ADSESSORES (Lat. sedcre). Side jud- 
 ges. Those who were joined to the reg- 
 ular magistrates as assistants or advisors; 
 those who were appointed to supply the 
 place of the regular magistrates in certain 
 cases. Calv. Lex. 
 
 ADSTIPULATOR. In Roman law. An 
 accessory party to a promise, who received 
 the same promise as his principal did, and 
 could equally receive and exact payment; 
 or he only stipulated for a part of that for 
 which the principal stipulated, and then his 
 rights were coextensive with the amount of 
 his own stipulation. -Sandars, Just. Inst. 
 (5th Ed.) 348. 
 
 ADULT. 
 
 In Civil Law. A male infant who has 
 
 attained the age of fourteen; a female in- 
 fant who has attained the age of twelve. 
 To be distinguished from full age in the' 
 civil law, which was twenty-five years. See 
 "Age." Domat, Civ. Law, tit. 2, § 2, note 8. 
 
 In Common Law. One of the full age 
 
 of twenty-one. Swanst. Ch. 553. 
 
 ADULTER (Lat.) One who corrupts; one 
 who corrupts another man's wife. 
 
 Adulter soUdorum, a corrupter of metals; 
 a counterfeiter. Calv. Lex. 
 
 ADULTERA (Lat.) A woman who com- 
 mits adultery. Calv. Lex. 
 
 ADULTERATION. The act of corrupt- 
 ing or debasing; the act of mixing some- 
 thing impure or spurious with something 
 pure or genuine, or an inferior article with 
 a superior one of the same kind. 
 
 ADULTERATOR (Lat.) A corrupter; a 
 counterfeiter. 
 Adulterator monetae, a forger. Du Cange. 
 
 ADULTERINE. The issue of adulterous 
 intercourse. 
 
 ADULTERINE GUILDS. Companies of 
 traders acting as corporations, without char- 
 ters, and paying a fine annually for the priv- 
 ilege of exercising their usurped privileges. 
 Smith, Wealth of Nations, bk. 1, c. 10; 
 Wharton. 
 
 ADULTERIUM. A fine imposed for the 
 commission of adultery. Barr. Obs. St. 62, 
 note. 
 
 ADULTERY. The voluntary sexual inter- 
 course of a married person with a person 
 other than the offender's husband or wife. 
 Bish. Mar. & Div. § 415; 6 Mete. (Mass.) 
 243; 36 Me. 261; 11 Ga. 56; 2 Strobh. Eq. 
 (S. C.) 174. 
 
 The voluntary sexual intercourse ,of a 
 married woman with a man other than her 
 husband. 
 
 Unlawful voluntary sexual intercourse be- 
 tween two persons, one of whom at least is 
 married, is the essence of the crime in all 
 cases. In general, it is sufficient if either 
 party is married; and the crime of the mar- 
 ried party will be adultery, while that of 
 the unmarried party will be fornication. 1 
 Yeates (Pa.) 6; 2 Dall. (Pa.) 124; 5 Jones 
 (N. C.) 416; 27 Ala. (N. S.) 23; 35 Me. 205; 
 7 Urat. (Va.) 591; 6 Grat. (Va.) 673; 1 
 Pin. (Wis.) 91. In some of the states, if 
 the woman be married, though the man be 
 unmarried, he is guilty of adultery. 21 
 Pick. (Mass.) 509; 2 Blackf. (Ind.) 318; 18 
 Ga. 264; 9 N. H. 515. And see 1 Harr. (N. 
 J.) 380; 29 Ala. 313. In other states, it 
 seems that to constitute the offense of 
 adultery it is necessary that the woman 
 should be married; that if the man only is' 
 married, it is not the crime of adultery at 
 common law or under the statute, so that 
 an Indictment for adultery could be sus- 
 tained against either party; though, within 
 the meaning of the law respecting divorces, 
 it is adultery in the man. 56 Ind. 263; 9 N. 
 H. 55; 4 Minn. 335; Tappan (Ohio) 90. 
 
 ADVANCEIVIENT. A gift by anticipation 
 from a parent to a child of the whole or a 
 part of what it is supposed such child would 
 inherit on the death of the parent. 6 Watts 
 (Pa.) 87; 4 Serg. & R. (Pa.) 333; 17 Mass. 
 358; 11 Johns. (N. Y.) 91; Wright (Ohio) 
 339. 
 
 An advancement can be made only by a 
 parent to a child (5 Miss. 356; 2 Jones [N. 
 C] 137) ; or in some states, by statute, to a 
 grandchild (4 Kent, Comm. 419; 4 Watts 
 [Pa.] 82; 4 Ves. 437). 
 
 The intention of the parent is to decide 
 whether a gift is intended as an advance- 
 ment. 23 Pa. St. 85; 11 Johns. (N. Y.) 91; 
 2 McCord (S. C.) 103. See 26 Vt. 665. 
 
 ADVANCES. Payments made on account 
 of moneys to become due. It is applied to a 
 
ADVANTAGIUM 
 
 (33) 
 
 ADVISORY 
 
 number of specific transactions, as pay- 
 ments made to the owner of goods by a 
 factor or agent, wlio has or is to have pos- 
 session of the goods for the purpose of sell- 
 ing them, payments by a guardian to the 
 ward out of the latter's funds, etc. 
 
 ADVANTAGIUM. In old pleading. An 
 advantage. Co. Bntr. 484; Towns. PI. 50. 
 
 ADVENA (Lat. venire). In Roman law. 
 One of foreign birth, who has left his own 
 country and settled elsewhere, and who has 
 not acquired citizenship in his new locality; 
 often called alianus. Du Cange. 
 
 ADVENT. The period commencing on 
 Sunday falling on St. Andrew's day (30th 
 of November), or the first Sunaay after, and 
 continuing till Christmas. 
 
 It took its name from the fact that it im- 
 mediately preceded the day set apart to 
 commemorate the birth or coming (advent) 
 of Christ. Cowell; Termes de la Ley. 
 
 Formerly, during this period, "all conten- 
 tions at law were omitted." But, by statute 
 13 Bdw. I. (Westminster II.) c. 48, certain 
 actions were allowed. 
 
 ADVENTITIOUS (Lat. adventitius) . That 
 which comes incidentally, or out of the reg- 
 ular course. 
 
 Adventitia iona are goods which fall to a 
 man otherwise than by inheritance. 
 
 Adventitia dos is a dowry or portion given 
 by some friend other than the parent. 
 
 ADVENTURA (Lat. an adventure). Flot- 
 sam, jetsam, and ligan are styled advcnturae 
 maris, adventures of the sea. Hale de Jur. 
 Mar. pt. 1, c. 7. 
 
 ADVENTURE. Sending goods abroad un- 
 der charge of a supercargo or other agent, 
 which are to be disposed of to the best ad- 
 vantage for the benefit of the owners. 
 
 The goods themselves so sent. 
 
 In Marine Insurance. The risk or peril 
 
 insured against. See 14 Fed. 233. 
 
 ADVERSE ENJOYMENT. The posses- 
 sion or exercise of an easement or privilege 
 under a claim of right against the owner of 
 the land out of which the easement is de- 
 rived. 2 Washb. Real Prop. 42. 
 
 ADVERSE POSSESSION. The enjoy- 
 ment of land, or such estate as lies in grant, 
 under such circumstances as indicate that 
 such enjoyment has been commenced and 
 continued under an assertion or color of 
 right on the part of the possessor. 3 East, 
 394; 1 Pick. (Mass.) 466; 2 Serg. & R. (Pa.) 
 527; 3 Pa. St. 132; 8 Conn. 440; 2 Aik. (V.t.) 
 364; 9 Johns. (N. Y.) 174; 18 Johns. (N. Y.) 
 40, 355; 5 Pet. (U. S.) 402; 4 Bibb (Ky.) 550. 
 
 There must be actual possession. 45 111. 
 388; 36 Minn. 525; 78 N. C. 354; 1 Grat. (Va.) 
 211. But what constitutes such possession 
 varies with the nature and situation of the 
 premises. 11 Grat. (Va.) 420; 8 Barb. (N. 
 Y.) 253. Cultivation, improvement, or in- 
 closure always constitutes occupation, and, 
 if the occupant holds under a paper title, 
 
 a use for supply of fuel, etc., or a use as 
 subservient to land actually occupied, will 
 constitute an occupation. Code Civ. Proc. 
 N. Y. §§ 370, 371. 
 
 The possession must be open and no- 
 torious (42 Mass. 95; 16 Wis. 594), distinct 
 and exclusive (150 U. S. 597; 6 Md. 201), 
 hostile (15 111.271; 13 Ohio St. 42; 89 Wis. 
 551), and continuous in the occupant or 
 those claiming under him for the period 
 prescribed by statute (47 V. S. 550; 5 Md. 
 256; 36 W. Va. 445). 
 
 ADVERSE WITNESS. A witness who 
 manifests a bias against the party calling 
 him. A party may be allowed to propound 
 leading questions to such a witness. 
 
 ADVERSUS (Lat.) Against. 
 
 ADVERTISEMENT (Lat. advertere, to turn 
 to). 
 
 Information or knowledge communicated 
 to individuals or the public in a manner de- 
 signed to attract general attention. 
 
 A notice published either in handbills or 
 in a newspaper. A posting of notice on a 
 signboard is an advertisement within a 
 statute making the advertising of lottery 
 tickets penal. 5 Pick. (Mass.) 42. And see 
 8 Watts & S. (Pa.) 373; 16 Pa. St. 68; 38 
 111. App. 400. 
 
 ADVERTISEMENTS OF QUEEN ELIZA- 
 
 beth. Certain articles or ordinances drawn 
 up by Archbishop Parker and some of the 
 bishops in 1564, at the request of Queen 
 Elizabeth, the object of which was to en- 
 force decency and uniformity in the ritual 
 of the church. The queen subsequently re- 
 fused to give her official sanction to these 
 advertisements, and left them to be en- 
 forced by the bishops under their general 
 powers. Phil. Ecc. Law, 910; 2 Prob. Div. 
 276; Id. 354. 
 
 ADVICE. Information given by letter by 
 one merchant or banker to another in re- 
 gard to some business transaction which 
 concerns him. 
 
 ADVICE OF COUNSEL. The opinion of 
 an attorney at law on facts stated to him. 
 If given on a full and fair statement of the 
 facts, it relieves the client of any imputa- 
 tion of malice in acting in it, and hence is 
 a defense in all actions to which malice is 
 essential. 
 
 ADVISARE, or ADVISARI (Lat.) To ad- 
 vise; to consider; to be advised; to con- 
 sult. 
 
 Occurring often in the phrase curia ad- 
 risari vult (usually abbreviated Gur. adv. 
 vuU), the court wishes to consider of the 
 matter. 
 
 ADVISEMENT. Consideration; delibera- 
 tion; consultation. 
 
 A D V I SO RV. By way of counsel. The ver- 
 dict on a feigned issue is said to be ad- 
 visory because the chancellor may, in his 
 discretion, disregard it. 
 
ADVOCASSIE 
 
 (34) 
 
 ADVOWSON 
 
 ADVOCASSIE (Law Fr.) The office of 
 an advocate; advocacy. Kelham. 
 
 ADVOCATA. In old English law. A 
 patroness; a woman who had the right of 
 presenting to a church. Liber Ramesiens, 
 § 140, cited in Spelman, voc. "Advocatus." 
 
 ADVOCATE. An assistant; adviser; a 
 pleader of causes. 
 
 Derived from advocare, to summon to 
 one's assistance. Advocatus originally sig- 
 nified an assistant or helper of any kind, 
 even an accomplice in the commission of a 
 crime. Cicero, pro Caeoina, c. 8; Livy, lib. 
 ii. 55; iii. 47; Tertullian de Idolatr. c. 23; 
 Petron. Satyric, c. 25. Secondarily, it was 
 applied' to one called in to assist a party in 
 the conduct of a suit. Inst. 1. 11; Dig. 50. 
 13. Hence, a pleader, which is its present 
 signification. 
 
 In Civil and Ecclesiastical Law. An 
 
 officer of the court, learned in the law, who 
 is engaged by a suitor to maintain or de- 
 fend his cause. Advocates, like counsellors, 
 have the exclusive privilege of addressing 
 the court either orally or in written plead- 
 ings; and, in general, in regard to duties, 
 liabilities, and privileges, the same rules 
 apply mutatis mutandis to advocates as to 
 counsellors. See "Counsellor." 
 
 Lord advocate was an officer in Scotland 
 appointed by the ci'own, during pleasure, 
 to take care of the king's interest before the 
 courts of session; judiciary, and exchequer. 
 All actions that concern the king's interest, 
 civil or criminal, must be carried on with 
 concourse of the lord advocate. He also 
 discharges the duties of public prosecutor, 
 either in person or by one of his four depu- 
 ties, who are called advocates depute. In- 
 dictments for crimes must be in his name as 
 accuser. He supervises the proceedings in 
 important criminal cases, and has the right 
 to appear in all such cases. He is, in fact, 
 secretary of state for Scotland, and the prin- 
 cipal duties are connected directly with the 
 administration of the government. 
 
 Inferior courts have a procurator fiscal, 
 who supplies before them the place of the 
 lord advocate in criminal cases. See 2 
 Bankt. Inst. 492. 
 
 College or faculty of advocates was a 
 corporate body in Scotland, consisting of 
 the members of the bar in Edinburgh. A 
 large portion of its members are not active 
 practitioners, however. 2 Bankt. Inst. 486. 
 
 Church or ecclesiastical advocates were 
 pleaders appointed by the church to main- 
 tain its rights. 
 
 In Ecclesiastical Law. A patron of a 
 
 living; one who has the advowson, advoca- 
 tio. Tech. Diet.; Ayliffe, Par. 53; Dane, 
 Abr. c. 31, § 20; Brsk. Inst. 79. 9. 
 
 ADVOCATE, QUEEN'S (or KING'S). See 
 "Queen's Advocate." 
 
 ADVOCATI (Lat.) In Roman law. Pa- 
 trons; pleaders; speakers. 
 
 Anciently, any one who lent his aid to a 
 friend, and who was supposed to be able in 
 
 any way to Infiuence a judge, was called 
 advocatus. 
 
 Gausidicus denoted a speaker or pleader 
 merely; advocatus resembled more nearly a 
 counsellor; or, still more exactly, causidi- 
 cus must be rendered "barrister," and ad- 
 vocatus "attdrney," though the duties of an 
 advocatus were much more extended than 
 those of a modern attorney. Du Cange; 
 Calv. Lex. 
 
 A witness. 
 
 ADVOCATI ECCLESIAE. Advocates of 
 the church. 
 
 These were of two sorts; those retained 
 as pleaders to argue the cases of the church 
 and attend to its law matters, and advo- 
 cates, or patrons of the advowson. Cowell; 
 Spelman. 
 
 ADVOCATI FISCI. In civil law. Those 
 chosen by the emperor to argue his cause 
 whenever a (Juestion arose affecting his 
 revenues. Calv. Lex.; 3 Sharswood, Bl. 
 
 Comm. 27. 
 
 ADVOCATIA. In civil law. The function, 
 duty, or privilege of an advocate. Du Cange. 
 
 ADVOCATION. In Scotch law. The re- 
 moval of a cause from an inferior to a su- 
 perior court by virtue of a writ or war- 
 rant issuing from the superior court. See 
 "Bill of Advocation;" "Letter of Advoca- 
 tion." 
 
 ADVOCATOR. 
 
 In Old Practice. One who called on 
 
 or vouched another to warrant a title; a 
 voucher. Advocatus, the person called on, 
 or vouched; a vouchee. Spelman; Towns. 
 PI. 45. 
 
 In Scotch Practice. An appellant. 1 
 
 Brown, 67. 
 
 ADVOCATUS. A pleader; a narrator. 
 Bracton, fols.. 372b, 412a. 
 
 ADVOCATUS DIABOLI. The devil's ad- 
 vocate; a person designated to present to 
 the college of cardinals matter in opposi- 
 tion to a canonization. 
 
 ADVOCATUS EST, AD QUEM PERTI- 
 nent jus advocationis alicujus ecclesiae, ut 
 ad ecclesiam, nomine proprio, non alieno, 
 possit praesentare. A patron is he to whom 
 appertains the right of presentation to a 
 church, in such a manner that he may pre- 
 sent to such a church in his own name, and 
 not in the name of another. Co. Lltt. 119. 
 
 ADVOWEE. In English ecclesiastical law. 
 A patron; one who has a right to present 
 to a benefice. Cowell; Brltt. c. 95. 
 
 ADVOWEE PARAMOUNT. The sover- 
 eign, who was the highest advowee. 
 
 ADVOWSON. A right of presentation to 
 a church or benefice. 
 
 He who possesses this right is called the 
 "patron" or "advocate." When there is no 
 patron, or he neglects to exercise his right 
 within six months, it is called a "lapse," 
 
ADVOWTKY 
 
 (35) 
 
 AESTIMATIO CAPITIS 
 
 and a title is given to the ordinary to col- 
 late to a church. When a presentation is 
 made by one who has no right, it is called 
 a "usurpation." 
 
 Advowsons are of different kinds: 
 
 Advowson Appendant. When it de- 
 pends upon a manor, etc. 
 
 Advowson in Gross. When it be- 
 longs to a person and not to a manor. 
 
 Advowson Presentative. Where the 
 
 patron presents to the bishop. 
 
 Advowson Donative. Where the king 
 
 or patron puts the clerk into possession 
 without presentation. 
 
 Advowson Collative. Where the 
 
 bishop himself is patron. 
 
 Advowson of the Moiety of the Church. 
 
 Where there are two several patrons' and 
 two incumbents in the same cjiurch. 
 
 A Moiety of Advowson. Where two 
 
 must join the presentation of one incum- 
 bent. 
 
 Advowson of Religious Houses. That 
 
 which is vested in the person who founded 
 such a house. 
 
 See 2 Bl. Comm. 21; Mireh. Advow. "Ad- 
 vowson;" Comyn, Dig. "Advowson, Quare 
 Impedit;" Bae. Abr. "Simony;" Burns, Bcc. 
 Law. 
 
 ADVOWTRY, or ADVOUTRY. In Eng- 
 lish law. The crime committed by a woman 
 who, having committed adultery, continued 
 to live with the adulterer. Cowell; Termes 
 de la Ley. 
 
 AEDES (Lat.) In civil law. A dwelling; 
 a house; a temple. 
 
 In the country everything upon the sur- 
 face of the soil passed under the term 
 aedes. Du Cange; Calv. Lex. 
 
 AEDIFICARE (Lat. from aedes, a house, 
 and facere, to build). In civil and old Eng- 
 lish law. To make or build a house; to erect 
 a building. Dig. 45. 1. 75. 7. Sometimes ap- 
 plied to other objects, as a ship. Dig. 49. 14. 
 
 46. 2. 
 
 AEDIFICARE IN TUO PROPRIO SOLO 
 non licet quod alteri noceat. It is not 
 lawful to build upon one's own land what 
 may be injurious to another. Coke, 3d Inst. 
 201; Broom, Leg. Max. (3d London Ed.) 
 331. 
 
 AEDIFICATUM SOLO, SOLO CEDIT. 
 
 That which is built upon the land goes with 
 the land. Co. Litt. 4a; Broom, Leg. Max. 
 (3d London Ed.) 349, 355; Inst. 2. 1. 29; Dig. 
 
 47. 3. 1. 
 
 AEDIFICIA SOLO CEDUNT. Bijiildings 
 pass by a grant of the land. Pleta, lib. 3, 
 c. 2, § 12. 
 
 AEDILE (Lat.) In Roman law. An of- 
 ficer Vho attended to the repairs of the 
 temples and other public buildings; the re- 
 pairs and cleanliness of the streets; the 
 care of the weights and measures; the pro- 
 viding for funerals and games; and regulat- 
 ing the prices of provisions. Ainsworth; 
 Smith; Du Cange. 
 
 AEDILITIUM EDICTUM (Lat.) In Ro- 
 man law. That provision by which the buy- 
 er of a diseased or imperfect slave, horse, 
 or other animal was relieved at the expense 
 of the vendor who had sold him as sound, 
 knowing him to be imperfect. Calv. Lex. 
 
 AEFESN. In old English law. The re- 
 muneration to the proprietor of a domain 
 tor the privilege of feeding swine under the 
 oaks and beeches of his woods. 
 
 AEGROTO (Lat. ablative of aebrotus, sick). 
 Being sick or Indisposed. A term used in 
 some of the older reports. "Holt, aegroto." 
 11 Mod. 179. 
 
 AEL (Law Fr.) A grandfather. Britt. c. 
 89, fol. 221. Also spelled aieul and ayle. 
 
 AEQUIOR EST DISPOSITIO LEGIS 
 quam hominis. The disposition of the law 
 is more Impartial than that of man. 8 Coke, 
 152; Bracton, fol. 3a. 
 
 AEQUITAS. Equity. 
 
 AEQUITAS AGIT IN PERSONAM. Equi- 
 ty acts upon the person. 4 Bouv. Inst, note 
 3733. 
 
 AEQUITAS SEQUITUR LEGEM. Equity 
 follows the law. 1 Story, Eq. Jur. § 64; 3 
 Wooddeson, Lect. 479, 482; Branch, Max. 
 8; 2 Sharswood, Bl. Comm. 330; Gilb. 136; 
 2 Eden, 316; 10 Mod. 3; 15 How. (TJ. S.) 299. 
 
 AEQUUM ET BONUM, EST LEX LEG- 
 
 um. What is just and right is the law of 
 laws. Hob. 224. 
 
 AERARIUM (Lat from aes, money). In 
 the Roman law. The treasury (fiscus). 
 Calv. Lex. 
 
 AES (Lat.) In the Roman law. Money 
 (literally, brass); metallic money In gen- 
 eral, including gold. Dig. 9. 2. 2. pr.; Id. 
 9. 2. 27. 5; Id. 50. 16. 159. 
 
 AES ALIENUM (Lat.) In civil law. A 
 debt. 
 
 Literally translated, the property or mon- 
 ey of another; the civil law considering 
 borrowed money as the property of another, 
 as distinguished from aes suum, one's own. 
 
 A ESN EC I A. In old English law. Es- 
 necy; the right or privilege of the eldest 
 born. Spelman; Glanv. lib. 7, c. 3; Pleta, 
 lib. 2, c. 66, §§ 5, 6. The privilege allowed 
 the eldest daughter of drawing first in the 
 partition of lands by lot. Called, also, pars 
 enecia, enetia, or eneia. Bracton, fol. 75. 
 
 AESTIMATIO CAPITIS (Lat. the value of 
 a head). The price to be paid for taking 
 the life of a human being. 
 
 King Athelstan declared, in an assembly 
 held at Exeter, that mulcts were to be paid 
 per aestimatio capitis. For a king's head 
 (or life), 30,000 thuringae; for an arch- 
 bishop's or prince's, 15,000; for a priest'e 
 or thane's, 2,000. Leg. Hen. I. 
 
AESTIMATIO, E^TC. 
 
 (36) 
 
 AFFINES 
 
 AESTIMATIO PRAETERITI DELICTI 
 ex postremo facto nunquam crescit. The 
 estimation of a crime committed never in 
 creases from a subsequent fact. Bac. Max. 
 reg. 8; Dig. 50. 17. 139; Broom, Leg. Max. 
 (3d London Ed.) 17. 
 
 AETAS. In the Roman law. Age. See 
 "Age." 
 
 AETATE PROBANDA. See "De Aetate 
 Probande." 
 
 AFFECTIO TUA NOMEN IMPONIT 
 operi tuo. Your motive gives a name to your 
 act. Bracton, fols. 2b, 101b. 
 
 AFFECTION. The making over, pawn- 
 ing, or mortgaging a thing to assure tlie 
 payment of a sum of money, or the dis- 
 charge of some other duty or service. Tech. 
 Diet. 
 
 AFFECTUS (Lat.) Movement of the 
 mind; disposition; intention. 
 
 One of the causes for a challenge of a 
 juror is propter affectum, on account of a 
 suspicion of bias or favor. 3 Bl. Comm. 
 363; Co. Litt, 156. 
 
 AFFECTUS PUNITUR LICET NON SE- 
 qulter effectus. The intention is punished, 
 although the consequence do not , follow. 
 9 Coke, 56. 
 
 AFFEERIE. In English law. To fix in 
 amount; to liquidate. 
 
 To affeer an amercement is to establish 
 the amount which one amerced in a court- 
 leet should pay. 
 
 To affeer an account is to confirm it on 
 oath in the exchequer. 
 
 AFFEERORS. In old English law. 
 Those appointed by a court-leet to mulct 
 those punishable, not by a fixed fine, but 
 by an arbitrary sum, called "amercement." 
 Termes de la Ley. 
 
 AFFIANCE (Lat. afftdare, ad, fldem, dare, 
 to pledge to). 
 
 A plighting of troth between man and 
 woman. Litt. § 39. 
 
 An agreement by which a man and wo- 
 man promise each other that they will 
 marry together. Both, du Mar. note 24. 
 
 Marriage. Co. Litt. 34a. See Dig. 23. 1. 
 1; Code, 5. 1. 4. 
 
 AFFIANT. One who makes an affida- 
 vit (g. V.) 
 
 AFFIDARE. 
 
 In Canon Law. To betroth; to plight 
 
 one's faith generally. Bracton, fol. 29a; Co. 
 Litt. 34a. 
 
 In Feudal Law. To swear fealty, as 
 
 a tenant to his lord. Spelman. 
 
 In Old Practice. To make oath. 
 
 AFFIDATIO. In canon and feudal law. 
 A plighting or pledging of faith; a giving 
 or swearing of fealty. Spelman. ^ 
 
 AFFIDATIO DOMINORUM. An oath 
 taken by the lords in parliament. 
 
 AFFIDATUS. On€ who is not a vassal, 
 but who, for the sake of protection, has 
 connected himself with one more powerful. 
 Spelman; 2 Sharswood, Bl. Comm. 46. 
 
 AFFIDAVIT (Lat.) In practice. A state- 
 ment or declaration reduced to writing, and 
 sworn or affirmed to before some officer 
 who has authority to administer an oath. 
 80 111. 307; 59 Mo. App. 188; 1 Mich. N. P. 
 189. 
 
 It differs from a deposition in this, that 
 in the latter the opposite party has an op- 
 portunity to cross-examine the witness, 
 whereas an affidavit is always taken ex 
 parte. 3 Blatchf. (U. S.) 456; 4 Kan. 124. 
 
 It is not synonymous with "oath" (76 Ky. 
 417), but includes the oath (2 Chand. 
 [Wis.] 29-32, note). 
 
 It is not a pleading. 7 Kan. 359. 
 
 AFFIDAVIT OF DEFENSE. 
 
 In Practice. A statement made in 
 
 proper form that the defendant has a good 
 ground of defense to the plaintiff's action 
 upon the merits. The statements requjred 
 in such an affidavit vary considerably in the 
 different states where they are required. 
 In some, it must state a ground of defense; 
 in others, a simple statement of belief that 
 it exists is sufficient. Called, also, an "afS- 
 davit of merits." 
 
 In Pennsylvania Practice. A state- 
 ment of the facts constituting the defense 
 required to accompany a general plea. 
 Thus, with a plea of nil debit must be filed 
 an affidavit of defense showing the facts 
 by reason of which defendant claims not to 
 be indebted. 
 
 AFFIDAVIT TO HOLD TO BAIL. In prac- 
 tice. An affidavit which is required in 
 many cases before a person can be ar- 
 rested in a civil action. 
 
 AFFILARE. To put on record; to file. 
 8 Coke, 319; 2 Maule & S. 202. 
 
 AFFILE. To put on file. Now written 
 "file." 
 
 AFFILIATION. The fixing upon one the 
 paternity of a bastard. 
 
 In French Law. A species of adop- 
 tion which exists by custom In some parts 
 of Prance. 
 
 The person affiliated succeeded equally 
 with other heirs to the property acquired 
 by the deceased to whom he had been af- 
 filiated, but not to that which he inherited. 
 
 In Ecclesiastical Law. A condition 
 
 which prevented the superior from remov- 
 ing the person affiliated to another con- 
 vent. Guyot, Rep. Univ. 
 
 AFFINAGE. Refining metal; hence "fine" 
 and "refined." Blount. 
 
 AFFINES (Lat. finis). In civil law. . 
 Connections by marriage, whether of the 
 persons or their relatives. Calv. Lex. 
 
 Prom this word we have affinity, denot- 
 ing relationship by marriage. 1 Bl. Comm. 
 434. 
 
AFFINIS MEI, ETC. 
 
 (37) 
 
 AFFORER 
 
 The singular, affinis, is used In a variety 
 of related significations, — a boundary (Du 
 Cange) ; a partaker or sharer, afflnis culpae 
 (an aider or one who has knowledge of a 
 crime) (Calv. Lex.) 
 
 AFFINIS MEI AFFINIS NON EST MIHI 
 affinis. A connection (i. e., by marriage) of 
 my connection is not a connection of mine. 
 Shelf. Mar. & Div. 174. 
 
 AFFINITAS. In civil law. Affinity. 
 
 AFFINITAS AFFINITATIS. That con- 
 nection between parties arising from mar- 
 riage which is neither consanguinity nor 
 affinity. 
 
 This term intends the connection between 
 the kinsmen of the two persons married, 
 as, for example, the husband's brother and 
 the wife's sister. Ersk. Inst. 1. 6. 8. 
 
 AFFINITY. The connection existing, in 
 consequence of marriage, between each of 
 the married persons and the kindred of the 
 other. The relation contracted on mar- 
 riage between a husband and his wife's kin- 
 dred, and between the wife and her hus- 
 band's kindred, as distinguished from con- 
 sanguinity or relationship by blood. 1 
 Denio (N. Y.) 25. 
 
 The relations of the wife, her brothers, 
 her sisters, her uncles, are allied to the 
 husband by affinity; and his brothers, sis- 
 ters, etc., are allied in the same way to the 
 wife. 1 Denio (N. Y.) 186. But the brother 
 and the sister of the wife are not allied by 
 the ties of affinity. 2 Barb. Ch. (N. Y.) 331. 
 
 AFFIRM (Lat. afflrmare, to make firm; 
 to establish). 
 
 To ratify or confirm a former law or judg- 
 ment. Cowell. 
 
 Especially used of confirmations of the 
 judgments of an inferior by an appellate 
 tribunal. 
 
 To ratify or confirm a voidable act of the 
 party. 
 
 To make a solemn religious asseveration 
 in the nature of an oath. See "Affirmation." 
 
 AFFIRMANCE. The confirmation of a 
 voidable act by the party acting, who is to 
 be bound thereby. 
 
 The term is in accuracy to be distin- 
 guished from "ratification," which is a recog- 
 nition of the validity or binding force, as 
 against the party ratifying, of some act ^per- 
 formed by another person, and from "con- 
 firmation," which would seem to apply more 
 properly to cases where a doubtful author- 
 ity has been exercised by another in behalf 
 of the person ratifying; but these distinc- 
 tions are not generally observed with much 
 care. 1 Pars. Cont. 243. 
 
 Express affirmance takes place where the 
 party declares his determination of fulfilling 
 the contract. Dud. (Ga.) 203. 
 
 Implied affirmance arises from the acts of 
 the party without any express declaration. 
 15 Mass. 220. See 10 N. H. 194; 11 Serg. & 
 R. (Pa.) 305; 1 Pars. Cont. 243; 1 Shars- 
 wood, Bl. Comm. 466, note 10. 
 
 In Appellate Practice. The approval 
 
 by an appellate court of the judgment or 
 order under review. 
 
 AFFIRMANCE-DAY-GENERAL. In the 
 English court of exchequer. A day ap- 
 pointed by the judges of the common pleas, 
 and barons of the exchequer, to be held a 
 few days after the beginning of every term 
 for the general affirmance or reversal of 
 judgments. 2 Tidd, Prac. 1091. 
 
 AFFIRMANT. In practice. One who 
 makes affirmation instead of making oath 
 that the evidence which he is about to give 
 shall be the truth, as if he had been sworn. 
 
 AFFIRMANTI, NON NEGANTI, INCUM- 
 bit probatio. The proof lies upon him who 
 affirms, not on him who denies. See Phil. 
 Ev. 493. 
 
 AFFIRMANTIS EST PROBATIO. He 
 
 who affirms must prove. 9 Cush. (Mass.) 
 535. 
 
 AFFIRMATION. In practice. A solemn 
 religious asseveration in the nature of an 
 oath. 1 Greenl. Ev. § 371. 
 
 AFFIRMATIVE. That which establishes; 
 that which asserts a thing to be true. 
 
 AFFIRMATIVE PREGNANT. In plead- 
 ing. An affirmative allegation implying 
 some negative in favor of the adverse party. 
 For example, if to an action of assumpsit, 
 which is barred by the act of limitations in 
 six years, the defendant pleads that he did 
 not undertake, etc., within ten years, a rep- 
 lication that he did undertake, etc., within 
 ten years would be an affirmative pregnant, 
 since it would impliedly admit that the de- 
 fendant had not promised within six years. 
 Such a plea should be demurred to. Gould, 
 PI. c. 6, §§ 29, 37; Steph. PL 381; Lawes, 
 Civ. PI. 113; Bac. Abr. "Pleas" (note 6.) 
 See "Negative Pregnant." 
 
 AFFIRMATIVE STATUTE. See "Stat- 
 ute." 
 
 AFFIRMATIVE WARRANTY. In insur- 
 ance law. A warranty as to existing facts, 
 as distinguished from promissory warran- 
 ties relating to future conduct. 
 
 AFFIXUS. Affixed. 
 
 AFFORATUS. Appraised, assessed, or 
 valued. Blount. 
 
 A F FORCE. To increase or strengthen. 
 
 AFFORCE THE ASSIZE. To compel 
 unanimity among the jurors who disagree. 
 
 It was done either by confining them with- 
 out meat and drink, or, more anciently, by 
 adding other jurors to the panel to a lim- 
 ited extent, securing the concurrence of 
 twelve in a verdict. See Bracton, fols. 185b, 
 292a; Fleta, bk. 4, c. 9, § 2. 
 
 The practice is now discontinued. 
 
 AFFORER, or AFFORARE. To estimate, 
 assess, or tax. Kelham; Blount. 
 
AFFOREST 
 
 (38) 
 
 AGE PRAYER 
 
 AFFOREST. To convert land into a 
 "forest," in the legal sense of the word. 
 
 AFFRANCHIR (Law Fr.) To set free. 
 Kelham. 
 
 AFFRANCHISE. To make free. 
 
 AFFRAY. In eriminal law. The fighting 
 of two or more persons in some public place, 
 to the terror of the people. 53 Ala. 640; 15 
 Ark. 204; 57 Mo. App. 502. 
 
 It differs from a riot is not being premed- 
 itated; for if any persons meet together 
 upon any lawful or innocent occasion, and 
 happen on a sudden to engage in fighting, 
 they are not guilty of a riot, but an affray 
 only; and in that case none are guilty ex- 
 cept those actually engaged in it. Hawk. 
 P. C. bk. 1, c. 65, § 3; 4 Bl. Comm. 146; 1 
 Russ. Crimes, 271. 
 
 Fighting in a private place is only an as- 
 sault. 1 Cromp., M. & R. 757; 1 Cox, C. C. 
 177; 22 Ala. 15; 29 Ind. 206. 
 
 AFFRECTAMENTUM (Fr.fref). Affreight- 
 ment. 
 
 The word ^ret means tons, according to 
 Cowell. 
 
 AffreigJitamentum was sometimes used. 
 Du Cange. 
 
 AFFREIGHTMENT. The contract by 
 which a vessel, or the use of it, is let out to 
 hire. 
 
 AFFRI. In old English law. Plow cat- 
 tle, bullocks or plow horses. Affri, or afri 
 carucae, beasts of the plow. Reg. Orig. 150a; 
 St. Westminster II. c. 18; Spelman; Affri 
 carectae, beasts of the cart. Pleta, lib. 2, c. 85. 
 
 AFORESAID. Before mentioned; al- 
 ready spoken of or described. See 20 Mo. 
 411; 20 Ala. 35. 
 
 AFORETHOUGHT. In criminal law. 
 Premeditation; prepense. See "Malice 
 Aforethought." 
 
 AFTERMATH. The second crop of grass. 
 A right to have the last crop of grass or 
 pasturage. 1 Chit. Prac. 181. 
 
 AGAINST THE FORM OF THE STAT- 
 ute. Technical words which must be used 
 in framing an indictment for a breach of 
 the statute prohibiting the act complained 
 of. 
 
 The Latin phrase is contra formam stat- 
 uti. 
 
 AGAINST THE PEACE. See "Contra Pa- 
 cem." 
 
 AGAINST THE WILL. Technical words 
 which must be used in framing an indict- 
 ment for robbery from the person. 1 Chit. 
 Cr. Law, 244. 
 
 In the statute of 13 Edw. I. (Westminster 
 II.) c. 34, the offense of rape is described 
 to be ravishing a woman "where she did not 
 consent," and not ravishing against her will. 
 Per Tindal, C. J., and Parke, B., in the ad- 
 denda to 1 Den. C. C. 1. And in a very re- 
 
 cent case this statute definition was adopted 
 by all the judges. Bell, C. C. 63, 71. 
 
 AGALMA. An impression or image of 
 anything on a seal. Cowell. 
 
 AGARD. An award. 
 
 AGARDER (Law Fr.) To award, ad- 
 judge, or determine; to sentence, or con- 
 demn. 
 
 AGE. Years of life; that period of life 
 at which the law allows persons to do acts 
 or discharge functions which, for want of 
 years, they were prohibited from doing or 
 undertaking before. 
 
 At Common Law. Males, before four- 
 teen, are said not to be of discretion ; at that 
 age they may consent to marriage, and 
 choose a guardian. Twenty-one years is full 
 age for all private purposes, and they may 
 then exercise their rights as citizens by vot- 
 ing for public officers, and are eligible to all 
 offices, unless otherwise provided for in the 
 constitution. 
 
 Females, at twelve, arrive at years of dis- 
 cretion, and may consent to marriage; at 
 fourteen, they may choose a guardian; and 
 twenty-one, as in males, is full age, when 
 they may exercise all the rights which be- 
 long to their sex. The age of puberty for 
 both sexes is fourteen. 
 
 In French Law. A person must have 
 
 attained the age of forty to be a member 
 of the legislative body; twenty-five, to be a 
 judge of a tribunal de premiere instance; 
 twenty-seven to be its president, or to be 
 judge or clerk of a cowr royale; thirty, to 
 ,be its president or procureur-general ; 
 twenty-five, to be a justice of the peace; 
 thirty, to tie judge of a tribunal of com- 
 merce, and thirty-five to be its president; 
 twenty-five, to be a notary public; twenty- 
 one, to be a testamentary witness; thirty, 
 to be a juror. At sixteen, a minor may de- 
 vise one-half of his property as if he were 
 a major. A male cannot contract marriage 
 till after the eighteenth year, nor a female 
 before full fifteen years. At twenty-one, 
 both males and females are capable to pei^ 
 form all the acts of civil life. Toullier, Dr. 
 Civ. liv. 1. Introd. note 188. 
 
 In Roman Law. Infancy {infantia,)' 
 
 extended to the age of seven; the period of 
 childhood (pueritia), which extended from 
 seven to fourteen, was divided into two 
 periods, — the first, extending from seven to 
 ten and a half, was called the period near- 
 est childhood (aetas infantiae proxima) ; 
 the other from ten and a half to fourteen, 
 the period nearest puberty {aetas pubertati 
 proxima) ; puberty (putertas) extended 
 from fourteen to eighteen; full puberty ex- 
 tended from eighteen to twenty-five; at 
 twenty-flve, the person was of legal age 
 (aetas legitima), sometimes expressed as full 
 age {aetas perfecta). See Tayl. Civ. Law, 
 254; Lee. Blem. Civ. 22. 
 
 AGE PRAYER. A statement made in a 
 real action, to which an infant is a party, 
 of the fact of infancy, and a request that 
 
AGENCY 
 
 (39) 
 
 AGGRAVATION 
 
 the proceedings may be stayed until the in- 
 fant becomes of age. 
 
 It is now abolished. St. 11 Geo. IV.; 
 1 Wm. IV. c. 37, § 10; 1 Lilly, Reg. 54; 3 
 Bl. Comm. 300. 
 
 AGENCY. A relation between two or 
 more persons, by which one party, usually 
 called the "agent" or "attorney," is author- 
 ized to do certain acts for, or In relation to 
 the rights or property of, the other, who is 
 denominated the "principal," "constituent," 
 or "employer." Prof. Joel Parker, MSS. 
 Lect. 1851. See "Agent." 
 
 AGENCY, DEED OF. A revocable and 
 voluntary trust for payment of debts. Whar- 
 ton. 
 
 AGENFRIDA (Saxon). The true lord or 
 owner of a thing. Spelman. 
 
 AGENHINL, AGENHINA, or AWNHINE. 
 
 In Saxon law. A domestic or inmate. One 
 who stayed three nights at an inn was 
 counted an agenhine. Laws Edw. Gonf. c. 
 
 17. 
 
 AGENS (Lat. agere, to do; to conduct). 
 A conductor or manager of affairs. Distin- 
 guished from factor, a workman. 
 
 A plaintiff. Pleta, lib. 4, c. 15, § 8. 
 
 AGENT (Lat. agens, from agere, to do). 
 One who undertakes to transact some busi- 
 ness, or to manage some affair, for anoth- 
 er, by the authority and on account of the 
 latter, and to render an account of it. 1 
 Llvermore, Ag. 67; 2 Bouv. Inst. 3. 
 
 The term is one of a very wide application, 
 and includes a great many classes of per- 
 sons to which distinctive appellations are 
 given; as, factors, brokers, attorneys, cash- 
 iers of banks, auctioneers, clerks, supercar- 
 goes, consignees, ships' husbands, masters 
 of ships, and the like. The terms "'agent" 
 and "attorney" are often used synonymous- 
 ly. Thus, a letter or power of attorney is 
 constantly spoken of as the formal instru- 
 ment by which an agency is created. Pa- 
 ley, Ag. (Dunl. Ed.) 1, note. 
 
 Agents are "general" or "special;" a gen- 
 eral agent being one authorized to repre- 
 sent his principal in all matters, in which 
 case he is sometimes called a "universal 
 agent" {g. v.), or in all matters of a par- 
 ticular class; a special agent one author- 
 ized to act only on one occasion, or in one 
 transaction. 
 
 The distinction between an "agent" and a 
 "servant" is that the former acts as a sub- 
 stitute for his principal, i. e., represents him 
 in some transaction with third persons, 
 while the latter merely performs the mas- 
 ter's work. 
 
 In International Law. The agents of 
 
 a state in international affairs are (a) the 
 persons to whom are delegated the man- 
 agement of the foreign affairs of the state 
 by the constitution, and (b) all persons di- 
 rectly subordinate to them, the latter being 
 generally designated as "diplomatic agents.'" 
 Glenn, Int. Law, 105. 
 
 In English Parliamentary Practice. 
 
 Persons acting as solicitors in appealed 
 cases in the privy council and house of 
 lords are known as "agents," or "law 
 agents." Macph. Privy Council, 65. 
 
 AGENT AND PATIENT. A phrase indi- 
 cating the state of a person who is required 
 to do a thing, and is at the same time the 
 person to whom it is done; as, when a man 
 is indebted to another, and he appoints him 
 his executor, the latter is required to pay 
 the debt in his capacity of executor, and 
 entitled to receive it in his own right; he is 
 then agent and patient. Termes de la Ley. 
 
 AGENTES ET CONSENTIENTES PARI 
 poena plectentur. Acting and consenting 
 parties are liable to the same punishment. 
 5 Coke, 80. 
 
 AGER (Lat.) In civil law. A field; land 
 generally. 
 
 A portion of land enclosed by definite 
 boundaries. 
 
 Used like the word acre in the old English 
 law, denoting a measure of undetermined 
 and variable value. Spelman; Du Cange; 3 
 Kent, Comm. 441. 
 
 AGGER (Lat.) In the civil law. A dam, 
 bank, or mound. Code, 9. 38 ; Towns. PI. 48. 
 
 AGGRAVATED ASSAULT. An assault at- 
 tended by circumstances of aggravation, as 
 the use of a weapon, or disparity of age or 
 sex between the assailant and person as- 
 saulted. 
 
 AGGRAVATION (Lat. ad, to, and gravis, 
 heavy; aggravare, to make heavy). That 
 which increases the enormity of a crime or 
 the injury of a wrong. 
 
 In Criminal Law. One of the rules 
 
 respecting variances is that cumulative al- 
 legations, or such as merely operate in ag- 
 gravation, are immaterial, provided that 
 suflacient is proved to establish some right, 
 offense, or justification included in the 
 claim, charge, or defense specified on the 
 record. This rule runs through the whole 
 criminal law, that it is invariably enough 
 to prove so much of the indictment as 
 shows that the defendant has committed a 
 substantive crime therein specified. Per 
 Lord Ellenborough, 2 Campb. 583 ; 4 Barn. & 
 C. 329; 21 Pick. (Mass.) 525; 4 Gray (Mass.) 
 18; 7 Gray (Mass.) 49, 331; 1 Tayl. Bv. § 215. 
 Thus, on an Indictment for murder, the 
 prisoner may be convicted of manslaughter, 
 for the averment of malice aforethought is 
 merely matter of aggravation. Co. Litt. 282a. 
 
 In Pleading. The introduction of 
 
 matter into the declaration which tends to 
 increase the amount of damages, but does 
 not affect the right of action itself. Steph. 
 PI. 257; 12 Mod. 597. See 3 Am. Jur. 287- 
 313. 
 
 An example of this is found in the case 
 where a plaintiff declares in trespass for 
 entering his house, and breaking his close, 
 and tossing his goods about. The entry of 
 the house is the principal ground and foun- 
 
AGGREGATE 
 
 (40) 
 
 AGREAMENTUM 
 
 dation of the action, and the rest is only 
 stated by way of aggravation (3 Wils. 294), 
 and this matter need not be proved by the 
 plaintiff, or answered by the defendant. 
 
 AGGREGATE. A collection of ' particu- 
 lar persons or items, formed into one body. 
 See "Corporation." 
 
 AGGREGATIO MENTIUM. A meeting of 
 minds. See ".Agreement." 
 
 AGGRESSOR. He who begins a quarrel 
 or dispute, either by threatening or striking 
 another. No man may strike another be- 
 cause he has been threatened, or in conse- 
 quence of the use of any words. 
 
 AGGRIEVED. Injuriously affected. 
 
 AGILD. In Saxon law. Free from pen- 
 alty (sine mulcta vel compensatione) , not 
 subject to the payment of gild, or loeregild; 
 that is, the customary fine or pecuniary com- 
 pensation for an offense. Spelman; Cow- 
 ell. 
 
 AGILER. In Saxon law. An observer or 
 informer. 
 
 AGILLARIUS (Law Lat.) In old English 
 law. A hayward, herdward, or keeper of 
 the herd of cattle in a common field. Cow- 
 ell. 
 
 AGIO. A term used in commercial trans- 
 actions to denote the difference of price be- 
 tween the value of bank notes or other nomi- 
 nal money and the coin of the country. 5 
 Mees. & W. 535. 
 
 AGIOTAGE. From agis. Speculation in 
 public securities. 
 
 AGISTER. See "Agistment." 
 
 AGISTMENT. The taking of another per- 
 son's cattle into one's own ground to be fed, 
 for a consideration to be paid by the owner. 
 The person so taking cattle to pasture is 
 called an "agister." Schouler, Bailm. § 96; 
 Story, Bailm. § 443; 68 Cal. 290. 
 
 In Old English Law. The taking of 
 
 the cattle of strangers to pasture on the 
 king's land, and collecting fees therefor to 
 the use of the king. Spelman. 
 
 AGNATES. In Scotch law. Relations on 
 the father's side. 
 
 AGNATI. In civil law. The members of 
 a Roman family who traced their origin 
 and name to a common deceased ancestor 
 through the male line, under whose paternal 
 power they would be if he were living. 
 
 They were called adgnati, — adcnati, from 
 the words ad eum nati. TJlpianus says: "Ad- 
 gnati auteni sunt cognati virilis sexus ab 
 eodem orti: nam post suos et consanguineos 
 statim mihi proximus est consanguinei mei 
 filius, et ego ei; patris quoqtie f rater qui pat- 
 ruus appellatur; deinceps ceteri, si qui sunt, 
 nine orti in infliii.tum." Dig. 38. 16; De Suis 
 2, § 1. Thus, although the grandfather and 
 father be dead, the children become stil 
 
 juris, and the males may become the found- 
 ers of new families, still they all continue 
 to be agnates; and the agnatic spreads and 
 Is perpetuated not only in the direct, but 
 also in the collateral, line. Marriage, adop- 
 tion, and adrogation also create the rela- 
 tionship of the agnatic. In the Sentences of 
 Paulus, the order of inheritange is stated as 
 follows: Intestatorum hereditas, lege Duo- 
 decim Ta'bularum primum suls Tieredibus, de 
 inde adgnatis et aliquando quoque gentibus 
 deferebatur. 
 
 They are distinguished from the cognati, 
 those related through females. See "Cog- 
 nati." 
 
 AGNATIC. Derived from or through 
 males. 2 Bl. Comm. 236. 
 
 AGNATIO (Lat.) In civil law. A rela- 
 tionship through, males;, the male children. 
 
 Especially spoken of the children of a free 
 father and slave mother. The rule in such 
 cases was agnatic sequitur ventrem. Du 
 Cange. 
 
 AGNATION. Relationship on the father's 
 side. See "Agnates." 
 
 AGNOMEN (Lat.) A name or title which 
 a man gets by some action or peculiarity; 
 the last of the four names sometimes given a 
 Roman. Thus, Scipio Africanus (the Af- 
 rican), from his African victories. Ains- 
 worth; Calv. Lex. See "Nomen." 
 
 AGRARIAN LAWS. In Roman law. Those 
 laws by which the commonwealth disposed 
 of its public land, or regulated the posses- 
 sion thereof by individuals, were termed 
 "Agrarian Laws." 
 
 The greater part of the public lands ac- 
 quired by conquest were laid open to the 
 possession of any citizen, but the state re- 
 served the title and the right to resume 
 possession. The object of many of the agra- 
 rian laws was to limit the area of public 
 land of which any one person might take 
 possession. The law of Cassius, B. C. 486, 
 is the most noted of these laws. 
 
 Until a comparatively recent period, it 
 has been assumed that these laws were 
 framed to reach private property, as well 
 as to restrict possession of the public do- 
 main, and hence the term "agrarian" is, 
 in legal and political literature, to a great 
 degree fixed with the meaning of a confis- 
 catory law, intended to reduce large es- 
 tates, and increase the number of landhold- 
 ers. Harrington, in his "Oceana," and the 
 philosophers of the French Revolution, have 
 advocated agrarian laws in this sense. The 
 researches of Heyne (Op. 4. 351), Niehbuhr 
 (Hist. vol. 2, trans.), and Savigny (Das 
 Recht des Besitzes), have redeemed the Ro- 
 man word from the burden of this meaning. 
 
 AGRARIUM. A tax upon or tribute pay- 
 able out of land. 
 
 AGREAMENTUM. Agreement. 
 
 Spelman says that it is equivalent In 
 meaning to aggregatio mentium, though not 
 derived therefrom. 
 
AGREEMENT 
 
 (41) 
 
 AIDING AND ABETTING 
 
 AGREEMENT (from Lat. aggretio men- 
 tium). A coming together of parties in opin- 
 ion or determination; the union of two or 
 more minds in a thing done or to be done; a 
 mutual assent to do a thing. Comyn, Dig. 
 "Agreement" (A 1) ; Plowd. 5a. 6a. 
 
 The consent of two or more persons con- 
 curring, the one in parting with, the other 
 In receiving, some property, right, or ben- 
 efit. Bac. Abr. 
 
 A mutual contract in consideration be- 
 tween two or more parties. 5 East, 10; 4 
 Gill & J. (Md.) 1; 12 How. (U. S.) 126. 
 
 Agreement is seldom applied to special- 
 ties; contract is generally confined to sim- 
 ple contracts; and promise refers to the 
 engagement of a party without reference to 
 the reasons or considerations for it, or the 
 duties of other parties. Pars. Cont. 6. 
 
 An agreement ceases to be such by being 
 put in writing under seal, but not when 
 put in writing for a memorandum. Dane, 
 Abr. c. 11. 
 
 A promise or undertaking. This is a loose 
 and inaccurate use of the word. 3 Conn. 
 335. 
 
 The writing or instrument which is evi- 
 dence of an agreement. This is a loose and 
 evidently inaccurate use of the term. The 
 agreement may be valid, and yet the writ- 
 ten evidence thereof insufficient. 
 
 Agreements are: 
 
 (1) Conditional, being those which are to 
 Tiave full effect only in case of the happen- 
 ing of certain events, or the existence of a 
 given state of things. 
 
 (2) Absolute, being dependent on no con- 
 tingency. 
 
 They are also: 
 
 (3) Executed, being those where nothing 
 further remains to be done by the parties, or 
 
 (4) Executory, being such as rest on ar- 
 ticles, memorandums, parol promises or un- 
 -dertakings, and the like, to be performed in 
 the future, or which are entered into pre- 
 paratory to more solemn and formal aliena- 
 tions of property. Powell, Cont. An ex- 
 ecuted agreement always conveys a chose in 
 possession, while an executory one conveys 
 a chose in action only. 
 
 They are also: 
 
 (5) Express, being those in which the 
 terms are openly uttered and avowed by 
 the parties at the time of making, or 
 
 (6) Implied, being those which the law 
 •supposes the parties to have made, although 
 the terms were not openly expressed. 
 
 AGREEMENT FOR INSURANCE. An 
 
 agreement often made in short terms pre- 
 liminary to the filling out and delivery of a 
 policy with the specific stipulations. 
 
 Such an agreement, specifying the rate 
 of premium, the subject and risk, and 
 amount to be insured, in general terms, and 
 ■being assented to by the parties, is bind- 
 ing. 1 Phil. Ins. c. 1, § 3; 2 Curt. C. C. (U. 
 'S.) 277; 19 N. Y. 305. 
 
 AGREER, or AGGREER (Law Fr.) 
 
 In Old Practice. To agree. 
 
 In French Marine Law. To rig or 
 
 equip a vessel. Ord. Mar. liv. 1, tit. 2, art. 1. 
 
 AGREZ (Pr.) In French marine law. 
 The rigging or tackle of a vessel. Ord. 
 Mar. liv. 1, tit. 2, art. 1; Id. tit. 11, art. 2; 
 Id. liv. 3, tit. 1, art. 11. 
 
 AGRI. Arable lands in common fields. 
 
 AGRI LIMITATI. In Roman law. Lands 
 belonging to the state by right of conquest, 
 and granted or sold in, plots. Sandars, Just. 
 Inst. (5th Ed.) 98. 
 
 AHTEID. 
 
 In Old European Law. A kind of 
 
 oath among the Bavarians. Spelman. 
 
 In Saxon Law. One bound by oath, 
 
 (q. v.); "oath-tied." Prom ath, oath, and 
 tied. Spelman. 
 
 AID AND COMFORT. Help; support; 
 assistance; counsel; encouragement. 
 
 The constitution of the United States 
 (article 3, § 3) declares that adhering to 
 the enemies of the United States, giving 
 them aid and comfort, shall be treason. 
 These words, as they are to be under- 
 stood in the constitution, have not received 
 a full judicial construction. They import, 
 however, help, support, assistance, counte- 
 nance, encouragement. The word "aid," 
 which occurs in St. Westminster I. c. 14, 
 is explained by Lord Coke (2 Inst. 182) 
 as comprehending all persons counseling, 
 abetting, plotting, assenting, consenting, and 
 encouraging to do the act (and he adds, 
 what is not applicable to the crime of trea- 
 son), who are not present when the act Is 
 done. See, also, 1 Burn, Just. 5, 6; 4 Bl. 
 Comm. 37, 38. 
 
 AID BONDS. Public (usually municipal 
 or county) bonds issued in aid of a private 
 enterprise operating for the benefit of the 
 community generally. 
 
 AID OF THE KING. Intervention prayed 
 by the king's tenant when another ques- 
 tioned his tenure, or demanded rent of him. 
 
 AID PRAYER. In English law. A peti- 
 tion to the court calling in help from an- 
 other person who has an interest in the 
 matter in dispute. For example, a tenant 
 for life, by the curtesy, or for years, being 
 impleaded, may pray aid of him in rever- 
 sion; that is, desire the court that he may 
 be called by writ, to allege what he thinks 
 proper for the maintenance of the right of 
 the person calling him, and of his own. 
 Fitzh. Nat. Brev. 50; Cowell. 
 
 AIDER BY VERDICT. In pleading. The 
 
 presumption which arises after verdict, 
 
 whether in a civil or criminal case, that 
 
 those facts, without proof of which the ver- 
 
 I diet could not have been found, were 
 
 ; proved, though they are not distinctly al- 
 
 i leged in the record; provided it contains 
 
 I terms sufficiently general to comprehend 
 
 them in reasonable intendment. 
 
 AIDING AND ABETTING. In criminal 
 law. The offense committed by those per- 
 sons who, although not the direct perpe- 
 
AIDS 
 
 (42) 
 
 ALDERMAN 
 
 trators of a crime, are yet present at Its 
 commission, doing some act to render aid 
 to the actual perpetrator thereof. 4 Shars- 
 •wood, Bl. Comm. 34; Russ. & R. 363, 421; 
 
 9 Ired. (N. C.) 440; 1 Woodb. & M. 221; 
 
 10 Pick. (Mass.) 477; 12 Whart. (Pa.) 460; 
 26 Miss. 299. 
 
 A principal in the second degree is he 
 who Is present aiding and abetting the fact 
 to be done. 1 Hale, P. C. 615. See "Prin- 
 cipal." 
 
 Aros. In English law. A species of tax 
 payable by the tenant of lands to his su- 
 perior lord on the happening of certain 
 events. 
 
 They were originally mere benevolences 
 granted to the lord in certain times of dan- 
 ger and distress, but soon came to be 
 claimed as a right. They were originally 
 given in three cases only, and were of un- 
 certain amount. For a period they were 
 demanded in additional cases, but this 
 abuse was corrected by Magna Gharta (of 
 John) and St. 25 Bdw. I. (conflrmatio charta- 
 rum), and they were made payable only, — 
 to ransom the lord's person, when taken 
 prisoner; to make the lord's eldest son a 
 knight; to marry the lord's eldest daughter, 
 by giving her a suitable portion. The first 
 of these remained uncertain; the other two 
 were fixed by act of parliament (25 Edw. 
 III. c. 11) at twenty shillings each, being 
 the supposed twentieth part of a knight's 
 fee. 2 Bl. Comm. 64. They were abolished 
 by 12 Car. II. c. 24. 2 Sharswood, Bl. Comm. 
 77, note. 
 
 AIR. That fluid transparent substance 
 which surrounds our globe. See "Ease- 
 ment." 
 
 AIRE. In old Scotch law. The court of the 
 justices itinerant, corresponding to the Eng- 
 lish eyre. Skene de Verb. Sign. voc. "Iter." 
 
 Heir. "His airis and assignais." Pitc. Grim. 
 Tr. pt. 2, p. 342. 
 
 AISMENTUM, AISIAMENTUM, or ESA- 
 mentum. An easement. Spelman. 
 
 AISNE, or EIGNE.' In old English law. 
 Eldest or first born. Aisne is the opposite 
 of puisne. Spelman, "Aesnecia." 
 
 AJUAR. In Spanish law. The jewels and 
 furniture which a wife brings in marriage. 
 
 AJUTAGE, or ADJUTAGE. A conical 
 tube used in drawing water through an 
 aperture, by the use of which the quantity 
 of water drawn is much increased. 
 
 When a privilege to draw water from a 
 canal, through the forebay or tunnel, by 
 means of an aperture, has been granted, it 
 is not lawful to add an ajutage, unless such 
 was the intention of the parties. 2 Whart. 
 (Pa.) 477. 
 
 AKIN. In old English law. Of kin. 
 "Next-a-kin." 7 Mod. 140. 
 
 AL (Law Pr.) At; to. Al Jims d'esglise, at 
 
 the church door. Litt. § 38. Al contrary, to 
 the contrary. Dyer, 5b. 
 
 ALAE ECCLESIAE. The wings or side 
 aisles of a church. Blount. 
 
 ALANERARIUS. A manager and keeper 
 of dogs for the sport of hawking; from 
 alanus, a dog ' known to the ancients. A 
 falconer. Blount. 
 
 ALBA FIR MA. White rents; rents re- 
 served payable in silver, or white money. 
 They were so called to distinguish them 
 from reditus nigri, which were rents reserved 
 payable in work, grain, and the like. 2 Inst. 
 19. 
 
 ALBANAGIUM. In old French law. The 
 state of alienage; of being a foreigner or 
 alien. 
 
 ALBANUS. See "Advena." 
 
 ALBINATUS (Law Lat.) In old French 
 law. The state or condition of an alien or 
 foreigner. 
 
 ALBINATUS JUS. In old French law. 
 The right of albanage. A right formerly ex- 
 isting in France, entitling the king, on the 
 death of an alien, to all his property, unless 
 he had a peculiar exemption. Spelman; Bl. 
 Comm. 372; 2 Kent, Comm. 69. 
 
 ALBUM BREVE. A blank writ; a writ 
 with a blank or omission in it, as, where 
 it is returned with the sheriH's surname 
 omitted. Hob. 113b; Yelv. 110. 
 
 ALBUS LIBER. An ancient book con- 
 taining a compilation of the law and cus- 
 toms of the city of London. Wharton. 
 
 ALCABALA (Spanish). A duty of a cer- 
 tain per cent, paid to the treasury on the 
 sale or exchange of property. Schmidt, Civ. 
 Law, 81, note 1. 
 
 ALCALDE. In Spanish law. A judicial of- 
 ficer in Spain, and in those countries which 
 have received the body of their laws from 
 those of Spain. His powers and duties are 
 similar to those of a justice of the peace. 
 
 ALDERMAN (equivalent to "senator" or 
 "senior"). 
 
 In English Law. An associate to the 
 
 chief civil magistrate of a corporate town or 
 city. 
 
 'I'he word was formerly of very extended 
 signification. Spelman enumerates eleven 
 classes of aldermen. Their duties among 
 the Saxons embraced both magisterial and 
 executive power, but would seem to have 
 been rather an appellation of honor, original- 
 ly, than a distinguishing mark of office. 
 
 Aldermannus civitatis iurgi sen castellae 
 (alderman of a city, borough, or castle). 1 
 Shai-swood, Bl. Comm. 475, note. 
 
 Aldermannus comitates (alderman of the 
 county), who is thought by Spelman to 
 have held an intermediate place between an 
 earl and sheriff; by others, held the same 
 as the earl. 1 Sharswood, Bl. Comm. 116. 
 
ALE CONNER 
 
 (43) 
 
 ALIEN 
 
 Aldermannus hundredi seu wapentaohii 
 (alderman of a hundred or wapentake) . Spel- 
 man. 
 
 Aldermannus regis (alderman of the 
 king) was so called, either because he was 
 appointed by the king, or because he gave 
 the judgment of the king in the premises al- 
 lotted to him. 
 
 Aldermannus totius Angliae (alderman of 
 all England). An officer of high rank, 
 whose duties cannot be precisely determin- 
 ed. See Spelman. 
 
 The aldermen of the city of London were 
 probably originally the chiefs of guilds. 
 See 1 Spence, Bq. Jur. 54, 56. 
 
 In American Cities. The aldermen 
 
 are generally a legislative body, having 
 limited judicial powers as a body, as in mat- 
 ters of internal police regulation, laying out 
 and repairing streets, constructing sewers, 
 and the like; though in many cities they 
 hold separate courts, and have magisterial 
 powers to a considerable extent. Consult 
 Spelman; Cowell; 1 Sharswood, Bl. Comm. 
 116; Reeve, Hist. Eng. Law; Spence, Bq. 
 Jur. 
 
 ALE CONNER (also called "ale taster"). 
 An officer appointed by the court leet, sworn 
 to look to the assize and goodness of ale 
 and beer within the precincts of the leet. 
 Kitch. Cts. 46; Whishaw. An officer appoint- 
 ed in every court leet, and sworn to look to 
 the assize of bread, ale, or beer within the 
 precincts of that lordship. Cowell. This of- 
 ficer is still continued in name, though the 
 duties are changed or given up. 1 Crabb, 
 Real Prop. 501. 
 
 ALEATOR (Lat. alea, dice). A dice play- 
 er; a gambler. 
 
 ALEATORY CONTRACT. In civil law. 
 A mutual agreement, of which the effects, 
 with respect both to the advantages and 
 losses, whether to all the parties or to some 
 of them, depend on an uncertain event. Civ. 
 Code La. art. 2951. 
 
 The term includes contracts, such as in- 
 surance, annuities, and the like. 
 
 ALER A DIEU (Law Fr.) In old prac- 
 tice. To be dismissed from court; to go 
 quit. Literally, "to go to God." Y. B. H. 
 2 Edw. III. 6; Y. B. T. 5 Edw. II. 173; Y. B. 
 H. 3 Edw. II. 75. 
 
 ALER SANS JOUR (Pr. aller sans jour, 
 to go without day). In practice. A phrase 
 formerly used to indicate the final dismis- 
 sal of a case from court. The defendant 
 was then at liberty to go, without any day 
 appointed for his subsequent appearance. 
 Kitch: Cts. 146. 
 
 ALEU (Fr.) In French feudal law. An 
 allodial estate, as distinguished from a feud- 
 al estate or benefice. Guyot, Inst. Feud. c. 
 28, § 2. 
 
 ALFET. The vessel in which hot water 
 was put, for the purpose of dipping a crimi- 
 nal's arm in it up to the elbow In the ordeal 
 by water. Cowell. 
 
 ALGARUIVI IVIARIS. Probably a, corrup- 
 tion of laiiawum mari.K; lagan being a right, 
 in the middle ages, like jetsam and flotsam, 
 by which goods thrown from a vessel in 
 distress becan^e the property of the king, 
 or the lord on whose shores they were 
 stranded. Spelman; Jacob; Du Cange. 
 
 ALIA ENORIVIIA (Lat. other wrongs). In 
 pleading. A general allegation, at the end 
 of a declaration, of wrongful acts commit- 
 ted by the defendant to the damage of the 
 plaintiff. In form it is, "and other wrongs 
 then and there did against the peace," etc. 
 Under this allegation, damages and matters 
 which naturally arise from the act complain- 
 ed of may be given in evidence (2 Greenl. 
 Bv. § 678), including battery of servants, 
 etc., in a declaration for breaking into and 
 entering a house (6 Mod. 127; 2 Term R. 
 166; 7 Har. & J. [Md.] 68), and all matters 
 in general which go in aggravation of dam- 
 ages merely, but would not of themselves 
 be ground for an action (Duller, N. P. 89; 
 3 Mass. 222; 6 Munf. [Va.] 308). But mat- 
 ters in aggravation may be stated specially 
 (15 Mass. 194; Gilm. [Va.] 227), and mat- 
 ters which of themselves would constitute 
 a ground of action must be so stated (1 
 Chit. PI. 348; 17 Pick. [Mass.] 284). See, 
 generally, 1 Chit. PI. 648; BuUer, N. P. 89; 
 2 Greenl. Ev. §§ 268, 273, 278; 2 Salk. 643; 
 Peake, Bv. 505. 
 
 ALIAS (Lat. alius, another). In practice. 
 Before; at another time. 
 
 An alias writ Is a writ Issued where one 
 of the same kind has been issued before 
 in the same cause. The second writ runs, 
 in such case, "We command you, as we have 
 before commanded you" (sicut alias), and 
 the Latin word alias Is used to denote both 
 the writ and the clause in which it or its 
 corresponding English word is found. It 
 is used of all species of writs. 
 
 ALIAS DICTUS (Lat. otherwise called). 
 A description of the defendant by adding to 
 his real name that by which he is known 
 in some writing on which he is to be charg- 
 ed, or by which he is known. 4 Johns. (N. 
 Y.) 118; 2 Caines (N. Y.) 362; 3 Caines (N. 
 Y.) 219. 
 
 ALIBI (Lat. elsewhere). Presence in an- 
 other place than that described. 
 
 When a person, charged with a crime, 
 proves (se eadem die fuisse alibi) that he 
 was, at the time alleged, in a different place 
 from that in which it was committed, he 
 is said to prove an alibi, the effect of which 
 is to lay a foundation for the necessary in- 
 ference that he could not have committed 
 it. See Bracton, 140. 
 
 ALIEN (Lat. alienus, belonging to an- 
 other; foreign). A foreigner; one of for- 
 eign birth. 
 
 In England. One born out of the alle- 
 giance of the king. 
 
 In tlie United States. One born out 
 
 of the jurisdiction of the United States, and 
 who has not been naturalized under their 
 
ALIEN AMY 
 
 (44) 
 
 ALIO INTUITU 
 
 constitution and laws. 2 Kent, Comm. 50. 
 The children of ambassadors and ministers 
 at foreign courts, however, are not aliens. 
 And see 10 U. S. St. at Large, 604. 
 
 ALIEN AMY. An alien friend; i. e., a sub- 
 ject of a friendly nation. 
 
 ALIEN ENEMY. One WHO owes alle- 
 giance to the adverse belligerent. 1 Kent, 
 Comm. 73. 
 
 He who owes a temporary, but not a per- 
 manent, allegiance, is an alien enemy in re- 
 spect to acts done during such temporary 
 allegiance only, and when nis allegiance 
 terminates, his hostile character terminates 
 also. 1 Bos. & P. 163. 
 
 ALIENABLE. Subject of alienation. 
 
 ALIENAGE. The condition or state of 
 an alien. 
 
 ALIENATE. To convey; to transfer. 
 Co. Litt. 118b. "Alien" is very commonly 
 used in the same sense. 1 Washb. Eeal 
 Prop. 53. See "Alienation."' 
 
 ALIENATIO LICET PROHIBEATUR, 
 consensu tamen omnium, in quorum favo- 
 rem prohlblta est, potest fieri, et quilibet 
 potest renunciare juri pro se introducto. 
 
 Although alienation be prohibited, yet, by 
 the consent of all in whose favor it is pro- 
 hibited, it may take place, for it is in the 
 power of any man to renounce a right in- 
 troduced for his own benefit. Co. Litt. 98; 
 9 N. Y. 29L 
 
 ALIENATIO REI PRAEFERTUR JURI 
 
 accrescendi. Alienation is favored by the 
 law, rather than accumulation. Co. Litt. 
 185a, 381a, note; Broom, Leg. Max. (3d Lon- 
 don Ed.) 393, 409; Wright, Ten. 154 et seq.; 
 1 Cruise, Dig. (4th Ed.) 77, 78. 
 
 ALIENATION. 
 
 Of Property. The transfer of prop- 
 erty and p'ossession of lands, tenements, or 
 other things from one person to another. 
 Termes de la Ley. It is particularly ap- 
 plied to absolute conveyances of real prop- 
 erty. A transfer of less than the whole 
 title is not, in the United States, an aliena- 
 tion. 11 Barb. (N. Y.) 624. 
 
 Alienation is either by deed, or by matter 
 of record. 
 
 (1) Alienations by deed are: 
 
 (a) Original or primary alienations are 
 those by which a benefit or estate Is created 
 or first arises. They are feoffment, gift, 
 grant, lease, exchange, and partition. 
 
 (b) Derivative or secondary alienations 
 are those by which the benefit or estate 
 originally created is enlarged, restrained, 
 transferred, or extinguished; or they may 
 be made by conveyances under the statute 
 of uses. They are release, confirmation, 
 surrender, assignment, and defeasance. 
 Those deriving their force from the statute 
 of /uses are covenant to stand seized, bar- 
 gain and sale, lease and release, deeds to 
 declare the uses of other more direct con- 
 veyances, and deeds of revocation of uses. 
 
 (2) Alienation by matter of record may 
 be by private act of the legislature, by pat- 
 ents and other public grants, by fine, by 
 common recovery. 
 
 In Medical Jurisprudence. A generic 
 
 term, denoting the different kinds of aber- 
 ration of the human understanding. 1 
 Beck, Med. Jur. 535. 
 
 ALIENATION OFFICE. In English law. 
 An office to which all writs of covenants 
 and entries were carried for the recovery 
 of fines levied thereon. 
 
 ALIENEE. One to whom an alienation 
 
 is made. 
 
 ALIENI GENERIS (Lat.) Of another 
 kind. 
 
 ALIENI JURIS (Lat.) Subject to the au- 
 thority of another. An infant who is under 
 the authority of his father or guardian, and 
 a wife under the power of her husband, are 
 said to be alieni juris. See "Sui Juris." 
 
 ALIENIGENA (Lat.) One of foreign 
 birth; an alien. 7 Coke, 31. 
 
 ALIENOR. He who makes a grant or 
 alienation. 
 
 ALIEN US (Lat.) That which belongs to 
 another. 
 
 ALIMENT. 
 
 In Scotcii Law. To support; to pro- 
 vide with necessaries. Paterson, Comp. §§ 
 845, 850. 
 
 Maintenance; support; an allowance from 
 the husband's estate for the support of the 
 wife. Paterson, Comp. § 893. 
 
 In Civil Law. Pood and other things 
 
 necessary to the support of life; money al- 
 lowed for the purpose of procuring these. 
 Dig. 50. 16. 43. 
 
 In Common Law. To supply with nec- 
 essaries. 3 Edw. Ch. (N. Y.) 194. 
 
 ALIMENTA (Lat.) In the civil law. 
 Aliments; means of support, including food 
 (ciiaria), clothing (vestitus), and habita- 
 tion (Jiabitatio). Dig. 34. 1. 6. 
 
 ALIMONY. Money paid for aliment or 
 support. 
 
 The allowance which a husband, by order 
 of court, pays to his wife, living separate 
 from him, for her maintenance. Bish. Mar. 
 & Div. § 549. 
 
 The term is sometimes restricted to an 
 allowance for a wife's support, made either 
 pending an action for divorce, or after a 
 decree of divorce. 
 
 Alimony pendente lite is that ordered 
 during the pendency of a suit. 
 
 Permanent alimony is that ordered for 
 the use of the wife after the termination of 
 the suit, during their joint lives, or until the 
 further order of the court. 
 
 ALIO INTUITU (Lat.) Under a different 
 aspect. See "Diverso Intuitu." , 
 
ALIQUID CONCEDITUR, ETC. 
 
 (4S) 
 
 ALLEVIARE 
 
 ALIQUID CONCEDITUR NE INJURIA 
 remaneat Impunlta, quod alias non con- 
 cederetur. Something is conceded lest a 
 wrong should remain unpunished which 
 otherwise would not be conceded. Co. Litt. 
 197. 
 
 ALIQUID POSSESSIONIS ET NIHIL 
 juris (Law Lat.) Somewhat of possession, 
 and nothing o£ right (hut no right). A 
 phrase used by Bracton to describe that 
 kind oi: possession which a person might 
 have of a thing as a guardian, creditor, or 
 the like, and also that kind of possession 
 which was granted for a term of years, 
 where nothing could be demanded but the 
 usufruct. Bracton, fols. 39a, 160a. 
 
 ALIQUIS NON DEBET ESSE JUDEX IN 
 propria causa, quia non potest esse judex 
 et pars. A person ought not to be judge 
 in his own cause, because he cannot act both 
 as judge and party. Co. Litt. 141a; Broom, 
 Leg. Max. (3d London Ed.) 112; Litt. § 
 212; 13 Q. B. 327; 17 Q. B. 1; 15 C. B. 769; 
 1 C. B. (N. S.) 329. 
 
 ALITER (Lat.) Otherwise; otherwise held 
 or decided. 
 
 ALIUD EST CELARE; ALIUD TACERE. 
 
 To conceal is one thing; to be silent an- 
 other. 3 Burrows, 1910. See 2 Wheat. (U. 
 S.) 176; 9 Wheat. (U. S.) 631; 3 Bing. 77; 
 4 Taunt. 851; 2 Car. & P. 341; Broom, Leg. 
 Max. (3d London Ed.) 701. 
 
 ALIUD EST DISTINCTIO; ALIUD SEPA- 
 ratio. Distinction is one thing; separation 
 another. Bacon's arg. Case of Postnati of 
 Scotland, Works, iv. 351. 
 
 ALIUD EST POSSIDERE; ALIUD ESSE 
 in possessione. It Is one thing to possess; 
 it is another to be in possession. Hob. 163; 
 Bracton, 206. 
 
 ALIUD EST VENDERE; ALIUD VEN- 
 denti consentire. To sell Is one thing; to 
 give consent to him who sells, another. Dig. 
 50. 17. 160. 
 
 ALIUD EXAM EN (Lat.) A different or 
 foreign mode of trial. 1 Hale, Hist. Com. 
 Law, 38 (30). 
 
 ALIUNDE fLat.) Prom another place. 
 Evidence aliunde (i. e. from without the 
 will) may be received to explain an am- 
 biguity in a will. 1 Greenl. Ev. § 291. 
 
 ALL FOURS. A metaphorical expres- 
 sion, signifying that a case agrees in all its 
 circumstances with another. 
 
 ALL THE ESTATE. The name given in 
 England to the short clause in a convey- 
 ance or other assurance which purports to 
 convey "all the estate, right, title, interest, 
 claim, and demand" of the grantor, lessor, 
 etc.. In the property dealt with. Dav. Free. 
 Conv. 93. 
 
 allegans contraria non est 
 
 audiendus. One making contradictory al- 
 
 legations is not to be heard. Jenk. Cent. 
 Cas. 16; Broom, Leg. Max. (3d London Ed.) 
 160, 268; 4 Term R. 211; 3 Bxch. 446, 527, 
 678; 4 Bxch. 187; 11 Exch. 493; 3 El. & Bl. 
 363; 5 El. & Bl. 502; 5 C. B. 195, 886; 10 
 Mass. 163: Coke, 4th Inst. 279. 
 
 allegans suam turpitudinem 
 
 non est audiendus. One alleging his own 
 infamy is not to be heard. Coke, 4th Inst. 
 299; 2 Johns. Ch. (N. Y.) 339, 350. 
 
 allegari non debuit quod pro- 
 
 batum non relevat. That ought not to be 
 alleged which, if proved, is not relevant. 1 
 Ch. Cas. 45. 
 
 ALLEGATA. A word which the emperors 
 formerly signed at the bottom of their re- 
 scripts and constitutions; under other in- 
 struments they usually wrote signata or 
 testata. Enc. Lond. 
 
 ALLEGATA ET PROBATA (Lat. things 
 alleged and proved). The allegations made 
 by a party to a suit, and the proof adduced 
 in their support. 
 
 ALLEGATIO CONTRA FACTUIVl NON 
 est admittenda. An allegation contrary to 
 the deed (or fact) is not admissible. 
 
 ALLEGATION. The assertion, declara- 
 tion, or statement of a party of what he can 
 prove. 
 
 In Ecclesiastical Law. The statement 
 
 of the facts intended to be relied on in sup- 
 port of the contested suit. It is applied 
 either to the libel, or to the answer of the 
 respondent, setting forth new facts, the lat- 
 ter being, however, generally called the de- 
 fensive allegation. See 1 Browne, Civ. Law, 
 472, 473, note. 
 
 ALLEGATION OF FACULTIES. A state- 
 ment made by the wife of the property of 
 her husband, in order to her obtaining ali- 
 mony. 11 Ala. (N. S.) 763; 3 Tex. 168. 
 
 ALLEGIANCE. The tie which binds the 
 citizen to the government, in return for the 
 protection which the government affords 
 him. 
 
 Natural Allegiance. That which results 
 
 from the birth of a person within the terri- 
 tory, and under the obedience of the gov- 
 ernment. 2 Kent, Comm. 42. 
 
 Acquired Allegiance. That binding a 
 
 citizen who was born an alien, but has been 
 naturalized. 
 
 Local Allegiance. That which Is due 
 
 from an alien while resident in a country, 
 in return for the protection afforded by the 
 government. 16 Wall. (U. S.) 154. 
 
 ALLEGIARE. To defend and clear one's 
 self; to wage one's own law. 
 
 ALLEGING DIMINUTION. The allega- 
 tion in an appellate court of some error in 
 a subordinate part of the record below. 
 
 ALLEVIARE (Law Lat.) In old records. 
 To levy or pay an accustomed fine or com- 
 
ALLIANCE 
 
 (46) 
 
 ALLOYNOUE 
 
 position. Cowell. To redeem by such pay- 
 ment. Burrill. 
 
 ALLIANCE (Lat. ad, to, ligare, to bind). 
 The union or connection of two persons or 
 families by marriage; affinity. 
 
 In International Law. A contract, 
 
 treaty, or league between two sovereigns or 
 states, made to insure their safety and com- 
 mon defense. 
 
 Alliances are defensive, or offensive. 
 
 (1) Defensive alliances are those in which 
 a nation agrees to defend her ally in case 
 she is attacked. 
 
 (2) Offensive alliances are those in which 
 nations unite for the purpose of making an 
 attack, or jointly waging the war against 
 another nation. Alliances may be at the 
 same time offensive and defensive; and most 
 offensive alliances are of this character. 
 Vattel, bk. 3, c. 6, § 79; 2 Dall. (Pa.) 15. 
 
 A L LI SI ON. Running one vessel against 
 another. To be distinguished from colli- 
 sion, which denotes the running of two ves- 
 sels against each other. The distinction is 
 not very carefully observed, but collision 
 is used to denote cases strictly of allision. 
 
 ALLOCATION. An allowance upon an 
 account in the English exchequer. Cowell. 
 Placing or adding to a thing. Bnc. Lond. 
 
 ALLOCATIONE FACIENDA. In English 
 law. A writ directed to the lord treasurer 
 and barons of the exchequer, commanding 
 that an allowance be made to an account- 
 ant for such moneys as he has lawfully ex- 
 pended in his office. 
 
 ALLOCATO COMITATU. In old Eng- 
 lish practice. In proceedings in outlawry, 
 when there were but two county courts 
 holden between the delivery of the writ of 
 exigi facias to the sheriff and its return, a 
 special exi'gi facias, with an allocato com- 
 itatu issued to the sheriff In order to com- 
 plete the proceedings. Bac. Abr. "Out- 
 lawry." 
 
 ALLOCATUR (Lat. it is allowed). A 
 Latin word formerly used to deD,ote that a 
 writ or order was allowed. 
 
 A word denoting the allowance by a mas- 
 ter or prothonotary of a bill referred for 
 his consideration, whether touching costs, 
 damages, or matter of account. Lee, Diet. 
 
 ALLOCATUR EXIGENT. A writ of exi- 
 gent which issued in a process of outlawry, 
 upon the sheriff's making return to the 
 original exigent that there were not five 
 county courts held between the teste of the 
 original writ and the return day. 1 Tidd, 
 Prac. 128. 
 
 ALLOCUTUS. In criminal procedure. 
 When a prisoner is convicted on a trial for 
 treason or felony, the court is bound to de- 
 mand of him what he has to say as to why 
 the court should not proceed to judgment 
 against him. This demand is called the 
 
 "allocutus," and is entered on the record. 
 Archb. Crim. PI. 173. 
 
 ALLODARII. Those who own allodial 
 
 lands. 
 
 Those who have as large an estate as a 
 subject can have. Co. Litt. 1; Bac. Abr. 
 "Tenure" (A). 
 
 ALLODIUM (Sax. a, privative, and lode 
 or leude, a vassal; that is, without vassal- 
 age). An estate held by absolute owner- 
 ship, without recognizing any superior to 
 whom any duty is due on account thereof. 
 1 Washb. Real Prop. 16; 9 Cow. (N. Y.) 
 513. 
 
 It is used in opposition to feodum or fief, 
 which means property the use of which was 
 bestowed upon another by the proprietor, 
 on condition that the grantee should per- 
 form certain services for the grantor, and 
 upon the failure of which the property 
 should revert to the original possessor. 
 
 ALLOGRAPH. A document not written 
 by any of the parties thereto; opposed to 
 autograph. 
 
 ALLONGE (Pr.) A piece of paper an- 
 nexed to a bill of exchange or promissory 
 note, on which to write indorsements for 
 which there is no room on the instrument 
 itself. Pardessus, note 343; Story, Prom. 
 Notes, §§ 121, 151. 
 
 ALLOTMENT NOTE. In English law. 
 An assignment by a seaman of future 
 wages. Such assignments are regulated 
 by law as to form and amount, and as to 
 the persons to whom they may be made. 
 Mozley & W. 
 
 ALLOTMENT SYSTEM. A system in 
 force in England, by which the borough 
 sanitary authorities are required to ob- 
 tain, by condemnation, if necessary, lots of 
 land, and to allot them among the laboring 
 classes at a rent charged not to exceed 
 what is necessary to protect the public 
 from loss. 
 
 ALLOTMENT WARDEN. By the Eng- 
 lish general inclosure act of 1845 (section 
 108) , when an allotment for the laboring poor 
 of a district has been made on an inclosure 
 under the act, the land so allotted is to be 
 under the management of the incumbent 
 and church warden of the parish, and two 
 other persons elected by the parish, and 
 they are to be styled "the allotment war- 
 dens" of the parish. Sweet. 
 
 ALLOTTEE. One to whom an allotment 
 is made. 
 
 ALLOY, or ALLAY. An inferior metal 
 used with gold and silver in making coin. 
 The amount of alloy to be used is deter- 
 mined by law, and is subject to changes 
 from time to time. 
 
 ALLOYNOUR (Law Pr.) One who con- 
 ceals, steals, or carries off a thing privately. 
 
 Britt. c. 17. 
 
ALLUVIO MARIS 
 
 (47) 
 
 ALTIUS NON TOLLENDI 
 
 ALLUVIO MARIS (Lat.) Soil formed by 
 the washing up of earth from the sea. 
 Schultes, Aq. Rights, 138. 
 
 ALLUVION. That increase of the earth 
 on a shore or bank of a river by the force 
 of the water, as by a current or by waves, 
 which is so gradual that no one can judge 
 how much is added at each moment of time. 
 Inst. 1. 2, tit. 1, § 20; 3 Barn. & C. 91; 
 Code Civil Annote, note 556. See "Accre- 
 tion;" "Reliction." 
 
 ALLY. A nation which has entered into 
 an alliance with another nation. 1 Kent, 
 Comm. 69. 
 
 A citizen or subject of one of two or more 
 allied nations. 4 C. Rob. Adm. 251; 6 C. 
 Rob. Adm. 205; 2 Dall. (Pa.) 15; Dane, 
 Abr., Index. 
 
 ALMESFEOH. In Saxon law. Alms fee; 
 alms money. Otherwise called "Peter-pence." 
 Cowell. 
 
 ALMOIGN (Law Fr.) Alms; a tenure of 
 lands by divine service. See "Frankal- 
 moigne." 
 
 ALMOXARIFAZGO. In Spanish law. A 
 general term, signifying both export and 
 import duties, as well as excise. Derived 
 from the Arabic, and said to signify the 
 same as portorium In Latin. Schmidt, Civ. 
 Law, 81, note 2. 
 
 ALMS. Any species of relief bestowed 
 upon the poor. 
 
 That which is given by public authority 
 for the relief of the poor. Shelf. Mortm. 802, 
 note x; Hayw. Elect. 263; 1 Doug. Elect. 
 370; 2 Doug. Elect. 107. 
 
 ALNAGER, or ULNAGER. A public sworn 
 ofBcer of the king, who, by himself or 
 his deputy, looks to the assize of woolen 
 cloth made throughout the land, and to the 
 putting on the seals for that purpose or- 
 dained. St. 17 Rich. II. c. 2; Cowell; 
 Blount; Termes de la Ley. 
 
 ALNETUM. A place where alder trees 
 grow. Domesday Book; Cowell; Blount. 
 
 ALODE, ALODES, or ALODIS (Law Lat.) 
 In feudal law. Old forms of alodium or al- 
 lodiiim (g. v.) Spelman. 
 
 ALT (Law Pr.) In Scotch practice. An 
 abbreviation of alter, the other ; the opposite 
 party; the defender. 1 Brown, 336, note. 
 
 High. Kelham. 
 
 ALTA PRODITIO. High treason. 
 
 ALTA VIA. The highway. 
 
 ALTARAGE. In ecclesiastical law. Of- 
 ferings made on the altar; all profits which 
 accrue to the priest by means of the altar. 
 Ayliffe, Par. 61; 2 Croke, 516. 
 
 ALTERATION. A change in the terms 
 of a contract, made by the agreement of 
 the parties thereto. 
 
 An act done upon an instrument in writ- 
 
 ing by a party entitled under it, without 
 the consent of the other party, by which its 
 meaning or language is changed. 
 
 The term is properly applied to the change 
 in the language of instruments, and is not 
 used of changes in the contract itself; and 
 it is in strictness to be distinguished from 
 the act of a stranger in changing the form 
 or language of the instrument, which is 
 called a "spoliation." This latter distinc- 
 tion is not always observed in practice, 
 however. 
 
 ALTERIUS CIRCUMVENTIO ALII NON 
 praebet actionem. Dig. 50. 17. 49. A de- 
 ception practiced upon one person does not 
 give a cause of action to another. 
 
 ALTER NAT. A usage among diploma- 
 tists by which the rank and places of differ- 
 ent powers, who have the same right and 
 pretentions to precedence, are changed from 
 time to time, either in a certain regular or- 
 der, or one determined by lot. In drawing 
 up treaties and conventions, for example, it 
 is the usage of certain powers to alternate, 
 both in the preamble and the signatures, 
 so that each power occupies, in the copy in- 
 tended to be delivered to it, the first place. 
 "Wheat. Int. Law, pt. 2, c. 3, § 4. 
 
 ALTERNATIM (Law Lat.) Interchange- 
 ably. Litt. § 371; Towns. PI. 37. 
 
 ALTERNATIVA PETITIO NON EST 
 audienda. An alternative petition is not to 
 be heard. 5 Coke, 40. 
 
 ALTERNATIVE. Allowing a choice be- 
 tween two or more things or acts to be 
 done. 
 
 In contracts, a party has often the choice 
 which of several things to perform. A 
 writ is in the alternative which commands 
 the defendant to do the thing required, or 
 show the reason wherefore he has not 
 done it. Pinch, 257; 3 Bl. Comm. 273. The 
 first mandamus is an alternative writ. 3 
 Bl. Comm. 111. See "Nisi." 
 
 ALTERNATIVE REMEDY. One of sev- 
 eral remedies between which one must 
 elect. See "Cumulative Remedy." 
 
 ALTERNATIVE WRIT. A writ com- 
 manding the person against whom It is is- 
 sued to do a specified thing, or show cause 
 to the court why he should not be com- 
 pelled to do it. 
 
 ALTERNIS VICIBUS (Law Lat.) By al- 
 ternate turns; at alternate times; alter- 
 nately. Co. Litt. 4a; Shep. Touch. 206. 
 
 ALTERUM NON LAEDERE. Not to in- 
 jure another. One of Justinian's three 
 principles, basis of all law. Inst. 1. 1. See 
 "Honeste Vivere," and "Suam Cuique Tri- 
 buere." 
 
 ALTIUS NON TOLLENDI. In civil law. 
 A servitude by which the owner of a house 
 is restrained from building beyond a cer- 
 tain height. 
 
ALTIUS TOLLENDI 
 
 (48) 
 
 AMBITUS 
 
 ALTIUS TOLLENDI. In civil law. A 
 servitude which consists in the right, to 
 him who is entitled to it, to build his house 
 as high as he may think proper. In general, 
 every one enjoys this privilege, unless he 
 Is restrained by some contrary title. 
 
 ALTO ET BASSO. High and low. This 
 phrase is applied to an agreement made be- 
 tween two contending parties to submit all 
 matters in dispute, alto et iasso, to arbitra- 
 tion. Cowell. 
 
 ALTUM MARE. The high sea. 
 ALUMNUS. A foster child. 
 
 ALVEUS (Lat.) The bed or channel 
 through which the stream flows when it 
 runs within its ordinary channel. Calv. 
 Lex. 
 
 Alveus derelictus, a deserted channel. 1 
 Mackeld. Civ. Law, 280. 
 
 AMALPHITAN TABLE. A code of sea 
 laws compiled for the free and trading re- 
 public of Amalphi toward the end of the 
 eleventh century. 3 Kent, Comm. 9. It 
 consists of the laws on maritime subjects 
 which were or had been in force in coun- 
 tries bordering on the Mediterranean, and, 
 on account of its being collected into one 
 regular system, it was for a long time re- 
 ceived as authority in those countries. 1 
 Azuni, Mar. Law, 376. 
 
 AMBACTUS (Lat. amUre, to go about). 
 A servant sent about; one whose services 
 his master hired out. Spelman. 
 
 AMBASCIATOR. A person sent about in 
 the service of another; a person sent on a 
 service. A word of frequent occurrence in 
 the writers of the middle ages. Spelman. 
 
 AMBASSADOR. In international law. 
 A public minister sent abroad by some sov- 
 ereign state or prince, with a legal commis- 
 sion and authority to transact business on 
 behalf of his country with the government 
 to which he is sent. 
 
 Ambassadors extraordinary are those em- 
 ployed on particular or extraordinary occa- 
 sions, or residing at a foreign court for an 
 indeterminate period. Vattel, lib. 4, c. 6, §§ 
 70-79. 
 
 Ambassadors ordinary are those sent on 
 permanent missions. 
 
 An ambassador is a minister of the high- 
 est rank. 
 
 The United States were formerly repre- 
 sented by ministers plenipotentiary, sending 
 no person of the rank of an ambassador, in 
 the diplomatic sense. 1 Kent, Comm. 39, 
 note. Ambassadors are now sent by the 
 United States to England, France, Germany, 
 Russia, and Italy under Act Cong. March 1, 
 3893. 
 
 AMBIDEXTER (Lat.) Skillful with both 
 hands. 
 
 Applied anciently to an attorney who took 
 pay from both sides, and subsequently to a 
 juror guilty of the same offense. Cowell. 
 
 AMBIGUA RESPONSIO CONTRA PRO- 
 ferentem est acciplenda. An ambiguous an- 
 swer is to be taken against the party who 
 offers it. 10 Coke, 58. 
 
 AMBIGUIS CASIBUS SEMPER PRAE- 
 sumitur pro rege. In doubtful cases the 
 presumption is always in favor of the king. 
 Lofft, 248. 
 
 AMBIGUITAS VERBORUM LATENS 
 verificatlone suppletur; nam quod ex facto 
 oritur amblguum verlficatione facti tollltur. 
 
 A latent ambiguity may be supplied by 
 evidence, for an ambiguity which arises 
 out of a fact may be removed by proof of 
 the fact. Bac. Max. reg. 23; 8 Bing. 247. 
 See 1 Powell, Dev. 477; 2 Kent, Comm. 557; 
 Broom, Leg. Max. (3d London Ed.) 541; 13 
 Pet. (U. S.) 97; 8 Johns. {N. Y.) 90; 3 Halst. 
 (N. J.) 71. 
 
 AMBIGUITAS VERBORUM PATENS 
 nulla verlficatione excluditur. A patent am- 
 biguity is never holpen by averment. Lofft, 
 249; Bac. Max. 25; Cowen, J., 21 Wend. (N. 
 Y.) 651, 659; 23 Wend. (N. Y.) 71, 78; Story, 
 J., 1 Mason (U. S.) 11; Lipscomb, J., 1 Tex. 
 377, 383. 
 
 AMBIGUITY (Lat. ambiguitas, indistinct- 
 ness; duplicity). Duplicity, indistinctness, . 
 or uncertainty of meaning of an expression 
 used in a written instrument. 
 
 The term does not include mere inaccu- 
 racy, or such uncertainty as arises from the 
 use of peculiar words, or of common words 
 in a peculiar sense (Wigram, Wills, 174; 3 
 Sim. 24; 3 Man. & G. 452; 8 Mete. [Mass.] 
 576; 13 Vt. 36. See 21 Wend, l^m- Y.] 651), 
 and intends such expressions as would be 
 found of uncertain meaning by persons of 
 competent skill and information (1 Greenl. 
 Ev. § 298). 
 
 It has also been confined to duplicity of 
 meaning, and thus distinguished from gen- 
 eral uncertainty. 2 Pars. Cont. 557, note. ' 
 
 Latent ambiguity is that which arises from 
 some collateral circumstance or extrinsic 
 matter in cases where the instrument itself 
 is sufficiently certain and intelligible. 1 Gray 
 (Mass.) 134. 
 
 Patent ambiguity is that which appears on 
 the face of the instrument; that which oc- 
 curs when the expression of an instrument 
 is so defective that a court of law which is 
 obliged to put a construction upon it, placing 
 itself in the situation of the parties, cannot 
 ascertain therefrom the parties' intention. 4 
 Mass. 205; 4 Cranch (U. S.) 167; 1 Greenl. 
 Ev. §§ 292-300. 
 
 AMBIGUUM PLACITUM INTERPRETARI 
 debet contra proferentem. An ambiguous 
 plea ought to be interpreted against the 
 party pleading it. Co. Litt. 303b; Broom, 
 Leg. Max. (3d London Ed.) 535; Steph. PI. 
 (5th Ed.) 415; Bac. Max. reg. 3; 2 H. Bl. 531; 
 2 Mees. & W. 444. 
 
 AMBIT. A boundary line. 
 
 AMBITUS (Lat.) A space beside a 
 building, two and a half feet In width, and 
 
AMBRA 
 
 (49) 
 
 AMNESTY 
 
 of the same length, as the building; a space 
 two and a half feet in width between two 
 adjacent buildings; the circuit, or distance 
 around. Calv. Lex. 
 
 AMBRA. In Saxon law. A vessel or 
 measure, the capacity of which is now un- 
 known. Spelman. 
 
 AMBULATORIA EST VOLUNTAS DE- 
 functi usque ad vitae supremum exitum. 
 The will of a deceased person is ambulatory 
 until the last moment of life. Dig. 34. 4. 4; 
 Broom, Leg. Max. (3d London Ed.) 445; 2 
 Bl. Comm. 502; Co. Litt. 322b; 1 Vict. c. 
 26, § 24; 3 Bl. & Bl. 572; 1 Jarm. Wills (2d 
 Ed.) 11; 1 Mylne & K. 485; 2 Mylne & K. 73. 
 
 AMBULATORY (Lat. anibulare, to walk 
 about). Movable; changeable; that which 
 is not fixed. 
 
 Ambulatoria voluntas (a changeable will) 
 denotes the power which a testator posses- 
 ses of altering his will during his lifetime. 
 
 AMELIORATIONS. Betterments. 6 Low. 
 (U. S.) 294; 9 Low. (U. S.) 503. 
 
 AMENABLE. Responsible; subject to 
 answer in a court of justice; liable to pun- 
 ishment. 
 
 AMENDE HONORABLE. 
 
 In English Law. A penalty Imposed 
 
 upon a person by way of disgrace or in- 
 famy, as a punishment for any offense, or 
 for the purpose of making reparation for 
 any injury done to another, as the walking 
 into church in a white sheet, with a rope 
 about the neck and a torch in the hand, 
 and begging the pardon of God, or the king, 
 or any private individual, for some delin- 
 quency. 
 
 In French Law. A punishment some- 
 what similar to this, and which bore the 
 same name, was common In France. It was 
 abolished by the law of the 25th of Septem- 
 ber, 1791. Merlin, Repert. 
 
 AMENDMENT. 
 
 In Practice. The correction, by al- 
 lowance of the court, of an error commit- 
 ted in the progress of a cause, whether in 
 process, pleading, proceedings, or judgment. 
 It has been held not to include the substi- 
 tution of a new pleading. 31 How. Pr. (N. 
 Y.) 164; but see 4 Daly (N. Y.) 494. 
 
 In Legislation. An alteration or change 
 
 of something proposed in a bill or estab- 
 lished as law. 
 
 AMENDS. A satisfaction given by a wrong- 
 doer to the party injured for a wrong com- 
 mitted. 1 Lilly, Reg. 81. 
 
 By St. 24 Geo. II. c. 44, in England, and 
 by similar statutes in some of the United 
 States, justices of the peace, upon being no- 
 tified of an intended suit against them, may 
 tender amends for the wrong alleged or 
 done by them in their official character, 
 and, if found sufficient, the tender debars 
 the action. 5 Serg. & B. (Pa.) 209, 517; 4 
 Bin. (Pa.) 20; 6 Bin. (Pa.) 83. 
 
 AMENTIA. Insanity; idiocy. 
 
 AMERALIUS (Law Lat.) A naval com- 
 mander, under the eastern Roman empire, 
 but not of the highest rank; the origin, ac- 
 cording to Spelman, of the modern title and 
 office of admiral. Spelman. 
 
 AMERCEMENT. In practice. A pecun- 
 iary penalty imposed upon an offender by 
 a judicial tribunal. 
 
 The judgment of the court is that the 
 party be at the mercy of the court (sit in 
 misericorilia), upon which the affecfors — 
 or, in the superior courts, the coroner — 
 liquidate the penalty. As distinguished 
 from a fine, at the old law an amercement 
 was for a lesser offense, might be imposed 
 by a court not of record, and was for an 
 uncertain amount until it had been affeered, 
 while the amount of a fine was regulated 
 by statute. Either party to a suit who 
 failed was to be amerced pro clamore falsa 
 (for his false claim), but these amerce- 
 ments have been long since disused. 4 Bl. 
 Comm. 379; Bac. Abr. "Pines and Amerce- 
 ments." 
 
 The officers of the court, and any person 
 who committed a contempt of court, was 
 also liable to be amerced. 
 
 AMESUREMENT (Law Fr.) In old Eng- 
 lish law. Admeasurement. Britt. c. 58; Reg. 
 Orig. 155, "Regula." 
 
 AMI, or AMY (Fr.) A friend. See "Pro- 
 chein Ami." 
 
 AMICABLE ACTION. In practice. An 
 action entered by agreement of parties on 
 the dockets of the courts. 
 
 AMICABLE COMPOUNDERS. "There 
 are two sorts of arbitrators, — the arbitra- 
 tors properly so called, and the amicable 
 compounders. The arbitrators ought to de- 
 termine as judges, agreeably to the strict- 
 ness of law. Amicable compounders are 
 authorized to abate something of the strict- 
 ness of the law in favor of natural equity. 
 Amicable compounders are in other respects 
 subject to the same rules which are provid- 
 ed for the arbitrators by the present title." 
 Civ. Code La. arts. 3109, 3110. 
 
 AMICUS CURIAE (Lat. a friend of the 
 court). One who, for the assistance of the 
 court, gives information of some matter of 
 law in regard to which the court is doubt- 
 ful or mistaken. Coke, 2d Inst. 178; 2 
 Viner, Abr. 475. The information may ex- 
 tend to any matter of which the court takes 
 judicial cognizance. 8 Coke, 15. 
 
 AMITTERE CURIAM (Lat. to lose court). 
 To be excluded from the right to attend 
 court. St. Westminster II. c. 44. 
 
 AMITTERE LIBERAM LEGEM. Losa 
 all rights under the law. 
 
 AMNESTY. An act of oblivion of past 
 offenses, granted by the govpnraent to 
 those who have been guiltv of aiv neglect 
 
AMORTISE 
 
 (SO) 
 
 ANARCHY 
 
 or crime, usually upon condition that they 
 return to their duty within a certain period. 
 
 Express amnesty is one granted in direct 
 terms. 
 
 Implied amnesty is one which results 
 when a treaty of peace is made between 
 contending parties. Vattel, lib. 4, c. 2, §§ 
 1 20-22. 
 
 Amnesty and pardon are very different. 
 The former is an act of the sovereign power, 
 the object of which is to efface and to 
 cause to be forgotten a crime or misde- 
 meanor; the latter is an act of the same 
 authority, which exempts the individual on 
 whoja it is bestowed from the punishment 
 the law inflicts for the crime he has com- 
 mitted. 7 Pet. (U. S.) 160. Amnesty is the 
 abolition and forgetfulness of the offense; 
 pardon is forgiveness. A pardon is given 
 to one who is certainly guilty, or has been 
 convicted; amnesty, to those who may have 
 been so. 
 
 Their effects are also different. That of 
 pardon is the remission of the whole or a 
 part of the punishment awarded by the 
 law, — the conviction remaining unaffected 
 when only a partial pardon is granted. 
 An amnesty, on the contrary, has the ef- 
 fect of destroying the criminal act, so that 
 it is as if it had not been committed, as far 
 as the public interests are concerned. 
 
 Their application also differs. Pardon is 
 always given to individuals, and properly 
 only after judgment or conviction. Amnesty 
 may be granted either before judgment or 
 afterwards, and it is in general given to 
 whole classes of , criminals, or supposed 
 criminals, for the purpose of restoring tran- 
 quility in the state; but sometimes amnes- 
 ties are limited, and certain classes are ex- 
 cluded from their operation. See Phil. (N. 
 C.) 247. 
 
 AMORTISE. To alien lands in mort- 
 main. 
 
 AMORTIZATION. An alienation of lands 
 or tenements in mortmain. 
 
 The reduction of the property of lands or 
 tenements to mortmain. 
 
 AMOTION (Lat. amovere, to remove; to 
 take away). An unlawful taking of per- 
 sonal chattels out of the possession of the 
 owner, or of one who has a special authori- 
 ity in them. 
 
 A turning out the proprietor of an estate 
 in realty before the termination of his es- 
 tate. 3 Bl. Comm. 198, 199. i 
 
 In Corporations. A removal of an ofll- 
 
 clal agent of a corporation from the station 
 assigned to him before the expiration of the 
 term for which he was appointed. 6 Conn. 
 532. 
 
 The term is distinguished from disfran- 
 chisement, which deprives a member of all 
 rights as a corporator. The term seems 
 in strictness not to apply properly to cases 
 where officers are appointed merely during 
 the will of the corpora^on, and are super- 
 seded by the choice of a successor, but as 
 commonlv used includes such cases. 4 
 Abb. Pr. (N. S.; N. Y.) 192. 
 
 AMOUNT COVERED. In insurance. The 
 amount that is insured, and for which un- 
 derwriters are liable for loss under a policy 
 of insurance. 
 
 AMOUNT OF LOSS. In insurance. The 
 diminution, destruction, or defeat of the 
 value of, or of the charge upon, the insured 
 subject to the assured, by the direct conse- 
 quence of the operation of the risk insured 
 against, according to its value in the policy, 
 or in contribution for loss, so far as its 
 value is covered by the insurance. 2 Phil. 
 Ins. cc. 25-27; 2 Pars. Mar. Law, c. 10, § 1, 
 cc. 11, 12; 9 Cush. (Mass.) 415; 1 Gray 
 (Mass.) 371; 26 N. H. 389; 31 N. H. 238; 5 
 Duer (N. Y.) 1; 1 Dutch. (N. J.) 506; 6 
 Ohio St. 200; 5 R. I. 426; 2 Md. 217; 7 El. 
 & Bl. 172. 
 
 AMOVEAS MAN US (Lat. that you re- 
 move your hands). After office found, the 
 king was entitled to the things forfeited, 
 either lands or personal property. The rem- 
 edy for a person aggrieved was by "peti- 
 tion," or "monstrans de droit," or "traver- 
 ses," to establish his superior right. There- 
 upon a writ issued, quod manus domini 
 regis amoveantur. 3 Sharswood, Bl. Comm. 
 260. 
 
 AMPARO (Spanish). A document pro- 
 tecting the claimant of land till properly 
 authorized papers can be issued. 1 Tex. 
 790. 
 
 AMPLIATION. 
 
 In Civil Law. A deferring of judg- 
 ment until the cause is further examined. 
 In this case, the judges pronounced the 
 word amplius, or by writing the letters N. 
 L. for non liquet, signifying that the cause 
 was not clear. It is very similar to the 
 common-law practice of entering cur. adv. 
 vult in similar cases. 
 
 In Frencii Law. A duplicate of an 
 
 acquittance or other instrumeht. 
 
 A notary's copy of acts passed before 
 him, delivered to the parties. 
 
 AMPLIUS (Lat.) In the Roman la^. 
 More; further; more time. A word which 
 the praetor pronounced in cases where 
 there was any obscurity in a cause, and the 
 judices were uncertain whether to condemn 
 or acquit, by which the case was deferred 
 to a day named. Adam, Rom. Ant. 287. 
 
 AMY (Pr.) Friend. See "Prochein Ami." 
 
 AN, JOUR, ET WASTE. See "Year, Day, 
 and Waste." 
 
 ANACRISIS. In the civil law. An in- 
 vestigation of truth, interrogation of wit- 
 nesses, and inquiry made into any fact, 
 especially by torture. 
 
 ANAGRAPH. A register, or Inventory. 
 
 ANALOGY. The similitude of- relations 
 which exist between things compared. 
 
 ANARCHY. The absence of all political 
 government; by extension, confusion in 
 government. 
 
ANATHEMA 
 
 (51) 
 
 ANGARIA 
 
 ANATHEMA. In ecclesiastical law. A 
 punishment by which a person is separated 
 from the body of the church, and forbidden 
 all intercourse with the faithful. It differs 
 from excommunication, which simply for- 
 bids the person excommunicated from go- 
 ing into the church and communicating with 
 the faithful. 
 
 ANATOCISM. In civil law. Taking In- 
 terest on Interest; receiving compound In- 
 terest. 
 
 ANCESTOR. One who has preceded an- 
 other in a direct line of descent; an ascend- 
 ant. 
 
 A former possessor; the person last seis- 
 ed. Termes de la Ley; 2 Sharswood, Bl. 
 Comm. 201. 
 
 In the common law, the word is under- 
 stood as well of the immediate parents as 
 of those that are higher; as may appear by 
 St. 25 Edw. III., De natis ultra mare, and 
 by St. 6 Rich. II. c. 6, and by many others. 
 But the civilians' relations in tjie ascend- 
 ing line, up to the great-grandfather's pa- 
 rents, and those above them, they term 
 majores, which common lawyers aptly ex- 
 pound antecessors, or ancestors, for in the 
 descendants of like degree they are called 
 posteriores. Gary, Litt. 45. The term "an- 
 cestor" is applied to natural persons. The 
 words "predecessors" and "successors" are 
 used in respect to the persons composing a 
 body corporate. See 2 Bl. Comm. 209 ; Bac. 
 Abr.; Ayliffe, Pand. 58; Reeve, Descents. 
 
 ANCESTRAL. What relates to or has 
 been done by one's ancestors; as homage 
 ancestral, and the like. 
 
 That which belonged to one's ancestors. 
 
 Ancestral estates are such as come to 
 the possessor by descent. 2 Washb. Real 
 Prop. 411, 412. 
 
 ANCHOR. A measure containing ten 
 gallons. 
 
 ANCHOR WATCH. The lookout required 
 to be kept on the deck of a vessel riding at 
 anchor. See 102 V. S. 200; 29 Fed. 601. 
 
 ANCHORAGE. A toll paid for every 
 anchor cast from a ship in a port. 
 
 ANCIENT DEMESNE. Manors which, in 
 the time of William the Conqueror, were in 
 the hands of the "crown, and are so recorded 
 In the Domesday Book. Pitzh. Nat. Brev. 
 14, 56. 
 
 Tenure in ancient demesne may be plead- 
 ed in abatement to an action of ejectment. 
 2 Burrows, 1046. 
 
 Tenants of this class had mafly privileges. 
 2 Sharswood, Bl. Comm. 99. 
 
 ANCIENT HOUSE. One which has stood 
 long enough to acquire an easement of sup- 
 port. 3 Kent, Comm. 437; 2 Washb. Real 
 Prop. 74, 76. See "Easement." 
 
 ANCIENT LIGHTS. Windows or open- 
 ings which have remained in the same place 
 
 and condition twenty years or more. 5 Har. 
 & J. (Md.) 477; 12 Mass. 157, 220. 
 
 In England. A right to unobstructed 
 
 light and air through such openings is se- 
 cured by mere user. 
 
 In the United States. Such right is 
 
 not acquired without an express grant, in 
 most of the states. 2 Washb. Real Prop. 
 62, 63; 3 Kent, Comm. 446, note. See 11 
 Md. 1. See "Air." 
 
 ANCIENT READINGS. Essays on the 
 early English statutes. Co. Litt. 280. 
 
 ANCIENT RENT. The rent reserved at 
 the time the lease was made, if the build- 
 ing was not then under lease. 2 Vern. 542. 
 
 ANCIENT SERJEANT. In English law. 
 The eldest of the queen's Serjeants. 
 
 Serjeants were distinguished as ancient 
 and puisne. 
 
 ANCIENT WRITINGS. Deeds, wills, and 
 other writings, more than thirty years old. 
 
 ANCIENTS. Gentlemen in the Inns of 
 Courts who are of a certain standing. 
 
 In the Middle Temple, all who have 
 passed their readings are termed "ancients." 
 In Gray's Inn, the ancients are the oldest 
 barristers; besides which, the society con- 
 sists of benchers, barristers, and students. 
 In the Inns of Chancery, it consists of an- 
 cients and students or clerks. 
 
 ANCIENTY. Eldership; seniority. Used 
 in St. Ir. 14 Hen. VIII. Cowell. 
 
 ANCILLARY (Lat andlla, a handmaid). 
 Auxiliary ; subordinate. 
 
 ANCILLARY ADMINISTRATION. See 
 
 "Administration." 
 
 ANCIPITIS USUS (Lat.) Useful for va- 
 rious purposes. 
 
 As it is impossible to ascertain the final 
 use of an article ancipitis usus, it is not an 
 injurious rule which deduces the final use 
 from its immediate destination. 1 Kent, 
 Comm. 140. 
 
 ANDROCHIA. In old English law. A 
 dairy woman. Fleta, lib. 2, c. 87. 
 
 ANDROGYNOUS. Hermaphrodltical. 
 
 ANDROGYNUS, or ANDROGYNE. An 
 
 hermaphrodite. Johnson. 
 
 ANDROLEPSY. The taking by one na- 
 tion of the citizens or subjects of another, 
 in order to compel the latter to do justice 
 to the former. Wolff. Inst. § 1164; Molloy de 
 Jur. Mar. 26. 
 
 ANECIUS, AESNECIUS, ENITIUS, AEN- 
 eas, or eneyus (Lat.) The eldest born; the 
 first born; senior, as contrasted with the 
 puisne (younger). Spelman, "Aesnecla." 
 
 ANGARIA. 
 
 In Roman Law. A service or punish- 
 ment exacted by government. They were 
 
ANGEL 
 
 (52) 
 
 ANIMUS 
 
 of six kinds, viz., maintaining a post sta- 
 tion where horses are changed; furnishing 
 horses or carts; burdens imposed on lands 
 or persons; disturbance, injury, anxiety of 
 mind; the three or four day periods of 
 fasting observed during the year; saddles 
 or yokes borne by criminals from county 
 to county, as a disgraceful mode of pun- 
 ishment among the Germans or Franks.^ 
 Du Gauge. 
 
 In Feudal Law. Any troublesome or 
 
 vexatious personal service paid by the ten- 
 ant to his lord. Spelman. 
 
 ANGEL. An ancient English coin, of the 
 value of ten shillings sterling. Jacob. 
 
 ANGILD, ANGYLDE, or ANGELD (Sax. 
 from an, one, and gild, a payment or satis-, 
 faction). The single value of a man or 
 other thing; the compensation for a thing 
 according to its single value or estimation." 
 See "Trigild;" Spelman. The rate fixed by 
 law at which injuries to person or property 
 were to be paid for. Also the fixed price at 
 which cattle and other goods were received 
 as currency. Wharton. 
 
 ANGLESCHERIA. In old English law. 
 Englishery; the fact of being an English- 
 man. Fleta, lib. 1, c. 30; Bracton uses 
 "Englesheria" (fol. 135). 
 
 Under Canute and William the Conquerer, 
 for the protection of their subjects from as- 
 sassination, a heavier fine was imposed on 
 the vill or hundred for the killing of a Dane 
 or Norman than for the killing of a native. 
 It was an object, therefore, for the hundred 
 to prove Auqlexchcritt to relieve itself from 
 the added penalty. AngXescheria was abol- 
 ished by St. 14 Bdw. III. c. 4. 4 Bl. Comm. 
 195. 
 
 ANGLIAE JURA IN OMNI CASU LIBER- 
 tatl dant favorem. The laws of England are 
 favorable in every case to liberty. Halk. 
 Max. 12. 
 
 ANGLICE. In English. A term former- 
 ly used ' in pleading when a thing is de- 
 scribed both in Latin and English, inserted 
 immediately after the Latin, and as an in- 
 troduction of the English translation. 
 
 ANGYLDE. See "Angild." 
 
 ANHLOTE (Saxon). The sense is that 
 every one should pay, according to the cus- 
 tom of the country, his respective part and 
 share. Spelman. 
 
 ANIENS, or ANIENT. Void; of no force. 
 Fitzh. Nat. Brev. 214. 
 
 ANIMAL. Any animate being which Is 
 not human, endowed with the power of vol- 
 untary motion. 
 
 Domitae are those which have been tamed 
 by man; domestic. 
 
 Ferae naturae are those which still re- 
 tain their wild nature. 
 
 Mansuetae naturae, those which are tame 
 by nature. 
 
 ANIMALIA FERA, SI FACTA SINT 
 mansueta at ex consuetudine eunt et redeunt, 
 volant et revolant, ut cervi, cygni, etc., eo 
 usque nostra sunt, et ita intelllguntur quam- 
 dlu habuerunt aninnum revertendi. Wild 
 animals, if they be made tame, and are ac- 
 customed to go out and return, fly away 
 and fiy back, as stags, swans, etc., are con- 
 sidered to belong to us so long as they have 
 the intention of returning to us. 7 Coke, 16. 
 
 ANIMALS OF A BASE NATURE. Those 
 animals which, though they may be reclaim- 
 ed, are not such that at common law a 
 larceny may be committed of them, by rea- 
 son of the baseness of their nature. Some 
 animals which are now usually tamed come 
 within this class, as dogs and cats; and oth- 
 ers which, though wild by nature, and often 
 reclaimed by art and industry, clearly fall 
 within the same rule, as bears, foxes, apes, 
 monkeys, ferrets, and the like. Coke, 3d 
 Inst. 109; 1 Hale, P. C. 511, 512; 1 Hawk. 
 P. C. 33, § 36; 4 Bl. Comm. 236; 2 East, P. 
 C. 614. See 1 Wm. Saund. 84, note 2. 
 
 AN I MO (Lat.) With intention. 
 
 Animo is used in combination in the same 
 manner as animus (q. v.) Thus, animo fu- 
 randi, with intent to steal, etc. 
 
 ANIMO ETCORPORE (Lat.) Bythemind 
 and by the body; by intent and act. 
 
 ANIMUS (Lat. mind) . The intention with 
 which an act is done. 
 
 Animus Cancellandi. An intention to 
 
 destroy or cancel. See "Cancellation." 
 
 Animus Capiendl. The intention to 
 
 take. 4 C. Rob. Adm. 126, 155. 
 
 Animus Dedicandi. The intention of 
 
 donating or dedicating. , 
 
 Animus Defamandi. The intention of 
 
 defaming. 
 
 Animus Derelinquendi. The inten- 
 tion of abandoning. 4 C. Rob. Adm. 216. 
 
 Animus Differendi. The intention of 
 
 delaying. 
 
 Animus Donandi. The intention of 
 
 giving. 
 
 Animus Felonico. Felonious intent. 
 
 Animus Furandi. The intention to 
 
 steal. 
 
 In order to constitute larceny, the thief 
 must take the property animo furandi; but 
 this Is expressed in the definition of lar- 
 ceny by the word "felonious." 3 Inst. 107; 
 Hale, P. C. 503; 4 Bl. Comm. 229. See 2 
 Russ. Crimes, 96; 2 Tyl. Comm. 272. When 
 the taking of property is lawful, although it 
 may afterwards be converted animo furandi 
 to the taker's use, it is not larceny. Bac. 
 Abr. "Felony" (C); 14 Johns. (N. Y.) 294; 
 Ryan & M. <137, 160; Principles of Penal 
 Law, c. 22, § 3, pp. 279, 281. 
 
 Animus Lucandi. The intent to gain 
 
 a profit. 3 Kent, Comm. 357. 
 
 Animus Manendi. The intention of 
 
 remaining. 
 
 To acquire a domicile, the party must 
 have his abode in one place, with the in- 
 tention of remaining there; for, without 
 such intention, no new domicile can be 
 
ANIMUS AD SE, ETC. 
 
 (S3) 
 
 ANNONAE CIVILES 
 
 gained, and the old will not be lost. See 
 "Domicile." 
 
 -r — Animus Morandi. The intention to re- 
 main, or to delay. 
 
 Animus Possidendi. The intention of 
 
 possessing. 
 
 Animus Quo. The intent with which. 
 
 Animus Recipiendi. The intention of 
 
 receiving. 
 
 A man will acquire no title to a thing un- 
 less he possesses it with an intention of 
 receiving it for himself; as, if a thing be 
 bailed to a man, he acquires no title. 
 
 Animus Recuperandi. The intention 
 
 of recovering. Locc. de Jur. Mar. lib. 2, c. 
 4, § 10. 
 
 Animus Republicandi. The intention 
 
 to republish. 
 
 Animus Restituendi. The intention of 
 
 restoring. 
 
 Animus Revertendi. The intention of 
 
 returning. 
 
 A man retains his domicile if he leaves 
 it animo revertendi. 3 Rawle (Pa.) 312; 4 
 Bl. Comm. 225; 2 Russ. Crimes, 18; Poph. 
 42, 52; 4 Coke, 40. See "Domicile." 
 
 Animus Testandi. An intention to 
 
 make a testament or will. 
 
 This is required to make a valid will; 
 for, whatever form may have been adopted, 
 if there was no animus testandi, there can 
 be no will. An idiot, for example, can make 
 no will, because he can have no intention. 
 
 ANIIVIUS AD SE OIVINE JUS DIGIT. It 
 
 is to the intention that all law applies. 
 
 ANIMUS HOIVIINIS EST ANIMA SCRIP- 
 ti. The intention of the party is the soul of 
 the instrument. 3 Bulst. 67; Pitman, Prin. 
 & Sur. 26. 
 
 ANN, or ANNAT. In Scotch law. Half a 
 year's stipend, over and above what is ow- 
 ing for the incumbency, due to a minister's 
 relict, or child, or next of kin, after his de- 
 cease. Whishaw; Bell, Diet. See Ersk. Inst, 
 bk. 2, tit. 10, §§ 65-67. 
 
 ANNALES (Lat.) Annuals; a title for- 
 merly given to the Year Books. 9 London, 
 Leg. Obs. 323. 
 
 In Old Records. Yearlings; cattle of 
 
 the first year. Cowell. 
 
 ANNALY. In Scotch law. To alienate; 
 to convey. 
 
 ANNATES. In ecclesiastical law. First 
 fruits paid out of spiritual benefices to the 
 pope, being the value of one year's proiit. 
 
 ANNEXATION (Lat. ad, to, iwxnre, to 
 bind). The union of one thing to another. 
 
 It conveys the idea, properly, of fastening 
 a smaller thing to a larger; an incident to 
 a principal. It has been applied to denote 
 the union of Texas to the United States. 
 
 Actual annexation includes every move- 
 ment by which a chattel can be joined or 
 united to the freehold. 
 
 Constructive annexation is the union of 
 such things as have been holden parcel of 
 
 the realty, but which are not actually an- 
 nexed, fixed, or fastened to the freehold. 
 Shep. Touch. 469; Amos & F. Fixt. 2. See 
 "Fixtures." 
 
 ANNI ET TEMPORA. (Lat.) Years and 
 terms. An old title of the Year Books. 9 
 London, Leg. Obs. 323. 
 
 ANNI NU BILES. (Lat. marriageable 
 years). The age at which a girl becomes by 
 law fit for marriage; the age of twelve. 
 
 ANNICULUS (Lat.) A child a year old. 
 Calv. Lex. 
 
 ANNICULUS TRECENTESIMO SEXA- 
 gesimo quinto die dicitur, incipiente plane 
 non exacto die, quia annum civiliter non 
 ad momenta temporum sed ad dies nu- 
 meramur. We call a child a year old on 
 the three hundred and sixty-fifth day, when 
 the day is fairly begun, but not ended, be- 
 cause we calculate the civil year not by mo- 
 ments, but by days. Dig. 50. 16. 134; Id. 
 132; Calv. Lex. 
 
 ANNIENTED (Fr. nneantir). 
 or made null. Litt. § 741. 
 
 Abrogated, 
 
 ANNO DOMINI (Lat. the year of our 
 Lord; abbreviated A. D.) The computa- 
 tion of time from the incarnation of Jesus 
 Christ. 
 
 Tlig._J.ews began their computation of 
 time from the creation; the Romans, from 
 the building of Rome; the Mohammedans, 
 from the Hegira, or flight of the prophet; 
 the Greeks reckoned by Olympiads; but 
 Christians everywhere reckon from the 
 birth of Jesus Ciirist. 
 
 In a complaint, the year of the alleged of- 
 fense mav be stated by means of the letters 
 "A. D.," followed by words expressing the 
 year. 4 Cush. (Mass.) 596. But an in- 
 dictment or complaint which states the year 
 of the commission of the offense in figures 
 only, without prefixing the letters "A. D.," 
 is insufficient. 5 Gray (Mass.) 91. The let- 
 ters "A. D.," followed by figures expressing 
 the year, have been held sufficient in sev- 
 eral states. 3 Vt. 481; 1 G. Greene (Iowa) 
 418; 35 Me. 489; 1 Bennett & H. Lead. Cr. 
 Cas. 512. 
 
 ANNONA (Lat.) Barley; corn; grain; 
 a yearly contribution of food, of various 
 kinds, for support. 
 
 Annona porcum, acorns; annona frumen- 
 tiim hordeo admixtum, corn and barley 
 mixed; annona panis, bread, without refer- 
 ence to the amount. Du Cange; Spelman; 
 Cowell. 
 
 The term is used in the old English law, 
 and also in the civil law quite generally, to 
 denote anything contributed by one person 
 towards the support of another; as, si quis 
 manriplo aniinnam dedcrit, if any shall have 
 given food to a slave. Du Cange; Spelman. 
 
 ANNONAE CIVILES. Yearly rents issu- 
 ing out of certain lands, and payable to 
 monasteries. 
 
ANNOTATION 
 
 (54) 
 
 ANSWER 
 
 ANNOTATrON. In civil law. 
 
 (1) The answers of the prince to ques- 
 tions put to him by private persons respect- 
 ing some doubtful point of law. See "Re- 
 script." 
 
 (2) Summoning an absentee. Dig. 1. 5. 
 I (3) The designation of a place of depor- 
 tation. Dig. 32. 1. 3. 
 
 ANNUA NEC DEDITUM JUDEX NON 
 separat ipse. Even the judge divides not an- 
 nuities or debt. 8 Coke, 52. See Story, Eq. 
 Jur. §§ 480, 517; 1 Salk. 36, 65. 
 
 ANNUA PENSIONE. 
 Pensione." 
 
 See "De Annua 
 
 ANNUAL ASSAY. An annual trial of the 
 gold and silver coin of the United States, 
 to ascertain whether the standard fineness 
 and weight of the coinage is maintained. 
 
 ANNUAL PENSION. In Scotch law. An- 
 nual rent or profit. 
 
 ANNUAL RENT. In Scotch law. Inter- 
 est. 
 
 To avoid the law against taking interest, 
 a yearly rent was purchased, hence the term 
 came to signify interest. Bell, Diet.; Pater- 
 son, Comp. §§ 19, 265. 
 
 ANNUITIES OF TIENDS. In Scotch law. 
 Annuities of tithes. 
 
 The yearly tax or allowance to the crown 
 on tithes not set apart for pious uses. 
 
 ANNUITY (Lat. anmms, yearly). A year- 
 ly sum stipulated to be paid to another in 
 fee, or for life, or years, and chargeable 
 only on the person of the grantor. Co. 
 Litt. 144b; 2 Bl. Comm. 40; Lumley, Ann. 
 1; 5 Mart. (La.) 312; Dav. Ir. 14. 
 
 An annuity is different from a rent charge, 
 with which it is sometimes confounded, — 
 the annuity being chargeable on the person 
 merely, and so far personalty, while a rent 
 charge is something reserved out of realty, 
 or fixed as a burden upon the estate in land. 
 2 Sharswood, Bl. Comm. 40; RoUe, Abr. 226; 
 10 "Watts (Pa.) 127. An annuity in fee is 
 said to be a personal fee; for, though trans- 
 missible, as is real estate of inheritance 
 (Amb. 782), liable to forfeiture as a here- 
 ditament (7 Coke, 34a), and not constitut- 
 ing assets in the hands of an executor, it 
 lacks some other characteristics of realty. 
 The husband is not entitled to curtesy, nor 
 the wife to dower, in an annuity. Co. Litt. 
 32a. It cannot be conveyed by way of use 
 (2 Wils. 224), is not within the statute of 
 frauds, and may be bequeathed, and assign- 
 ed as personal estate (2 Ves. Sr. 70; 4 Barn. 
 & A. 59 ; Roscoe, Real Actions, 35, 68 ; 3 Kent, 
 Comm. 460). 
 
 ANNUITY TAX. An impost levied an- 
 nually in Scotland for the maintenance of 
 the ministers of religion. Abolished 33 & 
 34 Vict. c. 87. 
 
 ANNULUS (Lat.) In old English law. 
 A ring; the ring of a door. Per haspam vel 
 anniblum nostii exterioris, by the hasp or 
 
 ring of the outer door. Fleta, lib. 3, c. 15, 
 § 5. 
 
 ANNULUS ET BACULUS (Lat. ring and 
 staff). The investiture of a bishop was per 
 annulum et baculum, by the prince's deliver- 
 ing to the prelate a ring and pastoral staff, 
 or crozier. 1 Sharswood, Bl. Comm. 378; 
 Spelman. 
 
 ANNUM, DIEM, ET VASTUM. See "Year, 
 Day, and Waste." 
 
 ANNUS (Lat.) In civil and old English 
 law. A year; the period of three hundred 
 and sixty-five days. Dig. 40. 7. 4. 5; Brac- 
 ton, fol. 359. See "Year." 
 
 ANNUS DELIBERANDI (Lat.) In Scotch 
 law. A year of deliberating; a year to de- 
 liberate. The year allowed by law to the 
 heir to deliberate whether he will enter 
 and represent his ancestor. It commences 
 on the death of the ancestor, unless in the 
 case of a posthumous heir, when the year 
 runs from his birth. Bell, Diet. 
 
 ANNUS, DIES, ET VASTUM. See "Year, 
 Day, and Waste." 
 
 ANNUS EST MORA MOTUS QUO SUUM 
 planeta pervolat circulum. A year is the 
 duration of the motion by which a planet 
 revolves through its orbit. Dig. 40. 7. 4. 
 5; Calv. Lex.; Bracton, 359b. 
 
 ANNUS LUCTUS (Lat.) The year of 
 mourning. Code, 5. 9. 2. 
 
 It was a rule among the Romans, and also 
 the Danes and Saxons, that the widows 
 should not marry infra annum luctus (with- 
 in the year of mourning). 1 Sharswood, Bl. 
 Comm. 457. 
 
 ANNUS UTILIS. A year made up of 
 available or serviceable days. Brissonius; 
 Calv. Lex. 
 
 ANNUUS REDITUS (or REDDITUS). A 
 
 yearly rent; annuity. 2 Sharswood, Bl. 
 Comm. 41; Reg. Orig. 158b. 
 
 ANONYMOUS. Without name. Books 
 published wjthout the name of the author 
 are said to be anonymous. Cases in the 
 reports of which the names of the parties 
 are not given are said to be anonymous. 
 
 ANSEL, ANSUL, or AUNCEL. In old 
 
 English law. An ancient mode of weighing 
 by hanging scales or hooks at either end 
 of a beam or staff, which, being lifted with 
 one's finger or hand by the middle, showed 
 the equality or difference between the 
 weight at one end and the thing weighed at 
 the other. Termes de la Ley, 66. 
 
 ANSWER. 
 
 In. Equity Pleading. A defense in 
 
 writing, made by a defendant to the charges 
 contained in a bill or information filed by 
 the plaintiff against him in a court of equity. 
 
 In Code Pleading. The defendant's 
 
 pleading in any civil action. 
 
ANTAPOCHA 
 
 (55) 
 
 APATISATIO 
 
 In Practice. The statement of a wit- 
 ness in response to a question. 
 
 ANTAPOCHA (Lat.) An instrument by 
 which the debtor acknowledges the debt 
 due the creditor, and binds himself. A copy 
 of the apocha, signed by the debtor, and de- 
 livered to the creditor. Calv. Lex. 
 
 ANTE EXHIBITIONEM BILLAE. Before 
 the exhibition of the bill; before suit be- 
 gun. 
 
 * 
 
 ANTE FACTUM, or ANTE GESTUM. 
 Done before. A Roman law term for a pre- 
 vious act, or thing done before. 
 
 ANTE JURAMENTUM, or JURAMEN- 
 tum calumniae (Lat.) The oath formerly 
 required of the parties previous to a suit, — 
 of the plaintiff that he would prosecute, 
 and of the defendant that he was Innocent. 
 Jacob; Whishaw. 
 
 ANTE LITEM MOTAM. Before suit 
 brought. 
 
 ANTECESSOR. An ancestor (g. v.) 
 
 ANTEDATE. To put a date to an in- 
 strument of a time before the time It was 
 written. 
 
 ANTENATI (Lat. born before). Those 
 born in a country before a change in its 
 political condition such as to affect their 
 allegiance. 
 
 The correlative term is postnati. 
 
 In the United States. It ordinarily 
 
 denotes those born in this country prior to 
 the Declaration of Independence. See 7 
 Wheat. (U. S.) 535. 
 
 In England. It ordinarily denotes 
 
 those born before the union with Scotland. 
 
 ANTENUPTIAL. Before marriage; be- 
 fore marriage, with a view to entering in- 
 to marriage. 
 
 ANTI MANIFESTO. The declaration of 
 the reasons which one of the belligerents 
 publishes, to show that the war as to him 
 is defensive. Wolffius, § 1187. 
 
 ANTICHRESIS (Lat.) In civil law. An 
 agreement by which the debtor gives to the 
 creditor the income from the property which 
 he has pledged, in lieu of the interest on 
 his debt. Guyot, Rep. Univ. 
 
 It is analogous to the Welsh mortgage of 
 the common law. In the French law, if the 
 income was more than the interest, the 
 debtor was entitled to demand an account 
 of the income, and might claim any excess. 
 Civ. Code La. art. 2085. See Dig. 20. 1. 11; 
 Id. 13. 7. 1; Code, 8. 28, 1; 11 Pet. (U. S.) 
 351; 1 Kent, Comm. 137. 
 
 ANTICIPATION (Lat. ante, before, copere, 
 to take). The act of doing or taking a 
 thing before its proper time. 
 
 In deeds of trust there is frequently a 
 provision that the income of the estate shall 
 be paid by the trustee as it shall accrue, and 
 not by way of anticipation. A payment 
 
 made contrary to such provision would not 
 be considered as a discharge of the trustee. 
 
 ANTIGRAPH. A copy. 
 
 ANTIGRAPHUS. In the Roman law. 
 An officer whose duty it was to keep an eye 
 over the money which the tax gatherers 
 collected for the use of the state. 
 
 A controller or supervisor of public mon- 
 eys. 
 
 ANTINOMIA. In Roman law. A real or 
 apparent contradiction or inconsistency in 
 the laws. Merlin, Repert. 
 
 It is sometimes used as an English word, 
 and spelled "Antinomy." 
 
 ANTIQUA CUSTUMA (Law Lat. ancient 
 custom). The duty due upon wool, wool- 
 fells, and leather, under St. 3 Bdw. I. 
 
 The distinction between antiqua and nova 
 custuma arose upon the imposition of a 
 new and increased duty upon the same ar- 
 ticles, by the king, in the twenty-second 
 year of his reign. Bac. Abr. "Smuggling" 
 (CI). 
 
 ANTIQUA STATUTA. English statutes 
 from the time of Richard I. to Edward III. 
 
 ANTIQUARE. In the Roman law. To 
 restore a former law or practice; to re- 
 ject or vote against a new law; to prefer 
 the old law. Those who voted against a 
 proposed law wrote on their ballots the let- 
 ter "A," the initial of antiquo, I am for the 
 old law. Calv. Lev. 
 
 ANTIQUUM DOMINICUM. In old Eng- 
 lish law. Ancient demesne, contrasted with 
 novum perquisitum, new purchase or ac- 
 quest. Pleta, lib. 2, c. 71, § 15. 
 
 ANTITHETARIUS. In old English law. 
 A man who endeavors to discharge himself 
 of the crime of which he is accused, by re- 
 torting the charge on the accuser. He dif- 
 fers from an approver in this, that the lat- 
 ter does not charge the accuser, but others. 
 Jacob. 
 
 ANTRUSTIO, or AMTRUSTIO. In early 
 feudal law. A confidential vassal. A term 
 applied to the followers of the ancient Ger- 
 man chiefs, and of the kings and counts of 
 the Pranks. Spelman. 
 
 ANUELS LIVRES (Law Fr.) The Year 
 Books (g. V.) Kelham. 
 
 APANAGE. In French law. A portion 
 set apart for the use and support of the 
 younger ones, upon condition, however, that 
 it should revert, upon failure of male issue, 
 to his original donor and his heirs. Spel- 
 man. 
 
 APARTMENT. A part of a house occu- 
 pied by a person, while the rest is occupied 
 by another, or others. 7 Man. & G. 95; 6 
 Mod. 214; Woodfall, Landl. & Ten. 178. As 
 to what Is not an apartment, see 10 Pick. 
 (Mass.) 293. 
 
 APATISATIO. An agreement or com- 
 pact. Du Cange. 
 
APERTA BREVIA 
 
 (56) 
 
 APPARENT MATURITY 
 
 APERTA BREVIA. Open, unsealed writs. 
 
 APERTUM FACTUM. An overt act. 
 
 APERTURA TESTAMENTI. A form of 
 proving a will, in the civil law, by the wit- 
 nesses acknowledging before a magistrate 
 their having sealed it. 1 Williams, Ex'rs, 329. 
 
 APEX JURIS (Lat. the summit of the 
 law). A rule of law of extreme refinement. 
 A term used to denote a stricter application 
 of the rules of law than is indicated by the 
 phrase summum jus. 2 Caines (N. Y.) 117; 
 2 Story (TJ. S.) 143; 5 Conn. 334; 2 Pars. 
 Notes & Bills, c. 25, § 11. See, also, Co. Litt. 
 3046; Wingate, Max. 19. 
 
 APICES JURIS NON SUNT JURA. Legal 
 niceties are not laws. Co. Litt. 304; 3 
 Scott, 773; 10 Coke, 126; Broom, Leg. Max. 
 142. See "Apex Juris." 
 
 APICES LITIGANDI (Lat.) Subtleties of 
 law; extreme technicalities. 
 
 APOCAE (Lat.) A writing acknowledg- 
 ing payments; acquittance. 
 
 It differs from "acceptilation" in this, that 
 acceptilation imports a complete discharge 
 of the former obligation, whether payment 
 be made or not; apooha, discharge only up- 
 on payment being made. Calv. Lex. 
 
 APOCHAE ONERATORIAE (Law Lat.) 
 In old commercial law. Bills of lading. 
 Casaregis, disc. 1, note 111; Id. disc. 10, note 
 25; Id. disc. 25, note 5. 
 
 APOCRISARIUS (Lat.) In civil law. A 
 messenger; an ambassador. 
 
 Applied to legates or messengers, as they 
 carried the messages of their principals. 
 They performed several duties distinct in 
 character, but generally pertaining to eccle- 
 siastical affairs. 
 
 A messenger sent to transact ecclesias- 
 tical business, and report to his superior; 
 an officer who had charge of the treasury 
 of a monastic edifice; an officer who took 
 charge of opening and closing the doors. 
 Du Cange; Spelman; Calv. Lex. 
 
 Apocrisarius cancellarius, an officer who 
 took charge of the royal seal, and signed 
 royal despatches. 
 
 Called, also, secretarius consiliarius (from 
 his giving advice) ; referendarius ; a con- 
 siliis (from his acting as counsellor) ; a re- 
 sponsis, or responsalis. 
 
 APOGRAPHA. In civil law. An exami- 
 nation and enumeration of things possess- 
 ed; an inventory. Calv. Lex. 
 
 APOSTASY. T.he total renunciation of 
 Christianity, by embracing either a false 
 religion, or no religion at all. This offense 
 can only take place in such as have once 
 professed Christianity. 4 Bl. Comm. 43. 
 
 APOSTATA. In civil and old English law. 
 An apostate. Code 1. 7; Reg. Grig. 71b. 
 
 APOSTATA CAPIENDO. An .obsolete 
 English writ which issued against an apos- 
 
 tate, or one who had violated the rules of 
 his religious order. It was addressed to 
 the sheriff, and commanded him to deliver 
 the defendant into the custody of the abbot 
 or prior. Reg. Orig. 71, 267; Jacob; Whar- 
 ton. 
 
 APOSTILLE, or APPOSTILLE (Law Pr.) 
 An addition; note or observation. Kelham. 
 A marginal note. Rich. Diet. 
 
 APOSTLES. Brief letters of dismissal 
 granted to a party who takes an appeal 
 from the decision of an English court of 
 admiralty, stating the case, and declaring 
 that the record will be transmitted. 2 
 Brown, Civ. & Adm. Law, 438; Dig. 49. 6. 
 
 This term was used in the civil law. It 
 is derived from apostoUs, a Greek word, 
 which signifies "one sent," because the 
 judge from whose sentence an appeal was 
 made sent to the superior judge these let- 
 ters of dismission, or apostles. Merlin, 
 Repert. mot "Apotres;" 1 Pars. Mar. Law, 
 745; 1 Blatchf. (IT. S.) 663. ' 
 
 APOSTOLI. In civil law. Certificates of 
 the inferior judge from whom a cause is 
 removed, directed to the superior. Dig. 49. 
 6. See "Apostles." 
 
 Those sent as messengers. Spelman. 
 
 APOSTOLUS. A messenger; an ambas- 
 sador, legate, or nuncio. Spelman. 
 
 APOTHECA. In the civil law. A re- 
 pository; a place of deposit, as of wine, oil, 
 books, etc. Calv. Lex. 
 
 APPARATOR (Law Lat.) One who 
 furnishes or provides. A sherifC was for- 
 merly styled in England apparator comita- 
 tus, as having charge of certain county ar- 
 rangements and expenditures. Cowell. 
 
 APPARENT DANGER. That degree of 
 peril of death or great bodily harm which 
 will justify the killing of an assailant in 
 self-defense. The danger need not be real, 
 but must be sufficient to cause a reasonably 
 prudent and courageous man to believe him- 
 self in imminent peril. 
 
 APPARENT DEFECTS. In a thing sold, 
 those which can be discovered by simple in- 
 spection. Code La. art. 2497. 
 
 APPARENT (or CONTINUOUS) EASE- 
 ment. One depending on some artificial 
 structure or natural formation permanent 
 in character and obvious. One which is at 
 all times known to the owner of the sub- 
 servient tenement by apparent signs. 18 
 N. J. Eq. 262; 1 Hurl. & N. 916. 
 
 APPARENT HEIR. One whose right of 
 inheritance is indefeasible, provided he out- 
 live the ancestor. 2 Bl. Comm. 208. 
 
 1 n Scotch Law. One who is entitled to 
 
 enter heir to a deceased ancestor, before 
 actual entry. Ersk. Inst. bk. 3, tit. 8, § 54. 
 
 APPARENT MATURITY. Of a negotia- 
 ble instrument. The time when, by its face, 
 it will fall due. 
 
APPARITIO 
 
 (57) 
 
 APPELLEE 
 
 APPARITIO. An appearance. 
 
 APPARITOR (Lat.) An officer or mes- 
 senger employed to serve the process of the 
 spiritual courts in England, and summon 
 oilenders. Cowell. 
 
 APPARLEMENT. In old English law. 
 Resemblance; likelihood; as apparlement of 
 war. St. 2 Rich. II. st. 1, c. 6; Cowell. 
 
 APPARURA (Lat.) In old English law. 
 Furniture or implements. 
 
 Carucariae apparura, plough tackle. Cow- 
 ell; Jacob. 
 
 APPEAL (Pr. appeler, to call). 
 
 In Practice. The removal of a cause 
 
 from a court of inferior to one of superior 
 jurisdiction, for the purpose of obtaining a 
 review and retrial. Ellsworth, C. J., 3 
 Dall. (XI. S.) 321; 7 Cranch (U. S.) 110; 
 10 Pet. (U. S.) 205; 14 Mass. 414; 1 Serg. 
 & R. (Pa.) 78; 1 Bin. (Pa.) 219; 3 Bin. 
 (Pa.) 48. 
 
 It Is sometimes used as meaning generally 
 the removal of a cause to a higher court 
 (4 N. J. Eq. 137), and in this sense it in- 
 cludes writ of error (1 111. 334). 
 
 It is a civil-law proceeding in its origin, 
 and differs from a writ of error in this, 
 that it subjects both the law and the facts 
 to a review and a retrial, while a writ of 
 error is a common-law process which re- 
 moves matter of law only for reexamina- 
 tion. 7 Cranch (U. S.) 111. 
 
 On an appeal, the whole case is examined 
 and tried, as if it had not been tried before; 
 while on a writ of error, the matters of law 
 merely are examined, and judgment revers- 
 ed if any errors have been committed. 
 Dane, Abr. "Appeal." The word is used in 
 the sense here given both in chancery and 
 in common-law practice (16 Md. 282; 20 How. 
 [U. S.] 198), and in criminal as well as in 
 civil law (9 Ind. 569; 6 Pla. 679); and in 
 many states the writ of error has been abol- 
 ished, and appeal established as the ordinary 
 method of review in all cases, the scope of 
 the review varying in the different states. 
 
 In Old Criminal Practice. A formal 
 
 accusation made by one private person 
 against another of having committed some 
 heinous crime. 4 Bl. Comm. 312. 
 
 In Legislation. The act by which a 
 
 member of a legislative body who questions 
 the correctness of a decision of the presid- 
 ing officer, or "chair," procures a vote of 
 the body upon the decision. 
 
 APPEARANCE. In practice. A coming 
 into court as party to a suit, whether as 
 plaintiff or defendant. 
 
 The formal proceeding by which a defend- 
 ant submits himself to the jurisdiction of 
 the court. 
 
 " 'Appearance' in the law has several 
 significations, and the word must always 
 be understood in reference to the particular 
 business or subject-ipatter to which it re- 
 lates. In some cases it means to appear in 
 person; in others, by attorney. Sometimes 
 an obligation to appear can only be satisfied 
 by actually coming into court, while in 
 
 others it will be sufficient to put in special 
 bail, or enter an appearance in the common 
 rule book. In one case it may be necessary 
 for the party to appear on the specified day, 
 while in another it will be sufficient if done 
 within ten or twenty days thereafter. The 
 purpose or end to be answered by the ap- 
 pearance is also important. In most, if not 
 all, cases where a party is bound to a per- 
 sonal appearance in court to answer any 
 charge or action against him, he must not 
 only appear, but must remain in court un- 
 til discharged by due course of law, and 
 how long he must attend depends on the 
 nature of the proceedings and the course 
 and practice of the court." 19 Wend. (N. 
 Y.) 459. 
 It may be of the following kinds: 
 
 (1) Compulsory. That which takes place 
 in consequence of the service of process. 
 
 (2) Voluntary. That which is made in an- 
 swer to a subpoena or summons, without 
 process. 1 Barb. Ch. (N. Y.) 77. 
 
 (3) General. A simple and absolute sub- 
 mission to the jurisdiction of the court. 
 
 (4) Special. That which is made for cer- 
 tain purposes only, and does not extend to 
 all the purposes of the suit. 
 
 (5) Conditional. One which is coupled 
 with conditions as to its becoming general. 
 
 (6) De hene esse. One which is to remain 
 an appearance, except in a certain event. 
 See "De Bene Esse." 
 
 (7) Gratis. One made before the party 
 has been legally notified to appear. 
 
 (8) Optional. One made where the party 
 is not under any obligation to appear, but 
 does so to save his rights. It occurs in 
 chancery practice, especially in England. 
 
 (9) Subsequent. An appearance by the de- 
 fendant after one has already been entered 
 for him by the plaintiff. See Daniell, Ch. 
 Pr. 
 
 APPEARANCE DAY., The day on which 
 an appearance is required. 
 
 APPEARAND HEIR. An apparent heir 
 («. V.) 
 
 APPEL (Law Pr. ; Law Lat. appellum). In 
 old English law. An appeal. Britt. c. 22. 
 See "Appeal." 
 
 APPELLANT. In practice. He who 
 makes an appeal from one jurisdiction to 
 another. 
 
 APPELLATE. In practice. Pertaining 
 to appeals; having cognizance of appeals. 
 
 APPELLATE JURISDICTION. In prac- 
 tice. The jurisdiction which a superior 
 court has to rehear causes which have been 
 tried in inferior courts. See "Jurisdiction." 
 
 APPELLATIO (Lat.) An appeal. 
 
 APPELLE (Law Pr.) In old practice. 
 The party accused by the process of appeal. 
 Brltt. c. 23. See "Appeal." 
 
 APPELLEE. In practice. The party in 
 a cause against whom an appeal has been 
 taken. 
 
APPELLO 
 
 (58) 
 
 APPOSTILLE 
 
 APPELLO (Lat.) In the civil law. I ap- 
 peal. The form of mailing an appeal apud 
 acta. Dig. 49. 1. 2. 
 
 APPELLOR. A criminal who accuses his 
 accomplices; one who challenges a jury. 
 
 APPELLOUR (Law Fr.) In old practice. 
 The party who brought an appeal; the 
 plaintiff in an appeal. Britt. c. 22. 
 
 APPENDANT (Lat. ad, to, pendere, to 
 hang). Annexed or belonging to something 
 superior; an incorporeal inheritance belong- 
 ing to another inheritance. 
 
 Appendant in deeds includes nothing 
 which is substantial corporeal property, ca- 
 pable of passing by feoffment and livery of 
 seisin. Co. Litt. 121; 4 Coke, 86; 8 Barn. 
 & C. 150; 6 Bing. 150. A matter appendant 
 must arise by prescription, while a matter 
 appurtenant may be created at any time. 
 2 Viner, Abr. 594; 3 Kent, Comm. 404. 
 
 APPENDITIA (Lat. appendere, to hang 
 at or on). The appendages or pertinances 
 of an estate; the appurtenances to a dwell- 
 ing, etc.; thus, penthouses are the appendi- 
 tia domus. 
 
 APPENSURA. Payment of money by 
 weight instead of by count. Cowell. 
 
 APPERTI NANCES. An old form of ap- 
 purtenances (g. V.) Cowell. 
 
 APPLICARE (Lat.) In old English law. 
 To fasten to; to moor (a vessel). 
 
 Anciently rendered, "to apply." Hale de 
 Jure Mar. par. 2, c. 3. This sense of the 
 word seems to have been derived from the 
 civil law. Dig. 1. 8. 5. 
 
 APPLICATIO EST VITA REGULAE. 
 
 Application is the life of a rule. 2 Bulst. '19. 
 
 APPLICATION (Lat. aiyplicare). The act 
 of making a request for something. 
 
 A written request. 
 
 The use or disposition made of a thing. 
 
 In Insurance. The preliminary state- 
 ment made by a party applying for an in- 
 surance on life, or against fire. 
 
 Of Purchase Money. The use or dis- 
 position made of the funds received by a 
 trustee on a sale of real estate held under 
 the trust. 
 
 Of Payment. See "Appropriatipn.'' 
 
 APPOINTEE. A person who is appointed 
 or selected for a particular purpose; as, the 
 appointee under a power is the person who 
 is to receive the benefit of the trust of 
 power. 
 
 APPOINTMENT. The designation of a 
 person, by the person or persons having 
 authority therefor, to discharge the duties 
 of some ofiice or trust. 
 
 As distinguished from an election, it seems 
 that an appointment is generally made by one 
 person, or a limited number acting with dele- 
 gated powers, while an election is made by 
 all of a class. 
 
 The word is sometimes used in a sense 
 quite akin to this, and apparently derived . 
 from it as denoting the right or privilege- 
 conferred by ain appointment. Thus, the- 
 act of authorizing a man to print the laws 
 of the United States by authority, and the- 
 right thereby conveyed, are considered such 
 an appointment, but the right is not an of- 
 fice. 17 Serg. & R. (Pa.) 29, 233. And see 
 3 Serg. & R. (Pa.) 157; Cooper, Just. 599, 
 604. 
 
 The exercise of a right to designate the 
 person or persons who are to take the use 
 of real estate. 2 Washb. Real Prop. 302. 
 
 APPOINTOR. One authorized by the 
 donor, under the statute of uses, to execute 
 a power. 2 Bouv. Inst, note 1923. Also call- 
 ed "donee." 
 
 APPORT (Law Fr.) In old English law.. 
 Tax; tallage; tribute; imposition; payment; 
 charge; expenses. Kelham. 
 
 APPORTIONMENT. The division or dis- 
 tribution of a subject-matter in proportion- 
 ate parts. Co. Litt. 147; 1 Swanst. 37,. 
 note; 1 Story, Bq. Jur. 475a. 
 
 -Of Contracts. The allowance, in case 
 
 of the partial performance of a contract, of 
 a proportionate part of what the party 
 would have received as a recompense for 
 the entire performance of the contract. 
 
 Of Incumbrances. IJetermining the 
 
 amounts which each of several parties in- 
 terested in an estate shall pay towards the- 
 removal or in support of the burden of an in- 
 cumbrance. 
 
 Of Rent. The allotment of their 
 
 shares in a rent to each of several parties 
 owning it. 
 
 The determination of the amount of rent 
 to be paid when the tenancy is terminated 
 at some period other than one of the regu- 
 lar intervals for the payment of rent. 
 
 Of Corporate Shares. The distribu- 
 tion pro rata among the shareholders when 
 there has been an oversubscription. 
 
 Of an Annuity. Pro rata allowance 
 
 for part of a year; not allowed at common 
 law, but allowed as to some classes by 11 
 Geo. II. 
 
 Of Representatives. The fixing of the 
 
 number of representatives in congress al- 
 lowed to each state, made on the basis of 
 population as shown by each United States 
 census. Const. U. S. art. 1, § 2. 
 
 APPORTUM. In old English law. The 
 revenue, profit, or emolument which a thing 
 brings to the owner. Commonly applied to 
 a corody or pension. Blount. 
 
 APPOSAL OF SHERIFFS. In English 
 law. The charging them with money re- 
 ceived upon account of the exchequer. 22 
 & 23 Car. II.; Cowell. 
 
 APPOSER. In English law. An oflicer 
 of the exchequer, whose duty it was to ex- 
 amine the sheriffs in regard to their ac- 
 counts handed in to the exchequer. He was 
 also called the "foreign apposer." 
 
 APPOSTILLE. In French law. An addi- 
 
APPRAISEMENT 
 
 (59) APPROVED ENDORSED NOTES 
 
 tion or annotation made in the margin of a 
 writing. Merlin, Repert. 
 
 APPRAISEMENT. A just valuation of 
 property. 
 
 A valuation under public authority as of 
 the goods of a decedent, or of property taken 
 for public use. , 
 
 Appraisal for taxation is called "assess- 
 ment" (g. V.) 
 
 APPRAISER. In practice. A person ap- 
 pointed by competent authority to appraise 
 or value goods or real estate. 
 
 APPREHENSIO (Lat.) In the civil and 
 old English law. A taking hold of a person 
 or thing; apprehension; the seizure or cap- 
 ture of a person. Calv. Lex. 
 
 One of the varieties or subordinate forms 
 of occupatio, or the mode of acquiring title 
 to things not belonging to any one. Fleta 
 applies it to the finding of things on the sea- 
 shore. Fleta, lib. 3, c. 2, § 5. 
 
 APPREHENSION. 
 
 In Practice. The capture or arrest of 
 
 a person on a criminal charge. 
 
 The term "apprehension" is applied to 
 criminal cases, and "arrest" to civil cases; 
 as, one having authority may arrest on civil 
 process, and apprehend on a criminal war- 
 rant. See "Arrest." 
 
 In the Civil Law. A physical or cor- 
 poral act (corpus) on the part of one who 
 intends to acQuire possession of a thing, by 
 which he brings himself into such a rela- 
 tion to the thing that he may subject it to 
 his exclusive control, or by which he ob- 
 tains the physical ability to exercise his 
 power over the thing whenever he pleases. 
 One of the requisites to the acquisition of 
 judicial possession, and by which, when ac- 
 companied by Intention (animus), posses- 
 sion is acquired. Mackeld. Civ. Law, §§ 
 248-250. 
 
 APPRENDRE. See "A Prendre." 
 
 APPRENTICE. A person bound in due 
 form of law to a master, to learn from him 
 his art, trade, or business, and to serve him 
 during the time of his apprenticeship. 1 Bl. 
 Comm. 426; 2 Kent, Comm. 211; 3 Rawle 
 (Pa.) 307; 61 N. Y. 274. A mere agreement 
 by a father that his son should work for 
 three years for wages to be paid the father, 
 and should be taught the employer's trade, 
 does not constitute the son an apprentice. 
 3 N. J. Law, 413. See 90 N. Y. 213. 
 
 APPRENTICE EN LA LEY. An ancient 
 name for students at law, and afterwards 
 applied to counsellors, apprentici ad harras, 
 from which comes the more modern word 
 "barrister." 
 
 APPRENTICESHIP. A contract by which 
 one person who understands some art, trade, 
 or business, and called the "master," un- 
 dertakes to teach the same to another per- 
 son, commonly a minor, and called the "ap- 
 prentice," who, on his part, is bound to serve 
 the master, during a definite period of time, 
 in such art, trade, or business. 
 
 The term during which an apprentice is 
 to serve. Pardessus, Dr. Com. note 34. 
 
 APPRENTICIUS AD LEGEM. An ap- 
 prentice to the law; a law student; a coun- 
 sellor below the degree of Serjeant; a bar- 
 rister. See "Apprentice en la Ley." 
 
 APPRIZING. In Scotch law. A form of 
 process by which a creditor formerly took 
 possession of the estates of the debtor in 
 payment of the debt due. 
 
 It is now superseded by "adjudication." 
 
 APPROACH. The right of visit or visit- 
 ation to determine the national character 
 of the ship approached for that purpose only. 
 1 Kent, Comm. 153. 
 
 APPROBATE AND REPF^OBATE. In 
 
 Scotch law. To approve and reject. 
 
 The doctrine of approbate and reprobate 
 is the English doctrine of election. A party 
 cannot both approbate and reprobate the 
 same deed. 4 Wils. & S. H. L. 460; 1 Ross, 
 Lead. Cas. 617; Paterson, Comp. 710; 1 Bell, 
 Comm. 146. 
 
 APPROPRIATION. 
 
 Of Payments. The application of a 
 
 payment made to a creditor by his debtor, 
 to one or more of several debts. In the ab- 
 sence of an agreement, the application is 
 presumed to be that most favorable to the 
 debtor. 
 
 In Ecclesiastical Law. The perpetual 
 
 annexation of an ecclesiastical benefice 
 which is the general property of the church 
 to the use of some spiritual corporation, 
 either sole or aggregate. It corresponds 
 with "impropriation," which is setting apart a 
 benefice to the use of a lay corporation. 
 The name came from the custom of monks 
 in England to retain the churches in their 
 gift, and all the profits of them in propria 
 usus to their own immediate benefit. 1 
 Burn, Ecc. Law, 71. 
 
 Of Government Money. No money 
 
 can be drawn from the treasury of the 
 United States but in consequence of appro- 
 priations made by law. Const, art. 1, § 9. 
 Under this clause of the constitution it is 
 necessary for congress to appropriate money 
 for the support of the federal government, 
 and in payment of claims against it, and 
 this is done annually by acts of appropria- 
 tion, some of which are for the general pur- 
 poses of government, and others special and 
 private in their nature. 
 
 APPROVE. To increase the profits upon 
 a thing. Used of common or waste lands 
 which were inclosed and devoted to hus- 
 bandry. 3 Kent, Comm. 406; Old Nat. Brev. 
 79. 
 
 While confessing crime one's self, to accuse 
 another of the same crime. It is so called 
 because the accuser must prove what he 
 asserts. Staundf. P. C. 142; Cromp. Jus. 
 Peace, 250. 
 
 To vouch; to appropriate; to improve. 
 Kelham. 
 
 APPROVED ENDORSED NOTES. Notes 
 
APPROVER 
 
 (60) 
 
 ARAHO 
 
 endorsed by another person than the maker, 
 for additional security. See 20 "Wend. (N. 
 Y.) 431. 
 
 APPROVER. In English criminal law. 
 One confessing himself guilty of felony, and 
 accusing others of the same crime to save 
 himself. Cromp. Inst. 250 ; 3 Inst. 129. Such 
 an one was obliged to maintain the truth of 
 his charge, by the old law. Cowell. The ap- 
 provement must have taken place before 
 plea pleaded. 4 Bl. Comm. 330. 
 
 Certain men sent into the several coun- 
 ties to increase the farms (rents) of hun- 
 dreds and wapentakes, which formerly were 
 let at a certain value to the sheriffs. Cowell. 
 
 Sheriffs are called the "king's approvers." 
 Termes de la Ley. 
 
 Approvers in the Marches were those who 
 had license to sell and purchase beasts 
 there. 
 
 APPRUARE (Law Lat.) To improve land; 
 to obtain a profit by improvement. St. West- 
 minster II. c. 46. 
 
 APPULSUS (Lat.) In the civil law. A 
 driving to, as of cattle to water. Dig. 8. 3. 
 1. 1. 
 
 APPURTENANCES. Things belonging to 
 another thing as principal, and which pass 
 as incidents to such principal thing. 10 Pet. 
 (U. S.) 25; 1 Serg. & R. (Pa.) 169; 117 Mo. 
 61; 61 N. Y. 390; 53 N. H. 508. 
 
 Appurtenance must be of an inferior na- 
 ture to the principal (16 Conn. 260), and 
 must not only be appendant in utility, but 
 there must be unity of right to both in the 
 same person (29 Ohio St. 649). 
 
 Appurtenances are distinguished from ap- 
 pendages in that the latter are those ap- 
 pendant things which become so by pre- 
 scription, while the' latter are those other- 
 wise acquired. 1 Johns. Cas. (N. Y.) 291; 11 
 Johns. (N. Y.) 498. 
 
 APPURTENANT. Pertaining to. See 
 "Appurtenances." 
 
 APT WORDS. Correct technical words, 
 requiring no latitude of construction to give 
 them the meaning intended. 
 
 APTA VIRO. A marriageable woman; 
 sometimes used to denote that she is of 
 legal age, and discovert, but oftener with 
 respect to physical capacity. 
 
 APUD ACTA (Lat.) Among the record- 
 ed acts. This was one of the verbal ap- 
 peals (so called by the French commenta- 
 tors), and was obtained by simply saying, 
 appello. 
 
 AQUA (Lat.) Water. It is a rule that 
 water belongs to the land which it covers 
 when it is stationary. Aqua cedit solo, water 
 follows the soil. 2 Bl. Comm. 18; Co. Lift. 4. 
 
 AQUA AESTIVA. Water that was drawn 
 in summer only. 
 
 AQUA CEDIT SOLO. The water yields 
 
 or accompanies the soil. The grant of the 
 soil or land carries the water. ' Hale, de 
 Jur. Mar. pt. 1, c. 1; 2 Bl. Comm. 18. 
 
 AQUA COOPERTA. Covered with wa- 
 ter. 2 P. Wms. 128. 
 
 AQUACURRENS. Running water. Fleta, 
 lib. 4, c. 6, § 3. 
 
 AQUA CURRIT ET DEBET CURRERE 
 
 ut currere solebat. Water runs and ought 
 to run as it has used to run. 3 Rawle (Pa.) 
 84, 88; 26 Pa. St. 413; 3 Kent, Comm. 439; 
 Angell, Watercourses, 413; Gale & W. Easem. 
 182. 
 
 AQUA FONTANEA. Spring water. Pleta, 
 lib. 4, c. 27, § 8. 
 
 AQUA PLUVIA. Rain water. Dig. 39. 3. 
 1. pr. 
 
 AQUA PROFLUENS. Flowing or run- 
 ning water. Dig. 1. '8. 2. 
 
 AQUAQUOTIDIANA. Water which might 
 be drawn at all times of the year. 
 
 AQUA SALSA. Salt water. Reg. Grig. 97. 
 
 AQUA TRESTORNATA. A stream turn- 
 ed out of its course. 
 
 AQUAE DUCTUS. In civil law. A servi- 
 tude which consists in the right to carry 
 water by means of pipes or conduits over 
 or through the estate of another. Dig. 8. 
 3. 1; Inst. 2. 3; Lalaure des Serv. c. 5, p. 23. 
 
 AQUAE HAUSTUS. In civil law. A 
 servitude which consists in the right to 
 draw water from the fountain, pool, or 
 spring of another. Inst. 2. 3. 2; Dig. 8. 3. 
 
 1. 1. 
 
 AQUAE IMMITTENDAE. In civil law. 
 A servitude which frequently occurs among 
 neighbors. 
 
 It is the right which the owner of a house, 
 built in such a manner as to be surrounded 
 with other buildings, so that it has no out- 
 let for its waters, has to cast water out of 
 his windows on his neighbor's roof, court, 
 or soil. Lalaure des Serv. 23. It is recog- 
 nized in the common law as an easement 
 of drip. 15 Barb. (N. Y.) 96; Gale & W. 
 Easem. See "Easement." 
 
 AQUAGIUM (Lat.) A watercourse. Cow- 
 ell. Canals or ditches through marshes. 
 Spelman. A signal placed in the aquagium 
 to indicate the height of water therein. 
 Spelman. 
 
 AQUATIC RIGHTS. Rights which indi- 
 viduals have to the use of water, and to 
 lands under water. Includes rights of fish- 
 ing, navigation, etc. 
 
 ARABANT (Lat.) They ploughed. Ap- 
 plied to vassals who were bound to plough 
 and harrow the lands of the lord within his 
 manor. Spelman. 
 
 ARAHO. In feudal law. To make oath 
 in the church or some other holy place. 
 Cowell; Spelman. 
 
ARAHUM 
 
 (61) 
 
 ARCHAIONOMIA 
 
 ARAHUM (Law Lat. from Saxon ar, rev- 
 erence). A consecrated place. 
 
 ARALIA (Lat. arare). Land fit for the 
 plough. Denoting the character of land, 
 rather than its condition. Spelman. Kin- 
 dred in meaning, arare, to plough; arator, a 
 ploughman; arutniin terrae, as much land as 
 could be cultivated by a single arator; ara- 
 turia, land fit for cultivation. 
 
 ARATURA TERRAE. The plowing of 
 land by the tenant, or vassal, in the service 
 ■ of his lord. Whishaw. 
 
 ARATURIA. Land suitable for the plow; 
 arable land. Spelman. 
 
 ARBITER. A person bound to decide ac- 
 cording to the rules of law and equity, as 
 distinguished from an arbitrator, who may 
 proceed wholly at his own discretion, so 
 that it be according to the judgment of a 
 sound man. Cowell. This distinction be- 
 tween arbiters and arbitrators is not ob- 
 served in modern law. Russ. Arb. 112. See 
 "Arbitrator." 
 
 One appointed by the praetor to decide by 
 the equity of the case, as distinguished from 
 the judex, who followed the law. Calv. Lex. 
 
 One chosen by the parties to decide the 
 dispute; an arbitrator. Bell, Diet. 
 
 ARBITRAMENT AND AWARD. A plea 
 to an action brought for the same cause 
 which had been submitted to arbitration, 
 and on which an award had been made. 
 Watson, Arb. 256. 
 
 ArtBITRARY PUNISHMENT. In prac- 
 tice. That punishment which is left to the 
 decision of' the judge, in distinction from 
 those defined by statute. 
 
 ARBITRATION (Lat. arMtratio). In prac- 
 tice. The investigation and determination 
 of a matter or matters of difference between 
 contending parties, by one or more unof- 
 ficial persons, chosen by the parties, and 
 called "arbitrators," or "referees." Worces- 
 ter; 3 Bl. Comm. 16; 17 How. (U. S.) 344. 
 
 It is either: 
 
 (1) Compulsory arbitration, being that 
 which takes place when the consent of one 
 01 the parties is enforced by statutory pro- 
 visions ; or 
 
 (2) Voluntary arbitration, being that which 
 takes place by mutual and free consent of 
 the parties. It usually takes place in pur- 
 suance of an agreement (commonly in writ- 
 ing) between the parties, termed a "submis- 
 sion," and the determination of the arbitrat- 
 ors or referee is called an "award." 
 
 At common law it was also either 
 
 (3) In pais, that is, by simple agreement 
 of the parties ; or 
 
 (4) By rule of court, that is by the inter- 
 vention of a court of law or equity. 3 Bl. 
 Comm. 16. 
 
 ARBITRATION OF EXCHANGE. Where 
 a merchant pays his debts in one country by 
 a bill of exchange upon another. 2 Mill. 
 Pol. Econ. 168. 
 
 ARBITRATOR. In practice. A private 
 extraordinary judge, to whose decision mat- 
 ters in controversy are referred by consent 
 of the parties. Worcester. 
 
 "Referee" is of frequent modern use as 
 a synonym of "arbitrator," but is in its 
 origin of broader signification, and less ac- 
 curate than arbitrator. 
 
 ARBITRIMENTUM AEQUUM TRIBUIT 
 culque suum. A just arbitration renders to 
 every one his own. Noy, Max. 248. 
 
 ARBITRIUM (Lat.) Decision; award; 
 judgment. 
 
 For some cases the law does not prescribe 
 an exact rule, but leaves them to the judg- 
 ment of sound men. 1 Sharswood, Bl. 
 Comm. 61. The decision of an arbiter is 
 arhitrium, as the etymology indicates, and 
 the word denotes, in the passage cited, the 
 decision of a man of good judgment who is 
 not controlled by technical rules of law, 
 but is at liberty to adapt the general prin- 
 ciples of justice to the peculiar circum- 
 stances of the case. 
 
 ARBITRIUM EST JUDICIUM. An award 
 is a judgment. Jenk. Cent. Cas. 137; 3 
 Bulst. 64. 
 
 ARBITRIUM EST JUDICIUM BONI VIRI, 
 secundum aequum et bonum. An award Is 
 the judgment of a good man, according to 
 justice. 3 Bulst. 64. 
 
 ARBOR (Lat). A tree; a plant; some- 
 thing larger than an herb; a general term 
 including vines, osiers, and even reeds. The 
 mast of a ship. Brissonius; Ainsworth; 
 Calv. Lex. 
 
 Arbor civilis. A genealogical tree. Co. Inst. 
 
 A common form of showing genealogies 
 is by means of a tree representing the dif- 
 ferent branches of the family. Many of the 
 terms in the law of descent are figurative, 
 and derived hence. Such a tree is called, 
 also, arbor consanguinitatis. 
 
 ARBOR DUM CRESCIT; LIGNUM DUM 
 crescere nescit. A tree while it is growing; 
 wood when it cannot grow. Cro. Jac. 166; 
 12 Johns. (N. Y.) 239, 241. 
 
 ARBOR FINALIS. In old English law. 
 A boundary tree; a tree used for making a 
 boundary line. Bracton, fols. 167, 207b. 
 
 ARCANA IMPERII. State secrets. 1 Bl. 
 Comm. 337. 
 
 ARCARIUS (Lat. area). A treasurer; 
 one who keeps the public money. Spelman. 
 
 ARCHAIONOMIA. The name of a col- 
 lection of Saxon laws published during the 
 reign of the English Queen Elizabeth, in 
 the Saxon language, with a Latin version, 
 by Mr. Lambard. Dr. Wilkins enlarged this 
 collection in his work entitled "Leges An- 
 glo-Saxonicae," containing all the Saxon 
 laws extant, together with those ascribed 
 to Edward the Confessor, in Latin; those of 
 William the Conqueror, in Norman and 
 Latin; and of Henry I., Stephen, and Henry 
 II., in Latin. 
 
ARCHBISHOP 
 
 (62) 
 
 ARGUMENTATIVE 
 
 ARCHBISHOP. In ecclesiastical law. The 
 chief of the clergy of 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 also his own diocese, in 
 which he exercises episcopal jurisdiction, as 
 in his province he exercises archiepiscopal 
 authority. 1 Bl. Comm. 380; 1 Ld. Raym. 
 541. 
 
 ARCHDEACON. In ecclesiastical law. A 
 ministerial officer subordinate to the bishop. 
 
 In the primitive church, the archdeacons 
 were employed by the bishop in the more 
 servile duties of collecting and distribut- 
 ing alms and offerings. Afterwards they 
 became, in effect, "eyes to the overseers 
 of the church." Cowell. His jurisdiction 
 is ecclesiastical, and immediately subordi- 
 nate to that of the bishop, throughout the 
 whole or a part of the diocese. He is a 
 ministerial officer. 1 Sharswood, Bl. Comm. 
 383. 
 
 ARCHDEACON'S COURT. In English 
 law. The lowest court of ecclesiastical 
 jurisdiction in England. It is held before 
 a person appointed by the archdeacon, 
 called his "official." Its jurisdiction is 
 limited to ecclesiastical causes arising 
 within the archdeaconry. It had until re- 
 cently, also, jurisdiction of matters of pro- 
 bate and granting administrations. In or- 
 dinary cases, its jurisdiction is concurrent 
 with that of the bishop's court, but in some 
 instances cases must be commenced in this 
 court. In all cases, an appeal lies to the 
 bishop's court. 24 Hen. VIII. c. 12; 3 Bl. 
 Comm. 64. 
 
 ARCHERY. A service of keeping a bow 
 for the lord's use in the defense of his cas- 
 tle. Co. Litt. 157. 
 
 ARCHES' COURT. See "Court of 
 Arches." 
 
 ARCHETYPE. The original copy. 
 
 ARCHICAPELLANUS (Law Lat.) In old 
 European law. A chief or high chancellor 
 (summus cancellarius) . Spelman. 
 
 ARCHIVES (Lat. areMvum, aroibum) . The 
 rolls; any place where ancient records, 
 charters, and evidences are kept. In libra- 
 ries, the private depositary. Cowell; Spel- 
 man. The records need not be ancient to 
 constitute the place of keeping them the 
 "archives." 
 
 ARCHIVIST. One to whose care the ar- 
 chives have been confided. 
 
 ARCTA ET SALVA CUSTODIA (Lat.) 
 In safe and close custody or keeping. 
 
 When a defendant is arrested on a capias 
 ad satisfaciendum (ca. sa.), he is to be kept 
 arota et salva custodia. 3 Sharswood, Bl. 
 Comm. 415. 
 
 ARDOUR. In old English law. An in- 
 cendiary; a house burner. 
 
 ARE. A French measure of surface. 
 This is a square the sides of which are of 
 the length of ten metres. The are is equal 
 to 1076.441 square feet. 
 
 AREA. An inclosed yard or opening In 
 a house; an open place adjoining to a house. 
 1 Chit. Prac. 176. 
 
 ARENALES. In Spanish law. Sandy 
 beaches. 
 
 ARENIFODINA (from arena, sand, and 
 fodire, to dig). In the civil law. A sand 
 pit. Dig. 7. 1. 13. 5. 
 
 ARENTARE (Lat.) To rent; to let out 
 at a certain rent. Cowell. 
 Arentatio, a renting. 
 
 AREOPAGITE. In ancient Greek law. 
 A lawyer or chief judge of the Areopagus 
 in capital matters in Athens; a tribunal so 
 called after a hill or slight eminence, in a 
 street of that city dedicated to Mars, where 
 the court was held in which those judges 
 were wont to sit. Wharton. 
 
 A RETRO. See "A Retro." 
 
 ARG. An abbreviation of argiuendo, much 
 used in the reports. 
 
 ARGENT. * In heraldry. Silver. 
 
 ARG EN TAR 1 1 (Lat. argentum). Money- 
 lenders. Called, also, nummularii (from 
 nummus, coin) mensarii (lenders by the 
 month). They were so called, whether 
 living in Rome or in the country towns, and 
 had their shops or tables in the forum. 
 Argentarius is the singular. Argentarium 
 denotes the instrument of the loan, ap- 
 proaching in sense to our note or bond. 
 
 Argentarius miles was the servant or 
 porter who carried the money from the low- 
 er to the upper treasury to be tested. Spel- 
 man. 
 
 ARGENTEUS (Law Lat.) An old French 
 coin, answering nearly to the English shil- 
 ling. Spelman. 
 
 ARGENTUM. Silver; silver plate. 1 
 Ld. Raym. 20. 
 
 Uncoined silver; money paid by weight. 
 Spelman. 
 
 Money paid by tale or counted (pecunia 
 numerata). Spelman. 
 
 Goods generally. Spelman. 
 
 ARGENTUM ALBUM (Lat.) Unstamp- 
 ed silver; bullion. Spelman; Cowell. 
 
 ARGENTUM DEI (Lat.) God's money; 
 God's penny; money given as earnest in 
 making a bargain. Cowell. 
 
 ARGUMENT AB INCONVENIENTI. See 
 
 "Ab Inconvenienti." 
 
 ARGUMENTATIVE. By way of reason- 
 ing. 
 
 A plea must be (among other things) di- 
 rect and positive, and not argumentative. 
 3 Sharswood, Bl. Comm. 308. 
 
ARGUMENTUM, ETC. 
 
 (63) 
 
 ARMISCARA 
 
 ARGUMENTUM A COMMUNITER AC- 
 •cidentibus in jure frequens est. An argu- 
 ment drawn from things commonly hap- 
 pening is freciuent in law. Broom, Leg. 
 Max. 44. " 
 
 ARGUMENTUM A DIVISIONE EST 
 
 fortissimum in jure. An argument arising 
 from a division is most powerful in law. 6 
 ■Coke, 60; Co. Litt. 213t). 
 
 ARGUMENTUM A MAJORI AD MINUS 
 negative non valet; valet e converso. An 
 argument from the greater to the less is of 
 no force negatively; conversely it is. Jenk. 
 Cent. Cas. 281. 
 
 ARGUMENTUM A SIMILI VALET IN 
 lege. An argument drawn from a similar 
 case, or analogy, avails in law. Co. Litt. 
 191. 
 
 ARGUMENTUM AB AUCTORITATE 
 est fortissimum in lege. An argument 
 drawn from authority is the strongest in 
 law. Co. Litt. 254. 
 
 ARGUMENTUM AB IMPOSSIBILI PLU- 
 rimum valet in lege. An argument deduced 
 from impossibility greatly avails in law. Co. 
 Litt. 92. 
 
 ARGUMENTUM AB INCONVENIENT] 
 est validum in lege; quia lex non permittit 
 allquod inconveniens. An argument drawn 
 from what is inconvenient is good in law, 
 Ijeeause the law will not permit any incon- 
 venience. Co. Litt. 66a, 258; 7 Taunt. 527; 
 5 Barn. & C. 131; 6 Clark & F. 671. 
 
 ARGUMENTUM AB INCONVENIENTI 
 plurimum valet (est validum) in lege. An 
 argument drawn from inconvenience is of 
 the greatest weight (is forcible) in law. 
 Co. Litt. 66a, 97a, 152b, 258b; Broom, Leg. 
 Max. 184. If there be in any deed or in- 
 strument equivocal expressions, and great 
 Inconvenience must necessarily follow from 
 one construction, it is strong to show that 
 such construction is not according to the 
 true intention of the grantor; but where 
 there is no equivocal expression in the in- 
 strument, and the words used admit only 
 of one meaning, arguments of inconvenience 
 prove only want of foresight in the grant- 
 or. 3 Madd. 540; 7 Taunt. 496. 
 
 ARGYLDE. Not compensated for. 
 
 ARIBANNUM, or ARRIBANNUM (Law 
 Lat.) In Old European law. A fine for 
 not joining the army, when called out by 
 public summons. Spelman. 
 
 The summons or proclamation itself. 
 Spelman. Spelman thinks the proper form 
 of this word ,was heribannum, unless it be 
 considered a contraction of arrieribannum, 
 {g. V.) See "Herebannum." 
 
 ARIMANNI (Lat.) The possessors of 
 lands holden or derived from their lords. 
 Clients joined to some lord for protection. 
 By some, said to be soldiers holding lands 
 
 from the lord; but the term is also applied 
 to women and slaves. Spelman. 
 
 ARISTOCRACY. A government in which 
 a class of men rules supreme. 
 
 ARISTODEMOCRACY. A form of gov- 
 ernment where the power is divided be- 
 tween the great men of the nation and the 
 people. 
 
 ARLES. Earnest. Used in Yorkshire 
 in the phrase arles-penny. Cowell. In 
 Scotland it has the same signification. 
 Bell, Diet. 
 
 ARM OF THE SEA. A portion of the 
 sea projecting inland, in which the tide 
 ebbs and flows. 
 
 It includes bays, roads, creeks, coves, 
 ports, and rivers where the water flows and 
 reflows. An arm of the sea is considered 
 as extending as far into the interior of a 
 country as the water of fresh rivers is pro- 
 pelled backward by the ingress and pres- 
 sure of the tide. Angell, Tide Waters (2d 
 Ed.) 73; 7 Pet. (U. S.) 324; 2 Conn. 484; 
 8 N. Y. 199; Olc. Adm. 21. 
 
 "But it does not follow that every creek 
 or rivulet in which the tide ebbs and flows, 
 and which may be used at certain tides by 
 small boats for individual convenience, is 
 to be dignified by the appellation of an 
 'arm of the sea.' " 10 N. J. Eq. 223. 
 
 ARMA (Lat.) Arms; weapons, offensive 
 and defensive. Co. Litt. 161b, 162a. 
 
 In the Civil Law. It included not only 
 
 arms of warfare, but any weapon, as a 
 club or a stone. 
 
 Armor, arms, or cognizances of families. 
 Spelman. 
 
 ARMA DARE. To dub or make a knight. 
 Cowell. Arma capere or suscipere, to take 
 upon one the order of knighthood. 2 
 Reeves, Hist. Eng. Law, 288. 
 
 ARMA IN ARMATOS SUMERE JURA 
 sinunt. The laws permit the taking up of 
 arms against armed persons. 2 Inst. 574. 
 
 ARMA MOLUTA (Lat.) Sharp weapons; 
 weapons which cut, as distinguished from 
 those which bruise. Cowell; Blount. 
 
 ARM ATA VIS (Lat.) In the civil law. 
 Armed force. Dig. 43. 16. 3; Pleta, lib. 4. 
 'c. 4. 
 
 ARMIGER (Lat.) An armor bearer; an 
 esquire; a title of dignity belonging to 
 gentlemen authorized to bear arms. Ken- 
 nett. Par. Ant.; Cowell. 
 
 In its earlier meaning, a servant who 
 carried the arms of a knight. Spelman. 
 
 A tenant by scutage; a servant or valet; 
 applied, also, to the higher servants in con- 
 vents. Spelman; Whlshaw. 
 
 ARMISCARA. An ancient mode of pun- 
 ishment, which was to carry a saddle at 
 the back as a token of subjection. Spel- 
 man. 
 
 A kind of fine. Spelman. 
 
ARMISTICE 
 
 (64) 
 
 ARRAIGNMENT 
 
 ARMISTICE. A cessation of hostilities 
 between belligerent nations for a consider- 
 able time. 
 
 It is either partial and local, or general. 
 It differs from a mere suspension of arms, 
 which takes place to enable the two armies 
 to bury their dead, their chiefs to hold con- 
 ferences or pourparlers, and the like. Vat- 
 tel. Droit des Gens, lib. 3, c. 16, § 233. The 
 terms "truce" and "armistice" are some- 
 times used in the same sense. See "Truce." 
 
 ARMORUM APPELLATIONE, NON SO- 
 lum scuta et gladll et galeae, sed et fustes 
 et lapides continentur. tinder the name of 
 "arms" are included not only shields and 
 swords and helmets, but also clubs and 
 stones. Co. Litt. 162. 
 
 ARMS. Anything that a man wears for 
 his defense, or takes in his hands, or uses 
 in his anger, to cast at or strike at anoth- 
 er. Co. Litt. 161b, 162a; Cromp. Jus. Peace, 
 65; Cunningham. Every description of 
 weapon, offensive and defensive. 4 Ark. 21. 
 
 The constitution of the United States 
 (Amend, art. 2) declares that, "a well-regu- 
 lated militia being necessary to the securi- 
 ty of a free state, the right of the people 
 to keep and bear arms shall not be in- 
 fringed." This has been held to mean only 
 such arms as are adapted to military pur- 
 poses. 3 Heisk. (Tenn.) 179; 35 Tex. 476. 
 
 Signs of arms, or drawings, painted on 
 shields, banners, and the like. The arms of 
 the United States are described in the reso- 
 lution of congress of June 20, 1782. 
 
 ARMY. The military forces of a nation 
 intended for service on land. It does not 
 include the marine corps. 2 Sawy. (U. S.) 
 200; 21 N. Y. Supp. 104. Contra, 7 Rob. (N. 
 Y.) 635. 
 
 As used in the United States constitution 
 and laws it does not include the state mili- 
 tia. 16 Grat. (Va.) 475. 
 
 AROMATARIUS. In old pleadings. A 
 grocer. But see 1 Vent. 142. 
 
 ARPENNUS. A measure of land, of un- 
 certain amount. It was called "arpent," 
 also. Spelman; Cowell. 
 
 In French Law. A measure of different 
 
 amount in e3.ch of the sixty-four provinces. 
 Guyot, Rfep. Univ. "Arpenteur." 
 
 The measure was adopted in Louisiana. 
 6 Pet. (U. S.) 763. 
 
 ARPENT, or ARPEN. A quantity of land 
 containing a French acre. 4 Hall, Law J. 
 518. 
 
 ARPENTATOR. A measurer or surveyor 
 of land. 
 
 ARRA. In civil law. Earnest; evidence 
 of a completed bargain. Used of a con- 
 tract of marriage, as well as any other. 
 Spelled, also, arrlia, arrae. Calv. Lex. 
 
 ARRAGE (Law Fr.) Mad or insane. 
 Home arrage, a madman or lunatic. Britt. 
 c. 26. 
 
 ARRAIGN. To call a prisoner to the bar 
 of the court to answer the matter charged 
 in the indictment. 2 Hale, P. C. 216. To 
 set in order. An assize may be arraigned. 
 Litt. § 242; 3 Mod. 273; Termes de la Ley; 
 Cowell. 
 
 ARRAIGNMENT. In criminal practice. 
 Calling the defendant to the bar of the 
 court, to answer the accusation contained 
 in the indictment. 
 
 The first step in the proceeding consists 
 in calling the defendant to the bar by his 
 name, and commanding him to hold up his 
 hand. This is done for the purpose of 
 completely identifying the prisoner as the 
 person named in the indictment. The 
 holding up his hand is not, however, indis- 
 pensable, for, if the prisoner should refuse 
 to do so, he may be identified by any ad- 
 mission that he is the person intended. 1 
 W. Bl. 33. See Archb. Crim. PI. (1859 Ed.) 
 128. 
 
 The second step is the reading the in- 
 dictment to the accused person. This is 
 done to enable him fully to understand 
 the charge to be produced against him. 
 The mode in which it is read is, after say- 
 ing, "A. B. hold up your hand," to proceed, 
 "You stand indicted by the name of A. B., 
 late of, etc., for that you, on," etc., and then 
 go through the whole of the indictment. 
 
 The third step is to ask the prisoner: 
 "How say you [A. B.], are you guilty, or 
 not guilty?" Upon this, if the prisoner 
 confesses the charge, and it appears to the 
 satisfaction of the judge that he rightly 
 comprehends the effect of his plea, the 
 confession is recorded, and nothing further 
 is done till judgment. If, on the contrary, 
 he answers, "Not guilty," that plea is en- 
 tered for him, and the clerk or attorney 
 general replies that he is guilty; when an 
 issue is formed. 1 Mass. 95. 
 
 If the defendant, when called upon, makes 
 no answer, and it is a matter of doubt 
 whether or not he is mute of malice, the 
 court may direct a jury to be forthwith 
 impaneled and sworn, to try whether the 
 prisoner is mute of malice or ex visitor 
 Hone Dei; and such jury may consist of 
 any twelve men who mav happen to be 
 present. If a person is found to be mute 
 ex visitatione Dei, the court, ' in its discre- 
 tion, will use such means as may be suf- 
 ficient to enable the defendant to under-' 
 stand. the charge and make his answer; and 
 if this is found impracticable, a plea of not 
 guilty will be entered, and the trial pro- 
 ceed. But If the jury return a verdict 
 that he is mute fraudulently and willfully, 
 the court will pass sentence as upon a con- 
 viction. 1 Mass. 103; 13 Mass. 299; 9 
 Mass. 402; 10 Mfitc. (Mass.) 222; Archb. 
 Crim. PI. (14th London Ed.) 129; Car. 
 Crim. Law, 57; 3 Car. & K. 121; Ros- 
 coe, Crim. Ev. (4th London Ed.) 215. See 
 the case of a deaf person who could not be 
 
ARRAIGNS, ETC. 
 
 (65) 
 
 ARRESTMENT, ETC. 
 
 induced to plead (1 Leach, C. C. [4th Ed.] 
 451) ; of a person deaf and dumb (1 Leach, 
 C. C. [4th Ed.] 102; 14 Mass. 207; 7 Car. 
 & P. 303; 6 Cox, C. C. 386;'3 Car. & K. 328). 
 See "Peine et Forte Dure." 
 
 ARRAIGNS, CLERK OF. An assistant 
 to the clerk of assise. 
 
 ARRAMEUR. An ancient officer of a 
 port, whose business was to load and un- 
 load vessels. 
 
 ARRAS. In Spanish law. The donation 
 which the husband makes to his wife, by 
 reason or on account of marriage, and in 
 consideration of the dote, or portion, which 
 he receives, from her. Aso & M. Inst. bk. 1, 
 tit. 7, c. 3. 
 
 The property contributed by the husband 
 ad sustinenda onera matrimonii (for bear- 
 ing the expenses). 
 
 The husband is under no obligation to 
 give arras, but it is a donation purely vol- 
 untary. He is not permitted to give in 
 arras more than a tenth of his property. 
 The arras is the exclusive property of the 
 wife, subject to the husband's usufruct 
 during his life. Surge, Confl. Laws, 417. 
 
 ARRAY. In practice. The whole body 
 of jurors summoned to attend a court, as 
 they are arrayed or arranged on the panel. 
 See "Challenge;" Dane, Abr. Index; 1 Chit. 
 Grim. Law, 536; Comyn, Dig. "Challenge" 
 (B). 
 
 ARREARAGES. Arrears. 
 
 ARREARS (Pr.) The remainder of an 
 account or sum of money in the hands of 
 an accountant. Any money due and unpaid 
 at a given time. Cowell; Spelman. 
 
 ARRECT. To accuse. Arrectati, those ac- 
 cused or suspected. 
 
 ARRENDAMIENTO (Spanish). In Span- 
 ish law. The contract of letting and hir- 
 ing an estate or land (heredad). White, 
 New Recop. bk. 2, tit. 14, c. 1. 
 
 ARREST OF INQUEST. Pleading in ar- 
 rest of taking the inquest on a former is- 
 sue, and showing cause why an inquest 
 should not be taken. Wharton. 
 
 ARREST (Pr. arreter, to stay, to stop, 
 to detain). To deprive a person of his 
 liberty by legal authority. The seizing a 
 person and detaining him in the custody of 
 the law. 
 
 As ordinarily used, the terms "arrest" and 
 "attachment" coincide in meaning to some 
 extent; though in strictness, as a distinc- 
 tion, an arrest may be said to be the act 
 resulting from the service of an attach- 
 ment. And in the more extended sense 
 which is sometimes given to attachment, in- 
 cluding the act of taking, it would seem to 
 differ from arrest in that it is more pecul- 
 iarly applicable to a taking of property, 
 while arrest is more commonly used in 
 speaking of persons. The terms are, how- 
 
 ever, often interchanged ' when speaking of 
 the taking a man by virtue of legal au- 
 thority. Arrest is also applied in some in- 
 stances to a seizure and detention of per- 
 sonal chattels, especially of ships and ves- 
 sela, but this use of the term is not common 
 in modern law. 
 
 In Civil Practice. The apprehension 
 
 of a person by virtue of a lawful authority 
 to answer the demand against him in a 
 civil action. 
 
 In Criminal Practice. The appre- 
 hending of a person to answer for an al- 
 leged or suspected crime. The word "ar- 
 rest" is said to be more properly used in 
 civil cases, and "apprehension" in crimi- 
 nal. 
 
 In Admiralty Practice. The seizure 
 
 of a vessel on process in an action in rem. 
 
 ARRESTANDIS BONIS NE DISSIPEN- 
 
 tur. In English law. A writ for him whose 
 cattle or goods, being taken during a con- 
 troversy, are likely to be wasted and con- 
 sumed. 
 
 ARRESTANDO IPSUM QUI PECUNIAM 
 
 recepit. In old English law. A writ which 
 issued for apprehending a person who had 
 taken the king's prest money to serve in 
 the wars, and then hid himself in order to 
 avoid going. Reg. Grig. 24. 
 
 ARRESTEE. In Scotch law. He in 
 whose hands a debt, or property in his pos- 
 session, has been arrested by a regular ar- 
 restment. 
 
 If, in contempt of the arrestment, he make 
 payment of the sum or deliver the goods 
 arrested to the common debtor, he is not 
 only liable criminally for breach of the ar- 
 restment, but he must pay the debt again 
 to the arrester. Ersk. Inst. 3. 6. 6. 
 
 ARRESTER. In Scotch law. One who 
 sues out and obtains an arrestment of his 
 debtor's goods or movable obligations. 
 Ersk. Inst. 3. 6. 1. 
 
 ARRESTIVIENT. In Scotch law. Secur- 
 ing a criminal's person till trial, or that of 
 a debtor till he gives security judicio sisti. 
 The order of a judge, by which he who is 
 debtor in a movable obligation to the ar- 
 rester's debtor is prohibited to make pay- 
 ment or delivery till the debt due to the 
 arrester be paid or secured. Ersk. Inst. 3. 
 6. 1; Id. 1. 2. 12. 
 
 Where arrestment proceeds on a depend- 
 ing action. It may be loosed by the common 
 debtor's giving security to the arrester for 
 his debt, in the event it shall be found due. 
 Ersk. Inst. 3. 6. 7. 
 
 ARRESTMENT JURISDICTIONIS FUN- 
 dandae causa. In Scotch law. A process to 
 bring a foreigner within the jurisdiction of 
 the courts of Scotland. The warrant at- 
 taches a foreigner's goods within the juris- 
 diction, and these will not be released un- 
 less caution or security be given. Whar- 
 ton. 
 
ARRESTO FACTO, ETC. 
 
 (66) 
 
 ARTHEL 
 
 ARRESTO FACTO SUPER BONIS MER- 
 catorum alienigenorum. A writ against the 
 goods of aliens found within this kingdom, 
 in recompense of goods taken from a denizen 
 in a foreign country, after denial of restitu- 
 tion. Reg. Orig. 129. The ancient civilians 
 called it "olarigatio," but by the moderns it 
 is termed "reprisalia." Wharton. 
 
 ARRET (Fr.) A judgment, sentence, or 
 decree of a court of competent jurisdiction. 
 
 The term is derived from the French law, 
 and is used in Canada and Louisiana. 
 
 Saisie arret is an attachment of property 
 in the hands of a third person. Code Prac. 
 La. art. 209; 2 Low. (U. S.) 77; 5 Low. (U. 
 S.) 198. 218. 
 
 ARRETTED (arrectatus, i. e., ad rectum vo- 
 oatus) . Convened before a judge and charged 
 with a crime. 
 
 Ad rectum malefactorem is, according to 
 Bracton, to have a malefactor forthcoming 
 to be put on his trial. 
 
 Imputed, or laid to one's charge; as, no 
 folly may be arretted to any one under age. 
 Bracton, lib. 3, tr. 2, c. 10; Cunningham. 
 
 ARRHABO (Lat.) In the civil law. 
 Earnest; money given to bind a bargain. 
 Calv. Lex; Brissonius, voc. "Arra." 
 
 ARRHAE. In the civil law. Money or 
 other valuable things given by the buyer to 
 the seller, for the purpose of evidencing the 
 contract; earnest. 
 
 There are two kinds of arrhae: One kind 
 given when a contract has only been pro- 
 posed; the other when a sale has actually 
 taken place. Those which are given when 
 a bargain has been merely proposed, be- 
 fore it has been concluded, form the mat- 
 ter of the contract, by which he who gives 
 the arrhae consents and agrees to lose 
 them, and to transfer the title to them in 
 the opposite party, in case he should refuse 
 to complete the proposed bargain; and the 
 receiver of arrhae is obliged on his part to 
 return double the amount to the giver of 
 them in case he should fail to complete 
 his part of the contract. Poth. Vente, 
 note 498. After the contract of sale has 
 been completed, the purchaser usually 
 gives arrhae as evidence that the contract 
 has been perfected. Arrhae are therefore 
 defined quod ante pretium datur, et fidem 
 fecit contractus, facti totiusque pecuniae 
 solrrndae. Id. note 506; Code, 4. 45. 2. 
 
 ARRIAGE AND CARRIAGE. Services 
 of an indefinite amount formerly exacted 
 from tenants under the Scotch law. Bell, 
 Did. 
 
 ARRIER BAN. A second summons to 
 join the lord, addressed to those who had 
 neglected the first. A summons of the infe- 
 riors or vassals of the lord. Spelman. 
 
 To be distinguished from ariiannum. 
 
 ARRIERE FIEF (Pr.) An inferior fee 
 granted out of a superior. 
 
 ARRIERE VASSAL. In feudal law. The 
 vassal of a vassal. One who held of a vas- 
 sal of the crown. 
 
 ARRIVE. To come to a particular place; 
 to reach a particular or certain place. See 
 1 Brock. (U. S.) 411; 2 Cush. (Mass.) 439; 8 
 Barn. & C. 119. 
 
 ARROGATION. The adoption of a per- 
 son sui juris. 1 Brown, Civ. Law, 119; Dig. 
 1. 7. 5; Inst. 1. 11. 3. 
 
 ARRONDISSEMENT. One of the subdi- 
 visions of a department {q. v.) in France. 
 
 ARSAE ET PENSATAE (Law Lat.) 
 Burnt and weighed. A term formerly ap- 
 plied to money melted and then weighed 
 to test its purity. 
 
 ARSENALS. Storehouses of arms and 
 other military supplies. 
 
 ARSER IN LE MAIN. Burning in the 
 hand. The punishment inflicted on those 
 who received the benefit of clergy. Termes 
 de la Ley. 
 
 ARSON (Lat ardere, to burn). At com- 
 mon law. The malicious burning of the 
 house of another. Coke, 3d Inst. 66; Bish. 
 Crim. Law, § 415; 4 Bl. Comm. 220; 2 Pick. 
 (Mass.) 320; 10 Cush. (Mass.) 479; 7 Grat. 
 (Va.) 619; 9 Ala. 175; 7 Blackf. (Ind.) 168; 
 1 Leach, C. C. (4th Ed.) 218. By statute 
 in most, if not all, the states, the house 
 need not be that of another. 
 
 The house, or some part of it, however 
 small) must be consumed by fire. 9 Car. & 
 P. 45; 16 Mass. 105; 110 Mass. 403; 5 Ired. 
 (N. C.) 350; 25 Ired. (N. C.) 570; 62 N. Y. 
 117. 
 
 At common law, the building must have 
 been a dwelling house, but this included all 
 buildings within the curtilage. By statute 
 the offense has been extended to other 
 buildings. 
 
 ARSURA. The trial of money by heat- 
 ing it after it was coined. Now obsolete. 
 
 ART. A principle put In practice, and 
 applied to some art, machine, manufacture, 
 or composition of matter. 4 Mason (U. S.) 1. 
 See Act Cong. July 4, 1836, § 6. 
 
 Copper-plate printing on the back of a 
 banknote is an art for which a patent may 
 be granted. 4 Wash. C. C. (IT. S.) 9. 
 
 ART AND PART. In Scotch law. The 
 offense committed by one who aids and 
 assists the commission of a crime, but who 
 is not the principal or chief actor in its 
 actual commission. An accessary; a prin- 
 cipal in the second degree. Paterson, Comp. 
 
 ART, WORDS OF. Words used In their 
 technical sense; sometimes words which 
 bear such a sense, without regard to the cor- 
 rectness of their use. 
 
 ARTHEL (properly ARDDELW or ARD- 
 del). In Welsh and old English law. To 
 avouch. Cowell. 
 
 Used, also, as a substantive. Thus, in 
 
ARTICLE 
 
 (67) 
 
 ARTICULI DE MONETA 
 
 the laws of Hoel Dha it was provided that 
 if a man were taken with stolen goods, he 
 must he allowed a lawful arddelw (vouchee) 
 to clear him of his felony. This was abol- 
 ished by St. 26 Hen. VIII. c. 6. Blount. 
 
 ARTICLE. A distinct part of an instru- 
 ment, consisting of two or more particulars. 
 Hence systems of rules and instruments 
 composed of various particulars, or arrang- 
 ed in several divisions, are called "articles." 
 The term was anciently applied to statutes 
 drawn in this form. 
 
 In French Law. A point. 
 
 In English Ecclesiastical Law. A 
 
 charge or libel. The introductory part of 
 such a pleading is: "We article and object," 
 etc. 
 
 In Scotch Practice. A subject or 
 
 matter. "Article of dittay." 1 Brown, 62. 
 
 ARTICLED CLERK. One who binds 
 himself by articles to serve in the office of 
 a solicitor, in consideration of receiving 
 instruction. 
 
 ARTICLES APPROBATORY. In Scotch 
 law. That part of the proceedings which 
 corresponds to the answer to the charge 
 in an English bill in chancery. Paterson, 
 Ccmp. 
 
 ARTICLES I M PROBATORY. In Scotch 
 law. Articulate averments setting forth 
 the facts relied upon. Bell, Diet. 
 
 That part of the proceedings which cor- 
 responds to the charge in our English bill 
 in chancery to set aside a deed. Paterson, 
 Comp. The answer Is called "articles ap- 
 probatory." 
 
 ARTICLES, LORDS OF. A committee 
 of the Scotch parliament, which, in the mode 
 of its election, and by the nature of its pow- 
 ers, was calculated to increase the influence 
 of the crown, and to confer upon it a power 
 equivalent to that of a negative before de- 
 bate. This system appeared inconsistent 
 with the freedom of parliament, and at the 
 revolution the convention of estates declar- 
 ed it a grievance, and accordingly it was 
 suppressed by Act 1690, c. 3. Wharton. 
 
 ARTICLES OF AGREEMENT. A writ- 
 ten memorandum of the terms of an agree- 
 ment. 
 
 ARTICLES OF CONFEDERATION. The 
 
 title of the compact which was made by 
 the thirteen original states of the United 
 States of America. 
 
 ARTICLES OF FAITH. See "Articles of 
 Religion." 
 
 ARTICLES OF IMPEACHMENT. A writ- 
 ten allegation of the causes for impeach- 
 ment. 
 
 They are called by Blackstone a kind of 
 bill of indictment, and perform the same 
 office which an indictment does in a com- 
 mon criminal case. They do not usually 
 pursue the strict form and accuracy of an 
 indictment, but are sometimes quite general 
 
 in the form of the allegations. Wooddeson, 
 Lect. 605; Comyn, Dig. "Parliament" (L 21) ; 
 Story, Const. § 806. 
 
 ARTICLES OF PARTNERSHIP. A writ- 
 ten agreement by which the parties enter 
 into a partnership upon the conditions 
 therein mentioned. These are to be dis- 
 tinguished from agreements to enter into 
 a partnership at a future time. 
 
 ARTICLES OF RELIGION. The "Thirty- 
 Nine Articles" of religious dogma drawn up 
 in the reign of James I., and approved by 
 him. 
 
 ARTICLES OF ROUP. In Scotch law. 
 The conditions under which property is of- 
 fered for sale at auction. Paterson, Comp. 
 
 ARTICLES OF SET. In Scotch law. 
 An agreement for a lease. Paterson, Comp. 
 
 ARTICLES OF THE CLERGY. See 
 
 "Articuli Cleri." 
 
 ARTICLES OF THE NAVY. A system 
 of rules for the government of the navy. 
 
 ARTICLES OF THE PEACE. A com- 
 plaint made before a court of competent 
 jurisdiction by one who has just cause to 
 fear that an injury to his person or prop- 
 erty is about to be committed or caused by 
 the party complained of, alleging the causes 
 of his belief, and asking the protection of 
 the court. 
 
 The object of articles is to compel the 
 party complained of to find sureties of the 
 peace. 
 
 ARTICLES OF UNION. Articles, twenty- 
 five in number, adopted by the parliaments 
 of England and Scotland in 1707, and taking 
 effect May 1st of that year, for the union 
 of the two countries. 1 Bl. Comm. 96. 
 
 ARTICLES OF WAR. The code of laws 
 established for the government of the army. 
 
 The term is used in this sense both in 
 England and the United States. The term 
 also includes the code established for the 
 government of the navy. See Acts April 
 23, 1800, and April 10, 1806, and 22 Geo. 
 II. c. 33; 19 Geo. III. c. 17; 37 Geo. III. cc. 
 70, 71 ; 47 Geo. III. c. 71. See "Martial Law." 
 
 ARTICULATE ADJUDICATION. InScotch 
 law. Separate adjudication for each of sev- 
 eral claims of a creditor. It is so made in 
 order that a mistake in accumulating one 
 debt need not affect the proceedings on other 
 claims which are correctly accumulated. 
 
 ARTICULI (Lat.) Articles; items or 
 heads. A term applied to some old English 
 statutes, and occasionally to treatises. 
 
 ARTICULI CLERI. Articles of the clergy; 
 the title of a statute passed in the ninth 
 year of Edw. II. to adjust questions of cog- 
 nizance between the ecclesiastical and tem- 
 poral courts. 2 Reeve, Hist. Eng. Law, 291; 
 2 Inst. 599. 
 
 ARTICULI DE MONETA. Articles con- 
 cerning money, or the currency. The title 
 
ARTICULI MAGNAE CHARTAE (68) 
 
 ASSART 
 
 of a statute passed in the twentieth year 
 of Edward I. 2 Reeve, Hist. Eng. Law, 
 228; Crabb, Hist. Eng. Law (Am. Ed.) 167. 
 
 ARTICULI MAGNAE CHARTAE. The 
 
 preliminary articles, forty-nine in number, 
 upon which the Magna Charta was founded. 
 
 ARTICULI SUPER CHARTAS. St. 28 
 
 Edward L st. 3, confirming and enlarging 
 Magna Charta, and the Charta de Foresta. 
 2 Reeve, Hist. Eng. Law, 103, 233. 
 
 ARTICULO MORTIS. See "In Articulo 
 Mortis." 
 
 ARTIFICER. One by whom something 
 is made. 4 Strobh. (S. C.) 365. 
 
 A skilled workman. 13 Q. B. Div. 832. 
 
 ARTIFICIAL. Having its existence in 
 the given manner by virtue of or in consid- 
 eration only of the laTw. 
 
 An artificial person is a body, company, 
 or corporation considered in law as an in- 
 dividual. 
 
 ARTIFICIAL PRESUMPTIONS. In the 
 
 law of evidence. Presumptions (otherwise 
 termed "legal") which derive from the law 
 a technical of artificial operation and ef- 
 fect beyond their mere natural tendency to 
 produce belief. 3 Starkie, Ev. 1235. 
 
 ARURA. Days' work at ploughing. 
 
 AS (Lat.) A pound. It was composed 
 of twelve ounces. The parts were reckon- 
 ed, as may be seen in the law, servum de 
 haeredibus (Inst. lib. 13, Pandect) as fol- 
 lows: Uncia, 1 ounce; sextans, 2 ounces; 
 triens, 3 ounces; quadrans, 4 ounces; quin- 
 cunx, 5 ounces; semis, 6 ounces; septunx, 7 
 ounces; bes, 8 ounces; dodrans, 9 ounces; 
 dextans, 10 ounces; deunx, 11 ounces. 
 
 The whole of a thing, solidum quid. Thus, 
 as signified the whole of an inheritance, so 
 that an heir ex asse was an heir of the whole 
 inheritance. An heir ex triente, ex semisse, 
 ex besse, or ex dennce was an heir of one-third, 
 one-half, two-thirds, or eleven-twelfths. 
 
 ASCENDANTS (Lat. ascendere, to ascend, 
 to go up to, to climb up to). Those from 
 whom a person is descended, or from whom 
 he derives his birth, however remote they 
 may be. 
 
 Every one has two ascendants at the 
 first degree, his father and mother; four at 
 the second degree, his paternal grand- 
 father and grandmother, and his maternal 
 grandfather and grandmother; eight at the 
 third. Thus, in going up we ascend by va- 
 rious lines, which fork at every generation. 
 By this progress, sixteen ascendants are 
 found at the fourth degree; 'thirty-two at the 
 fifth; sixty-four, at the sixth; one hun- 
 dred and twenty-eight, at the seventh; and 
 so on. By this progressive increase, a per- 
 son has at the twenty-fifth generation thirty- 
 three million five hundred and fifty-four 
 thousand four hundred and thirty-two as- 
 cendants. But, as many of the ascendants 
 of a person have descended from the same 
 ancestor, the lines which were forked re- 
 
 unite to the first common ancestor, from 
 whom the other descends; and this multi- 
 plication, thus frequently interrupted by 
 the common ancestors, may be reduced to 
 a few persons. 
 
 ASCENDIENTES. In Spanish law. As- 
 cendants; ascending heirs; heirs in the as- 
 cending line. White, New Recop. bk. 1, tit. 
 7, c. 3, note; Schmidt, Civ. Law, 259. 
 
 ASCRIPTITIUS. One enrolled; foreign- 
 ers who have been enfolled. Among the 
 Romans, ascriptitii were foreigners who had 
 been naturalized, and vsrho had in general 
 
 the same rights as natives. Nov. 22, c. 17; 
 Code, 11. 47. Ascriptitii is the plural. 
 
 ASPECT. View or possibility. A plead- 
 ing "with a double aspect" is one based on 
 alternative hypotheses of fact. 
 
 ASPHYXIA. In medical jurisprudence. 
 A temporary suspension of the motion of 
 the heart and arteries; swooning; faint- 
 ing. 
 
 ASPORTATION. Carrying away. A com- 
 mon-law ingredient of larceny. "There mu.9t 
 be such a caption that the accused acquires 
 dominion over the property, followed by 
 such an asportation or carrying away as to 
 supersede the possession of the owner for an 
 appreciable period of time." 94 Ala. 535. 
 
 Thus it has been held not larceny to 
 merely set a package of goods on end, with 
 intent to steal it in the future (1 Leg. C. 
 C. 237), or to touch a pocketbook in an- 
 other's pocket without removing it (99 Mass. 
 431), or to attempt to carry away property 
 which is attached by a chain to the person 
 of the owner (1 Leg. C. C. 321). On the 
 other hand, the slightest asportation is suf- 
 ficient, and it has been held larceny to re- 
 move a package from one end of a wagon 
 to the other (1 Leg. C. C. 236), or to partly 
 lift money from a pocket, though it was 
 dropped before being entirely removed (1 
 Moody, C. C. 78; 20 Ohio St. 508). 
 
 The asportation need not be by the hand 
 of the trespasser; a carrying away by an 
 innocent agent (125 Mass. 390), or by me- 
 chanical means, as by fraudulently connect- 
 ing a private pipe with gas mains (1 Cox, 
 C. C. 213), being sufliclent. 
 
 ASPORTAVIT. He carried away. See 
 "Asportation." 
 
 ASSACH, or ASSATH. In old Welsh law. 
 An oath made by compurgators. Applied 
 in St. 1 Hen. V. c. '6, to the Welsh custom 
 of clearing one accused of homicide by the 
 oaths of three hundred persons. 
 
 The origin and exact meaning of the 
 term is uncertain, and Mr. Barrington could 
 only collect its meaning from the above 
 statute. Barr. Obs. St. 382. 
 
 ASSART, or ESSART. In English forest _ 
 and ecclesiastical law. The offense of pull- " 
 ing up by the roots the woods that are 
 thickets and coverts for the deer, and mak- 
 ing them clear as arable land. Manw. For. 
 
ASSASSINATION 
 
 (69) 
 
 ASSENT 
 
 Law, p. 2, c. 9, note 1; Cowell; 1 Crabb, Real 
 Prop. pp. 486, 487, § 627. 
 
 Written, in the law Latin, assartum, in 
 Bracton and Fleta, and essartum, in the 
 Charta de Foresta and the Black Book of 
 the Exchequer. 
 
 ASSASSINATION. Murder committed for 
 hire, without provocation or cause of re- 
 sentment given to the murderer by the 
 person upon whom the crime is committed. 
 Ersk. Inst. bk. 4, tit. 4, note 45. 
 
 A murder committed treacherously, with 
 advantage of time, place, or other circum- 
 stances. 
 
 In modern usage, at least, it is not a 
 technical term of the law of homicide. 
 
 ASSATH, or ASSAITH. See "Assach." 
 
 ASSAULT. An unlawful offer or attempt 
 with force or violence to do a corporal hurt 
 to another. It may consist of any act tend- 
 ing to such injury, and accompanied by such 
 circumstances as denote an intention and 
 a present ability of personal violence. 1 
 Hill (N. Y.) 351. 
 
 Force unlawfully directed or applied to 
 the person of another under such circum- 
 stances as to cause a well-founded appre- 
 hension of immediate peril. 
 
 Aggravated assault is one committed with 
 the intention of committing some additional 
 crime, or under circumstances of peculiar 
 turpitude. 
 
 Simple assault is one committed with no 
 Intention to do any other injury. 
 
 Assault is generally coupled with battery, 
 and for the excellent practical reason that 
 they generally go together; but the assault 
 is rather the initiation or offer to commit 
 the act of which the battery is the consum- 
 mation. An assault is included in every 
 battery. 1 Hawk. P. C. c. 62, § 1. 
 
 Mere words do not constitute an assault 
 (59 Ind. 300), but some overt act is required 
 (55 Hun [N. Y.] 214). 
 
 ASSAY. The proof or trial of the purity 
 or fineness of metals, particularly the pre- 
 cious metals, gold and silver. 
 
 ASSAY OFFICE. An establishment, or 
 department, in which the manipulations at- 
 tending the assay of bullion and coins are 
 conducted. See "Assay." 
 
 ASSAYER OF THE KING. An officer of 
 the royal mint, appointed by St. 2 Hen. VI. 
 c. 12, who received and tested the bullion 
 taken in for coining. Also called assaya- 
 tor regis. Cowell; Termes de la Ley. 
 
 ASSECURARE (Lat.) To assure; to 
 make secure by pledges, or any solemn in- 
 terposition of faith. Spelman; Cowell. 
 
 ASSECU RATION. In European law. 
 Assurance; insurance of a vessel, freight, 
 or cargo. Opposition to the decree of Gre- 
 noble. Ferriere. 
 
 ASSECU RATOR. An insurer. 
 
 ASSEDATION. In Scotch law. An old 
 term, used indiscriminately to signify a 
 lease or feu-right. Bell, Diet.; Ersk. Inst, 
 lib. 2, tit. 6, § 20. 
 
 ASSEMBLY. The meeting of a number 
 of persons in the same place. 
 
 Political Assemblies. Those required 
 
 by the constitution and laws. For example, 
 the general assembly, which includes the 
 senate and house of representatives. The 
 meeting of the electors of the president and 
 vice president of the United States may also 
 be called an assembly. 
 
 Popular Assemblies. Those where the 
 
 people meet to deliberate upon their right.^. 
 These are guarantied by the constitution. 
 Const. TJ. S. Amend, art. 1. 
 
 Unlawful Assembly. The meeting of 
 
 three or more persons to do an unlawful 
 act, although they may not carry their pur- 
 pose into execution^ It differs from a riot 
 or rout because in each of the latter cases 
 there is some act done besides the simple 
 meeting. See 1 Ired. (N. C.) 30; 9 Car. & 
 P. 91, 431; 5 Car. & P. 154; 1 Bish. Crim. 
 Law, § 395; 2 Bish. Crim. Law, §§ 1039, 
 1040. 
 
 ASSEMBLY GENERAL. The supreme ec- 
 clesiastical court in Scotland. 
 
 ASSENT. Approval of something done. 
 An undertaking to do something in com- 
 pliance with a request. 
 
 In strictness, "assent" is to be distinguish- 
 ed from "consent," which denotes a willing- 
 ness that something about to be done be 
 done; "acceptance," compliance with, or 
 receipt of, something offered; "ratification," 
 rendering valid something done without au- 
 thority; and "approval," an expression of 
 satisfaction with some act done for the 
 benefit of another besides the party approv- 
 ing. But in practice the term is often used 
 in the sense of acceptance and approval. 
 Thus, an offer is said to be assented to, al- 
 though properly an offer and acceptance 
 complete an agreement. It is apprehended 
 that this confusion has arisen from the fact 
 that a request, assent, and concurrence of 
 the party requesting complete a contract 
 as fully as an offer and acceptance. Thus, 
 it is said there must be a request on one 
 side, and assent on the other, in every con- 
 tract (5 Bing. N. C. 75), and this assent be- 
 comes a promise enforceable by the party 
 requesting, when he has done anything to 
 entitle him to the right. Assent thus be- 
 comes in reality (so far as it is assent 
 merely, and not acceptance) an offer made 
 in response to a request. Assent and ap- 
 proval, as applied to acts of parliament and 
 of congress, have become confounded, from 
 the fact that the bills of parliament were 
 originally requests from parliament to the 
 king. See 1 Bl. Comm. 183. 
 
 Express assent is that which is openly 
 declared. 
 
 Implied assent is that which is presumed 
 by law. 
 
ASSERTORY COVENANT 
 
 (70) 
 
 ASSIGNMENT 
 
 ASSERTORY COVENANT. One which 
 asserts or warrants the existence of a 
 particular state of facts. 
 
 ASSESS. To rate or fix the proportion 
 which every person has to pay of any par- 
 ticular tax. 
 
 To tax. 
 
 To adjust the shares of a contribution by 
 several towards a common beneficial object, 
 according to the benefit received. 
 
 To fix the value of; to fix the amount of. 
 
 ASSESSMENT. Determining the value 
 of a man's property or occupation for the 
 purpose of levying a tax. 
 
 Determining the share of a tax to be paid 
 by each individual. 
 
 Laying a tax. 
 
 Adjusting the shares of a contribution by 
 several towards a common beneficial object, 
 according to the benefit received. The term 
 is used in this latter sense in New York, 
 distinguishing some kinds of local taxation, 
 whereby a peculiar benefit arises to the par- 
 ties, from general taxation. 11 Johns. (N. Y.) 
 77; 3 Wend. (N. Y.) 263; 4 Hill (N. Y.) 76; 
 4 N. Y. 419. 
 
 ,v Of Damages. Fixing the amount of 
 
 damages to which the prevailing party in 
 a suit is entitled. It may be done by the 
 court through its proper ofllcer, the clerk 
 or prothonotary, where the assessment is 
 a mere matter of calculation, but must be 
 by a jury in other cases. See "Damages." 
 
 In Insurance. An apportionment 
 
 made in general average upon the various 
 articles and interests at risk, according to 
 their value at the time and place of being 
 in safety, for contribution for damage and 
 sacrifices purposely made, and expenses in- 
 curred for escape from impending common 
 peril. 2 Phil. Ins. c. 25. 
 
 ASSESSORS. Those appointed to make 
 assessments. 
 
 In Civil and Scotcii Law. Persons 
 
 skilled in law, selected to advise the judges 
 of the inferior courts. Bell, Diet.; Dig. 1. 22; 
 Code, 1. 51. 
 
 ASSETS (Fr. assez, enough). All the 
 stock in trade, cash, and all available prop- 
 erty belonging to a merchant or company. 
 
 Equivalent to "property." 2 Sandf. (N. Y.) 
 202. 
 
 The property in the hands of an heir, ex- 
 ecutor, administrator, or trustee, which is 
 legally or equitably chargeable with the 
 obligations which such heir, executor, ad- 
 ministrator, or other trustee is, as such, re- 
 quired to discharge. 
 
 EquitableAssets. Such as can be reach- 
 ed only by the aid of a court of equity, and 
 which are to be divided, pari passu, among 
 all the creditors. 2 Ponbl. Eq. 401 et seq.; 
 Willis, Trustees, 118. 
 
 Legal Assets. Such as constitute the 
 
 fund for the payment of debts according to 
 their legal priority. 
 
 Assets per Descent. That portion of 
 
 the ancestor's estate which descends to the 
 
 heir, and which is sufficient to charge him, 
 as far as it goes, with the specialty debts 
 of his ancestors. 2 Williams, Ex'rs, 1011. 
 
 Personal Assets. Goods and personal 
 
 chattels to which the executor or adminis- 
 trator is entitled. 
 
 Real Assets. Such as descend to the 
 
 heir, as, an estate in fee simple. 
 
 ASSETS ENTRE MAINS (Law Pr.) As- 
 sets in hand; assets in the hands of execu- 
 tors or administrators, applicable for the 
 payment of debts. Termes de la Ley; 2 
 Bl. Comm. 510; 1 Crabb, Real Prop. p. 23, 
 § 31. Called, in modern law, "personal as- 
 sets." 
 
 ASSEVERATION. The proof which a 
 man gives of the truth of what he says, by 
 appealing to his conscience as a witness. 
 It differs from an oath in this, that by the 
 latter he appeals to God as a witness of 
 the truth of what he says, and invokes him, 
 as the avenger of falsehood and perfidy, to 
 punish him if he speaks not the truth. See 
 "Affirmation;" "Oath." 
 
 ASSEWIARE (Law Lat.) In old records. 
 To draw or drain out water from marshy 
 grounds. Cowell; Blount. 
 
 ASSIGN. To make or set over to another. 
 Cowell; 2 Bl. Comm. 326; 5 Johns. (N. Y.) 
 391. 
 
 To appoint; to select; to allot. 3 Bl. 
 Comm. 58. 
 
 To set forth; to point out; as, to assign 
 errors. Fitzh. Nat. Brev. 19. 
 
 ASSIGNATION. In Scotch law. Assign- 
 ment (g.v.) 
 
 ASSIGNATUR UTITUR JURE AUCTO- 
 
 ris. An assigner is clothed with the rights 
 of his principal. Halk. Max. 14; Broom, 
 Leg. Max. (3d London Ed.) 415, 416, 423, 
 425; Wingate, Max. p. 56; 1 Exch. 32; 18 
 Q. B. 878. 
 
 ASSIGNAY, or ASSIGNEY. In Scotch 
 law. An assignee. "Airis and Assignais," 
 1 Pitc. Crim. Tr. p. 342; "Aires or Assigneys," 
 5 Bell, App. Cas. 83. "Assignay" (Law Fr.) 
 occurs in Y. B. M. 7 Edw. IIL 5. 
 
 ASSIGNEE. One to whom an assign- 
 ment has been made. 
 
 Assignee in fact is one to whom an as- 
 signment has been made in fact by the 
 party having the right. 
 
 Assignee in law is one in whom the law 
 vests the right; as, an executor or adminis- 
 trator. See "Assignment." 
 
 ASSIGNMENT (Law Lat. assignatio, from 
 assigno, — ad and signuvi,- — to mark for; to 
 appoint to one ; to appropriate to). At com- 
 mon law. "The transferring and setting 
 over to another of some right, title, or inter- 
 est in things in which a third party, not a 
 party to the assignment, has a concern and 
 interest." 1 Bac. Abr. 329; 1 Iowa, 582. 
 
 It is more loosely used to indicate any 
 transfer or making over to another of the 
 
ASSIGNMENT, ETC. 
 
 (71) 
 
 ASSISA PANIS, ETC. 
 
 wholfe of any property, real or personal, in 
 possession or In action, or of any estate or 
 right tlierein. 35 Fed. 436; 78 Iowa, 101; 
 3 Minn: 389 (Gil. 282) ; 16 Barb. (N. Y.) 580. 
 
 ASSIGNMENT FOR BENEFIT OF CRED- 
 itors. An assignment by an insolvent debt- 
 or of his property, in trust for the distribu- 
 tion of such property among the assignor's 
 creditors. 
 
 ASSIGNMENT OF DOWER. The act by 
 
 which the share of a widow in her deceased 
 husband's real estate is ascertained and 
 set apart to her. 
 
 The assignment may be made in pais by 
 the heir or his guardian, or the devisee or 
 other persons seised of the lands subject to 
 dower (19 N. H. 240; 23 Picii. [Mass.] 80, 
 88; 4 Ala. [N. S.] 160; 4 Me. 67; 2 Ind. 388; 
 White & T. Lead. Gas. 51), or it may be made 
 after a course of judicial proceedings, where 
 a voluntary assignment is refused. In this 
 case, the assignment will be made by the 
 sheriff, who will set off her share by metes 
 and bounds. 2 Bl. Comm. 136; 1 Washb. 
 Real Prop. 229. The assignment should be 
 made within forty days after the death of 
 the husband, during which time the widow 
 shall remain in her husband's capital man- 
 sion house. 
 
 ASSIGNMENT OF ERRORS. In practice. 
 The statement of the case of the plaintiff 
 in error on a writ of error setting forth the 
 errors complained of. It corresponds with 
 the declaration in an ordinary action. 2 
 Tidd, Prac. 1168; 3 Steph. Comm. 644. 
 
 In those states in which the remedy by 
 appeal is extended to actions at law and 
 criminal prosecutions, the assignment of 
 errors is a schedule of the errors complain- 
 ed of, filed by appellant, and usually pre- 
 fixed to his brief. 
 
 ASSIGNOR. One who makes an assign- 
 ment; one who transfers property to an- 
 other. 
 
 ASSIGNS. Assignees; those to whom 
 property shall have been transferred. Now 
 seldom used except in the phrase, in deeds, 
 "heirs, administrators, and assigns." 
 
 ASSISA (Lat. assidere). A kind of jury 
 or inquest. Assisa vertitur in juratum, the 
 assize has been turned into a jury. See 
 "Assize." 
 
 A writ, as, an assize of novel disseisin, 
 assize of common pasture. 
 
 An ordinance, as assisa panis. Spelman; 
 Litt. § 234; 3 Sharswood, Bl. Comm. 402. 
 
 A fixed specific time, sum, or (T^antity; a 
 tribute; tax fixed by law; a fine. Spelman. 
 
 ASSISA ARMORUM. A statute ordering 
 the keeping arms. 
 
 ASSISA CADERE. To be nonsuited. 
 Cowell; 3 Bl. Comm. 402. 
 
 ASSISA CONTINUANDA. A writ for 
 the continuation of the assize to allow the 
 productidn of papers. Reg. Grig. 217. 
 
 ASSISA DE FORESTA. Assize of the for- 
 est (q. V.) 
 
 ASSISA MORTIS D'ANCESTORIS. As- 
 size of mort d'ancestor (q. v.) 
 
 ASSISA DE CLARENDON. The statute 
 of Clarendon, passed 10 Hen. II., allowing 
 an additional time for preparation to per- 
 sons compelled to abjure the realm. See 
 "Abjuration." 
 
 ASSISA DE MENSURIS (Law Lat.) As- 
 size of measures. A common rule for 
 weights and measures, established through- 
 out England by Richard I., in the eighth 
 year of his reign. Hale, Hist. Com. Law, c. 7. 
 
 ASSISA DE NOCUMENTO. Assize of 
 nuisance. In old English practice, a writ 
 which lay to remove a nuisance, and re- 
 cover damages. 3 Bl. Comm. 221, 222; Reg. 
 Orig. 197b. Now abolished with the other 
 real actions. 
 
 ASSISA DE UTRUM (assize of Utrum). 
 In old English practice. An assize, other- 
 wise called a writ of juris utrum, which 
 lay for a parson or prebendary at common 
 law, and for a vicar by St. 14 Edw. III. c. 
 17, to recover lands and tenements belong- 
 ing to the church, which were alienated 
 by the predecessor, or of which he was 
 disseised, or which were recovered against 
 him by verdict, confession, or default, 
 without praying in aid of the patron and 
 ordinary, or on which any person had in- 
 truded since the predecessor's death. 3 
 Bl. Comm. 253; Roscoe, Real Actions, 74; 
 Bracton, lib. 4, tr. 5; Pleta, lib. 5, c. 20. It 
 derived its name from the emphatic word 
 in the writ by which the jury were required 
 to determine "whether" (utrum) the tene- 
 ments in question were frankalmoign be- 
 longing to the church of the demandant, or 
 the lay fee of the defendant. Bracton, fol. 
 286; Reg. Orig. 32b. The writ has long 
 been obsolete, principally because of the 
 restraining statute of 13 Eliz. c. 10. 3 Bl. 
 Comm. 253. 
 
 ASSISA FRISCAE FORTIAE. Assize of 
 fresh force (g. v.) 
 
 , ASSISA MORTIS ANTECESSORIS (Law 
 Lat.) Assise of mort d'ancestor (q. v.) Brac- 
 ton, lib. 4, tr. 3; Fleta, lib. 4, c. 1; Id. lib. 
 5, c. 1. Called, also, assisa de morte ante- 
 ccssoris. 
 
 ASSISA NOVAE DISSEYSINAE. Assize 
 of novel disseisin (g. v.) 
 
 ASSISA PANIS ET CEREVISLAE (Law 
 Lat.) Assize of bread and ale, or beer. 
 The name of a statute passed in the fifty- 
 first year of Henry III., containing regula- 
 tions for the sale of bread and ale; some- 
 times called the "statute of bread and 
 ale." Co. Litt. 159b; 2 Reeve, Hist. Eng. 
 Law, 56; Cowell; Bracton, fol. 155; Barr. 
 Obs. St. 52. The particular provisions of 
 this statute, which are very' minute, may 
 be found in Britton and Pleta. Britt. c. 
 30; Fleta, lib. 2, cc. 9, 11. Spelman con- 
 siders the statutes passing under the names 
 
ASSISA PROROGANDA 
 
 (72) ASSIZE OF THE FOREST 
 
 of assisa panis, assisa vini et oervisiae, 
 etc., to belong to an earlier period. 
 
 TEe power or privilege of assising or 
 adjusting the weights and measures of 
 bread and beer. Cowell. 
 
 ASSISA PROROGANDA. A writ to stay 
 proceedings where one of the parties is en- 
 gaged In a suit of the king. Reg. Grig. 208. 
 
 ASSISA ULTIMAE PRAESENTATIONIS. 
 
 Assize of darrein presentment. 
 
 ASSISA VENALIUM. Statutes regulating 
 the sale of certain articles. Spelman. 
 
 ASSISORS. In Scotch law. Jurors. 
 
 ASSISTANCE. See "Writ of Assist- 
 ance." 
 
 ASSISUS (Lat. from assidere, to fix or set- 
 tle). In old English law. Fixed or certain. 
 Assisus reditus, a fixed, certain, or standing 
 rent. Kennett, Par. Ant. 314, 335. Called 
 "rent of assize." 2 Bl. Comm. 42. Terra 
 assisa, land let or farmed out for a certain 
 assessed rent. Cowell. 
 
 ASSITHMENT. Compensation by a pe- 
 cuniary mulct. Cowell. 
 
 ASSIZE (Lat. assidere, to sit by or near, 
 through the Fr. assisa, a session). 
 
 In English Law. A writ directed to 
 
 the sheriff for the recovery of immovable 
 property, corporeal or incorporeal. Cowell; 
 Litt. § 234.. 
 
 The action or proceedings in court based 
 upon such a writ. Magna Charta, c. 12; St. 
 13 Edw. I. (Westminster II.) c. 25; 3 Bl. 
 Comm. 57, 252; Sellon, Prac. Introd. xii. 
 
 Such actions were to be tried by special 
 courts, of which the judicial ofiicers were 
 justices of assize. See "Courts of Assize 
 and Nisi Prius." This form of remedy is 
 said to have been introduced by the parlia- 
 ment of Northampton (or Nottingham, A. 
 D. 1176), for the purpose of trying titles 
 to land in a more certain and expeditious 
 manner before commissioners appointed by 
 the crown than before th^ suitors in the 
 county court or the king's justiciars in the 
 aula regis. The action is properly a mixed 
 action, whereby the plaintiff recovers his 
 land and damages for the injury sustain- 
 ed by the disseisin. The value of the ac- 
 tion as a means for the recovery of land 
 led to its general adoption for that purpose; 
 those who had suffered injury not really 
 amounting to a disseisin alleging a disseisin 
 to entitle themselves to the remedy. The 
 scope of the remedy was also extended so 
 as to allow the recovery of incorporeal 
 hereditaments, as franchises, estovers, etc. 
 It gave place to the action of ejectment, 
 and is now abolished, having been pre- 
 viously almost, if not quite, entirely dis- 
 used. St. 3 cfe 4 Wm. IV. c. 27, § 36. Stearns, 
 Real Actions, 187. 
 
 A jury summoned by virtue of a writ of 
 assize. 
 
 The verdict or judgment of the jurors or 
 recognitors of assize. 3 Bl. Comm. 57, 59. 
 
 A court composed of an assembly of 
 knights and other substantial men, with 
 the baron or justice, in a certain place, at 
 an appointed time. Grand Coutum. cc. 24, 
 25. 
 
 An ordinance or statute. Litt. § 234; 
 Reg. Grig. 239. Anything reduced to a cer- 
 tainty in respect to number, quantity, 
 quality, weight, measure, etc. 2 Sharswood, 
 Bl. Comm. 42; Cowell; Spelman, "Assisa." 
 See the articles immediately following. 
 
 In Scotch Law. The jury, consisting 
 
 of fifteen men, in criminal cases tried in 
 the court of justiciary. Paterson, Comp.; 
 Bell, Diet. 
 
 ASSIZE OF DARREIN PRESENTMENT. 
 
 A writ of assize which formerly lay for 
 a person who had himself, or whose an- 
 cestors had upon the last preceding avoid- 
 ance, presented a clerk to a benefice where 
 a stranger presented a, clerk for the pur- 
 pose of obtaining a writ commanding the 
 bishop to institute the patron's clerk, and 
 to obtain damages for the interference. 3 
 Sharswood, Bl. Comm. 245; St. 13 Edw. I. 
 (Westminster II.) c. 5. It has given way 
 to the remedy by quare impedit. 
 
 ASSIZE OF FRESH FORCE. A writ of 
 assize which lay where the disseisin had 
 been committed within forty days. Fitzh. 
 Nat. Brev. 7. 
 
 ASSIZE OF MORT D'ANCESTOR. A 
 
 writ of assize which lay to recover posses- 
 sion of lands against an abator or his 
 alienee. It lay where the ancestor from 
 whom the claimant derived title died seised. 
 Cowell; Spelman; 3 Sharswood, Bl. Comm. 
 185. 
 
 ASSIZE OF NOVEL DISSEISIN. A writ 
 of assize which lay where the claimant 
 had been lately disseised. The action 
 must have been brought subsequent to the 
 next preceding session of the eyre or cir- 
 cuit of justices which took place once in 
 seven years. Co. Litt. 153; Booth, Real 
 Actions, 210. 
 
 ASSIZE OF NUISANCE. A writ of as- 
 size which lay where a nuisance had been 
 committed to the complainant's freehold. 
 
 The complainant alleged some particular 
 fact done which worked an injury to his 
 freehold (ad nocumentum liberi tenements 
 sui), and, if successful, recovered judg- 
 ment for the abatement of the nuisance, 
 and also for damages. Fitzh. Nat. Brev. 
 183; 3 Sharswood, Bl. Comm. 221; 9 Coke, 
 55. 
 
 ASSIZE OF THE FOREST. A statute 
 or ordinance concerning the royal forests 
 passed in the thirty-third year of Edw. I. 
 Otherwise called Ordinatio Forestae. An- 
 other statute of the same title was passed 
 in the thirty-fourth year of Edw. I. 2 
 Reeve, Hist. Eng. Law, 104, 106; Co. Litt. 
 159b. 
 
ASSIZE OF UTRUM 
 
 (73) 
 
 ASSURE 
 
 ASSIZE OF UTRUM. A writ of assize 
 which lay for a parson to recover lands 
 which his predecessor had improperly al- 
 lowed the church to be deprived of. 3 Bl. 
 Comm. 257. 
 
 ASSIZE RENT. The nxed or established 
 rent of the freeholders and ancient copy- 
 holders of a manor, which cannot be de- 
 parted from or varied. 2 Bl. Comm. 42. 
 
 ASSIZES. Sessions of the justices or 
 commissioners of assize. These assizes 
 are held twice in each year in each of the 
 various shires of England, with some ex- 
 ceptions, by virtue of several commissions, 
 for the trial of matters of fact in issue in 
 both civil and criminal cases. They still 
 retain the ancient name in popular lan- 
 guage, though the commission of assize is 
 no longer issued. 3 Steph. Comm. 424, 
 note. See "Assize;" "Nisi Prius;" "Courts 
 of Assize and Nisi Prius." 
 
 ASSIZES DE JERUSALEM. A code O' 
 feudal law prepared at a general' assembly 
 of lords after the conquest of Jerusalem. 
 It was compiled principally from the laws 
 and customs of France. It was reduced to 
 form by Jean d'lblin, Comte de Japhe et 
 Ascalon, about the year 1290. 1 Fournel, 
 Hist, des Av. 49; 2 Dupin, Prof, des Av. 
 674-680; Steph. PI. Append, xi. 
 
 ASSOCIATION. The act of a number of 
 persons in uniting for some purpose, wheth- 
 er social, business or benevolent. 
 
 The persons so joining, or the organiza- 
 tion by them formed. 
 
 Though the term covers any united ac- 
 tion, however temporary, it is generally 
 applifed to a formal union under an asso- 
 ciate name, and by an agreement known 
 as "articles of association." The organiza- 
 tion resembles a corporation, but the pow- 
 ers and liabilities of its members and rep- 
 resentatives are more nearly related to 
 those of a partnership, from which they dif- 
 fer in having no delictus pcrxniuiruiii, and in 
 the fact that the authority as to the public 
 is in officers, and not in the members gen- 
 erally. See "Joint-Stock Company.", 
 
 In English Law. A writ directing cer- 
 tain persons (usually the clerk and his sub- 
 ordinate officers) to associate themselves 
 with the' justices and sergeants for the pur- 
 pose of taking the assizes. 3 Sharswood, 
 Bl. Comm. 59. 
 
 ASSOIL, ASSOILE, or ASSOILYIE. To 
 
 set free; to deliver from excommunication. 
 St. 1 Hen. IV. c. 7; Cowell. 
 
 ASSOILZIE. In Scotch law. To acquit. 
 
 ASSOYL (Law Fr.) To forgive; to par- 
 don; to absolve. Que Dleu assoyl, whom 
 God assoil; on whom God have mercy. 
 Kelham. 
 
 ASSUME. To take on; to undertake. 90 
 Gal. 147. To take in appearance. See 75 
 Cal. 73. 
 
 ASSUMPSIT (Lat. assumere, to assume, 
 to undertake; assumpsit, he has undertak- 
 en). 
 
 In Contracts. An undertaking, eith- 
 er express or implied, to perform a parol 
 agreement. 1 Lilly, Reg. 132. 
 
 Express anKiiiiip.sil is an undertaking made 
 orally by writing not under seal, or by mat- 
 ter of record, to perform an act, or to pay a 
 sum of money to another. 
 
 Implied iisniiiiipsit is an undertaking pre- 
 sumed in law to have been made by a party, 
 from his conduct, although he has not made 
 any express promise. 
 
 In Practice. A form of action which 
 
 lies for the recovery of damages for the 
 nonperformance of a parol or simple con- 
 tract. 7 Term R. 351; 3 Johns. Cas. (N. 
 Y.)' 60. 
 
 It differs from debt, since the amount 
 claimed need not be liquidated (see 
 "Debt"), and from covenant, since it does 
 not require a contract under seal to sup- 
 port it (see "Covenant"). See 4 Coke, 91; 
 4 Burrows, 1008; 14 Pick. (Mass.) 428; 2 
 Mete. (Mass.) 181. Assumpsit is one of the 
 class of actions called "actions upon the 
 case," and in the older books is called "ac- 
 tion upon the case upon assumpsit." Comyn, 
 Dig. 
 
 Special assumpsit is an action of assumpsit 
 brought upon an express contract or promise. 
 
 General assumpsit, sometimes called iudebi- 
 tatvs assumpsit, is an action of assumpsit 
 brought upon the promise or contract im- 
 plied by law in certain cases. See 2 Smith, 
 Lead. Cas. (5th Am. Ed.) 14. 
 
 See "Common Counts." 
 
 ASSURANCE. 
 
 In Conveyancing. Any instrument 
 
 which confirms the title to an estate. 
 
 Legal evidence of the transfer of piop- 
 erty. 2 Bl. Comm. 294. 
 
 The term "assurances" includes, in an 
 enlarged sense, all instruments which dis- 
 pose of property, whether they be the 
 grants of private persons, or not; such are 
 fines and recoveries, and privace acts of 
 the legislature. Eunom. Dial. 2, § 5. 
 
 In Commercial Law. A term former- 
 ly used in English maritime law, in the 
 sense of the modern term "insurance," and 
 still retained in policies, but otherwise ob- 
 solete. Molloy de Jur. Mar. 287. Latter- 
 ly however, its use has been revived in its 
 application to contracts of indemnity 
 against life contingencies, which are now 
 frequently termed "assurances upon lives," 
 by way of distinction from indemnity 
 against losses by fire or at sea, etc., to 
 which the term "insurance" is particularly 
 appropriated. 3 Kent, Comm. 365. The word 
 "assured" has always been retained in its 
 ancient sense. See "Assure." "Assurance" 
 is the term used in French law. Ord. Mar. 
 liv. 3, tit. 6; Emerig. Tr. des Assur. 
 
 ASSURE (Fr. assurer; law Lat. assecii.rare, 
 assurare). To make sure, or secure; to con- 
 firm or establish; to insure. The party in 
 whose favor a contract or policy of insur- 
 
ASSURED 
 
 (74) 
 
 ATTACHMENT 
 
 ance has been executed is still called the 
 "assured ; " the other party being termed the 
 "insurer." 2 Steph. Comm. 172. 
 
 To convey. "If one be obliged to assure 
 twenty acres of land," etc. Cro. Eliz. 665. 
 See "Assurance." 
 
 ASSURED. A person who has been in- 
 sured by some insurance company or un- 
 derwriter against losses or perils mention- 
 ed in the policy of insurance. 
 
 ASSURER. An insurer; an underwriter. 
 
 ASSYTHEMENT. In Scotch law. Dam- 
 ages awarded to the relative of a murder- 
 ed person from the guilty party, who has 
 not been convicted and punished. Pater- 
 son, Comp. 
 
 The action to recover it lies for the per- 
 sonal representatives (26 Scott. Jur. Sc. 
 156), and may be brought by collateral re- 
 lations (27 Scott. Jur. Sc. 450). 
 
 ASTIPULATION. A mutual agreement. 
 
 ASTITRARIUS HAERES. An heir ap- 
 parent who hath been, by conveyance of 
 his ancestor, placed in a dwelling house in 
 the ancestor's lifetime. Co. Litt. 8. 
 
 ASTITUTION. Arraignment (g. v.) 
 
 ASTRARIUS (from astre, a hearth). A 
 householder. 
 
 ASTRER. In old English law. A house- 
 holder, or occupant of a house or hearth. 
 Britt. 59. 
 
 ASTRICT. In Scotch law. To assign to 
 a particular mill. 
 
 Used of lands the occupants of which were 
 bound to grind at a certain mill. Bell, 
 Diet.; Paterson, Comp. note 290; Ersk. 
 Inst. 2. 9. 18. 32. 
 
 ASTRIHILTET. In Saxon law. A pen- 
 alty for a wrong done by one in the king's 
 peace. The offender was to replace the 
 damage twofold. Spelman. 
 
 ASTRUM. A house, or place of habita- 
 tion. Bracton, fol. 367b; Cowell. 
 
 ASYLUM. An institution for the protec- 
 tion or relief of the unfortunate, as an asy- 
 lum for the poor, for the deaf and dumb, 
 or for the insane. Webster. 
 
 In International Law. Refuge to a 
 
 fugitive from justice. 
 
 In Old English Law. A sanctuary 
 
 (3. V.) 
 
 AT ARM'S LENGTH. As applied to 
 dealings, formality and vigilance on both 
 sides; absence of confidence or personal 
 influence. 
 
 AT BAR. Before the court; under con- 
 sideration; as the case at bar. 
 
 AT LARGE. 
 
 (1) Not limited to .any particular ques- 
 tion or matter. 
 
 (2) Free; unrestrained; not under cor- 
 
 poral control; as a ferocious animal so 
 free from restraint as to be liable to do 
 mischief. 
 
 (3) Representing no particular place or 
 district; as delegate at large. 
 
 (4) In extenso. 
 
 AT LAW. According to the course of 
 the common law; in the law. 
 
 AT SEA. Outside of port. In opposi- 
 tion to being "in port;" not in opposition 
 to being "at home." 3 Hill (N. Y.) 118. 
 
 ATHA, ATTA, ATHE, or ATTE. In Sax- 
 on law. An oath. Cowell; Spelman. 
 
 Athes, or athaa, a power or privilege of 
 exacting and administering an oath in cer- 
 tain cases. Cowell; Blount. 
 
 ATHEIST. One who does not believe in 
 the existence of a God. 
 
 ATIA. See "De Odio et Atia." 
 
 ATILIUM (Lat.) Tackle; the rigging of 
 a ship; plough tackle. Spelman. 
 
 ATTACH. See "Apprehension." 
 
 ATTACHE. One attached to the suite 
 of an ambassador; one attached to a for- 
 eign legation. 
 
 ATTACHIAMENTA DE SPINIS ET 
 boscis. A privilege granted to the oflScers 
 of a forest to take to their own use thorns, 
 brush, and windfalls, within their pre- 
 cincts. Kennett, Par. Ant. 209. 
 
 ATTACH I AMENTUM. In old English 
 law. An attachment. Attaohiamenta ion- 
 orum, attachment of goods. Spelman; Reg. 
 Orig. 18. Solemnitas attacMamentorum, the 
 formality of attachments ; the practice of is- 
 suing them one after another in a regular 
 series. Bracton, fol. 437. 
 
 ATTACHMENT. Taking into the cus- 
 tody of the law the person or property of 
 one already before the court, or of one 
 whom it is sought to bring before it. 
 
 A writ for the accomplishment of this 
 purpose. This is the mora common sense 
 of the word. 
 
 Of Persons. A writ issued by a 
 
 court of record, commanding the sheriff to 
 bring before it a person who has been 
 guilty of contempt of court. 
 
 Of Property. A writ issued at the 
 
 institution or during the progress of an 
 action, commanding the sheriff or other 
 proper officer to attach the property, rights, 
 credits, or effects of the defendant to sat- 
 isfy the demands of the plaintiff. 
 
 The original design of this writ was to 
 secure the appearance of one who had dis- 
 regarded the original summons, by taking 
 possession of his property as a pledge. 3 
 Bl. Comm. 280. 
 
 By an extension of this principle, in the 
 New England states, property attached re- 
 mains in the custody of the law after an 
 appearance, until final judgment in the suit. 
 See 7 Mass. 127. 
 
 In some states, attachments are distin- 
 
ATTACHMENT, ETC. 
 
 (75) 
 
 ATTESTATION CLAUSE 
 
 guislied as foreign and domestiCi — the for- 
 mer issued against a nonresident of the 
 state, the latter against a resident. Where 
 this distinction is preserved, the foreign 
 attachment inures solely to the benefit of 
 the party suing it out; while the avails of 
 the domestic attachment may be shared 
 by other creditors, who come into court 
 and present their claims for that purpose. 
 
 ATTACHMENT OF PRIVILEGE. In 
 
 English law. A process by which a man, 
 by virtue of his privilege, calls another to 
 litigate in that court to which he himself 
 belongs, and who has the privilege to an- 
 swer there. 
 
 A writ issued to apprehend a person in a 
 privileged place. Termes de la Ley. 
 
 ATTACHMENT OF THE FOREST. One 
 
 of the three courts formerly held in forests. 
 The highest court was called "justice in 
 eyre's seat;" the middle, the "swainmote;" 
 and the lowest, the "attachment." Manw. 
 For. Law, 90, 99. 
 
 ATTAINDER. That extinction of civil 
 rights and capacities which takes place 
 whenever a person who has committed 
 treason or felony receives sentence of 
 death for his crime. 1 Steph. Comm. 408; 
 1 Bish. Grim. Law, § 641. 
 
 Attainder by confession is either by 
 pleading guilty at the bar before the judges, 
 and not putting one's self on one's trial by 
 a jury, or before the coroner in sanctuary, 
 when, in ancient times, the offender was 
 obliged to abjure the realm. 
 
 Attainder by verdict is when the prisoner 
 at the bar pleads not guilty to the indict- 
 ment, and is pronounced guilty by the ver- 
 dict of the jury. 
 
 Attainder by process or outlawry is when 
 the party flies, and is subsequently out- 
 lawed. Co. Litt. 391. 
 
 The effect of attainder upon a felon Is, 
 in general terms, that all his estate, real 
 and personal, is forfeited; that his blood 
 is corrupted, and so nothing passes by in- 
 heritance to, from, or through him (1 Wm. 
 Saund. 361, note; 6 Coke, 63a, 68b; 2 Rob. 
 Ecc. 547; 24 Eng. Law & Eq. 598) ; that he 
 cannot sue in a court of justice (Co. Litt. 
 130a). See 2 Gibbett, Crim. Law; 1 Bish. 
 Crim. Law, § 641. 
 
 ATTAINDER, BILL OF. See "Bill of 
 Attainder." 
 
 ATTAINT. Attainted, stained, or black- 
 ened. 
 
 A writ which lies to inquire whether a 
 jury of twelve men gave a false verdict. 
 Bracton, lib. 4, tr. 1, c. 134; Fleta, lib. 5, c. 
 22, § 8. 
 
 This latter was a trial by jury of twenty- 
 four men impanelled to try the goodness of 
 a former verdict. 3 Bl. Comm. 351; 3 Gilb. 
 Ev. (Lofft Ed.) 1146. See "Assize." 
 
 ATTAINT D'UNE CAUSE. In French 
 law. The gain of a suit. Estre attaint en 
 uncan cas, to be overcome in any case. Cow- 
 ell. 
 
 ATTEMPT. In criminal _ law. An en- 
 deavor to accomplish a crime' carried beyond 
 mere preparation for it, but falling short of 
 the ultimate design. 5 Gush. (Mass.) 367. The 
 elements are (1) Intent to commit a crime; 
 (2) an affirmative act in pursuance of that 
 intent, but falling short of the crime in- 
 tended. 1 Bish. Crim. Law, § 510. Such act 
 need not be "the last proximate act to the 
 consummation of the crime in contempla- 
 tion, but it is sufficient if it be an act ap- 
 parently adapted to produce the result in- 
 tended. It must be more than mere prepara- 
 tion." 86 Va. 382. 
 
 ATTENDANT. One who owes a duty or 
 service to another, or in some sort, depends 
 upon him. Termes de la Ley. 
 
 ATTENDANT TERMS. Long leases or 
 mortgages so arranged as to protect the 
 title of the owner. Thus, to raise a por- 
 tion for younger children, it was quite com- 
 mon to make a mortgage to trustees. The 
 powers of these trustees were generally to 
 take possession of the estate, or to sell a 
 part of the term if the portions were not 
 duly paid. If the deed did not become 
 ipso facto void, upon payment of the por- 
 tion, a release was necessary from the 
 trustees to discharge the mortgage. If 
 this was not given, the term became an 
 outstanding satisfied term. The purchaser 
 from the heir then procured an assignment 
 of the term to trustees for his benefit, 
 which then became a satisfied term to at- 
 tend the inheritance, or an attendant term. 
 These terms were held attendant by the 
 courts, also, without any assignment, and 
 operated to defeat intermediate alienations 
 to some extent. There were other ways of 
 creating outstanding terms besides the 
 method by mortgage, but the effect and 
 general operation of all these were essen- 
 tially the same. 1 "Washb. Real Prop. 311; 
 4 Kent, Comm. 86-93. 
 
 ATTENTAT. In the civil and canon law. 
 Anything whatsoever wrongfully innovated 
 or attempted in the suit by the judge a quo, 
 pending an appeal. 1 Add. Ecc. 22, note; 
 Ayliffe, Par. 100. 
 
 ATTERMINARE (Lat.) To put off to a 
 succeeding term; to prolong the time of 
 payment of a debt. St. Westminster II. c. 
 4 ; Cowell ; Blount. 
 
 ATTERMINING. The granting a time or 
 term for the payment of a debt. 
 
 ATTERMOIEMENT. In canon law. A 
 making terms; a composition, as with 
 creditors. 7 Low. (U. S.) 272, 306. 
 
 ATTESTATION (Lat. ad, to, testari, to 
 witness). The act of witnessing an instru- 
 ment in writing, at the request of the party 
 making the same, and subscribing it as a 
 witness. 3 P. Wms. 254; 2 Ves. Jr. 454; 1 
 Ves. & B. 362; 3 A. K. Marsh. (Ky.) 146; 
 17 Pick. (Mass.) 373. 
 
 ATTESTATION CLAUSE. That clause 
 
ATTESTING WITNESS 
 
 (76) 
 
 AUCTION 
 
 wherein the witnesses certify that the instru- 
 ment has been executed before them, and 
 the manner of the execution of the same. 
 
 ATTESTING WITNESS. One who, upon 
 being required by the parties to an in- 
 strument, signs his name to it to prove it, 
 and for the purpose of identification. 3 
 Campb. 232. 
 
 ATTESTOR OF A CAUTIONER. In 
 
 Scotch practice. A person who attests the 
 sufficiency of a cautioner, and agrees to 
 become siibsidiarie liable for the debt. Bell, 
 Diet. 
 
 ATTILE. In old English law. Rigging; 
 tackle. Cowell. 
 
 ATTORN. To turn over; to transfer to 
 another money or goods; to assign to some 
 particular use or service. Kennett, Par. Ant. 
 283. 
 
 In Feudal Law. Used of a lord's 
 
 transferring the homage and service of his 
 tenant to a new lord. Bracton, 81, 82; 1 
 Sullivan, Lect. 227. 
 
 In Modern Law. For the tenant of 
 
 one to acknowledge or agree that the fee 
 is in another, or that such other is his land- 
 lord. 3 A. K. Marsh. (Ky.) 611. 
 
 A valid attornment may be made to one 
 in privity with the landlord, as to the 
 vendee on sale of the premises, but an at- 
 tornment to a stranger is void. 
 
 ATTORNARE. In the feudal law. To at- 
 torn. 
 
 ATTORNARE REM. To attorn or turn 
 over a thing, as money and goods, i. e., to 
 assign or appropriate them to some par- 
 ticular use and service. Kennett, Par. Ant 
 283; Cowell. 
 
 ATTORNATO FACIENDO VEL RECIPI- 
 endo. An obsolete writ, which command- 
 ed a sheriff or steward of a county court 
 or hundred court to receive a:nd admit an 
 attorney to appear for the person who 
 owed suit of court.' Fitzh. Nat. Brev. 156. 
 
 ATTORNE (Law Fr.) In old English 
 law. An attorney. Britt. c. 126. 
 
 ATTORNEY. One put in the place, turn, 
 or stead of another, to manage his affairs; 
 one who manages the affairs of another 
 by direction of his principal. Spelman; 
 Termes de la Ley. 
 
 One who acts for another by virtue of an 
 appointment by the latter. 
 
 Attorney In Fact. A person to whom 
 
 the authority of another, who is called the 
 "constituent," is by him lawfully delegated. 
 
 Attorney at Law. A person licensed 
 
 to manage causes in court for the parties 
 thereto. 
 
 In England, attorneys at law are divided 
 into barristers or counsel, who are advo- 
 cates admitted to plead at the bar, and so- 
 licitors or attorneys who engage in the 
 drawing of pleadings, preparation of evi- 
 dence, etc. These latter are called "at- 
 
 torneys" in courts of law, "solicitors" in 
 courts of equity, and "proctors" in admiral- 
 ty. The distinction between barristers and 
 attorneys or solicitors obtained for a time 
 in some of the United States, but is now 
 obsolete. 
 
 ATTORNEY GENERAL. 
 
 In English Law. A great officer, un- 
 der the king, made by letters patent, whose 
 office is to exhibit informations, and prose- 
 cute for the crown in matters criminal; to 
 file bills in the exchequer in any matter 
 concerning the king's revenue. Others 
 may bring bills against the king's attorney. 
 3 Sharswood, Bl. Comm. 27; Termes de la 
 Ley. 
 
 In American Law. In each state 
 
 there is an attorney general, or similar of- 
 ficer, who appears for the people, as in 
 England he appears' for the crown. 
 
 ATTORNEY GENERAL OF THE UNIT- 
 ed States. A member of the president's 
 cabinet. His duties are to prosecute and 
 conduct all suits in the supreme court in 
 which the United States shall be concern- 
 ed, and give his advice upon questions of 
 law when required by the president, or 
 when requested by the heads of any of the 
 departments, touching matters that may 
 concern their departments. Act Sept. 24, 
 1789. 
 
 ATTORNEY OF THE WARDS AND 
 
 liveries. The third officer of the Duchy 
 court. Bac. Abr. tit. "Attorney." 
 
 ATTORNEY'S CERTIFICATE. In Eng- 
 lish law. A certificate of the commission- 
 ers of stamps that the attorney therein 
 named has paid the annual duty. This 
 must be renewed yearly, and the penalty 
 for practising without such certificate is 
 fifty pounds. St. 37 Geo. IIL c. 90, §§ 26, 28, 
 30. See, also, 7 & 8 Vict. c. 73, §§ 21-26; 16 
 & 17 Vict. c. 63. 
 
 ATTORNMENT. See "Attorn." 
 
 AU BESOIN (Fr. in case of need). "Au 
 
 besoin cJien Messieurs a ," "In case 
 
 of need, apply to Messrs. at ." 
 
 A phrase used in the direction of a bill of 
 exchange, pointing out the person to whom 
 application may be made for payment in 
 case of failure or refusal of the drawee to 
 pay. Story, Bills, § 65. 
 
 AUBAINE. See "Droit d'Aubaine." 
 
 AUCTION. A public sale of property to 
 the highest bidder. 
 
 The manner of conducting an auction is 
 immaterial, whether it be by public outcry, 
 or by any other manner. The essential 
 part is the selection of a purchaser from 
 a number of bidders. In a case where a 
 woman continued silent during %be whole 
 time of the sale, but whenever any one bid 
 she gave him a glass of brandy, and, when 
 the sale broke up, the person who received 
 the last glass of brandy was taken into a 
 
AUCTIONARIUS 
 
 (77) 
 
 AUGMENTATION 
 
 pTivate room and lie was declared to lie 
 the purchaser, this was adjudged to be an 
 auction. 1 Dowl. Bailm. 115. 
 
 AUCTIONARIUS (Lat.) A seller; a re- 
 grator; a retailer; one who bought and 
 sold; an auctioneer, in the modern sense. 
 Spelman. One who buys poor, old, worn- 
 out things to sell again at a greater price. 
 Du Cange. 
 
 AUCTIONEER. A person authorized by 
 law to sell the goods of others at public 
 sale; one who conducts a public sale or 
 auction. 
 
 AUCTOR. 
 
 In Roman Law. An auctioneer. 
 
 In auction sales, a spear was fixed up- 
 right in the forum, beside which the seller 
 took his stand; hence goods thus sold were 
 said to be sold sub hasta under the spear. 
 The catalogue of goods 'was on tablets 
 called auctionariae. 
 
 In Old French Law. A plaintiff. See 
 
 "Actor." 
 
 AUCTORITAS. 
 
 In Civil Law. Authority. Brissonius. 
 
 In Old European Law. A diploma, 
 
 or royal charter. A word frequently used 
 by Gregory of Tours and later writers. 
 Spelman. 
 
 AUCTORITATES PHILOSOPHORUM, 
 
 medlcorum, et poetarum, sunt in causis al- 
 legandae et tenendae. The opinions of phi- 
 losophers, physicians, and poets are to be 
 alleged and received in causes. Co. Litt. 
 264. 
 
 AUCUPIA VERBORUM SUNT JUDICE 
 indigna. Catching at words is unworthy of 
 a judge. Hob. 343. 
 
 AUDI ALTERAIVI PARTEIV1. Hear the 
 other side; hear both sides. No man should 
 be condemned unheard. Broom, Leg. Max. 
 113. See L. R. 2 P. C. 106. 
 
 AUDIENCE (Lat. audlre, to hear). A 
 hearing or interview. 
 
 It is usual for the executive of a country 
 to whom a minister has been sent to give 
 such minister an audience; and after a 
 minister has been recalled, an audience of 
 leave usually takes place. 
 
 AUDIENCE COURT. In English law. 
 A court belonging to the archbishop of Can- 
 terbury, and held by him in his palace for 
 the transaction of matters of form only, as 
 the confirmation of bishops, elections, con- 
 secrations, and the like. This court has 
 the same authority with the court of arches, 
 but is of inferior dignity and antiquity. 
 The dean of the arches is the olficial audi- 
 tor of the audience. The archbishop of 
 York has also his audience court. Termes 
 de la Ley. 
 
 AUDIENDO ET TERMINANDO. A writ 
 or commission to certain persons to appease 
 and punish any insurrection or great riot. 
 Fitzh. Nat. Brev. 110. 
 
 AUDIT. To examine, adjust, settle, etc., 
 an account, and then allow it. 3 Denio 
 (N. Y.) 381; 5 Daly (N. Y.) 200; 24 Hun 
 (N. Y.) 419. 
 
 AUDITA QUERELA (Lat.) A form of ac- 
 tion which lies for a defendant to recall or 
 prevent an execution, on account of some 
 matter occurring after judgment amounting 
 to a discharge, and which could not have 
 been, and cannot be, taken advantage of 
 otherwise. 12 Mass. 270. 
 . It is a regular suit, in which the parties 
 appear and plead (17 Johns. [N. Y.] 484; 
 12 Vt. 56, 435; 30 Vt. 420; 8 Miss. 103), and 
 in which damages may be recovered if exe- 
 cution was issued improperly (Brooke, Abr. 
 "Damages," 38), but the writ must be al- 
 lowed in open court, and is not of itself a 
 supersedeas (2 Johns. [N. Y.] 227). 
 
 It is a remedial process, equitable in its 
 nature, based upon facts, and not upon the 
 erroneous judgments or acts of the court. 2 
 Wm. Saund. 148, note; 10 Mass. 103; 14 
 Mass. 448; 17 Mass. 159; 1 Aik. (Vt.) 363; 
 24 Vt. 211; 2 Johns. Cas. (N. Y.) 227; 1 
 Overt. (Tenn.) 425. And see 7 Gray (Mass.) 
 206. 
 
 In modern practice, the same relief is 
 usually granted on motion, and the writ is 
 dismissed. 
 
 AUDITOR (Lat. audire, to hear). An of- 
 ficer of the government, whose duty it is 
 to examine the accounts of officers who 
 have received and disbursed public moneys 
 by lawful authority. Acts Cong. April 3, 
 1817, and Feb. 24, 1819; 3 Story, U. S. Laws, 
 1630, 1722; 4 Inst. 107; 46 Geo. IIL c. 1. 
 
 In Practice. An oflicer (or officers) of 
 
 the court, assigned to state the items of 
 debit and credit between the parties in a 
 suit where accounts are in question, and 
 exhibit the balance. 1 Mete. (Mass.) 218. 
 
 They may be appointed by courts either 
 of law or equity. They are appointed at 
 common law in actions of account (Bac. 
 Abr. "Accompt" [F]), and In many of the 
 states in other actions, under statute reg- 
 ulations (6 Pick. [Mass.] 193; 14 N. H. 
 427; 3 R. L 60). 
 
 AUDITORS OF THE IMPREST. Officers 
 in the English exchequer, who formerly 
 had the charge of auditing the accounts of 
 the customs, naval and military expenses, 
 etc., now performed by the commissioners 
 for auditing public accounts. Wharton. 
 
 AUGMENTATION. The increase arising 
 to the crown's revenues from the suppres- 
 sion of monasteries and religious houses, 
 and the appropriation of their lands and 
 revenues. 
 
 A court erected by Henry VIII.. which 
 was invested with the power of determin- 
 ing suits and controversies relating to 
 monasteries and abbey lands. The court 
 was dissolved in the reign of Mary; but 
 the office of augmentations remained long 
 after. Cowell. 
 
 A share of the great tithes temporarily 
 granted to the vicars by the appropriators. 
 
AUGUSTA LEGIBUS, ETC. 
 
 (78) 
 
 AUTHORITY 
 
 and made perpetual by St. 29 Car. II. c. 8. 
 The word Is used in a similar sense In the 
 Canadian law. 
 
 AUGUSTA LEGIBUS SOLUTA NON 
 est; The empress or queen is not privi- 
 leged or exempted from subjection to the 
 laws. 1 Bl. Comm. 219; Dig. 1. 3. 31. 
 
 AULA, HAULA, or HALLA. In old Eng- 
 lish law. A hall, or court; the court of a 
 baron, or manor; a court baron; a hall or 
 chief mansion house; the usual appanage 
 of a manor. Whitshaw; Spelman. 
 
 AULA REGIA, or AULA REGIS. In Eng- 
 lish law. The king's hall or palace. A 
 court established in England by William 
 the Conqueror in his own hall. 
 
 AULNAGE or ALNAGE. A duty collected 
 on the putting on of the seals on the assise of 
 woolen cloth. The officer charged with such 
 duty was caled "aulnage," "alnager," ' or 
 "ulnager." 
 
 AUMONE, SERVICE IN. Where lands 
 are given in alms to a church or religious 
 house, upon condition that masses, service, 
 or prayers shall be offered at certain times 
 for the repose of the donor's soul. Britt. 
 164. 
 
 AUNCEL WEIGHT. An ancient manner 
 of weighing by means of a beam held in 
 the hand. Termes de la Ley; Cowell. 
 
 AURES. In Saxon law. The punishment 
 of cutting off the ears. 
 
 AURUM REGINAE. Queen's gold (?. v.) 
 1 Bl. Comm. 219, 220. 
 
 AUTER (Law Fr.) Another. This word 
 is frequently irsed In composition, as, auter 
 droit, auter vie, auter action, etc. 
 
 AUTER ACTION PENDANT (Law Fr. 
 another action pending). In pleading. A 
 plea that another action is already pending. 
 This plea may be made either at law or in 
 equity. 1 Chit. PI. 393; Story, Eq. PI. § 
 736. 
 
 AUTER DROIT. Another right; in an- 
 other's right. See "En Auter Droit." 
 
 AUTHENTIC ACT. In civil law. An 
 act which has been executed before a no- 
 tary or other public officer authorized 
 to execute such functions, or which is tes- 
 tified by a public seal, or has been rendered 
 public by the authority of a competent mag- 
 istrate, or which is certified as being a copy 
 of a public register. Nov. 73, c. 2; Code, 7. 
 52; Id. 6. 4. 21; Dig. 22. 4. 
 
 An act which has been executed be- 
 fore a notary public or other officer author- 
 ized to execute such functions, in presence 
 of two witnesses, free, male, and aged at 
 least fourteen years; or of three witnessow, 
 if the party be blind. Civ. Code La. art. 
 2231. If the party does not Irnow how to 
 sign, the notary must cause him to affix his 
 mark to the instrument. Id. art. 2231. The 
 authentic act is full proof of the agreement 
 
 contained in it, against the contracting par- 
 ties and their heirs or assigns, unless it 
 be declared and proved to be a forgery. 
 Id. art. 2233. See Merlin, Repert. 
 
 AUTHENTICATION. In practice. A prop- 
 er or legal attestation. 
 
 Acts done with a view of causing an in- 
 strument to be known and identified. 
 
 Under the constitution of the United 
 States, congress has power to provide a 
 method of authenticating copies of the rec- 
 ords of a state with a view to their pro- 
 duction as evidence in, other states. For 
 the various statutes on the subject, see 
 "Foreign Judgment;" "Record." 
 
 AUTHENTICS. A collection of the Nov- 
 els of Justinian, made by an unknown per- 
 son. They are entire, and are distinguish- 
 ed by their name from the epitome made by 
 Julian. See 1 Mackeld. Civ. Law, § 72. 
 
 A collection of extracts made from the 
 Novels by a lawyer named Irnier, and which 
 he inserted in the Code at the places to 
 which they refer. These extracts have the 
 reputation of not being correct. Merlin, 
 Repert. "Authentique." 
 
 AUTHENTICUM (Lat.) In the civil law. 
 An original instrument or writing; the orig- 
 inal of a will or other instrument, as dis- 
 tinguished from a copy. Dig. 22. 4. 2; Id. 
 29. 3. 12. 
 
 AUTHORITIES. Enactments and opin- 
 ions relied upon as establishing or declar- 
 ing the rule of law which is to be applied 
 in any case. 
 
 The opinion of a court, or of counsel,, or 
 of a text writer upon any question, is usual- 
 ly fortified by a citation of authorities. 
 
 AUTHORITY. Power. 
 
 In Contracts. The power lawfully del- 
 egated to a person by another. 
 
 Authority coupled with an interest is an 
 authority given to an agent for a valuable 
 consideration, or which forms part of a se- 
 curity. 
 
 Express authority is that given explicitly, 
 either in writing or verbally. 
 
 General authority is that which authorizes 
 the agent to do everything connected with 
 a particular business. Story, Ag. § 17. It 
 empowers him to bind his employer by all 
 acts within the scope of his employment, 
 and it cannot be limited by any private or- 
 der or direction not known to the party 
 dealing with him. Paley, Ag. 199-201. 
 
 Limited authority is that where the agent 
 is bound by precise instructions. 
 
 Special authority is that which is con- 
 fined to an individual transaction. Story, 
 Ag. § 19; 15 East, 400, 408; 6 Cow. (N. Y.) 
 354. Such an authority does not bind the 
 employer, unless it is strictly pursued, for 
 it is the business of the party dealing with 
 the agent to examine his authority, and 
 therefore, if there be any qualification or 
 express restriction annexed to it, it must 
 be observed; otherwise, the principal is 
 discharged. Paley, Ag. 202. 
 
 Naked authority Is that where the prin- 
 
AUTO ACORDADO 
 
 (79) 
 
 AVER 
 
 cipal delegates the power to the agent 
 wholly for the heneflt of the former. A 
 naked authority may be revoked; an author- 
 ity coupled with an interest is irrevocable. 
 
 "Unlimited authority is that where the 
 agent is left to pursue his own discretion. 
 
 In Governmental Law. The right and 
 
 power which an officer has, in the exercise 
 of a public function, to compel obedience to 
 his lawful commands. A judge, for exam- 
 ple, has authority to enforce obedience to 
 his lawful orders. 
 
 AUTO ACORDADO. In Spanish colo- 
 nial law. An order emanating from some 
 superior tribunal, promulgated in the name 
 and by the authority of the sovereign. 
 Schmidt, Civ. Law, 93. 
 
 AUTOCRACY. A government where tho 
 power of the monarch is unlimited by law. 
 
 AUTONOMY. The state of independence. 
 
 The autonomos was he who lived accord- 
 ing to his own laws, — who was free. The 
 term was chiefly used of communities or 
 states, and meant those which were inde- 
 pendent of others. It was introduced into 
 the English language by the divines of the 
 seventeenth century, when it and its trans- 
 lation — self-government — were chiefly used 
 in a theological sense. Gradually its trans- 
 lation received a political meaning, in which 
 it is now employed almost exclusively. Of 
 late the word "autonomy" has been revived 
 in diplomatic language in Europe, meaning 
 "independence," the negation of a state of 
 political influence from without or, foreign 
 powers. See Lieber, Civ. Lib. 
 
 AUTOPSY. Dissection of a dead body for 
 the purpose of ascertaining the cause, seat, 
 or nature of a disease; a post mortem ex- 
 amination. 
 
 AUTRE, AUTRY, AUTRI, or AUTER (Law 
 :Pr.) other; another. Britt. c. 54; Kelham. 
 
 AUTRE (or AUTER) VIE (Law Fr. an- 
 other's life). A person holding an estate for 
 or during the life of another is called a ten- 
 ant "pur autre vie," or "pur terme d'autre 
 vie." Litt. § 56; 2 Bl. Comm. 120. 
 
 AUTREFOIS. Formerly; heretofore. 
 
 AUTREFOIS ACQUIT (Fr. formerly ac- 
 quitted). A plea made by a defendant in- 
 dicted for a crime, that he has formerly 
 been tried and acquitted of the same of- 
 fense. See "Jeopardy." 
 
 AUTREFOIS ATTAINT (Fr. formerly at- 
 tainted). In criminal pleading. A plea that 
 the defendant has been attainted for one 
 felony, and cannot, therefore, be criminally 
 prosecuted for another. 4 Bl. Comm. 336. 
 Kow obsolete. 
 
 AUTREFOIS CONVICT (Fr. formerly con- 
 victed). In criminal pleading. A plea made 
 by a defendant indicted for a crime or 
 misdemeanor, that he has formerly been 
 tried and conTicted of the same. This plea 
 is substantially the same in form as the 
 
 pfea of autrefois acquit, and is grounded on 
 the same principle, viz., that no man's life 
 or liberty shall be twice put in Jeopardy for 
 the same offense. 1 Bish. Grim. Law, §§ 
 651-680; 1 Green (N. J.) 362; 1 McLean (U. 
 S.) 429; 7 Ala. 610; 2 Swan (Tenn.) 493. 
 
 A plea of autrefois convict, which shows 
 that the judgment on the former indict- 
 ment has been reversed for an error in the 
 judgment, is not a good bar to another in- 
 dictment for the same offense. 3 Car. & K. 
 190. But a prior conviction by judgment 
 before a justice of the peace, and a per- 
 formance of the sentence pursuant to the 
 judgment, constitute a bar to an indictment 
 for the same offense, although the com- 
 plaint on which the justice proceeded was 
 so defective that his judgment might have 
 been reversed for error. 3 Mete. (Mass.) 
 328; 8 Mete. (Mass). 532. See "Jeopardy." 
 
 AUXILA AD FILIUM MILITEM FACIEN- 
 dum vel ad flllam marltandam. Aids to 
 make the lord's son a knight, or to marry 
 his daughter. See "Aids." Bracton, fol. 36b. 
 
 AUXILIUM (Lat.) An aid; tribute or 
 services paid by the tenant to his lord. 
 
 AUXILIUM CURIAE. An order of the 
 court summoning one party, at the suit and 
 request of another, to appear and warrant 
 something. Kennett, Par. Ant. 477. 
 
 AUXILIUM REGIS. A subsidy paid to 
 the king. Spelman. 
 
 AUXILIUM VICE COMITI. An ancient 
 duty paid to sheriffs. Cowell; Whishaw. 
 
 AVAIL OF MARRIAGE. 
 
 In Scotch Law. A certain sum due by 
 
 the heir of a deceased ward vassal, when 
 the heir became of marriageable age. Brsk. 
 Inst. lib. 2, tit. 5, § 18. 
 
 In Feudal Law. The right of a guard- 
 ian in chivalry to dispose of the hand of his 
 ward in marriage. 2 Bl. Comm. 88. 
 
 AVAILS. In wills, the net proceeds of the 
 estate; that which remains after paying 
 debts. See 3 N. Y. 276. 
 
 AVAL. In Canadian law. An act of 
 suretyship or guaranty on a promissory 
 note. 1 Low. (U. S.) 221; 9 Low. (U. S.) 360. 
 
 AVANTURE (Law Pr.) Chance; hazard; 
 mischance. Kelham. 
 
 AVARIA, or AVARIE. Average; the loss 
 and damage suffered in the course of a navi- 
 gation. Poth. du Contr. de Louage, 105. 
 
 AVENGE (Law Lat.) In old English law. 
 A certain quantity of oats paid to a land- 
 lord in lieu of some other duties, or as a 
 rent from the tenant. Cowell. A rent paid 
 in oats. 
 
 AVENTURE, or ADVENTURE. A mis- 
 chance causing the death of a man, as by 
 drowning, or being killed suddenly with- 
 out felony. Co. Litt. 391; Whishaw. 
 
 AVER. To assert. See "Averment." 
 
 To make or prove true; to verify. The 
 
AVER ET TENIR 
 
 (80) 
 
 AVIZANDUM 
 
 defendant will offer to aver. Cowell; Co. 
 Litt 3621). 
 
 Cattle of any kind. Cowell; Kelham. 
 
 AVER ET TENIR (or TENER). To have 
 and to hold. See "Habendum." 
 
 AVER CORN. A rent reserved to re- 
 ligious houses, to be paid In corn; corn 
 drawn by the tenant's cattle. Cowell. 
 
 AVER LAND. Land ploughed by the ten- 
 ant for the proper use of the lord of the 
 soil. Blount. 
 
 AVER PENNY. Money paid to the 
 king's averages to be free therefrom. 
 Termes de la Ley. 
 
 AVER SILVER. A rent formerly so call- 
 ed. Cowell. 
 
 AVERAGE. In marine insurance. Loss or 
 damage to a part of the vessel or cargo in- 
 sured. 
 
 The contribution due from one owner to 
 another, on a partial loss. 
 
 General Average. General (also called 
 
 "gross") average consists of expense pur- 
 posely incurred, sacrifice made, or dam- 
 age sustained for the common safety of 
 the vessel, freight, and cargo, or the two 
 of them, at risk, and is to be contributed 
 for by the several interests in the propor- 
 tion of their respective values exposed to 
 the common danger, and ultimately surviv- 
 ing, including the amount of expense, sacri- 
 fice or damage so incurred in the contribu- 
 tory value. 2 Phil. Ins. § 1269 et seq.; and 
 see 2 Curt. C. C. (U. S.) 59; 9 Cush. (Mass.) 
 415; 93 Ky. 102; 5 Ohio, 307; 3 Wall. (U. S.) 
 370; 3 Kent, Comm. 232. 
 
 Particular Average. Particular aver- 
 age (also called "partial loss") is an accident- 
 al loss on the ship, cargo, or freight, to be 
 borne by the owner of the subject on which 
 It happens, and is so called in distinction 
 from general average, and, if not total, it 
 is also called a partial loss. 2 Phil. Ins. c. 
 16; 3 Bosw. (N. Y.) 395; 4 B. Mon. (Ky.) 
 164. 
 
 'AVERIA (Lat.) Cattle; working cattle. 
 
 Averia carucae (draft cattle) are exempt 
 from distress. 3 Bl. Comm. 9; 4 Term R. 
 566. 
 
 AVERIA CARUCAE. Beasts of the plow, 
 which, at common law, were privileged over 
 other cattle. 
 
 AVERIA OTIOSA. Idle beasts; as dis- 
 tinguished from averia carucae, beasts of 
 the plow. 
 
 AVERIIS CAPTIS IN WITHERNAM. In 
 
 English law. A writ which lies in favor of 
 a man whose cattle have been unlawfully 
 taken by another, and driven out of the 
 county where they were taken, so that 
 they cannot be replevied. 
 
 It issues against the wrongdoer to take 
 his cattle for the plaintiff's use. Reg. Brev. 
 82. 
 
 AVERMENT. In pleading. A positive 
 statement of facts, as opposed to an argu- 
 mentative or inferential one. Cowp. 683; 
 Bac. Abr. "Pleas" (B). 
 
 Averments must contain not only matter, 
 but form. 
 
 In old pleading, the conclusion of a plea, 
 whereby the pleader alleged his readiness to 
 verify the foregoing. 
 
 Averments were formerly said to be gen- 
 eral and particular; but only particular 
 averments are found in modern pleading. 
 1 Chit. PI. 277. 
 
 Particular Averments. The assertions 
 
 of particular facts. There must be an aver- 
 ment of every substantive material fact on 
 which the party relies, so that it may be re- 
 plied to by the opposite party. 
 
 — ^Negative Averments. Those in which 
 a negative is asserted. Generally, under the 
 rules of pleading, the party asserting the af- 
 firmative must prove it; but an averment of 
 illegitimacy (2 Selw. N. P. 709), or criminal 
 neglect of duty, must be proven (2 Gall. 
 [XT. S.] 498; 19 Johns. [N. Y.] 345; 1 Mass. 
 54; 10 Bast, 211; 3 Campb. 10; 3 Bos. & P. 
 302; 1 Greenl. Ev. § 80; 3 Bouv. Inst, note 
 3089). 
 
 ■; Immaterial and Impertinent Averments. 
 
 Those which need not be made, and, if 
 made, need not be proved. They are synon- 
 ymous. 5 Dowl. & R. 209. The allegation 
 of deceit in the seller of goods in action on 
 the warranty is such an averment (2 Bast, 
 446; 17 Johns. [N. Y.] 92). 
 
 Unnecessary Averments. Statements 
 
 of matters which need not be alleged, but 
 which, if alleged, must be proved. Garth. 
 200. 
 
 AVER RARE, or AVE RARE. In feudal 
 law. To carry goods upon loaded horses 
 or in a wagon; a duty formerly required 
 of some customary tenants. Spelman. To 
 drive cattle (averia) to some fair or market. 
 Cowell. 
 
 AVERSIO (Lat.) An averting; a turn- 
 ing away; a sale in gross or in bulk. 
 
 Letting a, house altogether, instead of in 
 chambers. 4 Kent, Comm. 517. 
 
 AVERSIO PERICULI. An averting or 
 turning away of peril. A name given to 
 the contract of insurance (marine) because 
 one of the parties undertakes to avert from 
 the other the peril of the sea. According 
 to Bmerigon, the words signify that the in- 
 surer charges himself with, and takes upon 
 himself, the peril which the things insured 
 run upon the sea. Tr. des Assur. c. 1, 
 pr. See 3 Kent, Comm. 263; Locc. de Jur. 
 Mar. lib. 2, c. 5, § 1. 
 
 AVERUM (Lat.) Goods; property; a 
 beast of burden. Spelman. 
 
 AVET. In Scotch law. To abet or as- 
 sist. Tomlln. 
 
 AVIZANDUM. In Scotch law. To make 
 avizandum with a process is to take it from 
 the public court to the private considera- 
 tion of the judge. Bell, Diet. 
 
AVOCAT 
 
 (81) 
 
 AYTJNTAMIENTO 
 
 AVOCAT (Fr.) Advocate; an advocate. 
 Ord. Mar. liv. 1, tit. 3. 
 
 AVOIDANCE. A making void, useless, 
 or empty. 
 
 In Ecclesiastical Law. It exists 
 
 when a benefice becomes vacant for want of 
 an incumbent. 
 
 In Pleading. Repelling or excluding 
 
 the conclusions or implications arising from 
 the admission of the truth of the allega- 
 tions of the opposite party. See "Confes- 
 sion and Avoidance." 
 
 AVOIRDUPOIS. The name of a weight. 
 This kind of weight is so named, in dis- 
 tinction from the Troy weight. One pound 
 avoirdupois contains seven thousand grains 
 Troy; that is, fourteen ounces, eleven pen- 
 nyweights and sixteen grains Troy; a 
 pound avoirdupois contains sixteen ounces; 
 and an ounce, sixteen drachms. Thirty-two 
 cubic feet of pure spring water, at the tem- 
 perature of fifty-six degrees of Fahrenheit's 
 thermometer, make a ton of two thousand 
 pounds avoirdupois, or two thousand two 
 hundred and forty pounds net weight. 
 Dane, Abr. c. 211, art. 12, § 6. The avoirdu- 
 pois ounce is less than the Troy ounce in 
 the proportion of 72 to 79, though the pound 
 Is greater. Enc. Amer. "Avoirdupois." For 
 the derivation of this phrase, see Barr. Obs. 
 St. 206. See the Report of Secretary of 
 State of the United States to the Senate, 
 February 22, 1821, pp. 44. 72, 76, 79, 81, 87, 
 for a learned exposition of the whole sub- 
 ject. 
 
 AVOUCHER. See "Voucher." 
 
 AVOUE. 
 
 in Old French Law. A feudal chief 
 
 who acted as protector of a church or mon- 
 astery; the suzerain of the flef. 
 
 In Modern French Law. A barrister; 
 
 advocate; attorney. Duverger. 
 
 AVOW. To acknowledge the commission 
 of an act, and claim that it was done with 
 right. 3 Bl. Comm. 150. 
 
 To make an avowry. For example, when 
 replevin is brought for a thing distrained, 
 and the party taking claims that he had a 
 right to make the distress, he is said to 
 avow. See Fleta, lib. 1, c. 4, § 4; Cunning- 
 ham. See "Avowry;" "Justification." 
 
 AVOWANT. One who makes an avowry. 
 
 AVOWEE, or AVOWE. See "Advowee." 
 
 AVOWRY. In pleading. The answer of 
 the defendant in an action of replevin 
 brought to recover property taken in dis- 
 tress, in which he acknowledges the taking, 
 and, setting forth the cause thereof, claims 
 a right in himself or his wife to do so. 
 4 Bouv. Inst, note 3571; 3 Bl. Comm. 149. 
 
 A justification is made where the de- 
 fendant shows that the plaintiff had no 
 property, by showing either that it was the 
 defendant's or some third person's, or 
 
 where he shows that he took it by a right 
 which was sufficient at the time of taking, 
 though not subsisting at the time of an- 
 swer. The avowry admits the property to 
 have been the plaintiff's, and shows a right 
 which had then accrued, and still subsists, 
 to make such caption. See Gilb. Distr. 176- 
 178; 2 W. Jones, 25. 
 
 AVOWTERER. In English law. An 
 adulterer with whom a married woman con- 
 tinues in adultery. Termes de la Ley. 
 
 AVOWTRY. In English law. The crime 
 of adultery. 
 
 AVULSION (Lat. avellere, to tear away). 
 The removal of a considerable quantity of 
 soil from the land of one man, and its de- 
 posit upon or annexation to the land of 
 another, suddenly and by the perceptible 
 action of water. 2 Washb. Real Prop. 452. 
 In such case, the property belongs to the 
 first owner. Bracton, 221; Hargrave, Tract, 
 de Jure Mar.; Schultes, Aq. Rights, 115-138. 
 The perceptible character of the deposit 
 distinguishes it from accretion (g. v.) See 
 also, "Reliction." 
 
 AWAIT. To lay in wait; to waylay. 
 
 AWARD (Law Lat. aicarda, awardum; 
 old French, agarda, from a garder). To 
 keep, preserve; to be guarded, or kept. So 
 called because it is imposed on the parties 
 to be observed or kept by them. Spelman. 
 
 The judgment or decision of arbitrators 
 or referees on a matter submitted to them. 
 
 The writing containing such judgment. 
 Cowell; Termes de la Ley; 3 Bouv. Inst, note 
 2402. 
 
 AWAY-GOING CROP. A crop sown be- 
 fore the expiration of a tenancy, which can- 
 not ripen until after its expiration, to which, 
 however, the tenant is entitled. Broom, 
 Leg. Max. 306. See "Emblements." 
 
 AWM, or AUME. An ancient measure 
 used in measuring Rhenish wines. Termes 
 de la Ley. Its value varied in the different 
 cities. Cowell. 
 
 AYANT CAUSE. In French law. This 
 term, which is used in Louisiana, signifies 
 one to whom a right has been assigned, 
 either by will, gift, sale, exchange, or the 
 like; an assignee. An ayant cause differs 
 from an heir who acquires the right by in- 
 heritance. 8 Toullier, Dr. Civ. note 245. 
 
 AYRE. In old Scotch law. Eyre; a cir- 
 cuit, eyre, or iter. Bell, Diet. voc. "Justice 
 Ayres." 
 
 AYUNTAMIENTO. In Spanish law. A 
 congress of persons; the municipal council 
 of a city or town. 1 White, New Coll. 416; 12 
 Pet. (U. S.) 442, note. 
 
B F 
 
 (82) 
 
 BAGGAGE 
 
 B 
 
 B. F. Bonum factum, a good deed. A form 
 of approval among the civilians. 
 
 BACEREND, or BACKBEREND. An old 
 Englisli law term for a thief caught with 
 the stolen goods in his possession (upon 
 his back). Spelman; Bracton, 150b. 
 
 BACHELERIA. Commonalty or yeoman- 
 ry, in contradistinction to baronage. Whar- 
 ton. 
 
 BACHELOR. 
 
 (1) The holder of the first or lowest de- 
 gree conferred by a college or university, 
 e. g., a bachelor of arts, bachelor of law, etc. 
 
 (2) A kind of inferior knight; an es- 
 quire. 
 
 (3) A man who has never been married. 
 
 BACK BOND. A bond of indemnification 
 given to a surety. 
 
 In Scotch Law. A declaration of 
 
 trust; a defeasance; a bond given by one 
 who is apparently absolute owner, so as to 
 reduce his right to that of a trustee or hold- 
 er of a bond and disposition in security. 
 Paterson, Comp. 
 
 BACK WATER. That water in a stream 
 which, in consequence of some obstruction 
 below, is detained or checked in its course, 
 or reflows. 
 
 The term is usually employed to desig- 
 nate the water which is turned back, by a 
 dam erected" in the stream below, upon the 
 wheel of a mill above, so as to retard its 
 revolution. 
 
 BACKADATION, or BACKWARDATION. 
 
 A consideration given to keep back the de- 
 livery of stock when the .price is lower for 
 time than for ready money. Wharton. 
 
 BACKBEAR. In forest law. Carrying 
 on the back. One of the cases in which an 
 offender against vert and venison might be 
 arrested, as being taken with the mainour, 
 or manner, or found carrying a deer off on 
 his back. Manw. For. Law; Cowell. 
 
 BACKBEREND (Saxon). See "Bace- 
 rend." 
 
 BACKING. Indorsement; indorsement by 
 a magistrate. 
 
 Backing a warrant becomes necessary 
 when it is desired to serve it in a county 
 other than that in which it was first issued. 
 In such a case the indorsement of a magis- 
 trate of the new county authorizes its serv- 
 ice there as fully as if first issued in that 
 county. The custom prevails in England, 
 Scotland, and some of the United States. 
 
 BACKSIDE. A yard at the back part of 
 
 or behind a house, and belonging thereto. 
 
 The term was formerly much used both 
 
 in conveyances and in pleading, but is now 
 of infrequent occurrence, except in convey- 
 ances which repeat an ancient description. 
 Chit. Prac. 177; 2 Ld. Raym. 1399. 
 
 BACULUS (Lat.) In old English prac- 
 tice. A staff, rod, or wand, anciently used 
 in the ceremony of making livery of seisin, 
 where there was no building on the land. 
 Fiac seysina per fustim et per baculum, 
 seisin should be made by rod and staff. 
 Bracton, fol. 40; Fleta, lib. 3, c. 15, § 5. 
 Bacillus nunUatoritis, a warning or sum- 
 moning stick. A white stick or wand, by 
 erecting which on the grounds of a de- 
 fendant in real actions he was anciently 
 warned or summoned to appear in court at 
 the return of the original writ. 8 Bl. Comm. 
 379. 
 
 A baton,^ such as combatants fought with 
 in the duellum. Frangitur eorum Mculus, 
 their baton is broken. 
 
 A term anciently applied to persons con- 
 victed of a felony on their own confession, 
 signifying that they_ could not bring an 
 appeal against any one. Bracton, fol. 152. 
 See Fleta, lib. 1, c. 38, § 16; 2 Reeve, Hist 
 Bng. Law, 43. See "Baston." 
 
 BADGE OF FRAUD. A circumstance 
 attending a transaction tending to throw 
 upon it suspicion of fraud, though not in 
 itself constituting fraud. 64 N. C. 374. 
 
 An act which, from the common experience 
 of mankind, is regarded as ground of sus- 
 picion. 
 
 BADGER (Pr.) Baggage, a bundle, and 
 thence is derived hagagier, a carrier of 
 goods. 
 
 One who buys corn or victuals in one 
 place, and carries them to another to sell 
 and make profit by them. And such a one 
 is exempted in St. 5 & 6 Bdw. VI. c. 14, 
 from the punishment of an ingrosser with- 
 in that statute. But by 5 Eliz. c. 12, bad- 
 gers are to be licensed by the justices of 
 the peace in the sessions, whose licenses 
 will be in force for one year, and no long- 
 er, and the persons to whom granted must 
 enter into a recognizance that they will 
 not, by color of their licenses, forestall, or 
 do anything contrary to the statutes made 
 against forestallers, ingrossers, and regra- 
 tors. If any person shall act as a badger 
 without license, he is to forfeit £5, one 
 moiety to the king, and the other to the 
 prosecutor, leviable by warrant from jus- 
 tices of the peace, etc. Jacob. 
 
 BAGA (Law Lat.) In old English law. 
 Bag; a bag. Et d'denvers eux unam bagam, 
 nve G. 1. in ead' Mga content'. Y. B. M. 18 
 Hen. VI. 5. See "Petty Bag Office." 
 
 BAGGAGE. Whatever, connected with the 
 
BAHADUM 
 
 (83) 
 
 BAILIFFS OF FRANCHISES 
 
 objects of the journey, and not exceeding 
 the limits of reason and custom, a trav- 
 eller takes with him for his personal use, 
 whether during actual travel, or in intervals 
 between trips, or upon the termination of 
 the journey. Bish. Non-Cont. Law, § 1156. 
 
 It does not include samples of merchan- 
 dise (98 Mass. 83), money not necessary for 
 travelling (22 111. 278), jewelry intended for 
 presents (17 ^f. Y. Super. Ct. 225). 
 
 It includes weapons (22 111. 278), books 
 (121 Ind. 226), tools (14 Pa. St. 129), opera 
 glasses (33 Ind. 379), bedding for use on 
 the trip (1 Whit. & W. Civ. Cas. Ct. App. 
 [Tex.] § 1253). 
 
 BAHADUM. A chest or coffer. Fleta, 
 lib. 2, c. 21. 
 
 BAIL (Fr. baUler, to deliver). Those per- 
 sons who become sureties for the appear- 
 ance of the defendant in court. 
 
 The delivery of the defendant to persons 
 who, in the manner prescribed by law, be- 
 come security for his appearance in court. 
 
 The word is used both as a substantive 
 and a verb, though more frequently as a sub- 
 stantive, and in civil cases, at least, in the 
 first sense given above. In its more an- 
 cient signification, the word includes the 
 delivery of property, real or personal, by 
 one person to another. 
 
 Bail Above. Sureties who bind them- 
 selves either to satisfy the plaintiff his 
 debt and costs, or to surrender the de- 
 fendant into custody, provided judgment be 
 against him in the action, and he fail to do 
 so. Sellon, Prac. 137. 
 
 Bail to the Action. Bail above. 
 
 Bail Below. Sureties who bind them- 
 selves to the sheriff to secure the defend- 
 ant's appearance, or his putting in bail 
 to the action on the return day of the writ. 
 It may be demanded by the sheriff when- 
 ever he has arrested a defendant on a 
 bailable process, as a prerequisite to re- 
 leasing the defendant. 
 
 Bail to the Sheriff. Bail below. 
 
 Civil Bail. That taken in civil ac- 
 tions. 
 
 Common Bail. Fictitious sureties for- 
 mally entered in the proper office of the 
 court. It is a kind of bail above, similar 
 in form to special ball, but having fictitious 
 persons, John Doe and Richard Roe, as 
 sureties. Filing common bail is tanta- 
 mount to entering an appearance. 
 
 Special Bail. Responsible sureties 
 
 who undertake as bail above. 
 
 Bail in Error. The bond given to se- 
 cure a stay of proceedings on writ of error. 
 
 In Canadian Law. A lease. See 
 
 Merlin, Repert. "Bail." Bail emphyteotique, 
 a lease for years, with a right to prolong in- 
 definitely. 5 Low. (U. S.) 381. It is equiva- 
 lent to an alienation. 6 Low. (TJ. S.) 58. 
 
 BAIL BOND. In practice. A specialty 
 by which the defendant and other persons 
 become bound to the sheriff in a penal sum 
 proportioned to the damages claimed in the 
 action, and which is conditioned for the due 
 appearance of such defendant to answer to 
 
 the legal process therein described, and by 
 which the sheriff has been commanded to 
 arrest him. 
 
 BAIL PIECE. A certificate given by a 
 judge or the clerlf of a court, or other per- 
 son authorized to keep the record, in which 
 it is certified that the bail became bail for 
 the defendant in a certain sum, and in a 
 particular case. 
 
 BAILABLE ACTION. An action in 
 which the defendant is entitled to be dis- 
 charged from arrest only upon giving bond 
 to answer. 
 
 BAILABLE PROCESS. Process under 
 which the sheriff is directed to arrest the 
 defendant, and is required by law to dis- 
 charge him upon his tendering suitable ball 
 as security for his appearance. A capias ad 
 respondendum is bailable; not so a capias ad 
 satisfaciendum. 
 
 BAILEE. Contracts. One to whom goods 
 are bailed. See "Bailment." 
 
 BAILIE. In Scotch law. An officer ap- 
 pointed to give infeftment. 
 
 In certain cases it is the duty of the 
 sheriff, as king's bailie, to act. Generally, 
 any one may be made bailie by filling in 
 his name in the precept of sasine. 
 
 A magistrate possessing a limited crimi- 
 nal and civil jurisdiction. Bell, Diet. 
 
 BAILIFF. A person to whom some au- 
 thority, care, guardianship, or jurisdiction 
 is delivered, committed, or intrusted. Spel- 
 man. 
 
 A sheriff's officer or deputy. 1 Bl. Comm. 
 344. 
 
 A magistrate, who formerly administer- 
 ed justice in the parliaments or courts of 
 France', answering to the English sheriffs as 
 mentioned by Bracton. 
 
 There are still bailiffs of particular towns 
 in England; as, the bailiff of Dover Castle, 
 etc.; otherwise, bailiffs are now only offi- 
 cers or stewards, etc.; as, bailiffs of liber- 
 ties, appointed by every lord within his 
 liberty, to serve writs, etc.; bailiffs errant 
 or itinerant, appointed to go about the coun- 
 try for the same purpose; sheriff's bailiffs, 
 sheriff's officers to execute writs; these are 
 also called "bound bailiffs," because they are 
 usually bound in a bond to the sheriff for 
 the due execution of their office; bailiffs 
 of court baron, to summon the court, etc.; 
 bailiffs of husbandry, appointed by private 
 persons to collect their rents and manage 
 their estates; water bailiffs, officers in port 
 towns for searching ships, gathering tolls, 
 etc. Bac. Abr. 
 
 In Account Render. A person who has 
 
 by delivery the custody and administration 
 of lands or goods for the benefit of the own- 
 er or bailor, and is liable to render an ac- 
 count thereof. Co. Litt. 271; 2 Leon. 245; 
 Story, Eq. Jur. § 446. 
 
 BAILIFF ERRANT. A deputy bailiff. 
 
 BAILIFFS OF FRANCHISES. In Bng- 
 glish law. Officers who perform the duties 
 
BAILIFFS OF HUNDREDS 
 
 (84) 
 
 BAILMENT 
 
 of sheriffs within liberties or privileged 
 jurisdictions, in which formerly the king's 
 writ could not be executed by the sheriff. 
 Spelman, voc. "Balivus." 
 
 BAILIFFS OF HUNDREDS. In English 
 law. Officers appointed over hundreds, by 
 the sheriffs, to collect fines therein, and 
 summon juries; to attend the judges and 
 justices at the assizes and quarter sessions; 
 and also to execute writs and process in 
 the several hundreds. 1 Bl. Comm. 345; 3 
 Steph. Comm. 29; Bracton. fol. 116. 
 
 BAILIFFS OF MANORS. In English law. 
 Stewards or agents appointed by the lord 
 (generally by an authority under seal) to 
 superintend the manor, collect fines and 
 quitrents, inspect the buildings, order re- 
 pairs, cut down trees, impound cattle tres- 
 passing, take an account of wastes, spoils, 
 and misdemeanors in the woods and de- 
 mesne lands, and do other acts for the 
 lord's interest. Cowell; Pleta, lib. 2, cc. 
 72, 73. 
 
 BAILIVIA. A bailiwick (</. i:) Wharton. 
 
 BAILIWICK. The jurisdiction of a sher- 
 iff or bailiff. 1 Bl. Comm. 344. 
 
 A liberty or exclusive jurisdiction which 
 was exempted from the sheriff of the coun- 
 ty, and over which the lord appointed a 
 bailiff, with such powers within his pre- 
 cinct as the under sheriff exercised under 
 the sheriff of the county. Whishaw. 
 
 BAILLEW DE FONDS. In Canadian 
 law. The unpaid vendor of real estate. 
 
 BAILLI. In old French law. A person 
 to whom judicial authority and jurisdiction 
 were assigned or delivered by a superior. 
 
 BAILMENT (Fr. Miller, to put into the 
 hands of; to deliver). A delivery of some- 
 thing of a personal nature by one party to 
 another, to be held according to the pur- 
 pose or object of the delivery, and to be 
 returned or delivered over when that pur- 
 pose is accomplished. Prof. Joel Parker, 
 MSS. Lect. Dane Law School, Harvard Coll. 
 1851. 
 
 The right to hold may terming.te, and a 
 duty of restoration may arise, before the 
 accomplishment of the purpose, but that 
 does not necessarily enter into the defini- 
 tion, because such duty of restoration was 
 not the original purpose of the delivery, 
 but arises upon a subsequent contingency. 
 The party delivering the thing is called the 
 "bailor;" the party receiving it, the "bailee." 
 It is distinguished from a sale by the fact 
 that in a bailment only the right of posses- 
 sion, and not the title, is transferred. BenJ. 
 Sales, §§ 1, 2. 
 
 Vaffious attempts have been made to 
 give a precise definition of this term, upon 
 some of which there have been elaborate 
 criticisms. See Story, Bailm. (4th Ed.) § 
 2, note 1, exemplifying the maxim, Omnis 
 definitio in lege prricvlosa ext. 
 
 Some of these definitions are here given 
 as illustrating more completely than is pos- 
 
 sible in any other way the elements con- 
 sidered necessary to a bailment by the dif- 
 ferent authors cited. 
 
 A delivery of a thing in trust for some 
 special object or purpose, and upon a con- 
 tract, express or implied, to conform to the 
 object or purpose of the trust. Story, 
 Bailm. § 2. See Merlin, Report. "Bail." 
 
 A delivery of goods in trust upon a con- 
 tract, either expressed or implied, that the 
 trust shall be faithfully executed on the 
 part of the bailee. 2 Bl. Comm. 451. See 
 Id. 395. 
 
 A delivery of goods in trust upon a con- 
 tract, expressed or implied, that the trust 
 shall be duly executed, and the goods re- 
 stored by the bailee as soon as the purposes 
 of the bailment shall be answered. 2 Kent, 
 Comm. 559. 
 
 A delivery of goods on a condition, ex- 
 press or implied, that they shall be restor- 
 ed by the bailee to the bailor, or according 
 to his directions, as soon as the purpose for 
 which they are bailed shall be answered. 
 Jones, Bailm. 1. 
 
 A delivery of goods in trust on a contr-act, 
 either expressed or implied, that the trust 
 shall be duly executed, and the goods re- 
 delivered as soon as the time or use for 
 which they were bailed shall have elapsed 
 or be performed. Jones, Bailm. 117. 
 
 According to Story, the contract does not 
 necessarily imply an undertaking to rede- 
 liver the goods; and the first definition of 
 Jones here given would seem to allow of 
 a similar conclusion. On the other hand, 
 Blackstone, although his definition does not 
 include the return, speaks of it in. all his 
 examples of bailments as a duty of the 
 bailee; and Kent says that the application 
 of the term to cases in which no return or 
 delivery or redelivery to the owner or his 
 agent is contemplated, is extending the defi- 
 nition of the term beyond its ordinary ac- 
 ceptation in the English law. A consignment 
 to a factor would be a bailment for sale, 
 according to Story, while according to Kent 
 it would not be included under the term 
 "bailment." , 
 
 Sir William Jones has divided bailments 
 into five sorts, namely, depositum, or de- 
 posit; mandatvni, or commission without 
 recompense; conimodatmn, or loan for use 
 without pay; pignori acceptum, or pawn; 
 locatum, or hiring, which is always with re- 
 ward. This last is subdivided into locatio 
 rei, or hiring, by which the hirer gains a 
 temporary use of the thing; locatio opens 
 faciendi, when something is to be done to 
 the thing delivered; locatio operis mercium 
 vehendarum, when the thing is merely to 
 be carried from one place to another. 
 Jones, Bailm. 36. 
 
 Lord Holt divides them into six classes: 
 Depositum, or deposit for keeping for the 
 benefit of the bailor; commodatum, or gra- 
 tuitous loan; locatio rei, or letting for hire; 
 vadium, pledge or pawn; locatio operis 
 faciendi, or delivery that something may 
 be done upon the chattels by the bailee for 
 hire; mandatvm, or mandate, a delivery 
 
BAILOR 
 
 (85) 
 
 BANC 
 
 that something may be done upon the chat- 
 tels by the bailee gratuitously. 2 Ld. 
 Raym. 909. 
 
 A better general division, however, for 
 practical purposes, suggested, but not adopt- 
 ed, by Story (Bailm. §§ 4-8), and first adopt- 
 ed by Schouler (Bailm. § 14), is into three 
 kinds: First, those bailments which are for 
 the benefit of the bailor, or for some person 
 whom he represents; second, those for the 
 benefit of the bailee, or some person repre- 
 sented by him; third, those which are for 
 the benefit of both parties. 
 
 BAILOR. He who bails a thing to an- 
 other. See "Bailment." 
 
 BAIR-MAN. In Scotch law. A poor debtor. 
 
 BAIRNS. In Scotch law. A known term, 
 used to denote one's whole issue. Brsk. 
 Inst. 3. 8. 48. But it is sometimes used in a 
 more limited sense. Bell, Diet. 
 
 BAIRNS' PART. In' Scotch law. Chil- 
 dren's part; a third part of the defunct's 
 free movables, debts deducted, if the wife 
 survive, and a half If there be no relict. 
 
 BALA EN A. A large fish, called by Black- 
 stone a "whale." Of this the king had the 
 head and the queen the tail as a perquisite 
 whenever one was taken on the coast of 
 England. Prynne, Ann. Reg. 127; 1 Bl. 
 Comm. 221. 
 
 BALANCE. The amount which remains 
 due by one of two persons, who have been 
 dealing together, to the other, after the 
 settlement of their accounts. 
 
 "There is a broad distinction between an 
 account and the mere balance of an ac- 
 count, resembling the distinction in logic 
 between the premises of an argument and 
 the conclusions drawn therefrom. A bal- 
 ance is but the conclusion or result of the 
 debit and credit sides of an account. It 
 implies mutual dealings and the existence 
 of debit and credit, without which there 
 could be no balance." 45 Mo. 573. 
 , The word is sometimes used in the sense 
 of "residue." 
 
 BALANCE SHEET. A statement made 
 by merchants and others to show the true 
 state of a particular business. A balance 
 sheet should exhibit all the balances of deb- 
 its and credits, also the value of merchan- 
 dise, and the result of the whole. 
 
 BALCANIFER, or BALDAKINIFER. The 
 
 standard bearer of the Knights Templar. 
 Wharton. 
 
 BALDIO. In Spanish law. Vacant land 
 having no particular owner, and usually 
 abandoned to the public for the purposes of 
 pasture. The word is supposed to be de- 
 rived from the Arabic bait, signifying a 
 .thing of little value. For the legislation on 
 this subject, see Bscriche, Die. Raz. 
 
 BALI US. In civil law. A teacher; one 
 who has the pare of youth; a tutor; a 
 guardian. Du Cange, "Bajultis;" Spelman. 
 
 BALIVA, or BALLIVA. Equivalent to 
 balivatus. Balivia, a bailiwick; the juris- 
 diction of a sheriff; the Whole district 
 within which the trust of the sheriff was 
 to be executed. Cowell. Occurring in the 
 return of the sheriff, non est inventus in 
 halliid mea, he has not been found in my 
 bailiwick; afterwards abbreviated to the 
 simple non est inventus. 3 Bl. Comm. 283. 
 
 BALIVO AMOVENDO (Law Lat. for re- 
 moving a bailiff). A writ to remove a 
 bailiff out of his office. 
 
 BALLAST. Heavy substance carried in 
 the hold of a ship to trim her, and bring 
 her to a safe and proper draft. It differs 
 from "dunnage" (g. !.) 13 Wall. (U. S.) 674. 
 
 BALLASTAGE. A toll paid for the priv- 
 ilege of taking up ballast from the bot- 
 tom of the port. This arises from the prop- 
 erty in the soil. 2 Chit. Com. Law, 16. 
 
 BALLOT. A paper bearing the names of 
 candidates for designated ofilces, and deliv- 
 ered by electors to the election officers in 
 expressing their choice for such offices. It 
 is usually printed, and is in various pre- 
 scribed forms, especially in states which 
 have adopted the Australian ballot system, 
 or modifications of it. 
 
 BALNEARIl (Lat.) Those who stole the 
 clothes of bathers in the public baths. 4 
 Bl. Comm. 239; Calv. Lex. 
 
 BAN. 
 
 In Old English and Civil Law. A 
 
 proclamation; a public notice; the an- 
 nouncement of an intended marriage. 
 Cowell. An excommunication; a curse, 
 publicly pronounced; proclamation of si- 
 lence made by a crier in court before the 
 meeting of champions in combat. Cowell. 
 A statute, edict, or command; a fine, or 
 penalty. 
 
 An open field; the outskirts of a village; 
 a territory endowed with certain privileges. 
 
 A summons, as, arriere ban. Spelman. 
 
 In French Law. The right of an- 
 nouncing the time of mowing, reaping, and 
 gathering the vintage, exercised by certain 
 seignorial lords. Guyot, Rep. Univ. 
 
 BANAL, or BANNAL (Fr.) In old 
 French and Canadian law. Having quali- 
 ties derived from a ban or privileged space; 
 privileged. A banal mill is one to which 
 the seignior or lord may require his tenant 
 to carry his grain to be ground. Dunkin's 
 Address, 89. 
 
 BANALITY. In Canadian law. The 
 right by virtue of which a lord subjects his 
 vassals to grind at his mill, bake at his 
 oven, etc. Used also of the region within 
 which this right applied. Guyot, Rep. Univ. 
 It prevents the erection of a mill within the 
 seignorial limits (1 Low. [U. S.] 31), wheth- 
 er steam or water (3 Low. [U. S.] 1). 
 
 BANC (Fr. bench). The seat of judg- 
 ment; as, banc le roy, the king's bench; 
 
BANCI NARRATORES 
 
 (86) 
 
 BANLIEU 
 
 ianc le common pleas, the bencli of com- 
 mon pleas; the full bench. 
 
 BANCI NARRATORES. In old English 
 law. Advocates; countors; Serjeants. Ap- 
 plied to advocates in the common pleas 
 courts. 1 Bl. Comm. 24; Cowell. 
 
 BANCUS (Lat.) A bench; the seat or 
 bench of justice; a stall or table on which 
 goods are exposed for sale. Often used for 
 the court itself. 
 
 A full bench, when all the judges are pres- 
 ent. Cowell; Spelman. 
 
 The English court of common pleas was 
 formerly called "6o»0MS." Viner.Abr. "Courts." 
 See "Bench;" "Common Bench." 
 
 BANCUS REGINAE (Law Lat.) The 
 queen's bench. 
 
 BANCUS REGIS (Lat.) The king's 
 bench; the supreme tribunal of the king 
 after parliament. 3 Sharswood, Bl. Comm. 
 41. 
 
 In ianoo regis, in or before the court of 
 king's bench. 
 
 The king has several times sat in his own 
 person on the bench in this court, and all 
 the proceedings are said to be coram, rego 
 ipso, before the king himself. Still, James 
 I. was not allowed to deliver an opinion, al- 
 though sitting in tanco regis. Viner, Abr. 
 "Courts" (H, L) ; 3 Bl. Comm. 41; Co. Litt. 
 71 (C). 
 
 BANCUS SUPERIOR (Lat.) Abbreviat- 
 ed tanc. sup. The upper bench; the king's 
 bench was so called during the Protecto- 
 rate. 
 
 BAND. In old Scotch law. A proclama- 
 tion calling out a military force. 1 Pitc. 
 Crim. Tr. pt. 1, p. 205. 
 
 BANDIT. A man outlawed; one under 
 ban. 
 
 BANE. A malefactor. Bracton, lib. 1, 
 tit. 8, c. 1. 
 
 BANI. Forfeited goods; deodand (q. v.) 
 
 BANISHMENT. A punishment inflicted 
 upon criminals, by compelling them to quit 
 a city, place, or country for a specified 
 period of time, or for life. See 4 Dall. (Pa.) 
 14. It is to be distinguished from "trans- 
 portation," which implies a confinement in 
 some place beyond the realm. 
 
 BANK (Anglicised form of bancus, a 
 bench). The bench of justice. 
 
 A session in bank is one held by more 
 than one judge of the court to determine 
 matters of law. 
 
 Distinguished from nisi prius sittings to 
 determine facts. 3 Sharswood, Bl. Comm. 
 28, note. 
 
 Bank le roy, the king's bench. Finch, Law, 
 198. 
 
 In Commercial Law. A place for the 
 
 deposit of money. 
 
 An institution, generally incorporated, 
 authorized to receive deposits of money, to 
 lend money, and to issue promissory notes. 
 
 — usually known by the name of "bank 
 notes," — or to perform some one or more 
 of these functions. 
 
 It was the custom of the early money 
 changers to transact their business in pub- 
 lic places, at the doors of churches, at mar- 
 kets, and, among the Jews, in the temple 
 (Mark xi. 15). They used tables or benches 
 for their convenience in counting and as- 
 sorting their coins. The table so used was 
 callfed banche, and the traders themselves, 
 "bankers," or "benchers." In times still 
 more ancient, their benches were called 
 camMi, and they themselves were called 
 cambiators. Du Cange, "Cambii." 
 
 Banks are said to be of three kinds, viz., 
 of deposit, of discount, and of circulation. 
 They generally perform all these opera- 
 tions, but an institution performing but one 
 is a bank. 17 Wall. (U. S.) 118; but see 52 
 Cal. 196. A corporation loaning its own 
 funds on note and mortgage is not a bank. 
 5 Sawy. (U. S.) 32. 
 
 BANK ACCOUNT. A fund deposited by 
 a customer of a bank into its common cash, 
 to be drawn out by checks from time to 
 time, as the depositor may require. 
 
 The statement of the amount deposited 
 and drawn, which is kept in duplicate, one 
 in the depositor's bank book, and the other 
 in the books of the bank. 
 
 BANK BILLS. Demand notes of a bank, 
 designed to circulate as money. See 3 Scam. 
 (111.) 328. 
 
 BANK NOTE. A promissory note, pay- 
 able on demand to the bearer, and Intended 
 to circulate as money, made and issued by 
 a person or persons acting as bankers, and 
 authorized by law to issue such notes. 
 
 * BANKABLE. Bank notes, checks, and 
 other securities for money which will be re- 
 ceived as cash by the banks in the place 
 where the word is used. 
 
 BANKEROUT. Old English. Bankrupt. 
 
 BANKER'S NOTE. A promissory note 
 given by a private banker or banking insti- 
 tution not incorporate, but resembling a 
 bank note in all other respects. 6 Mod. 29; 
 3 Chit. Com. Law, 590; 1 Leigh, N. P. 338. 
 
 BANKRUPT. A person against whom an 
 involuntary petition or an application to 
 set a composition aside has been filed, or 
 who has filed a voluntary petition, or who 
 has been adjudged a bankrupt. U. S. Bank- 
 rupt Act 1S98, § 1. Loosely used for "in- 
 solvent" (q. V.) 
 
 BANKRUPTCY. The state or condition 
 of a bankrupt. See "Insolvency." 
 
 BANLEUCA. A certain space surround- 
 ing towns or cities, distinguished by pecul- 
 iar privileges. Spelman. It is the same 
 as the French banlieue. 
 
 BANLIEU. In Canadian law. See "Ban- 
 leuca." 
 
BANNERET 
 
 (87) 
 
 BARGAINOR 
 
 BANNERET, or BANERET. One knight- 
 ed on the field. So called, according to 
 Wharton, from the formula of cutting off 
 the point of his standard, so as to make it 
 a banner. 
 
 BANNi NUPTIARUM (Law Lat.) In old 
 English law. The hans of matrimony. Spel- 
 man; Cowell. Bracton uses the singular, 6a«- 
 num. Bracton, fol. 307b. Fleta uses tannus. 
 Fleta, lib. 5, c. 30, § 3. .See "Bannum;" 
 "Bannus." 
 
 BANNIRE AD PLACITA, AD MOLEN- 
 dinum. To summon tenants to serve at 
 the lord's courts, to bring corn to be ground 
 at his mill. 
 
 BANNITUS. 
 
 Calv. Lex. 
 
 One outlawed or banished. 
 
 BANNUM. Aban(g. «;.) 
 
 BANNUS. In old English law. A proc- 
 lamation. Bannus regis, the king's proc- 
 lamation, made by the voice of a herald, 
 forbidding all present at the trial by com- 
 bat to interfere, either by motion or word, 
 whatever they might see or hear. Brac- 
 ton, fol. 142; Fleta, lib. 1, c. 34, § 1. 
 
 The bans of marriage. Fleta, lib. 5, c. 
 30, § 3. 
 
 BANQUE. A bench; the table or coun- 
 ter of a trader, merchant, or banker. 
 Banque route, a broken bench or counter; 
 bankrupt, or, in old English, ianlcerout. 
 
 BANS OF MATRIMONY. Public notice 
 or proclamation of a matrimonial contract, 
 and the intended celebration of the mar- 
 riage of the parties in pursuance of such 
 contract, to the end that persons objecting 
 to the same may have an opportunity to 
 declare such objections before the marriage 
 is solemnized. Poth. du Mariage, p. 2, c. 2. 
 
 BAR. 
 
 (1) A particular part of the court room. 
 As thus applied, and secondarily in various 
 ways, it takes its name from the actual 
 bar, or inclosing rail, which originally di- 
 vided the bench from the rest of the room, 
 as well as from that bar, or rail, which 
 then divided, and now divides, the space 
 including the bench, and the place which 
 lawyers occupy in attending on and con- 
 ducting trials, from the body of the court 
 room. Those who, as advocates or counsel- 
 lors, appeared as speakers in court, were 
 said to be "called to the bar," that is, call- 
 ed to appear in presence of the court, as 
 barristers, or persons who stay or attend 
 at the bar of court. Rich. Diet. "Barrister." 
 By a natural transition, a secondary use of 
 the word was applied to the persons who 
 were so called, and the advocates were, as 
 a class, called "the bar." And in this coun- 
 
 ' try, since attorneys, as well as counsellors, 
 appear in court to conduct causes, the mem- 
 bers of the legal profession, generally, are 
 called the "bar." 
 
 (2) The court, in its strictest sense, sit- 
 ting in full term. 
 
 Thus, a civil case of great consequence 
 
 was not left to be tried at nisi prius, but 
 was tried at the "bar of the court itself," 
 at Westminster. 3 Bl. Comm. 352. So a 
 criminal trial for a capital offense was had 
 "at bar" (4 Bl. Comm, 351), and in this 
 sense the term "at bar" is still used. It is 
 also used in this sense, with a shade of dif- 
 ference (as not distinguishing nisi prius 
 from full term, but as applied to any term 
 of the court), when a person indicted for 
 crime is called "the prisoner at the bar," 
 or is said to stand at the bar to plead to 
 the indictment. See Merlin, Repert. "Bar- 
 reau;" 1 Dupin, Prof. d'Av. 451. 
 
 (3) An obstacle or opposition. Thus, 
 relationship within the prohibited degrees, 
 or the fact that a person is already married, 
 is a bar to marriage. 
 
 (4) A perpetual destruction of the ac- 
 tion of the plaintiff. 1 Ore. 47. 
 
 (5) Bar in the old books is sometimes 
 used for "plea in bar." Co. Litt. 303b. 
 
 BAR FEE. In English law. A fee taken 
 by the sheriff, time out of mind, for every 
 prisoner who is acquitted. Bac. Abr. "Ex- 
 tortion." 
 
 BARAGARIA (SpanishJ. A concubine. 
 
 BARATRIAM COMMITTIT QUI PROP- 
 ter pecuniam justitiam baractat. He is 
 guilty of barratry who for money sells jus- 
 tice. Bell, Diet. Barratry at common law 
 has a different signification. See "Bar- 
 ratry." 
 
 BARBANUS. In old Lombardic law. An 
 uncle (patruus). Spelman. 
 
 BARBiCANAGE. Money paid to support 
 a barbican or watch tower. 
 
 BARE TRUSTEE. See "Trustee." 
 
 BARET (Law Fr.) A wrangling suit. 
 Britt. c. 92; Co. Litt. 368b. 
 
 BARGAIN AND SALE. A contract or 
 bargain by the owner of land, in considera- 
 tion of money or its equivalent paid, to sell 
 land to another person, called the "bar- 
 gainee," whereupon a use arises in favor 
 of the latter, to whom the seisin is trans- 
 ferred by force of the statute of uses. 2 
 Washb. Real Prop. 128. 
 
 A real contract, whereby a person bar- 
 gains and sells his lands to another for a 
 pecuniary consideration, in consequence of 
 which a use arises to the bargainee, and by 
 the statute of uses the legal estate and ac- 
 tual possessions are immediately transfer- 
 red to the cestui que use without any entry 
 or other act on his part, thus dispensing 
 with livery of seisin. Devi. Deeds, § 23. 
 
 BARGAINEE. The grantee of an estate 
 in a deed of bargain and sale; the person 
 to whom property is tendered in a bargain. 
 
 BARGAINOR. The person who makes a 
 bargain; he who is to deliver the property 
 and receive the consideration. 
 
BARLKYCORN 
 
 (88) 
 
 BARRISTER 
 
 BARLEYCORN. The third of an inch. 
 Wharton. 
 
 BARMOTE COURTS. Courts held in 
 certain mining districts belonging to the 
 Duchy of Lancaster, for regulation of the 
 mines, and for deciding questions of title 
 and other matters relating thereto. 3 Steph. 
 Comm. 347, note (b) ; St. 14 & 15 Vict. c. 94. 
 
 BARNARD'S INN. An inn of chancery. 
 See "Inns of Chancery." 
 
 BARO. A man, whether slave or free. 
 
 Si quis Jiomicidiuni perpetraverit in bar- 
 one libro sen servo, if any one shall have 
 perpetrated a murder upon any man, slave 
 or free. A freeman or freedman; a strong 
 man; a hired soldier; a vassal; a feudal 
 client. 
 
 Those who held of the king immediately 
 were called "barons of the king." 
 
 A man of dignity and rank; a knight. 
 
 A magnate in the church. 
 
 A judge in the exchequer (6oro scacca- 
 rii). 
 
 The first-born child. 
 
 A husband. 
 
 The word is said by Spelman to have 
 been used more frequently in its latter 
 sense. 
 
 It is quite easy to trace the history of 
 baro, from meaning simply "man," to its 
 various derived significations. Denoting a 
 man, one who possessed the manly qualities 
 of courage and strength would be desirable 
 as a soldier, or might misuse them as a 
 robber. One who possessed them in an 
 eminent degree would be "the" man; and 
 hence baro, in Its sense of a title of dignity 
 or honor, particularly applicable, in a war- 
 like age to the best soldier. See, generally, 
 Bac. Abr. ; Comyn, Dig.; Spelman. 
 
 BARON. A general title of nobility (1 
 Bl. Comm. 398) ; a particular title of no- 
 bility, next to that of viscount; a judge of 
 the exchequer (Cowell; 1 Bl. Comm. 44). 
 
 A husband. In this sense it occurs in, 
 the phrase baron et feme, husband and wife 
 (1 Bl. Comm. 432), and this is the only 
 sense in which it is used in the American 
 law, and even in this sense it is now but 
 seldom found. 
 
 A freeman. Especially applied to the in- 
 habitants of the Cinque Ports, — Romney, 
 Sandwich, Hastings, Rotherhithe, and Do- 
 ver, and the two laterly constituted ports of 
 Winchelsea and Rye. 
 
 It has essentially the 'same meanings as 
 baro (q. v.) 
 
 BARON ET FEME. Man and woman; 
 husband and wife. It is doubtful if the 
 words had originally in this phrase more 
 meaning than man and woman. The vul- 
 gar use of man and woman for husband and 
 wife suggest the change of meaning which 
 might naturally occur from man and wo- 
 man to husband and wife. Spelman; 1 Bl. 
 Comm. 442. 
 
 BARONAGE. The nobility generally; the 
 collective body of barons. 
 
 BARONET. An English title of dignity. 
 It is an hereditary dignity, descensible, but 
 not a title of nobility. It is of very early 
 use. Spelman; 1 Bl. Comm. 403. 
 
 BARONS OF THE CINQUE PORTS. 
 
 Members of parliament from these ports; 
 freemen resident in these ports, viz., Sand- 
 wich, Romney, Hastings, Hithe, and Dover, 
 Winchelsea, and Rye. 
 
 BARONS OF THE EXCHEQUER. The 
 
 judges of the exchequer. See "Exchequer." 
 
 BARONY. The dignity of a baron; a 
 species of tenure; the territory or lands 
 held by a baron. Spelman. 
 
 BARONY OF LAND. A quantity of land 
 amounting to fifteen acres. In Ireland, a sub- 
 division of a county. 
 
 BARRA, or BARRE. In old practice. A 
 plea in bar. Dyer, 56. The bar of the 
 court; a barrister. Co. Litt. 372a; 1 Ld. 
 Raym. 595. 
 
 BARRATOR. One who commits bar- 
 ratry. 
 
 BARRATRY (Fr. harat, baraterie, rob- 
 bery, deceit, fraud). 
 
 In Criminal Law. Common barratry is 
 
 the ofilense of frequently exciting and stir- 
 ring up quarrels. and suits, either at law or 
 otherwise. 4 Bl. Comm. 134; Co. Litt. 368. 
 Sometimes called "barretry." 
 
 An attorney is not liable to indictment 
 for maintaining another in a groundless ac- 
 tion. 1 Bailey (S. C.) 379. See 1 Bish. 
 Crim. Law, §§ 401, 645, 646; 2 Bish. Grim. 
 Law, §§ 57-61; Bac. Abr.; 8 Coke, 36b; 9 
 Cow. (N. Y.) 587; 15 Mass. 229; 11 Pick. 
 (Mass.) 432; 13 Pick. (Mass.) 362. 
 
 In Maritime Law^ and Insurance. An 
 
 unlawful or fraudulent act, or very gross 
 and culpable negligence, of the master or 
 mariners of a vessel, in violation of their 
 duty as such, and directly prejudicial to the 
 owner, and without his consent. l^Phil. 
 Ins. c. 13; Abb. Shipp. 167, note; 2 Caines 
 (N. Y.) 67, 222; 3 Caines (N. Y.) 1; 1 Johns. 
 (N. Y.) 229; 11 Johns. (N. Y.) 40; 13 Johns. 
 (N. Y.) 451; 2 Bin. (Pa.) 274; 8 Cranch 
 (TJ. S.) 139; 5 Day (Conn.) 1; 3 Wheat. (U. 
 S.) 163; 4 Dall. (U. S.) 294. 
 
 In Scotch Law. The crime of a judge 
 
 who receives a bribe for his judgment. 
 Skene de Verb. Sign. 
 
 BARREN MONEY. A debt which bears 
 no interest. 
 
 BARRENNESS. Sterility in a female; ' 
 the incapacity to produce a child. 
 
 BARRISTER. In English law. A coun- 
 sellor admitted to plead at the bar. 
 
 Inner Barrister. A Serjeant or king's 
 
 counsel who pleads within the bar. 
 
 Ouster Barrister. One who pleads 
 
 ouster, or without the bar. 
 
 Vacation Barrister. A counsellor new- 
 ly called to the bar, who Is to attend for sev- 
 
BARTER 
 
 (89) 
 
 BASTARDY PROCESS 
 
 eral long vacations the exercise of the 
 house. 
 
 Barristers are called apprentices, appren- 
 titii ad legem, being looked upon as learn- 
 ers, and not qualified until they obtain the 
 degree of Serjeant. Edmund Plowden, the 
 author of the Commentaries, a volume of 
 elaborate reports in the reigns of Edward 
 VI., Mary, Philip and Mary, and Elizabeth, 
 describes himself as an apprentice of the 
 common law. See "Attorney." 
 
 BARTER. A contract by which parties 
 exchange goods for goods. It differs from a 
 sale in that a barter is always of* goods for 
 goods; a sale Is of goods for money, or for 
 money and goods. In a sale there is a 
 fixed price; in a barter there is not. 
 
 There must be a delivery of goods to com- 
 plete the contract. 
 
 BARTON. In old English law. The de- 
 mesne land of a manor; a farm distinct from 
 the mansion. 
 
 BAS CHEVALIERS. Knights by tenure 
 of a base military fee, as distinguished 
 from bannerets, who were the chief or su- 
 perior linights. Kennett, Par. Ant.; Blount. 
 
 BASE COURT. In English law. Any 
 inferior court that is not of record, as a 
 court baron, etc. Kitch. Cts. 95,96; Cowell. 
 
 BASE ESTATE. The estate which "base 
 tenants" (g. v.) have in their land. Cowell. 
 
 BASE FEE. A fee which has a qualifi- 
 cation annexed to it, and which must be de- 
 termined whenever the annexed qualifica- 
 tion requires. 
 
 A grant to A. and his heirs, tenants of 
 Dale, continues only while they are such 
 tenants. 2 Bl. Comm. 109. 
 
 The proprietor of such a fee has all the 
 rights of the owner of a fee simple until 
 his estate is determined. Plowd. 557; 1 
 Washb. Real. Prop. 62; 1 Prest. Est. 431; 
 Co. Litt. lb. 
 
 BASE INFEFTMENT (Scotch). A dispo- 
 sition of land by a vassal, to be held of him- 
 self. 
 
 BASE RIGHT. In Scotch law. A sub- 
 ordinate right; the right of a subvassal in 
 the lands held hy him. Bell, Diet. 
 
 BASE SERVICES. Such services as were 
 unworthy to be performed by the nobler 
 men, and were performed by the peasants 
 and those of servile rank. 2 Bl. Comm. 62; 
 1 Washb. Real Prop. 25. 
 
 BASE TENANTS. 
 
 (1) Tenants who held their lands at the 
 will of their superior lord, as distinguished 
 from "frank tenants" ((?. r.),who were free- 
 holders. 
 
 (2) Tenants who rendered to their lords 
 services in villeinage. Cowell. 
 
 BASE TENURE. A tenure by villeinage, 
 or other customary service, as distinguish- 
 ed from tenure by military service, or from 
 tenure by free service. Cowell. 
 
 BAS ILEUS. The title of the Emperor 
 Justinian in Novs. 2. 3. 4. 6. et seq., and 
 sometimes applied to the king of England, 
 in charters prior to the Norman conquest. 
 1 Bl. Comm. 242. 
 
 BASILICA. An abridgment of the Cor- 
 pus Juris Civilis of Justinian, translated 
 into Greek, and first published in the ninth 
 century. 
 
 BASILS (Lat. basiJli). In old English 
 law. A kind of money or coin abolished by 
 Henry II. Spelman; Cowell. 
 
 BASKET TENURE. Lands held by the 
 service of making the king's baskets. 
 
 BASSE JUSTICE. In feudal law. Low 
 justice; the right of a feudal lord to try 
 persons accused of petty offenses or tres- 
 passes. 
 
 BASTARD {bas or hast, abject, low, base; 
 aerd, nature ) . 
 
 One born of an illicit connection. It in- 
 cludes children begotten and born out of law- 
 ful wedlock, whose parents do not subse- 
 quently marry, and children born in wed- 
 lock, but begotten of an adulterous inter- 
 course. 
 
 A child begotten out of wedlock, but whose 
 parents marry before its birth, is legitimate 
 (62 Iowa, 343; 43 Ohio St. 473; 75 Pa. St. 
 433), and, by the weight of authority, a mar- 
 riage after the birth renders the child legiti- 
 mate (9 Ala. 965; 85 Ind. 357; 38 Ky. 170; 
 20 Tex. 731). 
 
 The child of a voidable marriage is legiti- 
 mate (13 Iowa, 198), but, at common law, 
 the issue of a void marriage is a bastard 
 (22 Md. 468; 1 N. J. Eq. 96); but by statute 
 in many states, such issue is made legiti- 
 mate if the marriage was in good faith. 
 
 BASTARD EIGNE. Bastard elder. 
 
 By the old English law, when a man had 
 a bastard son, and he afterwards married 
 the mother, and by her had a legitimate 
 son, the first was called a bastard eigne, or, 
 as it is now spelled, aine, and the second 
 son was called pnimie. or since born, or 
 sometimes he was called mulier puisne. 
 See 2 Bl. Comm. 248. 
 
 BASTARDA. A female bastard. Calv. 
 Lex. 
 
 BASTARDUS NON POTEST HABERE 
 haeredem nisi de corpore suo legitime pro- 
 creatum. A bastard can have no heir un- 
 less it be one lawfully begotten of his own 
 body. Tray. Lat. Max. 51. 
 
 BASTARDUS NULLIUS EST FILIUS, 
 aut filius populi. A bastard is nobody's 
 son, or the son of the people. 
 
 BASTARDY. The offense of begetting a 
 bastard child; the condition of a bastard. 
 
 BASTARDY PROCESS (or PROCEED- 
 
 ings). The statutory mode of proceeding 
 against the putative father of a bastard to, 
 secure a proper maintenance for the bastard. 
 
BASTON 
 
 (90) 
 
 BEAUPLEADER 
 
 BASTON. In old English law. A stafe 
 or club. 
 
 In some old Englisli statutes, the servants 
 or officers of the wardens of the fleet are 
 so called, because they attended the king's 
 courts with a red staff. 
 
 BATABLE GROUND. Land that Is in 
 controversy, or about the possession of 
 which there is a dispute, as the lands which 
 were situated between England and Scot- 
 land before the union. Skene de Verb. Sign. 
 
 BATAILLE. In old English law. Battel; 
 the trial by combat or dwellum. Britt. c 
 25; Y. B. M. 4 Edw. III. 12. 
 
 BATH, KNIGHTS OF THE. In English 
 law. A military order of knighthood, in- 
 stituted by Richard II. The order was 
 newly regulated by notifications in the Lon- 
 don Gazette of 25th May, 1847, and 16th Au- 
 gust, 1850. Wharton. 
 
 BATIMENT. In French marine law. A 
 vessel. Ord. Mar. liv. 1, tit. 14, art. 2. 
 
 BATTEL. Trial by combat. 
 
 It was called also "wager of battel" or 
 "battaile," and could be claimed in appeals 
 of felony. It was of frequent use In af- 
 fairs of chivalry and honor, and in civil 
 cases upon certain issues. Co. Litt. § 294. It 
 was not abolished in England till the enact- 
 ment of St. 59 Geo. III. c. 46. See 1 Barn. 
 & Aid. 405; 3 Sharswood, Bl. Comm. 339; 4 
 Sharswood, Bl. Comm. 347. See "Appeal." 
 This mode of trial was not peculiar to Eng- 
 land. The emperor Otho, A. D. 983, held a 
 diet at Verona, at which several sovereigns 
 and great lords of Italy, Germany, and France 
 were present. In order to put a stop to 
 the frequent perjuries in judicial trials, this 
 diet substituted in all cases, even in those 
 which followed the course of the Roman 
 law, proof by combat for proof by oath. 
 Henrion de Pansey, Auth. Judic. Introd. c. 
 3. And for a detailed account of this mode 
 of trial, see Herbert, Inns of Court, 119-145. 
 
 BATTERY. Any unlawful beating, or 
 other wrongful physical violence or con- 
 straint, inflicted on a human being without 
 his consent. 2 Bish. Grim. Law, § 62; 17 
 Ala. 540; 9 N. H. 491. It includes every 
 touching of another in a rude, angry, or 
 hostile manner. 65 Ala. 520; 53 111. Ill; 67 
 Ind. 304. 
 
 BATTURE (Fr. shoals, shallows). An 
 elevation of the bed of a river under the 
 surface of the water; but it is sometimes 
 used to signify the same elevation when it 
 has risen above the surface. 6 Mart. (La.) 
 19, 216. 
 
 The term "battures" is applied principal- 
 ly to certain portions of the bed of the 
 river Mississippi, which are left dry when 
 the water is low, and are covered again, 
 either in whole or in part, by the annual 
 swells. 
 
 BAWD. A procurer; one who procures 
 for other persons opportunities for illicit 
 cohabitation. 4 Mo. 216. 
 
 BAWDY HOUSE. A house of ill fame, 
 kept for the resort and unlawful commerce 
 of lewd people of both sexes. 
 
 BAY. An inclosure, or other contrivance, 
 to keep in the water for the supply of a 
 mill, so that the water may be able to drive 
 the wheels of such mill. St. 27 Eliz. c. 19. 
 
 BAYLEY. In old English- law. Bailiff. 
 This term is used in the laws of the colony 
 of New Plymouth, Mass., A. D. 1670, 1671. 
 
 BAYOU. A stream which Is the outlet 
 of a swamp ,near the sea. Applied to the 
 creeks in the lowlands lying on the Gulf of 
 Mexico. 
 
 BEACONAGE. Money paid for the main- 
 tenance of a beacon. Comyn, Dig. "Navi- 
 gation" (H). 
 
 BEADLE (Saxon, beodan, to bid). A 
 church servant chosen by the vestry, whose 
 business it is to attend the vestry, to give 
 notice of its meetings, to execute its orders, 
 to attend upon inquests, and to assist the 
 constables. 
 
 BEARER. One who bears or carries a 
 thing. 
 
 If a bill or note be made payable to bearer, 
 it will pass by delivery only, without in- 
 dorsement, and whoever fairly acquires a 
 right to it may maintain an action against 
 the drawer or acceptor. 
 
 BEARERS. Such as bear down or op- 
 press others; maintainers. 
 
 BEARING DATE. Words frequently used 
 in pleading and conveyancing to introduce 
 the date which has been put upon an in- 
 strument. 
 
 When, in a declaration, the plaintiff al- 
 leges that the defendant made his promis- 
 sory note on such a day, he will not be con- 
 sidered as having alleged that it bore date 
 on that day, so as to cause a variance be- 
 tween the declaration and the note produced 
 bearing a different date. 2 Greenl. Ev. § 
 160; 2 Dowl. & L. 759. 
 
 BEASTS. Four-footed animals. They were 
 anciently divided into "beasts of the plow," 
 — those used in husbandry; "beasts of the 
 chase," — the buck, doe, fox, marten, and 
 roe; "beasts of the forest," — the hart, hind, 
 hare, boar, and wolf; and "beasts of the 
 warren," — the hare and coney. 2 Bl. Comm. 
 39; Co. Litt. 233. 
 
 BEASTGATE. In Suffolk, England, im- 
 ports land and common for one beast. 2 
 Strange, 1084; Rose. Real Actions, 485. 
 
 BEAT. See "Assault." 
 
 BEAUPLEADER (Law Fr. fair pleading). 
 A writ of prohibition directed to the sheriff 
 or other, directing him not to take a fine for 
 beaupleader. 
 
 There was anciently a fine imposed called 
 a "fine for beaupleader," which is explain- 
 ed by Coke to have been originally imposed 
 
BED OF JUSTICE 
 
 (91) 
 
 BENCH 
 
 for bad pleading. Coke, 2d Inst. 123. It 
 was set at the will of the judge of the court, 
 and reduced to certainty hy consent, and 
 annually paid. Comyn, Dig. "Prerogative" 
 (D52). St. Marlebridge (52 Hen. III.) c. 11, 
 enacts that neither in the circuit of justices, 
 nor in counties, hundreds, or courts baron, 
 any fines shall be taken for fair pleading, 
 namely, for not pleading fairly or aptly to 
 the purpose. Upon this statute, this writ 
 was ordained, directed to the sheriff, bailiff, 
 or him who shall demand the fine, and it is 
 a prohibition or command not to do it. New 
 Nat. Brev. 596; Fitzh. Nat. Brev. 270a; Hall, 
 Hist. Com. Law, c. 7. Mr. Reeve explains 
 it as a fine paid for the privilege of a fair 
 hearing. 2 Reeve, Hist. Eng. Law, 70. This 
 latter view would perhaps derive some con- 
 firmation from the connection in point of 
 time of this statute with Magna Charta, and 
 the resemblance which the custom bore to 
 the other customs against which the clause 
 In the charter of nulU vendemus, etc., was 
 directed. See Comyn, Dig. "Prerogative" (D 
 51, 52) ; Cowell; 2 Inst. 122, 123 ; Crabb, Hist. 
 Eng. Law, 150. 
 
 BED OF JUSTICE (Fr.) The seat or 
 throne upon which the king sat when per- 
 sonally present in parliament; hence it 
 signified the parliament itself. 
 
 BEDEL. In English law. A crier or 
 messenger of court, who summons men to 
 appear and answer therein. Cowell. An 
 inferior officer in a parish or liberty. See 
 "Beadle." 
 
 BEDELARY. The jurisdiction of a bedel, 
 as a bailiwick is the jurisdiction of a bailiff. 
 Co. Litt. 234b; Cowell. 
 
 BEDEREPE. A service which certain ten- 
 ants were anciently bound to perform, as 
 to reap their landlord's corn at harvest. 
 Said by Whishaw to be still in existence in 
 some parts of England. Blount; Cowell; 
 Whishaw. 
 
 BEGGAR. One who obtains his liveli- 
 hood by asking alms. The laws of several 
 "of the states punish begging as an offense. 
 
 Words of solicitation are not necessary, 
 but the solicitation may be by attitude or 
 gesture. 3 Abb. N. C. (N. Y.) 65. 
 
 BEHAVIOR. Manner of having, holding, 
 or keeping one's self; carriage of one's self, 
 with respect to propriety, morals, and the 
 requirements of law. Surety to be of good 
 behavior is a larger requirement than surety 
 to keep the peace. Dalton, c. 122; 4 Burns, 
 Just. .155. 
 
 A "breach of good behavior," for which an 
 oflicial can be removed, is not confined to 
 misbehavior in office. 2 Mart. (La.; N. S.) 
 700. 
 
 BEHETRIA (Arabic, without nobility or 
 lordship). In Spanish law. Lands situated 
 in districts and manors in which the inhab- 
 itants had the right to select their own 
 lords. 
 
 Behetrias were of two kinds: BeJietrias 
 
 de entre parientes, when the choice was re- 
 stricted to a relation of the deceased lord, 
 and hehetrias de mar a mar, when the choice 
 was unrestricted. 
 
 The lord, when elected, enjoyed various 
 privileges, called yantar, conducho, martiniego. 
 marzadga, infiircion, etc. These contribu- 
 tions were intended for his maintenance 
 the construction of his dwelling, the sup 
 port of his family and his followers, etc 
 Escriche, Die. Raz.; Sempere y Guarinos, 
 Vinculos y Mayarazgos, p. 67, note. See, 
 also, on this subject, Puero Viejo de Castilla, 
 bk. 1, tit. 8; Las Partidas, tit. 25, p. 4; El 
 Ordenamiento de Acala in different laws in 
 title 32. See, likewise, book 6, tit. 1, of 
 the Novislma Recopilacion. 
 
 BEHOFF (Saxon). Use; service; profit; 
 advantage. It occurs in conveyances. 
 
 BELIEF. Conviction of the mind, arising 
 not from actual perception or knowledge, 
 but by way of inference, or from evidence 
 received or information derived from others. 
 It differs from "knowledge" only in degree. 
 9 Gray (Mass.) 274. It is said to be a 
 stronger word than "imagination" (4 Ga. 
 37), or suspicion (5 Cush. [Mass.] 374), but 
 has been held to be substantially synony- 
 mous with "supposition" (102 111. 277). 
 
 Belief may evidently be stronger or weak- 
 er, according to the weight of evidence ad- 
 duced in favor of the proposition to which 
 belief is granted or refused, and so "firm 
 belief " in a statute means more than "belief ." 
 
 4 Serg. & R. (Pa.) 137; 1 Greenl. Bv. §§ 7-13. 
 See 1 Starkie, Ev. 41; 2 W. Bl. 881; 8 Watts 
 (Pa.) 406. 
 
 BELLIGERENT. Actually at war. Ap- 
 plied to nations. Wheat. Int. Law, 380 et 
 seq.; 1 Kent, Comm. 89. 
 
 BELLO PARTA CEDUNT REIPUBLI- 
 cae. Things acquired in war go to the state. 
 Cited 2 Russ. & M. 56; 1 Kent, Comm. 101; 
 
 5 C. Rob. Adm. 155, 163; 1 Gall. (U. S.) 558. 
 
 BELOW. Inferior; preliminary. The 
 court below is the court from which a cause 
 has been removed. See "Bail." 
 
 BENCH. A tribunal for the administra- 
 tion of justice. 
 
 The judges taken collectively, as distip- 
 guished from counsellors and advocates, 
 who are called the "bar." 
 
 The term, indicating originally the seat 
 of the judges, came to denote the body of 
 judges taken collectively, and also the tri- 
 bunal Itself. The jus hand, says Spelman, 
 properly belongs to the king's judges, who 
 administer justice in the last resort. The 
 judges of the inferior courts, as of the 
 barons, are deemed to judge piano pede, 
 and are such as are called in the civil law 
 pedanei judices. The Romans used the words 
 sellae and tribunalia to designate the seats 
 of their higher judges, and suisellia to 
 designate those of the lower. See Spelman, 
 "Bancus;" 1 Reeve, Hist. Eng. Law (4th 
 Ed.) 40. 
 
 "The court of common pleas in England 
 
BENCH WARRANT 
 
 (92) 
 
 BENEFICIUM, ETC. 
 
 was formerly called bancus, the bench, as 
 distinguished from bancus regis, the king's 
 bench. It was also called communis ban- 
 cus, the common bench; and this title is still 
 retained by the reporters of the decisions 
 in the court of common pleas. Mention is 
 made in the Magna Gharta 'de justiciariis 
 nostris de banco,' which all men know to 
 be the justices of the court of common pleas, 
 commonly called the common bench, or the 
 bench." Viner, Abr. "Courts," note 2. 
 
 BENCH WARRANT.' An order issued by 
 or from a bench, for the attachment or ar- 
 rest of a personr It may issue either in 
 case of a contempt, or where an indictment 
 has been found. It is so called because is- 
 sued by order of a court or bench, as dis- 
 tinguished from warrant issued by a mag- 
 istrate. 
 
 BENCHER. A senior in the Inns of 
 Court, intrusted with their government or 
 direction. 
 
 The benchers have the absolute and irre- 
 sponsible power of punishing a barrister 
 guilty of misconduct, by either admonish- 
 ing or rebuking him, by prohibiting him 
 from dining in the hall, or even by expelling 
 him from the bar, called "disbarring." They 
 might also refuse admission to a student, 
 or reject his call to the bar. Wharton. 
 
 BENE (Lat.) In old English law. Well; 
 sufficiently; in due form; safely. Bene et 
 in pace, well and in peace. Magna Cart. 
 Johan. c. 63. See "Biens." 
 
 BENEDICTA EST EXPOSITIO QUANDO 
 res redimitur a destructione. Blessed is the 
 exposition when the thing is saved from 
 destruction. 4 Coke, 26. 
 
 BENEFICE. An ecclesiastical preferment. 
 In its more extended sense, it includes any 
 such preferment; in a more limited sense, 
 it applies to rectories and vicarages only. 
 See "Beneficium." 
 
 BENEFICE DE DISCUSSION. Benefit of 
 discussion {q. v.) 
 
 BENEFICE DE DIVISION. In French law. 
 The right of contribution between sureties. 
 
 BENEFICE D'INVENTAIRE. This, in 
 French, corresponds to the beneficium in- 
 ventarii of Roman law, and substantially 
 to the English-law doctrine that the execu- 
 tor properly accounting is only liable to 
 the extent of the assets received by him. 
 Brown. 
 
 BENEFICIAL ENJOYMENT. The enjoy- 
 ment of an estate in one's own right, and 
 for his own benefit, and not as trustee for 
 another. 3 Hurl. & C. 1030. 
 
 BENEFICIAL INTEREST. Profit, bene- 
 fit, or advantage resulting from a contract, 
 or the ownership of an estate, as distinct 
 from the legal ownership or control. 
 
 A cpslvi que trust has the beneficial in- 
 terest in a trust estate, while the trustee 
 ias the legal estate. If A. makes a con- 
 
 tract with B. to pay C. a sum of money, C. 
 has the beneficial interest in the contract. 
 
 BENEFICIAL POWER. "A power is 
 beneficial when no person other than the 
 grantee has, by the terms of its creation, any 
 interest in its execution." Rev. St. N. Y. 
 § 79. 
 
 A power is benefi9ial if, by the terms of 
 its creation, no interest in its execution is 
 given to a person other than the grantee, 
 though no such interest is especially given 
 to the grantee. 73 N. Y. 234. 
 
 BENEFICIARY. A term suggested by 
 Judge Story as a substitute fox cestui que 
 tnixt (q. r.) (1 Story, Eq. Jur. § 321), and to 
 some extent adopted. 
 
 BENEFICIO PRIMO (more fully, benefi- 
 cio primo ecclesiastico habendo). A writ 
 directed from the king to the chancellor, 
 commanding him to bestow the benefice 
 which shall first fall in the king's gift, above 
 or under a certain value, upon a particular 
 and certain person. Reg. Orig. 307. 
 
 BENEFICIUM (Lat. beneficere). A por- 
 tion of land or other immovable thing 
 granted by a lord to his followers for their 
 stipend or maintenance. 
 
 A general term applied to ecclesiastical 
 livings. 4 Bl. Comm. 107; Cowell. 
 
 In the early feudal times, grants were 
 made to continue only during the pleasure 
 of the grantor, which were called munera, 
 but soon afterwards these grants were 
 made for life, and then they assumed the 
 name of beneflcia. Dalr. Feud. Prop. 199. 
 Pomponius Laetus, as cited by Hotoman 
 (De Feudis, c. 2), says "that it wafe an an- 
 cient custom, revived by the Emperor Con- 
 stantine, to give lands and villas to those 
 generals, prefects, and tribunes who had 
 grown old in enlarging the empire, to sup- 
 ply their necessities as long as they lived, 
 which they called 'parochial,' — parishes, etc. 
 But between fiefs or feuds (feuda) and 
 parishes (.parocMas) there was this differ- 
 ence, that the latter were given to old men, 
 veterans, etc., who, as they deserved well . 
 of the republic, were sustained the rest of 
 their life (publico beneficio) by the public 
 benefaction; or, if any war afterwards 
 arose, they were called out not so much as 
 soldiers as leaders (magistri m,ilitum). 
 Feuds ifeuda), on the other hand, were 
 usually given to robust young men who 
 could sustain the labors of war. In later 
 limes, the word parocMa was appropriated 
 exclusively to ecclesiastical persons, while 
 the word beneficium (mUitare) continued to 
 be used in reference to military fiefs or 
 fees." 
 
 In Civil Law. Any favor or privilege. 
 
 BENEFICIUM ABSTINENDI. In Roman 
 law. The power of an heir to abstain from 
 accepting the inheritance. Sandars, Just. 
 Inst. (5th Ed.) 214; Cum. Com. Law, 156. 
 
 BENEFICIUM CEDENDARUM ACTIO- 
 
 num. The privilege by which a surety 
 
BENEFICIUM CLERICALE 
 
 (93) 
 
 BENEVOLENCE 
 
 could, before paying the creditor, compel 
 Wm to make over to him the actions which 
 belonged to the stipulator, so as to avail 
 himself of them. Sandars, Just. Inst. (5th 
 Ed.) 332, 351. 
 
 BENEFICIUM CLERICALE. Benefit of 
 clergy (g. v.) 
 
 BENEFICIUM COMPETENTIAE. 
 
 In Scotch Law. The privilege of re- 
 taining a competence belonging to the obli- 
 gor in a gratuitous obligation. Such a claim 
 constitutes a good defense in part to an ac- 
 tion on the bond. Paterson, Comp. 
 
 In Civil Law. The right which an 
 
 insolvent debtor had, among the Romans, 
 on making cession of his property for the 
 benefit of his creditors, to retain what was 
 required for him to live honestly according 
 to his condition. 7 Toullier, Dr. Civ. note 258. 
 
 BENEFICIUM DIVISIONIS. In Scotch 
 and civil law. A privilege whereby a co- 
 surety may insist upon paying only his 
 share of the debt along with the other sure- 
 ties. In Scotch law this is lost if the cau- 
 tioners (sureties) bind themselves "con- 
 junctly and severally." Ersk. Inst. lib. 3, 
 tit. 3, § 63. 
 
 BENEFICIUM INVENTARII. Benefit of 
 inventory (g. v.) 
 
 BENEFICIUM NON DATUM NISI PROP- 
 ter officium. A remuneration not given un- 
 less on account of a duty performed. Hob. 
 148. 
 
 BENEFICIUM ORDINIS. In Scotch and 
 civil law. The privilege of the surety al- 
 lowing him to require that the creditor shall 
 take complete legal proceedings against the 
 debtor to exhaust him before he calls upon 
 the surety. 1 Bell, Comm. 347. 
 
 BENEFICIUM SEPARATIONIS. In the 
 civil law. The right to have the goods of 
 an heir separated from those of the testator 
 in favor of creditors. 
 
 BENEFIT OF CESSION. In civil law. 
 The release of a debtor from future impris- 
 onment for his debts, which the law oper- 
 ates in his favor upon the surrender of his 
 property for the benefit of his creditors. 
 Pothier, Proced. Civ. 5eme part. c. 2, § 1. 
 This was something like a discharge un- 
 der the insolvent laws, which releases the 
 person of the debtor, but not the goods he 
 may acquire afterwards. See "Bankrupt;" 
 "Cessio Bonorum;" "Insolvent." 
 
 BENEFIT OF CLERGY. In English law. 
 An exemption of the punishment of death, 
 which the laws impose on the commission 
 of certain crimes, on the culprit demanding 
 it. By modern statutes, benefit of clergy 
 was rather a substitution of a more mild 
 punishment for the punishment of death. 
 
 A clergyman was exempt from capital 
 punishment toties quoties, as often as, from 
 acquired habit, or otherwise, he repeated 
 the same species of offense. The laity, 
 provided they could read, were exempted 
 
 only for a first offense; for a second, though 
 of an entirely different nature, they were 
 hanged. Among the laity, however, there 
 was this distinction: Peers and peeresses 
 were discharged for their first fault without 
 reading, or any punishment at all;' common- 
 ers, if of the male sex, and readers, were 
 branded in the hand. Women commoners 
 had no benefit of clergy. 
 
 Benefit of clergy was latterly granted, not 
 only to the clergy, as was formerly the case, 
 but to all persons. The benefit of clergy 
 seems never to have been extended to the 
 crime of high treason, nor to have em- 
 braced misdemeanors inferior to felony. 
 See 1 Chit. Crim. Law, 667, 668; 4 Bl. Comm. 
 c. 28; 1 Bish. Crim. Law, §§ 622-624. But 
 this privilege, improperly given to the 
 clergy, because they had more learning 
 than others, was abolished by St. 7 Geo. 
 IV. c. 28, § 6. 
 
 By the act of congress of April 30, 1790, 
 it is provided (section 30) that the benefit 
 of clergy shall not be used or allowed upon 
 conviction of any crime for which, by any 
 statute of the United States, the punish- 
 ment is, or shall be declared to be, death. 
 
 In some early state decisions, the right 
 was recognized in the United States (1 
 Murph. [N. C] 147; 4 Strobh. [S. C] 372), 
 while in: others it is held to be obsolete (1 
 Blackf. [Ind.] 66; 3 Minn. 246). 
 
 BENEFIT OF DISCUSSION. In civil law. 
 The right which a surety has to cause the 
 property of the principal debtor to be ap- 
 plied in satisfaction of the obligation in the 
 first instance. Civ. Code La. arts. 3014-3020. 
 
 BENEFIT OF DIVISION. In civil law. 
 The right of one of several joint sureties, 
 when sued alone, to have the whole obliga- 
 tion apportioned amongst the solvent sure- 
 ties, so that he need pay but his share. 
 Civ. Code La. arts. 3014-3020. See 2 Bouv. 
 Inst, note 1414. 
 
 BENEFIT OF INVENTORY. In civil 
 law. The privilege which the heir obtains 
 of being liable for the charges and debts 
 of the succession, only to the value of the 
 effects of the succession, by causing an in- 
 ventory of these effects within the time and 
 manner prescribed by law. Civ. Code La. 
 art. 1025; Poth. des Success, c. 3, § 3a. 
 2. See, also, Paterson, Comp., as to the 
 Scotch law upon this subject. 
 
 BENERTH. A feudal service rendered by 
 the tenant to his lord with plow and cart. 
 Cowell ; Spelman. 
 
 BENEVOLENCE. Good will; kindness; 
 humanity. It is a broader word than 
 "charity." 19 N. .T. Eq. 307; 44 Conn. 60; 
 11 Mass. 267. 
 
 In Old Englisli Law. A voluntary gra- 
 tuity given by the subjects to the king. Cow- 
 ell. Benevolences were first granted to Ed- 
 ward IV.; but under subsequent monarchs 
 they became anything but voluntary gifts, 
 and in the Petition of Rights (3 Car. I.) it is 
 made an article that no benevolence shall 
 
BENEVOLENT 
 
 (94) 
 
 BEST EVIDENCE 
 
 be extorted without the consent of parlia- 
 ment. The illegal claim and collection of 
 these benevolences was one of the promi- 
 nently alleged causes of the rebellion of 
 1640. 1 Bl. Comm. 140; 4 Bl. Comm. 436; 
 Cbwell. 
 
 BENEVOLENT. A term of wider and 
 more indefinite meaning than "charitable," 
 and generally held too indefinite to up- 
 hold a bequest for such purposes. 19 N. 
 J. Eq. 307; 5 Beav. 300; 107 V. S. 184. 
 
 BENIGNAE FACIENDAE SUNT INTER- 
 pretationes chartarum, ut res magis valeat 
 quam pereat. Constructions of documents 
 are to be made favorably, that the instru- 
 ment may rather avail than perish. 
 
 BENIGNE FACIENDAE SUNT INTER- 
 pretationes chartarum, ut res magis valeat 
 quam pereat, et quaelibet concessio fortis- 
 sime contra donatorem interpretanda est. 
 Liberal interpretations are to be made of 
 deeds, so that more may stand than fall, and 
 every grant is to be taken most strongly 
 against the grantor. 4 Mass. 134; 1 Sandf. 
 Ch. (N. Y.) 258, 268; compare 275, 277. 
 
 BENIGNE FACIENDAE SUNT INTER- 
 pretationes propter simplicitatem laicorum, 
 ut res magis valeat quam pereat; et verba 
 intentione, non e contra, debent Inservlre. 
 
 Constructions should be liberal, on account 
 of the ignorance of the laity, or nonprofes- 
 sional persons, so that the subject-matter 
 may avail rather than perish; and words 
 must be subject to the intention, not the in- 
 tention to the words. Co. Litt. 36a; Broom, 
 Leg. Max. (3d London Ed.) 481, 504; 11 Q. 
 B. 852, 856, 868, 870; 4 H. L. Cas. 556; 1 
 Bulst. 175; Hob. 304. 
 
 BENIGNIOR SENTENTIA, IN VERBIS 
 generalibus seu dubiis, est preferanda. The 
 more favorable construction is to be placed 
 on general or doubtful expressions. 4 Coke, 
 15; Dig. 50. 17. 192. 1; 2 Kent, Comm. 557. 
 
 BENIGNIUS LEGES INTERPRETAN- 
 dae sunt quo voluntas earum conservetur. 
 Laws are to be more favorably interpreted, 
 that their intent may be preserved. Dig. 
 1. 3. 16. 
 
 BEQUEATH. To give personal property 
 by will to another. 13 Barb. (N. Y.) 106. 
 The word may be construed "devise," so 
 as to pass real estate. 36 Me. 216; 119 
 Mass. 525. 
 
 BEQUEST. A gift by will of personal 
 property. It is synonymous with "legacy" 
 («• V.) ' 
 
 BERCARIA. A sheep fold; a tan house or 
 heath house, where barks or rinds of trees 
 are laid to tan. Domesday Book; Co. Litt. 
 56. 
 
 BERCARIUS, or BERCATOR. A shep- 
 herd. 
 
 BEREWICA, BEREWICHA, BEREWICH- 
 us, berewita, or berwita (Law Lat.) In old 
 
 English law. A manor, or rather a part of 
 a manor, separated from the main body; a 
 smaller manor, belonging to a larger one 
 (manerium minus ad majus pertinens) . 
 Spelman. 
 
 A hamlet, or small village, appurtenant to 
 some town or manor {villula, manerii views). 
 Spelman; Blount, voc. "Berwica." A word 
 of frequent occurrence in Domesday Book. 
 Id. According to Lord Coke, it signifies a 
 town. Co. Litt. 116a. 
 
 A corn farm. Spelman. 
 
 BERGHMAYSTER (from Saxon lerg, a 
 mountain). An officer having charge of a 
 mine. A bailiff or chief officer among the 
 Derbyshire miners, who, in addition to his 
 other duties, executes the office of coroner 
 among them. Blount; Cowell. 
 
 BERGHMOTE, or BERGMOTH. In old 
 
 English law. A court for deciding contro- 
 versies among the Derbyshire miners. 
 Blount; Cowell. 
 
 BERNET. In Saxon law. Burning; the 
 crime of house burning, now called "arson." 
 Cowell; Blount. 
 
 BERRA (Law Lat.) In old law. A plain; 
 open heath. Cowell; Spelman. 
 
 BERRY, or BURY (from Saxon heorg, a 
 hill or castle). A villa or seat of habita- 
 tion of a nobleman; a dwelling or mansion 
 house; a sanctuary. 
 
 BERTON. A large farm; the barnyard 
 of a large farm. 
 
 BES (Lat.; pi. besses). In the Roman law. 
 A division of the as, or pound, consisting of 
 eight MJtciae, or duodecimal parts, and amount- 
 ing to two-thirds of the as. 2 Bl. Comm, 462, 
 note (m). 
 
 Two-thirds of an inheritance. Inst. 2. 14. 5. 
 
 Bight per cent, interest. 2 Bl. Comm. 
 ubi supra. 
 
 BESAYLE, BESAYEL, BESAILE, or BE- 
 saiel (Law Fr.) In old English law. A 
 great-grandfather. 1 Bl. Comm. 186. 
 
 A writ (law Lat. Irrev de proavo) which 
 lay where a great-grandfather died seised 
 of lands and tenements in fee simple, and 
 on the day of his death a stranger abated, 
 or entered and kept out the heir. Reg. 
 Orig. 226; Pitzh. Nat. Brev. 221 (D); 3 Bl. 
 Comm. 186. Now abolished with other real 
 actions. 
 
 BEST EVIDENCE. The best evidence of 
 which the nature of the case admits, not 
 the highest or strongest evidence which the 
 nature of the thing to be proved admits of; 
 e. g., a copy of a deed is not the best 
 evidence; the deed itself is better. Gilb. 
 Bv. 15; Starkie, Bv. 437; 2 Campb. 605; 3 
 Campb. 236; 1 Esp. 127; 1 Pet. (U. S.) 591; 
 6 Pet. (U. S.) 352; 7 Pet. (U. S.) 100. The 
 term is confined to cases where the law has 
 divided evidence into primary and second- 
 ary. 33 Mich. 53. The rule requiring the 
 best evidence does not exclude a witness on 
 
BESTIALITY 
 
 (95) 
 
 BIGA 
 
 the ground that another is more credible, 
 but merely excludes such evidence as Is 
 substitutionary in its character, if the origi- 
 nal evidence can be had. 65 Me. 467. 
 
 BESTIALITY. Carnal connection between 
 a human being and a beast. 10 Ind. 356. 
 See "Buggery." 
 
 BET. An agreement that some valuable 
 thing or sum of money, in contributing 
 which all the parties take part, shall become 
 the property of some one or more of them 
 on the happening of some event which is 
 at present uncertain. 81 N. Y. 539. See, 
 also, 7 Port. (Ala.) 465. "If one of the 
 parties may gain, but cannot lose, and the 
 other may lose, but cannot gain, and there 
 must be either a gain by the one, or a loss 
 by the other, according to the happening 
 of the contingency, it is as much a bet or 
 wager as if the parties had shared equally 
 the chances of gain or loss." 15 Grat. (Va.) 
 661. 
 
 The words "bet" and "wager" are synony- 
 mous. 11 Ind. 16. 
 
 BETROTHMENT, or BETROTHAL. A 
 contract between a man and a woman that 
 at a future time they will intermarry. 
 
 BETTER EQUITY. The right which, in 
 a court of equity, a second incumbrancer 
 has who has taken securities against sub- 
 sequent dealings to his prejudice, which a 
 prior incumbrancer neglected to take, al- 
 though he had an opportunity. 1 Chanc. 
 Free. 470, note; 4 Rawle (Pa.) 144. See 3 
 Bouv. Inst, note 2462. 
 
 BETTERMENTS. Improvements made 
 to an estate. It signifies such improve- 
 ments as have been made to the estate 
 which render it better than mere repairs. 
 11 Me. 482; 23 Me. 110; 24 Me. 192; 13 Ohio, 
 308; 10 Yerg. (Tenn.) 477; 13 Vt. 533; 17 
 Vt. 109. The term is also applied to denote 
 the additional value which an estate ac- 
 quires in consequence of some public im- 
 provement, as laying out or widening a 
 street, etc. 
 
 BEWARED (Old English). Expended. 
 Before the Britons and Saxons had intro- 
 duced the general use of money, they trad- 
 ed chiefly by exchange of wares. Wharton. 
 
 BEYOND SEA. Out of the kingdom of 
 England ; out of the state ; out of the United 
 States. 
 
 In England. By St. 3 & 4 Wm. IV. 
 
 c. 27, no island under the English dominion, 
 and lying adjacent to the United Kingdom, 
 is to be regarded as "beyond the seas." 
 
 In the United States. It is commonly 
 
 held to mean outside the state in whose 
 statute it is used (13 N. H. 86; 1 Har. & J. 
 [Md.] 353; 26Ga.l82; 8 Blackf. [Ind.] 515; 23 
 Ala. 486; 14 Pet. LU- S.] 145) ; but it has been 
 held to mean outside the limits of the 
 United States (71 N. C. 176; 24 111. 159; 14 
 Mo. 433; 9 Serg. & R. [Pa.] 291). 
 
 BI-SCOT. In old English law. A fine im- 
 
 posed for not repairing banks, ditches, and 
 causeways. Blount; Whishaw. 
 
 BIAS. A particular influential power 
 which sways the judgment; the inclination 
 or propensity of the mind towards a particu- 
 lar object. "Bias is not synonymous with 
 'prejudice.' A man cannot be prejudiced 
 against another without being biased, but 
 he may be biased without being prejudiced." 
 12 Ga. 444. 
 
 BID. 
 
 (1) An offer to pay a specifled price for 
 an article about to be sold at auction. 
 
 (2) An offer to do work or furnish ma- 
 terials for some public or municipal body 
 at a specified price. 
 
 BIDALE, or BIDALL. An invitation of 
 friends to drink ale at the house of some 
 poor man, who thereby hopes charitable 
 contribution for his relief. Something like 
 this seems to be what we call "house-warm- 
 ing," when persons are invited in this man- 
 ner on their first beginning housekeeping. 
 Jacob. 
 
 BIDDER. One who offers to purchase an 
 article offered fof sale at a public auction 
 (11 111. 254), or to furnish materials or serv- 
 ices at a price submitted. 
 
 BIELBRIEF (Ger.) 
 
 In European Maritime Law. A docu- 
 ment furnished by the builder of a vessel, 
 containing a register of her admeasurement, 
 particularizing the length, breadth, and di- 
 mensions of every part of the ship. It 
 sometimes also contains the terms of agree- 
 ment between the parties for whose ac- 
 count the ship is built, and the shipbuilder. 
 It has been termed in English the "grand 
 bill of sale;" in French, "contrat de con- 
 struction ou de la vente d'un vaisseau," and 
 corresponds in a great degree with the 
 English, French, and American "register" 
 (?. v.), Ijeing an equally essential document 
 to the lawful ownership of vessels. Jac. Sea 
 Laws, 12, 13, and note. 
 
 In the Danish Law. Used to denote 
 
 the contract of bottomry. 
 
 BIENS (Fr. goods). Property of every 
 description, except estates of freehold and 
 inheritance. Sugd. Vend. 495 ; Co. Lltt. 118b; 
 Dane, Abr. 
 
 In French Law. This term Includes 
 
 all kinds of property, real and personal. 
 Bie.ns are divided into biens mevMes, movable 
 property, and Hens immeubles, immovable 
 property. This distinction between mov- 
 able and immovable property is recognized 
 by them, and gives rise, in the civil as well 
 as in the common law, to many important 
 distinctions as to rights and remedies. 
 Story, Confl. Laws, § 13, note 1. 
 
 BIGA, or BIGATA. A cart or chariot 
 drawn with two horses, coupled side by 
 side; but it is said to be properly a cart 
 with two wheels, sometimes drawn by one 
 horse, and in the ancient records It Is used 
 for any cart, wain, or wagon. Jacob. 
 
BIGAMUS 
 
 (%) 
 
 BILL FOR FORECLOSURE 
 
 BIGAMUS. In civil law. One who had 
 been twice married, whether both wives 
 were alive at the same time or not; one 
 who had married a widow. 
 
 Especially used in ecclesiastical matters 
 as a reason for denying benefit of the clergy. 
 Termes de la Ley. 
 
 BIGAMY. 
 
 At Common Law. The willfully con- 
 tracting a second marriage when the con- 
 tracting party knows that the first is still 
 subsisting. 
 
 The state of a man who has two wives, 
 or of a woman who has two husbands, liv- 
 ing at the same time. 
 
 When the man has more than two wives, 
 or the woman more than two husbands, liv- 
 ing at the same time, then the party is said 
 to have committed polygamy; but the name 
 of "bigamy" is more frequently given to 
 this offense in legal proceedings. 1 Russ. 
 Crimes, 187; Clark & Marshall, Crimes, 
 1103. "But as the substance of the of- 
 fense is marrying a second time while hiav- 
 ing a lawful husband or wife living, with- 
 out regard to the number of marriages 
 that niay have taken place, 'bigamy' seems 
 not an inappropriate term. The objection 
 to its use urged by Blackstone (4 Bl. Comm. 
 163) seems to be founded not so much up- 
 on considerations of the etymology of the 
 word, as upon the propriety of distinguish- 
 ing the ecclesiastical offense, termed 'biga- 
 my' in the canon law, and defined below, 
 from the offense known as 'bigamy' in the 
 modern criminal law. The same distinc- 
 tion is carefully made by Lord Coke. 4 
 Inst. 88. But the ecclesiastical offense be- 
 ing now obsolete, this reason ceases to have 
 weight." Abbott. 
 
 In the Canon Law. According to can- 
 onists, bigamy is threefold, viz., tera in- 
 terpretativa, et similitudinaria, real, interpre- 
 tative, and similitudinary. The first consist- 
 ed in marrying two wives successively (vir- 
 gins they may be), or in once marrying a 
 widow; the second consisted, not in a re- 
 peated marriage, but in marrying (e. g., 
 meretricem vel ah alio corruptam) a harlot; 
 the third arose from two marriages, indeed, 
 but the one metaphorical or spiritual, the 
 other carnal. This last was confined to per- 
 sons initiated in sacred orders, or under 
 the vow of continence. Deferriere's Tract. 
 Juris Canon, tit. 21. See, also, Bac. Abr. 
 "Marriage." 
 
 BILAGINES (Lat.) By-laws of towns; 
 municipal laws. 
 
 BILAN. A book in which bankers, mer- 
 chants, and traders write a statement of all 
 they owe and all that is due to them. A 
 balance sheet. 3 Mart. (La.; N. S.) 446. 
 
 The term is used In Louisiana, and is de- 
 rived from the French. 5 Mart. (La.; N. S.) 
 158. 
 
 BILANCIIS DEFERENDIS. In English 
 law. A writ addressed to a corporation for 
 the carrying of weights to such a haven, 
 there to weigh the wool that persons, by 
 
 our ancient laws, were licensed to trans- 
 port. Reg. Orig. 270. 
 
 BILATERAL CONTRACT. A contract in 
 which both the contracting parties are 
 bound to fulfill obligations reciprocally to- 
 wards e§,ch other. Lee. Elm. § 781. See 
 "Contract." 
 
 BILINE. Collateral. 
 
 BILINGUIS. Using two languages. 4. 
 term formerly applied to juries half of one 
 nation and half of another. Plowd. 2. 
 
 BILL (Lat. hillu). A formal written state- 
 ment, account, or declaration. 
 
 The principal legal significations of the 
 term are: 
 
 In Old English Practice. The original 
 
 petition by which an action in the court of 
 king's bench was begun. 3 Bl. Comm. 43. 
 
 In Chancery Practice. A complaint 
 
 in writing, addressed to the chancellor, con- 
 taining the names of the parties to the suit, 
 both complainant and defendant, a state- 
 ment of the facts on which the complainant 
 relies, and the allegations which he makes, 
 with an averment that the acts complained 
 of are contrary to equity, and a prayer for 
 relief and proper process. 
 
 In Legislation. A special act passed 
 
 by the legislature in the exercise of a quasi 
 judicial power. Thus, bills of attainder, 
 bills of pains and penalties, are spoken of. 
 
 The draft of a law submitted to the con- 
 sideration of a legislative body for its adop- 
 tion. 26 Pa. St. 450. After a bill has been 
 adopted, it is properly known as an "act." 
 
 In Mercantile Law. The creditor's 
 
 written statement of his claim, specifying 
 the items. It differs from an account stated 
 in this, that a bill is the creditor's state- 
 ment, and an account stated Is a statement 
 which has been assented to by both parties. 
 
 The term is also soEjietimes used for "bill 
 of exchange," "bill of exceptions," "bill of 
 costs," etc. (g. v.) 
 
 BILL CHAMBER. In Scotch law. A de- 
 partment of the court of session, in which 
 petitions for suspension, interdict, etc., are 
 entertained. It is equivalent to sittings in 
 chambers in the English and American prac- 
 tice. Paterson, Comp. 
 
 BILL FOR A NEW TRIAL. In equity 
 practice. One filed in a court of equity 
 praying for an injunction after a judgment 
 at law when there is any fact which renders 
 it against conscience to execute such judg- 
 ment, and of which the injured party could 
 not avail himself in a court of law, or, if 
 he could, was prevented by fraud or acci- 
 dent, unmixed with any fault or negligence 
 of himself or his agents. Mltf. Eq. PI. 
 (Jeremy Ed.) 131; 2 Story, Eq. Jur. § 887. Of 
 late years, bills of this description are not 
 countenanced. 1 Johns. Ch. (N. Y.) 432; 
 6 Johns. Ch. (N. Y.) 479. 
 
 BILL FOR FORECLOSURE. In equity 
 practice. One which is filed by a mortgagee 
 against the mortgagor, for the purpose of 
 
BILL IMPEACHING, ETC. 
 
 (97) 
 
 BILL OF DEBT 
 
 having tbe estate sold, thereby to obtain 
 the sum mortgaged on the premises, with 
 interest and costs. 1 Madd. Ch. Pr. 528. 
 See "Foreclosure." 
 
 BILL IMPEACHING A DECREE FOR 
 fraud. In equity practice. This must be 
 an original bill, which may be filed without 
 leave of court. 1 Schoales & L. 355; 2 
 Sohoales & L. 576; 1 Ves. Jr. 120; 3 Brown, 
 74; 1 Turn. & R. 178. 
 
 BILL IN NATURE OF A BILL IN RE- 
 view. One which is brought by a person not 
 bound by a decree, praying that the same 
 may be examined and reversed; as where 
 a decree is made against a person who has 
 no interest at all in the matter in dispute, 
 or had not an interest sufficient to render 
 the decree against him binding upon some 
 person claiming after him. 
 
 The term is used in two senses: (1) A 
 bill brought by one not a party to a de- 
 cree, to obtain the reversal thereof. Adam, 
 Eq. 419. (2) A bill to set aside a decree on 
 the ground of fraud. 48 Mich. 375. 
 
 BILL IN NATURE OF A BILL OF RE- 
 vivor. One which is filed when the death 
 of a party, whose interest Is not determined 
 bj;: his death, is attended with such a trans- 
 mission of his interest that the title to it, 
 as well as the person entitled, may be liti- 
 gated in the court of chancery; as, in the 
 case of a devise of real estate, the suit is 
 not permitted to be continued by bill of 
 revivor. In such cases, an original bill, 
 upon which the title may be litigated, must 
 be filed, and this bill will have so far the 
 effect of a bill of revivor that, if the title of 
 the representative by the act of the de- 
 ceased party is established, the same bene- 
 fit may be had of the proceedings upon the 
 former bill as if the suit had been continued, 
 by bill of revivor. Story, Eq. PI. §§ 378- 
 380; 2 Paige (N. Y.) 358; 3 Atk. 217. 
 
 BILL IN NATURE OF A SUPPLEMENT- 
 al bill. One which is filed when the inter- 
 est of the plaintiff or defendant, suing or 
 defending, wholly determines, and the same 
 property becomes vested in another person 
 not claiming under him. The principal dif- 
 ference between this and a supplemental 
 bill seems to be that a supplemental bill 
 is applicable to such cases only where the 
 same parties or the same interests remain 
 before the court; whereas an original hill 
 in the nature of a supplemental bill is prop- 
 erly applicable where new parties, with new 
 interests, arising from events occurring 
 since the institution of the suit, are brought 
 before the court. Story, Eq. PI. § 345. 
 
 BILL OBLIGATORY. A bond absolute 
 for the payment of money. It is called, also, 
 a single bill, and differs from a promissory 
 note only in having a seal. 2 Serg. & R. 
 (Pa.) 115. See Read, PI. 236; West, Symb. 
 
 BILL OF ADVENTURE. A writing sign- 
 ed by a merchant, ship owner, or master to 
 testify that goods shipped on board a cer- 
 
 tain vessel are at the venture of another 
 person, he himself being answerable only 
 for the produce. 
 
 BILL OF ADVOCATION. In Scotch law. 
 A petition in writing, by which a party to a 
 cause applies to the supreme court to call 
 the action out of the inferior court to itself. 
 
 BILL OF APPEAL. An abolished, crimi- 
 nal prosecution. Wharton. See "Battel." 
 
 BILL OF ATTAINDER. A special act of 
 the legislature pronouncing judgment of 
 treason or felony on one who has not been 
 tried in the courts, and passing sentence of 
 death and attainder upon him. If the act 
 inflicts a less punishment than death, it is 
 called a "bill of pains and penalties." 
 
 BILL OF CERTIORARI. A bill praying 
 for a writ of certiorari. See "Certiorari." 
 
 BILL OF CONFORMITY. In equity prac- 
 tice. One filed by an executor or adminis- 
 trator, who finds the affairs of the deceased 
 so much involved that he cannot safely 
 administer the estate except under the di- 
 rection of a court of chancery. This bill is 
 filed against the creditors generally, for the 
 purpose of having all their claims adjusted, 
 and procuring a final decree settling the or- 
 der of payment of the assets. 1 Story, Eq. 
 Jur. 440. 
 
 BILL OF COSTS. A statement of the 
 items which form the total amount of the 
 costs of a suit or action. See "Costs." 
 
 BILL OF CREDIT. 
 
 In Constitutional Law. Paper issued 
 
 by the authority of a state on the faith of 
 the state, and designed to circulate as 
 money. 11 Pet. (U. S.) 257. 
 
 Promissory notes or bills issued by a 
 state government, exclusively, on the credit 
 of the state, and intended to circulate 
 through the community for its ordinary pur- 
 poses as money, redeemable at a future 
 day, and for the payment of which the faith 
 of the state is pledged. 4 Kent, Comm. 408. 
 
 The constitution of the United States pro- 
 vides that no state shall emit bills of 
 credit, or make anything but gold and sil- 
 ver coin a tender in payment of debts. Arti- 
 cle 1, § 10. This prohibition, it seems, does 
 not apply to bills issued by a bank owned by 
 the state, but having a specific capital set 
 apart (11 Pet. [U. S.] 257; 13 How. [U. S.] 
 12; but see 4 Pet. [U. S.] 410), nor does it 
 apply to notes issued by corporations or in- 
 dividuals which are not made legal tender 
 (4 Kent, Comm. 408, and note). 
 
 In Mercantile Law. A letter desiring 
 
 the addressee to give credit to the bearer 
 for goods or money. More commonly called 
 "letter of credit." Comyn, Dig. "Merchant" 
 (P3); 3 Burrows, 1667; 13 Miss. 491; 4 Ark. 
 44; R. M. Charlt. (Ga.) 151. 
 
 BILL OF DEBT. An ancient term, in- 
 cluding promissory notes and bonds for the 
 payment of money. Comyn, Dig. "Merchant" 
 (P2). 
 
BILL OP DISCOVERY 
 
 (98) 
 
 BILL OF INTERPLEADER 
 
 BILL OF DISCOVERY. In. equity prac- 
 tice. One wliich prays for the discovery 
 of facts resting within the knowledge of 
 the person against whom the bill is exhib- 
 ited, or of deeds, "writings, or other things 
 in his custody or power. It does not seek 
 for relief in consequence of the discovery 
 (and this constitutes its characteristic fea- 
 ture), though it may ask for a stay of pro- 
 ceedings till discovery is made (2 Story, 
 Eq. Jur. § 1483), and such relief as does not 
 require a hearing before the court, it is said, 
 may be part of the prayer (2 Daniell, Ch. 
 Pr. 1557; 1 Pom. Eq. Jur. § 191). See "Dis- 
 covery." 
 
 BILL OF ENTRY. A statement required 
 by the revenue laws of the consignor, con- 
 signee, origin, destination, and character of 
 goods entered at the custom house for ex- 
 port or import. 
 
 BILL OF EXCEPTIONS. A written 
 statement of objections to the decision of 
 the court upon a point of law, made by a 
 party to the cause, and properly certified 
 by the judge or court who made the deci- 
 sion. Powell, App.Proc. 211. It contains only 
 the facts on which the adjudication com- 
 plained of is founded. 10 Mo. 660. But 
 where the sufficiency of the evidence is 
 questioned, all the evidence must be set 
 out. 13 Ind. 412. 
 
 BILL OF EXCHANGE. A written order 
 from one person to another, directing the 
 person to whom it is addressed to pay to a 
 third person a certain sum of money there- 
 in named. Byles, Bills, 1. 
 
 An unconditional order in writing address- 
 ed by one person to another, signed by the 
 person giving it, and requiring the person 
 to whom it is addressed to pay on demand, 
 or at a fixed or determinable future time, a 
 sum certain in money to order or to bearer. 
 N. Y. Neg. Inst. Law, § 210. 
 
 A bill of exchange may be negotiable or 
 nonnegotiable. If negotiable, it may be 
 transferred either before or after accept- 
 ance. 
 
 The person making the bill, called . the 
 drawer, is said to draw upon the person to 
 whom it is directed, and undertakes implied- 
 ly to pay the amount with certain costs if 
 he refuse to comply with the command. 
 The drawee is not liable on the bill till after 
 acceptance, and then becomes liable as 
 principal to the extent of the terms of the 
 acceptance; while the drawer, becomes liable 
 to the payee and indorsees conditionally 
 upon the failure of the acceptor to pay. 
 The liabilities between indorsers and in- 
 dorsees are subject to the same rules as 
 those of indorsers and indorsees on promis- 
 sory notes. Regularly, the drawee is the 
 person to become acceptor; but other par- 
 ties may accept, under special circum- 
 stances. 
 
 BILL OF GROSS ADVENTURE. In 
 
 French maritime law. Any written instru- 
 ment which contains a contract of bottomry, 
 respondentia, or any other kind of mari- 
 time loan. There is no corresponding Eng- 
 
 lish term. Hall, Mar. Loans, 182, note. 
 See "Bottomry;" "Gross Adventure;" "Re- 
 spondentia." 
 
 BILL OF HEALTH. 
 
 In Commercial Law. A certificate, 
 
 properly authenticated, that a certain ship 
 or vessel therein named comes from a place 
 where no contagious distempers prevail, and 
 that none of the crew at the time of her de- 
 parture were infected with any such dis- 
 temper. It is generally fo"und on board ships 
 coming from the Levant, or from the coasts 
 of Barbary,. where the plague prevails (1 
 Marsh. Ins. 408), and is necessary when- 
 ever a ship sails from a suspected port, or 
 where it is required at the port of desti- 
 nation (Holt, 167; 1 Bell. Comm. [5th Ed.] 
 553). 
 
 In Scotch Law. An application of a 
 
 person in custody to be discharged on ac- 
 count of ill health. Where the health of a 
 prisoner requires it, he may be indulged, 
 under proper regulations, with such a de- 
 gree of liberty as may be necessary to re- 
 store him. 2 Bell, Comm. (5th Ed.) 549; 
 Paterson, Comp. § 1129. 
 
 BILL OF INDEMNITY. An act of parlia- 
 ment frequently passed in England for the 
 relief of officers who have not properly 
 qualified, as by failure to take the oath of 
 office, etc. Abbott; Wharton. 
 
 BILL OF INDICTMENT. In practice. A 
 written accusation of one or more persons 
 of a crime or misdemeanor, lawfully pre- 
 sented to a grand jury. See "Indictment." 
 
 BILL OF INFORMATION. In equity prac- 
 tice. One which is instituted by the at- 
 torney general or other proper officer in be- 
 half of the state, or of those whose rights 
 are the objects of its care and protection. 
 If the suit immediately concerns the right 
 of the state, the information is generally 
 exhibited without a relator. If it does not 
 immediately concern those rights, it is con- 
 ducted at the instance and under the im- 
 mediate direction of some person whose 
 name is inserted in the information, and" is 
 termed the "relator." In case a relator is 
 concerned, the officers of the state are not 
 further concerned than as they are instruct- 
 ed and advised by those whose rights the 
 state is called upon to protect and estab- 
 lish. 3 Bl. Comm. 261; Story, Eq. PI. 5. 
 
 BILL OF INTERPLEADER. One in which 
 the person exhibiting it claims no right in 
 opposition to the rights claimed by the per- 
 son against whom the bill is exhibited, but 
 prays the decree of the court touching the 
 rights of those persons, for the safety of 
 the person exhibiting the bill. 24 Barb. (N. 
 Y.) 154; 19 Ga. 513. 
 
 A bill exhibited by one who, not know- 
 ing to whom he ought of right to render 
 a debt or duty, fears he may be hurt by 
 some of the claimants, and therefore prays 
 he may interplead, so that the court may 
 judge to whom the thing belongs, and he 
 be thereby safe on the payment. 2 Paige, 
 
BILL OF LADING 
 
 (99) 
 
 BILL OF SALE 
 
 Ch. (N. Y.) 199, 570; 6 Johns. Ch. (N. Y.) 
 445; 3 Jones (N. C.) 83. 
 
 BILL OF LADING. The written evidence 
 of a contract for the carriage and delivery 
 of goods sent by sea for a certain freight. 
 Loughborough, J., 1 H. Bl. 359. 
 
 "A formal acknowledgment of the re- 
 ceipt of goods, and an engagement to de- 
 liver them to the consignee." 1 Rawle (Pa.) 
 203. 
 
 "A written acknowledgment, signed by 
 the master, that he has received the goods 
 therein described from the shipper, to be 
 transported on the terms therein expressed 
 to the prescribed destination, and there to 
 be delivered to the consignee or parties 
 therein designated." 14 Wall. (U. S.) 579. 
 
 The term is commonly applied, as well, 
 to similar acknowledgments by carriers by 
 land. 
 
 A bill of lading partakes of the nature of 
 both a receipt and a contract. 30 Ala. 608; 
 13 Ind. 519. So much of it as is a mere 
 receipt for goods may be contradicted or 
 varied by parol (34 Me. 554; 74 Mass. 281), 
 but so much of it as is a contract is gov- 
 erned by the rules applying to other con- 
 tracts in writing (26 Ala. 487; 4 Ohio, 334; 
 61 Mo. App. 204). 
 
 BILL OF MIDDLESEX. An old form of 
 process similar to a capias, issued out of 
 the court of kings bench in personal ac- 
 tions, directed to the sheriff of the county 
 of Middlesex (hence the name), and com- 
 manding him to take the defendant and 
 have him before the king at Westminster 
 on a day named, to answer the plaintiff's 
 complaint. 
 
 Once, when the court sat at Oxford, it 
 was termed a "Bill of Oxfordshire." 3 
 Steph. Comm. 404, note (1). It was abol- 
 ished by St. 2 Wm. IV. e. 39. 
 
 BILL OF MORTALITY. A written state- 
 ment or account of the number of deaths 
 which have occurreii in a certain district 
 during a given time, usually spoken of in 
 the plural. In some places, as in London, 
 hirths, as well as deaths, are included. 
 
 BILL OF OXFORDSHIRE. See "Bill of 
 Middlesex." 
 
 BILL OF PAINS AND PENALTIES. A 
 
 special act of the legislature which inflicts 
 a punishment less than death upon persons 
 supposed to be guilty of high offenses, such 
 as treason and felony, without any con- 
 viction in the ordinary course of judicial 
 proceedings. 2 Wooddeson, Lect. 625. It 
 differs from a bill of attainder in this, that 
 the punishment inflicted by the latter is 
 death. It has been thought by some- that 
 the clause in the constitution prohibiting 
 bills of attainder includes bills of pains and 
 penalties. 6 Cranch (U. S.) 138; Story, 
 Const. § 1338. 
 
 BILL OF PARCELS. An account contain- 
 ing in detail the names of the items which 
 compose a parcel or package of goods. It 
 is usually transmitted with the goods to the 
 
 purchaser, in order that, if any mistake 
 have been made, it may be corrected. 
 
 BILL OF PARTICULARS. In practice. A 
 detailed informal statement of a plaintiff's 
 cause of action, or of the defendant's set- 
 off, furnished by one party to the other in 
 compliance with a statute, rule or special 
 order of court. It may be required in ac- 
 tions of tort, as well as on contract. 
 
 BILL OF PEACE. One brought to re- 
 strain repeated attempts to litigate the 
 same right. Bispham, Eq. § 415; Daniell, 
 Ch. Pr. 1532. 
 
 BILL OF PRIVILEGE. In English law. 
 The form of proceeding against an attorney 
 of the court, who is not liable to arrest. 
 Brooke, Abr. "Bille;" 12 Mod. 163; 3 Bl. 
 Comm. 289. 
 
 BILL OF PROOF. In English practice. 
 The claim made by a third person to the 
 subject-matter in dispute between the par- 
 ties to a suit in the court of the mayor of 
 London. 2 Chit. Prac. 492; 1 Marsh. 233. 
 
 BILL OF REVIEW. One which is brought 
 to have a decree in equity of the court re- 
 viewed, altered, or reversed. The object of 
 the bill is to reverse the decree as far as 
 it is erroneous, and to retry the cause. 69 
 Ala. 65. 
 
 BILL OF REVIVOR. A bill in equity 
 brought to continue a suit which has abated 
 before its final consummation, as, for ex- 
 ample, by death, or marriage of a female 
 plaintiff. Story, Eq. PI. § 20. 
 
 BILL OF REVIVOR AND SUPPLEMENT. 
 
 In equity practice. One which is a com- 
 pound of a supplemental bill and bill of re- 
 vivor, and not only continues the suit, 
 which has abated by the death of the plain- 
 tiff, or the like, but supplies any defects in 
 the original bill arising from subsequent 
 events, so as to entitle the party to relief 
 on the whole merits of his case. 5 Johns. 
 Ch. (N. Y.) 334; Mitf. Eq. PI. 32, 74. 
 
 BILL OF RIGHTS. In constitutional law. 
 A formal and public declaration or asser- 
 tion, in writing, of popular rights and liber- 
 ties, usually expressed in the form of a stat- 
 ute, or promulgated on occasions of revolu- 
 tion, or the establishment of new forms of 
 government, or new constitutions. The Eng- 
 lish statute of 1 Wm. & Mary, st. 2, c. 2, is de- 
 nominated the "Bill of Rights." 1 Bl. Comm. 
 128. Several of the United States have in- 
 corporated formal bills of rights into their 
 constitutions. See 2 Kent, Comm. 1-11. 
 
 BILL OF SALE. A written agreement, 
 often under seal, by which one person trans- 
 fers his right to or interest in goods and 
 personal chattels to another, but a seal is 
 not essential. 14 Wall. (U. S.) 244. It is in 
 frequent use in the transfer of personal 
 property, especially that of which imme- 
 diate possession is not or cannot be given. 
 
 In England, a bill of sale of a ship at 
 sea or out of the country is called a "grand 
 
BILL OF SIGHT 
 
 (100) 
 
 BILL TO TAKE, ETC. 
 
 bill of sale," but no distinction is recog- 
 nized in this country between grand, and or- 
 dinary bills of sale, i Mass. 661. The ef- 
 fect of a bill of sale is to transfer the prop- 
 erty in the thing sold. 
 
 BILL OF SIGHT. A written description 
 of goods, supposed to be inaccurate, but 
 made as nearly exact as possible, furnished 
 by an importer or his agent to the proper 
 officer of the customs, to procure a landing 
 and inspection of the goods. It is allowed 
 by an English statute where the merchant 
 is ignorant of the real quantity and quality 
 of goods consigned to him, so as to be un- 
 able to make a proper entry of them. The 
 entry must be perfected within three days 
 after landing the goods. St. 3 & 4 Wm. IV. 
 c. 52, § 24. 
 
 BILL OF STORE. In English law. A 
 kind of license granted at the custom house 
 to merchants to carry such stores and pro- 
 visions as are necessary for their voyage, 
 custom free. Jacob. 
 
 BILL OF SUFFERANCE. In English law. 
 A license granted to a merchant, permit- 
 ting him to trade from one English port to 
 another without paying customs. 
 
 BILL PAYABLE. In mercantile law. A 
 bill of exchange accepted, or a promissory 
 note made, by a merchant, whereby he has 
 engaged to pay money. It is so called as 
 being payable by him. An account is usu- 
 ally kept of such bills in a book with that 
 title, and also in the ledger. See Pars. 
 Notes & Bills. 
 
 BILL PENAL. In contracts. A written 
 obligation, by which a debtor acknowledges 
 himself indebted in a certain sum, and 
 binds himself for the payment thereof in a 
 larger sum. 
 
 Bonds with conditions have superseded 
 such bills in modern practice. Steph. PI. 
 265, note. They are sometimes called "bills 
 obligatory," and are properly so called, but 
 every bill obligatory is not a bill penal. 
 Comyn, Dig. "Obligations" (D) ; Cro. Car. 
 515. See 2 Vent. 106, 198. 
 
 BILL QUIA TIMET. In equity practice. 
 A remedy by bill in equity to protect rights 
 against possible future injuries or impair- 
 ment. One which is filed when a person is en- 
 titled to property of a personal nature after 
 another's death, and has reason to appre- 
 hend it may be destroyed by the present 
 possessor; or when he is apprehensive of 
 being subjected to a future inconvenience, 
 probable or even possible, to happen or be 
 occasioned by the neglect, inadvertence, or 
 culpability of another. 
 
 Upon a proper case being made out, the 
 court will, in one case, secure the property 
 for the use of the party (which is the object 
 of the bill), by compelling the person in pos- 
 session of it to give a proper security 
 against any subsequent disposition or will- 
 ful destruction, and, in the other case, they 
 will quiet the party's apprehension of future 
 inconvenience by removing the causes which 
 
 may lead to it. 1 Madd. Ch. Pr. 218; Blake, 
 Ch. Pr. 37, 47; 2 Story, Eq. Jur. §§ 825, 851. 
 See 9 Grat. (Va.) 398; 11 Ga. 570; 8 Tex. 
 337; 2 Md. Ch. Dec. 157, 442; 4 Bdw. Ch. 
 (N. Y.) 228; Bouv. Inst. 
 
 BILL RECEIVABLE. In mercantile law. 
 A promissory note, bill of exchange, or oth- 
 er written security for money payable at 
 a future day, which a merchant holds. So 
 called because the amounts for which they 
 are given are receivable by the merchant. 
 They are entered in a book so called, and 
 are charged to an account in the ledger un- 
 der the same title, to which account the 
 cash, when received, is credited. See Pars. 
 Notes & Bills. 
 
 BILL RENDERED. See "Account." 
 
 BILL, SINGLE. In contracts. A written 
 unconditional promise by one or more per- 
 sons to pay to another person or other per- 
 sons, therein named, a sum of money at a 
 time therein specified. It is usually under 
 seal, and may then be called a "bill obliga- 
 tory." 2 Serg. & R. (Pa.) 115. It has no 
 condition attached, and is not given in a 
 penal sum. Comyn, Dig. "Obligation" (C). 
 
 BILL TO CARRY A DECREE INTO Ex- 
 ecution. In equity practice. One which is 
 filed when, from the neglect of parties, or 
 some other cause, it may become impossible 
 to carry a decree into execution without 
 the further decree of the court. Hinde, Ch. 
 Pr. 68. 
 
 BILL TO MARSHAL ASSETS. See "Mar-' 
 shaling Assets." 
 
 BILL TO MARSHAL SECURITIES. See 
 
 "Marshaling Securities." 
 
 BILL TO PERPETUATE TESTIMONY. 
 
 In equity practice. One which is brought 
 to secure the testimony of witnesses with 
 reference to some matter which is not in 
 litigation, but is liable to become so. It dif- 
 fers from a bill to take testimony de .bene 
 esse, inasmuch as the latter is sustainable 
 only when there is a suit already depend- 
 ing. It is deniurrable if it contain a prayer 
 for relief. 1 Dickens, 98; 2 P. Wms. 162; 2 
 Ves. Jr. 497; 2 Madd. Ch. 37. And see 1 
 Schoales & L. 316. 
 
 BILL TO SUSPEND A DECREE. Inequi- 
 ty practice. One brought to avoid or sus- 
 pend a decree under special circumstances. 
 See 1 Ch. Cas. 3, 61; 2 Ch. Cas. 8; Mitf. Bq. 
 PI. 85, 86. 
 
 BILL TO TAKE TESTIMONY DE BENE 
 
 esse. In equity practice. One which is 
 brought to take the testimony of witnesses 
 to a fact material to the prosecution of a 
 suit at law which is actually commenced, 
 where there is good cause to fear that the 
 testimony may otherwise be lost before the 
 time of trial. See 1 Sim. & S. 83; 2 Story, 
 Bq. Jur. § 1813, note. 
 
 It lies, in general, where witnesses are 
 aged or infirm (Coop. Eq. PI. 57; Ambl. 65; 
 
BILLA CASSETUR 
 
 (101) 
 
 BLACK ACT 
 
 13 Ves. 56, 261), propose to leave the coun- 
 try (2 Dickens, 454; Story, Bq. PI. § 308), 
 or there is but a single witness to a fact 
 (1 P. Wms. 97; 2 Dickens, 648). 
 
 BILLA CASSETUR (Lat. that the bill 
 be quashed or made void). A plea in abate- 
 ment concluded, when the pleadings were 
 in Latin, quod hilla cassetur, that the bill be 
 quashed. 3 Bl. Comm. 303; Graham, Prac. 
 611. 
 
 BILLA EXCAMBll (or ESCAMBII). A 
 bill of exchange. 
 
 BILLA EXONERATIONIS. A bill of lad- 
 ing. 
 
 BILLA VERA (Lat. a true bill). The 
 form of words indorsed on a bill of indict- 
 ment, when proceedings were conducted in 
 Latin, to Indicate the opinion of the grand 
 jury that the person therein accused ought 
 to be tried. 
 
 BILLET DE CHANGE. In French law. A 
 contract to furnish a bill of exchange; a 
 contract to pay the value of a bill of ex- 
 change already furnished. Guyot, Rep.TJniv. 
 
 Where a person intends to furnish a bill 
 of exchange {lettre de change), and is not 
 quite prepared to do so, he gives a hillet de 
 change, which is a contract to furnish a 
 lettre de change at a future time. Guyot, Rep. 
 Univ.; Story, Bills, § 2. 
 
 BILLETA (Law Lat.) In old English law. 
 A bill or petition exhibited in parliament. 
 Cowell. 
 
 BILLETING SOLDIERS. Quartering them 
 in the houses of citizens. 
 
 BIND OUT. To engage as an apprentice. 
 
 BIND OVER. The order of a magistrate 
 in requiring one to give bail to appear for 
 hearing in a higher court, or to keep the 
 peace. 
 
 BINDING OUT. A term applied to the 
 contract of apprenticeship. 
 
 BINDING OVER. The act by which a 
 magistrate or court hold to bail a party ac- 
 cused of a crime or misdemeanor. The 
 binding over may be to appear at a court 
 having Jurisdiction of the offense charged, 
 to answer, or to be of good behavior, or to 
 keep the peace. 
 
 BIPARTITE. Of two parts. This term is 
 used in conveyancing; as, this indenture bi- 
 partite, between A., of the one part, and B., 
 of the other part. 
 
 BIRRETUM,or BIRRETUS. A cap or coif 
 used formerly in England by judges and 
 sergeants at law. Spelman; Cunningham. 
 
 BIRTH. The act of being wholly brought 
 into the world. 
 
 The conditions of live birth are not sat- 
 isfied when a part only of the body is born. 
 The whole body must be brought into the 
 world, and detached from that of the moth- 
 er, and after this event the child must be 
 
 alive. 5 Car. & P. 329; 7 Car. & P. 814. 
 The circulating system must also be changed, 
 and the child must have an independent cir- 
 culation. 5 Car. & P. 539; 9 Car. & P. 154. 
 But it is not necessary that there should 
 have been a separation of the umbilical 
 cord. That may still connect the child with 
 its mother, and yet the killing of it will 
 constitute murder. 7 Car. & P. 814; 9 Car. 
 & P. 25. See 1 Beck, Med. Jur. 478; 1 Chit. 
 Med. Jur. 438. 
 
 BIS. (Lat.) Twice. 
 
 BIS DAT QUI CITO DAT. He gives twice 
 who gives quickly. 
 
 BIS IDEM EXIGI BONA FIDES NON PA- 
 tltur, et in satisfactionlbus, non permittltur 
 amplius fieri quam semel factum est. Good 
 faith does not suffer the same thing to be 
 exacted twice, and, in making satisfaction, 
 it is not permitted that more should be done 
 after satisfaction is once made. 9 Coke, 53 ; 
 Dig. 50. 17. 57. 
 
 BISANTIUM, BESANTINE, or BEZANT. 
 
 An ancient coin, first issued at Constanti- 
 nople. It was of two sorts, — gold, equiva- 
 lent to a ducat, valued at 9s. 6d., and silver, 
 computed at 2s. They were both current in 
 England. Wharton. 
 
 BISHOP. An ecclesiastical officer, who is 
 the chief of the clergy of his diocese, and 
 is the archbishop's assistant. No such offi- 
 cer is recognized by law in the United 
 States. 
 
 BISHOPRIC. In ecclesiastical law. The 
 extent of country over which a bishop has 
 jurisdiction; a see; a diocese. 
 
 BISHOP'S COURT. In English law. An 
 ecclesiastical court held in the cathedral of 
 each diocese, the judge of which is the bish- 
 op's chancellor. 
 
 BISSEXTILE. The day which is added 
 every fourth year to the month of February, 
 in order to make the year agree with the 
 course of the sun. 
 
 It was called "bissextile" because in the 
 Roman calendar it was fixed on the sixth 
 day before the calends of March (which 
 answers to the twenty-fourth day of Feb- 
 ruary), and this day was counted twice. 
 The first was called iissextus prior, and the 
 other tissextus posterior, but the latter was 
 properly called "bissextile" or "intercalary" 
 day. 
 
 BLACK ACRE and WHITE ACRE. Terms 
 used by the old writers to distinguish one 
 parcel of land from another, to avoid am- 
 biguity, as well as the inconvenience of a 
 full description. 
 
 They are mere names of convenience, 
 adoped, as "A." and "B." are, to distinguish 
 persons or things under similar circum- 
 stances. 
 
 BLACK ACT. In English law. The act 
 of parliament 9 Geo. II. c. 22. This act 
 was passed for the punishment of certain 
 marauders, who committed great outrages 
 
BLACK ACTS 
 
 (102) 
 
 BLANKET POLICY 
 
 disguised and with faces blacltened. It was 
 repealed by 7 & 8 Geo. IV. c. 11. See 4 Bl. 
 Comm. 245. 
 
 BLACK ACTS. Old Scotch statutes passed 
 in the reigns of the Stuarts, and down to 
 the year 1586 or 1587. So called because 
 printed in black letter. Bell, Diet.; Whar- 
 ton. 
 
 BLACK BOOK OF HEREFORD. In Eng- 
 lish law. An old record frequently referred 
 to by Cowell and other early writers. 
 
 BLACK BOOK OF THE ADMIRALTY. 
 
 An ancient book compiled in the reign of 
 Edward III. It has always been deemed of 
 the highest authority in matters concerning 
 the admiralty. It contains the laws of Oler- 
 on, at large, a view of the crimes and of- 
 fenses cognizable in the admiralty, ordi- 
 nances and commentaries on matters of 
 prize and maritime torts, injuries, and con- 
 tracts. 2 Gall. (U. S.) 404. It is said by 
 Selden to be not more ancient than the reign 
 of Henry VI. Selden, de Laud. Leg. Ang. c. 
 32. By other writers it is said to have been 
 composed earlier. 
 
 BLACK BOOK OF THE EXCHEQUER. 
 
 The name of a book kept in the English 
 exchequer, containing a collection of trea- 
 ties, conventions, charters, etc. 
 
 BLACK CAP. It is a vulgar error that 
 the headdress worn by the judge in pro- 
 nouncing the sentence of death is assumed 
 as an emblem of the sentence. It is part 
 of the judicial full dress, and is worn by 
 the judges on occasions of especial state. 
 Wharton. 
 
 BLACK GAME. Heath fowl, in contra- 
 distinction to red game, as grouse. 
 
 BLACK MAIL. Rents reserved, payable 
 in work, grain, and the like. Such rents 
 were called "black mail" (reditus nigri), in 
 distinction from white rents (UancJie firmes), 
 which were rents paid in silver. 
 
 A yearly payment made for security and 
 protection to those bands of marauders who 
 infested the borders of England and Scot- 
 land about the middle of the sixteenth cen- 
 tury, and laid the inhabitants under contri- 
 bution. Hume, Hist. Eng. vol. 1, p. 473; Id. 
 vol. 2, App. No. 8; Cowell. 
 
 In common usage the term signifies the 
 obtaining of money by a demand accompa- 
 nied by threats of prosecution, exposure or 
 injury in case of nonpayment. The corrupt 
 taking under color of office Is "extortion," 
 (?• V.) 
 
 BLACK RENTS. Rents reserved in work, 
 grain, or baser money than silver. Whi- 
 shaw. 
 
 BLACK ROD, GENTLEMAN USHER OF. 
 
 A chief officer of the king, deriving his 
 name from the black rod of office, on the 
 top of which reposes a golden lion, which 
 he carries. During the session of parlia- 
 ment he attends on the peers, and to his 
 custody all peers impeached for crime or 
 contempt are first committed. 
 
 BLACK WARD. A subvassal, who held 
 ward of the king's vassal. 
 
 BLADA. Growing crops of grain. Spel- 
 man. Any annual crop. Cowell. Used of 
 crops, either growing or gathered. Reg. 
 Orig. 94b; Coke, 2d Inst. 81. 
 
 BLADARIUS. In old English law. A 
 corn monger; meal man or corn chandler; a 
 bladier, or engrosser of corn or grain. 
 Blount; 2 Inst. 81. 
 
 BLANC SEIGN. Carte Blanche fq. v.) See 
 6 Mart. (La.) 718. 
 
 BLANCH HOLDING. In Scotch law. A 
 tenure by which land is held. The duty is 
 generally a trifling one, as a peppercorn. It 
 may happen, however, that the duty is of 
 greater value, and then the distinction re- 
 ceived in practice is founded on the nature 
 of the duty. Stair, Inst. sec. iii. lib. 3, § 
 33. See Paterson, Comp. 15; 2 Sharswood, 
 Bl. Comm. 42. 
 
 BLANCHE FIRM E. A rent reserved, pay- 
 able in silver. 
 
 BLANCUS (Law Lat.) In old law and 
 practice. White, as paper or parchment is 
 when there is no writing or other mark 
 upon it; otherwise called albus. See "Al- 
 bum Breve." Hence the modern term 
 "blank." 
 
 Plain or smooth, as silver money that 
 has no impression, or from which the im- 
 pression has been worn. 
 
 BLANK. A space left in writing, to he 
 filled up with one or more words to com- 
 plete sense. 
 
 A skeleton document, in which the formal 
 words are printed, and blanks left for the 
 insertion of words necessary to adapt the 
 same to the particular case. 
 
 BLANK ACCEPTANCE. An acceptance 
 written on the paper before the bill is made, 
 and delivered by the acceptor. In England 
 it will charge the acceptor to the extent 
 warranted by the stamp. 
 
 BLANK BAR. See "Common Bar." 
 
 BLANK BONDS. Scotch securities, in 
 which the creditor's name was left blank, 
 and which passed by mere delivery, ,the 
 bearer being at liberty to put in his name, 
 and sue for payment. Declared void by 
 Act 1696, c. 25. 
 
 BLANK INDORSEMENT. An indorse- 
 ment which does not mention the name of 
 the person in whose favor it is made. Such 
 an indorsement is generally effected by 
 writing the indorser's name merely on the 
 back of the bill. Chit. Bills, 170. 
 
 BLANKET POLICY. A flre insurance pol- 
 icy not on particular goods, but on what- 
 ever there may be at a certain time, of a 
 varying quantity, as on a stock of goods 
 subject to sale and replenishing. See 93 U. 
 S. 541. 
 
BLANKS 
 
 (103) 
 
 BOARD OF SUPERVISORS 
 
 BLANKS. A kind of white money (value 
 8d.) coined by Henry V. in those parts of 
 France which were then subject to Eng- 
 land; forbidden to be current in that realm 
 by 2 Hen. VI. c. 9. Wharton. 
 
 BLASARIUS. An incendiary. Blount. 
 
 BLASPHEMY. In criminal law. To at- 
 tribute to God that which is contrary to his 
 nature, and does not belong to him, and to 
 deny what does. A false reflection uttered 
 with a malicious design of reviling God. 
 Emlyn's Pref. to 8 St. Tr. 
 
 To willfully revile the Deity or sacred 
 things. 
 
 Malicious reproach of God, his name, at- 
 tributes, or religion. 2 Bish. Grim. Law, § 76. 
 
 In general, blasphemy may be described 
 as consisting in speaking evil of the Deity 
 with an impious purpose to derogate from 
 the divine majesty, and to alienate the 
 minds of others from the love and rever- 
 ence of God. It is purposely using words 
 concerning God calculated and designed to 
 impair and destroy the reverence, respect, 
 and confidence due to him as the intelligent 
 creator, governor, and judge of the world. 
 It embraces the idea of detraction, when 
 used towards the Supreme Being; as "cal- 
 umny" usually carries the same idea when 
 applied to an individual. It is a willful and 
 malicious attempt to lessen men's reverence 
 of God by denying his existence, or his at- 
 tributes as an intelligent creator, governor, 
 and judge of men, and to prevent their hav- 
 ing confidence in him as such. 20 Pick. 
 (Mass.) 211, 212, per Shaw, C. J. 
 
 BLENCH, or BLENCH HOLDING. See 
 "Blanch Holding." 
 
 BLENDED FUND. In England, where a 
 testator directs his real and personal estate 
 to be sold, and disposes of the proceeds as 
 forming one aggregate, this is called a 
 "blended fund." The expression is chiefly 
 used in cases where part of the testator's 
 disposition fails, by lapse or otherwise, so 
 that it becomes a question whether so much 
 of the undisposed-of portion as consists of 
 ■ or arises from land goes to the testator's 
 heir at law or next of kin. 1 Brown, 503; 1 
 "White & T. Lead. Gas. 783; 1 Mylne & K. 
 665. 
 
 BLINKS. In old English law. Boughs 
 broken down from trees and thrown in a 
 way where deer are likely to pass. Jacob. 
 
 BLOCKADE. Blockade is where a bel- 
 ligerent power maintains such a naval force 
 near the shore or ports of the other belliger- 
 ent as to prevent access to them, or, as it is 
 sometimes put, the vessels must be so dis- 
 posed that there is an evident danger in 
 entering the port, or approaching the shore, 
 notwithstanding that the blockading squad- 
 ron may be accidentally absent for a time, 
 e. g., from being blown off by the wind. Un- 
 der the Declaration of Paris (g. r.), a block- 
 ade is not effective unless maintained by an 
 adequate force. 
 A blockade de facto is where the blockade 
 
 has not been notified (as is usually done) by 
 the belligerent to neutral governments, so 
 that every approaching vessel has to be 
 warned off by the squadron. Vessels at- 
 tempting to pass a blockade are liable to 
 confiscation. 
 
 It is not necessary that the place should 
 be invested by land as well as by sea; but 
 a blockade by sea does not impair the right 
 of neutrals to carry on a trade by land. 1 
 Kent, Comm. 147. 
 
 BLOOD. Relationship; stock; family. 1 
 Rop. Leg. 103; 1 Belt, Supp. Ves. 365. Kin- 
 dred. Bac. Max. reg. 18. 
 
 Brothers and sisters are said to be of 
 the whole blood if they have the same fa- 
 ther and mother, and of the half-blood if 
 they have only one parent in common. 5 
 Whart. (Pa.) 477. 
 
 BLOOD MONEY. Money paid to the rel- 
 atives of one killed by another. 
 
 Money paid as a reward for the convic- 
 tion of one charged with a capital offense. 
 
 BLOODWIT. An amercement for blood- 
 shed. Cowell. The privilege of taking such 
 amercements. Skene de Verb. Sign. A priv- 
 ilege or exemption from paying a fine or 
 amercement assessed for bloodshed. Cowell; 
 Kennett, Par. Ant.; Termes de la Ley. 
 
 BLOODY HAND. In forest law. The hav- 
 ing the hands or other parts bloody, which, 
 in a person caught trespassing in the forest 
 against venison, was one of the four kinds 
 of circumstantial evidence of his having 
 killed deer, although he was not found in 
 the act of chasing or hunting. Manw. For. 
 Law; Cowell. See "Backbear." Corre- 
 sponds to the Scotch "Red Hand." Blount. 
 
 BLUE LAWS. A name applied to certain 
 laws of extreme rigor, supposed to have 
 been anciently in force in Connecticut. Rig- 
 orous puritanical laws, generally. 
 
 BOARD. The governing body of ofiicers 
 of a corporation or municipality. The mem- 
 bers are usually called directors, trustees, 
 aldermen, or supervisors. 
 
 Also, the body or commission invested 
 with control or supervision of particular 
 functions and matters of government, as 
 public health, charities, or improvements. 
 
 BOARD OF HEALTH. An executive or 
 administrative body organized as part of the 
 government or of its local divisions, like 
 cities, to regulate and supervise matters af- 
 fecting the public health or sanitation. 
 
 BOARD OF SUPERVISORS. A county 
 board, under a system existing in some of 
 the northern states, to whom the fiscal af- 
 fairs of the county are intrusted, composed 
 of delegates representing the several or- 
 ganized towns or townships of the county. 
 This system originated in the state of New 
 York, and has been adopted in Michigan, 
 Illinois, Wisconsin, and Iowa. The board. 
 
BOARD OF TRADE 
 
 (104) 
 
 BONA ET CATALLA 
 
 when convened, forms a deliberative body, 
 usually acting under parliamentary rules. 
 
 BOARD OF TRADE. 
 
 Commerce." 
 
 See "Chamber of 
 
 BOARD OF WORKS. The name of a 
 board of oificers appointed for the better lo- 
 cal management of the English metropolis. 
 They have the care and management of all 
 grounds and gardens dedicated to the use 
 of the inhabitants in the metropolis; also 
 the superintendence of the drainage; also 
 the regulation of the street traffic, and, gen- 
 erally, of the buildings of the metropolis. 
 Brown. 
 
 BOARDER. One who, by a special con- 
 tract, obtains food, with or without lodging, 
 in the house of another. To be distin- 
 guished from a guest (g. v.) Story, Bailm. 
 § 477; 26Vt.343; 26 Ala. (N.S.) 371; 7 Cush. 
 (Mass.) 417. 
 
 BOARDING HOUSE. A quasi public house 
 where boarders are habitually kept, and 
 which is held out and known as a place of 
 entertainment of that kind. 1 Lans. (N. Y.) 
 484, 486; 3 Abb. Pr. (N. S.; N. Y.) 26. The 
 characteristic of a boarding house is that 
 accommodation is furnished for a definite 
 period. 24 How. Pr. (N. Y.) 62. 
 
 BOG (Saxon). A writing; a book. Used 
 of the land iocs, or evidences of title among 
 the Saxons, corresponding to modern deeds. 
 These Imcs were destroyed by William the 
 Conqueror. 1 Spence, Bq. Jur. 22; 1 Washb. 
 Real Prop. 17, 21. 
 
 BOC HORDE. A place where books, evi- 
 dences, or writings are kept. Cowell. These 
 were generally in monasteries. 1 Spence, Eq. 
 Jur. 22. 
 
 BOC LAND. Allodial lands held by writ- 
 ten evidence of title. Such lands might be 
 granted upon such terms as the owner 
 should see fit, by greater or less estate, to 
 take effect presently, or at a future time, 
 or on the happening of any event. In this 
 respect they differed essentially from feuds. 
 1 Washb. Real Prop. 17; 4 Kent, Comm. 
 441. 
 
 BOCERAS (Saxon). A scribe, notary, or 
 chancellor among the Saxons. Crabb, Hist. 
 Eng. Law, 28; Barr. Obs. St. 404, note (1). 
 
 BODMERIE, BODEMERIE, or BODDE- 
 merey (Belg. and Ger.) Bottomry (g. v.) 
 Locc. de Jur. Mar. lib. 2, c. 6, § 1. 
 
 BODY. A person. Used of a natural body, 
 or of an artificial one created by law, as a 
 corporation. 
 
 The main part or frame of anything, as 
 distinguished from its subordinate parts. 22 
 N. Y. 147; 5 Mason (U. S.) 300. 
 
 A collection of individuals united for a 
 common purpose. See 23 Wend. (N. Y.) 
 141. 
 
 BODY CORPORATE. A corporation. This 
 is an early and undoubtedly correct term 
 
 to apply to a corporation. Co. Lift. 250a; 23 
 Wend. (N. Y.) 141; 81 Pa. St. 389. 
 
 BODY OF A COUNTY. A county at large, 
 as distinguished from any particular place 
 within it. See 25 Wis. 364. 
 
 BODY OF AN INSTRUMENT. The main 
 and operative part; the substantive provi- 
 sions, as distinguished from the recitals, 
 title, jurat, etc. Wharton. 
 
 BODY POLITIC (or POLITIQUE). The 
 old term for a corporation. Statute of Uses, § 
 1; Co. Litt. 95a, 250a. 
 
 Applied generally to the state or nation. 
 
 BOILARY. Water rising from a salt well 
 belonging to a person who is not the owner 
 of the soil. 
 
 BOIS, BOYS, or BOYES (Law Fr.; Lat. 
 ioscus)t Wood; liaut hois, high timber; sub 
 Tjois, underwood. Cowell. 
 
 BOLHAGIUM, or BOLDAGIUM. A little 
 house or cottage. Blount. 
 
 BOLTING. In English practice. A term 
 formerly used in the English inns of court, 
 but more particularly at Gray's Inn, signify- 
 ing the private arguing of cases, as distin- 
 guished from mooting, which was a more 
 formal and public mode of argument. Cow- 
 ell; Tomlin; Holthouse. 
 
 The deserting by one or more persons 
 from the political party to which they be- 
 long, or the permanent withdrawal of a por- 
 tion of the delegates in a political conven- 
 tion. 
 
 BON (Fr.) 
 
 In Old French Law. A royal order or 
 
 check on the treasury, invented by Francis 
 I. Bon pour mille Uvres, good for a thous- 
 and livres. Steph. Lect. 387. 
 
 In Modern Law. The name of a 
 
 clause (6oji pour , good for so much) 
 
 added to a cedule or promise, where it is 
 not in the handwriting of the signer, con- 
 taining the amount of the sum which he 
 obliges himself to pay. Poth. Obi. pt. 4, c. 
 1, art. 2, § 1. 
 
 BONA (Lat. honus). Goods; personal prop- 
 erty; chattels, real or personal; real prop- 
 erty. 
 
 Bona et oatalla (goods and chattels) in- 
 cludes all kinds of property which a man 
 may possess. In the Roman law it signi- 
 fied every kind of property, real, personal, 
 and mixed; but chiefly it was applied to 
 real estate, chattels being distinguished by 
 the words "effects," "movables," etc. Bona 
 were, however, divided into bona mobilia 
 and hona immoMlia. It is taken in the civil 
 law in nearly the sense of Mens in the 
 French law. 
 
 BONA CONFISCATA. Goods confiscated 
 or forfeited to the imperial 1iso or treasury. 
 1 Sharswood, Bl. Comm. 299. 
 
 BONA ET CATALLA. Goods and chat- 
 tels; movable property of every descrip- 
 tion. See 16 Mees. & W. 68. 
 
BONA FELONUM 
 
 (105) 
 
 BOND TENANTS 
 
 BONA FELONUM (Lat.) In English law. 
 Goods of felons; the goods of one convicted 
 of felony. 5 Coke, 110. 
 
 BONA FIDE POSSESSOR FACIT FRUC- 
 -tus consumptos sues. By good faith, a pos- 
 sessor makes the fruits consumed his own. 
 Tray. Lat. Max. 57. 
 
 BONA FIDE PURCHASER. One who 
 
 buys property without notice, actual or con- 
 structive, that some third person has a right 
 to or interest in it, and pays a full and 
 fair price for it at the time of such pur- 
 chase, or before he has notice of the claim 
 or interest of such third person. 65 Barb. 
 (N. Y.) 227. If he has paid but a part of 
 the consideration, he is a bona fide purchaser 
 pro tanto only. 3 Barb. Ch. (N. Y.) 498. 
 
 There must be (a) absence of notice or 
 ■of suspicious circumstances tending to put 
 a reasonably cautious man on inquiry (12 
 Barb. [N. Y.] 605), and (b) a present valu- 
 able consideration, a good consideration (49 
 N. Y. 286), or one that is past (52 N. Y. 
 138) or executory (14 Mich. 514), being insuf- 
 ficient. The term implies an actual reliance 
 in good faith on the apparent right of the 
 seller. 28 Ga. 170. 
 
 BONA FIDES. Good faith, honesty, as 
 distinguished from mala fides, bad faith. 
 Bona fide, in good faith. 
 
 BONA FIDES EXIGIT UT QUOD CON- 
 venit flat. Good faith demands that what is 
 agreed upon shall be done. Dig. 19. 20. 21; 
 Id. 19. 1. 50; Id. 50. 8. 2. 13. 
 
 BONA FIDES NON PATITUR, UT BIS 
 idem exigatur. Good faith does not allow 
 us to demand twice the payment of the 
 same thing. Dig. 50. 17. 57. 
 
 BONA FORISFACTA. Forfeited goods. 1 
 Bl. Comm. 299. 
 
 BONA FUGITIVORUM (Lat.) In Eng- 
 lish law. Goods of fugitives; the proper 
 goods of him who flies for felony. 5 Coke, 
 109b. 
 
 BONA GESTURA. Good behavior. 
 
 BONA GRATIA. Voluntarily; by mutual 
 consent. Used of a divorce obtained by the 
 agreement of both parties. 
 
 BONA MEMORIA. Good memory. Used 
 chiefly in respect to testamentary capacity. 
 Abbott. 
 
 BONA MOBILIA. In civil law. Movables. 
 Those things which move themselves or can 
 be transported from one place to another; 
 which are not intended to make a perma- 
 nent part of a farm, heritage, or building. 
 
 BONA NOTABILIA. Chattels or goods of 
 sufficient value to be accounted for. 
 
 Where a decedent leaves goods of suffi- 
 cient amount (bona notabilia) in different di- 
 oceses, administration is granted by the 
 metropolitan, to prevent the confusion aris- 
 ing from the appointment of many different 
 
 administrators. 2 Bl. Comm. 509; Rolle, 
 Abr. 908; Williams, Ex'rs, Index. The value 
 necessary to constitute property bona nota- 
 bilia has varied at different periods, but was 
 finally established at £5, in 1603. 
 
 BONA PAT R I A. In Scotch law. An as- 
 size or jury of countrymen or good neigh- 
 bors. Bell, Diet. 
 
 BONA PERITURA. Perishable goods. 
 
 An executor, administrator, or trustee is 
 bound to use due diligence in disposing of 
 perishable goods, such as fattened cattle, 
 grain, fruit, or any other article which may 
 be worse for keeping. Bac. Abr. "Execu- 
 tors;" 1 Rolle, Abr. 910; 5 Coke, 9; Cro. 
 Eliz. 518, 3 Munf. (Va.) 288; 1 Beatty, 5, 
 14; Dane, Abr. Index. 
 
 BONA UTLAGATORUM. In English law. 
 Goods of outlaws. Hale, Anal. § VIII. 
 
 BONA VACANTIA.- Goods to which no 
 one claims a property, as shipwrecks, treas- 
 ure trove, etc.; vacant goods. These bona 
 vacantia belonged, under the common law, 
 to the finder, except in certain instances, 
 when they were the property of the king. 
 1 Sharswood, Bl. Comm. 298, note. 
 
 BONA WAVIATA. Goods waived or 
 thrown away by a thief in his fright for 
 fear of being apprehended. Such goods be- 
 long to the sovereign. 1 Bl. Comm. 296. 
 
 BONAE FIDEI (Lat.) In good faith. 
 
 BONAE FIDEI EMPTOR. A bona fide pur- 
 chaser {q. V.) 
 
 BONAE FIDEI POSSESSOR IN ID TAN- 
 tum quod ad se pervenerit tenetur. A bona 
 fide possessor is bound for that only which 
 has come to him. Coke, 2d Inst. 285; Gro- 
 tius, de Jure Belli, lib. 2, c. 10, § 3 et seq. 
 
 BOND. A sealed obligation to pay money, 
 either absolutely or conditionally. 2 Serg. 
 & R. (Pa.) 502; 11 Ala. 19; 1 Harp. (S. C.) 
 434; 1 Blackf. (Ind.) 241; 6 Vt. 40; 1 Baldw. 
 (U. S.) 129; 110 Mass. 454. 
 
 It may be single, — simplex obligatio, — as 
 where the obligor obliges himself, his heirs, 
 executors, and administrators, to pay a cer- 
 tain sum of money to another at a day 
 named, or it may be conditional (which is 
 the kind more generally used), that if the 
 obligor does some particular act, the ob- 
 ligation shall be void, or else shall remain 
 In full force, as payment of rent, perform- 
 ance of covenants in a deed, or repayment 
 of a principal sum of money borrowed of 
 the obligee, with Interest, which i.rinclpal 
 sum is usually one-half of the penal sum 
 specified In the bond. The term is usually 
 applied only to the latter class. 3 Redf. 
 Sur. (N. Y.) 459. 
 
 Certificates of Indebtedness issued by cor- 
 porations and municipal, and governmental 
 bodies, are also known as "bonds." 
 
 BOND TENANTS. In English law. Copy- 
 holders and customary tenants are some- 
 times so called. 2 Bl. Comm. 148. 
 
BONDAGE 
 
 (106) 
 
 BOOK OF RESPONSES 
 
 BONDAGE. Is a term which has not ob- 
 tained a juridical use distinct from the ver- 
 nacular, in which it is either taken as a 
 synonym with "slavery," or as applicable to 
 any kind of personal servitude which is in- 
 voluntary in its continuation. 
 
 BONDSMAN. A surety on a bond. 
 
 BONES GENTS. In old English law. 
 Good men. 
 
 BON I HOMINES (Law Lat.) In old Eu- 
 ropean law. Good men; a name given, in 
 early European jurisprudence, to the tenants 
 of the lord, who judged each other in the 
 lord's courts. 3 Bl. Comm. 349. Blackstone, 
 speaking of the origin of juries, says that 
 all the nations which adopted the feudal 
 system, as Germany, France, and Italy, had 
 a tribunal composed of twelve good men and 
 true (boni homines), usually the vassals or 
 tenants of the lord, being the equals or 
 peers of the parties litigant. Esprit des 
 Lois, liv. 30, c. 18. This term has survived 
 in the courts to the present day. 
 
 BONI JUDICIS EST AMPLIARE JURIS- 
 ditionem; justitiam in. It Is the part of a 
 good judge to enlarge his jurisdiction; that 
 is, his remedial authority. 1 Burrows, 304; 
 Chanc. Free. 329; 1 Wils. 284; 9 Mees. & 
 W. 818; 1 C. B. (N. S.) 255; 4 Bing. N. C. 
 233; 4 Scott, N. R. 229; 17 Mass. 310. 
 
 BONI JUDICIS EST CAUSAS LITIUM 
 dirimere. It is the duty of a good judge to 
 remove causes of litigation. 2 Inst. 306. 
 
 BONI JUDICIS EST JUDICIUM SINE 
 dllatione mandare executloni. It is the duty 
 of a good judge to cause execution to issue 
 on a judgment without delay. Co. Litt. 289. 
 
 BONI JUDICIS EST LITES DIRIMERE, 
 ne lis ex lite oritur, et interest reipublicae 
 ut sint fines litium. It is the duty of a good 
 judge to prevent litigations, that suit may 
 not grow out of suit, and it concerns the 
 welfare of a state that an end be put to liti- 
 gation. 4 Coke, 15; 5 Coke, 31a. 
 
 BONIS CEDERE (Lat.) In the civil law. 
 To make a transfer or surrender of prop- 
 erty, as a debtor did to his creditors. Code, 
 7. 71. 
 
 BONIS NON-AMOVENDIS. A writ ad- 
 dressed to the sheriff, when a writ of error 
 has been brought, commanding that the per- 
 son against whom judgment has been ob- 
 tained be not suffered to renaove his goods 
 till the errer be tried and determined. Reg. 
 Orig. 131. 
 
 BONITARIAN. In the Roman law. Right 
 of possession. Hence honltarlan ownership 
 was an equitable title or special property, as 
 distinguished from quiritarian ownership, 
 that in accordance with the strict forms of 
 law. 
 
 BONO ET MALO. A special writ of jail 
 delivery, which formerly issued of course 
 
 for each particular prisoner. 4 Bl. Comm. - 
 270. 
 
 BONUM DEFENDENTIS EX INTEGRA 
 causa; malum ex quolibet defectu. The good 
 of a defendant arises from a perfect case; 
 his harm from some defect. 11 Coke, 68. 
 
 BONUM NECESSARIUM EXTRA TER- 
 minos necessitatis non est bonum. A thing 
 good from necessity is not good beyond the 
 limits of the necessity. Hob. 144. 
 
 BONUS. A premium paid to a grantor or 
 vendor. ■> 
 
 A consideration given for what is received. 
 Extraordinary profit accruing in the opera- 
 tions of a stock company or private corpora- 
 tion. 10 Ves. 185; 7 Sim. 634; 2 Spence, Eq'. 
 Jur. 569. 
 
 An additional premium paid for the use of 
 money beyond the legal interest. 2 Pars. 
 Cont. 391. 
 
 In its original sense of "good," the word 
 was formerly much used. Thus, a jury was 
 to be composed of twelve good men (ftorei 
 homines) (3 Bl. Comm. 349), bonus )u<le.v 
 (a good judge) (Co. Litt. 246). 
 
 An extra or donated sum beyond strict 
 legal right. 
 
 BONUS JUDEX SECUNDUM AEQUUM 
 et bonum judicat, et aequitatem stricto juri, 
 praefert. A good judge decides according 
 to justice and right, and prefers equity to 
 strict law. Co. Litt. 24; 4 Term R. 344; 2 
 Q. B. 837; Broom, Leg. -Max. (3d London 
 Ed.) 77. 
 
 BOOK. A general name given to every 
 literary composition which is printed, but 
 appropriately to a printed composition bound 
 in a volume. A book may consist of but 
 one page, and need not be bound. 2 Campb. 
 30, 32. 
 
 BOOK DEBT. A statutory remedy exist- 
 ing in several states for the collection of a 
 debt evidenced by entries in books of ac 
 count. 
 
 BOOK LAND. In English law. Land, also 
 called charter land, which was held by deed' 
 under certain rents and fee services, and 
 differed in nothing from free socage land. 
 2 Bl. Comm. 90. See 2 Spelman, English 
 Works, 233, tit. "Of Ancient Deeds and 
 Charters;" "Boc Land." 
 
 BOOK OF ACTS. 
 
 rogate's court. 
 
 The records of a sur- 
 
 BOOK OF ADJOURNAL. In Scotch law. 
 The records of the court of justiciary. 
 
 BOOK OF RATES. An account or enu- 
 meration of the dutifcs or tariffs authorized 
 by parliament. 1 Sharswood, Bl. Comm. 
 316; Jacob. 
 
 BOOK OF RESPONSES. In Scotch law. 
 An account which the director of the chan- 
 cery keeps particularly to note a seizure 
 when he gives an order to the sheriff in that 
 
BOOKS OP SCIENCE 
 
 (107) 
 
 BOROUGH COURTS 
 
 part to give it to an heir whose service 
 has been returned to him. Wharton. 
 
 BOOKS OF SCIENCE. In evidence. 
 Medical books, even of received authority, 
 are not admissible in evidence. 12 Gush. 
 (Mass.) 193; 1 Gray (Mass.) 337; 5 Car. & 
 P. 74. See 2 Ind. 617; 1 Jones (N. C.) 386; 
 1 Chand. (Wis.) 178; 1 Cox, C. C. 94; 1 
 Towns. St. Tr. 357, 358. 
 
 BOON DAYS. Certain days in the year 
 on which copyhold tenants were bound to 
 perform certain services for the lord. Call- 
 ed, also, "due days." Whishaw'. 
 
 BOOT, or BOTE. An old Saxon word, 
 equivalent to "estovers." Brownl. & G. 170. 
 
 BOOTING (or BOTING) CORN. Certain 
 rent corn, anciently so called. Cowell; 
 Blount. 
 
 BOOTY. Personal property captured by 
 a public enemy on land, in contradistinction 
 to "prize," which is such property captured 
 by such an enemy on the sea. 
 
 After booty has been in complete posses- 
 sion of the enemy for twenty-four hours, it 
 becomes absolutely his, without any right 
 of postliminy in favor of the original owner, 
 particularly when it has passed bona fide 
 into the hands of a neutral. 1 Kent, Comm. 
 110. The right to the booty, Pothier says, 
 belongs to the sovereign; but sometimes the 
 right of the sovereign, or of the public, is 
 transferred to the soldiers, to encourage 
 them. Poth. Dr. de Propriete, p. 1, c. 2, a. 
 1, § 2; 2 Burlam. Nat. Law, pt. 4, c. 7, note 
 12. 
 
 BORD. An old Saxon word, signifying a 
 cottage; a house; a table. 
 
 BORD-HALFPENNY. A customary small 
 toll paid to the lord of a town for setting 
 up boards, tables, booths, etc., in fairs or 
 markets. 
 
 BORD LANDS. Lands held In bordage. 
 
 The demesnes which the lords keep in 
 their hands for the maintenance of their 
 iord or table. Cowell. 
 
 BORDAGE. A species of base tenure by 
 which l)ord lands were held. The tenants 
 were called bordarii (q. v.) 
 
 BORDARII, or BORDIMANNI. In old Eng- 
 lish law. Tenants of a less servile con- 
 dition than the villani. who had a hord 
 or cottage, with a small parcel of land, al- 
 lowed to them, on condition they should 
 supply the lord with poultry and eggs, and 
 other small provisions for his board or en- 
 tertainment. Spelman. 
 
 BORDBRIGCH, BORGHBRECH, or 
 burghbrech. In Saxon law. Breach or viola- 
 tion of pledge {fide jussionis violatio) ; 
 pledge-breach (plegii f radio). Spelman. 
 The offense of violating the borg, or pledge 
 given by the inhabitants of a tithing. See 
 "Borg." 
 
 BORDER WARRANT. A process grant- 
 ed by a judge ordinary, on either side of the 
 border between England and Scotland, for 
 arresting the person or effects of a person 
 living on the opposite side, until he find 
 security, judicio sisti. Bell, Diet. 
 
 BORDLODE. The rent or quantity of food 
 which the bordarii paid for their lands. 
 Cowell. 
 
 BORDSERVICE. A tenure of hord lands. 
 Blount. 
 
 BOREL FOLK. Country people; derived 
 from the French boiiirc (Lat. floccas), a lock 
 of wool, because they covered their heads 
 with such stuff. Blount. 
 
 BORG (Saxon). Suretyship. 
 
 Borgbriohe (violation of a pledge or surety- 
 ship) was a fine imposed on the borg for 
 property stolen within its limits. 
 
 A tithing in which each one became a 
 surety for the others for their good behav- 
 ior. Spelman; Cowell; 1 Bl. Comm. 115. 
 
 BORGESMON (Saxon). The head of each 
 family composing a tithing. 
 
 BORGH OF HAMHALD. In old Scotch 
 law. A pledge or surety given by the seller 
 of goods to the buyer, to make the goods 
 forthcoming as his own proper goods, and 
 to warrant the same to him. Skene de Verb. 
 Sign. 
 
 BOROUGH. In the old sense of the word, 
 borough is "an ancient towne, holden of the 
 king or any other lord, which sendeth bur- 
 gesses to the parliament." Litt. § 164; Co. 
 Litt. 109a. Many of these boroughs, how- 
 ever, having been disfranchised in modern 
 times, are now only boroughs to this ex- 
 tent, that the land within them is held by 
 tenure in burgage or subject to the cus- 
 tom of borough English (g. v.) At the 
 present day, "borough" almost always 
 means either a borough corporate, or munic- 
 ipal borough, or a parliamentary borough 
 (see 1 Bl. Comm. 115; 1 Steph. Comm. 125), 
 most, if not all, municipal boroughs being al- 
 so parliamentary. 
 
 A parliamentary borough is a town which 
 returns one or more members to parlia- 
 ment. See Parliamentary and Municipal 
 Registration Act 1878, § 4. Some of these 
 towns are ancient boroughs; others are 
 towns on which the right of returning mem- 
 bers has been conferred by statute. St. 2 
 Wm. IV. c. 45; 30 & 31 Vict. c. 102. 
 
 In Scotch Law. A corporation or- 
 ganized under a royal charter. Bell, Diet. 
 
 In American Law. The word is little 
 
 used. In Pennsylvania and Connecticut, 
 however, it is in common use, and denotes 
 an incorporated town or village. Bright. 
 Purd. Dig. 115; 23 Conn. 128. 
 
 Borough, synonymous with "town." 1 Bl. 
 Comm. 114. Borough, synonymous with 
 "village." 18 Ohio St. 496. 
 
 BOROUGH COURTS. In English law. 
 
BOROUGH ENGLISH 
 
 (108) 
 
 BOTTOMRY 
 
 Private courts of limited jurisdiction held 
 in particular districts by prescription, char- 
 ter, or act of parliament, for the prosecution 
 of petty suits. 19 Geo. III. c. 70; 3 Wm. IV. 
 c. 74; 3 Bl. Comm. 80. 
 
 BOROUGH ENGLISH. A custom preva- 
 lent in some parts of England, by which the 
 ydunger son inherits the estate in prefer- 
 ence to his older brothers. 1 Bl. Comm. 75. 
 
 The custom is said by Blackstone to have 
 been derived from the Saxons, and to have 
 been so called in distinction from the Nor- 
 man rule of descent. 2 Bl. Comm. 83. A 
 reason for the custom is found in the fact 
 that the elder children were usually pro- 
 vided for during the life of the parent as they 
 grew up, and removed, while the younger 
 son usually remained. See, also, Bac. Abr.; 
 Comyn, Dig.; Termes de la Ley; Cowell. 
 The custom applies to socage lands. 2 Bl. 
 Comm. 83. 
 
 BOROUGH-HEAD, or BOROW-HEAD. 
 
 The chief man or head of a borough. 
 Cowell. See "Headborow." 
 
 BOROUGH-REEVE. The chief munici- 
 pal officer in towns unincorporated before 
 the municipal corporations act (5 & 6 "Wm. 
 IV. c. 76). 
 
 BOROUGH SESSIONS. Courts establish- 
 ed in boroughs under the municipal corpora- 
 tions act (5 & 6 Wm. IV. c. 76, amended by 
 6 & 7 Wm. IV. c. 105, and 6 & 7 Vict. c. 89). 
 They are held by the recorders of the re- 
 spective boroughs once a quarter, or oftener 
 if they think fit, and at times to be fixed 
 by them. The jurisdiction Is over such of- 
 fenses as are cognizable by the country ses- 
 sions, whose powers extend to all boroughs 
 which may not have petitioned for a sepa- 
 rate court by virtue of section 103 of the 
 municipal corporations act. Wharton. 
 
 BORROW. To obtain the use of the prop- 
 erty of another, with an agreement to re- 
 turn the same, ordinarily in specie, but 
 where, as in case of money, the nature of 
 the case does not admit of it, to return in 
 kind. See 14 Neb. 381. 
 
 BORROWE. In old Scotch law. A pledge. 
 Skene de Verb. Sign. voc. "Porensls." 
 
 BORROWER. He to whom a thing is 
 lent at his request. 
 
 As used in usury laws, it includes any 
 person who is a party to the original con- 
 tract, or in any way liable to pay the loan. 
 64 N. Y. 247; 65 N. Y. 432; 11 Wend. (N. Y.) 
 329; 7 Hill (N. Y.) 391; 75 N. Y. 516, 523, 
 31 Am. Rep. 484, reversing 10 Hun, 468. 
 
 In general, he has the right to use the 
 thing borrowed, himself, during the time 
 and for the purpose intended between the 
 parties. He is bound to take extraordinary 
 care of the thing borrowed; to use it accord- 
 ing to the intention of the lender; to restore 
 it in proper condition at the proper time. 
 See "Bailment;" Story, Bailm. § 268; 2 
 
 Kent, Comm. 446-449; 1 Bouv. Inst. 1078- 
 1090. 
 
 BORSHOLDER. A corruption of bor- 
 hesalder, another form of borhealder. Spel- 
 man. , 
 
 In Saxon Law. The borough's ealder, 
 
 or head borough, supposed to be the most 
 discreet man in the borough, town, or tith- 
 ing. 1 Bl. Comm. 114, 355. 
 
 BOSCAGE. That food which wood and 
 trees yield to cattle. 
 
 To be quit of boscage is to be discharged 
 of paying any duty of wind-fall wood in for- 
 est. Whlshaw; Manw. For. Law. 
 
 BOSCARIA (from Lat. bos). Wood- 
 houses, or ox-honses. 
 
 BOSCUS. Wood growing; wood; both 
 high wood or trees, and underwood or cop- 
 pice. The high wood is properly called sal- 
 tus. Cowell; Spelman; Co. Litt. 5a. 
 
 BOTE. A recompense or compensation. 
 The common word "boot" comes from this 
 word. Cowell. The term is applied as well 
 to making repairs in houses, bridges, etc., 
 as to making a recompense for slaying 
 a man or stealing property. House bote, 
 materials which may be taken to repair a 
 house; hedge bote, to repair hedges; brig 
 bote, to repair bridges; man bote, compensa- 
 tion to be paid by a murderer. Bote is 
 known to the English law also under the 
 name of "estover." 1 Washb. Real Prop. 
 99; 2 Bl. Comm. 35. 
 
 BOTE LESS. In old English law. With- 
 out amends; without the privilege of mak- 
 ing satisfaction for a crime by a pecuniary 
 payment; without relief or remedy. Cowell; 
 Blount. The word (written "bootless") is 
 still retained in the sense of "vain" or "use- 
 less." Cowell. 
 
 BOTHA. In old English law. A booth, 
 stall, or tent to stand in, in fairs or markets. 
 Cowell; Blount. 
 
 BOTHAGIUM, or BOOTH AGE. Custom- 
 ary dues paid to the lord of a manor or soil 
 for the pitching or standing of booths in 
 fairs or markets. 
 
 BOTHNA, BUTHNA, or BOTHENA. In 
 
 old Scotch law. A park where cattle are 
 inclosed and fed. Bothna also signifies a 
 barony, lordship, etc. Skene de Verb. Sign. 
 
 BOTTOMAGE (Law Fr,) Bottomry. Latch. 
 
 252. 
 
 BOTTOMRY. A contract in the nature 
 of a mortgage, by which the owner of a ship, 
 or the master, as his agent, borrows money 
 for the use of the ship, and for a specified 
 voyage, or for a definite period, pledges the 
 ship (or the keel or bottom of the ship, Pffi'"* 
 pro toto) as a security for Its payment, 
 with maritime or extraordinary interest on 
 account of the marine risks to be borne by 
 the lender; it being stipulated that if the 
 ship be lost in the course of the sp8cifled 
 
BOUCHE 
 
 (109) 
 
 BOYCOTT 
 
 voyage, or during the limited time, by any 
 of the perils enumerated in the contract, 
 the lender shall also lose his money. 2 
 Hagg. Adm. 48. 53; 2 Sumn. (U. S.) 157; 
 Abb. Shipp. 117-131. Where the loan is made 
 on the credit of the cargo alone, the con- 
 tract is called respondentia (q. v.) 
 
 BOUCHE (Pr. mouth). He gist en le bouche, 
 it does not lie in the mouth, i. e., it is not 
 for one to say. Litt. § 58. A phrase still 
 used. En bouch del lay gents, in the mouth 
 of the common people. Cro. Jac. 700. II 
 port meatc en son bouche, it supports itself. 
 Dyer, 28 (Fr. Ed.) Said of a deed. 
 
 An allowance of provision. Avoir bouche 
 a court, to have an allowance at court; to 
 be in ordinary at court; to have meat and 
 drink scot-free there. Blount; Cowell, "Mu- 
 nitions de Bouche;" Ord. Mar. liv. 3, tit. 8, 
 art. 11. 
 
 BOUCHE OF COURT, or BUDGE OF 
 
 court. A certain allowance of provision 
 from the king to his knights and servants 
 that attended him in any military expedi- 
 tion. The PYench acoir bmiche a court, is 
 to have an allowance at court of meat aiid 
 drink. Prom bouche, a mouth. But some- 
 times it extended only to bread, beer, and 
 wine, and this was anciently in use as well 
 in the houses of noblemen as in the king's 
 court. Jacob. 
 
 BOUGH OF A TREE. A symbol which 
 gave seisin of land, to hold of the donor in 
 capite. 
 
 BOUGHT NOTE. A written memoran- 
 dum of a sale, delivered by the broker who 
 effects the sale, to the vendee. Story, Ag. 
 § 28; 11 Adol. & E. 589; 8 Mees. & W. 834. 
 
 Bought and sold notes are made out usu- 
 ally at the same time; the former being de- 
 livered to the vendee, the latter to the ven- 
 dor. 
 
 BOULEVARD. A public drive, adapted 
 and set aside for purposes of ornament, ex- 
 ercise, and amusement. It is not technically 
 a street, avenue, ot highway, though a car- 
 riage way over it be a chief feature. 52 
 How. Pr. (N. Y.) 440. 
 
 BOUND BAILIFF. A sheriff's officer, 
 who serves writs and makes arrests. He is 
 so called because bound to the sheriff for 
 the due execution of his office. 1 Bl. Comm. 
 345. 
 
 BOUNDARY. Any separation, natural 
 or artificial, which marks the confines or 
 line of two contiguous estates. Hunt, 
 Boundaries. 
 
 The term is applied to include the objects 
 placed or existing at the angles of the 
 bounding lines, as well as those which ex- 
 tend along the lines of separation. 
 
 A natural boundary is a natural object 
 remaining where it was placed by nature. 
 
 An artificial boundary is one erected by 
 man. 
 
 BOUNDED TREE. A tree marking or 
 standing at the corner of a field or estate. 
 
 BOUNDERS. Visible marks or objects at 
 the ends of the lines drawn in surveys of 
 land, showing the courses and distances. 
 
 BOUNTY. An additional benefit confer- 
 red upon, or a compensation paid to, a 
 class of persons. It differs from a reward, 
 which is usually applied to a sum paid for 
 the performance of some specific act to 
 some person or persons. It may or may' 
 not be part of a contract. Thus, the bounty 
 offered a soldier would seem to be part of 
 the consideration for his services. The 
 bounty paid to fishermen is not a considera- 
 tion for any contract, however. 
 
 BOUNTY LANDS. Lands given away by 
 the government by way of bounty. 
 
 BOUNTY OF QUEEN ANNE. A royal 
 charter confirmed by St. 2 Anne, c. 11, pro- 
 viding for the forming a perpetual fund for 
 the augmentation of poor ecclesiastical liv- 
 ings. Wharton. 
 
 BOURG (Pr.) In old French law. An as- 
 semblage of houses surrounded with walls; 
 a fortified town or village. Steph. Lect. 
 118. 
 
 Originally, any aggregation of hpuses. Id. 
 
 A corporate town. Id. 
 
 BOURGEOIS. In old French law. The 
 inhabitant of a hourg (q. v.) Steph. Lect. 
 118. 
 
 A person entitled to the privileges of a 
 municipal corporation; a burgess. Id. 
 
 BOURSE DE COMMERCE. In the French 
 law. An aggregation, sanctioned by gov- 
 ernment, of merchants, captains of ves- 
 sels, exchange agents, and courtiers, the 
 two latter being nominated by the govern- 
 ment, in each city which has a bourse. 
 Brown. 
 
 BOUWERYE, or BOUWERIE (Dutch). A 
 farm. 
 
 BOUWMEESTER, or BOUWMASTER 
 (Dutch). A farmer. 
 
 BOVATA TERRAE. As much land as 
 one ox can cultivate. Said by some to be 
 thirteen, by others eighteen, acres in ex- 
 tent. Skene de Verb. Sign.; Spelman; Co. 
 Litt. 5a. 
 
 BOW-BEARER. An under officer of the 
 forest, whose duty it is to oversee and true 
 inquisition make, as well of sworn men as 
 unsworn, in every bailiwick of the forest, 
 and of all manner of trespasses done, either 
 to vert or venison, and cause them to be 
 presented, without any concealment, in the 
 next court of attachment, etc. Cromp. Jur. 
 201. 
 
 BOWYERS. Manufacturers of bows and 
 shafts. An ancient company of the city of 
 London. 12 Edw. IV. c. 2 ; 33 Hen. VIII. c. 6. 
 
 BOYCOTT. A conspiracy to injure the 
 business of any person by inducing others 
 
BOZERO 
 
 (110) 
 
 BREACH OF TRUST 
 
 to abstain from business relations with 
 Mm. The methods are so diverse as not 
 to be comprehended by any definition. For 
 illustrations, see 84 Va. 927; 45 Fed. 135; 
 55 Conn. 79. 
 
 If force or intimidation is resorted to, 
 such combinations are unlawful. As to 
 their legality in the absence of such meas- 
 ures, see 15 Q. B. Div. 476. 
 
 BOZERO. In Spanish law. An advocate; 
 one who pleads the causes of others, either 
 suing or defending. Las Partidas, pt. 3, 
 tit. V. 1, 1-6. 
 
 Called, also, aliogadas. Amongst other 
 classes of persons excluded from this ofllce 
 are minors under seventeen, the deaf, the 
 dumb, friars, women, and infamous persons. 
 White, New Recop. 274. 
 
 BRANCH. A portion of the descendants 
 of a person, who trace their descent to some 
 common ancestor, who is himself a descend- 
 ant of such person. 
 
 The whole of a genealogy is often called 
 the "genealogical tree," and sometimes it is 
 made to take the form of a tree, which is in 
 the first place divided into as many branches 
 as there are children, afterwards into as 
 many branches as there are grandchildren, 
 then great-grandchildren, etc. If, for ex- 
 ample, it be desired to form the genealogical 
 tree of Peter's family, Peter will be made 
 the trunk of the tree; if he has had two 
 children, John and James, their names will 
 be written on the first two branches, which 
 will themselves shoot out into as many 
 smaller branches as John and James have 
 children; from these others proceed, till 
 the whole family is represented on the tree. 
 Thus the origin, the application, and the use 
 of the word "branch" in genealogy will be 
 at once perceived?, See "Line." 
 
 BRANDING. An ancient mode of pun- 
 ishment by inflicting a mark on an offender 
 with a hot iron. It is generally disused in 
 civil law, but is a recognized punishment for 
 some military offenses. 
 
 BRANKS. An instrument of punishment 
 formerly made use of in some parts of Eng- 
 land for the correction of scolds, which it 
 was said to do so effectually and so very 
 safely that it was looked upon by Dr. Plotts, 
 in his History of Staffordshire (page 389),- 
 "as much to be preferred to the ducking- 
 stool, which not only endangered the health 
 of the party, but also gives the tongue 
 liberty 'twixt every dip, to neither of which 
 is this liable. It brings such a bridle for 
 the tongue as not only quite deprives them 
 of speech, but brings shame for the trans- 
 gression and humiliation thereupon before 
 it is taken off." 
 
 BRASS KNUCKLES (or KNUCKS). A 
 weapon consisting of metal covering part 
 of the hand, and used to strike with. It was 
 originally made of brass, and the name Is 
 now used as that of the weapon, without re- 
 gard to the metal used. 3 Lea (Tenn.) 
 .575; 3 S. W. 477. 
 
 BRAWL. Tumult; loud angry contention. 
 See 42 N. H. 464. 
 
 Originally used in connection with dis- 
 turbances in churches or churchyards. 4 
 Bl. Comm. 146; Steph. Cr. Dig. 102. 
 
 BREACH. 
 
 In Contracts. The violation of an 
 
 obligation, engagement, or duty. 
 
 Breach may be either by renunciation, — 
 that is, by the declaration of the party that 
 he does not intend to perform (32 Iowa, 409' 
 61 N. Y. 362; 52 Wis. 240), by such acts as 
 will render performance impossible (82 N 
 Y. 108; 22 Fed. 522; 16 Mass. 161),— or by 
 actually failing to perform any or all the 
 terms of the contract; the two first mention- 
 ed being constructive breaches, and the last, 
 actual breach. 
 
 A continuing breach is one where the con- 
 dition of things constituting a breach con- 
 tinues during a period of time, or where 
 the acts constituting a breach are repeated 
 at brief intervals. F. Moore, 242; 1 Leon. 
 62; 1 Salk. 141; Holt, 178; 2 Ld. Raym. 
 1125. 
 
 In Pleading. That part of the decla- 
 ration in which the violation of the defend- 
 ant's contract is stated. 
 
 BREACH OF CLOSE. Every unwarrant- 
 able entry upon the soil of another is a 
 breach of his close. 3 Bl. Comm. 209. 
 
 BREACH OF COVENANT. A violation 
 of, or a failure to perform the conditions of, 
 a bond or covenant. The remedy is in 
 some cases by a writ of covenant; In others, 
 by an action of debt. 3 Bl. Comm. 156. 
 
 BREACH OF POUND. See "Pound 
 Breach." 
 
 BREACH OF PRISON. An unlawful break- 
 ing out of prison. This is of itself a mis- 
 demeanor. 1 Russ. Crimes, 378 ; 4 Bl. Comm. 
 129; 2 Hawk. P. C. c. 18, § 1; 7 Conn. 752. 
 The remedy for this offense is by indict- 
 ment. The climbing of a wall is not a break- 
 ing out, but if loose bricks be thrown from 
 the wall it is. Russ. & R. 458. See "Es- 
 cape." 
 
 BREACH OF PRIVILEGE. An act in vio- 
 lation of the privilege of a legislative body. 
 
 BREACH OF THE PEACE. A violation 
 of public order; the offense of disturbing 
 the public peace. 6 Coldw. (Tenn.) 283. 
 An act of public indecorum is also a breach 
 of the peace. 
 
 BREACH OF TRUST. 
 
 (1) The willful misappropriation, by a 
 trustee, of a thing which had been lawfully 
 delivered to him in confidence. 
 
 The distinction between larceny and a 
 breach of trust is to be found chiefly in the 
 terms or way in which the thing was taken 
 originally into the party's possession; and 
 the rule seems to be that whenever the ar- 
 ticle is obtained upon a fair contract not 
 for a mere temporary purpose, or by one 
 who is in the employment of the deliverer, 
 
BREAKING 
 
 (Ul) 
 
 BREVE TESTATUM 
 
 then the subsequent misappropriation is to 
 be considered as an act of breach of trust. 
 (2) Any wrongful act of a trustee in 
 violation of his duty as such, though not 
 amounting to a crime. 
 
 BREAKING. Parting or dividing, by 
 force and violence, a solid substance, or 
 piercing, penetrating, or bursting through 
 the same. 
 
 In cases of burglary and housebreaking, 
 the removal of any part of the house, or of 
 the fastenings provided to secure it, with 
 violence and a felonious intent, is a break- 
 ing, as the raising of a closed window (107 
 N. C. 905), or the opening of a closed door 
 (68 111. 271; 20 Iowa, 413), but an entry by 
 an open door or window (85 Pa. St. 66; 25 
 Neb. 780) is not, though an entry through 
 a chimney is a breaking into the house, 
 for that is as much closed as the nature of 
 things will permit (52 Ala. 376; 13 Ired. 
 [N. C] 244). 
 
 A constructive breaking Is the procuring 
 of an entry for felonious purpose by fraud 
 or covin, as by pretending to have business 
 with the owner (9 Ired. [N. C] 463), or by 
 collusion with an inmate (98 N. C. 629). 
 
 BREAKING OF ARRESTMENT. The 
 
 contempt of the law committed by an ar- 
 restee who disregards the arrestment used 
 in his hands, and pays the sum or delivers 
 the goods arrested to the debtor. The 
 breaker is liable to the arrester in damages. 
 See "Arrestment." 
 
 BREAST OF THE COURT. The judgment 
 or conscience of the court. A record is in 
 the breast of the court, subject to correc- 
 tion, until the term is closed, after which it 
 imports verity. 
 
 BREATH. In medical jurisprudence. The 
 ^ir expelled from the chest at each expira- 
 tion. 
 
 BREDWITE. In Saxon and old English 
 law. A fine, penalty, or amercement im- 
 posed for defaults in the assize of bread. 
 Kennett, Par. Ant. 114; Cowell. 
 
 BREHON LAW. The ancient system of 
 Irish law; so named from the judges, called 
 "Brehons," or "Breitheamhuin." Its exist- 
 ence has been traced from the earliest 
 period of Irish history down to the time of 
 the Anglo Norman invasion. It is still a 
 subject of antiquarian research. An out- 
 line of the system will be found in Knight's 
 English Cyclopaedia. 
 
 BRENAGIUM. A payment in bran, 
 which tenants anciently made to feed their 
 lord's hounds. Blount. 
 
 BREPHOTROPHI. In civil law. Per- 
 sons appointed to take care of houses des- 
 tined to receive foundlings. Clef des I^ois 
 Rom. "Administrateurs." 
 
 BRETHWALDA, or BRETTWALDA. The 
 
 leader of the Saxon heptarchy. Steph. Lect. 
 61)6. 
 
 BRETTS AND SCOTTS, LAWS OF THE. 
 
 A code or system of laws in use among the 
 Celtic tribes of Scotland down to the be- 
 ginning of the fourteenth century, and then 
 abolished by Edward I. of England. A frag- 
 ment only is now extant. See Acts Pari. 
 Scotland, vol. 1, pp. 299-301, Edin. 1844. It 
 is interesting, like the Brehon laws of Ire- 
 land, in a historical point of view. 
 
 BR EVA INNOMINATA. See "Breve In- 
 nominatum." 
 
 BREVE (Law Lat.) In old English law. 
 A writ; properly an original writ {breve 
 originale), by which all actions in the su- 
 perior courts of England were once required 
 to be commenced. Ifon potest quis sine 
 brevi agere, no man can sue without a writ. 
 Bracton, fols-. 413b, 112; Fleta, lib. 2, c. 13, § 
 4; Steph. PI. 5, 6; 3 Bl. Comm. 272, 273. 
 
 BREVE DE RECTO. A writ of right. 
 
 The writ of right patent is of the highest 
 
 nature of any in the law. Cowell; Pitzh. 
 Nat. Brev. 
 
 BREVE INNOMINATUM. A writ con- 
 taining a general statement only of the 
 cause of action. 
 
 BREVE ITA DICITUR, QUIA REM DE 
 qua agitur, et intentionem petentis, paucis 
 verbis breviter enarrat. A writ is so called 
 because it briefly states, in few woi;ds, the 
 matter in dispute, and the object of the 
 party seeking relief. 2 Inst. 39. 
 
 BREVE JUDICIALE DEBET SEQUI 
 suum originale, et qiccessorium suum prin- 
 cipale. A judicial writ ought to follow its 
 original, and an accessory its principal. 
 Jenk. Cent. Cas. 292. 
 
 BREVE JUDICIALE NON CADIT PRO 
 defectu firmae. A judicial writ fails not 
 through defect of form. Jenk. Cent. Cas. 43. 
 
 BREVE NOMINATUM. A writ contain- 
 ing a statement of the circumstances of the 
 action. 
 
 BREVE ORIGINALE. An original writ. 
 
 BREVE PERQUIRERE. To purchase a 
 writ or license of trial, in the king's courts, 
 by the plaintiff, qui breve perquisivit; 
 whence the usage of paying 6s. 8d. fine to 
 the crown where the debt is £40, and of 
 10s. where the debt is £100, etc., in suits and 
 trials for money due upon bond, etc. Whar- 
 ton. 
 
 BREVE TESTATUM. A written memo- 
 randum introduced to perpetuate the tenor 
 of the conveyance and investiture of lands. 
 2 Bl. Comm. 307. It was prepared after tho 
 transaction, and depended for its validity 
 upon the testimony of witnesses, as it was 
 not sealed. Spelman. 
 
 In Scotch Law. A similar memoran- 
 dum made out at the time of the transfer, at- 
 tested by the pares CHrioe, and by the seal 
 of the superior. Bell, Diet. 
 
BREVET 
 
 (112) 
 
 BRIDGE 
 
 BREVET. 
 
 In French Law. A warrant granted 
 
 by government to authorize an individual 
 to do something for his own benefit. 
 
 Brevet d'invention. A patent. 
 
 In American Law. A commission 
 
 conferring on a military officer a degree of 
 rank specified in the commission, without, 
 however, conveying a right to receive cor- 
 responding pay. 
 
 ■BREVIA (Lat.) Writs. The plural of 
 l)reve (q. v.) 
 
 BREVIA ADVERSARIA. Adversary 
 writs; those brought adversely to recover 
 land. 
 
 BREVIA AMICABILIA. Amicable or 
 friendly writs; writs brought by agreement 
 or consent of the parties. 
 
 BREVIA ANTICIPANTIA. Anticipating 
 writs; writs of prevention. See Termes de 
 la Ley. 
 
 BREVIA DE CURSU. Formal writs is- 
 suing as of course. See "Brevia Formata." 
 
 BREVIA FORMATA (Lat.) Certain writs 
 of approved and established form which 
 were granted of course in actions to which 
 they were applicable, and which could not 
 be changed but by consent of the great 
 council of the realm. Bracton, 413b. 
 
 BREVIA INNOMINATA. See "Breve In- 
 hominatum." 
 
 BREVIA JUDICIALIA (Lat.) Judicial 
 writs. Subsidiary writs issued from the 
 court during the progress of an action, or 
 in execution of the judgment. 
 
 BREVIA MAGISTRALIA. Writs framed 
 and issued by masters in chancery, not fol- 
 lowing any established form, but varying 
 in accordance with the peculiarities of the 
 particular case. Bracton, 413b. 
 
 BREVIA NOMINATA. See "Breve Nomi- 
 natum." 
 
 BREVIA SELECTA. Choice or selected 
 writs or processes. Often abbreviated to 
 ^rev. sel. 
 
 BREVIA, TAM ORIGINALIA GUAM Ju- 
 dicial!, patiuntur Anglica nomina. Writs, as 
 well original as judicial, bear English names. 
 10 Coke, 132. 
 
 BREVIA TESTATA. 
 
 tum." 
 
 See "Breve Testa- 
 
 BREVIARIUM ALARICIANUM (or ANIA- 
 
 ni) (Lat.) A code of law compiled by order 
 of Alaric II., king of the Visigoths, for the 
 use of the Romans living in his empire, pub- 
 lished A. D. 506. It was collected by a 
 committee of sixteen Roman lawyers, from 
 the Codex Gregorianus, Hermogenianus, 
 and Theodosianus, some of the later novels, 
 and the writings of Gains, Paulus, and Papin- 
 ianus. In the middle ages. It is commonly 
 referred to, under the titles Corpus Theo- 
 
 dosianum. Lex Theodosiana, Liber Le^um, 
 or Lex Romana. 1 Mackeld. Civ. Law, p. 
 49, § 59. 
 
 BREVIATE. An abstract or epitome of 
 a writing. Holthouse. 
 
 BREVIBUS ET ROTULUS LIBERANDIS. 
 
 A writ or mandate directed to a sheriff, 
 commanding him to deliver to his successor 
 the county and the appurtenances, with all 
 the briefs, rolls, remembrances, and other 
 things belonging to his office. 
 
 BRIBE. The gift or promise, which is 
 accepted, of some advantage as the induce- 
 ment for some illegal act or omissipn; or 
 of some illegal emolument, as a considera- 
 tion for preferring one person to another, in 
 the performance of a legal act. 
 
 BRIBERY. At common law. The re- 
 ceiving or offering any undue reward by 
 or to any person whomsoever, whose ordina- 
 ry profession or business relates to the ad- 
 ministration of public justice, in order to 
 influence his behavior in office, and to in- 
 cline him to act contrary to his duty and 
 the known rules of honesty and integrity. 
 Coke, 3d Inst. 149; 1 Hawk. P. C. c. 67, § 
 2; 4 Bl. Comm. 139; 1 Russ. Crimes, 156. 
 
 The term "bribery" now extends further, 
 and includes the offense of giving a bribe 
 to many other officers. The offense of the 
 giver and of the receiver of the bribe has 
 the same name. For the sake of distinc- 
 tion, that of the former — viz., the briber — 
 might be properly denominated "active 
 bribery;" while that of the latter — viz., the 
 person bribed — might be called "passive 
 bribery." 
 
 "The voluntary giving or receiving of 
 anything of value in corrupt payment for an 
 official act done or to be done." 2 Bish. 
 Crim. Law, § 85. 
 
 BRIBOUR. One that pilfers other men's 
 goods; a thief. See St. 28 Edw. II. c. 1. 
 
 BRICOLIS. An engine by which walls 
 were beaten down. Blount. 
 
 BRIDEWELL. A house of correction in 
 England. 
 
 BRIDGE. A structure erected over a riv- 
 er, creek, stream, ditch, ravine, or other 
 place, to facilitate the passage thereof; in- 
 cluding, by the term, both arches and abut- 
 ments. 3 Har. (N. J.) 108; 15 Vt. 438. 
 
 The common-law definition, flumen vel 
 cursus aquae, etc., has a more enlarged 
 significance in modern usage, and the term 
 "bridge" in statutes signifies also crossings 
 over public ways on land. 37 Me. 451. 
 
 Bridges are either public or private. 
 Public bridges are such as form a part of 
 the highway, common, according to their 
 character, as foot, horse, or carriage bridges, 
 to the public generally, with or without toll 
 (2 Bast, 342) ; though their use may be limit- 
 ed to particular occasions, as to seasons of 
 flood or frost (2 Maule & S. 262; 4 Campb. 
 189). 
 
BRIDGE MASTERS 
 
 (113) 
 
 BROKERS 
 
 BRIDGE MASTERS. Persons chosen by 
 the citizens to have the care and supervis- 
 ion of bridges, and having certain fees and 
 proiits belonging to their office, as in the 
 case of London Bridge. Lex. Lond. 283. 
 
 BRIEF (Lat. hrevis; Law Fr. briefe, 
 short). A short or condensed statement. 
 
 In Ecclesiastical Law. A papal re- 
 script sealed with wax. See "Bull." 
 
 In Old Practice. A writ. It is found 
 
 in this sense in the ancient law authors. 2 
 Co. Litt. 73b. 
 
 In English Practice. A statement by 
 
 a solicitor to counsel, containing the facts 
 and issues, the names of the witnesses, etc., 
 to obtain the advice of counsel on a point of 
 law, or to enable him to prepare for trial. 
 
 In American Practice. The written 
 
 or printed points, authorities, and argu- 
 ment furnished to the court by counsel. It 
 must contain some statement of the case 
 and argument therein; a mere copy of part 
 of the assignments of error being insuffi- 
 cient. 12 Ind. 654, And see 43 Ind. 356. 
 
 BRIEF A L'EVESQUE. A writ to the 
 bishop which, in guare impedit, shall go to 
 remove an incumbent, unless he recover or 
 be presented pendente lite. 1 Keb. 386. 
 
 BRIEF OF TITLE. An abstract of title 
 («. f.) 
 
 BRIEF (or BRIEVE) OUT OF THE 
 chancery. A writ issued in Scotland in the 
 name of the sovereign in the election of tu- 
 tors to minors, the cognoscing of lunatics 
 or of idiots, and the ascertaining the wid- 
 ow's terce; and sometimes in dividing the 
 property belonging to heirs-portioners. In 
 these cases, only brieves are now in use. 
 Bell, Diet. 
 
 BRIEF, PAPAL. The pope's letter upon 
 matters of discipline. 
 
 BRIEVE (from breve, q. v.) In Scotch 
 law. A writ. 1 Kames, Bq. 146; 1 Forbes, 
 inst. pt. 4. bk. 2, c. 1, tit. 2, § 1. 
 
 BRIGA (Law Lat.) In old European law. 
 Strife; contention; litigation; controversy. 
 Spelman; Cowell; Blount. 
 
 BRIGANDINE. A coat of mail or ancient 
 armor, consisting of numerous jointed 
 scale-like plates, very pliant and easy for 
 the body. 
 
 BRIGBOTE (Saxon). A contribution to 
 repair a bridge. 
 
 BRINGING MONEY INTO COURT. The 
 
 act of depositing money in the hands of the 
 proper officer of the court for the purpose 
 of satisfying a debt or duty, or of an inter- 
 pleader. "See "Payment into Court." 
 
 BRIS. In French maritime law. Liter- 
 ally, breaking; wreck. Distinguished from 
 naufrage (q. v.) Ord. Mar. 11 v. 2, tit. 9. 
 
 BRISTOL BARGAIN. A contract by 
 which A. lends B. £1,000 on good security, 
 
 and it is agreed that £500, together with 
 interest, shall be paid at a time stated, and, 
 as to the other £500, that B., in considera- 
 tion thereof, shall pay to A. £100 per an- 
 num for seven years. Wharton. 
 
 BROCAGE. See "Brokerage." 
 
 BROCARIUS, or BROCATOR. A broker; 
 ,a middle-man between buyer and seller; 
 the agent of both transacting parties. Used 
 in the old Scotch and English law. Bell, 
 Diet.; Cowell. 
 
 BROCELLA. A thicket, or covert, of 
 bushes and brushwood. "Browse" is said 
 to be derived hence. Cowell. 
 
 BROKERAGE, or BROCAGE. The trade 
 or occupation of a broker; the commissions 
 paid to a broker for his services. 
 
 BROKERS. Those who are engaged for 
 others in the negotiation of contracts rela- 
 tive to property, with the custody of which 
 they have no concern. Paley, Ag. 13. See 
 16 Gray (Mass.) 436; 45 111. 79; 16 How. 
 Pr. (N. y.) 440. 
 
 One who receives a commission for mak- 
 ing a bargain for another. 6 Bing. 702. 
 
 A salaried agent is not a broker. 1 Ore. 
 218. 
 
 A broker differs from a factor in that ha 
 has no possession of the property he sells. 
 47 Cal. 213; 41 N. Y. 235; 104 Mass. 259. 
 
 Bill and Note Brokers. Those who 
 
 negotiate the purchase and sale of bills of 
 exchange and promissory notes. 
 
 Exchange Brokers. Those who nego- 
 tiate bills of exchange drawn on foreign 
 countries, or on other places in this country. 
 
 Insurance Brokers. Those who pro- 
 cure insurance, and negotiate between in- 
 surers and insured. 
 
 Merchandise Brokers. Those who ne- 
 gotiate the sale of merchandise without 
 having possession or control of it, as factors 
 have. 
 
 Pawnbrokers. Those who lend money 
 
 in small sums, on the security of personal 
 property, at usurious rates of Interest. They 
 are licensed by the authorities, and except- 
 ed from the operation of the usury laws. 
 
 Real-Estate Brokers. Those who ne- 
 gotiate the sale or purchase of real prop- 
 erty. They are a numerous class, and, in 
 addition to the above duty, sometimes pro- 
 cure loans on mortgage security, collect 
 rents, and attend to the letting and leasing 
 of houses and lands. 
 
 Ship Brokers. Those who negotiate 
 
 the purchase and sale of ships, and the busi- 
 ness of freighting vessels. Like other bro- 
 kers, they receiver commission from the sell- 
 er only. 
 
 Stock Brokers. Those employed to 
 
 buy and sell shares of stock in incorporated 
 companies, and the indebtedness of govern- 
 ments. These brokers have possession of 
 the certificates and other written evidences 
 of title. 
 
BROSSUS 
 
 (114) 
 
 BULLION 
 
 BROSSUS. Bruised, or injured with 
 blows, wounds, or other casualty. Cowell. 
 
 BROTHEL. A bawdy house; a common 
 habitation of prostitutes. 
 
 BROTHER. He who is born from the 
 same father and mother with another, or 
 from one of them only. 
 
 Brothers are of the whole blood v,fhen they 
 are born of the same father and mother, 
 and of the half-blood when they are the is- 
 sue of one of them only. In the civil law, 
 when they are the children of the same 
 father and mother, they are called "broth- 
 ers germain;" when they descend from the 
 same father, but not the same mother, they 
 are "consanguine brothers;" when they are 
 the issue of the same mother, but not the 
 same father, they are "uterine brothers." 
 A "half-brother" is one who is born of the 
 same father or mother, but not of both; one 
 born of the same parents before they were 
 married, a "left-sided brother;" and a bas- 
 tard born of the same father or mother is 
 called a "natural brother." See "Blood;" 
 "Half-Blood ; " "Line;" Merlin, Repert. 
 Frere; Diet, de Jurisp. Frere; Code, 3. 28. 
 27;, Nov. 84, praef. ; Dane, Abr. Index. 
 
 BROTHER-IN-LAW. The brother of a 
 wife, or the husband of a sister. 
 
 There is no relationship, in the former 
 case, between the husband and the brother- 
 in-law, nor in the latter, between the broth- 
 er and the husband of the sister; there is 
 only affinity between them. See Vaughan, 
 302, 329. 
 
 BRUARIUM, BRUERA, BRUERIA, or 
 bruerum. In old English law. A heath 
 ground; ground where heath grows. Spel- 
 man; Fleta, lib. 2, c. 71, § 7; Id. lib. 2, c. 41, 
 § 2; Id. lib. 4, c. 27, § 16. Bracton, fol. 229b, 
 231; Co. Lift. 4b; Reg. Orig. lb, 2. 
 
 BRUGBOTE. See "Brigbote." 
 
 BRUILLUS. A wood or grove; a thicket 
 or clump of trees in a park or forest. Jacob. 
 
 BRUISE. In medical jurisprudence. An 
 injury done with violence to the person, 
 without breaking the skin. It is nearly 
 synonymous with "contusion" (q. v.) 1 
 Chanc. Prac. 38. See 4 Car. & P. 381, 487, 
 558, 565. 
 
 BRUKBARN. In old Swedish law. The 
 child of a woman conceiving after a rape, 
 which was made legitimate. Literally, the 
 child of a struggle. Barr. Obs. St. 
 
 BRUTUM FULMEN. An empty noise; 
 an empty threat. 
 
 BUBBLE ACT. The name given to the 
 statute 6 Geo. I. c. 18, which was passed in 
 1719, and was intended "for restraining 
 several extravagant and unwarrantable prac- 
 tices therein mentioned." See 2 P. Wms. 
 219. 
 
 BUCKSTALL. A toil to take deer. 4 
 Inst. 306. 
 
 BUGGERY. Includes both "bestiality," 
 or carnal connection between a human be- 
 ing and a beast, and "sodomy," or carnal 
 connection between human beings against 
 the order of nature. 3 Inst. 58. 
 
 BUILDING. An edifice, erected by art 
 aid fixed upon or over the soil, composed 
 of stone, brick, marble, wood, or other prop- 
 er substance, conneeted together, and de- 
 signed for use in the position in which it 
 is so fixed. 
 
 Taken in its broadest sense, it can mean 
 only an erection intended for use and oc- 
 cupation as a habitation, or for some pur- 
 pose of trade, ornament, or use. 13 Gray 
 (Mass.) 312. 
 
 A bridge (11 Wis. 119), a floating dock (2 
 Vroom [N. J.] 477), seats or platforms in a 
 park (55 Cal. 159; 39 Conn. 41) have been 
 held not to be buildings, while an unfinish- 
 ed house (L. R. 1 C. C. 338), a stable (94 
 111. 456), a church (10 Pa. 413) are build- 
 ings. 
 
 BUILDING LEASE. A lease of the soil 
 for the purpose of erecting buildings there- 
 on, usually for a long term. See "Ground 
 Rent." 
 
 BULK. Merchandise which is .neither 
 counted, weighed, nor measured. 
 
 A sale by bulk is a sale of a quantity of 
 goods such as they are, without measuring, 
 counting, or weighing.. Civ. Code La. art. 
 3522, note 6. 
 
 BULL. A letter from the pope of Rome, 
 written on parchment, to which is attached 
 a leaden seal impressed with the images of 
 Saint Peter and Saint Paul. 
 
 There are three kinds of apostolical re- 
 scripts, — the "brief," the "signature," and 
 the "bull," which last is most commonly 
 used in legal matters. Bulls may be com- 
 pared to the edicts and letters patent of sec- 
 ular princes. When the bull grants a fa- 
 vor, the seal is attached by means of silken 
 strings; and when to direct execution to be 
 performed, with flax cords. Bulls are writ- 
 ten in Latin, in a round and Gothic hand. 
 Ayliffe, Par. 132; Ayliffe, Pand. 21; Merlin. 
 Repert. 
 
 BULLA (Lat.) A seal used by the Ro- 
 man emperors during the lower empirei and 
 which was of four kinds, — gold, silver, wax, 
 and lead. These are described by Spelman 
 in detail. 
 
 A letter, brief, or charter, sealed with 
 such a seal (litcrae hullatae). Spelman. 
 
 A brief, mandate, or bull of the pope, 
 having usually a leaden, but sometimes a 
 golden, seal. Spelman; Blount; Cowell; 
 Burrill. 
 
 BULLETIN. An official account of pub- 
 lic transactions on matters of importance. 
 In France, it is the registry of the laws. 
 
 BULLION. The term "bullion" is com- 
 monly applied to uncoined gold and silver, 
 in the mass or lump. 
 
BULLION FUND 
 
 (115) 
 
 BURGHBRECH 
 
 BULLION FUND. A deposit of public 
 money at the mint and its branches. The 
 object of this fund is to enable the mint to 
 make returns of coins to private depositors 
 of bullion without waiting until such bullion 
 is actually coined. If the bullion fund is 
 sufficiently large, depositors are paid as 
 soon as their bullion is melted and assayed, 
 and the value ascertained. It thus enables 
 the mint to have a stock of coin on hand to 
 pay depositors in advance. Such bullion 
 becomes the property of the government, 
 and, being subsequently coined, is available 
 as a means of prompt payment to other de- 
 positors. Act May 23, 1850 (9 U. S. St. at 
 Large, 436). 
 
 BUM-BAILIFF. A person employed to 
 dun one for a debt; the bailiff employed to 
 arrest a debtor. Black thinks it a vulgar 
 corruption of "bound-bailiff" ((?. v.) Hall 
 says that, from the notion of a humming or 
 droning noise, the word "bum" was applied 
 to dunning for a debt. 
 
 BUNDA, BONDA, or BONNA. In old 
 English law. A bound, boundary, border, or 
 limit (terminus, limes). Spelman, voc. 
 "Bannum;" "Bonna." 4 Inst. 318; Bracton, 
 fol. 166b; 2 Crabb, Real Prop. 146; Reg. 
 Orig. 263b. 
 
 BUOY. A piece of wood, or an empty 
 barrel, or other thing, moored at a particular 
 place, and floating on the water, to show 
 the place where it is shallow, to mark the 
 channel, or to indicate the danger there Is 
 to navigation. 
 
 BURDEN OF PROOF. The duty of prov- 
 ing the facts in dispute on an issue raised 
 between the parties in a cause. See 16 N. 
 T. 66; 1 Gray (Mass.) 500; 6 Wheat. (U. S.) 
 481. 
 
 Burden of proof is to be distinguished 
 from prima facie evidence or a prima facie 
 case. Generally, when the latter is shown, 
 the duty imposed upon the party having the 
 burden will be satisfied, but it is not neces- 
 'sarily so. 6 Gush. (Mass.) 364; 11 Mete. 
 (Mass.) 460; 22 Ala. 20; 7 Blackf. (Ind.) 
 427; 1 Gray (Mass.) 61; 7 Boston Law Rep. 
 439. 
 
 BUREAUCRACY. A government by de- 
 partments, each under a chief; a word to 
 describe the system used in an invidious 
 sense. Wharton. 
 
 BURG, or BURGH. A term anciently ap- 
 plied to a castle or fortified place; a borough 
 (g. V.) Spelman. 
 
 BURGAGE. A species of tenure, de- 
 scribed by old law writers as but tenure in 
 socage, where the king or other person 
 was lord of an ancient borough, in which 
 the tenements were held by a rent certain. 
 
 Such boroughs had, and still have, cer- 
 tain peculiar customs connected with the 
 tenure, which distinguished it from the 
 ordinary socage tenure. These customs are 
 known by the name of "Borough English" («. 
 v.), and they alter the law in respect of de- 
 
 scent, as well as of dower, and the power of 
 devising. By it the youngest son inherits 
 the lands of which his father died seised. A 
 widow, in some boroughs, has dower in re- 
 spect to all the tenements which were her 
 husband's; in others, she has a moiety of 
 her husband's lands so long as she remains 
 unmarried; and with respect to devises, in 
 some places, such lands only can be devised 
 as were acquired by purchase; in others, 
 estates can only be devised for life. 2 Bl. 
 Comm. 82; Glanv. bk. 7, c. 3; Litt. § 162; 
 Cro. Car. 411; 1 Salk. 243; 2 Ld. Raym. 
 1024; 1 P. Wms. 63; Fitzh. Nat. Brev. 150; 
 Cro. Eliz. 415. 
 
 BURGAGE HOLDING. A tenure by which 
 lands in royal boroughs in Scotland were 
 held of the sovereign. The service was 
 watching and warding, and was done by 
 the burgesses within the territory of the 
 borough, whether expressed in the charter 
 or not. See 31 & 32 Vict. c. 101. 
 
 BURGAGE TENURE. In English law. A 
 tenure by which houses, or lands which 
 were formerly, the site of houses, in ancient 
 boroughs, are held of the king, or other 
 lord of the borough, at a certain yearly 
 rent. Glanv. lib. 7, c. 3; Litt. §§ 162, 163; 
 Co. Litt. 108b; 2 Bl. Comm. 82; Blount; 1 
 Steph. Comm. 198; 1 Crabb, Real Prop. p. 
 593, § 749. 
 
 BURGATOR. One who breaks into houses 
 or inclosed places, as distinguished from 
 one who committed robbery in the open 
 country. Spelman, voc. "Burglaria." 
 
 BURGBOTE. A term applied, in the old 
 English law, to a contribution towards the 
 repair of castles or walls of defense, or of 
 a borough. 
 
 BURGENSES. In old English law. The 
 inhabitants of a borough. 
 
 BURGERISTH. A word used in Domes- 
 day, signifying a breach of the peace In a 
 town. Jacob. 
 
 BURGESS. A magistrate of a borough. 
 Blount. An officer who discharges the same 
 duties for a borough that a mayor does for 
 a city. The word is used in this sense in 
 Pennsylvania. 
 
 An inhabitant of a town; a freeman; one 
 legally admitted as a member of a corpora- 
 tion. Spelman. A qualified voter. 3 Steph. 
 Comm. 192. A representative in parliament 
 of a town or borough. 1 Bl. Comm. 174. 
 
 BURGESS ROLL. A list of those en- 
 titled to new rights under the act of 5 & 6 
 Wm. IV. c. 74; 3 Steph. Comm. 192 et seq. 
 
 BURGH ENGLISH. See "Borough Eng- 
 lish." 
 
 BURGH ENGLOYS. Borough English 
 {q. V.) y. B. P. 1 Edw. III. 38. 
 
 BURGHBRECH, or BURGHBRECHE. A 
 fine imposed on the community of a town 
 for a breach of the peace, etc. 
 
BURGHMAILS 
 
 (116) 
 
 BURYING ALIVE 
 
 BURGHMAILS. Yearly payments to the 
 crown of Scotland, introduced by Malcolm 
 III., and resembling the English fee-farm 
 rents. Bnc. Lond. 
 
 BURGH MOTE. In Saxon law. A court 
 of justice held twice a year, or oftener, in 
 a burg. All the thanes and free owners 
 above the rank of ceorls were bound to at- 
 tend without summons. The bishop or lord 
 held the court. Spence, Bq. Jur. 
 
 BURGLAR. One who commits burglary 
 (g. V.) 
 
 BURGLARIOUSLY. In pleading. A tech- 
 nical word which must be introduced in- 
 to an indictment for burglary at common 
 law. No other word at common law will 
 answer ' the purpose, nor will any circum- 
 locution be sufficient. 4 Coke, 39; 5 Coke, 
 121; Cro. Eliz. 920; Bac. Abr. "Indictment" 
 (G, C). But there is this distinction : When 
 a statute punishes an offense, by its legal 
 designation, without enumerating the acts 
 which constitute it, then it is necessary to 
 use the terms which technically charge the 
 offense named, at common lawr But this is 
 not necessary when the statute describes 
 the whole offense, and the Indictment 
 charges the crime in the words of the stat- 
 ute. Thus, an indictment which charges 
 the statute crime of burglary is sufficient, 
 without averring that the crime was com- 
 mitted "burglariously." 4 Mete. (Mass.) 
 357. 
 
 BURGLARITER. In old criminal plead- 
 ing. Burglariously. 
 
 BURGLARY. At common law, the break- 
 ing and entering the house of another in 
 the nighttime, with intent to commit a 
 felony therein, whether the felony be ac- 
 tually committed or not. Coke, 3d Inst. 63; 
 1 Hale, P. C. 549; 1 Hawk. P. C. c. 38, § 1; 
 4 Bl. Comm. 224; 2 East, P. C. c. 15, § 1, p. 
 484; 2 Russ; Crimes, 2; Rose. Crim. Bv. 
 252; 1 Coxe (N. J.) 441; 7 Mass. 247. 
 
 The elements of the offense are: 
 
 (1) The breaking (105 Mass. 588); but 
 a constructive breaking is sufficient (9 Ired. 
 [N. C] 463). See "Breaking." 
 
 (2) The entry. Ill Mass. 395. 
 
 (3) The building broken and entered 
 must be the dwelling house of another (43 
 Ala. 17) ; but an outstanding building within 
 the curtilage is regarded as part of the 
 dwelling (26 Ala. 45). 
 
 (4) Both breaking and entry must be in 
 the nighttime. 10 N. H. 105. 
 
 (5) And both must be with intent to 
 commit a felony in the house (12 N. H. 
 42); but the felony need not have been 
 committed (29 Ind. 80). 
 
 The offense has been enlarged by stat- 
 ute both as to the buildings broken into, and 
 as to the time of the breaking and entry. 
 
 BURGOMASTER. In Germany, this is 
 the title of an officer who performs the du- 
 ties of a mayor. 
 
 BURGWHAR. A burgess (g. v.) 
 
 BURIAL. The act of interring the dead. 
 
 No burial Is lawful unless made in con- 
 formity with the local regulations; and 
 when a dead body has been found, it cannot 
 be lawfully buried until the coroner has 
 held an inquest over it. In England it is 
 the practice for coroners to issue warrants 
 to bury, after a view. The leaving unburied 
 the corpse of a person for whom the defend- 
 ant is bound to provide Christian burial, as 
 a wife or child, is an indictable misdemean- 
 or, if he is shown to have been of ability to 
 provide such burial. 2 Den. C. C. 325. 
 
 BURKING, or BURKISM. Committing 
 murder in order to sell the body for dissec- 
 tion. So called from the first perpetrator. 
 See 4 Redf. Sur. (N. Y.) 540. 
 
 BURLAW (BYRLAW, or BIRLAW) 
 courts. In Scotch law. Assemblages of 
 neighbors to elect burlaw men, or those who 
 were to act as rustic judges in determining 
 disputes in their neighborhood. Skene de 
 Verb. Sign.; Bell, Diet. 
 
 BURLAWS, BIRLAWS, or BYRLAWS. 
 
 In Scotch law. Laws made by neighbors 
 elected by common consent in the birlaw 
 courts. Skene de Verb. Sign. 
 
 Laws made by husbandmen, etc., concern- 
 ing neighborhood (rusticorum leges). Spel- 
 man, voc. "Bellagines," considers this word 
 essentially the same with "by-laws" (g. v.) 
 
 BURNING. See "Accident;" "Fire." 
 
 BURNING IN THE HAND. When a lay- 
 man was admitted to benefit of the clergy 
 he was burned in the hand, "in the brawn of 
 the left thumb," in order that he might not 
 claim the benefit twice. This practice was 
 finally abolished by St. 19 Geo. III. c. 74, 
 though before that time the burning was 
 often done with a cold iron. 12 Mod. 448; 
 4 Bl. Comm. 267 et seq. 
 
 BURROCHIUM. A burroch, dam, or 
 small wear over a river, where fish traps 
 are laid. Cowell. 
 
 BURROWMEALIS. A term in the Scotch 
 law, used to designate the rents paid into 
 the king's private treasury by the burgesses 
 or inhabitants of a borough. 
 
 BURSA, or BURSE. A purse. Spelman; 
 Bracton, fol. 84; Britt, c. 29. 
 
 BURSARIA. The bursery or exchequer 
 of collegiate and conventual bodies; or 
 the place of receiving and paying and 
 accounting by the bursarii, or bursers, A. 
 D. 1277. But the word "bursarii" did not 
 only signify the bursers of a convent or col- 
 lege, but formerly stipendiary scholars were 
 called by the name of "bursarii," as they 
 lived on the burse or fund, or public stock 
 of the university. At Paris, and among the 
 Cisterian monks, they were particularly 
 termed by this name. Jacob. 
 
 BURYING ALIVE. In English law. The 
 ancient punishment of sodomites, and those 
 who contracted with Jews. Fleta, lib. 1,. 
 c. 27, § 3. 
 
BURYING GROUND 
 
 (117) 
 
 BY ESTIMATION 
 
 BURYING GROUND. A place appro- 
 priated for depositing the dead; a cemetery. 
 In Massachusetts, burying grounds cannot 
 be appropriated to roads without the con- 
 sent to the owners. Gen. St. Mass. 244. 
 
 BUSCARL, or BUTSECARL. In Saxon 
 and old English law. Seamen or marines; 
 milites nautici. Spelman. 
 
 BUSHEL. The Winchester bushel, es- 
 tablished by 13 Wm. III. c. 5 (1701), was 
 made the standard of grain. A cylindrical 
 vessel, eighteen and a half inches in diame- 
 ter, and eight inches deep inside, contains 
 a bushel. The capacity is 2,145.42 cubic 
 inches. The bushel established by 5 & 6 
 Geo. IV. c. 74, is to contain 2,218.192 cubic 
 inches. This measure has been adopted in 
 many of the United States. In New York 
 the heaped bushel is allowed, containing 
 2,815 cubic inches. The exceptions, as far 
 as known, are Connecticut, where the bushel 
 holds 2,198 cubic inches; Kentucky, 2,150.66; 
 Indiana, Ohio, Mississippi, and Missouri, 
 where it contains 2,150.4 cubic inches. 
 Dane, Abr. c. 211, a. 12, § 4. See the whole 
 subject discussed in Report of the Secretary 
 of State of the United States to the Senate, 
 Feb: 22, 1821. 
 
 In accordance with a joint resolution of 
 congress, adopted in June, 1836, a uniform 
 scale of weights and measures has been 
 adopted in many states, by which the bush- 
 el shall contain 2,150 cubic inches. See Dom. 
 Commerce Act N. Y. § 2. 
 
 It is further provided that, where any 
 commodity is sold by the bushel, and no 
 special agreement is made as to the mode 
 of measuring, the bushel shall consist of 70 
 pounds of lime; 60 pounds of wheat, peas, 
 potatoes, clover seed, or beans; 57 pounds 
 of onions; 56 pounds of Indian corn or rye; 
 55 pounds of flaxseed; 54 pounds of sweet 
 potatoes; 50 pounds of corn meal, rye meal, 
 or carrots; 48 pounds of barley, apples, or 
 buckwheat; 45 pounds of beard grass, tim- 
 othy seed, or rice; 33 pounds of dried 
 peaches; 32 pounds of oats; 25 pounds dried 
 apples; 20 pounds bran or shorts. Id. § 8. 
 
 BUSINESS CORPORATION. A stock cor- 
 poration other than insurance, banking, and 
 transportation corporations. Gen. Corp. Law 
 N. Y. § 2. 
 
 BUSINESS HOURS. The time of the day 
 during which business is transacted. In re- 
 spect to the time of presentment and de- 
 mand of bills and notes, business hours 
 generally range through the whole day down 
 to the hours of rest in the evening, except 
 when the paper is payable at a bank, or 
 by a banker. 2 Hill (N. Y.) 835. See 15 
 Me. 67; 17 Me. 230. 
 
 BUSONES. A word found only in Brac- 
 ton (folio 115b). Prom the context, it 
 means the principal persons of the county, 
 and is thought to have been synonymous 
 with "barons." 2 Reeve, Hist. Eng. Law, 
 2, note; Crabb, Hist. Eng. Law, 161. 
 
 BUSS A, or B use I A. In old English law. 
 A ship of large size and clumsy construc- 
 tion. Spelman. 
 
 BUTLERAGE. A certain portion of ev- 
 ery cask of wine imported by an alien, 
 which the king's butler was allowed to ta,ke. 
 
 Called also "prisage." 2 Bulst. 254. An- 
 ciently, It might be taken also of wine im- ' 
 ported by a subject. 1 Bl. Comm. 315; 
 Termes de la Ley; Cowell. 
 
 BUTLER'S ORDINANCE. In English law. 
 A law for the heir to punish waste in the 
 life of the ancestor. "Though it be on rec- 
 ord in the parliament book of Edward I., yet 
 it never was a statute, nor ever so received; 
 but only some constitution of the king's 
 council, or lords in parliament, which never 
 obtained the strength or force of an act of 
 parliament." Hale, Hist. Com. Law, 18. 
 
 BUTT. A measure of capacity, equal to 
 one hundred and eight gallons. See "Meas- 
 ure." 
 
 BUTTALS. The bounding lines of land 
 at the end; abuttals. 
 
 BUTTED AND BOUNDED. A phrase 
 sometimes used in conveyancing, to denote 
 the boundaries of lands. See "Butts and 
 Bounds." 
 
 BUTTS. The ends or short pieces of ara- 
 ble lands left in ploughing. Cowell. 
 
 Butt also denotes a measure of land (Ja- 
 cob; Cowell), and a measure of quantity, 
 equal to one hundred and eight gallons. 
 See "Measure." 
 
 BUTTS AND BOUNDS. The lines bound- 
 ing an estate; the angles or points where 
 these lines change their direction. Cowell; 
 Spelman. 
 
 BUTTY. A local term in the north of 
 England, for the associate or deputy of an- 
 other; also of things used in common. 
 
 BUYING TITLES. The purchase of the 
 rights of a disseisee to lands of which a 
 third person has the possession. 
 
 BY, or BYE. A habitation. Co. Litt.; 18 
 App. Div. (N. Y.) 142. 
 
 BY-BIDDING. Bidding on property of- 
 fered for sale at auction, by or in behalf 
 of the owner, for the mere purpose of rais- 
 ing the price, or inducing others to bid 
 higher. Sometimes called "puffing." By- 
 bidding by the owner, or caused by the 
 owner, or ratified by him, has often been 
 held to be a fraud, and avoids the sale. 8 
 How. (U. S.) 153. 
 
 BY BILL, or BY BILL WITHOUT WRIT. 
 
 These terms were anciently applied to ac- 
 tions commenced by original bill, instead 
 of by original writ. 1 Archb. Pr. pp. 2, 337; 
 5 Hill (N. Y.) 213. They were later used 
 to denote actions commenced by capias. 
 
 BY ESTIMATION. A term used in con- 
 veyances. In sales of land it not unfre- 
 
BY GOD AND MY COUNTRY 
 
 (118) 
 
 BY THE BYE 
 
 quently occurs that the property is said 
 to contain a certain number o£ acres "by 
 estimation," or so many acres, "more or 
 less." When these expressions are used, if 
 the land fall short by a small quantity, the 
 purchaser will receive no relief. In one 
 case of this kind, the land fell short two- 
 fifths, and the purchaser received no re- 
 lief. 2 Preem. 106. See 1 Call. (Va.) 301; 
 4 Hen. & M. (Va.) 184; 6 Bin. (Pa.) 106; 
 1 Serg. & R. (Pa.) 166; 2 Johns. (N. Y.) 37; 
 ' 5 Johns. (N. Y.) 508; 15 Johns. (N. Y.) 471; 
 3 Mass. 380; 5 Mass. 355; 1 Root (Conn.) 
 528. The meaning of these words has never 
 been precisely ascertained by judicial de- 
 cision. See Sugd. Vend. 231-236; Wolff. 
 Inst. § 658; and the cases cited under the 
 articles "Constitution;" "More or Less;" 
 "Subdivision." 
 
 BY GOD AND MY COUNTRY. In old 
 
 English criminal practice. The established 
 formula of reply by a. prisoner, when ar- 
 raigned at the bar, to the question, "Cul- 
 prit, how wilt thou be tried?" Mr. Barring- 
 ton thinks the correct formula must origi- 
 nally have been, "By God or my country," 
 i. e., by ordeal (the judicium Dei), or by 
 jury, for the reason that the question asked 
 supposes an option in the prisoner, and 
 the answer is meant to assert his inno- 
 cence by declining neither sort of trial. 
 Barr. Obs. St. 84, note (1). But it is clear 
 that, in answering the question, the pris- 
 oner was expected to select one particular 
 mode of trial, which the alternative expres- 
 sion contended for would not amount to. 
 That the expression "By God" did not nec- 
 essarily and exclusively import the ordeal 
 appears from the form of issue in cases of 
 trial by the grand assize, which always was 
 that the party put himself "on God and on the 
 grand assize." See Britt. c. 48; Y. B. T. 
 20 Hen. VI. 4. That every word of this 
 formula was deemed essential appears from 
 several cases on record, in which the pris- 
 oner's replies, "By God and my good coun- 
 try," "By God and honest men," were sev- 
 erally rejected, and he was compelled to use 
 
 the precise words of the form. 1 How. St. 
 Tr. 1143; 3 How. St. Tr. 520; 6 How. St. 
 Tr. 75; 7 How. St. Tr. 831. On the trial 
 of John James for high treason (13 Car. II. 
 1661), and the prisoner requesting an ex- 
 planation of the form, the judge said that 
 "By God" meant "by the law of God," and 
 "by the country," twelve Middlesex men of 
 truth, that would judge impartially between 
 the king and him. 6 How. St. Tr. 75. 
 
 BY-LAW MEN. In an ancient deed, cer- 
 tain parties are described as "yeomen and 
 by-law men for this present year in Easin- 
 guold." 6 Q. B. 60. They appear to have 
 been men appointed for some purpose of 
 limited authority by the other inhabitants, 
 as the name would suggest, under by-laws 
 of the corporation appointing. 
 
 BY-LAWS. 
 
 In Old English Law. The ordinances 
 
 of a tpwn or village. See "By." 
 
 In Modern Usage. Rules and ordi- 
 nances made by a corporation for its own 
 government. See 18 App. Div. (N. Y.) 142. 
 
 BY-ROAD. "There are three kinds of roads 
 known to our law: (1) Public roads; (2) 
 private roads; (3) by-roads. All these dif- 
 fer from a mere right of way. A by-road 
 is, as its name imports, an obscure or neigh- 
 borhood road in its earlier existence, not 
 used to any great extent by the public, yet 
 so far a public road that the public have 
 of right free access to it at all times." 34 
 N. J. Law, 89; 46 N. J. Law, 509. 
 
 BY THE BYE. In practice. Without pro- 
 cess. A declaration is said to be filed by 
 the bye when it is filed against a party al- 
 ready in the custody of the court under 
 process in another suit. This might have 
 been done, formerly, where the party was 
 under arrest, and technically in the custody 
 of the court; and even giving common bail 
 was a sufiicient custody in the king's bench. 
 1 Sellon, Prac. 228; 1 Tidd. Prac. 419. It 
 is no longer allowed. Archb. New Prac. 293. 
 
(119) 
 
 CAETERIS PARIBUS 
 
 o 
 
 C. The third letter of the alphabet. It 
 was used on the ballots of Roman jurors to 
 denote condemnation, being the initial let- 
 ter of condemno. See "A." 
 
 "C" is sometimes used for "t" in old rec- 
 ords, as "tercia" for "tertia," and "tocius" 
 for "totius." Mag. Cart. 9 Hen. III. c. 7. 
 
 C. A. V. An abbreviation for curia ad- 
 visari vult (q. v.). 
 
 C. O. D. Collect on delivery. The abbre- 
 viation has acquired an established meaning 
 (39 111. 312), but judicial notice will not be 
 taken thereof (55 N. Y. 200). 
 
 C. T. A. Gum tcstamciito aiiiwxo. A spe- 
 cies of administration (g. v.) 
 
 CABAL (Hebrew, cabala, tradition; or 
 Fr. cabale, intrigue). 
 
 (1) A hidden or imaginary art practiced 
 by the Jews. 1 Hall. Lit. Hist. 205. The 
 Jews believed that Moses received in Sinai 
 not only the law, but also certain unwritten 
 principles of interpretation, called "cabala" 
 or "tradition," which were handed down 
 from father to son, and in which mysterious 
 and magical powers were supposed to re- 
 side. 
 
 (2) A junto or private meeting of small 
 parties. This name was given to that min- 
 istry in the reign of Charles II., formed by 
 Clifford, Ashley, Buckingham, Arlington, and 
 Lauderdale, who concerted for the restora- 
 tion of popery. 
 
 CABALLERIA. In Spanish law. A por- 
 tion of spoils taken or lands conquered in a 
 war, granted to a horse soldier. Diet. Span. 
 Acad.; 12 Pet. (U. S.) 444, note. 
 
 A quantity of land, varying in extent in 
 different provinces. In those parts of the 
 United • States which formerly belonged to 
 Spain, it is a lot of one hundred feet front, 
 two hundred feet depth, and equivalent to 
 five peonias. 2 White, New Recop. 49; 12 
 Pet. (U. S.) 444, note; Escriche, Die. Raz. 
 
 CABALLERO (Spanish; from Latin ca- 
 ballus, a horse). In Spanish law. A knight. 
 So called on account of its being more hon- 
 orable to go on horseback (a caballo) than 
 on any other beast. White, New Recop. bk. 
 1, tit. 5, c. 3, § 3; Id. bk. 1, tit. 5, c. 1; 
 Id. bk. 4, tit. 10, c. 1, § 6. 
 
 CABINET. Certain officers who, taken 
 collectively, form a council or advisory 
 board; as the cabinet of the president of the 
 United States, which is composed of the 
 secretary of state, the secretary of the treas- 
 ury, the secretary of the interior, the secre- 
 tary of war, the secretary of the navy, the 
 secretary of agriculture, the attorney gen- 
 eral, and the postmaster general. 
 
 CABINET COUNCIL. A private and con- 
 fidential assembly of the most considerable 
 ministers of state, to concert measures for 
 the administration of public affairs; first es- 
 tablished by Charles I. Wharton. 
 
 CABLISH. In forest law. Brush- wood. 
 According to Spelman, windfallen wood. 
 Spelman, voc. "Cablicia." 
 
 CACHEPOLUS, or CACHERELLAS. An 
 
 inferior bailiff, or catchpoll. Jacob. 
 
 CACICAZGOS. In Spanish law. Lands 
 held in entail by the caciques in Indian vil- 
 lages in Spanish America. 
 
 CADASTRE. In Spanish law. The offi- 
 cial statement of the quantity and value of 
 real property in any district, made for the 
 purpose of justly apportioning the taxes pay- 
 able on such property. 12 Pet. (U. S.) 428, 
 note; 3 Am. St. Papers, 679. 
 
 CADASTU. In French law. 
 dastre (q. v.) 
 
 Same as oa- 
 
 CADERE (Lat.) To fall; to fail; to end; 
 to terminate. 
 
 The word was generally used to denote 
 the termination or failure of a writ, action, 
 complaint, or attempt; as, cadit actio, the ac- 
 tion fails, cadit assisa, the assise abates, ca- 
 dere causa, or a causa, to lose a cause. Abate 
 will translate caderc as often as any other 
 word; the general signification being, as 
 stated, to fail or cease. Gadere ab actione 
 (literally, to fall from an action), to fail in 
 an action; cadere in partem, to become sub- 
 ject to a division. 
 
 To become; to be changed to; cadit assisa 
 in juratum, the assize has become a jury. 
 Calv. Lex.; Smith. 
 
 CADI. A Turkish civil magistrate. 
 
 CADUCA (Lat. cadere, to fall). In civil 
 law. An inheritance; an escheat; every- 
 thing which falls to the legal heir by descent. 
 
 By some writers, bona caduca are said to 
 be those to which no Ijeir succeeds, equiva- 
 lent to escheats. Du Cange. 
 
 CAEDUA (Lat. from eaedere, to cut). In 
 the civil and old common law. Kept for 
 cutting; intended or used to be cut. A term 
 applied to wood. Silva caedua est quae in 
 hoc habetur ut caederetur, sylva caedua is 
 that kind of wood which is kept for the pur- 
 pose of being cut. Dig. 50. 16. 30. Accord- 
 ing to Servius, it was that kind which, when 
 cut down, grew up again from the trunks 
 or roots. Id. See Dig. 7. 1. 10. 11; Id. 43. 
 24. 18. 
 
 CAETERIS PARIBUS. 
 
 ing equal. 
 
 Other things be- 
 
CAETERIS TACENTIBUS 
 
 (120) 
 
 CALUMNIA 
 
 CAETERIS TACENTIBUS (Lat) The oth- 
 ers being silent; the other judges express- 
 ing no opinion. Comb. 186. A phrase in 
 the old reports. 
 
 CAETERORUM (Lat.) 0£ the rest. 
 
 Administration granted as to the residue 
 of an estate, which cannot be administered 
 under the limited power already granted. 
 1 Williams, Ex'rs, 357; 2 Hagg. Ecc. 62; 4 
 Hagg. Bee. 382, 386; 4 Man. & G. 398; 1 Curt. 
 Ecc. 286. 
 
 It differs from administration de ionis non 
 in this, that in cdeterorum, the full power 
 granted is exercised and exhausted, while 
 in the other the power is, for some cause, 
 not fully exercised. See "Administration." 
 
 CAHIER (Pr.) In old French law. A list 
 of grievances prepared for deputies in the 
 states general. Steph. Lect. 254. A petition 
 for the redress of grievances enumerated. 
 Id. 257. 
 
 CAIRNS' ACT. So called from the so- 
 licitor general by whom it was introduced. 
 Act 21 & 22 Vict. c. 27, enabling the 
 court of chancery to award damages in ad- 
 dition to, or in substitution for, an injunc- 
 tion or decree for speciiic performance. Per 
 Jessel, M. R., in 7 Ch. Div. 551. 
 
 CALCETUM (Law Lat.) In old English 
 law. A causeway. Reg. Orig. 154; Fleta, 
 lib. 2, c. 52, § 33. 
 
 CALE (Pr.) In old French law. A species 
 of punishment inflicted upon sailors, by 
 plunging into the water, and drawing up 
 again. Ord. Mar. liv. 2, tit. 1, art. 22. The 
 modern keel hauling. 
 
 CA L E FAG I U M . A right to take fuel year- 
 ly. Blount. 
 
 CALENDAR. An almanac. 
 
 ilulius Caesar ordained that the Roman 
 year should consist of three hundred and 
 sixty-five days, except every fourth year, 
 which should contain three hundred and 
 sixty-six, — the additional day to be reckoned 
 by counting the 24th day of February 
 (which was the 6th of the calends of March) 
 twice. See "Bissextile." This period of 
 time exceeds the solar year by eleven min- 
 utes, or thereabouts, which amounts to the 
 error of a day in about one hundred and 
 thirty-one years. In 1582 the error amount- 
 ed to eleven days or more, which was correct- 
 ed by Pope Gregory. Out of this correction 
 grew the distinction between Old and New 
 Style. The Gregorian or New Style was in- 
 troduced into England in 1752; the 2d day 
 of September (0. S.) of that year being 
 reckoned as the 14th day of September (N. 
 S.) 
 
 In Criminal Law. A list of prisoners, 
 
 containing their names, the time when they 
 were committed, and by whom, and the cause 
 of their commitments. 4 Bl. Comm. 403. 
 
 In Practice. A list of cases arranged 
 
 for trial or argument in court. 
 
 CALENDAR MONTH. A month as meas- 
 ured by the calendar, as distinguished from 
 
 a business month (thirty days), or a lunar 
 month (twenty-eight days). 
 
 CALENDS. Among the Romans, the first 
 day of every month, being spoken of by it- 
 self, 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, as pridie calend. 
 Septewib. 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 October is the 20th day of Sep- 
 tember; for if one reckons backwards, be- 
 ginning at October, that 20th day of Septem- 
 ber makes the 10th 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. 
 Jacob. See "Ides" for table of calends, nones, 
 and ides. 
 
 CALL. 
 
 In Conveyancing. The designation in 
 
 a survey of landmarks, courses, or distances 
 is denominated a "call." 
 
 In Corporation Law. A demand or as- 
 sessment by the corporation on the stock- 
 holders due on their stock for the purposes 
 of the corporation. 
 
 In the Parlance of Stock and Grain 
 
 Exchanges. An option to purchase stock or 
 grain from another on a certain day at a 
 given price. The opposite transaction to a 
 "put"(g. V.) 
 
 CALLING THE JURY. The calling in 
 court of the names on the jury list when a 
 jury is to be selected and impanelled. 
 
 CALLING THE PLAINTIFF. A formal 
 method of causing a nonsuit to be entered, 
 the plaintiff absenting himself from the 
 courtroom, and the case being dismissed 
 for his nonappearance after he has been 
 called by the crier. 
 
 CALLING TO THE BAR. Conferring the 
 degree or dignity of barrister upon a mem- 
 ber of the Inns of Court. Holthouse. 
 
 CALPE, or CAUPE. In old Scotch law. 
 A gift of a horse, or other thing, made by a 
 man in his lifetime and liege poustie (law- 
 ful power), to the chief of his clan or other 
 superior, for his maintenance and protec- 
 tion, and which was delivered immediately 
 after his decease. Skene de Verb. Sign. voc. 
 "Caupes." A species of lieregcld (q. v.) 
 
 CALUMNIA (Lat.) In the civil law. Cal- 
 umny, malice, or ill design; a false accusa- 
 tion; a malicious prosecution. Inst. 4. 16. 
 1, Cooper's Notes; Dig. 3. 6; Code, 9. 46. 
 
 CALUMNIA, or CALUMPNIA (Law Lat.) 
 
 In Old English Law and Practice. A 
 
 claim or demand {vindicatio; law Lat. clame- 
 
 us). Spelman. The demand of a right in 
 
 anything (juris in re aliqua postulatio) . Id. 
 
 A challenge. Spelman; Reg. Orig. 223, 
 
CALUMNIAE JURAMENTUM 
 
 (121) 
 
 CAMPUS 
 
 224; Co. Litt. 155b; Crabb, Hist.'Bng. Law, 
 299. 
 
 In Feudal Law. An objection. Feud. 
 
 lib. 2, tit. 1. 
 
 CALUMNIAE JURAMENTUM. 
 
 lumniae Jusjurandum." 
 
 See "Ca- 
 
 CALUMNIAE JUSJURANDUM (Lat.) The 
 •oath against calumny. 
 
 Both parties at the beginning of a suit, in 
 certain cases, were obliged to take an oath 
 that the suit was commenced in good faith, 
 and in a firm belief that they had a good 
 cause. Bell, Diet. The object-was to prevent 
 vexatious and unnecessary suits. It was 
 especially used in divorce cases, though of 
 little practical utility. Bish. Mar. & Div. 
 § 353. A somewhat similar provision is to 
 iDe found in the requirement made in some 
 ■states that the defendant shall file an affida- 
 vit of merits. 
 
 CALUMNIATORS. In civil law. Persons 
 who accuse others, whom they know to be 
 innocent, of having committed crimes. 
 
 CALUMNY. Defamation. In old practice. 
 The unjust prosecution or defense of a suit. 
 See 30 Ohio St. 117. 
 
 CAMARA. In Spanish law. A treasury. 
 Las Partidas, pt. 6, tit. 3, lib. 2. 
 
 The exchequer. White, New Recop. bk. 3, 
 tit. 8, c. 1. 
 
 CAMBELLANUS, or CAMBELLARIUS 
 (Lat.) In old law. A chamberlain. Spel- 
 man. 
 
 CAMBIATOR. In old English law. An ex- 
 •changer. Cambiatores monetae, exchangers 
 of money; money changers. Fleta, lib. 1, c. 
 22, § 7. 
 
 CAM BIO. Exchange. 
 
 CAMBIPARTIA. Champerty. 
 
 CAMBIPARTICEPS. A champertor. 
 
 CAMBIST. A person skilled in exthange; 
 one who deals or trades in promissory notes 
 or bills of exchange; a broker. 
 
 CAMBIUM. Change; exchange. Applied 
 in the civil law to exchange of lands, as well 
 as of money or debts. Du Cange. 
 
 Cambium reale or manuale was the term 
 generally used to denote the technical com- 
 mon-law exchange of lands; cambium locale, 
 mercantile, or trajectitium. was used to desig- 
 nate the modern mercantile contract of ex- 
 change, whereby a man agrees, in considera- 
 tion of a sum of money paid him in one 
 place, to pay a like sum in another place. 
 Poth. de Change, note 12; Story, Bills, § 
 2 et seq. 
 
 CAMERA (Law Lat; Lat. camera, a vault 
 or arched roof; an upper gallery; Spanish, 
 camara). 
 
 In Old European Law. A chamber; 
 
 an apartment in a dwelling house. 
 
 A treasure chamber, or treasury; a cham- 
 
 ber with a vaulted roof, for the keeping of 
 the public treasure. 
 
 A private treasury; a place for keeping 
 private funds j)r moneys; a coffer; personal 
 funds, as distinguished from land. 
 
 In Old English Practice. A judge's 
 
 chamber. Dyer, 59b (Pr. Ed.); Id. 140b. 
 
 CAMERA REGIS. (Lat. the chambers of 
 the king). A term formerly applied es- 
 pecially to harbors, and generally to all the 
 harbors or ports of the kingdom. Cowell. 
 
 The exchequer 
 
 The star cham- 
 
 CAMERA SCACCARII. 
 chamber. Spelman. 
 
 CAMERA STELLATA. 
 
 ber. 
 
 CAMERALISTICS. The science of finance 
 or public revenue, comprehending the means 
 of raising and disposing of it. Wharton. 
 
 CAMERARIUS. A chamberlain; a keeper 
 of the public money; a treasurer. Spelman, 
 voc. "Cambellarius ; " 1 Per. & D. 243. 
 
 CAM I NO. In Spanish law. A road or 
 highway. Las Partidas, pt. 3, tit. 2, lib. 6. 
 
 CAMPANA. In old European law. A bell. 
 Spelman. 
 
 CAMPANA BAJULA. A small hand bell 
 used in the ceremonies of the Romish church, 
 and, among Protestants, by sextons, parish 
 clerks, and criers. Cowell. 
 
 CAMPANARIUM, or CAMPANILE. Abel- 
 fry, bell tower or steeple ; a place where bells 
 are hung. Spelman; Towns. PI. 191, 213. 
 
 CAMPARTUM. A part or portion of a 
 larger field or ground, which would other- 
 wise be in gross or in common; chiamperty. 
 
 CAMPBELL'S ACT. The popular name 
 for Act 9 & 10 Vict. c. 93, by which (as 
 amended by St. 27 & 28 Vict. c. 115) an ac- 
 tion for damages is given for the benefit of 
 the wife, husband, parent, grandparent, step- 
 parent, child, grandchild and stepchild of 
 a person whose death has been caused by 
 a wrongful act, neglect, or default for which 
 he himself could, if death had not ensued, 
 have recovered damages from the wrong- 
 doer. Underh. Torts, 143; Campb. Neg. 20. 
 Similar statutes of recent enactment exist 
 in nearly all of the states, some of which 
 permit the personal representatives of the 
 person killed to sue. ' 
 
 CAMPERS, or CAMPIPARS (Law Lat.; 
 Pr. champert). In old English statutes. A 
 share or division of land, or other thing; 
 champerty. 
 
 CAMPERTUM. A cornfield; a field of 
 grain. Cowell; Whishaw. 
 
 CAMPFIGHT. In old English law. The 
 fighting of two champions or combatants 
 in the field {campus) ; the judicial combat, 
 or Hiicllvm. 3 Inst. 221. 
 
 CAMPUS (Lat. a field). A share or di- 
 vision of land; a division of that which 
 
CAMPUS MAII 
 
 (122) 
 
 CANON LAW 
 
 would otherwise be in gross; cliamperty. 
 Blount; Cowell. 
 
 CAMPUS MAII (Law Lat.) The field of 
 May. An anniversary assembly of the Sax- 
 ons, held on May Day, when they confederat- 
 ed for the defense of the kingdom against 
 all its enemies. Wharton. 
 
 CAMPUS MARTI I (Law Lat.) The field 
 of March. A national assemblage of the 
 Franks held in that month. 
 
 CANAL. An artificial cut or trench in 
 the earth, for conducting and confining water 
 to be used for transportation. 
 
 CANCELLARIA. Chancery; the court of 
 chancery. Curia can cell aria is also used in 
 the same sense. See 4 Bl. Comm. 46; Cowell. 
 
 CANCELLARIUS (Law Lat.) A chancel- 
 lor anciently so called from the cancelU 
 (lattices, or latticed inclosure) within which 
 he performed his office. Cassiodorus Variar. 
 lib. 11, form 6; Spelman, voc. "Cancellarius." 
 
 A janitor, or one who stood at the door of 
 the court, and was accustomed to carry out 
 the commands of the judges; so called from 
 his position as keeper of the gate or lattice: 
 A scribe; a notary. Du Cange. 
 
 CANCELLATION. The act of crossing 
 out a writing; the manual operation of 
 tearing or destroying a written instrument. 
 1 Bq. Cas. Abr. 409; Roberts, Wills, 367, note. 
 
 ReYocation or annulment of an instrument 
 in any manner. See 58 Pa. St. 238. 
 
 CANCELLATURA. In old English law. A 
 cancelling. Bracton, 398b; Fleta, lib. 6, c. 
 34, § 5. 
 
 CANCELLI. The rails or balusters in- 
 closing the bar of a court of justice or the 
 communion table; also the lines drawn on 
 the face of a will or other writing, with the 
 intention of revoking or annulling it. Whar- 
 ton. 
 
 CANDIDATE (Lat. eandidus, white). Said 
 to be from the custom of Roman candidates 
 to clothe themselves in a white tunic. 
 
 One who offers himself for an oflice. One 
 must offer himself either directly, or by 
 consenting to the presentation of his name 
 by others to be a candidate. 2 Maule & S. 
 212. 
 
 It has been held to include persons seek- 
 ing a nomination for office. 112 Pa. St. 624. 
 
 CANDLEMAS DAY. A festival appointed 
 by the church to be observed on the second 
 day of February in every year, in honor of 
 the purification of the Virgin Mary, being 
 forty days after her miraculous delivery. 
 At this festival, formerly, the Protestants 
 went, and the Papists now go, in procession 
 with lighted candles. They also consecrate 
 candles on this day for the service of the 
 ensuing year. It is the fourth of the four 
 cross quarter days of the year. Wharton. 
 
 CANFARA. A trial by hot iron, formerly 
 in use in England. Jacob. 
 
 CANON. 
 
 (1) A prebendary, or member of a chap- 
 ter of the Church of England. All mem- 
 bers of chapters except deans are now to be 
 entitled "canons," in England. 3 Steph. 
 Comm. 67, note; 1 Bl. Comm. 382. 
 
 (2) A rule, maxim, or precept of law, as 
 the "canons of construction," or the "canons 
 of descent." Most commonly a rule of ec- 
 clesiastical law. See "Canon Law." 
 
 (3) In Spanish law. The annual charge 
 or rent paid on recognition of the dominium 
 utile by holder thereof. 15 Cal. 556. 
 
 CANON LAW. A body of ecclesiastical 
 law, which originated in the church of Rome, 
 relating to matters of which that church has 
 or claims jurisdiction. 
 
 A canon is a rule of doctrine or of dis- 
 cipline, and is the term generally applied 
 to designate the ordinances of councils and 
 decrees of popes. The position which the 
 canon law obtains beyond the pap'al domin- 
 ions depends on the extent to which it is 
 sanctioned or permitted by the government 
 of each country; and hence the system of 
 canon law as it is administered in different 
 countries varies somewhat. 
 
 Though this system of law Is of primary 
 importance in Catholic countries alone, it 
 still maintains great influence and transmits 
 many of its peculiar regulations down 
 through the jurisprudence of Protestant 
 countries which were formerly Catholic. 
 Thus, the canon law has been a distinct 
 branch of the profession in the ecclesiastical 
 courts of England for several centuries; but 
 the recent modifications of the jurisdiction 
 of those courts have done much to reduce its 
 independent importance. 
 
 The Corpus Juris Canon ici is drawn from 
 various sources, — the opinions of the ancient 
 fathers of the church, the decrees of coun- 
 cils, and the decretal epistles and bulls of the 
 holy see, together with the maxims of the 
 civil law and the teachings of the Scrip- 
 tures. These sources were first drawn upon 
 for a regular ecclesiastical system about the 
 time of Pope Alexander III., in the middle 
 of the twelfth century, when one Gratian, an 
 Italian monk, animated by the discovery of 
 Justinian's Pandects, collected the ecclesias- 
 tical constitutions also into some method in 
 three books, which he entitled Concordia 
 Discordantium Ganonum. These are gener- 
 ally known as Decretum Q-ratiani. 
 
 The subsequent papal decrees to the time 
 of the pontificate of Gregory IX. were col- 
 lected in much the same method, under the 
 auspices of that pope, about the year 1230, 
 in five books, entitled Decretalia Gregorii 
 Noni. A sixth book was added by Boniface 
 VIII., about the year 1298, which is called 
 Sextus DecretaUum. T^e Clementine Consti- 
 tution, or decrees of Clement V., were in like 
 manner authenticated in 1317 by his suc- 
 cessor, John XXII., who also published twen- 
 ty constitutions of his own, called the Ex- 
 travangantes Joannis, so called because they 
 were in addition to, or beyond the boundary 
 of, the former collections, as the additions to 
 the civil law were called Novels. To these 
 have since been added some decrees of later 
 
CANON RELIGIOSORUM 
 
 (123) 
 
 CAPIAS AD COMPUTANDUM 
 
 popes, down to the time of Slxtus IV., in 
 five books, called Extravagantes Communes. 
 And all these together — Gratian's Decrees, 
 Gregory's Decretals, the Sixth Decretals, the 
 Clementine Constitutions, and the Extrava- 
 gants of John and his successors — form the 
 Corpus Juris Canonici, or body of the Ro- 
 man law. 1 Bl. Comm. 82; Encyclopedie, Dr. 
 Canon. Dr. Pub. Ecc. ; Diet, de Jur. Dr. 
 Canon.; Ersk. Inst. bk. 1, tit. 1, § 10. 
 
 CANON RELIGIOSORUM (Lat.) In ec- 
 clesiastical records. A book wherein the 
 religious of every greater convent had a 
 fair transcript of the rules of their order, 
 frequently read among them as their local 
 statutes. Kennett; Cowell. 
 
 CANON ICUS (Law Lat.) A canon. 
 
 CANON RY. An ecclesiastical benefice at- 
 taching to the office of canon. Holthouse. 
 
 CANONS OF INHERITANCE, or CANONS 
 of descent. The legal rules by which in- 
 heritances are regulated, and according to 
 which estates are transmitted by descent 
 from the ancestor to the heir. 2 Bl. Comm. 
 208; 1 Steph. Comm. 359. 
 
 CANT. In the civil law. A judicial sale 
 at the request of tenants in common for 
 the purpose of dividing the property. See 
 9 Mart. (La.) 87. 
 
 CANTEL (Law Lat. caniellum reliit quan- 
 tilluni). In old English law. That which 
 is added above measure; heaped measure. 
 Spelman; Blount. 
 
 CANTRED. A hundred; a district con- 
 taining a hundred villages. Used in Wales 
 in the same sense as "hundred" in England. 
 Cowell; Termes de la Ley. 
 
 CANUM (Law Lat. from Celt, can, chan, 
 or kain, a head). In old Scotch law. A 
 tribute or duty paid by the tenant of land 
 to the lord, especially to ecclesiastical su- 
 periors. According to Skene, it was pay- 
 able either in the produce of the land, or in 
 money. Skene de Verb. Sign. But it seems 
 to have been generally paid in produce, such 
 as wheat, oats, poultry, etc. The Scotch 
 word was cane or kain; and the expressions 
 "cane fowls," "cane cheese," "cane oats" are 
 frequently made use of. See "Kain." 
 
 CANVASS. The act of examining the re- 
 turns of votes for a public officer. 
 
 CAP OF MAINTENANCE. One of the re- 
 galia or ornaments of state belonging to the 
 sovereigns of England, before whom it is 
 carried at the coronation and other great 
 solemnities. Caps of maintenance are also 
 carried before the mayors of several cities 
 in England. Enc. Lond. 
 
 CAPACITY. Ability, power, qualification, 
 or competency of persons, natural or artifi- 
 cial. 2 Comyn, Dig. 294; Dane, Abr. 
 
 (1) Natural power or competency to per- 
 form an act, as capacity to contract, capac- 
 ity to commit crime. 
 
 (2) Oflacial, or representative power or 
 
 character. As to when one is acting in an 
 ofiicial, and not a personal, capacity, see 3 
 Story (U. S.) 87; 6 Robt. (N. Y.) 502. 
 
 CAPAX DOLI (Lat. capable of commit- 
 ting crime). The condition of one who has 
 sufficient mind and understanding to be 
 made responsible for his actions. 
 
 CAPAX NEGOTII. Capacity to contract. 
 
 CAPE. A judicial writ touching a plea 
 of lands and tenements. The writs which 
 bear this name are of two kinds, namely, 
 cape magnum, or grand cape, and cape par- 
 vum, or petit cape. The petit cape is so 
 called, not so much on account of the small- 
 ness of the writ as of the letter. Pleta, lib. 
 6, c. 55, § 40. For the difference between 
 the form and the use of these writs, see 2 
 Wm. Saund. 45c, 45d; Fleta, lib. 6, c. 55, § 40. 
 
 CAPE AD VALENTIAM. A species of 
 cape magnum. See "Cape." 
 
 CAPELLA. 
 
 In Old Records. A box, cabinet, or re- 
 pository in which were preserved the relics 
 of martyrs. Spelman. A small building in 
 which relics were preserved; an oratory or 
 chapel. Id. 
 
 In Old English Law. A chapel. Fleta, 
 
 lib. 5, c. 12, § 1; Spelman; Cowell. 
 
 CAPERS. Vessels of war owned by pri- 
 vate persons, and different from ordinary 
 privateers only in size, being smaller. 
 Beawes, Lex. Merc. 230. 
 
 CAPIAS (Lat. capcrc, to take; capias, that 
 you take). A writ directing the sheriff to 
 take the person of the defendant into cus- 
 tody. 
 
 It is a judicial writ, and issued originally 
 only to enforce compliance with the sum- 
 mons of an original writ, or with some judg- 
 ment or decree of the court. It was origi- 
 nally issuable as a part of the original pro- 
 cess in a suit only in case of injuries com- 
 mitted by force or with fraud, but was much 
 extended by statutes. Being the first word 
 of distinctive significance in the writ, when 
 writs were framed in Latin, it came to de- 
 note the whole class of writs by which a 
 defendant's person was to be arrested. It 
 was issuable either by the court of common 
 pleas or king's bench, and bore the seal of 
 the court. 
 
 CAPIAS AD AUDIENDUM JUDICIUM. A 
 writ issued, in a case of misdemeanor, after 
 the defendant has appeared and is found 
 guilty, to bring him to judgment if he is not 
 present when called. 4 Sharswood, Bl. Comm. 
 368. 
 
 CAPIAS AD COMPUTANDUM. A writ 
 which issued in the action of account render 
 upon the judgment quod computet, when the 
 defendant refused to appear in his proper 
 person before the auditors and enter into his 
 account. 
 
 According to the ancient practice, the de- 
 fendant might, after arrest upon this pro- 
 cess, be delivered on mainprize, or, in de- 
 
CAPIAS AD RESPONDENDUM (124) 
 
 CAPITA 
 
 fault of finding mainpernors, was commit- 
 ted to the Fleet prison, where the auditors 
 attended upon him to hear and receive his 
 account. The writ is now disused. 
 
 CAPIAS AD RESPONDENDUM. A writ 
 commanding the officer to whom it is direct- 
 ed "to take the body of the defendant, and 
 keep the same to answer the plaintiff," etc. 
 
 This is the writ of capias which is general- 
 ly intended by the use of the word capias, 
 and was formerly a writ of great impor- 
 tance. For some account of its use and val- 
 ue, see "Arrest;" "Bail." 
 
 According to the course of the practice at 
 common law, the writ bears teste, in the 
 name of the chief justice, or presiding judge 
 of the co,urt, on some day in term time, when 
 the judge is supposed to be present, not be- 
 ing Sunday, and is made returnable on a 
 regular return day. 
 
 If the writ has been served, and the de- 
 fendant does not give bail, but remains in 
 custody, it is returned C. C. {cepi corpus); 
 if he have given bail, it is returned C. C. 
 B. B. {cepi corpus, bail bond) ; if the defend- 
 ant's appearance have been accepted, the 
 return is, "C. C, and defendant's appearance 
 accepted." See 1 Archb. Prac. 67. 
 
 CAPIAS AD SATISFACIENDUM. A writ 
 directed to the sheriff or coroner, command- 
 ing him to take the person therein named, 
 and him safely keep, so that he may have his 
 body in court on the return day of the writ, 
 to satisfy (ad satisfaciendum) the party who 
 has recovered judgment against him. 
 
 It is a writ of execution issued after judg- 
 ment, and might have been issued against 
 a plaintiff against whom judgment was ob- 
 tained for costs, as well as against the de- 
 fendant in a personal action. As a rule at 
 common law, it lay in all cases where a 
 capias ad respondendum lay as a part of the 
 mesne process. Some classes of persons 
 were, however, exempt from arrest on mesne 
 process who were liable to it on final. It 
 was a very common form of execution until 
 within a few years, in many of the states, 
 but its efficiency has been destroyed by stat- 
 utes facilitating the discharge of the debtor 
 in some states, and by statutes prohibiting 
 its issue in others, except in specified cases. 
 See "Arrest;" "Privilege." It is commonly 
 known by the abbreviation ca. sa. 
 
 CAPIAS EXTENDI FACIAS. A writ of 
 execution issuable in England against a debt- 
 or to the crown, which commands the sheriff 
 to "take" or arrest the body, and "cause to 
 be extended" the lands and goods of the 
 debtor. Man. Exch. Prac. 5. It seems to be 
 practically obsolete. 
 
 CAPIAS IN WITHERNAM. A writ di- 
 recting the sheriff to take other goods of a 
 distrainor equal in value to a distress which 
 he has formerly taken and still withholds 
 from the owner beyond the reach of process. 
 
 When chattels taken |3y distress were de- 
 cided to have been wrongfully taken, and 
 were by the distrainor eloigned, that is, 
 carried out of the county or concealed, the 
 
 sheriff made such a return. Thereupon this 
 writ issued, thus putting distress against 
 distress. 
 
 Goods taken in withernam are irreplevia- 
 ble till the original distress be forthcoming. 
 3 Bl. Comm. 148. 
 
 CAPIAS PRO FINE. A writ which issued 
 against a defendant who had been fined, and 
 did not discharge the fine according to the 
 judgment. 
 
 The object of the writ was to arrest a de- 
 fendant against whom a plaintiff had ob- 
 tained judgment, and detain him until he 
 paid to the king the fine for the public mis- 
 demeanor, coupled with the remedy for the 
 private injury sustained, in all cases of 
 forcible torts (11 Coke, 43; 5 Mod. 285), 
 falsehood in denying one's own deed (Co. 
 Litt. 131; 8 Coke, 60), unjustly claiming 
 property in replevin, or contempt by dis- 
 obeying the command of the king's writ, or 
 the express prohibition of any statute (8 
 Coke, 60). It is now abolished. 2 Shars- 
 wood, Bl. Comm. 398. 
 
 CAPIAS UTLIGATUM. A writ directing 
 the arrest of an outlaw. 
 
 If general, it directs the sheriff to arrest 
 the outlaw, and bring him before the court 
 on a general return day. 
 
 If special, it directs the sheriff, in addi- 
 tion, to take possession of the goods and 
 chattels of the outlaw, summoning a jury to 
 determine their value. 
 
 It was a .part of the process subsequent to 
 the capias, and was issued to compel an ap- 
 pearance where the defendant had abscond- 
 ed, and a capias could not be served upon 
 him. The outlawry was readily reversed 
 upon any plausible pretext, upon appearance 
 of a party in person or by attorney, as the 
 object of the writ was then satisfied. The 
 writ issued after an outlawry in a criminal 
 as well as in a civil case. See 3 Sharswood, 
 Bl. Comm. 284; 4 Bl. Comm. 320. 
 
 CAPIATUR PRO FINE. Let him be taken 
 for the fine. In English practice. A clause 
 inserted at the end of old judgment records 
 in actions of debt, where the defendant de- 
 nied his deed, and it was found against 
 him upon his false plea, and the jury were 
 troubled with the trial of it. Cro. Jac. 64. 
 
 CAPITA (Lat.) By heads. An expression 
 of frequent occurrence in laws regulating 
 the distribution of the estates of persons 
 dying intestate. When all the persons en- 
 titled to shares in the distribution are of 
 the same degree of kindred to the deceased 
 person (e. g., when all are grandchildren), 
 and claim directly from him in their own 
 right, and not through an intermediate re- 
 lation, they take per capita, that is, equal 
 shares, or share and share alike. But when 
 they are of different degrees of kindred 
 (e. g., some the children, others the grand- 
 children or the great-grandchildren, of the 
 deceased), those more remote take per stir- 
 pern., or per stirpes, that is, they take re- 
 spectively the shares their parents (or other 
 relation standing in the same degree with 
 
CAPITAL 
 
 (125) 
 
 CAPITATIM 
 
 them of the surviving kindred entitled, who 
 are in the nearest degree of kindred to the 
 intestate) would have taken had they re- 
 spectively survived the intestate. Reeve, 
 Descent, Introd. xxvii. Also, 1 Rop. Leg. 
 126, 130. See "Per Capita;" "Per Stirpes;" 
 "Stirpes." 
 
 CAPITAL. 
 
 (1) The amount of money invested in a 
 business; the fund dedicated to a business 
 to support its credit, to provide for contin- 
 gencies, to suffer diminution from losses, 
 and to derive accretion from gains and 
 profits. 30 Fed. 410. 
 
 As used in the revenue act it does not in- 
 clude money temporarily borrowed. 21 
 Wall. (U. S.) 284. 
 
 (2) "The actual estate, whether in money 
 or property, which is owned by an individ- 
 ual or a corporation. In reference to a 
 corporation it is the aggregate of the sum 
 subscribed and paid in by the shareholders, 
 with the addition of all gains or profits 
 realized in the use or investment of those 
 sums." 23 N. Y. 219. 
 
 (3) Affecting human life. See "Capital 
 Crime;" "Capital Punishment." 
 
 CAPITAL CRIME. One for which the 
 punishment of death is inflicted. 
 
 CAPITAL PUNISHMENT. The punish- 
 ment of death. 
 
 CAPITAL STOCK. The sum, divided into 
 shares, which is raised by mutual subscrip- 
 tion of the members of a corporation. It is 
 said to be the sum upon which calls may be 
 made upon the stockholders, and dividends 
 are to be paid. 1 Sandf. Ch. (N.Y.) 280; Wal- 
 ford, Rys. 252; 4 Zab. (N. J.) 195; Angell & 
 A. Corp. §§ 151, 556. 
 
 "The sums due by virtue of the subscrip- 
 tions or collected from the subscribers, and 
 invested for the benefit of the corporation." 
 30 Conn. 290. 
 
 It is never used to indicate the value of 
 the property of the corporation. 3 Zab. (N. 
 J.) 195. 
 
 The phrase is used as synonymous with 
 "Capital." 23 N. Y. 222. 
 
 It is to be distinguished from "stock," 
 which is the shareholder's individual inter- 
 est in the capital stock. 9 Yerg. (Tenn.) 
 490. 
 
 CAPITALE. A thing which is stolen, or 
 the value of it. Blount. 
 
 A beast or other animal considered as 
 property; hence, according to Spelman, the 
 term "chattel." 
 
 CAPITALE VIVENS. Live cattle. Blount. 
 
 CAPITALIS. In old English law. Chief, 
 principal; at the head. A term applied to 
 persons, places, judicial proceedings, and 
 some kinds of property. 
 
 CAPITALIS BARO. In old English law. 
 Chief baron. Capitalis iaro scaccarii domi- 
 ni regis, chief baron of the exchequer. 
 Towns. PI. 211. 
 
 CAPITALIS CUSTOS. Chief warden or 
 magistrate; mayor. Pleta, lib. 2, o. 64, § 2. 
 
 CAPITALIS DEBITOR. The chief or prin- 
 cipal debtor, as distinguished from a surety 
 (plegius). Called principalis. Pleta, lib. 
 2, c. 63, § 5. 
 
 CAPITALIS DOMINUS. Chief lord. Pleta, 
 lib. 1, c. 12, § 4; Id. c. 28, § 5. 
 
 CAPITALIS JUSTICIARIUS. The chief 
 justiciary; the principal minister of state, 
 and guardian of the realm in the king's 
 absence. 
 
 This office originated under William the 
 Conqueror, but its power was greatly dimin- 
 ished by Magna Charta, and finally distribut- 
 ed among several courts by Edward I. Spel- 
 man; 8 Bl. Comm. 38. 
 
 CAPITALIS JUSTICIARIUS AD fLACI- 
 ta coram rege tenenda. Chief justice for 
 holdi'ng pleas before the king. The title of 
 the chief justice of the king's bench, first 
 assumed in the latter part of the reign of 
 Henry III. 2 Reeve, Hist. Bng. Law, 91, 
 285. 
 
 CAPITALIS JUSTICIARIUS BANCI (or 
 de banco). Chief justice of the bench. The 
 title of the chief justice of the (now) court 
 of common pleas, first mentioned in the first 
 year of Edward I. 2 Reeve, Hist. Eng. Law, 
 48. Crabb, Hist. Eng. Law,a46. 
 
 CAPITALIS JUSTICIARIUS TOTIUS AN- 
 gliae. Chief justice of all England. The 
 title of the presiding justice in the court of 
 aula regis. 3 Bl. Comm. 38; 1 Reeve, Hist. 
 Eng. Law, 48. 
 
 CAPITALIS PLEGIUS. A chief pledge; a 
 head borough. Pleta, lib. 2, c. 52, § 5. 
 
 CAPITALIS REDDITUS. A chief rent 
 (g. V.) 
 
 CAPITALIS TERRA. A headland; a piece 
 of land lying at the head of other land. 
 
 CAPITANEUS. He who held his land or 
 title directly from the king himself. 
 
 A commander or ruler over others, either 
 in civil, military, or ecclesiastical matters. 
 
 A naval commander. This latter use be- 
 gan A. D. 1264. Spelman, voc. "Capitaneus ; " 
 "Admiralius." 
 
 CAPITARE. In old law and surveys. To 
 head, front, or abut; to touch at the head, 
 or end. Cowell, voc. "Laterare." 
 
 CAPITAS DEMINUTIO (or DIMINUTIO) 
 (Lat.) In the civil law. The loss of a 
 status or civil qualification; the change of 
 a man's former condition {prioris status 
 mutatio). Inst. 1. 16. pr. 1; Mackeld. Civ. 
 Law, p. 131, § 121. Sometimes called capitis 
 minutio. Dig. 4. 5. 1. This was of three 
 kinds. See "Caput;" "Status." 
 
 CAPITATIM (Lat.) By the head; to each 
 individual. 4 Maule & S. 206. 
 
CAPITATION 
 
 (126) 
 
 CAPTATION 
 
 CAPITATION (Lat. caput, head). A poll- 
 tax. An imposition yearly laid upon eacli 
 person. 
 
 The constitution of the United States pro- 
 vides that "no capitation or other direct tax 
 shall be laid, unless in proportion to the cen- 
 sus, or enumeration, thereinbefore directed 
 to be taken." Article 1, § 9, note 4. See 3 
 Ball. (Pa.) 171; 5 Wheat. (U. S.) 317. An 
 income tax is a direct or capitation tax, 
 -within this provision. 158 U. S. 601. 
 
 CAPITE. See "Capita." 
 
 CAPITE MINUTUS. In the civillaw. One 
 who had suffered the capitis diminutio. Dig. 
 4. 5. 
 
 CAPITIS DIMINUTIO MAXIMA. The 
 highest or most comprehensive loss ot status. 
 This occurred when a man's condition was 
 changed from one of freedom to one of 
 bondage, when he became a slave. It swept 
 away with it all rights of citizenship, and 
 all family rights. 
 
 CAPITIS DIMINUTIO MEDIA. A lesser 
 or medium loss of status. This occurred 
 where a man lost his rights of citizenship, 
 but without losing his liberty. It carried 
 away also the family rights. 
 
 CAPITIS DIMINUTIO MINIMA. The low- 
 est or least comprehensive degree of loss 
 of status. This occurred where a man's 
 family relations alone were changed. It 
 happened upon the arrogation of a person 
 who had been his own master (sui juris), or 
 upon the emancipation of one who had been 
 under the patria potestas. It left the rights 
 of liberty and citizenship unaltered. See 
 Inst. 1. 16. pr.; Id. 1. 2. 3; Dig. 4. 5. 11; 
 Mackeld. Civ. Law, § 144. 
 
 CAPITITIUM. A covering for the head, 
 mentioned in St. .1 Hen. IV., and other old 
 statutes, which prescribed what dresses shall 
 he worn by all degrees of persons. Jacob. 
 
 CAPITULA. Collections of laws and or- 
 dinances drawn up under heads or divisions. 
 Spelman. 
 
 The term is used in the civil and old Eng- 
 lish, law, and applies to ecclesiastical law 
 also. Du Cange. 
 
 CAPITULA CORONIS. Specific and mi- 
 nute schedules, or capitula itineris. 
 
 CAPITULA DE JUDAEIS. A register of 
 mortgages made to the Jews. 2 Bl. Comm. 
 343; Crabb, Hist. Eng. Law, 130 et seq. 
 
 CAPITULA ITINERIS. Schedules of in- 
 quiry delivered to the justices in eyre before 
 setting out on their circuits, and which were 
 intended to embrace all possible crimes. 
 
 CAPITULA RURALIA. Assemblies or 
 chapters, held by rural deans and parochial 
 clergy, within the precinct of every deanery, 
 which at first were every three weeks, after- 
 wards once a month, and more solemnly once 
 a quarter. Cowell. 
 
 CAPITULARY. 
 
 In French Law. A collection of laws 
 
 and ordinances orderly arranged by divi- 
 sions. The term is especially applied to the 
 collections of laws made and published by 
 the early French emperors. The execution of 
 these capitularies was intrusted to the 
 bishops, courts, and missi regis, and many 
 copies were made. The best edition of the 
 Capitularies is said by Butler to be that ot 
 Baluze, 1677. Co. Lltt. 191a, Butler's note 
 77. 
 
 In Ecclesiastical Law. A collection of 
 
 laws and ordinances, arranged by divisions. 
 A book containing the beginning and end of 
 each Gospel which is to be read every day in 
 the ceremony of saying mass. Du Cange. 
 
 CAPITULATION. 
 
 (1) The treaty which determines the con- 
 ditions under which a fortified place Is aban- 
 doned to the commanding officer of the army 
 which besieges it. 
 
 (2) In civil law. An g,greement by which 
 the prince and the people, or those who have 
 the right of the people, regulate the man- 
 ner in which the government is to be ad- 
 ministered. "Wolfflus, .§ 989. 
 
 CAPITULI AGRI. Head fields; lands ly- 
 ing at the head or upper end of furrows, etc. 
 
 CAPITULUM EST CLERICORUM CON- 
 gregatio sub uno decano in ecclesia cathe- 
 dral!. A chapter is a congregation of clergy 
 under one dean in a cathedral church. Co. 
 Litt. 98. 
 
 CAPITUR PRO FINE. See "Capias pro 
 Pine." 
 
 CAPPA. In old records. A cap. Cappa 
 honoris, the cap of honor. One of the so- 
 lemnities or ceremonies of creating an earl 
 or marquis. Bacon's Works, v. 474. 
 
 CAPTAIN (Lat. eapitaneus; from caput, 
 head). The commander of a company of 
 soldiers. The term is also used of officers 
 in the municipal police in a somewhat simi- 
 lar sense; as, captain of police; captain of 
 the watch. 
 
 The master or commander of a merchant 
 vessel, or a vessel of war. 
 
 A subordinate officer having charge of a 
 certain part of a vessel of war. 
 
 In the United States, the commander of a 
 merchant vessel is, in statutes and legal 
 proceedings and language, more generally 
 termed "master" (q. v.) In foreign laws 
 and languages he is frequently styled "pa- 
 tron." 
 
 The rank of captain in the United States 
 navy is next above that of commander, and 
 captains are generally appointed from this 
 rank in the order of seniority. The presi- 
 dent has the appointing power, subject to 
 the approval and consent of the senate. 
 
 CAPTATION. In French law. Undue in- 
 fluence; the act of one who succeeds in con- 
 trolling the will of another, so as to become 
 master of it. It is generally taken in a bad 
 sense. 
 
 Captation takes place by those demonstra- 
 
CAPTATOE 
 
 (127) CARCER AD HOMINES, ETC. 
 
 tions of attacliment and friendship, by those 
 assiduous attentions, by those services and 
 officious little presents, which are usual 
 among friends, and by all those means which 
 ordinarily render us agreeable to others. 
 
 CAPTATOR. A person who obtains a gift 
 or legacy through artifice. Rapalje & L. 
 
 CAPTIO (Lat. from capvre, to take). In 
 old English law and practice. A taking or 
 seizure of a thing, as an animal. Bracton, 
 fol. 156. Est omnis captio jiista vel injusta. 
 Fleta, lib. 2, c. 44, § 1. Bene cognoscit cap- 
 tionem, (he) well avows the taking. 1 Salk.3. 
 
 A taking or seizure of land. Dies captio- 
 nis indorsari debet in tergo brevis, the day 
 of the taking ought to be indorsed on the 
 back of the writ. Bracton, fol. 365b. 
 
 A taking or arrest of a person. Reg. Orig. 
 278b; Bracton, fol. 145b. Injusta oaptio et 
 injusta detentio. Fleta, lib. 1, c. 42, § 1. 
 
 A taking or holding of a court. Captio as- 
 iisae, the taking of the assize. Bracton, fol. 
 Ill, 202b. 
 
 A taking or receiving. Homagii captio, 
 taking of homage. Bracton, fol. 16. 
 
 CAPTION. 
 
 (1) A taking, or seizing; an arrest. The 
 word is no longer used in this sense. 
 
 (2) The heading of a legal instrument. 
 In which is shown when, where, and by what 
 authority it was taken, found, or executed. 
 Principally used in respect to indictments. 
 See, as to requisites, 3 Gray (Mass.) 454; 1 
 South. (N. J.) 46. This meaning, now the 
 general one, is not justified by the deriva- 
 tion, which is from capere, to take, and not 
 from caput, a head. 
 
 In the English practice, when an inferior 
 court, in obedience to the writ of certiorari, 
 returns an indictment into the king's bench, 
 it is annexed to the caption, then called a 
 '"schedule," and the caption concludes with 
 stating that "it is presented in manner and 
 form as appears in a certain indictment 
 thereto annexed," and the caption and in- 
 dictment are returned on separate parch- 
 ments. 1 Wm. Saund. 309, note 2. 
 
 CAPTIVE. A prisoner of war. 
 
 CAPTOR. One who has taken property 
 from an enemy. This term is also employed 
 to designate one who has taken an enemy. 
 
 CAPTURE. The taking of property by 
 one belligerent from another. See 6 Allen 
 (Mass.) 373. It is a taking by the military 
 power, as distinguished from a taking by the 
 civil power, which is known as "seizure." 
 35 Ga. 344. It originally included only a 
 taking by one belligerent from another, but 
 has been enlarged in usage to include tak- 
 ing by pirates, or the taking by a belliger- 
 ent of neutral goods. 6 Allen (Mass.) 373; 
 6 Wall. (U. S.) 10. 
 
 CAPUT. 
 
 In Civil Law. Status; a person's civil 
 
 condition. 
 
 According to the Roman law, three ele- 
 ments concurred to form the status or caput 
 
 of the citizen, namely, liberty, Wbertas, citi- 
 zenship, civitas, and family, familia. 
 
 At Common Law. A head. Chiefly 
 
 used in phrases, thus: Caput comitatis, the 
 head of the county; the sheriff; the king. 
 Spelman. Caput anni, the lieginning of the 
 year. Cowell. Caput legis, a head of the 
 law; caput villae, the chief man of a town; 
 caput feudi vel terrae, the head or chief lord 
 of lands held by feudal tenure; caput bar- 
 oniae, the castle, manor house, or chief seat 
 of a, baron. Bracton, fol. 76b. 
 
 CAPUT LUPINUM (Lat.) Having a wolf's 
 head. 
 
 Outlaws were anciently said to have caput 
 lupinum, and might be killed by any one 
 who met them. 4 Bl. Comm. 320. In the 
 reign of Edward III. this power was re- 
 stricted to the sheriff when armed with law- 
 ful process, and this power, even, has long 
 since disappeared, the process of outlawry 
 being resorted to merely as a means of com- 
 pelling an appearance. Co. Litt. 128b; 3 Bl. 
 Comm. 284. 
 
 CAPUT MORTUUM. A dead head; a 
 thing void for all purposes. See 96 tJ. S. 
 195. 
 
 CAPUT PORTUS. In old English law. 
 The head of a port. The town to which a 
 port belongs, and which gives the denomina- 
 tion to the port, and is the head of it. Hale, 
 de,Jure Mar. pt. 2, c. 2; 4 Taunt. 660. 
 
 CAPUT, PRINCIPIUM, ET FINIS. The 
 
 head, beginning, and end. A term applied in 
 English law to the king, as head of parlia- 
 ment. 4 Inst. 3; 1 Bl. Comm. 188. 
 
 CAPUTAGIUM. Head money; the pay- 
 ment of head money. Spelman; Cowell. 
 
 CAPUTIUM. In old English law. Ahead 
 of land; a headland. Cowell, voc. "Buttum." 
 
 CARABUS. In old English law. A kind 
 of raft or boat. Spelman. 
 
 CARAT. A weight equal to three and one- 
 sixth grains, in diamonds and the like. 
 Jacob. 
 
 CARCAN. In French law. An instru- 
 ment of punishment, somewhat resembling 
 a pillory. It sometimes signifies the pun- 
 ishment itself. Biret, Vocab. 
 
 CARCAN NUM. In old English law. A 
 prison or workhouse. 
 
 CARCARE. In old English law. To load; 
 to load a vessel (in navibus carcare). Reg. 
 Orig. 279. 
 
 CARCATA. Loaded; freighted. Fleta, lib. 
 1, c. 25, § 9. 
 
 CARCELAGE. Prison fees. 
 
 CARCER. A prison or gaol. Strictly, a 
 place of detention and safe-keeping, and not 
 of punishment. Burrill. 
 
 CARCER AD HOMINES CUSTODIEN- 
 dos, non ad puniendos, dari debet. A prison 
 
CARCER HON SUPPLICII, ETC. (128) 
 
 CARTE 
 
 ought to be given to the custody, not the 
 punishment, of persons. Co. Litt. 260. See 
 Dig. 48. 19. 8. 9. 
 
 CARCER NON SUPPLICII CAUSA SED 
 custodiae constitutus. A prison is ordained 
 not for the sake of punishment, but of de- 
 tention and guarding. Lofft, 119. 
 
 CARDINAL. In ecclesiastical law. The 
 title given to one, of the highest dignitaries 
 of the court of Rome. 
 
 Cardinals are next to the pope in dignity, 
 and he is elected by them. There are cardi- 
 nal bishops, cardinal priests, and cardinal 
 deacons. See Pleury, Hist. Bccles. liv. 25, 
 note 17; note 19; Thomassin, pt. 2, liv. 1, 
 c. 53; Id. pt. 4, liv. 1, cc. 79, 80; Loiseau, 
 Traite des Ordres, c. 3, note 31; Andre, 
 Droit Canon. 
 
 CARDS. In criminal law. Small rec- 
 tangular pasteboards, generally of a fine 
 quality, on which are painted figures of va- 
 rious colors, and used for playing certain 
 games. See 4 Pick. (Mass.) 251. 
 
 CARE. Charge or , oversight; diligence. 
 See "Negligence." 
 
 CARENA, CARINA, or CARRENA (Law 
 Lat. ; from Pr. quarante, forty). In old ec- 
 clesiastical law. A period of forty days. 
 Of the same meaning as guarentena (Pr. 
 quarantaine) , quarantine. Spelman. See 
 "Quarantine." 
 
 CARETA, CARRETA, or CARECTA. A 
 
 cart; a cartload. 
 
 In Magna Charta (9 Hen. III. c. 21) it is 
 ordained that no sheriff shall take horses or 
 carts {(fareia) without paying the ancient 
 livery therefor. 
 
 CARGA. In Spanish law. An incum- 
 brance; a charge. White, New Recop. bk. 2, 
 tit. 13, c. 2, § 2. 
 
 CARGA RE. In old English law. To 
 charge. Spelman. 
 
 CARGO. In maritime law. The entire 
 load of a ship or other vessel. 1 Mason 
 (U. S.) 142. "Not the property on board be- 
 longing exclusively to the shipowner, but 
 all the property constituting the ship's lad- 
 ing; all the property on which freight and 
 profits were to accrue. 4 Mason (U. S.) 
 264. 
 
 The products of a whaling voyage are 
 "cargo," but the implements used in whal- 
 ing are not. 11 Pick. (Mass.) 230. 
 
 As used in policies of marine Insurance, 
 the term has a restricted meaning, derived 
 from usage, which does not include deck 
 load or live stock. 4 Pick. (Mass.) 433; 2 
 Gill & J. (Md.) 136. 
 
 The term Is usually applied to goods only, 
 but in a more extensive and less technical 
 sense it includes persons. See 7 Man. & G. 
 729, 744. 
 
 CARISTIA. Dearth or scarcity. 
 
 CARLISLE TABLES. Tables of life ex- 
 
 pectancy, compiled in about 1780, at Carlisle, 
 England. They are admissible in evidence 
 on questions of expectancy. 
 
 CARMEN. In the Roman law. Literally, 
 a verse or song; a formula or form of words 
 used on various occasions, as of divorce. 
 Tayl. Civ. Law, 349. 
 
 CARNAL KNOWLEDGE. Sexual connec- 
 tion. The term is generally, if not ex- 
 clusively, applied to the act of the male. 
 
 The term is a technical one, and has been 
 always held adequate to express the idea of 
 sexual bodily connection. 22 Ohio St. 541; 
 97 Mass. 61. 
 
 CARNALITER. In old criminal law. Car- 
 nally. Carnaliter cognovit, carnally knew. 
 Technical words in indictments for rape, 
 and held essential. 1 Hale, P. C. 637-639; 
 3 Inst. 60. 
 
 CARNALLY KNEW. A technical phrase 
 essential ih an indictment to charge the de- 
 fendant with the crime of rape. No other 
 words nor circumlocution will answer. 1 
 Hale, P. C. 632; 1 Chit. Crim. Law, 243; Co. 
 Litt. 137. 
 
 CARNO. An immunity or privilege. Cow- 
 ell. 
 
 CARRICLE, or CARRACLE. A ship of 
 great burden. 
 
 CARRIER. One who undertakes to trans- 
 port goods from one place to another. 1 
 Pars. Cont. 632. 
 
 They are either "common" or "private." 
 Private carriers incur the responsibility of 
 the exercise of ordinary diligence only, like 
 other bailees for hire. Story, Bailm. § 495; 
 13 Barb. (N. Y.) 481; 1 Wend. (N. Y.) 272; 
 
 1 Hayw. (N. C.) 14; 2 Dana (Ky.) 430; 4 
 Taunt. 787; 6 Taunt. 577; 2 Bos. & P. 417; 
 
 2 C. B. 877. See "Common Carriers." 
 
 CARRYING AWAY. See "Asportation." 
 
 CA R RY I N G COSTS. A verdict or decision 
 "carrying costs" is one entitling the party 
 in whose favor it is made to tax costs there- 
 on. 
 
 CART. A carriage for luggage or burden, 
 with two wheels, as distinguished from a 
 wagon, which has four wheels. Worcester. 
 
 The term has been held to include four- 
 wheeled vehicles, to carry out the intent of 
 a statute. 22 Ala. (N. S.) 621. 
 
 CART BOTE. An allowance to the tenant 
 of wood suflRcient for carts and other instru- 
 ments of husbandry. 2 Bl. Comm. 35. 
 
 CARTA. A charter {q. v.) Any written 
 instrument. 
 
 In Spanish Law. A letter; a deed; a 
 
 power of attorney. Las Partidas, pt. 3, tit. 
 18, lib. 30. 
 
 CARTA DE FORESTA. See "Charta de 
 Foresta." 
 
 CARTE. In French marine law. A chart. 
 Ord. Mar. liv. 1, tit. 8, arts. 2, 3. 
 
CARTE BLANCHE 
 
 (129) 
 
 CASE STATED 
 
 CARTE BLANCHE. A white card signed 
 at the bottom with a person's name, and 
 sometimes sealed, giving another person 
 power to superscribe what conditions he 
 pleases. Applied, generally, in the sense of 
 unlimited authority being granted. Whar- 
 ton. 
 
 CARTEL.' An agreement between two 
 belligerent powers for the delivery of prison- 
 ers or deserters, and also a written chal- 
 lenge to a duel. 
 
 ■Cartel ship is a ship commissioned in time 
 of war to exchange prisoners, or to carry 
 any proposals between hostile powers. She 
 must carry no cargo, ammunition, or Imple- 
 ments of war, except a single gun for sig- 
 nals. 
 
 CARTMEN. Persons who carry goods and 
 merchandise In carts, either for great or 
 short distances, for hire. 
 
 CARUCAGE. A taxation of land by the 
 caruca or came. 
 
 The caruca was as much land as a man 
 could cultivate in a year and a day with a 
 single plough (caruca). Garucage, caru- 
 gage, or carnage was the tribute paid for 
 each caruca by the carucarius, or tenant. 
 Spelman; Cowell. 
 
 CARUCATA. A certain quantity of land, 
 used as the basis for taxation. As much 
 land as may be tilled by a single plough in 
 a year and a day. Skene de Verb. Sign. 
 A team of cattle; a cartload. 
 
 It may include houses, meadow, woods, 
 etc. It is said by Littleton to be the same 
 as soca, but has a much more extended sig- 
 nification. Spelman; Blount; Cowell. 
 
 CAS FORTUIT (Pr.) In the law of in- 
 surance. A fortuitous event; an inevitable 
 accident. 3 Kent, Comm. 300; 120 U. S. 727. 
 
 Same as the Latin casus fortuitus (q. v.) 
 
 CASATA, or CASSAtA. In old European 
 law. A house with land sufficient for the 
 support of one family. Otherwise called 
 "hida," a hide of land, and by Bede, "famil- 
 ia." Spelman, voc. "Casa." 
 
 CASATUS. In old European law. A vas- 
 sal or feudal tenant possessing a casata (q. 
 v.), that is, having a house, household, and 
 property of his own. The cassati embraced 
 both bond and free tenants. Spelman. 
 
 CASE. A question contested before a 
 court of justice; an action or suit at law 
 or in equity. 1 Wheat. (U. S.) 352; 4 Iowa, 
 152. 
 
 A case arising under a treaty (Const. TJ. 
 S. art. 3, § 2) is a suit where is drawn in 
 question the construction of a treaty, and 
 the decision is against the title set up by 
 either party under such treaty. Story, J., 
 1 Wheat. (U. S.) 356. And see, also, 6 
 Cranch (U. S.) 286; 9 Wheat. (U. S.) 819; 11 
 How. (U. S.) .529; 12 How. (TJ. S.) 111. 
 
 A form of action which lies to recover 
 damages for injuries for which the more 
 
 ancient forms of action will not He. Steph. 
 PI. 15. 
 
 "Case," or, more fully, "action upon the 
 case," or "trespass on the case," Includes in 
 its widest sense assumpsit and trover, and 
 distinguishes a class of actions in which the 
 writ is framed according to the special cir- 
 cumstances of the case, from the ancient ac- 
 tions, the writs in which, called hrevia for- 
 mata, are collected in the Registrum Bre- 
 vium. 
 
 Sometimes used for "case stated" (g. v.) 
 
 CASE AGREED ON. A statement of 
 facts agreed upon by the parties, and sub- 
 mitted to the court, in order to obtain a de- 
 cision upon the points of law involved, with- 
 out going through the forms of a regular 
 trial. 3 Whart. (Pa.) 143. 
 
 CASE FOR MOTION. In English divorce 
 and probate practice, when a party desires 
 to make a motion, he must file, among other 
 papers, a case for motion, containing an ab- 
 stract of the proceedings in the suit or ac- 
 tion, a statement of the circumstances on 
 which the motion is founded, and the prayer, 
 or nature of the decree or order desired. 
 Browne, Dlv. 251; Browne, Prob. Prac. 295. 
 
 CASE LAW. The law evidenced by or 
 derived from the reported decisions. The 
 law established by the force of such deci- 
 sions as precedents, as distinguished from 
 the reasons or philosophy of the law. 
 
 CASE ON APPEAL. 
 
 In American Practice. Especially in 
 
 states having reformed Codes of Procedure, 
 a printed document prepared by an appel- 
 lant, containing the substance of the evi- 
 dence and proceedings on the trial in the 
 court below. 
 
 In English Practice. In the house of 
 
 lords and privy council: (1) A statement 
 prepared and printed by each, party to an ap- 
 peal, showing the facts on which he relies, 
 and contalhing references to the evidence 
 contained in the appendix. (2) A written 
 statement by an inferior court or judge, 
 raising a question of law for the opinion of 
 a superior court. 
 
 CASE RESERVED. A statement in writ- 
 ing of the facts proved on the trial of a 
 cause, drawn up and settled by the attor- 
 neys and counsel for the respective parties 
 under the supervision of the judge, for the 
 purpose of having certain points of law, 
 which arose at the trial, and could not then 
 be satisfactorily decided, determined upon 
 full argument before the court in banc. This 
 is otherwise called a "special case;" and it 
 is usual for the parties, where the law of the 
 case is doubtful, to agree that the jury shall 
 find a general verdict for the plaintiff, sub- 
 ject to the opinion of the court upon such 
 a case to be made, instead of obtaining from 
 the jury a special verdict. Burrlll. 
 
 CASE STATED. In practice. A state- 
 ment of all the facts of ^ case, with the 
 names of the witnesses, and a detail of the 
 
CASE TO MOVE FOR NEW TRIAL (130) 
 
 CASTLEGUARD 
 
 documents which are to support them; a 
 brief. 
 
 An agreement in writing, between a plain- 
 tiff and defendant, that the facts in dispute 
 between them are as there agreed upon and 
 mentioned. 3 Whart. (Pa.) 143. 
 
 CASE TO MOVE FOR NEW TRIAL. In 
 
 practice. A case prepared by the party 
 against whom a verdict has been given, upon 
 which to move the court to set aside the ver- 
 dict, and grant a new trial. Graham, Prac. 
 330; 1 Burrill, Prac. 469. 
 
 CASH. That which circulates as money. 
 It is generally held to include bank notes. 
 9 Johns. (N. Y.) 120; 10 Wheat. (0. S.) 347. 
 But see 3 Halst. (N. J.) 172. Treasury notes 
 (3 Conn. 534) and gold dust (1 Cal. 49) 
 have been held not to be cash. See, also, 6 
 Md. 37; 44 Ala. 402. 
 
 Money at command; ready money. 28 
 Grat. (Va.) 175. 
 
 A sale for cash is a sale for money in 
 hand (24 N. J. Law, 101), but a local cus- 
 tom may give the phrase another meaning 
 (3 Mo. App. 149). 
 
 CASH BOOK. A book in which a mer- 
 chant enters an account of all the cash he 
 receives or pays. An entry of the same 
 thing ought to be made, under the proper 
 dates, in the journal. The object of the cash 
 book is to afford a constant facility to as- 
 certain the true state of a man's cash. Par- 
 dessus, note 87. 
 
 CASHIER. An officer of a moneyed in- 
 stitution, or of a private person or firm, who 
 is entitled by his office to take care of the 
 cash or money of such institution, person, or 
 firm. 
 
 In Military Law. To deprive a military 
 
 officer of his office. See Articles of War, art. 
 14. . 
 
 CASSARE. To quash; to render void; to 
 break. 
 
 CASSATION. In French law. A decision 
 emanating from the sovereign authority, by 
 which a decree or judgment in the court of 
 last resort is broken or annulled. See "Cour 
 de Cassation." 
 
 CASSETUR BILLA, or QUOD BILLA 
 cassetur (Lat. that the bill be quashed). In 
 practice. The form of the judgment for the 
 defendant on a plea in abatement, where the 
 action was commenced by bill (Mlla) . 3 Bl. 
 Comm. 303; Steph. PI. 128, 131. The form of 
 an entry made by a plaintiff on the record, 
 after a plea in abatement, where he found 
 that the plea could not be confessed and 
 avoided, nor traversed, nor demurred to; 
 amounting in fact to a discontinuance of 
 the action. 2 Archb. Prac. K. B. 3, 236; 1 
 Tidd, Prac. 683. 
 
 CASSETUR BREVE (Lat. that the writ be 
 quashed). In practice. A judgment some- 
 times entered against a plaintiff, at his re- 
 quest, when, in consequence of allegations of 
 the defendant, he can no longer prosecute 
 
 his suit with effect. The effect of such 
 entry is to stop proceedings, and exonerate 
 the plaintiff from liability for future costs, 
 leaving him free to sue out new procpss. 
 3 Bl. Comm. 340. See Gould, PI. c. 5, § 139; 
 3 Bouv. Inst, notes 2913, 2914; 5 Term R. 
 634. 
 
 CAST (Law PY. jecter, getter; Lat. piv- 
 jicere). In old English practice. To allege, 
 offer, or present; to put forward. To cast 
 an essoign was to allege an excuse for the 
 failure of a party to appear in court, on the 
 return of the original writ. 3 Steph. Comm. 
 659; 3 Bl. Comm. 278; Roscoe, Real Ac- 
 tions, 156. To cast a protection was to pre- 
 sent or allege it as an excuse. Co. Litt. 128a, 
 130, 131; 3 Reeve, Hist. Eng. Law, 406. 
 
 This word is now used as a popular, ra- 
 ther than a technical, term, in the sense of 
 to overcome, overthrow, or defeat in a civil 
 action at law. Webster. 
 
 CASTELLAIN, or CASTELLANUS. The 
 keeper or captain of a fortified castle; the 
 constable of a castle. Spelman; Termes de 
 la Ley; Slount. 
 
 CASTELLARIUM, or CASTELLATUS. In 
 
 old English law. The precinct or jurisdic- 
 tion of a castle. Blount. 
 
 CASTELLORUM OPERATIO. In old Eng- 
 lish law. Service or labor done by inferior 
 tenants for the building and upholding of 
 castles and public places of defense. To- 
 wards this some gave their personal serv- 
 ice, and others, a contribution of money or 
 goods. This was one branch of the trinoda 
 necessitas (1 Bl. Comm. 263), from which 
 no lands could be exempted under the Sax- 
 ons, though immunity was sometimes al- 
 lowed after the conquest. Kennett, Par. Ant. 
 114; Cowell. 
 
 CASTIGATORY. An engine used to pun- 
 ish women who have been convicted of be- 
 ing common scolds.- It is sometimes called 
 the trebucket, tumbrel, ducking-stool, or 
 cucking-stool. This barbarous punishment 
 has perhaps never been inflicted in the Unit-- 
 ed States. 12 Serg. & R. (Pa.) 225. 
 
 CASTING. In old English practice. Of- 
 fering, alleging; thus, casting an essoin was 
 alleging an excuse for nonappearance. 
 
 CASTING VOTE. The deciding vote in a 
 deliberative or parliamentary body, cast by 
 the presiding officer in the event of a tie. 
 It sometimes signifies only such a vote, and 
 sometimes the double vote of one who first 
 votes as a member, and afterwards votes to 
 cast off the tie, if one results. 1 Bl. Comm. 
 181, note; Jacob. "Parliament" (7). 
 
 CASTLEGUARD, CASTELGARD, or CAS- 
 tleward (Law Lat. rastelgardiim, castelli 
 riiKU'ilia. irardiiiii rfinti'i, aifitodia castri). In 
 feudal and old English law. The defense 
 or guard of a castle; otherwise called 
 "watch" and "ward." A species of feudal 
 service or tenure; a kind of tenure by 
 knight's service. Spelman, voc. "Castelgard- 
 
CASTRATION 
 
 (131) 
 
 CATALLA 
 
 um;" Termes de la Ley; Litt. § 111; Co. 
 Litt. 82b. The service was sometimes changed 
 Into an annual rent, and then the tenure 
 became a tenure in socage. 4 Coke, 88. See 
 3 How. St. Tr. 866. 
 
 An imposition anciently laid upon such 
 persons as lived within a certain distance of 
 any castle, towards the maintenance of such 
 as watched and warded the castle. Magna 
 Charta, c. 20; St. 32 Hen. VIII. c. 48; Cow- 
 ell. 
 
 The circuit itself, inhabited by such as 
 were subject to this service. Cowell; Blount; 
 Termes de la Ley. 
 
 CASTRATION. In criminal law. The act 
 of gelding. When this act is maliciously 
 performed upon a man, it is a mayhem, 
 and punishable as such, although the sufferer 
 consented to it. 2 Bish. Crim. Law, §§ 842, 
 847. 
 
 CASU.CONSIMILI. See "Consimili Casu." 
 
 CASU PROVISO (Lat. in the case pro- 
 vided for). In practice. A writ of entry 
 framed under the provisions of the statute 
 of Gloucester (6 Edw. I.) c. 7, which lay for 
 the benefit of the reversioner when a tenant 
 in dower aliened in fee or for life. It seems 
 to have received this name to distinguish 
 it from a similar writ framed under the 
 provisions of St. Westminster II. (13 Edw. 
 I.) c. 24, where a tenant by curtesy had 
 alienated as above, and which was known 
 emphatically as the writ in consimili casu. 
 
 The writ is now practically obsolete. 
 Fitzh. Nat. Brev. 205; Dane, Abr. Index. 
 
 CASUAL EJECTOR. In practice. The 
 person supposed to perform the fictitious ous- 
 ter of the tenant of the demandant in an 
 action of ejectment. See "Ejectment." 
 
 CASUAL EVIDENCE. A phrase used to 
 denote (in contradistinction to "preappoint- 
 ed evidence") all such evidence as happens 
 to be adducible of a fact or event, but which 
 was not prescribed by statute or otherwise 
 arranged beforehand to be the evidence of 
 the fact or event. Brown. 
 
 CASUAL PAUPER. A poor person who, 
 in England, applies for relief In a parish 
 other than that of his settlement. The ward 
 in the workhouse to which they are admit- 
 ted is called the "casual ward." Rapalje & L. 
 
 CASUALTIES OF SUPERIORITY. In 
 
 Scotch law. Certain emoluments arising to 
 the superior lord in regard to the tenancy. 
 
 They resemble the "incidents" to the feu- 
 dal tenure at common law. They take prece- 
 dence of a creditor's claim on the tenant's 
 land, and constitute a personal claim also 
 against the vassal. Bell, Diet. They have 
 very generally disappeared. Paterson, Comp. 
 29. 
 
 CASUALTY. Inevitable accident. Un- 
 foreseen circumstances not to be guarded 
 against by human agency, and -in which man 
 takes no part. Story, Bailm. § 240; 1 Pars. 
 Cont. 543-547. 
 
 CASUS BELLI. An occurrence giving 
 rise to or justifying war. 
 
 CASUS FOEDERIS (Lat.) In interna- 
 tional law. A case within the stipulations 
 of a treaty. 
 
 The question whether, in case of a treaty 
 of alliance, a nation is bound to assist its 
 ally in war against a third nation, is de- 
 termined in a great measure by the justice 
 or injustice of the war. If manifestly un- 
 just on the part of the ally, it cannot be 
 considered as casus foederis. Grotius de 
 Jure Belli, bk. 2, c. 25; Vattel, bk. 2, c. 12. § 
 168. See 1 Kent, Comm. 49. 
 
 CASUS FORTUITUS (Lat.) An inevi- 
 table accident; a loss happening in spite of 
 all human effort and sagacity. 3 Kent, 
 Comm. 217, 300. 
 
 It includes such perils of the sea as strokes 
 of lightning, etc. A loss happening through 
 the agency of rats was held an unforeseen, 
 but not an inevitable, accident. 1 Curt. C. 
 C. (U. S.) 148. The happening of a ca.nis 
 fortuitus excuses ship owners from liability 
 for goods conveyed. 3 Kent, Comm. 216. 
 
 CASUS FORTUITUS NON EST SPERAN- 
 dus, et nemo tenetur divinare. A fortuitous 
 event is not to be foreseen, and no person 
 is held bound to divine it. 4 Coke, 66. 
 
 CASUS FORTUITUS NON EST SUP- 
 ponendus. A fortuitous event is not to be 
 presumed. Hardr. 82, arg. 
 
 CASUS MAJOR (Lat.) An unusual acci- 
 dent. Story, Bailm. § 240. 
 
 CASUS OMISSUS (Lat.) A case which 
 is not provided for. When such cases arise 
 in statutes which are intended to provide 
 for all cases of a given character which may 
 arise, the common law governs. 5 Coke, 38; 
 11 East, 1; 2 Bin. (Pa.) 279; 2 Sharswood, 
 Bl. Comm. 260; Brown, Max. 37. A casus 
 omissus may occur in a contract as well as 
 in a statute. 2 Sharswood, Bl. Comm. 260. 
 
 CASUS OMISSUS ET OBLIVIONI DATUS 
 disposition! communis juris relinquitur. A 
 case omitted and forgotten is left to the dis- 
 posal of the common law. 5 Coke, 37; 
 Broom, Leg. Max. (3d London Ed.) 45; 1 
 Exch. 476. 
 
 CATALLA (Law Lat.) In old English 
 law. Chattels, or catals. as anciently writ- 
 ten. A term including all property movable 
 and immovable, except fees and freeholds. 
 
 This word is considered by Spelman as 
 derived, by contraction, from capitaJia. The 
 singular, r<it(illviii (ij. r.), rarely occurs, al- 
 though Bracton uses it in several places. 
 Catalla, according to the same writer, had 
 nearly or quite the sense of averia (beasts or 
 (battle), being demandable under that name. 
 Bracton, fol. 159b. See "Averia." It seems 
 to have been, from a very early period, 
 united with the word bona, in the phrase 
 bona et catalla, of which the familiar mod- 
 ern phrase "goods and chattels" is a trans- 
 lation. Bracton, fol. 60b; Reg. Grig. 140, 
 141. 
 
CATALLA JUSTE, ETC. 
 
 (132) 
 
 CAUSA 
 
 CATALLA JUSTE POSSESSA AMITTI 
 
 non possunt. Chattels justly possessed can- 
 not be lost. Jenk. Cent. CaS. 28. 
 
 CATALLA OTIOSA (Lat.) Dead goods, 
 and animals other than beasts of the plough, 
 averia carucae, and sheep. 3 Sharswood, Bl. 
 Comm. 9; Bracton, 217b. 
 
 CATALLA REPUTANTUR INTER MIN- 
 ima in lege. Chattels are considered in law 
 among the minor things. Jenk. Cent. Cas. 
 52. 
 
 CATALLIS CAPTIS NOMINE DISTINC- 
 tionis. A writ which lay for rent of a house 
 in a borough, and authorized distress of win- 
 dows, doors, etc. 
 
 CATALLUM. A chattel. See "Catalla." 
 The word is used more frequently in the 
 plural, catalla, but has then the same sig- 
 nification, denoting all goods, movable or im- 
 movable, except such as are in the nature 
 of fees and freeholds. Cowell; Du Cange. 
 
 CATALS. Goods and chattels. See "Ca- 
 talla." Rapalje & L. 
 
 CATANEUS. A tenant in capite; a tenant 
 holding immediately of the crown. Spel- 
 man. 
 
 CATCHING BARGAIN. An agreement 
 made with an heir expectant for the pur- 
 chase of his expectancy at an inadequate 
 price. Any agreement, whether by sale, 
 mortgage, or post oMt bond, on insufiicient 
 consideration, to be performed by the heir 
 on the vesting of his expectancy. 47 Mich. 
 94; 7 Mass. 112; 63 Pa. St. 448; 34 Me. 447. 
 
 CATCH LAND. Land in Norfolk, so called 
 because it is not known to what parish It 
 belongs, and the minister who first seizes 
 the tithes of it, by right of preoccupation, 
 enjoys them for that year. Cowell. 
 
 CATCHPOLE, or CATCHPOLL. A name 
 formerly given to a sheriff's deputy, or to 
 a constable, or other officer whose duty it 
 is to arrest persons. He was a sort of ser- 
 geant. The word is not now in use as an 
 official designation. Minshew. 
 
 CATER COUSIN. A very distant relation. 
 Bl. Law Tracts, 6. 
 
 CATHEDRAL. In ecclesiastical law. A 
 tract set apart for the service of the church. 
 
 The church of the bishop; so called from 
 the fact that his cathedra or oflScial chair is 
 therein located. 
 
 CATHOLIC CREDITOR. In Scotch law. 
 A creditor whose debt is secured on several 
 parts or all of his debtor's property. Such 
 a creditor is bound to take his payment 
 with reference to the rights of the secondary 
 creditors, or, if he disregards their rights, 
 must assign over to them his claims. This 
 rule applies where he collects his debts of a 
 cautioner (surety). Bell, Diet. 
 
 CATHOLIC EMANCIPATION ACT. Act 
 10 Geo. IV. c. 7. This act relieves from 
 
 disabilities and restores all civil rights to 
 Catholics, except that of holding ecclesias- 
 tical offices and certain high state offices. 3 
 Steph. Comm. 109. 
 
 CATONIANA REGULA. In Roman law. 
 The rule which is .commonly expressed in 
 the maxim, Quod ai initio non valet tractu 
 temporis non convaleiit, meaning that what 
 is at the beginning void by reason of some 
 technical (or other) legal defect will not 
 become valid merely by length of time. The 
 rule applied to the institution of haeredes, 
 the bequest of legacies, and such like. The 
 rule is not without its application also in 
 English law; e. g., a married woman's will 
 (being void when made) is not made valid 
 merely because she lives to become a widow. 
 Brown. 
 
 CATTLE. From law Latin capitalia. 
 Beasts subject of ownership at common law; 
 domestic animals, useful as food or for labor. 
 
 CATTLE GATE. A customary propor- 
 tionate right of pasture enjoyed in common 
 with others. The right is measured not by 
 the nutnber of cattle to be pastured, but by 
 reference to the rights of others and the 
 whole amount of pasture. 34 Eng. Law & 
 Eq. 511; 1 Term R. 137. 
 
 CAUDA TERRAE. A land's end, or th& 
 bottom of a ridge in arable land. Cowell. 
 
 CAULCEIS (Law Fr.) A word used in old 
 statutes (6 Hen. VI. c. 5) to signify cause- 
 ways, or causeys. From -the latin calcetum 
 (q. V.) Cowell; Blount. 
 
 CAUPO (pi. caupones). In the civil law. 
 An innkeeper. Dig. 4. 9. 4. 5; Story, Ag. § 
 458. 
 
 CAUPONA. In the ciyil law. An, inn or 
 tavern. Inst. 4. 5. 3; Dig. 4. 9. 1. 5. 
 
 CAURSINES. Italian merchants wha 
 came into England in the reign of Henry 
 III., where they established themselves as 
 money lenders, but were soon expelled for 
 their usury and extortion. Cowell; Blount; 
 Spelman. They seem to have been Lom- 
 bards, deriving their name from a town in 
 Lombardy. 
 
 CAUSA (Lat.) A cause; a reason. 
 
 A condition; a consideration. Used of 
 contracts, and found in this sense in the 
 Scotch law also. Bell, Diet. 
 
 A suit; an action pending. Used in this 
 sense in the old English law. 
 
 Property. Used thus in the civil law in 
 the sense of res (a thing). Non porcellum, 
 non agnellum. nee aliam causam, not a hog, 
 not a lamb, nor other thing. Du Cange. 
 
 By reason of. Causa proxima, the immedi- 
 ate cause. Oausa remota, a cause operating 
 indirectly by the intervention of other caus- 
 es. In its general sense, causa denotes any- 
 thing operating to produce an effect. 4 Gray~ 
 (Mass.) 398; 4 Campb. 284. 
 
CAUSA CAUSAE EST, ETC. 
 
 (133) 
 
 CAUSE OF ACTION 
 
 CAUSA CAUSAE EST CAUSA CAUSATI. 
 
 The cause of a cause is the cause of the 
 effect. Freem. 329; 12 Mod. 639. 
 
 CAUSA CAUSANS. The immediate cause; 
 the last linlc in the chain of causation. Ra- 
 palje & L. 
 
 CAUSA DATA ET NON SECUTA. In the 
 
 civil law. Consideration given and not fol- 
 lowed, that is, by the event upon which it 
 was given. The name of an action by which 
 a thing given in the view of a certain event 
 was reclaimed if that event did not take 
 place. Dig. 12. 4; Code, 4. 6. 
 
 CAUSA ECCLESIAE PUBLICIS AEQUI- 
 paratur; et summa est ratio quae pro re- 
 ligione facit. The cause of the church is 
 equal to public ca"use; and paramount is the 
 reason which makes for religion. Co. Litt. 
 341. 
 
 CAUSA ET ORIGO EST MATERIA NE- 
 
 gotii. Cause and origin is the material of 
 business. 1 Coke, 99; Wingate, Max. 41, 
 max. 21. 
 
 CAUSA HOSPITANDI. For the purpose 
 of being entertained as a guest. 4 Maule & 
 S. 310. 
 
 CAUSA JACTITATIONIS MARITAGll 
 
 (Lat.) A form of action which anciently 
 lay against a party who boasted or gave out 
 that he or she was married to the plaintiff, 
 whereby a common reputation of their mar- 
 riage might ensue. 3 Bl. Comm. 93. 
 
 CAUSA MATRIMONII PRAELOCUTI 
 
 (Lat.) A writ lying where a woman has 
 given lands to a man in fee simple, with the 
 intention that he shall marry her, and he 
 refuses so to do within a reasonable time, 
 upon suitable request. Cowell. Now obso- 
 lete. 3 Bl. Comm. 183, note. 
 
 CAUSA MORTIS. In anticipation of 
 death. See "Donatio Causa Mortis." 
 
 CAUSA PATET. The reason is open, ob- 
 vious, plain, clear, or manifest. A common 
 expression in old writers. Perk. c. 1, §§ 
 11, 14, 97. Causa patet ex praemissis, the 
 reason is plain from the premises. Id. c. 3, 
 § 226. 
 
 CAUSA PROXIMA NON REMOTA SPEC- 
 tatur (Lat.) The direct and not the remote 
 cause is considered. See "Proximate Cause." 
 
 CAUSA REI (Lat.) In civil law. Things 
 accessory or appurtenant. All those things 
 which a man would have had if the thing 
 had not been withheld. Du Cange; 1 Mackeld. 
 Civ. Law, 55. 
 
 CAUSA REMOTA. A remote cause. 
 
 CAUSA SCIENTIAE PATET. The reason 
 of the knowledge Is evident. A technical 
 phrase in Scotch practice, used in depositions 
 of witnesses. 
 
 CAUSA SINE QUA NON. A necessary 
 case; one without which the effect would not 
 have been produced. 
 
 CAUSA TURPI S. An immoral cause. 
 
 CAUSA VAGA ET INCERTA NON EST 
 causa ratlonabllis. A vague and uncertain 
 cause is not a reasonable cause. 5 Coke, 57. 
 
 CAUSAE DOTIS, VITAE, LIBERTATIS, 
 
 fisci sunt inter favorabilia in lege. Causes 
 of dower, life, liberty, revenue are among 
 the things favored in law. Co. Litt. 341. 
 
 CAUSAM NOBIS SIGNIFICES QUARE. 
 
 You signify to us the reason. In old Eng- 
 lish practice. A writ addressed to a may- 
 or of a town, etc., who was by the king's 
 writ commanded to give seisin of lands to 
 the king's grantee, on his delaying to do it, 
 requiring him to show cause why he so de- 
 layed the performance of his duty. Blount; 
 Cowell. 
 
 CAUSARE (Lat. to cause). To be en- 
 gaged in a suit; to litigate; to conduct a 
 cause. Used in the old English and in the 
 civil law. 
 
 CAUSATOR (Lat.) A litigant; one who 
 takes the part of the plaintiff or defendant 
 in a suit. 
 
 CAUSE (Lat. causa). That which supplies 
 the motive, or constitutes the reason, for 
 any act. See "Probable Cause." i 
 
 In Civil Law. The consideration or 
 
 motive for making a contract. Dig. 2. 14. 
 7; Toullier, Dr. Civ. liv. 3, tit. 3, c. 2, § 4. 
 
 In Pleading. Reason; motive. 
 
 In a replication de injuria, for example, 
 the plaintiff alleges that the defendant of , 
 his own wrong and without the cause by 
 him, etc., where the word "cause" compre- 
 hends all the facts alleged as an excuse or 
 reason for doing the act. 1 Chit. PI. 585. 
 
 In Practice. A suit or action; any 
 
 question, civil or criminal, contested before 
 a court of justice. Wood, Civ. Law, 301. It 
 does not include a quo warranto proceeding 
 (5 Bl. & Bl. 1), but includes a criminal 
 prosecution (3 Q. B. 901). 
 
 CAUSE BOOKS. Books kept in the cen- 
 tral office of the English supreme court, in 
 which are entered all writs of summons is- 
 sued in the office. Rules of Court, v. 8. 
 
 CAUSE LIST. An official list of actions, 
 demurrers, petitions, appeals, etc., set down 
 for trial or argument in open court. Sim- 
 ilar to the American "calendar" or "dock- 
 et" (<?. V.) 
 
 CAUSE OF ACTION. In practice. Mat- 
 ter for which an action may be brought; the 
 right to maintain an action. 28 Barb. (N. 
 Y.) 231. 
 
 A cause of action is said to accrue to any 
 person when that person first comes to a 
 right to bring an action. There is, how- 
 ever, an obvious distinction between a cause 
 of action and a right, though a cause of 
 action generally confers a right. Thus, stat- 
 utes of limitation do not affect the cause . 
 of action, but take away the right. It is 
 
CAUSIDICUS 
 
 (134) 
 
 CAVEATOR 
 
 synonymous with, "right of action" (26 How. 
 Pr. [N. Y.] 108), but not with "chose in 
 action" (10 How. Pr. [N. Y.] 1). 
 
 CAUSIDICUS. In the civil law. A plead- 
 er; one who argued a cause ore tenus. Code, 
 2. 6. 6. There was a distinction between 
 causidicus and advocatus (q. v.) 
 
 CAUTELA (Lat.) Care; precaution; vig- 
 ilance. 
 
 CAUTI JURATORIA. Security given by 
 the oath of the party. Inst. 4. 11. 2; 1 
 Mackeld. Civ. Law, p. 176, § 184; T. Raym. 
 226, arg. 
 
 CAUTIO, or CAUTION. 
 
 In Civil Law. Security given for the 
 
 performance of anything. A bond whereby 
 the debtor aclinowledges the receipt of mon- 
 ey, and promises to pay it at a future day. 
 
 In French Law. The person entering 
 
 into an obligation as a surety. 
 
 In Scotch Law. A pledge, bond, or 
 
 other security for the performance of an 
 obligation, or completion of the satisfaction 
 to be obtained by a judicial process. Bell, 
 Diet. 
 
 CAUTIO , FIDEJUSSORIA. Security by 
 means of bonds or pledges entered into by 
 third parties. Du Cange. 
 
 CAUTIO PIGNORATITIA. A pledge by 
 deposit of goods. 
 
 CAUTIO PRO EXPENSIS. Security for 
 costs or expenses. 
 
 This term is used among the civilians 
 (Nov. 112, c. 2), and generally on the conti- 
 nent of Europe. In nearly all the countries 
 of Europe, a foreign plaintiff, whether resi- 
 dent there or not, is required to give caution 
 pro expe'nsis, that is, security for costs. In 
 some states this requisition is modified, and, 
 when such plaintiff has real estate or a com- 
 mercial or manufacturing establishment 
 within the state, he is not required to give 
 such caution. Foelix, Droit Int. Prive, note 
 106. 
 
 CAUTIO USUFRUCTUARIA. Security, 
 which tenants for life give, to preserve the 
 property rented free from waste and injury. 
 Ersk. Inst. bk. 2, tit. 9, § 59. 
 
 CAUTION JURATORY. Security given 
 by oath; that which a suspender swears is 
 the best he can afford in order to obtain a 
 suspension. Ersk. Prac. 4. 3. 6; Paterson, 
 Comp. 
 
 CAUTIONARY. In Scotch law. The ob- 
 ligation by which a party becomes surety 
 for another, answering to the English guar- 
 antee. It is defined by Stair: "The prom- 
 ise or contract of a man, not for himself, 
 but another." Brande. See Ersk. Inst. bk. 
 3, tit. 7, § 22. See "Cautlonry." 
 
 CAUTIONE ADIMITTENDA. In English 
 ecclesiastical law. A writ that lies against 
 a bishop who holds an excommunicated per- 
 son in prison for contempt, notwithstanding 
 
 he offers sufficient caution or security to 
 obey the orders and commandment of the 
 church for the future. Reg. Grig. 66; Cow- 
 ell. 
 
 CAUTIONER. A surety; a bondsman. 
 One who binds himself in a bond with the 
 principal for greater security. He is still 
 a cautioner, whether the bond be to pay a 
 debt, or whether he undertake to produce 
 the person of the party for whom he is 
 bound. Bell, Diet. 
 
 CAUTIONNEMENT. In French law. The 
 same as becoming surety in English law. 
 
 CAUTION RY. In Scotch law. Surety- 
 ship. The obligation of suretyship. 
 
 CAVEAT (Lat. let him beware). 
 
 In Practice. A notice not to do an 
 
 act, given to some officer, ministerial or ju- 
 dicial, by a party having an interest in the 
 matter. 
 
 It is a formal caution or warning not to 
 do the act mentioned, and is addressed fre- 
 quently to prevent the admission to probate 
 of wills, the granting letters of administra- 
 tion, etc. 1 Bouv. Inst. 71, 534; 3 Bl. 
 Comm. 246; 2 Chit. Prac. 502, note b; 3 
 Bin (Pa.) 314; 3 Halst. (N. J.) 139. 
 
 It is also used to prevent the issuance of 
 a patent for lands. See 9 Grat. (Va.) 508. 
 
 In Patent Law. A legal notice not to 
 
 issue a patent of a particular description to 
 any other person without allowing the cave- 
 ator an opportunity to establish his priority 
 of invention. 
 
 It is filed in the patent office urider statu- 
 tory regulations. The principal oibject of 
 filing it is to obtain for an inventor time to 
 perfect his invention without the risk of 
 having a patent granted to another person 
 for the same thing. Rev. St. U. S. § 4902. , 
 
 CAVEAT EMPTOR (Lat. let the buyer 
 beware.) A maxim employed in the law to 
 signify that a purchaser, whether of realty 
 or personalty, is not only bound to discover 
 obvious defects for himself, but is confined 
 to title warranties which he has required, and 
 cannot, in the absence of fraud, rely on the 
 statements of the seller. Benj. Sales, 611; 
 17 Pick. (Mass.) 475; 10 Ga. 311; 9 N. Y. 36; 
 10 Wall. (U. S.) 383; 53 N. Y. 515. 
 
 As an exception to the rule, there is, how- 
 ever, an implied warranty of title. 88 Ga. 
 629. 
 
 CAVEAT EMPTOR; QUI IGNORARE 
 non debuit quod jus alienum emit. Let a 
 
 purchaser beware; who ought not to be igno- 
 rant that he is purchasing the rights of an- 
 other. Hob. 99; Broom, Leg. Max. (3d Lon- 
 don Ed.) 690; Co. Litt. 102a; 3 Taunt. 439; 
 1 Bouv. Inst. 383; Sugd. Vend. (13th Ed.) 
 272 et seq.; 1 Story, Eq. Jur. (6th Ed.) c. 6. 
 
 CAVEAT VENDITOR. Let the seller be- 
 ware. Lofft, 328; 18 Wend. (N. Y.) 449, 453; 
 23 Wend. (N. Y.) 353; 2 Barb. (N. Y.) 323; 
 5 N. Y. 73, 82. 
 
 CAVEATOR. One who files a caveat. 
 
CAVENDUM EST A FRAGMENTIS (135) 
 
 CENSO ENFITEUTICO 
 
 CAVENDUM EST A FRAGMENTIS. Be- 
 ware of fragments. Bac. Aph. 26. 
 
 CAVERE (Lat.) In the civil and common 
 law. To take care; to exercise caution. See 
 "Caveat Emptor." 
 
 To take care or provide for; to prove by 
 law. Cavetur, provision is made, a remedy 
 is given. Inst. 4. 3. 13. Gautuni est, it is 
 provided or enacted. Inst. 3. S. 2; Id. 4. 
 3. pr. 
 
 To provide against; to forbid by law. 
 Inst. 1. 25. 13. 
 
 To give security. Nisi caveant tutores et 
 curatores, etc. Inst. 1. 24. 3. Cautum. se- 
 cured. Dig. 50. 16. 188. 1. 
 
 To give caution or security on arrest. 
 Gierke, Prax. tit. 4. 
 
 CAVERS. Offenders with respect to the 
 mines in Derbyshire, who are punishable in 
 the Berghmote or miners' court. Jacob. 
 
 CAYA. In old English law. A quay, kay, 
 key, or wharf. Cowell. 
 
 CAYAGIUM. A toll or duty paid the king 
 for landing goods at some quay or wharf. 
 The barons of the Cinque Ports were free 
 from this duty. Cowell. 
 
 CEAP. A bargain; anything for sale; a 
 chattel; also cattle, as being the usual medi- 
 um of barter. Sometimes used instead of 
 ceapgild fq. v.). 
 
 CEAPGILD. Payment of an animal. An 
 ancient species of forfeiture. Cowell; Spel- 
 man. 
 
 CEDE. To assign; to transfer. Applied 
 to the act by which one state or nation trans- 
 fers territory to another. 
 
 CEDENT. An assignor; the assignor of 
 a chose in action. Karnes, Bq. 43. 
 
 CEDULA. In Spanish law. A written 
 obligation, under private signature, by which 
 a party acknowledges himself indebted to 
 another in a certain sum, which he promises 
 to pay on demand or on some fixed day. 
 
 In order to obtain judgment on such an 
 instrument, it is necessary that the party 
 executing it should acknowledge it in open 
 court, or that it be proved by two witnesses 
 who saw its execution. 
 
 The citation afflxe_d to the door of an ab- 
 sconding offender, requiring him to appear 
 before the tribunal where the accusation is 
 pending. 
 
 CEDULE (Fr.) In French law. A note 
 in writing. Poth. Obi. pt. 4, c. 1, art. 2, § 1. 
 
 GELATION. In medical jurisprudence. 
 Concealment of pregnancy or delivery. 
 Dungl. Med. Diet. 
 
 CELEBRATION OF MARRIAGE. The 
 
 solemn act by which a man and woman take 
 each other for husband and wife, conform- 
 ably to the rules prescribed by law. 
 
 CELLERARIUS. A butler in a monas- 
 
 tery; sometimes in universities called "man- 
 ciple" or "caterer." 
 
 CENDULAE. Small pieces of wood laid 
 in the form of tiles to cover the roof of a 
 house; shingles. Cowell. 
 
 CENEGILD. In Saxon law. A pecuniary 
 mulct or fine paid to the relations of a mur- 
 dered person by the murderer or his rela- 
 tions. Spelman. 
 
 CENELLAE. In old records. Acorns. 
 
 CENNINGA. A notice given by a buyer 
 to a seller that the things which had been 
 sold were claimed by another, in order that 
 he might appear and justify the sale. 
 Blount; Whishaw. 
 
 The exact significance of this term is 
 somewhat doubtful. It probably denoted 
 "notice," as defined above. The finder of 
 stray cattle was not always entitled tc it; 
 for Spelman savs: "As to strange (or stray) 
 cattle, no one shall have them but with the 
 consent of the hundred of tithingmen; un- 
 less he have one of thege, we cannot allow 
 him any cenninga (I think notice)." Spel- 
 man. 
 
 CENS. In Canadian law. An annual pay- 
 ment or due reserved to a seignior or lord, 
 and imposed merely in recognition of his 
 superiority. Guyqt, Inst. c. 9. 
 
 The land or estate so held is called a cen- 
 ■•^irc: the tenant is a ceiixitriirr. It was orig- 
 inally a tribute of considerable amount, 
 but became reduced in time to a nominal 
 sum. It is distinct from the rentes. The 
 cens varies in amount and in mode of pay- 
 ment. Payment is usually in kind, but may 
 be in silver. 2 Low. \v. S.) 40. 
 
 CENSARIA. A farm, or house and land, 
 let at a standing rent. Cowell. 
 
 CENSARII. In old English law. Farm- 
 ers, or such persons as were liable to pay a 
 ceneus (tax). Blount; Cowell. 
 
 CENSERE. In the Roman law. To or- 
 dain; to decree. Dig. 50. 16. 111. 
 
 CENSITAIRE. See "Cens." 
 
 CENSIVE. See "Cens." 
 
 CENSO. In Spanish and Mexican law. 
 An annuity; a ground rent; the right which 
 a person acquires to receive a certain annual 
 pension, for the delivery which he makes 
 to another of a determined sum of money or 
 of an immovable thing. Civ. Code Mex. art. 
 3206. See Schmidt, Civ. Law, 149, 309; 
 White, New Recop. bk. 2, c. 7. 5 4; 13 Tex. 
 655. 
 
 CENSO CONSIGNATIVO. In Spanish 
 and Mexican law. A censo (q. v.) is called 
 "consignativo" when he who receives the 
 money assigns for the payment of the pen- 
 sion (annuity) the estate the fee in which 
 he reserves. Civ. Code Mex. art. 3207. 
 
 CENSO ENFITEUTICO. In Spanish and 
 Mexican law. An emphyteutic annuity. 
 
CENSUALES 
 
 (136) 
 
 CENTUMVIKI 
 
 That species of censo (annuity) which ex- 
 ists where there is a right to require of 
 another a certain canon or pension annually, 
 on account of having transferred to that 
 person forever certain real estate, but re- 
 serving the fee in the land. The owner who 
 thus transfers the land is called the "cen- 
 sualisto," and the person who pays the an- 
 nuity is called the "censaUiiio." Hall, Mex. 
 Law, § 756. 
 
 CENSUALES. In old European law. A 
 species of oblati or voluntary slaves of 
 churches or monasteries; those who, to pro- 
 cure the protection of the church, bound 
 themselves to pay an annual tax or quit- 
 rent only of their estates to a church or 
 monastery. 
 
 CENSUERE. In Roman law. They have 
 decreed. The term of art, or technical 
 term for the judgment, resolution, or decree 
 of the senate. Tayl. Civ. Law, 566. 
 
 CENSUMETHIDUS, or CENSUMORTHI- 
 dus. A dead rent, like that which is called 
 "mortmain." Blount; Cowell. 
 
 CENSUS (Lat. censere, to reckon). An 
 official reckoning or enumeration of the in- 
 habitants and wealth of a country. 
 
 The census of the United States is taken 
 every tenth year, in accordance with the pro- 
 visions of the constitution, and many of the 
 states have made provisions for a similar de- 
 cennial reckoning at intervening periods. 
 Const. U. S. art. 1, § 2; 1 Story, U. S. Laws, 
 73, 722, 751; 2 Story, XI. S. Laws, 1134, 1139, 
 1169, 1194; 3 Story, TJ. S. Laws, 1776; 4 
 Sharswood, U. S. Laws, 2179. 
 
 In Old European Law. A tax or trib- 
 ute. Montesq. liv. 30, c. 14. 
 
 CENSUS REGALIS. In English law. The 
 royal revenue. 1 Bl. Comm. 306. 
 
 CENT (Lat. centum, one hundred). A 
 coin of the United States, weighing seventy- 
 two grains, and composed of eighty-eight 
 per centum of copper and twelve of nickel. 
 Act Feb. 21, 1857, § 4, See 11 U. S. St. at 
 Large, 163, 164. 
 
 CENTENA (Law Lat. from centum, a hun- 
 dred). A hundred; a district or division 
 containing originally a hundred freemen, 
 established among the Goths, Germans, 
 Franks, and Lombards, for military and 
 civil purposes, and answering to the Saxon 
 hundred. Spelman; 1 Bl. Comm. 115; Es- 
 prit des Lois, liv. 30, c. 17. The Saxon di- 
 vision is also sometimes called centena, but 
 is more commonly rendered in law Latin, 
 hundredum, or fiundredus. Spelman. See 
 "Hundred;" "Centenarius;" "Centenf." 
 
 In Old Records and Pleadings. A hun- 
 dred weight. Centena piscium, a hundred 
 weight of fish, Pryn. 303. Centena cerae 
 zuoarii, piperis, cumini, etc., continet tredecim 
 petras et dimidium, the hundred weight of 
 wax, sugar, pepper, cummin, etc., contains 
 thirteen storie and a half. Fleta, lib. 2, c. 
 12, 4. See Cro. Eliz. 754. 
 
 CENTENARIUS (Law Lat.; Fr. centenier, 
 from centena, g. v.) In old European law. 
 One of a centena, or hundred; the head or 
 chief of a centena (praefecius centenae), 
 among the Goths, Germans, Franks, and 
 Lombards; an inferior judge. 
 
 CENTENI (Lat. from centum, a hundred). 
 A hundred men; the number of men en- 
 rolled for military service from each district, 
 among the ancient Germans, and which 
 afterwards became their distinctive name. 
 
 CENTESIMA (Lat. centum). In Roman. 
 law. The hundredth part. 
 
 Usuriae centesimae. Twelve per cent, per 
 annum, that is, a hundredth part of the prin- 
 cipal, was due each month, the month being 
 the unit of time from which the Romans 
 reckoned interest. 2 Bl. Comm. 462, note. 
 
 CENTRAL CRIMINAL COURT. In Eng- 
 lish law. A court which has jurisdiction 
 of all cases of treason, murder, felony, or 
 misdemeanor eommitted within the city of 
 London and county of Middlesex, and cer- 
 tain parts of the counties of Essex, Kent, 
 and Surrey, and also of all serious offenses 
 within the former jurisdiction of the admi- 
 ralty court. 
 
 The court consists of the lord mayor, the 
 lord chancellor, the judges of the three su- 
 perior courts at Westminster, the judges in 
 bankruptcy, the judges of the admiralty, the 
 dean of the arches, the aldermen, recorder, 
 and common Serjeant of London, and the 
 judges of the sheriff's court. 
 
 CENTRAL OFFICE. The central office 
 of the supreme court of judicature in Eng- 
 land is the office established in -pursuance of 
 the recommendation of the legal depart- 
 ment's commission (2d Rep. 23, 47) in or- 
 der to consolidate the offices of the masters 
 and associates of the common-law divisions, 
 the crown office of the queen's bench divi- 
 sion, the record and writ clerk's report, and 
 enrollment offices of the chancery division, 
 and a few others. Judicature Act 1879, § 4 
 et seq. The central office is divided into 
 the following departments, and the busi- 
 ness and staff of the office are distributed 
 accordingly (Rules of Court Dec. 1879, April, 
 1880): (1) Writ, appearance, and judgment; 
 (2) summons and order, for the common- 
 law divisions only; (3) filing and record, 
 including the old chancery report office; (4) 
 taxing, for the common-law divisions only; 
 (5) enrollment; (6) judgments, for the reg- 
 istry of judgments, executions, etc.; (7) 
 bills of sale; (8) married women's acknowl- 
 edgments; (9) queen's remembrancer; (10) 
 crown office; and (11) associates. 
 
 CENTUMVIRl (Lat. one hundred men). 
 The name of a body of Roman judges. Their 
 exact number was one hundred and five, 
 there being selected three from each of the 
 thirty-five tribes comprising all the citizens 
 of Rome. They constituted, for ordinary 
 purposes, four tribunals, but some cases 
 (called centumvirales causas) required the 
 judgment of all the judges. 3 Bl. Comm. 515. 
 
CENTURY 
 
 (137) 
 
 CERTAINTY 
 
 CENTURY. One hundred; one hundred 
 years. 
 
 One hundred men. The Romans were di- 
 vided in "centuries," as tlie English were 
 formerly divided into "hundreds." 
 
 CEORL. A tenant at will of free condi- 
 tion, who held land of the thane on condition 
 of paying rent or services. 
 
 A freeman of inferior rank occupied In 
 husbandry. Spelman. 
 
 Those who tilled the outlands paid rent; 
 those who occupied or tilled the inlands, or 
 demesne, rendered services. Under the Nor- 
 man rule, this term, as did others which de- 
 noted workmen, especially those which ap- 
 plied to the conquered race, became a term 
 of reproach, as' is indicated by the popular 
 signification of churl. Cowell; Spelman. 
 
 CEPI (Lat. I have taken). It was of fre- 
 quent use in the returns of sheriffs when 
 they were made in Latin; as, for example, 
 cepi corpus et B. B., I have taken the body, 
 and discharged him on bail bond; cepi corpus 
 et est in custodia, I have taken the body, and 
 it is in custody; cepi corpus et est languidus, 
 I have taken the body, and he is sick. 
 
 CEPI CORPUS (Law Lat. I have taken 
 the body). In practice. The technical name 
 of the return made by a sheriff to a capias, 
 that he has taken the body of the party. 
 Fitzh. Nat. Brev. 26; 3 Bl. Comm. 288; 1 
 Tidd, Prac. 308-310. See "Capias." It is de- 
 rived from the two emphatic words of the 
 return which was anciently indorsed in law 
 Latin on the writ. 
 
 Cepi corpus properly is the return where 
 the defendant is' out on bail. Where he is 
 in actual custody, the return is cepi corpus 
 in custodia. 1 Tidd, Prac. 308, 309. Sew- 
 ell. Sheriffs, 387. Cepi corpus et paratum 
 habeo, I have taken the body, and have it 
 ready, is another form of this return, which 
 anciently implied that the party was in ac- 
 tual custody, but is now the proper return 
 where the defendant has been arrested and 
 discharged on bail. Id.; 1 Tidd, Prac, ubi 
 supra. 
 
 CEPIT (Lat. capere, to take; ccpit, he took, 
 or has taken). 
 
 In Civil Practice. A form of replevin 
 
 which Is brought for carrying away goods 
 merely. 3 Hill (N. Y.) 282. Nan detinet 
 is not the proper answer to such a charge. 
 17 Ark. 85. And see 3 Wis. 399. Success 
 upon a nan cepit does not entitle the de- 
 fendant to a return of the property. 5 Wis. 
 85. A plea of non cepit is not inconsistent 
 with a plea showing property in a third per- 
 son. 8 Gill (Md.) 133. 
 
 In Criminal Practice. Took. A tech- 
 nical word necessary in an indictment for 
 larceny. The charge must be that the de- 
 fendant took the thing stolen with a feloni- 
 ous design. Bac. Abr. "Indictment" (G 1). 
 
 CEPIT ET ABDUXIT (Lat. he took and 
 led away). Applicable in a declaration in 
 trespass or indictment for larceny, where 
 *^c defendant has taken away a living chat 
 tei. 
 
 CEPIT ET ASPORTAVIT (Lat. he took 
 and carried away). Applicable in a declara- 
 tion in trespass or an indictment for larceny, 
 where the defendant has carried away 
 goods without right. 4 Bl. Comm. 231. 
 
 CEPIT IN ALIO LOCO (Lat. he took in 
 another place). In pleading. A plea in re- 
 plevin, by which the defendant alleges that 
 he took the thing replevied in another place 
 than that mentioned in the declaration. 1 
 Chit. PI. 490; 2 Chit. P!. 558; Rast. Entr. 
 554, 555; Willes, 475. It is the usual plea 
 where the defendant intends to avow or 
 justify the taking to entitle himself to a re- 
 turn. 4 Bouv. Inst, note 3569. 
 
 CEPPAGIUIVI. In old English law. The 
 stumps or roots of trees which remain in 
 the ground after the trees are felled. Pleta, 
 lib. 2, c. 41, § 24. 
 
 CERA, or CERE. In old English law. 
 Wax; a seal of wax. St. Westminster II. c. 
 10. 
 
 CERAGRUIVl. In old English law. A 
 payment to provide candles in the church. 
 Blount. 
 
 CEREVISIA. Ale or beer. Rapalje & L. 
 
 CERT IVIONEY. The head money given 
 by the tenants of several manors yearly to 
 the lords, for the purpose of keeping up 
 certain inferior courts. Called in the an- 
 cient records certum letae (leet money). 
 Cowell. 
 
 CERTA DEBET ESSE INTENTIO, ET 
 narratio et certum fundamentum, et carta 
 res quae deducitur in judicium. The inten- 
 tion, count, foundation, and thing, brought 
 to judgment, ought to be certain. Co. Litt. 
 303a. 
 
 CERTA RES. In old English law. A cer- 
 tain thing. Pleta, lib. 2, c. 60, §§ 24, 25. 
 
 CERTAIN SERVICES. In ftudal and old 
 English law. Such services as were stinted 
 (limited or defined) in quantity, and could 
 not be exceeded on any pretense; as to pay 
 a stated annual rent, or to plow such a 
 field for three days. 2 Bl. Comm. 61. 
 
 CERTAINTY. 
 
 In Contracts. Distinctness and accu- 
 racy of statement. 
 
 A thing is certain when its essence, qual- 
 ity, and quantity are described, distinctly 
 set forth, etc. Dig. 12. 1. 6. It is uncertain 
 when the description is not that of an indi- 
 vidual object, but designates only the kind. 
 Civ. Code La. art. 3522, No. 8; 5 Coke, 121. 
 
 In Pleading. Such clearness and dis- 
 tinctness of statement of the facts which 
 constitute the cause of action or ground of 
 defence that they may be understood by the 
 party who is to answer them, by the jury 
 who are to ascertain the truth of the allega- 
 tions, and by the court who are to give the 
 judgment. 1 Chit. PI. 257; Cowp. 682; Hob. 
 2915; 13 East, 107; 2 Bos. & P. 267; Co. Litt. 
 303; Comyn, Dig. "Pleader," c. 17. 
 
CERTIFICATE 
 
 (138) 
 
 CERTUM EST QUOD, ETC. 
 
 Certainty is said to be of three sorts: 
 
 (1) "Certainty to a common intent," which 
 is attained by a form of statement in which 
 words are used in -their ordinary meaning, 
 though by argument or inference they may 
 be made to bear a different one. See 2 H. 
 Bl. 530. 
 
 (2) "Certainty to a certain intent in gen- 
 eral," which is attained when the meaning of 
 the statute may be understood upon a fair 
 and reasonable construction, without recur- 
 rence to possible facts which do not appear. 
 1 Wm. Saund. 49; 9 Johns. (N. Y.) 317; 5 
 Conn. 423. 
 
 (3) "Certainty to a certain intent in par- 
 ticular," which Is attained by that technical 
 accuracy of statement which precludes all ar- 
 gument, inference, and presumption against 
 the party pleading. When this certainty is 
 required, the party must not only state the 
 facts of his case in the most precise way, but 
 add to them such as show that they are not 
 to be controverted, and, as it were, antici- 
 pate the case of his adversary. 1 Chit. PI. 
 258; Lawes, PI. 54, 55. 
 
 CERTIFICATE. In practice. A writing 
 made in any court, and properly authenti- 
 cated, to give notice to another court of any 
 thing done therein. 
 
 A written statement, by a person having 
 an oillclal or public stains, concerning some 
 matter within his knowledge or authority. 
 3 Pet. (U. S.) 29; 6 Serg. & R. (Pa.) 324. 
 
 CERTIFICATE INTO CHANCERY. In 
 
 English practice. The certificate by the com- 
 mon-law judges of their opinion on a ques- 
 tion referred to them by the chancellor. 
 
 CERTIFICATE OF ASSIZE. A writ 
 granted for the re-examination or retrial of a 
 matter passed by assize before justices. 
 Pitzh. Nat. Brev. 181. It is now entirely ob- 
 solete. 3 Sharswood, Bl. Comm. 389. Con- 
 sult, also, Comyn, Dig. "Assize" (B 27, 28). 
 
 CERTIFICATE OF COSTS. See "Judges 
 Certificate." 
 
 CERTIFICATE OF DEPOSIT. A certifi- 
 cate issued by a bank that the person named 
 has a specified sum on deposit to his order 
 in the bank. 
 
 CERTIFICATE OF REGISTRY. A cer- 
 tificate that a ship has been registered as 
 the law requires. 3 Kent, Comm. 149. Un- 
 der the United States statutes, "every alter- 
 ation in the property of a ship must be_ in- 
 dorsed on the certificate of registry, and 
 must Itself be registered." Unless this is 
 done, the ship or vessel loses its national 
 privileges as an American vessel. 1 Pars. 
 Mar. Law, 48. The English statute makes 
 such a transfer void. St. 3 & 4 Wm. IV. u. 
 54. 
 
 CERTIFICATE OF STOCK. A certificate 
 that a person named is the owner of a speci- 
 fied number of shares of stock in a corpora- 
 tion. 
 
 CERTIFICATE, TRIAL BY. This is a 
 mode of trial now little in use. It is resort- 
 
 ed to in cases where the fact in issue lies out. 
 of the cognizance of the court, and the judg- 
 es, in order to determine the question, are 
 obliged to rely upon the solemn averment or 
 information of persons in such a station as 
 affords them the clearest and most compe- 
 tent knowledge of the truth. Steph. P\, 112, 
 113; Co. Litt, 74; Brown. 
 
 CERTIFICATION. In Scotch law. A no- 
 tice to a party in a suit that, if he fail to do 
 something, certain consequences will follow. 
 Paterson, Comp. 
 
 CERTIFIED CHECK. A check which has 
 been recognized by the proper oflicer as a 
 valid appropriation of the amount of money 
 therein specified to the person therein 
 named, and which bears upon Itself the evi- 
 dence of such recognition. 
 
 Certification of a check is usually accom- 
 plished by writing the name of the officer 
 authorized to bind the bank in that manner 
 across the face of the check. See "Check." 
 Sewell, Bank. 
 
 ■ CERTIORARI. In practice. A writ is- 
 sued by a superior to an inferior court of 
 record, requiring the latter to send in to the 
 former some proceeding therein pending, or 
 the records and proceedings in some cause 
 already terminated in cases where the pro- 
 cedure is not according to the course of the 
 common law. 112 Mass. 206. 
 
 The oflSce of the writs of certiorari and 
 mandamus is often much the same. It is the 
 practice of the United States supreme court, 
 upon a suggestion of any defect In the tran- 
 script of the record sent up into that court 
 upon a writ of error, to allow a special eer- 
 tiorari. requiring the court below to certify 
 more fully. 3 Dall. (U. S.) 411; 7 Cranch 
 (U. S.) 288; 3 How. (U. S.). 553. The same 
 result might also be effected by a writ of 
 mandamus. The two remedies are, when ad- 
 dressed to an inferior court of record, from 
 a superior court, requiring the return of a 
 record, much the same. But where diminu- 
 tion of the record is suggested in the inferior 
 court, and the purpose is to obtain a more 
 perfect record, and not merely a more perfect 
 copy or transcript, it is believed that the 
 writ of mandamus is the appropriate rem- 
 edy. 
 
 In many of the states, the writ produces 
 the same result in proceedings given by stat- 
 ute, such as the proceedings for obtaining 
 damages under the mill acts, highway acts, 
 pgiuper laws, etc., as the writ of error does 
 when the proceedings are according to the 
 course of the common law. Where the lower 
 court is to be required to proceed in a cause, 
 a writ of procedendo or mandamus is the 
 proper remedy. 
 
 CERTUM EST QUOD CERTUM REDDI 
 potest. That is sufficiently certain which 
 can be made certain. Noy, Max. 481; Co. 
 LitL 45b, 96a, 142a; 2 Sharswood, Bl. Comm. 
 143; 2 Maule & S. 50; Broom. Leg. Max. (3d 
 London Ed.) 555-558; 3 Term R. 463; 4 
 Cruise, Dig. (4th Ed.) 269; 3 Mylne & K. 
 Ch. 353; 11 Cush. (Mass.) 380. 
 
CERVISARII 
 
 (139) 
 
 CESTUI QUE TRUST 
 
 CERVISARII (ccriisiae, ale). Among the 
 Saxons, tenants who were hound to supply 
 drink for their lord's table. Cowell; Domes- 
 day Book. 
 
 CERVISIA. Ale. Cei-iisiirius, an ale- 
 brewer; an ale-house keeper. Cowell; Blount. 
 
 CERVUS (Lat.) A stag or deer. 
 
 CESIONARIO. In Spanish law. An as- 
 signee. White, New Recop. 304. 
 
 CESS. An assessment or tax. In Ire- 
 land, it was anciently applied to an exaction 
 of victuals, at a certain rate, for soldiers in 
 garrison. Wharton. 
 
 In Old English Law. To cease. Hale, 
 
 Anal. § 38c. 
 
 CESSA REGNARE, SI NON VIS JUDI- 
 care. Cease to reign if j^ou wish not to 
 adjudicate. Hob. 155. 
 
 CESSANTE CAUSA, CESSAT EFFEC- 
 tus. The cause ceasing, the eiSect must 
 cease. 1 Exch. 430; Broom, Leg. Max. (3d 
 London Ed.) 151. 
 
 CESSANTE RATIONE LEGIS CESSAT, 
 et ipsa lex. Reason is the soul of the law, 
 and when the reason of any particular law 
 ceases, so does the law itself. 4 Coke, 38; 
 7 Coke, 69; Co. Lift. 70b, 122a: Broom, Leg. 
 Max. (3d London Ed.) 151, 152; 4 Rep. 38; 
 13 East, 348; 4 Bing. N. C. 388. 
 
 CESSANTE STATU PRIMITIVO, CES- 
 sat derivativus. The primary state ceasing, 
 the derivative ceases. 8 Rep. 34; Broom, 
 Leg. Max. (3d London Ed.) p. 4oS: 4 Kent, 
 Comm. 32. 
 
 CESSAVIT PER BIENNIUM (Lat. he has 
 ceased for two years). In practice. An ob- 
 solete writ, which could formerly have been 
 sued out when the defendant had for two 
 years ceased to perform such service or to 
 pay such rent as he was bound to do by his 
 tenure, and had not upon his lands sufficient 
 goods or chattels to be distrained. Pitzh.Nat. 
 Brev. 208. It also lay where a religious 
 house held lands on condition of perform- 
 ing certain spiritual services, which it failed 
 to do. 3 Bl. Comm. 232. 
 
 CESSE. An assessment or tax; a tenant 
 of land was said to cesse when he neglected 
 or ceased to perform the services due to. the 
 lord. Co. Lift. 373a, 380b. 
 
 CESSER, or CESSURE. Neglect; a ceas- 
 ing from, or omission to do, a thing. 3 Bl. 
 Comm. 232. "A substantial dismission and 
 cesser." 6 Mod. 232. 
 
 The determination of an estate. 1 Coke, 
 84; 4 Kent, Comm. 33, 90, 105, 295. 
 
 CESSET EXECUTIO (Lat. let execution 
 stay). In practice. The formal order for a 
 stay of execution, when proceedings in court 
 were conducted in Latin. See ■ "Execution." 
 
 CESSET PROCESSUS (Lat. let process 
 stay). In practice. The formal order for a 
 
 stay of process or proceedings, when the pro- 
 ceedings in court were conducted in Latin. 
 See 2 Doug. 627. 
 
 CESSIO BONORUM (Lat. a transfer of 
 property). In civil law. An assignment of 
 his property by a debtor for the benefit of his 
 creditors. Such an assignment discharged 
 the debtor to the extent of the property ceded 
 only, but exempted him from imprisonment. 
 Dig. 2. 4. 25; Id. 48. 19. 1; Nov. 4. 3. And 
 see Civ. Code La. art. 2166; 2 Mart. (La.) 
 112; 2 La. 354; 11 La. 531; 2 Mart. (La.; N. 
 S.) 108; 5 Mart. (La.; N. S.) 299; 4 Wheat. 
 (U. S.) 122. 
 
 CESSIO IN JURE. In Roman law. A 
 fictitious suit, in which the person who was 
 to acquire the thing claimed {vindicabat) the 
 thing as his own, the person who was to 
 transfer it acknowledged the justice of the 
 claim, and the magistrate pronounced it to 
 be the property (addicebat) of the claimant. 
 Sandars, Just. Inst. (5th Ed.) 89, 122. 
 
 CESSION (Lat. cctssio, a yielding). 
 
 In Civil Law. An assignment. The 
 
 act by which a party transfers property to 
 another. 
 
 ^In Ecclesiastical Law. A surrender. 
 
 When an ecclesiastic is created bishop, or 
 when a parson takes another benefice, with- 
 out dispensation, the first benefice becomes 
 void by a legal cession or surrender. Cowell. 
 
 In Governmental Law. The transfer 
 
 of land by one government to another. 
 
 CESSION DES BIENS. In Preiich law. 
 The surrender which a debtor makes of all 
 his goods to his creditors when he finds him- 
 self in insolvent circumstances. It is of two 
 kinds, — either voluntary or compulsory (;«- 
 diciaire), corresponding very nearly to liqui- 
 dation ijy arrangement and bankruptcy in 
 English and American law. 
 
 CESSIONARY. In Scotch law. An as- 
 signee. Bell, Diet. 
 
 CESSIONARY BANKRUPT. One who 
 
 gives up his estate to be divided amongst his 
 creditors. Wharton. 
 
 CESSMENT. An assessment. 
 
 CESSOR. One who ceases or neglects so 
 long to perform a duty that he thereby in- 
 curs the danger of the law. Old Nat. Brev. 
 136. 
 
 CESSURE (Law Fr.) A receiver; a bail- 
 iff. Kelham. 
 
 C'EST ASCAVOIR (Law Fr.) That is to 
 say, or to wit. Generally written as one 
 word, cestascavoir. cesiascavoire. 
 
 Another form was cest asaver, and in one 
 word, cestasaver. 
 
 C'EST LE CRIME QUI FAIT LA HONTE, 
 et non pas I'echafaud. It is the crime which 
 causes the shame, and not the scaffold. 
 
 CESTUI, or CESTUY (Law Fr.) He. 
 
 CESTUI QUE TRUST. He for whose 
 
CESTUI QUE USE 
 
 (140) 
 
 CHALLENGE 
 
 benefit another person is seized of lands or 
 tenements, or is possessed of personal prop- 
 erty. 
 
 He who has a right to a beneficial interest 
 In and out of an estate the legal title to 
 which is vested in another. 2 Washb. Real 
 Prop. 163. 
 
 Judge Story suggests (1 Eq. Jur. § 321) 
 that the word "beneficiary" be substituted 
 for ce.itui que trust, and this term has come 
 into very general use as such a substitute. 
 
 CESTUI QUE USE. He for whose benefit 
 land is held by another person. 
 
 He who has a right to take the profits of 
 lands of which another has the legal title 
 and possession, together with the duty of 
 defending the same, and to direct the mak- 
 ing estates thereof. White & T. Lead. Cas. 
 252; 2 Bl. Comm. 330. See 2 Washb. Real 
 Prop. 95. See "Use." 
 
 CESTUI QUE VIE. He whose life is the 
 measure of the duration of an estate. 1 
 Washb. Real Prop. 88. 
 
 CESTUY QUE DOIT INHERITER AL 
 pere doit inheriter a! fils. He who would 
 have been heir to the father of the deceased 
 shall also be heir of the son. Pitzh. Abr. 
 "Descent" (2); 2 Bl. Comm. 239, 250. 
 
 CF. Abbreviation of conferre, compare. 
 
 CHACE (Law Pr.) A chase or hunting 
 ground. Chacra, a chase or hunting. 
 
 CHACEA. A station for game, more ex- 
 tended than a park, less so than a forest; 
 the liberty of hunting within such limits. 
 Cowell. 
 
 The driving or hunting animals; the way 
 along which animals are driven. Spelman. 
 
 CHACEA EST AD COMMUNEM LEGEM. 
 A chace is by common law. Reg. Brev. 806. 
 
 CHACEABLE (Law Pr.) That which may 
 be chased or hunted. 
 
 CHAFEWAX. An ofiicer in chancery who 
 fits the wax for sealing to the writs, com- 
 missions, and other instruments there made 
 to be issued out. He is probably so called be- 
 cause he warms (cJiaufe) the wax. 
 
 CHAFFERS. Anciently signified wares 
 and merchandise. Hence the word chatter- 
 ing, which is yet used for "ouylng and sell- 
 ing, or beating down the price of an article. 
 The word is used in St. 3 Edw. III. c. 4. 
 
 CHAFFERY. Traffic; the practice of 
 buying and selling. Rapalje & L. 
 
 CHAIRMAN. (1) The presiding ofiicer 
 of a deliberative body, legislative or other- 
 wise; e. fir. the speaker of a house of assem- 
 bly, or of the house of representatives, or 
 the presiding member of a board of directors 
 of a corporation or association. (2) The 
 president or senior member of a committee. 
 
 CHAIRMAN OF COMMITTEES OF THE 
 whole house. In the English house of com- 
 mons, this officer, always a member, is elect- 
 
 ed by the house on the assembling of every 
 new parliament. When the house is in com- 
 mittee on bills introduced by the govern- 
 ment, or in committee of ways and means, or 
 supply, or in committee to consider prelim- 
 inary resolutions, it is his duty to preside. 
 He sits, not in the speaker's chair, but at the 
 table in the seat of the clerk of the house. 
 On divisions, when the numbers happen to 
 be equal, he gives the casting vote (g. v.), 
 but in committees he never otherwise votes. 
 In August, 1853, it was, by resolution of the 
 house, decided that, during the unavoidable 
 absence of the speaker, this officer should 
 preside in his stead, being only so appoint- 
 ed, however, from day to day. See 18 & 19 
 Vict. c. 84. In the house of lords the chair- 
 man of committees of the whole house is 
 elected by the house every session. He usu- 
 ally holds in addition the office of deputy 
 speaker of the house of lords. Dod. Pari. 
 Comp. 
 
 In American legislative assemblies, the 
 practice is to select a member as presiding 
 officer for the particular session of the com- 
 mittee on resolving to go into committee of 
 the whole. 
 
 CHALDRON. A measure of capacity, 
 equal to fifty-eight and two-thirds cubic feet, 
 nearly. 
 
 CHALLENGE. An objection to the ca- 
 pacity or right of a person. 
 
 In Practice. An exception to the 
 
 jurors who have been arrayed to pass upon 
 a cause on its trial. 
 
 An exception to those who have been re- 
 turned as Jurors. Co. Litt. 155b. 
 
 The most satisfactory derivation of the 
 word is that adopted by Webster and Crabb, 
 from "call," challenge implying a calling off. 
 The word is also used to denote exceptions 
 taken to a judge's capacity on account of in- 
 terest (2 Bin. [Pa.] 454; 4 Bin. [Pa.] 349), 
 and to the sheriff for favor as well as affinity 
 (Co. Litt. 158a; 10 Serg. & R. [Pa.] 336; 11. 
 Serg. & R. [Pa.] 303). 
 
 Challenges are of the following classes: 
 
 (1) To the array. Those which apply to all 
 the jurors as arrayed or set in order by the 
 officer upon the panel. Such a challenge is, 
 in general, founded upon some error or mani- 
 fest partiality committed in obtaining the 
 panel, and which, from its nature, applies to 
 all the jurors so obtained. These are not al- 
 lowed in the United States generally (Colby, 
 Prac. 235; 2 Blatchf. [U. S.] 435), the same 
 end being attained by a motion addressed to 
 the court, but are in some states (33 Pa. St. 
 338; 12 Tex. 252; 24 Miss. 445; 1 Mann. 
 [Mich.] 451; 20 Conn. 510; 1 Zab. [N. J.] 
 656). 
 
 (2) To the poll. Those made separately 
 to each juror to whom they apply. 
 
 Challenges to the poll are either: 
 
 (a) For' cause, — those for which some rea- 
 son sanctioned by law is assigned. 
 
 (b) Peremptory, — those made without as- 
 signing any cause, and which must be al- 
 lowed as of course. The number of these is 
 variously limited by statute. 
 
 A challenge for cause lies also to the ar- 
 
CHAMBER OF ACCOUNTS 
 
 .(141) 
 
 CHAMPERTY 
 
 ray. Challenge for cause was anciently di- 
 vided into Qhallenges: 
 
 (i) For principal cause, — being for such 
 cause as, if substantiated, was sufficient to 
 show bias or disqualification. The grounds 
 of principal challenge were propter defectum, 
 for disability, as infancy or mental unsound- 
 ness; propter affectum, for partiality, as 
 where the juror was of kin to the party, or 
 bore some confidential relation to him; 
 propter delictum, on account of crime com- 
 mitted by the juror, whereby he was disqual- 
 ified. 3 Bl. Comm. 361. To these was some- 
 times added propter lionoris respcctitm, from 
 respect to a party's rank or nobility. 
 
 (ii) To the favor, — those which are found- 
 ed on reasonable ground to suspect that 
 the jury is partial, though the cause be not 
 so evident as to warrant a principal chal- 
 lenge. 
 
 Challenges for principal cause were tried 
 by the court; those to the favor by triors. 
 
 The distinction between challenges to the 
 favor and for principal cause is now obsolete. 
 
 Several other divisions of challenges for 
 cause have been suggested by American stat- 
 ute or text writers, as that into challenge 
 grounded on general disqualification, and 
 challenges grounded on disqualification in 
 respect of the particular case (Thomp. Tri- 
 als, § 40), or that into challenges for ac- 
 tual bias, being for actual partiality as to the 
 cause or the parties; and for implied bias, 
 being such relationship towards a party or 
 the cause as will, in contemplation of law, 
 necessarily give rise to an implication of par- 
 tiality, such as consanguinity to a party; 
 confidential relation with a party; service on 
 a previous jury in the cause, etc. Gen. St. 
 Minn. 1878, c. 116, §§ 18, 19. 
 
 In Election Law. Formal objection to 
 
 the right of a person to vote at a particular 
 election, or in a particular precinct. Gener- 
 ally made at the time the vote is offered. 
 
 In Criminal Law. A request by one 
 
 person to another to fight a duel. It may be 
 oral or written. 
 
 CHAMBER OF ACCOUNTS. In French 
 law. A sovereign court, of great antiquity, 
 in France, which took cognizance of and reg- 
 istered the accounts of the king's revenue. 
 Nearly the same as the English court of ex- 
 chequer. Enc. Brit. 
 
 CHAMBER OF COMMERCE. A society 
 of the principal merchants and traders of a 
 city, who meet to promote the general trade 
 and commerce of the place. Similar socie- 
 ties exist in all the large commercial cities, 
 and are known by various names, as, "board 
 of trade," etc. 
 
 CHAMBERDEKINS, or CHAMBER DEA- 
 cons. In old English law. Certain poor 
 Irish scholars, clothed in mean habit, and 
 living under no rule; also beggars banished 
 from England. 1 Hen. V. cc. 7. 8; Wharton. 
 
 CHAMBERLAIN (Law Lat. camerarius, 
 cambellariiis, cambalarius, chamberlanus, 
 cnamlerlingus ; from Fr. chamhellan) . 
 Keeper of the chamber. Originally the 
 
 chamberlain was the keeper of the treasure 
 chamber (camera) of the prince or state; 
 otherwise called "treasurer." Cowell. voc. 
 "Chamberlain." See "Camerarius." Sir Wil- 
 liam Cavendish was treasurer of the cham- 
 ber in the 24th year of Edward III. 3 Coke, 
 12; Spelman; Cowell. 
 
 ■The receiver of the rents and revenues of 
 a city. Cowell; Blount. This is the modern 
 meaning of the word in various cities of 
 England and America. 
 
 The name of several high officers of state 
 in England, as the lord great chamberlain of 
 England, lord chamberlain of the house- 
 hold, chamberlain of the exchequer. See 
 Cowell; Blount; Holthouse; Wharton. In 
 modern times, the cou^t officer styled "c'nam- 
 berlain" has the charge of the private apart- 
 ments of the sovereign or noble to whom h» 
 is attached. Brande. 
 
 CHAMBER LA Rl A. Chamberlainship; the 
 office of a chamberlain. Cowell. 
 
 CHAMBERS. Rooms or apartments. 
 
 The private room of the judge. Any hear- 
 ing before a judge which does not take place 
 during a term of court, or while the judge is 
 sitting in court, or an order issued under 
 such circumstances, is said to be "in cham- 
 bers." The act may be an otficial one, and 
 the hearing may be in the Court room; but 
 If the court is not in session, it is still said 
 to be done "in chambers." 
 
 In England. The office of a barrister. 
 
 An association of persons habitually meet- 
 ing together, as a chamber of cominerce. 
 
 CHAMBERS, WIDOW'S. A portion of the 
 effects of a deceased person, reserved for the 
 use of his widow, and consisting of her ap- 
 parel and the furniture of her bed cham- 
 ber, is called in London the "widow's cham- 
 ber." 2 Bl. Comm. 518. 
 
 CHAMBIUM. In old English law. 
 
 Change, or exchange. Bracton, fols. 117, 118. 
 
 Thought by Burrill to be another form of 
 
 camMum. 
 
 CHAMP DE MAI. See "Campus Mail." 
 CHAMP DE MARS. See "Campus Martii." 
 
 CHAMPART. In French law. The grant 
 of a piece of land by the owner to another, 
 on condition that the latter would deliver to 
 him a portion of the crops. 18 TouUier, Dr. 
 Civ. note 182. 
 
 CHAMPERTOR. In criminal law. One 
 who makes pleas or suits, or causes them to 
 be moved, either directly or indirectly, and 
 sues them at his proper costs, upon condi- 
 tion of having a part of the gain. St. 33 
 Edw. I. St. 2. 
 
 CHAMPERTY. A bargain with a plaintiff 
 or defendant, in a suit for a portion of the 
 land or other matter sued for, in case of a 
 successful termination of the suit which the 
 champertor undertakes to carry on at his 
 own expense. 4 Bl. Comm. 435. 
 
 "The unlawful maintenance of a suit in 
 
CHAMPION 
 
 (142) CHANCELLOR, THE LORD HIGH. 
 
 consideration of part of the debt or other 
 thing in dispute." Hawk. P. C. c. 84, § 1. 
 
 The gist of the offense consists in the mode 
 of compensation, irrespective of the partic- 
 ular manner in which the suit .is to be main- 
 tained. 4 Kern. (N. Y.) 289; 1 Hawk. P. C. 
 455, §§ 5-11. 
 
 There must be an actual assistance, and 
 not merely an offer to assist. 1 Hempst. 300. 
 
 On the other hand, it has been held, fol- 
 lowing the definition of Blackstone, that a 
 promise to pay the expenses or costs is es- 
 sential. 57 Ga. 263; 13 Ohio, 167. 
 
 It is not essential that there be a suit com- 
 menced at the time of making the agreement. 
 14 Ky. 412. 
 
 Champerty differs from maintenance 
 chiefly in this, that in champerty the com- 
 pensation to be given for the service ren- 
 dered is a part 'Of the matter in suit, or some 
 profit growing out of it (16 Ala. 488; 24 Ala. 
 FN. S.] 472; 9 Mete. [Mass.] 489; 1 Jones, 
 Eq. [N. C.l 100; 5 Johns. Ch. [N.' Y.] 44; 4 
 Lift. [Ky.] 117), while in simple mainte- 
 nance the question of compensation does not 
 enter into the account (2 Bish. Grim. Law, 
 § 111). See 4 Bl. Comm. 134, note. 
 
 CHAMPION. In old English , law. He 
 who fights for another, or takes his place in 
 a quarrel; one who fights his own battles. 
 Bracton, lib. 4, tit. 2, c. 12. 
 
 CHAMPION OF THE KING OR QUEEN. 
 
 An ancient officer, whose duty it was to ride 
 armed cap-a-pie. into Westminster Hall at 
 the coronation, while the king was at din- 
 ner, and, by the proclamation of a herald, 
 make a challenge "that, if any man shall 
 deny the king's title to the crown, he is 
 there ready to defend it in single combat." 
 The king drank to him, and sent him a gilt 
 cup covered, full of wine, which the cham- 
 pion drank, retaining the cup for his fee. 
 The ceremony has been discontinued. Whar- 
 ton. 
 
 CHANCE. "Pure chance consists in the 
 absence of all means of calculating results." 
 Morris (Iowa) 169. It is to be distinguished 
 from "accident," which is "the unusual pre- 
 vention of an effect naturally resulting from 
 the means employed." Id. 
 
 CHANCE-MEDLEY. In criminal law. A 
 sudden affray. This word is sometimes ap- 
 plied to any kind of homicide by misadven- 
 ture, but in strictness it is applicable to such 
 killing only as happens in defending one's 
 self. 4 Bl. Comm. 184. 
 
 CHANCELLOR. 
 
 In the United States. The presiding 
 
 judge of a court of chancery. 
 
 In England. A judicial officer of the 
 
 king; a bishop or other high dignitary. See 
 "Chancellor of the Exchequer," etc. 
 
 CHANCELLOR OF A CATHEDRAL. One 
 
 of the giiatuor personae. or four chief digni- 
 taries of the cathedrals of the old founda- 
 tion. The duties assigned to the office by the 
 statutes of the different chapters vary, but 
 they are chiefly of an educational character, 
 
 with a special reference to the cultivation of 
 theology. Rapalje & L. 
 
 CHANCELLOR OF DIOCESE. A judicial 
 officer who acts as the delegate of the bishop 
 in hearing ecclesiastical causes, etc. The 
 ofRce generally includes in it two other offi- 
 ces, — that of official principal, and that of 
 vicar general (7. c; and see "Court of 
 Arches"). Phillim. Ecc. Law, 1208; 1 Bl. 
 Comm. 382. 
 
 CHANCELLOR OF THE DUCHY OF 
 
 Lancaster. In English law. An officer be- 
 fore whom, or his deputy, the court ot the 
 duchy chamber of Lancester is held. This 
 is a special jurisdiction concerning all man- 
 ner of equity relating to lands holden of 
 the king in right of the duchy of Lancaster. 
 Hob. 77; 3 Bl. Comm. 78. 
 
 CHANCELLOR OF THE EXCHEQUER. 
 
 A minister of state who presides in the ex- 
 chequer, and takes care of the interests of 
 the crown, in addition to his other parlia- 
 mentary duties. With the lord treasurer, he 
 leases the crown lands, and the two offices 
 are often granted to the same person. Whar- 
 ton. In addition to his duties in reference 
 to the treasury of the king, the chancellor 
 also sat as one of the judges in the equity 
 court. 3 Bl. Comm. 45. 
 
 CHANCELLOR, THE LORD HIGH. The 
 
 lord high chancellor of Great Britain is "cre- 
 ated by the mere delivery of the king's great 
 seal into his custody, whereby he becomes, 
 without writ or patent, an officer of the great- 
 est weight and power of any now subsisting 
 In the kingdom, and superior in point of pre- 
 cedency to every temporal lord. He is a 
 privy councillor by his office, and, according 
 to Lord Chancellor Ellesmere, prolocutor (or 
 speaker) of the house of loi'ds by prescrip- 
 tion. To him (under the crown) belongs the 
 appointment of all justices of the peace 
 throughout the kingdom. Being formerly 
 usually an ecclesiastic (for none else were 
 then capable of an office so conversant in 
 writings), and presiding over the royal chap- 
 el, 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 the 
 value of twenty marks per annum in the 
 king's books. Twelve canonries and 650 liv- 
 ings are now in the gift of the lord chan- 
 cellor. Second Rep. Leg. Dep. Comm. 34. 
 He is the general guardian of all infants, 
 idiots, and lunatics, and has the general su- 
 perintendence of all charitable uses in the 
 kingdom." 3 Bl. Comm. 47. See Butler's 
 note to Co. Lift. 290b. He was formerly 
 the principal judge ,of the court of chan- 
 cery, and is now president of the court of 
 appeal, of the high court of justice, and of 
 the chancery division of the high court, and 
 acts as president of the house of lords when 
 sitting as a court of appeal. He is there- 
 fore, of course, a barrister, and, as a rule, 
 has previously either been attorney or so- 
 licitor general, or held some judicial office. 
 He is also a cabinet minister, and has charge. 
 
CHANCELLORS' COURTS, ETC. (143) 
 
 CHARGE 
 
 in the house of lords, of all legal measures 
 brought forward by the -government. See 
 "Chancery;" "Vice Chancellor." 
 
 CHANCELLORS' COURTS IN THE TWO 
 universities. In English law. Courts of 
 local jurisdiction in and for the two uni- 
 versities of Oxford and Cambridge in Eng- 
 land. These courts have jurisdiction of all 
 civil actions or suits, except those in which 
 .a right of freehold is involved, and of all 
 criminal offenses and misdemeanors, under 
 the degree of treason, felony, or mayhem, 
 at Oxford when a scholar or privileged per- 
 son is one of the parties, and at Cambridge 
 when both parties are scholars or privileged 
 persons, and the cause of action arose with- 
 in the town of Cambridge or its suburbs. 
 3 Sharswood, Bl. Comm. 83, note; St. 19 & 20 
 Vict. c. 17, § 18; Id. c. 88; Rep. temp. Hardw. 
 241; 2 Wils. 406; 12 East, 12; 13 Bast, 635; 
 15 Bast, 634. 
 
 CHANCERY. See "Court of Chancery." 
 
 CHANGER. Now obsolete. An officer of 
 the English mint, whose duty was to ex- 
 change coin for bullion. 
 
 CHANNEL. The entire body of a stream 
 from hank to bank, rather than the deep or 
 navigable thread of it (55 Iowa, 558), the 
 latter being more accurately the "main chan- 
 nel." 
 
 CHANTRY. A church or chapel endowed 
 with lands for the maintenance of priests 
 to say mass daily for the souls of the donors. 
 Termes de la Ley; Cowell. 
 
 CHAPEL OF EASE. One which is used 
 only for the ease of the parishioners in 
 prayers and preaching, while the sacraments 
 and burial are received and performed at 
 the mother church. The curate of such a 
 chapel is generally removable at the pleas- 
 ure of the parochial minister. 
 
 CHAPELRY. The precinct of a chapel; 
 the same thing for a chapel that a parish is 
 for a church. Termes de la Ley; Cowell. 
 
 CHAPELS. Places of worship. They may 
 be either "private" chapels, such as are built 
 and maintained by a private person for his 
 own use and at his own expense, or "free" 
 chapels, so called from their freedom or ex- 
 emption from all ordinary jurisdiction, or 
 chapels "of ease." which are built by the 
 mother church for the ease and convenience 
 of its parishioners, and remain under its ju- 
 risdiction and control. 
 
 CHAPERON. A hood or bonnet anciently 
 worn by the Knights of the Garter, as part 
 of the habit of that order. Also a little es- 
 cutcheon fixed in the forehead of horses 
 •drawing a hearse at a funeral. Wharton. 
 
 CHAPiTRE. A summary of matters to be 
 inquired of or presented before justices in 
 ■eyre, justices of assize, or of the peace, in 
 their sessions. Also articles delivered by the 
 
 justice in his charge to the inquest. Britt. 
 c. iii. 
 
 CHAPLAIN. 
 
 (1) An ecclesiastic who performs divine 
 service In a chapel; but it more commonly 
 means one who attends upon a king, prince, 
 or other person of quality, for the perform- 
 ance of clerical duties in a private chapel. 
 4 Coke, 90; Wharton. 
 
 (2) A clergyman officially attached to a 
 ship of war, to an army or regiment, or to 
 some public institution, for the purpose of 
 performing divine service. Webster. 
 
 CHAPMAN (said to be from German cope- 
 man). A trader who trades from place to 
 place. Ryder, C. J., construing St. 5 Anne, 
 c. 14. 
 
 CHAPTER. In ecclesiastical law. A con- 
 gregation of clergymen. Such an assembly 
 is termed capitulum, which signifies a little 
 head; it being a kind of head, not only to 
 govern the diocese in the vacation of the 
 bishopric, but also for other purposes. Co. 
 Lltt. 103. 
 
 CHARACTER. In evidence. The opinion 
 generally entertained of a person derived 
 from the common report of the people who 
 are acquainted with him. 3 Serg. & R. (Pa.) 
 336; 3 Mass. 192; 3 Bsp. 236; 40 Neb. 810. 
 
 In its technical use, the word has lost its 
 ordinary significance, and in such use is sy- 
 nonymous with "repute." 
 
 The moral character and conduct of a 
 person in society may be used in proof be- 
 fore a jury in three classes of cases; First, 
 to afford a presumption that a particular 
 party has not been guilty of a criminal act 
 (17 Mich. 9; 14 Mo. 502); second, to affect 
 the damages in particular cases, where their 
 amount depends on the character and con- 
 duct of any individual (30 N. Y. 285; 8 
 Iowa, 29; 4 Cush. [Mass.] 217); and. third, 
 to impeach or confirm the veracity of a wit- 
 ness (16 Ohio St. 218; 7 N. Y. 378). 
 
 CHARGE. A duty or obligation imposed 
 upon some person; a lien, incumbrance, or 
 claim which is to be satisfied out of the spe- 
 cific thing or proceeds thereof to which it 
 applies. 
 
 To impose such an obligation; to create 
 such a claim. 
 
 To accuse. 
 
 The distinctive significance of the term 
 rests in the idea of obligation directly bear- 
 ing upon the individual thing or person to be 
 affected, and binding him or it to the dis- 
 charge of the duty or satisfaction of the 
 claim imposed. Thus, charging an estate 
 with the payment of a debt is appropriating 
 a definite portion to the particular purpose; 
 charging a person with the commission of a 
 crime is pointing out the individual who is 
 bound to answer for the wrong committed; 
 charging a jury is stating the precise prin- 
 ciples of law applicable to the case imme- 
 diately in question. In this view, a charge 
 will, in general terms, denote a responsibil- 
 ity peculiar to the person or thing affected 
 
CHARGE AND DISCHARGE 
 
 (144) 
 
 CHARTA 
 
 and authoritatively imposed, or the act fix- 
 ing such responsibility. 
 
 In Contracts. An obligation, binding 
 
 upon him who enters into it, which may be 
 removed or taken away by a discharge. 
 Termes de la Ley. 
 
 An undertaking to keep the custody of an- 
 other person's goods. 
 
 An obligation entered into by the owner 
 of an estate, which binds the estate for its 
 performance. Comyn, Dig. "Rent," c. 6; 2 
 Ball & B. 223. 
 
 In Devises. A duty imposed upon a 
 
 devisee, either personally, or with respect to 
 the estate devised. 
 
 In Equity Pleading. An allegation in 
 
 the bill of matters which disprove or avoid 
 a defense which it is alleged the defendant 
 is supposed to pretend or intend to set up. 
 Story, Eq. PI. § 31. 
 
 In Practice. The instructions given 
 
 by the court to the grand jury or inquest of 
 the county, at the commencement of their 
 session, in regard to their duty. 
 
 The exposition by the court to the petit 
 jury of those principles of the law which the 
 latter are bound to apply in order to render 
 such a verdict as will, in the state of facts 
 proved at the trial to exist, establish the 
 rights of the parties to the suit. 
 
 CHARGE AND DISCHARGE. In equity 
 practice. The mode or form of accounting 
 before a master. Where a decree or order 
 of the court directs an account to be taken 
 and examined before a master, in such case 
 the plaintiff delivers in an account before 
 the master, in the form of a charge (q. v.) 
 against the defendant, which being exam- 
 ined and gone through, the defendant or ad- 
 verse party must bring in his discharge (g. 
 V.) against such charge, which being like- 
 wise examined and gone through, the master 
 will exercise his judgment upon the evidence, 
 and allow or disallow the charge, or any part 
 of it, as he thinks proper; and so, e contra, 
 as to the discharge, after which the report is 
 made. Cunningham; Whishaw; 2 Daniell, 
 Ch. Pr. 1420-1422; Hoffman, Master in Chan- 
 cery, 36-39. 
 
 CHARGE DES AFFAIRES, or CHARGE 
 d'affaires. In international law. The title 
 of a diplomatic representative or minister of 
 an inferior grade, to whose care are confided 
 the affairs of his nation. 
 
 He has not the title of minister, and is 
 generally introduced and admitted through 
 a verbal presentation of the minister at his 
 departure, or through letters of credence ad- 
 dressed to the minister of state of the court 
 to which he is sent. He has the essential 
 rights of a minister. 1 Kent, Comm. 39, 
 note; 4 Dall. (Pa.) 321; 2 Story, V. S. Laws, 
 1171. 
 
 CHARGE TO ENTER HEIR. In Scotch 
 law. A writ commanding a person to enter 
 heir to his predecessor within forty days; 
 otherwise, an action to be raised against him 
 as if he had entered. 
 
 The heir might appear and renounce the 
 succession, whereupon a decree cognitifiiiix 
 
 causa passed, ascertaining the creditor's 
 debt. If the heir did not appear, he then be- 
 came personally liable to the creditor. A 
 charge was either general, or special, or 
 general special. Charges are now abolished, 
 by 10 & 11 Vict. c. 48, § 16, and a summons 
 of constitution against the unentered heir 
 substituted. 
 
 CHARGEANT. Weighty; heavy; penal; 
 expensive. Kelham. 
 
 CHARGES. The expenses which have 
 been incurred in relation either to a trans- 
 action or to a suit. It is a larger term than 
 "costs." 
 
 CHARGING ORDER. By 1 & 2 Vict. c. 
 110, §§ 14-16, and 3 & 4 Vict. c. 82, when judg- 
 ment has been recovered in an action, a 
 judge at chambers may make an order that 
 any government stock, funds, or annuities, 
 or any stock or shares in a public company 
 in England, standing in the name of the 
 judgment debtor in his own right, or in the 
 name of any person as trustee for him, shall 
 stand charged with the payment of the judg- 
 ment debt. Smith, Actions, 211; Rules of 
 Court, xlvi, 1. The effect is to prevent the 
 transfer of the stock, and to give the judg- 
 ment creditor all the remedies which he 
 would have been entitled to if the charge 
 had been made in his favor by the judg- 
 ment debtor, but he cannot enforce it until 
 six months from the date of the order. 1 & 
 2 Vict. c. 110, § 14 ; Pish. Mortg. 113 et seq. 
 
 CHARITABLE USES, or CHARITIES. 
 Gifts to general public uses, which may ex- 
 tend to the rich as well as the poor. Ambl. 
 651; 2 Sneed (Tenn.) 305. 
 
 Gifts to such purposes as are enumerated 
 in Act 43 Bliz. c. 4, or which, by analogy, are 
 deemed within its spirit or intendment. 
 Boyle, Charity, 17. 
 
 "Whatever is given for the love of God, 
 or for the love of your neighbor, in the cath- 
 olic or universal sense, free from tlie stain 
 or taint of every consideration that is per- 
 sonal, private or selfish," is a gift for char- 
 itable uses. 2 How. (U. S.) 127. The es- 
 sentials are (1) that the gift be for the ben- 
 efit of an indeflnU.e number of persons (14 
 Allen [Mass.] ^,56; 107 U. S. 182); (2) that 
 it be free from contractual obligation in or 
 consideration to the donor (33 Pa. St. 419) ; 
 (3) that the purpose be humanitarian in the 
 broadest sense, whether it be religious (12 
 Mass. 537), educational (35 N. H. 445; 34 
 N. J. Eq. 101), benevolent (91 Mass. 442; 54 
 Ind. 549), or public (163 Mass. 509; 5 Del. 
 Ch. 51). 
 
 CHARRE, or CHARRUS. A weight of 
 'ead, consisting of thirty pigs at seventy 
 pounds each. Cowell. 
 
 CHARTA. A charter or deed in writing; 
 a.iy signal or token by which an estate was 
 held. 
 
 Charta Chyrographata. An indenture. 
 
 The two parts were written on the same 
 sheet, and the word "chyrograph" written 
 
CHARTA DE FORESTA 
 
 (143) 
 
 CHATTEL 
 
 between them in such a manner as to divide 
 the word in the separation of the two parts 
 of the indenture. 
 
 Charta Communis. An indenture. 
 
 Charta Partita. A charter party. 
 
 Charta de Una Parte. A deed poll; a 
 
 deed of one part. 
 
 Formerly this phrase was used to distin- 
 guish a deed poll — which is an agreement 
 made by one party only; that is, only one of 
 the parties does any act which is binding 
 upon him — from a deed inte)- partes. Co. 
 Litt. 229. See "Deed Poll." 
 
 CHARTA DE FORESTA. A collection of 
 the laws of the forest, made in 9 Hen. III., 
 and said to have been originally a part of 
 Magna Charta. 
 
 CHARTA DE NON ENTE NON VALET. 
 A charter or deed of a thing not in being 
 is not valid. Co. Litt. 36. 
 
 CHARTAE LIBERTATUM. Mayiia Charta 
 and Charta de Foresta (q. v.) 
 
 CHARTARUM SUPER FIDEM, MORTUIS 
 testibus, ad patriam de necessltudine, re- 
 currendum est. The witnesses being dead, 
 the truth of charters must, of necessity, be 
 referred to the country. Co. Litt. 36. 
 
 CHARTEPARTIE (Fr.) In French ma- 
 rine law. A charter party. Ord. Mar. liv. 
 3, tit. 1. 
 
 CHARTEL. A challenge to single combat. 
 Used at the period when trial by single com- 
 bat existed. Cowell. 
 
 CHARTER. A grant made by the sover- 
 eign, either to the whole people, or to a 
 portion of them, securing to them the en- 
 joyment of certain rights. 1 Story, Const. 
 § 161; 1 Bl. Comm. 108. 
 
 Formerly included all deeds relating to 
 hereditaments, especially deeds of feoffment 
 (Co. Litt. 7a, 9b), but in this sense the term 
 is now obsolete, and is now confined to grants 
 by the government, the principal ones being 
 grants of power to form corporations, either 
 municipal or private. 
 
 CHARTER HOUSE. Formerly a convent 
 of Carthusian monks in London; now a 
 college founded and endowed by Thomas 
 Sutton. The governors of the charter house 
 are a corporation aggregate without a head, 
 president, or superior, all the members being 
 of equal authority. 3 Steph. Comm. (7th 
 Ed.) 14, 97. 
 
 CHARTER LAND. In English law. Land 
 formerly held by deed under certain rents 
 and free services. It differed in nothing 
 from free socage land; and it was also called 
 "bookland." 2 Bl. Comm. 90. 
 
 CHARTER OF PARDON (Law Lat. charta, 
 or carta perdonationis) . In English crim- 
 inal law. A charter or instrument under 
 the great seal, by which a man is forgiven 
 a felony, or other offense committed against 
 the king's crown and dignity. Brown, Abr. 
 "Charter of Pardon;" Dyer, 34; Cowell; 4 
 
 Bl. Comm. 400, 402. See the old form, Reg. 
 Grig. 288, 308. And see 2 Reeve, Hist. Bng. 
 Law, 437. 
 
 CHARTER PARTY. A contract of a£ 
 freightment, by which the owner of a ship 
 or other vessel lets the whole or a part of 
 her to a merchant or other person for the 
 conveyance of goods, on a particular voyage, 
 in consideration of the payment of freight. 
 3 Kent, Comm. 201. 
 
 The term is derived from the fact that the 
 contract which bears this name was for- 
 merly written on a card, and afterwards the 
 card was cut into two parts from top to bot- 
 tom, and one part was delivered to each of 
 the parties, which was produced when re- 
 quired, and by this means counterfeits were 
 prevented; the card so cut being called 
 charta parteta. 
 
 CHARTER ROLLS (Law Lat. rotuli cur- 
 tarum). Rolls preserved amongst the an- 
 cient English records, containing the royal 
 charters from the year 1199 to 1516. They 
 comprise grants of privileges to cities, towns, 
 bodies corporate, and private trading com- 
 panies; grants of markets, fairs, and free 
 warrens, of ci-eations of nobility, of priv- 
 ileges to religious houses, etc. Hubback, Ev. 
 Success. 616, and notes. 
 
 CHARTERER. One who engages a ship 
 for a voyage. 
 
 CHARTIS REDDENDIS (Lat. for return- 
 ing charters). A writ which lay against 
 one who had charters of feoffment intrusted 
 to his keeping which he refused to deliver. 
 Reg. Grig. 159. It is now obsolete. 
 
 CHARTOPHYLAX. In old European law. 
 A keeper of records or public instruments; 
 a chartulary; a registrar. Spelman. 
 
 CHARUE. In old English law. A plow. 
 Bestes des charues, beasts of the plow. Ar- 
 tie. Sup. Chart, c. 12; Britt. c. 21. 
 
 CHASE. The liberty or franchise of hunt- 
 ing one's self and keeping protected against 
 all other persons beasts of the chase within 
 a specified district, without regard to the 
 ownership of the land. 2 Bl. Comm. 414-416. 
 
 The district within which such privilege 
 is to be exercised. 
 
 A chase is a franchise granted to a sub- 
 j'^ct, and hence is not subject to the forest 
 laws. 2 Bl. Comm. 38. It differs from a 
 park, because it may be another's ground, 
 and is not inclosed. It is said by some to 
 be smaller than a forest, and larger than a 
 park. Termes de la Ley. But, this seems 
 to be a customary incident, and not an 
 essential qua'ity. 
 
 The act of acquiring possession of animals: 
 ferae naturae by force, cunning, or address. 
 
 CHASTITY. That virtue which prevents 
 the unlawful commerce of the sexes. Con- 
 tent without lawful venery Is continence; 
 without unlawful is chastity. Webster. 
 
 CHATTEL .(Norman Pr.) Goods of any 
 
CHATTEL INTEREST 
 
 (146) 
 
 CHECK 
 
 kind; every species of property, movable or 
 immovable, which is less than a freehold. 
 
 In the grand coustumier of Normandy it is 
 described as a mere movable, but is set in 
 opposition to a fief or feud; so that not 
 only goods, but whatever was not a feud 
 or fee, were accounted chattels, and it is 
 in this latter sense that our law adopts it. 
 2 Bl. Comm. 385. 
 
 Real chattels are interests which are an- 
 nexed to or concern real estate, as, a lease 
 for years of land; and the duration of the 
 lease is immaterial, whether It be for one 
 or a thousand years, provided there be a 
 certainty about it, and a reversion or re- 
 mainder in some other person. A lease to 
 continue until a certain sum of money can 
 be, raised out of the rents is of the same 
 description; and so In fact will be found to 
 be any other interest In real estate whose 
 duration is limited to a time certain be- 
 yond which it cannot subsist, and which is, 
 therefore, something less than a freehold. 
 
 Personal chattels are properly things 
 movable, which may be carried about by 
 the owner, such as animals, household stuff, 
 money, jewels, corn, garments, and every- 
 thing else that can be put in motion, and 
 transferred from one place to another, and 
 the incorporeal hereditaments that grow 
 out of movables. 2 Kent, Comm. 340; Co. 
 Litt. 48a; 4 Coke, 6; 5 Mass. 419; 1 N. H. 
 350; Story, Ea. Jur. §§ 1021, 1040. See "Per- 
 sonal Property." 
 
 CHATTEL INTEREST. An interest in 
 corporeal hereditaments less than a free- 
 hold. 2 Kent, Comm. 342. 
 
 There may be a chattel interest in real 
 property, as in case of a lease. Stearns, 
 Real Actions, 115. A term for years, no 
 matter of how long duration, is but a chat- 
 tel interest, unless declared otherwise by 
 statute. See the subject fully treated in 1 
 Washb. Real Prop. 310 et seq. 
 
 CHATTEL MORTGAGE. At common law, 
 a sale of a chattel on a condition subsequent, 
 upon performance of which the title revests 
 in the mortgagor, and upon breach of which 
 the mortgagee's title becomes absolute. 
 
 It differs from a pledge, in that the title 
 to the property, rather than the possession 
 thereof, constitutes the security. 87 N. Y. 
 209; 37 Mich. 484. 
 
 It differs from a vendor's lien in that a 
 lienor has no title to the property. 23 Ohio 
 St. 114; 40 Me. 412. 
 
 It differs from a sale wherein the title is 
 retained by the seller until the performance 
 of some condition, in that no title passes 
 from the debtor to the creditor, but the cred- 
 itor simply retains a title which the debtor 
 never had. 88 111. 447; 16 Ind. 380. 
 
 It differs from a sale with a right of re- 
 purchasp in that the latter transaction is not 
 a security for an obligation. 
 
 It differs from an assignment for the bene- 
 fit of creditors, which is not a security, but 
 implies an absolute appropriation of the 
 property to the payment of the indebted- 
 ness. Hammon, Chat. Mortg. §§ 1-7. 
 
 CHAUD-MEDLEY (Fr. chaud). The kill- 
 ing of a person in the heat of an affray. 
 
 It is distinguished by Blackstone from 
 chance-medley, an accidental homicide. 3 
 Bl. Comm. 184. The distinction is said to 
 be, however, of no great importance. 1 Russ. 
 Crimes, 660. Chance-medley is said to be 
 the killing in self-defense, such as happens 
 on a sudden rencounter, as distinguished 
 from an accidental homicide. Id. 
 
 CHAUNTRY RENTS. Money paid to the 
 crown by the servants or purchasers of 
 chauntry or chantry lands. 22 Car. II. c. 6. 
 See "Chantry." 
 
 CHEAT. "Deceitful practices in defraud- 
 ing or endeavoring to defraud another of his 
 known right, by some willful device, contrary 
 to the plain rules of common honesty." 
 Hawk. P. C. bk. 2, c. 23, § 1. "The fraud- 
 ulent obtaining the property of another by 
 any deceitful and illegal practice or token 
 (short of felony) which affects or may affect 
 the public." It did not include mere false 
 pretenses. East, 818. 
 
 In order to constitute a cheat or indict- 
 able fraud, there must be a use of false to- 
 kens, false weights, or such other devices, or 
 a prejudice received, and such injury must 
 affect the public welfare, or have a tend- 
 ency so to do. 2 East, P. C. 817; 1 Gabbett, 
 Grim. Law, 199; 1 Deao. Crlm. Law, 225. 
 
 CHEATERS, or ESCHEATORS. Officers 
 appointed to look after the king's escheats, 
 a duty which gave them great opportuni- 
 ties of fraud and oppression, and in con- 
 sequence many complaints were made of 
 their misconduct. Hence it seems that a 
 "cheater" came to signify a fraudulent per- 
 son, and thence the verb to "cheat" was de- 
 rived. Rapalje & L. 
 
 CHECK. Contracts. A written order or 
 request, addressed to a bank or persons car- 
 rying on the business of banking, by a party 
 having money in their hands, on deposit, 
 desiring them to pay, on presentment, to 
 a person therein named, or bearer, or to 
 such person, or order, a named sum of 
 money. 
 
 The chief differences between checks and 
 bills of exchange are: First, a check is not 
 due until presented, and, consequently, it 
 can be negotiated any time before present- 
 ment, and yet not subject the holder to any 
 equities existing between the previous par- 
 ties. 3 Johns. Cas. (N. Y.) 5, 9; 9 Barn. & 
 C. 388; Chit. Bills (8th Ed.) 546. Secondly, 
 the drawer of a check is not discharged for 
 want of immediate presentment with due 
 diligence, while the drawer of a bill of ex- 
 change is. The drawer of a check is only 
 discharged by such neglect when he sus- 
 tains actual damage by it, and then only pro 
 tanto. 6 Cow. (N. Y.) 484; Kent, Comm. 
 lect. 44 (5th Ed.) p. 104, note; 3 Johns. 
 Cas. (N. Y.) 5, 259; 10 Wend. (N. Y.) 306; 
 2 Hill (N. Y. ) 425. Thirdly, the death of 
 the drawer of a check rescinds the author- 
 ity of the banker to pay it, while the death 
 of the drawer of a bill of exchange does 
 
CHECK BOOK 
 
 (147) 
 
 CHILTERN HUNDREDS 
 
 not alter the relations of the parties. 3 
 Man. & G. 571-573. Fourthly, checks, unlike 
 bills of exchange, are always payable -with- 
 out grace. 25 Wend. (N. Y.) 672; 6 Hill 
 (N. Y.) 174. 
 
 CHECK BOOK. A book containing blanks 
 for checks. 
 
 CHECK ROLL. A list or book, containing 
 the names of such as are attendants on, or 
 in the pay of, the queen or other great per- 
 sonages, as their household servants. 39 
 Car. II. c. 1. Rapalje & L. 
 
 CHECKER. The old Scotch form of ex- 
 chequer. Skene de Verb. Sign. 
 
 CHEFE. In Anglo-Norman law. Were or 
 weregild; the price of the head or person 
 {capitis pretium). Laws Gul. Conq. 11. 
 
 CHEMERAGE. In old French law. The 
 privilege or prerogative of the eldest. See 
 "Chemier." 
 
 CHEMIER (Fr.) In old French law. The 
 eldest born. A term used in Poitou and 
 other places. Guyot, Inst. Feud. c. 18, § 4. 
 
 CM EM IN (Fr.) The road wherein every 
 man goes; tie king's highway. Called in 
 law Latin via regia. Often spelled chimin. 
 Termes de la Ley; Cowell; Spclman. 
 
 CHEMIS. In old Scotch law. A mansion 
 house. 
 
 CHEVAGE. A sum of money paid by vil- 
 leins to their lords in acknowledgment of 
 their villeinage. It was paid to the lord in 
 token of his being chief or head. It was 
 exacted for permission to marry, and also 
 for permission to remain without the do- 
 minion of the lord. When paid to the king, 
 it was called "subjection." Termes de la 
 Ley; Co. Litt. 140a; Spelman. 
 
 CHEVANTIA. A loan, or advance of 
 money on credit. See "Chevisance." 
 
 CHEVISANCE (Fr. agreement). A bar- 
 gain or contract; an unlawful bargain or 
 contract. 
 
 CHEVITIAE(Lat.) In old records. Pieces 
 of ground, or heads at the end of plowed 
 lands. 2 Mon. Angl. 116; Cowell; Blount. 
 
 CHEZE. A homestead or homesfall which 
 is accessory to a house. Rapalje & L. 
 
 CHICANE. The use of tricks and artifice. 
 
 CHIEF. One who is put above the rest; 
 principal; the best of a number of things. 
 
 Declaration in Chief. A declaration 
 
 for the principal cause of action. 1 Tidd, 
 Prac. 419. 
 
 Examination In Chief. The first ex- 
 amination of a witness by the party who 
 produces him. 1 Greenl. Bv. § 445. 
 
 Tenant in Chief. One who held di- 
 rectly of the king. . 1 Washb. Real Prop. 19. 
 
 CHIEF BARON. The title of the chief 
 justice of the English court of exchequer. 3 
 Bl. Comm. 44. 
 
 CHIEF JUSTICE. The presiding or prin- 
 cipal judge of a court. 
 
 CHIEF JUSTICIAR. Under the early 
 Norman kings, the highest officer in the 
 kingdom next to the king. 
 
 He was guardian of the realm in tlie 
 king's absence. His power was diminished 
 under the reign of successive kings, and, 
 finally, completely distributed amongst va- 
 rious courts in the reign of Edward I. 3 
 Bl. Comm. 28. The same as capitalis justicia- 
 rius. 
 
 CHIEF LORD. The immediate lord of the 
 fee. Burton, Real Prop. 317. 
 
 CHIEF PLEDGE. The borsholder or chief 
 of the borough. Spelman. 
 
 CHIEF RENTS (Law Lat. reditus capi- 
 tales). In English law. Rents of the free- 
 holders of a manor. 2 Bl. Comm. 42. Called 
 also "quit rents" (guieti reditus), because 
 ther€by the tenant goes quit and free of all 
 other services. Id. 
 
 CHIEFRIE. A small rent paid to the lord 
 paramount. 
 
 CHILD. The son or daughter, in relation 
 to the father or mother; the correlative of 
 "parent." 
 
 A young person of either sex. The age 
 limit of childhood is undefined. 5 Har. & J. 
 (Md.) 392. 
 
 It is not synonymous with "minor." 7 
 Tex. App. 298. And in a classification of 
 females subject of rape, "child" has been 
 held to mean one not arrived at puberty. 
 22 Ohio St. 102. 
 
 CHILDNIT (Saxon). A power to take a 
 fine from a bondwoman gotten with child 
 without the lord's consent. 
 
 By custom in Essex county, England, ev- 
 ery reputed father of a bastard child was 
 obliged to pay a small fine to the lord. This 
 custom is known as childnit. Cowell. 
 
 CHILDREN. Legitimate offspring. L. R. 
 7 H. L. 568; 23 Hun (N. Y.) 260; 14 N. J. 
 Eq. 159. But see 42 Conn. 491. It includes 
 only the first generation, and does not em- 
 brace grandchildren (21 N. J. Eq. 84; 19 
 Ohio St. SO; 104 Mass. 193), but it has been 
 given that meaning in instruments wh<>re 
 the context or the necessity of effectuating 
 the instrumjent required it (15 N. J. Eq. 
 174; 37 N. Y..42; 88 Pa. St. 478). It does 
 not include stepchildren (8 Paige [N. Y.l 
 375), nor adopted children (54 Pa. St. 304. 
 But see 115 Mass. 262). 
 
 CHILTERN HUNDREDS. A range of hills 
 in England, formerly much infested by rob- 
 bers. 
 
 To exterminate the robbers, a steward of 
 the chiltern hundreds was appointed. The 
 office long since became a sinecure, and Is 
 now used to enable a member of parliament 
 to resign, which he can do only by the ac- 
 ceptance of some ofiice within the gift of 
 the chancellor. 2 Steph. Comm. 403; Whar- 
 ton. 
 
CHIMIN 
 
 (148) 
 
 CHOKEPISCOPI 
 
 CHIMIN. See "Chemln." 
 
 CHIMINAGE. A toll for passing on a way 
 through a forest; called in the civil law 
 pedagium. Cowell. See Co. Litt. 56a; Spel- 
 man; Termes de la Ley. 
 
 CHI MINUS. The way by which the king 
 and all his subjects and all under his pro- 
 tection have a right to pass, though the 
 property of the soil of each side where the 
 way lieth may belong to a private man. 
 Cowell. 
 
 CHIMNEY MONEY, or HEARTH MONEY. 
 A tax upon chimneys or hearths; an an- 
 cient tax or duty upon houses in England, 
 now repealed. Cowell. 
 
 CHIPPINGAVEL. A toll for buying and 
 selling; a tax imposed on goods brought for 
 sale. Whishaw; Blount. 
 
 CHIRGEMOTE, CHIRCHGEMOTE, CIRC- 
 gemote, or kirkmote (Saxon, circgemote, 
 from circ, ciric, or cyric, a church, and ge- 
 mot, a meeting or assembly). In Saxon law. 
 An ecclesiastical court or assembly (; forum 
 ecclesiastioum) ; a synod; a meeting in a 
 church or vestry. Blount; Spelman; LL. 
 Hen. I. cc. 4, 8; 4 Inst. 321; Cunningham. 
 
 CHIROGRAPH. 
 
 In Old Conveyancing. A deed or pub- 
 lic instrument in writing. 
 
 Chirographs were anciently attested by 
 the subscription and crosses of witnesses. 
 Afterwards, to prevent frauds and conceal- 
 ments, deeds of mutual covenant were made 
 in a script and rescript, or in a part and 
 counterpart, and in the middle, between the 
 two copies, they drew the capital letters of 
 the alphabet, and then tallied, or cut asun- 
 der in an indented manner, the sheet oi; 
 skin of parchment, one of which parts, be- 
 ing delivered to each of the parties, were 
 proved authentic by matching with and an- 
 swering to one another. Deeds thus made 
 were denominated "syngrapha" by the can- 
 onists, because that word, instead of the 
 letters of the alphabet or the word "chlrog- 
 raphum," was used. 2 Bl. Comm. 296. 
 
 The last part of a fine of land. 
 
 It is called, more commonly, the foot of 
 the fine. It is an instrument of writing, be- 
 ginning with these words: "This is the 
 final agreement," etc. It concludes the whole 
 matter, reciting the parties, day, year, and 
 place, and before whom the fine was ac- 
 knowledged and levied. Cruise, Dig. tit. 35, 
 c. 2, § 52. 
 
 In Civil and Canon Law. An instru- 
 ment written out and subscribed by the 
 hands of the king or prince. An instrument 
 written out by the parties, and signed by 
 them. Du Cange; Cowell. 
 
 In Scotch Law. A written voucher for 
 
 a debt. Bell, Diet. The possession of this 
 instrument by the debtor raises a presump- 
 tion of payment by him. Bell, Diet; Brsk. 
 Inst. lib. 2, tit. 4, § 5. 
 
 ! conoordiarum) . In old English law. An 
 oflicer of the court 'if common pleas, who 
 engrossed the fines acknowledged in that 
 court after they were examined, and fully 
 passed by other oflScers, and who wrote and 
 [ delivered the indentures of them to the par- 
 ' ties. 2 Bl. Comm. 351; 2 Inst. 468; Cowell; 
 Blount. See "Pine." 
 
 ! CHIROGRAPHUM. In Roman law. A 
 I handwriting; that which was written with 
 a person's own hand; an obligation which 
 a person wrote or subscribed with his own 
 hand; an acknowledgment of debt, as of 
 money received, with a promise to repay. 
 For forms of such a acknowledgments, see 
 Dig. 22. 1. 41. 2; Id. 2. 14. 47. 1. 
 
 An evidence or voucher of debt; a security 
 for debt. Dig. 26. 7. 57. pr. 
 
 A right of action for debt. Dig. 32. 59. 
 And see Id. 34. 3. 31. 3; Id. 46. 3. 89. pr.; 
 Code, 4. 2. 17. 
 
 CHIROGRAPHUIVl APUD DEBITOREM 
 repertum presumitur solutum. An evidence 
 of debt found in possession of the debtor is 
 presumed to be paid. Halk. Max. 30. See 
 14 Mees. & W. 379. 
 
 CHIROGRAPHUM NON EXTANS PRE- 
 sumitur solutum. An evidence of debt not 
 existing is presumed to have been dis- 
 charged. Tray. Lat. Max. 73. 
 
 CHIVALRY. In feudal law. Knight serv- 
 ice. Tenure in chivalry was the same as 
 tenure by knight service. 2 Bl. Comm. 61, 
 62. See "Tenure." 
 
 CHIVALRY, COURT OF. This court was 
 anciently held as a court of honor merely, 
 before the earl marshal, and as a criminal 
 court before the lord high constable, jointly 
 with the earl marshal. It had jurisdiction 
 as to contracts and other matters touching 
 deeds of arms or war, as well as pleas of 
 life or member. It also corrected encroach- 
 ments in matters of coat armor, precedency, 
 and other distinctions of families. It is 
 now grown entirely out of use, on account 
 of the feebleness of its jurisdiction and want 
 of power to enforce its judgments, as it 
 could neither fine nor Imprison, not being 
 a court of record. 3 Bl. Comm. 68 ; 4 Broom 
 & H. Comm. 360, note; Wharton. 
 
 CHIVALRY, TENURE BY. Tenure by 
 knight service. Co. Litt. 
 
 CHOP-CHURCH. A word mentioned in a. 
 statute of 9 Hen. VI., by the sense of which 
 it was in those days a kind of trade, and by 
 the judges declared to be lawful. But Brooke, 
 in his Abridgment, says it was only permis- 
 sible by law. It was, without doubt, a nick- 
 name given to those who used to change 
 benefices, as to "chop and change" is a com- 
 mon expression. 9 Hen. VI. c. 65; Jacob. 
 
 CHORAL. In ancient times, a person ad- 
 mitted to sit and worship in the choir; a 
 chorister. 
 
 CHIROGRAPHER OF FINES (Law Lat. CHOREPISCOPI. Bishops of the country 
 chirographus, or chirographarius flnivm et in the early times of the church. 
 
CHOSE 
 
 (149) 
 
 CINQUE PORTS 
 
 CHOSE (Fr.) thing. Personal property. 
 
 Choses in Possession. Personal things 
 
 of which one has possession. 
 
 Choses in Action. Personal things of 
 
 which the owner has not the possession, hut 
 merely a right of action for their posses- 
 sion. 2 Bl. Comm. 389, 397; 1 Chit. Prac. 
 99. 
 
 A right to receive or recover a debt, or 
 money, or damages for breach of contract, 
 or for a tort connected with contract, but 
 which cannot be enforced without action. 
 Comyn, Dig. "Biens;" Chit. Eq. Dig. 
 
 In modern usage, the phrase is broader, 
 and includes rights of action for tort (4 
 Ala. 350; 12 N. Y. 622), and rights enforce- 
 able only in equity (Wms. 6). 
 
 Chose Local. A local thing; a thing 
 
 annexed to a place, as a mill. Kitch. Cts. fol. 
 18; Cowell; Blount. Answering probably to 
 the res immohilis of the civil law. 
 
 Chose Transitory. A thing which is 
 
 movable, and may be taken away or car- 
 ried from place to place. Cowell; Blount. 
 
 CHOSEN FREEHOLDERS. In New Jer- 
 sey. A board of county officers, having 
 charge of the finances of the county, and 
 composed of persons chosen by and repre- 
 senting the several towns or townships of 
 the county. In some states, similar officers 
 are called "county commissioners" (g. v.), 
 and in others, the "board of supervisors" 
 (q. V.) 
 
 CHRENECRUDA (Law Lat.) A singular 
 ceremony among the Salians, by which a 
 poor person applied to a rich relative to pay 
 his debt or fine. It consisted (after certain 
 preliminaries) in throwing green herbs up- 
 on the party, the effect of which was to 
 bind him to pay the whole demand. L. Salic, 
 tit. 61. Spelman, who describes it, finds 
 the elements of the word in the Belgian 
 groen, green, and cruid, herb. 
 
 CHRISTIANITATIS CURIA (Law Lat.) 
 The court of Christianity; the court Chris- 
 tian, or ecclesiastical judicature, as opposed 
 to the civil court, or lay tribunal. Cowell. 
 See "Courts Christian." 
 
 CHURCH. A society of persons who pro- 
 fess the Christian religion. 7 Halst. (N. 
 J.) 206, 214; 10 Pick. (Mass.) 193; 3 Pa. 
 St. 282; 31 Pa. St. 9; 9 Barb. (N. Y.) 95. 
 
 The place where such persons regularly 
 assemble for worship. 3 Tex. 288; 9 Barb. 
 (N. Y.) 95. 
 
 CHURCH BUILDING ACTS. Statutes 
 passed in England in and since the year 
 1818, with the object of extending the ac- 
 commodation afforded by the national church, 
 so as to make it more commensurate with 
 the wants of the people. 3 Steph. Comm. 
 152-164. 
 
 CHURCH DISCIPLINE ACT. St. 3 & 4 
 Vict. c. 86, containing regulations for try- 
 ing clerks in holy orders charged with of- 
 fenses against ecclesiastical law, and for en- 
 forcing sentences pronounced In such cases. 
 Phillim. Ecc. Law, 1314. 
 
 CHURCH RATE. A tribute by which the 
 expenses of the church are to be defrayed. 
 They are to be laid by the parishioners, in 
 England, and may be recovered before two 
 justices, or in the ecclesiastical court. Whar- 
 ton. 
 
 CHURCH REEVE. A church warden. 
 
 CHURCH SCOT. Customary obligations 
 paid to the parish priest; from which du- 
 ties the religious sometimes purchased an 
 exemption for themselves and their tenants. 
 Wharton. 
 
 CHURCHWARDEN. An officer whose 
 duty it is to take care of or guard the 
 church. 
 
 They are taken to be a kind of corpora- 
 tion in favor of the church for some pur- 
 poses. They may have, in that name, prop- 
 erty in goods and chattels, and bring ac- 
 tions for them for the use and benefit of 
 the church, but may not waste the church 
 property, and are liable to be called to ac- 
 count. 3 Steph. Comm. 90; 1 Bl. Comm. 
 394; Cowell. 
 
 CHURCHESSET, CHURCHSET, CIRSET, 
 
 kirkset, or chirset. In old English law. 
 A certain portion or measure of wheat, an- 
 ciently paid to the church on St. Martin's 
 day, and which, according to Fleta, was paid 
 as well in the time of the Britons as of 
 the English. Pleta, lib. 1, c. 47, § 28. An 
 annual tribute paid to the church in grain 
 or other product, census vel tributum eccle- 
 siae. frumenti tributum. Spelman, voc. "Cir- 
 set;" Lindenbrog; Domesday Book. Some- 
 times written chirchsed, and translated 
 "churchseed," semen ecclesiae. Fleta, ubi 
 supra; Co. Litt. 88b. But the proper spell- 
 ing, according to Spelman, is ciricset, or 
 ciricsceat. 
 
 CHURL. See "Ceorl." 
 
 CI, CY, or SI (Law Fr.) So. Pur ceo qta 
 fine est ci hault iarre, et de ci graund force, 
 et de ci puissant nature, because a fine is 
 so high a bar, and of so great force, and of 
 so powerful a nature. St. Modus Lev. Fin.; 
 2 Inst. 510. 
 
 CIBARIA (Lat. pi. of cibarium, from cibes, 
 food). In the civil law. Food; victuals. 
 Dig. 34. 1. 
 
 CINQUE PORTS. The five ports of Eng- 
 land which lie towards France. 
 
 These ports, on account of their impor- 
 tance as defenses to the kingdom, early had 
 certain privileges granted them, and in rec- 
 ompense were bound to furnish a certain 
 number of ships and men to serve on^ the 
 king's summons once in each year. "The 
 service that the barons of the Cinque Ports 
 acknowledge to owe, upon the king's sum- 
 mons, if it shall happen, to attend with 
 their ships fifteen days at their own cost 
 and charges, and so long as the king pleases, 
 at his own charge." Cowell, "Quinque Port- 
 us." The Cino.ue Ports are Dover, Sandwich, 
 Hastings, Hithe, and Romney. Winchelsea 
 
CIPPI 
 
 (ISO) 
 
 CIRCUMSTANCES 
 
 and Rye are reckoned parts of Sandwich; 
 and the other of the Cinque Ports have ports 
 appended to them in like manner. The 
 Cinque Ports have a lord warden, who had 
 a peculiar jurisdiction, sending out writs in 
 his own name, and who is also constable of 
 DoverCastle. The jurisdiction was abolished 
 by 18 & 19 Vict. c. 48; 20 & 21 Vict. c. 1. 
 The representatives in parliament and the 
 inhabitants of the Cinque Ports are each 
 termed "barons." Brande; Cowell; Termes 
 de la Ley. 
 
 CIPPI. The stocks. Reg. Orig. 96b. Brac- 
 ton and Fleta used in cippo. Bracton, fol. 
 145b; Pleta, lib. 1, c. 42, §§ 1, 2. 
 
 CIRC BRYCE. 
 tical privilege. 
 
 CIRC SCEAT. 
 tlcal due. 
 
 A violation of ecclesias- 
 
 Church scot; an ecclesias- 
 
 CIRCADA. In old English law. A trib- 
 ute anciently paid to the bishop or arch- 
 bishop for visiting the churches. Du Presne; 
 Whishaw. 
 
 CIRCUIT. A division of the country,"ap- 
 pointed for a particular ■ judge to visit for 
 the trial of causes, or for the administration 
 of justice. See 3 Bl. Comm. 58; 3 Bouv. 
 Inst, note 2532. 
 
 In England the term is oftener applied, 
 perhaps, to the periodical journeys of the 
 judges through their various circuits. The 
 judges, or, in England, commissioners of 
 assize and nisi prius, are said "to make their 
 circuit." 3 Bl. Comm. 57. 
 
 In England there are eight judicial cir- 
 cuits, viz., the North and South Wales, 
 northern, northeastern, southeastern, west- 
 ern. Midland, and Oxford. See 3 Bl. Comm. 
 58; 3 Steph. Comm. 221. 
 
 For the purposes of federal jurisdiction, 
 the United States is divided into nine cir- 
 cuits, designated by number. Rev. St. U. S. 
 1878, § 604. See "Circuit Courts." 
 
 CIRCUIT COURT OF APPEALS. A fed- 
 eral court created in 1891 in each circuit (g. 
 v.), consisting of three judges, and having 
 final appellate jurisdiction of cases from the 
 circuit and district courts except in certain 
 cases. The court was designed to relieve the 
 supreme court of the United States. See Act 
 Cong. March 3, 1891. 
 
 CIRCUIT COURTS. In American law. 
 Courts whose jurisdiction extends over sev- 
 eral counties or districts, and of which terms 
 are held in the various counties or districts 
 to which their jurisdiction extends. 
 
 The term is applied in several states to 
 courts of general original jurisdiction, terms 
 of which are hpld in the various counties 
 or districts of the state. It is unknown in 
 the classification of English courts, and con- 
 veys a different idea in the various states in 
 which it is adopted. 
 
 In the federal jurisprudence of the United 
 States, the circuit courts are a system of fed- 
 eral courts, holding terms In several places 
 
 in each of the several judicial circuits. See 
 "Circuit" 
 
 They have original jurisdiction of sub- 
 stantially all civil cases which, by reason 
 of the citizenship of the parties, or the na- 
 ture of the subject-matter, are of federal cog- 
 nizance. See "District Courts.", 1 Kent, 
 Comm. 301-303; Rev. St. U. S. 1878, § 605 et 
 seq. 
 
 CIRCUITUS EST EVITANDUS. Circuity 
 is to be avoided. Co. Litt. ,384a; Smith, 
 Lead. Cas. (4th Am. Ed.) 20; Wingate. Max. 
 179; Broom, Leg. Max. (3d London Ed.) 
 309; 5 Coke, 34; 15 Mees. & W. 208; g Exch. 
 829. 
 
 CIRCUITUS EST EVITANDUS; ET BONI 
 judices est lites dirlmere, ne lis ex lite oria- 
 tur. Circuity is to be avoided; and it is the 
 duty of a good judge to determine litiga- 
 tions, lest one lawsuit arise out of another. 
 5 Coke, 31. 
 
 CIRCUITY OF ACTION. Indirectly ob- 
 taining, by means of a subsequent action, a 
 result which may be reached in an action 
 already pending. 
 
 This is particularly obnoxious to the law, 
 as tending to multiply suits. 1 Term R. 441; 
 4 Cow. (N. Y.) 682. 
 
 CIRCULAR NOTES. Similar instniments 
 to "letters of credit." They are drawn by 
 resident bankers upon their foreign corre- 
 spondents, in favor of persons traveling 
 abroad. The correspondents must be satis- 
 fied of the Identity of the applicant before 
 payment, and the requisite proof of such 
 identity is usually furnished, upon the ap- 
 plicant's producing a letter with his signa- 
 ture, by a comparison of the signatures. 
 Brown. 
 
 CIRCULATING MEDIUM. This term is" 
 more comprehensive than the term "money," 
 as it is the medium of exchanges, or pur- 
 chases and sales, whether it be gold or silver 
 coin, or any other article. Rapalje & L. 
 
 CIRCUIVIDUCTION. In Scotch law. A 
 closing of the period for lodging papers, or 
 doing any other act required in a cause. 
 Paterson, Comp. 
 
 Circumduction of the Term. The sen- 
 tence of a judge, declaring the time elapsed 
 within which a proof ought to have been led, 
 and precluding the party from bringing for- 
 ward any further evidence. Bell, Diet. 
 
 CIRCUMSPECTE AGATIS. Act circum- 
 ,spectly. The title of a statute passed 13 
 Edw. I. A. D. 1285, and so called from the 
 initial words of it, the object of which was 
 to ascertain the boundaries of ecclesiastical 
 jurisdiction in some particulars, or, in other 
 words, to regulate the jurisdiction of the 
 ecclesiastical and temporal courts. 2 Reeve, 
 Hist. Eng. Law, 215. 
 
 CIRCUMSTANCES. The particulars which 
 accompany an act; the surroundings at the 
 commission of an act.- 
 
 Though sometimes used in the sense of 
 
CIRCUMSTANTIAL EVIDENCE (151) 
 
 CITY 
 
 "fact," a circumstance , is a "relative" fact, 
 as distinguished from the "principal" fact, 
 which it may corrohorate or disprove. 
 
 CIRCUMSTANTIAL EVIDENCE. That 
 which is applied to the principal fact indi- 
 rectly, or through the medium of other facts, 
 by establishing certain circumstances or 
 minor facts from which the principal fact is 
 gathered by a process of inference. See 3 
 Benth. Jud. Ev. 2, 5. 
 
 The process by which a fact not directly 
 known is inferred from known facts or cir- 
 cumstances. 1 Starkie, Bv. 18. 
 
 The terms "circumstantial" and "presump- 
 tive" are often used interchangeably to de- 
 note the same kind of evidence, but in strict- 
 ness this is not correct. Presumptive evi- 
 dence is a species of circumstantial evidence, 
 though so large a species as to be almost 
 coextensive with Its genus. 
 
 Evidence may be circumstantial without 
 being presumptive, either because It fails to 
 raise a presumption, or because the infer- 
 ence to which it gives rise is stronger than 
 mere presumption. Burrill, Clrc. Ev. 76. 
 
 CIRCUMSTANTIBUS. See "Tales." 
 
 CIRCUMVENTION. In Scotch law. Any 
 act of fraud whereby a person Is reduced to 
 a deed by decreet. Tech. Diet. It has the 
 same sense in the civil law. Dig. 50. 17. 49. 
 155; Id. 12. 6. 6. 2; Id. 41. 2. 34. 
 
 CIRLISCUS. A ceorl (g. v.) Spelman. 
 
 CITACION. In Spanish law. The order 
 of a legal tribunal directing an individual 
 against whom a suit has been instituted to 
 appear and defend It within a given time. 
 It is synonymous with the term emplasa- 
 miento in the old Spanish law, and the in 
 jus vocatio of the Roman law. 
 
 CITATIO. A citation or summons to 
 court. Skene de Verb. Sign. voc. "Adjurna- 
 tus." 
 
 CITATIO AD REASSUMENDAM CAUS- 
 am. In civil law. The name of a citation, 
 which issued when a party died pending a 
 suit, against the heir of the defendant, or, 
 when the plaintiff died, for the heir of the 
 plaintiff. Our bill of revivor is probably 
 borrowed from this proceeding. 
 
 CITATIO EST DE JURI NATURALI. A 
 
 summons is by natural right. Cases in 
 Banco Regis Wm. III. 453. 
 
 CITATION (Lat. ciiare, to call, to sum- 
 mon). 
 
 In Practice. A writ Issued out of a 
 
 court of competent jurisdiction, commanding 
 a person therein named to appear on a day 
 named, and do something therein mentioned, 
 or show cause why he should not. Proctor, 
 Prac. 
 
 The act by which a person is so summoned 
 or cited. 
 
 It is applied particularly to process from 
 probate and ecclesiastical courts, and to no- 
 
 tices issued in special proceedings In some 
 states. 
 
 It is usually the original process In any 
 proceeding, and is in that respect analogous 
 to the writ of capias or summons at law, and 
 the suhpoena in chancery. 
 
 In the ecclesiastical law, the citation is the 
 beginning and foundation of the whole cause, 
 and is said to have six requisites, namely, 
 the Insertion of the name of the Judge, of 
 the promovert, of the impugnant, of the 
 cause of suit, of the place, and of the time 
 of appearance; to which may be added the 
 aflSxing the seal of the court, and the name 
 of the register or his deputy. 1 Brown, Civ. 
 Law, 453, 454; 3 Bl. Comm. 100. 
 
 In Scotch Practice. The calling of a 
 
 party to an action done by an officer of the 
 court under a proper warrant. 
 
 The service of a writ or bill of summons. 
 Paterson, Comp. 
 
 Of Authorities. The production of or 
 
 reference to the text of acts of legislatures, 
 treatises, or cases of similar nature decided 
 by the courts, in order to support proposi- 
 tions advanced. 
 
 CITATIONES NON CONCEDANTUR PRI- 
 usquam exprimatur super qua re fieri debet 
 citatio. Citations should not be granted be- 
 fore it is stated about what matter the cita- 
 tion is to be made. • (A maxim of ecclesias- 
 tical law.) 12 Coke, 44. 
 
 CITIZEN. 
 
 In English Law. An inhabitant of a 
 
 city. 1 Rolle, Abr. 138. The representative 
 of a city, in parliament. 1 Bl. Comm. 174. 
 
 In American Law. One who, under 
 
 the constitution and laws of the United 
 States, has a right to vote for public officers, 
 and who is qualified to fill offices in the gift 
 of the people. 
 
 One of the sovereign people; a constituent 
 member of the sovereignty, synonymous with 
 the people. 19 How. (U. S.) 404. 
 
 "All persons born or naturalized in the 
 United States, and subject to the jurisdiction 
 thereof, are citizensiof the United States and 
 of the state wherein they reside." Const. U. 
 S. Amend. XIV. 
 
 CITY. 
 
 In England. An incorporated town or 
 
 borough which is or has been the see of a 
 bishop. Co. Litt. 108; 1 Bl. Comm. 114; 
 Cowell. 
 
 A large town incorporated with certain 
 privileges; the inhabitants of a city; the 
 citizens. Worcester. 
 
 Although the first definition here given is 
 sanctioned by high authority, it is ques- 
 tionable if it is essential to its character 
 as a city, even in England, that it has been 
 at any time a see; and it certainly retains 
 its character of a city after it has lost its 
 ecclesiastical character (1 Steph. Comm. 115; 
 1 Bl. Comm. 114), and in the United States it 
 is clearly unnecessary that it should ever 
 have possessed this character. Originally, 
 this word did not signify a town, but a por- 
 tion of mankind who lived under the same 
 
CITY OF LONDON COURT 
 
 (152) 
 
 CIVIL LAW 
 
 government, — what the Romans called civi- 
 tas, and the Greeks polis; whence the word 
 poUteia, civitas sen reipuhlicae status et ad- 
 ministratio. Toullier, Dr. Civ. Fr. lib. 1, tit. 
 1, note 202; Henrion de Pansey, Pouvoir Mu- 
 nicipal, pp. 36, 37. 
 
 In ^he United States. The highest 
 
 class of municipal corporation, having exten- 
 sive municipal powers, required by the pres- 
 ence of a large population. 
 
 CITY OF LONDON COURT. A court hav- 
 ing a local jurisdiction within the city of 
 London. It is to all intents and, purposes 
 a county court, having the same jurisdic- 
 tion and procedure. St. 30 & 31 Vict. c. 142, 
 § 35. It has exclusive jurisdiction in ad- 
 miralty matters within the city. Rose. Adm. 
 75; St. 31 & 32 Vict. c. 71. See "Mayor's 
 Court." 
 
 CIVIL. 
 
 Pertaining to a citizen, as civil rights (g. 
 
 V.) 
 
 In contradistinction to "barbarous" or 
 "savage," indicates a state of society reduced 
 to order and regular government. Thus, we 
 speak of civil life, civil society, civil govern- 
 ment and civil liberty. 
 
 In contradistinction to "criminal," to in- 
 'dicate the private rights and remedies of 
 men, as members of the community, in con- 
 trast to those which are public and relate 
 to the government. Thus, we speak of civil 
 process and criminal process, civil jurisdic- 
 tion and criminal jurisdiction. 
 
 It is also used in contradistinction' to 
 "military" or "ecclesiastical," to "natural" 
 or "foreign." Thus, we speak of a civil sta- 
 tion, as opposed to a military or an eccle- 
 siastical station; a civil death, as opposed to 
 a natural death; a civil war, as opposed to 
 a foreign war. Story, Const. § 789; 1 Bl. 
 Comm. 6, 125, 251; Montesquieu, Sp. Laws, 
 bk. 1, c. 3; Rutherforth, Inst. bk. 2, c. 2; Id. 
 c. 3; Id. c. 8, p. 359; Heinec. Elem. Jur. Civ. 
 b. 2, c. 6. 
 
 CIVIL ACTION. 
 
 In Civil Law. A personal action which 
 
 is instituted to compel payment, or the 
 doing some other thing which is purely 
 civil. Poth. Introd. Gen. aux Cont. 110. 
 
 At Common Law. An action which 
 
 has for its object the recovery of private or 
 civil rights or compensation for their infrac- 
 tion. 
 
 All actions which are not criminal are 
 said to be civil. 
 
 In states where there has been partial 
 codification, it is generally enacted in effect 
 that the distinction between actions at law 
 and suits in equity is abolished, and that 
 there shall be but one form of action for 
 the enforcement of private rights, and the 
 redress of private wrongs, which shall be 
 known as the "civil action." Code Civ. Proc. 
 N. Y. § 69; Gen. St. Minn. 1878, c. 66, § 1. 
 See "Action." 
 
 CIVIL BILL COURT. A tribunal in Ire- 
 land with a jurisdiction analogous to that of 
 the county courts in England. The judge of 
 
 it is also chairman of quarter sessions 
 (where the jurisdiction is more extensive 
 than in England), and performs the duty of 
 revising barrister. The prpcedure of the 
 civil bill courts is regulated by 27 & 28 
 Vict. c. 99; 28 & 29 Vict. c. 1; and 37 & 38 
 Vict. c. 66. Wharton. 
 
 CIVIL COMMOTION. An insurrection of 
 the people for general purposes, though It 
 may not amount to rebellion where there is 
 an usurped power. 2 Marsh. Ins. 793. 
 
 CIVIL CORPORATIONS. One of the two 
 classes into which lay corporations are di- 
 vided; the other division embracing what 
 are termed "eleemosynary" corporations. 3 
 Steph. Comm. 170. Municipal corporations 
 (as counties, cities, towns, and villages), in- 
 corporated manufacturing, banking, insur- 
 ance, and trading companies, and the like, 
 are examples of civil corporations. Id.; 2 
 Kent, Comm. 275. See "Eleemosynary Cor- 
 porations." 
 
 CIVIL DAMAGE ACTS. A name given to 
 statutes rendering the seller of intoxicating 
 liquors civilly liable to the wife or family of 
 a purchaser of liquor for damage sustained 
 by them by reason of the sale to him. 
 
 CIVIL DEATH. That change of state of 
 a person which is considered in the law as 
 equivalent to death. See "Death." 
 
 CIVIL INJURY. An infringement or pri- 
 vation of some civil right, and which is a 
 subject for civil redress or compensation, 
 as distinguished from a crime, which is a 
 subject for punishment. 3 Steph. Comm. 
 556. See "Civil Rights." 
 
 CIVIL LAW. This term Is generally used 
 to designate the Roman jurisprudence, jus 
 civile Romanoriim . 
 
 In its most extensive sense, the term 
 "Roman law" comprises all those legal rules 
 and principles which were in force among 
 the Romans, without reference to the time 
 when they were adopted. But in a more 
 restricted sense we understand by it the 
 law compiled under the auspices of the Em- 
 peror Justinian, and which are still in force 
 in many of the states of modern Europe, 
 and to which all refer as authority or writ- 
 ten reason. 
 
 The ancient leges ouriatae are said to have 
 been collected in the time of Tarquin, the 
 last of the kings, by a pontifex maximus of 
 the name of Sextus or Publius Papirius. 
 This collection is known under the title of 
 Jus Civile Papirianum; its existing frag- 
 ments are few, and those of an apocryphal 
 character. Mackeld. Civ. Law, § 21. 
 
 After a fierce and uninterrupted struggle 
 between the patricians and plebeians, the 
 latter extorted from the former the cele- 
 brated law of the Twelve Tables, in the year 
 300 of Rome. This law, framed by the de- 
 cemvirs, and adopted in the comitia cpir 
 turiata, acquired great authority, and con- 
 stituted the foundation of all the public and 
 private laws of the Romans, subsequently, 
 until the time of Justinian. It is called 
 
CIVIL LAW 
 
 (153) 
 
 CIVIL LAW 
 
 Lex Decemviralis. Mackeld. Civ. Law, § 21. 
 Prom this i)eriod, the sources of the jus 
 scriptum consisted in the leges, the plebis- 
 cita, the senatusconsuUa, and the constitu- 
 tions of the emperors, constitutiones prin- 
 cipum; and the jus non soriptum, was found 
 partly in the mores majorum, the consuetudo, 
 and the res judicata, or auctoritas rerum 
 perpetua similiter judicatorum. The edicts 
 of the magistrates, or jus honorarium, also 
 formed a part of the unwritten law; but by 
 far the most prolific source of the jus non 
 scriptum consisted in the opinions and writ- 
 ings of the lawyers, — responsa prudentiuni. 
 
 The few fragments of the Twelve Tables 
 that have come down to us are stamped with 
 the harsh features of their aristocratic ori- 
 gin. But the jus honorarium established 
 by the praetors and other magistrates, as 
 well as that part of the customary law which 
 was built up by the opinions and writings 
 of the prudentes, are founded essentially on 
 principles of natural justice. 
 
 Many collections of the imperial consti- 
 tutions had been made before the advent of 
 Justinian to the throne. He was the first 
 after Theodosius who ordered a new com- 
 pilation to be made. For this purpose he 
 appointed a committee of ten lawyers, with 
 very extensive powers. At their head was 
 the exquaestor sacri palatii, Johannes, and 
 among them the afterwards well-known 
 Tribonian. His instructions were to select, 
 ia the most laconic form, all that was still 
 of value in the existing collections, as well 
 as in the later constitutions; to omit all 
 obsolete matter; to introduce such altera- 
 tions as were required by the times; and 
 to divide the whole into appropriate titles. 
 Within fourteen months, the committee had 
 finished their labors. Justinian confirmed 
 this new code, which consisted of twelve 
 books, by a special ordinance, and prohibited 
 the use of the older collections of rescripts 
 and edicts. This Code of Justinian, which 
 is now called Codex Vetus, has been entirely 
 lost. 
 
 After the completion of this code, Jus- 
 tinian ordered Tribonian, in 530, who was 
 now invested with the dignity of quaestor 
 sacri palatii, and sixteen other jurists, to 
 select all the most valuable passages from 
 the writings of the old jurists which were 
 regarded as authoritative, and to arrange 
 them, according to their subjects, under 
 suitable heads. These commissioners also 
 enjoyed very extensive powers. They had 
 the privilege, at their discretion, to abbre- 
 viate, to add, and to make such other altera- 
 tions as they might consider adapted to the 
 times; and they were especially ordered to 
 remove all the contradictions of the old 
 Jurists, to avoid all repetitions, and to omit 
 all that had become entirely obsolete. The 
 natural consequence of this was that the ex- 
 tracts did not always truly represent the 
 originals, but were often interpolated and 
 amended in conformity with the existing 
 law. Alterations, modifications, and addi- 
 tions of this kind are now usually called 
 Emblemata Triboniani. This great work is 
 called the "Pandects," or "Digest," and was 
 completed by the commissioners in three 
 
 years. Within that short space of time, they 
 had extracted from the writings of no less 
 than thirty-nine jurists all that they con- 
 sidered valuable for the purpose of this com- 
 pilation. It was divided into fifty books, 
 and was entitled Digesta sive Pandeciae Ju- 
 ris Enucleati e.r Omni Veiere Jure Gollecti. 
 The Pandects were published on the 16th 
 December, 533, but they did not go into op- 
 eration until the 30th of that month. In 
 confirming the Pandects, Justinian prohib- 
 ited further reference to the old jurists; and, 
 in order to prevent legal science from be- 
 coming so diffuse, indefinite, and uncertain 
 as it had previously been, he forbade the 
 writing of commentaries upon the new com- 
 pilation, and permitted only the making of 
 literal translations into Greek. 
 
 In preparing the Pandects, the compilers 
 met very frequently with controversies in 
 the writings of the jurists. Such questions, 
 to the number of thirty-four, had been al- 
 ready determined by Justinian before the 
 commencement of the collection of the Pan- 
 dects, and before its completion the deci- 
 sions of this kind were increased to fifty, 
 and were known as the "fifty decisions of 
 Justinian." These decisions were at first 
 collected separately, and afterwards embod- 
 ied in the new code. 
 
 For the purpose of facilitating the study 
 of the law, Justinian ordered Tribonian, with 
 the assistance of Theophilus and Dorotheus, 
 to prepare a brief system of law under the 
 title of "Institutes," which should contain 
 the elements of legal science. This work 
 was founded on, and to a great extent cop- 
 ied from, the commentaries of Gains, which, 
 after having been lost for many centuries, 
 were discovered by the great historian Nie- 
 buhr, in 1816, in a palimpsest, or rewritten 
 manuscript of some of the homilies of St. 
 Jerome, in the Chapter Library of Verona. 
 What had become obsolete in the commentar 
 ries was omitted in the Institutes, and ref- 
 erences were made to the new constitutions 
 of Justinian so far as they had been issued 
 at the time. Justinian published his Insti- 
 tutes on the 21st November, 533, and they 
 obtained the force of law at the same time 
 with the Pandects, December 30, 533. The- 
 ophilus, one of the editors, delivered lec- 
 tures on the Institutes in the Greek lan- 
 guage, and from these lectures originated 
 the valuable commentaries known under the 
 Latin title, Theophili Antecessoris Paraphra- 
 sis Oraeca Institutionum Gaesarearum. The 
 Institutes consist of tour books, each of 
 which contains several titles. 
 
 After the publication of the Pandects and 
 the Institutes, Justinian ordered a revision 
 of the Code, which had been promulgated in 
 the year 529. This became necessary on ac- 
 count of the great number of new constitu- 
 tions which he had issued, and of the fifty 
 decisions not included in the old Code, and 
 by which the law had been altered, amended, 
 or modified. He therefore directed Triboni- 
 an, with the assistance of Dorotheus, Menna, 
 Constantinus, and Johannes, to revise the 
 old Code, and to incorporate the new con- 
 stitutions into it. This revision was com- 
 pleted in the same year; and the new edition 
 
CIVIL LAW 
 
 (154) 
 
 CIVIL REMEDY 
 
 of the Code, Codex Repetitae Praelectionis, 
 was confirmed on the 16th November, 534, 
 and the old Code abolished. The Code con- 
 tains twelve books, subdivided into appro- 
 priate titles. 
 
 During the interval between the publica- 
 tion of the Codex Repetitae Praelectionis, in 
 535, to the end of his reign, in 565, Justin- 
 ian issued, at different times, a great num- 
 ber of new constitutions, by which the law 
 on many subjects was entirely changed. The 
 greater part of these constitutions were writ- 
 ten in Greek, in obscure and pompous lan- 
 guage, and published under the name of 
 Novellae Constitutiones, which are known to 
 us as the "Novels of Justinian." Soon after 
 his death, a collection of one hundred and 
 sixty-eight Novels was made, one hundred 
 and fifty-four of which had bieen issued by 
 Justinian, and the others by his successors. 
 
 Justinian's collections were, in ancient 
 times, always copied separately, and after- 
 wards they were printed in the same way. 
 When taken together, they were indeed call- 
 ed, at an early period, the Corpus Juris Civ- 
 ills; but this was not introduced as the reg- 
 ular title comprehending the whole body. 
 Each volume had its own title until Dlonys- 
 ius Gothofredus gave this general title in 
 the second edition of his glossed Corpus 
 Juris Civilis, in 1604. Since that time this 
 title has been used ih all the editions of 
 Justinian's collections. 
 
 It is generally believed that the laws of 
 Justinian were entirely lost and forgotten 
 in the Western Empire from the middle of the 
 eighth century until the alleged discovery of 
 a copy of the Pandects at the storming and 
 pilage of Amalfi, in 1135. This is one of those 
 popular errors which had been handed down 
 from generation to generation without ques- 
 tion or inquiry, but which has now been 
 completely exploded by the learned discus- 
 sion, supported by conclusive evidence, of 
 Savigny, in his History of the Roman Law 
 during the Middle Ages. Indeed, several 
 years before the sack of Amalfi, the celebrat- 
 ed Imerius delivered lectures on the Pan- 
 dects in the University of Bologna. The pre- 
 tended discovery of a copy of the Digest at 
 Amalfi, and its being given by Lothaire II. 
 to his allies, the Pisans, as a reward for 
 their services, is an absurd fable. No doubt, 
 during the five or six centuries when the 
 human intellect was in a complete state of 
 torpor, the study of the Roman law, like 
 that of every other branch of knowledge, 
 was neglected; but on the first dawn of the 
 revival of learning, the science of Roman 
 jurisprudence was one of the first to attract 
 the attention of mankind; and it was taught 
 with such brilliant success as to immortal- 
 ize the name of Irnerius, its great professor. 
 
 Even at the present time the Roman law 
 exercises dominion in every state in Eu- 
 rope except England. The countrymen of 
 Lycurgus and Solon are governed by it, and 
 in the vast empire of Russia it furnishes the 
 rule of civil conduct. In America, it is the 
 foundation of the law of Louisiana, Canada, 
 Mexico, and all the republics of South Amer- 
 ica. Its influence in the formation of the 
 common law of England cannot be denied by 
 
 the impartial inquirer. It was publicly 
 taught in England, by Roger Vacarius, as 
 early as 1149; and all admit that the whole 
 equity jurisprudence prevailing in England 
 and the United States is mainly based on the 
 civil law. See "Code;" "Digest;" "Insti- 
 tute;" "Novels." 
 
 CIVIL LIABILITY. Amenability to a civil 
 action, as distinguished from amenability to 
 criminal prosecution. 
 
 CIVIL LIBERTY. The liberty of a mem- 
 ber of society, being a man's natural lib- 
 erty, so far restrained by human laws (and 
 no further) as is necessary and expedient 
 for the general advantage of the public. 1 
 Bl. Comm. 125; 2 Steph. Comm. 487. The 
 power of doing whatever the laws permit. 
 ] Bl. Comm. 6; Inst. 1. 3. 1. 
 
 Blackstone's definition is substantially 
 that of the civilians; that of Justinian be- 
 ing: "The natural power of doing whatever 
 one pleases, except what is prohibited by- 
 force or law." Inst. 1. 3. 1. This is adopted 
 by Bracton almost in terms. Bracton, fol. 
 46b. Blackstone's amendment, as will be 
 seen, consists in the elimination of the idea 
 of restraint by force. 
 
 CIVIL LIST. An annual sum granted by 
 the English parliament at the commence- 
 ment of each reign, for the expenses of the 
 royal household and establishment, as dis- 
 tinguished from the general exigencies of 
 the state. It is the provision for the crown 
 made out of the taxes in lieu of its proper 
 patrimony, and In consideration of the as- 
 signment of that patrimony to the publie 
 use. Wharton. 
 
 CIVIL OBLIGATION. One which binds 
 in law, and which may be enforced in a 
 court of justice. Both. Obi. 173, 191. 
 
 CIVIL OFFICER. Any officer of the Unit- 
 ed States who holds his appointment under 
 the national government, whether his duties 
 are executive or judicial, in the highest or 
 lowest departments of the government, with 
 the exception of officers of the army and 
 navy. Rawle, Const. 213; 2 Story, Const. § 
 790. ' 
 
 The term occurs in the constitution of the 
 United States (article 2, § 4), which provides 
 that the president, vice president, and civil 
 officers of the United States shall be removed 
 from office on impeachment tor, and convic- 
 tion of, treason, bribery, or other high 
 crimes and misdemeanors. It has been de- 
 cided that a senator of the United States Is 
 not a civil officer, within the meaning of 
 this clause in the constitution. Senate Jour- 
 nal, 10th Jan. 1799; 4 Tucker, Bl. Comm. 
 Append. 57, 58; Rawle, Const. 213; Serg. 
 Const. Law, 376; Story. Const. § 791. 
 
 CIVIL REMEDY. In practice. The rem- 
 edy which the party Injured by the commis- 
 sion of a tortious act has by action against 
 the party committing it, as distinguished 
 from the proceeding by indictment, by ■which 
 the wrongdoer is made to expiate the Injury 
 done to society. 
 
CIVIL RESPONSIBILITY 
 
 (ISS) 
 
 CLAMEA ADMITTENDA, ETC. 
 
 CIVIL RESPONSIBILITY. See "Civil Lia- 
 bility." 
 
 CIVIL RIGHTS. The rights of a citizen; 
 the rights of an individual as a citizen; the 
 rights due from one citizen to another, the 
 privation of which is a civil wrong, for 
 which redress may be sought in a civil ac- 
 tion. 
 
 Also sometimes applied to the rights se- 
 cured by the thirteenth and fourteenth 
 amendments to the United States constitu- 
 tion and the statutes pursuant thereto. 
 
 CIVIL SERVICE. Governmental service 
 other than military or naval; administrative 
 functions. More commonly used to signify 
 those oflSces in the federal,, state or munic- 
 ipal governments which are filled by appoint- 
 ment of persons competitively examined and 
 passed for merit and ability, irrespective of 
 partisan affiliations. 
 
 CIVIL SIDE. Civil proceedings in a court 
 having both civil and criminal jurisdiction 
 are said to be on the "civil side" of the 
 court, whether heard by the same judge as 
 tries the criminal cases or not. 
 
 CIVIL WAR. An internecine war in 
 which the opposing forces both belong to the 
 same country or nation, e. g. the Revolution- 
 ary War prior to the Declaration of Inde- 
 pendence, or the late Rebellion prior to the 
 president's proclamation of August 16, 1861. 
 
 CIVILIAN. A doctor, professor, or stu- 
 dent of the civil law. 
 
 CIVILIS (Lat. from civis, a citizen). Civil, 
 as distinguished from criminal. Civilis ac- 
 tio, a civil action. Bracton, fols. 101b, 102. 
 Civilis causa, a civil cause. Id. Placita 
 civilia, civil pleas. Fleta, lib. 2, c. 1, § 25. 
 Injuriae civiles, civil injuries. Id. § 5. 
 
 Civil, belonging to a civitas or state; jus 
 civile, civil law, the particular law of a state, 
 as distinguished from jus gentium, the com- 
 mon law of nations. Inst. 1. 2. 1. 2. 
 
 CIVILISTA. In old English law. A civil 
 lawyer, or civilian. Dyer, 267. 
 
 CIVILITER. Civilly; opposed to crimi- 
 naliter, or criminally. 
 
 When a person does an unlawful act in- 
 jurious to another, whether with or without 
 an intention to commit a tort, he is respon- 
 sible civiliter. In order to make him liable 
 criminaliter, he must have intended to do 
 the wrong; for it is a maxim, actus non 
 tacit reum nisi mens sit rea. 2 East, 104. 
 
 CIVILITER MORTUUS. 
 a state of civil death. 
 
 Civilly dead; in 
 
 CIVIS (Lat.) In the Roman law. A citi- 
 zen; as distinguished from incola (an in- 
 habitant) ; origin or birth constituting the 
 former, domicile the latter. Code, 10. 40. 7. 
 
 CIVITAS (Lat.) In the Roman law. Any 
 body of people living under the same laws; 
 a state. Jus civitatis, the law of a state; 
 civil law. Inst. 1. 2. 1. 2. Givitates foede- 
 
 ratae, towns in alliance with Rome, and con- 
 sidered to be free. Butler, Hor. Jur. 29. 
 
 Citizenship; one of the three status, con- 
 ditions, or qualifications of persons. Mac- 
 keld. Civ. Law, 5 131. 
 
 CIVITAS ET URBS IN HOC DIFFER- 
 unt, quod incolae dicuntur civitas, urbs vero 
 complectitur aedificia. A city and a town 
 differ in this, that the inhabitants are called 
 the "city," but "town" includes the build- 
 ings. Co. Litt. 409. 
 
 CLAIM. A challenge of the ownership of 
 a thing which is wrongfully withheld from 
 the possession of the claimant. Plowd. 359. 
 See 1 Dall. (Pa.) 444; 12 Serg. & R. (Pa.) 
 179. 
 
 The owner of property proceeded against 
 in admiralty by a suit in rem must present 
 a claim to such property, verified by oath 
 or affirmation, stating that the claimant by 
 whom or on whose behalf the claim is made, 
 and no other person, is the true and bona 
 fide owner thereof, as a necessary prelim- 
 inary to his making defense. 2 Conkl. Adm. 
 201-210. 
 
 A demand entered of record of a mechanic 
 or materialman for work done or material 
 furnished in the erection of a building, in 
 certain counties in Pennsylvania. 
 
 The assertion of a liability to the party 
 making it to do some service or pay a sum 
 of money. See 16 Pet. (U. S.) 539. 
 
 The possession of a settler upon the wild 
 lands of the government of the United 
 States; the lands which such a settler holds 
 possession of. 
 
 CLAIM OF CONUSANCE. In practice. 
 An intervention by a third person demand- 
 ing jurisdiction of a cause w'hich the plain- 
 tiff has commenced out of the claimant's 
 court. Now obsolete. 2 Wils. 409; 3 Bl. 
 Comm. 298. 
 
 CLAIM OF LIBERTY. A suit or petition 
 to the crown, in the court of exchequer, to 
 have liberties and franchises confirmed there 
 by the attorney general. Wharton. 
 
 CLAIM, VI, AUT PRECARIO. By force, 
 stealth, or importunity. 
 
 CLAIMANT. 
 
 In Admiralty Practice. A person au- 
 thorized and admitted to defend a libel 
 brought in rem against property; thus, for 
 example, thirty hogsheads of sugar. 9 
 Cranch (U. S.) 191. 
 
 In Old English Law. The plaintiff in 
 
 ejectment. 
 
 CLAM. In the civil law. Covertly; se- 
 cretly. 
 
 CLAM DELINQUENTES MAGIS PUNI- 
 untur quam palam. Those sinning secretly 
 are punished more severely than those sin- 
 ning ODenly. 8 Coke, 127. 
 
 CLAMEA ADMITTENDA IN ITINERE 
 per attornatum. An ancient writ, by which 
 the king commanded the justices in eyre to 
 admit the claim by attorney of a person 
 
CLAMOR 
 
 (156) 
 
 CLAUSUM 
 
 who was in the royal service, and could not 
 appear in person. Reg. Orig. 19. 
 
 CLAMOR (Lat.) A suit or demand; a 
 complaint. Du Cange; Spelman. 
 
 In Civil Law. A claimant; a debt; 
 
 anything claimed from another; a proclama- 
 tion; an accusation. Du Cange. 
 
 CLARE CONSTAT (Lat.) It is clearly 
 evident. 
 
 In Scotch Law. A deed given by a 
 
 mesne lord (subject superior) for the pur- 
 pose of completing the title of the vassal's 
 heir to the lands held by the deceased vassal 
 under the grantor. Bell, Diet. 
 
 CLAREIVIETHEN. In old Scotch law. The 
 warranty of stolen cattle or goods; the law 
 regulating such warranty. Skene de Verb. 
 Sign. 
 
 CLARENDON, CONSTITUTIONS OF. 
 
 The constitutions of Clarendon were certain 
 statutes made in the reign of Henry II., of 
 England, at a parliament held at Clarendon, 
 by which the king checked the power of the 
 pope and his clergy, and greatly narrowed 
 the exemption they claimed from secular 
 jurisdiction. 
 
 Previous to this time, there had been an 
 entire separation between the clergy and 
 laity, ' as members of the same common- 
 wealth. The clergy, having emancipated 
 themselves from the laws as administered 
 by the courts of law, had assumed powers 
 and exemptions quite inconsistent with the 
 good government of the country. 
 
 CLARIFICATIO (Lat.) In old Scotch 
 law. A making clear; the purging or clear- 
 ing ( clenging) of an assize. Skene de Verb. 
 Sign. Clarificatio debiti, the clearness of a 
 debt which is sufficiently proved and veri- 
 fied. 
 
 CLASS. A number of persons or things 
 ranked together for some common purpose, 
 or as possessing some attribute in common. 
 
 The term is used of legatees (3 McCord 
 [S. C] 440), of obligees in a bond (3 Dev. 
 [N. C] 284; 4 Dev. [N. C] 382), and of 
 other collections of persons (17 Wend. [N. 
 Y.] 52; 16 Pick. [Mass.] 132). 
 
 C LASS I A R I U S. A seaman or soldier serv- 
 ing at sea. 
 
 CLASSICI. In the Roman law. Persons 
 employed in servile duties on board of ves- 
 sels. Code, 11. 12. 
 
 CLASSIFICATION. In English practice. 
 In the English chancery division, where 
 there are several parties to an administra- 
 tion action, including those who have been 
 served with notice of the decree or judg- 
 ment, and it appears to the judge (or 
 chief clerk) that any of them form a 
 class having the same interests (e. g. re- 
 siduary legatees), he may require them to 
 be represented by one solicitor, in order to 
 prevent the expense of each of them attend- 
 ing by separate solicitors. This is termed 
 "classifying the interests of the parties at- 
 tending," or, shortly, "classifying" or "classi- 
 
 fication." In practice, the term is also ap- 
 plied to the directions given by the chief 
 clerk as to which of the parties are to at- 
 tend on each of the accounts and inquiries 
 directed by the judgment. Consol. Orders, 
 20; Daniell, Ch. Pr. 1088. See, also. Rules 
 of Court, xvi. 12b (April, 1880). Special 
 regulations on this head are in force in the 
 master of the roll's chambers. 
 
 CLAUSE. A part of a treaty; of a legis- 
 lative act; of a deed; of a will, or other writ- 
 ten instrument; a part of a sentence. 
 
 As used in a statute relating to wills, a 
 clause is "some collocation of words in a 
 will which, when removed out of the will, 
 will leave the rest intelligible." The clause 
 need not "be capable of being read as a doc- 
 ument by itself, if taken alone." L. R. 4 
 App. Cas. 77. 
 
 CLAUSE IRRITANT. By this clause, in 
 a deed or settlement, the acts or deeds of a 
 tenant for life or other proprietor, contrary 
 to the conditions of his right, become null 
 and void, and, by the "resolutive" clause, 
 such right becomes resolved and extin- 
 guished. Bell, Diet. 
 
 CLAUSE ROLLS. Contain all such mat- 
 ters of record as were committed to close 
 writs. These rolls are preserved in the 
 Tower. Rapalje & L. 
 
 CLAUSULA. A clause; a sentence or 
 part of a sentence in a written instrument 
 or law. So called as inclosing or including 
 certain words. 
 
 CLAUSULA GENERALIS DE RESIDUO 
 non ea complectitur quae non ejusdem sint 
 generis cum iis quae speciatim dicta fuer- 
 ant. A general clause of remainder does 
 not embrace those things which are not of 
 the same kind with those which had been 
 specially mentioned. LofEt, 419. 
 
 CLAUSULA GENERALIS NON REFER- 
 tur ad expressa. A general clause does not 
 refer to things expressed. 8 Coke, 154. 
 
 CLAUSULA QUAE ABROGATIONEIV1 EX- 
 
 cludit ab initio non valet. A clause in a 
 law which precludes its abrogation is in- 
 valid from the beginning. Bac. Max. reg. 19, 
 p. 89; 2 Dwar. St. 673; Broom, Leg. Max. 
 (3d London Ed.) 27. 
 
 CLAUSULA VEL DISPOSITIO INUTILIS 
 per praesumptionem remotam vel causam, 
 ex post facto non fulcitur. A useless clause 
 or disposition, i. e., one which the law would 
 have implied, is not supported by a remote 
 presumption, or by a cause arising after- 
 wards. Bac. Max. reg. 21; Broom, Leg. 
 Max. (3d London Ed.) 599. 
 
 CLAUSULAE INCONSUETAE SEMPER 
 inducunt suspicionem. Unusual clauses al- 
 ways excite a suspicion. 3 Coke, 81; Broom, 
 Leg. Max. (3d London Ed.) 264. 
 
 CLAUSUM. Close; closed. 
 A writ was either clausum (close) or 
 apertum (open^. Grants were said to be 
 
CLAUSaM FREGIT 
 
 (1S7) 
 
 CLERK OF ARRAIGNS 
 
 by Uterae patentae (open grant) or literae 
 clausae (close grant). 2 Bl. Comm. 346. 
 A close; an inclosure. 
 
 CLAUSUM FREGIT. See "Quare Clan- 
 sum Fregit." 
 
 CLAUSURA. An inclosure. 
 
 CLAVES CURIAE. The keys of tlie court. 
 A figurative term applied in Scotch law to 
 the officers of court. 
 
 CLAVIA. A mace. 
 
 CLEAR DAYS. A specified number of 
 clear days is to be reckoned, exclusive of 
 both the first and last days. 1 Dowl. (N. S.) 
 767. 
 
 CLEARANCE. A certificate given by the 
 collector of a port, in which it is stated that 
 the master or commander (naming him) of 
 a ship or vessel named and described, bound 
 for a port named, and having on board goods 
 described, in case the master requires the 
 particulars of his cargo to be stated In such 
 clearance, has entered and cleared his ship 
 or vessel according to law. 
 
 CLEARING HOUSE. In commercial law. 
 An office where bankers settle daily with 
 each other the balances of their accounts. 
 Morse, Banks, 450. 
 
 CLEMENTINES. In ecclesiastical law. 
 The collection of decretals or constitutions 
 of Pope Clement V., which was published, 
 by order of John XXII., his successor, in 
 1317. 
 
 CLERGY. The name applicable to eccle- 
 siastical ministers as a class. 
 
 CLERGYABLE. In English law. Allow- 
 ing of, or entitled to, the benefit of clergy 
 {pririlegium clericale). Used of persons or 
 crimes. 4 Bl. Comm. 371 et seq. 
 
 CLERICAL ERROR. An error made by a 
 clerk in transcribing or otherwise. A mis- 
 take in writing or copying any document. 
 
 CLERICALE PRIVILEGIUM. Benefit of 
 clergy (g. v.) 
 
 CLERICf DE CANCELLARIA. Clerks of 
 chancery. See "3ix Clerks in Chancery." , 
 
 CLERICI PRAENOTARII. The six clerks 
 in chancery. 2 Reeve, Hist. Eng. Law, 251. 
 Fleta calls them sex clerici praenoiarii. 
 
 CLERICO ADMITTENDO. See "De Cler- 
 ico, etc." 
 
 CLERICO CAPTO PER STATUTUM 
 mercatorum. See "De Clerico, etc." 
 
 CLERICO CONVICTO COMMISSO GAO- 
 lae in defectu ordinaril deliberando. See 
 "De Clerico, etc." 
 
 CLERICO INFRA SACROS ORDINES 
 constituto, non eligendo in officium. See 
 "De Clerico, etc." 
 
 CLERICUS (Lat.) 
 
 In Civil Law. Any one who has tak- 
 en orders in church, of whatever rank; 
 monks. A general term including bishops, 
 subdeacons, readers, and cantors. Du Cange. 
 Used, also, of those who were given up to 
 the pursuit of letters, and who were learned 
 therein. Also of the amanuenses of the 
 judges or courts of the king. Du Cange. 
 
 In English Law. A secular priest, in 
 
 opposition to a regular one. Kennett, Par. 
 Ant. 171. A clergyman or priest; one 
 in orders. Nullus clericus nisi causidicus, 
 no clerk but what is a pleader. 1 Bl. Comm. 
 17. A freeman, generally. One who was 
 charged with various duties in the king's 
 household. Du Cange. 
 
 CLERICUS ET AGRICOLA ET IVIERCA- 
 tor, tempore belli, ut oret, colat, et com- 
 mutet, pace fruuntur. Clergymen, husband- 
 men, and merchants, in order that they may 
 preach, cultivate, and trade, enjoy peace in 
 time of war. 2 Inst. 58. 
 
 CLERICUS MERCATI. In old English 
 law. Clerk of the market. Fleta, lib. 2, c. 
 8; 2 Inst. 543. 
 
 CLERICUS NON CONNUMERETUR IN 
 duabus ecclesiis. A clergyman should not 
 be appointed to two churches. 
 
 CLERICUS PAROCHIALIS. In old Eng- 
 lish law. A parish clerk. Towns. PI. 213. 
 
 Otherwise called clericus sacerdotis. Cow- 
 ell. 
 
 CLERIGOS. In Spanish law. Clergy; 
 men chosen for the service of God. White. 
 New Recop. bk. 1, tit. 5, c. 4. 
 
 CLERK. 
 
 in Commercial Law. A person in the 
 
 employ of a merchant, who attends only to 
 a part of his business, while the merchant 
 himself superintends the whole. He differs 
 from a factor in this, that the latter wholly 
 supplies the place of his principal in respect 
 to the property consigned to him. Pardes- 
 sus. Dr. Com. note 38; 1 Chit. Prac. 80; 2 
 Bouv. Inst, note 1287. 
 
 A general name for salesmen, bookkeepers, 
 amanuenses, and other employes of that 
 class. 
 
 A person employed in an office, public or 
 private, for keeping records or accounts. 
 
 In Ecclesiastical Law. Any individual 
 
 who is attached to the ecclesiastical state, 
 and has submitted to the tonsure. One who 
 has been ordained. 1 Bl. Comm. 388. .\ 
 clergyman. 4 Bl. Comm. 367. 
 
 CLERK OF ARRAIGNS. Officers attarhed 
 to the central criminal court in England, and 
 to each circuit. The clerk of arraigns "has 
 to discharge, for the judge sitting on the 
 crown side (i. e. in criminal cases), the 
 duties which are discharged for him by a 
 master on the civil side. Taxation of costs, 
 allowance to witnesses, the business con- 
 nected with jurors, their excuses and fines, 
 the custody of documents, the duty of re- 
 cording verdicts and making out warrants 
 
CLERK OP ASSIZE 
 
 (158) 
 
 CLOSE 
 
 after sentence are, in addition to advising 
 the court upon points of criminal procedure, 
 among the duties of the clerk of arraigns." 
 Second Rep. Leg. Dep. Comm. (1874) 22. 
 
 CLERK OF ASSIZE. The officer who is 
 responsible for the due performance of the 
 administrative duties of the courts of as- 
 sizes on each circuit. He performs the same 
 duties on circuit which the associate for- 
 merly performed, and which the masters now 
 perform at the sittings of nisi prius at Lon- 
 don and Middlesex. 
 
 CLERK OF COURT. An officer of a court 
 of justice, having the custody of its records 
 and seals, and whose duty it is, among other 
 things, to certify to the correctness of tran- 
 scripts from such record. 
 
 CLERK OF ENROLLMENTS. In English 
 law. The former chief officer of the English 
 enrollment office. He formed part of the 
 staff of the central office {q. v.), but the 
 office is now abolished. 
 
 CLERKS OF INDICTMENTS. Officers at- 
 tached to the central criminal court in Eng- 
 land, and to each circuit. They prepare and 
 , settle indictments against offenders, and as- 
 sist the clerk of arraigns. 
 
 CLERK OF THE CROWN IN CHAN- 
 cery. See "Crown Office in Chancery." 
 
 CLERK OF THE HOUSE OF COMMONS. 
 One of the chief officers of the lower house 
 of the English parliament. He is appointed 
 by the crown as under clerk of the parlia- 
 ments, to attend upon the commons. He 
 makes a declaration, on entering upon his 
 office, to make true entries, remembrances, 
 and journals of the things done and passed 
 in the house. He signs all orders of the 
 house, indorses the bills sent or returned to 
 the lords, and reads whatever is required to 
 be read in the house. He has the custody of 
 all records and other documents. May, 
 Pari. Prac. 289. 
 
 CLERK OF THE PEACE. An officer ap- 
 pointed by the custos rotulorum (q. v.) to as- 
 sist the justices of the peace In quarter ses- 
 sions in drawing indictments, entering judg- 
 ments, issuing process, etc. Pritch. Quar. 
 Sess. 49. 
 
 CLERK OF THE PETTY BAG. See "Pet 
 ty Bag Office." 
 
 CLERK OF THE PRIVY SEAL. There 
 are four of these officers, who attend the 
 lord privy seal, or, in the absence of the lord 
 privy seal, the principal secretary of state. 
 Their duty is to write and make out all 
 things that are sent by warrant from the 
 signet to the privy seal, and which are to 
 be passed to the great seal, and also to 
 make out "privy seals," as they are termed, 
 upon any special occasion of his majesty's 
 affairs, as for the loan of money, and such 
 like purposes. 27 Hen. VIII. c. 11. Cowell. 
 
 CLERK OF THE SIGNET. An officer in 
 England, whose duty it is to attend on the 
 
 king's principal secretary, who always has 
 the custody of the privy signet, as well for 
 the purpose of sealing his majesty's private 
 letters, as also grants which pass his ma- 
 jesty's hand by bill signed. There are four 
 of these officers. 27 Hen. VIII. c. 11. Cow- 
 ell. 
 
 CLERKS OF RECORDS AND WRITS. Of- 
 ficers formerly attached to the English court 
 of chancery, whose duties consisted princi- 
 pally in sealing bills of complaint and writs 
 of execution, filing affidavits, keeping a rec- 
 ord of suits, and certifying office copies of 
 pleadings and affidavits. They were three 
 in number, and the business was distributed 
 among them according to the letters of the 
 alphabet. Second Rep. Leg. Dep. Comm. 43. 
 By the judicature acts of 1873, 1875, they 
 were transferred to the chancery division of 
 the high court. Now, by the judicature (of- 
 ficers') act of 1879, they have been trans- 
 ferred to the central office of the supreme 
 court, under the title of "Masters of the Su- 
 preme Court," and the office of clerk of rec- 
 ords and writs has been abolished. 
 
 CLERKS OF SEATS. In the principal 
 registry of the probate division of the Eng- 
 lish high court, clerks of seats discharge 
 the duty of preparing and passing the grants 
 of probate and letters of administration, un- 
 der the supervision of the registrars. There 
 are six seats, the business of which is regu- 
 lated by an alphabetical arrangement, and 
 each set has four clerks. They have to take 
 bonds from administrators, and to receive 
 caveats against a grant being made in a 
 case where a will is contested. They also 
 draw the "acts," i. e., a short summary of 
 each grant made, containing the name of the 
 deceased, amount of assets, and other par- 
 ticulars. Second Rep. Leg. Dep. Comm. 79. 
 
 CLERKSHIP. The period which must be 
 spent by a law student in the office of a 
 practicing attorney before admission to the 
 bar. 1 Tidd, Prac. 61 et seq. 
 
 CLIENT. One who employs and retains 
 an attorney or counsellor to manage or de- 
 fend a suit or action to which he is a party, 
 or to advise him about some legal matters. 
 See "Attorney at Law." 
 
 CLIENTELA. In old English law. The 
 state of a client; clientship; protection; pat- 
 ronage; guardianship. Applied to the rela- 
 tion of a church to its patron. 2 Bl. Comm. 
 21. 
 
 CLIFFORD'S INN. An inn of chancery. 
 See "Inns of Chancery." 
 
 CLITO. In Saxon law. The son of a 
 king pr emperor; the next heir to the 
 throne; the Saxon adding. Spelman. 
 
 CLOERE. A prison or dungeon. 
 
 CLOSE. An interest in the soil (Doctor 
 
 & Stud.. 30; 6 East, 154; 7 East, 207; 1 Bur- 
 
CLOSE COPIES 
 
 (159) 
 
 CODE 
 
 rows, 133), or in trees or growing crops (4 
 Mass. 266; 9 Johns. fN. Y.] 113). 
 
 An inclosed tract of land. 3 Bl. Comm. 
 209, 
 
 In every case where one has a right to 
 exclude another from his land, the law en- 
 circles it, if not actually inclosed, with an 
 imaginary fence, and entitles him to a com- 
 pensation in damages for the injury he 
 sustains by the act of another passing 
 through his boundary, denominating such 
 land a "close." Hammond, N. P. 151; Doctor 
 & Stud. dial. 1, c. 8, p. 30; 2 Whart. (Pa.) 
 430. 
 
 CLOSE COPIES. Copies which might be 
 written with any number of words on a 
 sheet. Office copies were to contain only a 
 prescribed number of words on each sheet. 
 
 CLOSE ROLLS. Rolls containing the rec- 
 ord of the close writs (Kterae clausae) and 
 grants of the king, kept with the public rec- 
 ords. 2 Bl. Comm. 346. 
 
 CLOSE WRITS. Writs directed to the 
 sheriff instead of to the lord. 3 Reeve, 
 Hist. Eng. Law, 45. Writs containing grants 
 from the crown to particular persons, and 
 for particular purposes, which, not being in- 
 tended for public inspection, are closed up 
 and sealed on the outside, instead of being 
 open and having the seal appended by a 
 strip of parchment. 2 Bl. Comm. 346; 
 Sewell, Sheriffs, 372. 
 
 CLOUD ON TITLE. A proceeding or in- 
 strument, such as a deed or mortgage, or 
 a tax or assessment, judgment or decree, 
 which, if valid, would apparently, and on 
 its face, impair the title of a person to land, 
 but which is in fact invalid, such invalidity 
 being demonstrable by proof of extrinsic 
 facts. Equity has jurisdiction of actions 
 brought to remove clouds on title by can- 
 cellation of instruments creating them. 
 
 CLOUGH. A valley. An allowance of 
 two pounds in every hundred weight for the 
 turn of the scale, on buying goods wholesale 
 by weight. 
 
 CLUBS. A name applied loosely to volun- 
 tary organizations of persons for a common 
 purpose, usually either social, recreative, po- 
 litical, or educative. The form of the or- 
 ganization is not essential, and, though usu- 
 ally unincorporated, a club may be incorpo- 
 rated. See "Association." 
 
 CLYPEUS, or CLIPEUS. In old English 
 law. A shield ; metaphorically one of a 
 noble family. Clypei prostrati, noble fami- 
 lies extinct. Mat. Paris, 463. 
 
 COADJUTOR. The assistant of a bishop; 
 an assistant. 
 
 COADMINISTRATOR. One who is ad- 
 ministrator with one or more others. See 
 "Administrator." 
 
 5«. 
 
 COADUNATIO. A conspiracy. 9 Coke, 
 
 COAL NOTE. In English law. A species 
 of promissory note authorized by St. 3 Geo. 
 II. c. 26, §§ 7, 8, which, having these words 
 expressed therein, namely, "value received 
 in coals," are to be protected and noted as 
 inland bills of exchange. 
 
 COALITION. In French law. An unlaw- 
 ful agreement among several persons not to 
 do a thing except on some conditions agreed 
 upon; a conspiracy. 
 
 COASSIGNEE. One who is assignee with 
 one or more others. See "Assignment." 
 
 COAST. The margin of a country bound- 
 ed by the sea. This term includes the nat- 
 ural appendages of the territory which rise 
 out of the water, although they are not of 
 sufficient firmness to be inhabited or forti- 
 fied. Shoals perpetually covered with water 
 are not, however, comprehended under the 
 name of "coast." 5 C. Rob. Adm. 385c. 
 
 COASTING TRADE. Domestic trade be- 
 tween port and port in the United States, as 
 distinguished from foreign trade between a 
 port in the United States and a port in a 
 foreign country. 1 Wend. (N. Y.) 557; 10 
 Cal. 504. It is said to Include trade be- 
 tween places in the same district on a navi- 
 gable river (3 Cow. [N. Y.] 713), but not to 
 the mere crossing of a river (1 Newb. 24). 
 
 COCKET. A seal appertaining to the 
 king's custom house. Reg. Grig. 192. 
 
 A scroll or parchment sealed and deliv- 
 ered by the officers of the custom house to 
 merchants, as an evidence that their wares 
 are customed. Cowell; Speliiian. See 7 
 Low. (U. S.) 116. 
 
 The entry office in the custom house itself. 
 
 A kind of bread said by Cowell to be hard- 
 baked; sea biscuit. 
 
 COCKPIT. A name which used to be 
 given to the judicial committee of the privy 
 council, the council room being built on the 
 old cockpit of Whitehall Place. Wharton. 
 
 CODE. A body of law established by the 
 legislative authority of the state, and de- 
 signed to regulate completely, so far as a 
 statute may, the subjects to which it re- 
 lates. 
 
 The idea of a code involves that of the 
 exercise of the legislative power in its pro- 
 mulgation; but the name has been loosely 
 applied also to private compilations of stat- 
 utes. The subject of codes and the kindred 
 topics of legal reform have received great 
 attention from the jurists and statesmen of 
 the present century. When it is considered 
 how rapidly statutes accumulate as time 
 passes, it Is obvious that great convenience 
 will be found in having the statute law in a 
 systematic body, arranged according to sub- 
 ject-matter, instead of leaving it unorgan- 
 ized, scattered through the volumes in which 
 it was from year to year promulgated. But 
 when the transposition of the statutes from 
 a chronological to a scientific order is under- 
 taken, more radical changes immediately 
 propose themselves. These are of two class- 
 
CODE 
 
 (160) 
 
 CODE 
 
 es: First, amendments for the purpose of 
 harmonizing the inconsistencies which such 
 an arrangement brings to notice, and supply- 
 ing defects; second, the introduction into the 
 system of all other rulqs which are recog- 
 nized as the unwritten or common law of the 
 state. The object of the latter class of 
 changes is to embody in one systematic enact- 
 ment all that is thenceforth to he regarded 
 as the law of the land. It is this attempt 
 which is usually intended by the distinctive 
 term "codification." 
 
 The first two of the questions thus indi- 
 cated may be deemed as settled, by general 
 concurrence, in favor of the expediency of 
 such changes; and the process of the collec- 
 tion of the statute law in one general code, 
 or in a number of partial codes or systemat- 
 ic statutes, accompanied by the amendments 
 which such a revision invites, is a process 
 which for some years has been renovating 
 the laws of England and the United States. 
 Although at the same time something has 
 been done, especially in this country, to- 
 wards embodying in these statutes princi- 
 ples which before rested in the common or 
 report law, yet the feasibility of doing this 
 completely, or even to any great extent, must 
 be deemed an open question. It has been 
 discussed with great ability by Bentham, 
 Savigny, Thibaut, and others. It is undeni- 
 able that, however successfully a code might 
 be supposed to embody all existing and de- 
 clared law, so as to supersede previous sour- 
 ces, . it cannot be expected to provide pros- 
 pectively for all the innumerable cases which 
 the diversity of affairs rapidly engenders, 
 and there must soon come a time when it 
 must be studied in the light of numerous ex- 
 planatory decisions. 
 
 These discussions have called attention to 
 a subject formerly little considered, but which 
 is of fundamental importance to the success- 
 ful preparation of a code, — the matter of 
 statutory expression. There is no species of 
 composition which demands more care and 
 precision than that of drafting a statute. 
 The writer needs not only to make his lan- 
 guage intelligible, he must make it inca- 
 pable of misconstruction. When it has 
 passed to a law, it is no longer his intent 
 that is to be considered, but the intent of 
 the words which he has used; and that in- 
 tent is to be ascertained under the strong 
 pressure of an attempt of the advocate to 
 win whatever possible construction may be 
 most favorable to his cause. The true safe- 
 guard is found not in the old method of 
 accumulating synonyms, and by an enumera- 
 tion of particulars, but rather — as is shown 
 by those American codes of which the Re- 
 vised Statutes of New York and the revi- 
 sion of Massachusetts are admirable speci- 
 mens — by concise but complete statement of 
 the full principle in the fewest possible 
 words, and the elimination of description and 
 paraphrase by the separate statement of 
 necessary definitions. One of the rules to 
 which the New York revisers generally ad- 
 hered, and which they found of very great 
 importance, was to confine each section to 
 a single proposition. In this way, the in- 
 tricacy and obscurity of the old statutes 
 
 were largely avoided. The reader who wish- 
 es to pursue this interesting subject will 
 find much that is admirable in Coode's trea- 
 tise on Legislative Expression (London, 
 1845). The larger work of Gael (Legal Com- 
 position, London, 1840) is more especially 
 adapted to the wants of the English profes- 
 sion. 
 
 Austrian. The Civil Code was promul- 
 gated in 1811, — the code of Joseph II. (1780) 
 having been found wholly unsuited to the 
 pvlrpose and by his successor abrogated. It 
 is founded in a great degree upon the Prus- 
 sian. The Penal Code (1852) is said to 
 adopt to some extent the characteristics of 
 the French Penal Code. 
 
 Burgundian. Lex Romana, otherwise 
 
 known in modern times as the Papiniani Re- 
 sponsorum. Promulgated A. D. 517. 
 
 It was founded on the Roman law, and its 
 chief interest is the indication which, in 
 common with the other Barbaric codes, it 
 affords of the modifications of jurisprudence 
 under the changes of society amidst which it 
 arose. 
 
 Consolato del Mare. A code of mari- 
 time law of high antiquity and great celebri- 
 ty. 
 
 Its origin is not certainly known. It has 
 been ascribed to the authority of the ancient 
 kings of Arragon; but there is some reason 
 for maintaining the theory that it was grad- 
 ually collected and handed down as a digest 
 of all the principal rules and usages estab- 
 lished among the maritime nations of Eu- 
 rope from the twelfth to the fourteenth cen- 
 tury. Since it was first printed at Barcelona 
 in the fourteenth century, it has been en- 
 larged from time to time by the addition 
 of various commercial regulations. Its doc- 
 trines are founded to a large extent on the 
 Greek and Roman law. It seems to have 
 been originally written in the dialect of 
 Catalonia; but it has been translated into ev- 
 ery language of Europe, except English. It 
 is referred to at the present day as an au- 
 thority in respect to the ownership of ves- 
 sels, the rights and obligations thereto, to 
 the rights and responsibilities of master and 
 seamen, to the law of freight, of equipment 
 and supply, of jettison and average, of salv- 
 age, of ransom, and of prize. The edition 
 of Pardessus, in his Collection de Lois Mari- 
 times (volume 2), is deemed the best. 
 
 French Codes. The chief FrencVi 
 
 codes of the present day are five in number, 
 sometimes known as Les Givq Codes. They 
 were in great part the work of Napoleoi, 
 and the first in order bears his name. They 
 are all frequently printed in one duodecimo 
 volume. These codes do not embody the 
 whole French law. but minor codes and a 
 number of scattered statutes must also be 
 resorted to upon special subjects. 
 
 (1) Code Civil, or Code Napoleon, is com- 
 posed of thirty-six laws, the first of which 
 was passed in 1803, and the last in 1804, 
 which united them all in one body, under 
 the pame of Code Civil des Francois. 
 
 The first steps towards i*s preparation 
 were taken in 1793, but it was not prepared 
 till some years subsequently, and was finally 
 thoroughly discussed in all its details by the 
 
CODE 
 
 (161) 
 
 CODE 
 
 court of Cassation, of which Napoleon was 
 president, and in the discussions of which 
 he took an active part throughout. In 1807 
 a new edition was promulgated, the title 
 Code Napoleon being substituted. In the 
 third edition (1816) the old title was re- 
 stored; but in 1852 it was again displaced 
 by that of Napoleon. 
 
 Under Napoleon's reign, it became the law 
 of Holland, of the Confederation of the 
 Rhine, Westphalia, Bavaria, Italy, Naples, 
 Spain, etc. It has undergone great amend- 
 ment by laws enacted since it was estab- 
 lished. It is divided into three books: Book 
 
 1, "Of Persons and the Enjoyment and Pri- 
 vation of Civil Rights." Book 2, "Property 
 and Its Different Modifications." Book 3, 
 "Different Ways of Acquiring Property." 
 Prefixed to it is a preliminary title, "Of the 
 Publication, Effects, and Application of Laws 
 in General." 
 
 One of the most perspicuous and able com- 
 mentators on this code is TouUler, frequent- 
 ly cited in this work. 
 
 (2) Code de Procedure Civil. That part 
 of the code which regulates civil proceed- 
 ings. 
 
 It is divided into two parts: Part 1 con- 
 sists of five books, the first of which treats 
 of justices of the peace; the second, of in- 
 ferior tribunals; the third, of royal (or ap- 
 pellate) courts; the fourth, of extraordinary 
 means of proceeding; the fifth, of the execu- 
 tion of judgments. Part 2 is divided into 
 three books, treating of various matters and 
 proceedings special in their nature. 
 
 (3) Code de Commerce. The code for the 
 regulation of commerce. 
 
 This code was enacted in 1807. Book 1 is 
 entitled, "Of Commerce in General." Book 
 
 2, "Maritime Commerce." The whole law of 
 this subject is not embodied In this book. 
 Book 3, "Failures and Bankruptcy." This 
 book was very largely amended by the law 
 of 28th May, 1838. Book 4, "Of Commer- 
 cial Jurisdiction," — the organization, jurisdic- 
 tion, and proceedings of commercial tribu- 
 nals. This code is, in one sense, a supple- 
 ment to the Code Napoleon, applying the 
 principles of the latter to the various sub- 
 jects of commercial law. The two contain 
 much that is valuable upon commercial sub- 
 jects. Pardessus is one of, the most able of 
 its expositors. 
 
 (4) Code d'Instruction Griminelle. The 
 code regulating procedure in criminal cases, 
 taking that phrase in a broad sense. 
 
 Book 1 treats of the police; book 2, of 
 the administration of criminal justice. It 
 was enacted in 1808 to take effect with the 
 Penal Code in 1811. 
 
 (5) Code Penal. The penal or criminal 
 code. 
 
 Enacted in 1810. Book 1 treats of penal- 
 ties- in crlininal and correctional cases, and 
 their effects; book 2, of crimes and misde- 
 meanors, and their punishment; book 3, of- 
 fenses against the police regulations, and 
 their punishment. Important amendments of 
 this code have been made by subsequent leg- 
 islation. 
 ' (Rt There ia also a Code Forestier : and 
 
 the name "code" has been inaptly given to 
 some private compilations on other subjects. 
 
 Gregorian. An unofficial compilation 
 
 of the rescripts of the Roman emperors. It 
 was made in the fourth century, and is not 
 now extant. 
 
 The Theodosian Code, which was promul- 
 gated nearly a century afterwards, was a 
 continuation of this, and of the collection of 
 Hermogenes. The chief interest of all of 
 these collections is in their relation to their 
 great successor, the Justinian Code. 
 
 Hanse Towns, Laws of the. A code of 
 
 maritime law established by the Hanseatic 
 towns. 
 
 It was first published in German, at Lu- 
 bec, in 1597. In an assembly of deputies 
 from the several towns, held at Lubec, May 
 23, 1614, it was revised and enlarged. The 
 text, with a Latin translation, was published 
 with a commentary by Kuricke; and a 
 French translation has been given by Cleirac 
 in Us et Coutumes de la Mer. It is not in- 
 frequently referred to on subjects of mari- 
 time law. 
 
 Henri (French). The best-known of 
 
 several collections of ordinances made dur- 
 ing the sixteenth, seventeenth, and eight- 
 eenth centuries, the number of which in 
 part both formed the necessity and furnished 
 the material for the Code Napoleon. 
 
 Henri (Haytien). A very judicious 
 
 adaptation from the Code Napoleon for the 
 Haytiens. It was promulgated in 1812 by 
 Christophe (Henri I.) 
 
 Hermogenian. An unofficial compila- 
 tion, made in the fourth century, supple- 
 mentary to the Code of Gregorius. It is not 
 now extant. 
 
 Institutes of IVlenu. A code of Hindu 
 
 law. of great antiquity, which still forms the 
 basis of Hindu jurisprudence (Elphinstone's 
 History of India, p. 83), and is said also 
 to be the basis of the laws of the Burmese 
 and of the Laos (Buckle, History of Civili- 
 zation, vol. 1, p. 54, note 70). 
 
 The Institutes of Menu are ascribed to 
 about the ninth century B. C. A transla- 
 tion will be found in the third volume of Sir 
 William Jones' Works. See "Hindu Law." 
 
 Justinian Code. A collection of im- 
 perial ordinances compiled by order of the 
 emperor Justinian. 
 
 All the judicial wisdom of the Roman civ- 
 ilization which is of importance to the Amer- 
 ican lawyer is embodied in the compilations 
 to which Justinian gave his name, and from 
 which that name has received its lustre. Of 
 these, first in contemporary importance, if 
 not first in magnitude and present interest, 
 was the Code. In the first year of his reign, 
 he commanded Tribonian, a statesman of his 
 court, to revise the imperial ordinances. 
 The first result, now known as the Codex 
 Vetus, is not extant. It was superseded a 
 few years after its promulgation by a new 
 and more complete edition. Although it is 
 this alone which Is now known as the Code 
 of Justinian, yet the Pandects and the In- 
 stitutes which followed it are a part of the 
 same system, declared by the same author- 
 ity; and the three together form one codifi- 
 cation of the law of the Empire. The first 
 
CODE 
 
 (162) 
 
 CODE 
 
 of these works occupied Tribonian and nine 
 associates fourteen montlis. It is comprised 
 in twelve divisions or books, and embodies 
 all that was deemed worthy of preservation 
 of the imperial statutes from the time of 
 Hadrian down. The Institutes is an ele- 
 mentary treatise prepared by Tribonian and 
 two associates upon the basis of a similar 
 work by Gains, a lawyer of the second cen- 
 tury. 
 
 The Pandects, which were made public 
 about a month after the Institutes, were an 
 abridgment of the treaties and the com- 
 me'ntaries of the lawyers. They were pre- 
 sented in fifty books. Tribonian and the six- 
 teen associates who aided him in this part 
 of his labors accomplished this abridgment 
 in three years. It has been judged to bear 
 obvious marks of the haste with which it 
 was compiled; but it is the chief embodi- 
 ment of the Roman law, though not the most 
 convenient resort for the modern student of 
 that law. 
 
 Tribonian found the law, which for four- 
 teen centuries had been accumulating, com- 
 prised in two thousand books, or — stated ac- 
 cording to the Roman method of computa- 
 tion — in three million sentences. It is prob- 
 able that this matter, if printed in law vol- 
 umes such as are now used, would fill from 
 three to five hundred volumes, — a library 
 perhaps as large as that which would be 
 composed by a collection of the Federal stat- 
 'utes and reports and those of the state of 
 Pennsylvania. The comparison, to be more 
 exact, should take into account treatises and 
 digests, which would add to the bulk of the 
 collection more than to the substance of the 
 material. The commissioners were instruct- 
 ed to extract a series of plain and concise 
 laws, in which there should be no two laws 
 contradictory or alike. In revising the im- 
 perial ordinances, they were empowered to 
 amend in substance as well as in form. 
 
 The codification being completed, the em- 
 peror decreed that no resort should be had 
 to the earlier writings, nor any comparison 
 be made with them. 'Commentators were 
 forbidden to disfigure the new with explana- 
 tions, and lawyers were forbidden to cite the 
 old. The imperial authority was sufficient to 
 sink into oblivion nearly all the previously 
 existing sources of law; but the new stat- 
 utes which the emperor himself found it 
 necessary to establish in order to explain, 
 complete, and amend the law, rapidly ac- 
 cumulated throughout his long reign. These 
 are known as the "Novels." The Code, the 
 Institutes, the Pandects, and the Novels, with 
 some subsequent additions, constitute the 
 Corpus Juris Civilis. Though the Code has 
 lost its sanction, and the Pandects are of sec- 
 ondary value to the present age, the Insti- 
 tutes stand an undisturbed monument of the 
 science. The masterly arrangement of the 
 outline of the law there adopted is to this 
 day a model for digests and commentaries. 
 The familiar classification employed by 
 Blackstone is based on this. So far as trans- 
 lation and modern illustration go, it is 
 through the Institutes that the civil law is 
 most accessible to the student. 
 
 Among English translations of the I"-'" 
 
 tutes are that by Cooper (Phila. 1812; N. Y. 
 1841), — which is regarded as a very good 
 one, — and that by Sanders (Lond. 1853), 
 which contains the original text also, and 
 copious references to the Digests and Code. 
 Among the modern French commentators are 
 Ortolan and Pasquiere. 
 
 Livingston's Code. Mr. Edward Liv- 
 ingston, one of the commissioners who pre- 
 pared the Louisiana Code, prepared and pre- 
 sented to congress a draft of a penal code 
 for the United States, which, though it was 
 never adopted, is not infrequently referred 
 to in the books as stating principles of crim- 
 inal law. 
 
 IVIosaic Code. The code proclaimed 
 
 by Moses for the government of the Jews, B. 
 C. 1491. 
 
 One of the peculiar characteristics of this 
 code is the fact that whilst all that has ever 
 been successfully attempted in other cases 
 has been to change details without revers- 
 ing or ignoring the general principles which 
 form the basis of the previous law, that 
 which was chiefiy done here was the asser- 
 tion of great and fundamental principles in 
 part contrary and in part perhaps entirely 
 new to the customs and usages of the peo- 
 ple. These principles, thus divinely revealed 
 and sanctioned, have given the Mosaic Code 
 vast influence in the subsequent legislation 
 of other nations than the Hebrews. The 
 topics on which it is most frequently re- 
 ferred to as an authority in our law are those 
 of marriage and divorce, and questions of 
 affinity, and of the punishment of murder 
 and seduction. The commentaries of Mi- 
 chaelis and of Wines are valuable aids to 
 its study. 
 
 Ordonnance de la IVlarine. A code of 
 
 maritime law enacted in the reign of Louis 
 XIV. 
 
 It was promulgated in 1681, and with 
 great completeness embodied all existing 
 rules of maritime law, including insurance. 
 Kent pronounces it a monument of the wis- 
 dom of the reign of Louis, "far more dura- 
 ble and more glorious than all the military 
 trophies won by the valor of his armies." 
 Its compilers are unknown. An English 
 translation is contained in the appendix to 
 Peters' Admiralty Reports, vol. 1. The or- 
 dinance has been at once illustrated and 
 eclipsed by Valin's commentaries upon it. 
 
 Oleron, Laws of. A code of maritime 
 
 law, which takes its name from the island 
 of Oleron. 
 
 Both the French and the English claim 
 the honor of having originated this code, — 
 the former attributing its compilation to the 
 command of Queen Eleanor, Duchess of Gul- 
 enne, near which province the island of 
 Oleron lies; the latter ascribing its promul- 
 gation to her .son, Richard I. The latter 
 monarch, without doubt, caused it to be im- 
 proved, if he did not originate it, and he 
 introduced it into England. Some additions 
 were made to it by King John. It was pro- 
 mulgated anew in the reign of Henry III., 
 and again confirmed in the reign of Edward 
 III. It is most accessible to the American 
 profession in the translation contained in 
 tT,~ ^^na^Ai-r tr\ thp first, volume of Peters' 
 
CODE 
 
 (163) 
 
 COFRADIA 
 
 Admiralty Reports. The French version, 
 with Cleirac's commentary, is contained in 
 U^ et Coutumes de la Mer. The subjects up- 
 on which it is now valuable are much the 
 same as those of the Consolato del Mare. 
 
 Ostrogothic. The code promulgated 
 
 by Theodoric, king of the Ostrogoths, at 
 Rome, A. D. 500. It was founded on the Ro- 
 man law. 
 
 Prussian. Allgemeines Landrecht. The 
 
 former code of 1751 was not successful; but 
 the attempt to establish one was resumed in 
 1780, under Frederic II. ; and, after long and 
 thorough discussion, the present code was 
 finally promulgated in 1794. It is Itnown 
 also as the "Code Frederic." 
 
 Rhodian Laws. A maritime code 
 
 adopted by the people of Rhodes, and in force 
 among the nations upon the Mediterranean 
 nine or ten centuries before Christ. There 
 is reason to suppose that the collection un- 
 der this title in Vinnius is spurious, and, if 
 so, the code is not extant. See Marsh. Ins. 
 bk. 1, c. 4, p. 15. 
 
 Theodosian. A code compiled by a 
 
 commission of eight, under the direction of 
 Theodosian the Younger. 
 
 It comprises the edicts and rescripts of six- 
 teen emperors, embracing a period of one 
 hundred and twenty-six years. It was pro- 
 mulgated in the Eastern empire in 438, and 
 quickly adopted, also, in the Western em- 
 pire. The great modern expounder of this 
 code is Gothofredus (Godefroi). The results 
 of modern researches regarding this code are 
 well stated in the Foreign Quarterly Re- 
 view (volume 9, p. 374). 
 
 Twelve Tables. Laws of ancient 
 
 Rome, compiled on the basis of those of So- 
 lon and other Greek legislators. 
 
 They first appeared in the year of Rome 
 303, inscribed on ten plates of brass. In the 
 following year, two others were added, and 
 the entire code bore the name of the "Laws 
 of the Twelve Tables." The principles they 
 contained were the germ of the body of the 
 Roman law, and enter largely into the mod- 
 em jurisprudence of Europe. See a frag- 
 ment of the law of the Twelve Tables, in 
 Cooper's Justinian, 656; Gibbon's Rome, c. 
 44. 
 
 Visigothlc. The Le.r Romani; now 
 
 known as Breuiarum Alaricianum. Ordained 
 by Alaric TI. for his Roman subjects, A. D. 
 506. 
 
 Wisbuy, Laws of. A concise but com- 
 prehensive code of maritime law, established 
 by the "merchants and masters of the mag- 
 nificent city of Wisbuy." 
 
 The port of Wisbuy, now in ruins, was 
 situated on the northwestern coast of Gott- 
 land, in the Baltic sea. It was the capital of 
 the island, and the seat of an extensive com- 
 merce, of which the chief relic and the most 
 significant record is this code. It is a moot- 
 ed point whether this code was derived from 
 the Laws of Oleron, or that from this; but 
 the similarity of the two leaves no doubt 
 that one was the offspring of the other. It 
 was of great authority in the northern parts 
 of Europe. "Lex Rhodia navalis," says Gro- 
 tius, "pro jure gentuim in illo mare Mediter- 
 fntton iTinfthnt: sicut avud Gallium, leges Ole- 
 
 ronis, et apud om,nes transrhenanos, legis 
 Wishuenses." De Jure Belli, lib. 2, c. 3. It is 
 still referred to on subjects of maritime law. 
 An English translation will be found in the 
 appendix to the first volume of Peters' Ad- 
 miralty Reports. 
 
 CODEX (Lat.) A volume or roll. The 
 Code of Justinian. 
 
 CODICIL. Some addition to, or qualifica- 
 tion of, a last will and testament. 1 Redf. 
 Wills, 287. 
 
 This term is derived from the Latin codi- 
 cillus, which is a diminutive of codex, and in 
 strictness imports a little code or writing, — 
 a little will. In the Roman civil law, codi- 
 cil was defined as an act which contains 
 dispositions of property in prospect of death, 
 without the institution of an heir or execu- 
 tor. Domat, Civ. Law, pt. ii. bk. iv. tit. i. § 
 1; Just, de Codic. art. i. § 2. So, also, the 
 early English writers upon wills define a 
 codicil in much the same way. "A codicil 
 is a just sentence of our will touching that 
 which any would have done after their 
 death, without the appointing of an execu- 
 tor." Swinb. Wills, pt. i. § v. pi. 2. 
 
 / 
 COEMPTIO (Lat.) In civil law. The cer- 
 emony of celebrating marriage by solemni- 
 ties. 
 
 The parties met and gave each other a 
 small sum of money. They then questioned 
 each other in turn. The man asked the wo- 
 man if she wished to be his mater-familias. ' 
 She replied that she so wished. The woman 
 then asked the man if he wished to be her 
 pater-familias. He replied that he so wished. 
 They then joined hands; and these were 
 called nuptials by coemptio. Boethius, Co- 
 emptio; Calv. Lex.; Taylor. 
 
 COEMPTION. The act of purchasing the 
 whole quantity of any commodity. Whar- 
 ton. 
 
 COERCION. Constraint; compulsion; 
 force. 
 
 Direct or positive coercion takes place 
 when a man is by physical force compelled 
 to do an act contrary to his will. For ex- 
 ample, when a man falls into the hands of 
 the enemies of his country, and they com- 
 p.?l him, by a just fear of death, to fight 
 against It. 
 
 Implied coercion exists where a person is 
 legally under subjection to another, and is 
 indi-oed, in consequence of such subjection, 
 to do an act contrary to his will. See 
 "Duress." 
 
 COEXECUTOR. One who is executor 
 with one or more others. See "Executor." 
 
 COFFERER OF THE QUEEN'S (or 
 king's) household. In English law. A prin- 
 cipal officer of the royal establishment, next 
 under the controller, who, in the counting- 
 house, and elsewhere, had a special charge 
 and oversight of the other officers, whose 
 wages he paid. Wharton. 
 
 COFRADIA. The congregation or broth- 
 
[ COGITATIONIS POENAM, ETC. (164) 
 
 COGNOVI ACTIONEM 
 
 erhood entered into by several persons for 
 the purpose of performing pious works. No 
 society of this kind can be lawfully formed 
 without license from the king and the bishop 
 of the diocese. 
 
 COGITATIONIS POENAM NEMO PATI- 
 tur. No one is punished for his thoughts. 
 Broom, Leg. Max. (3d London Ed.) 279. 
 
 COGNATES. In civil and Scotch law. 
 Relations through females. 1 Mackeld. Civ. 
 Law, 137; Bell, Diet. 
 
 COGNATI. In civil law. Collateral heirs 
 through females; relations in the line of 
 the mother. 2 Bl. Comm. 235. 
 
 The term is not used in the civil law as 
 it now prevails in Prance. In the common 
 law it has no technical sense; but as a 
 word of discourse in English it signifies, 
 generally, allied by blood, related in origin, 
 of the same family. 
 
 COGNATION. In civil law. Signifies gen- 
 erally the kindred which exists between two 
 persons who are united by ties of blood or 
 family, or both. 
 
 Civil cognation is that which proceeds 
 alone from the ties of families, as the kin- 
 dred between the adopted father and the 
 adopted child. 
 
 Mixed cognation is that which unites at 
 
 the same time the ties of blood and family, 
 
 as that which exists between brothers the 
 
 issue of the same lawful marriage. Inst. 3. 
 
 »6; Dig. 38. 10. 
 
 Natural cognation is that which is alone 
 formed by ties of blood. Such is the kindred 
 of those who owe their origin to an illicit 
 connection, either in relation to their as- 
 cendants or collaterals. 
 
 COGNISANCE. See "Cognizance." 
 
 COGNITIO. 
 
 In Old English Law. The acknowl- 
 edgment of a fine; the certificate of such 
 acknowledgment. 
 
 Cognizance or jurisdiction. Bracton, fol. 
 302b. 
 
 In the Roman Law. The judicial ex- 
 amination or hearing of a cause. Plin. 
 Epist. vii. 33. 
 
 COGNITIONIBUS MITTENDIS. An obso- 
 lete writ requiring a justice or other quali- 
 fied person, who has taken a fine and neg- 
 lects to certify it in the court of common 
 pleas, to do so. 
 
 COGNITIONIS CAUSAE (Lat.) For the 
 purpose of ascertaining. In Scotch practice. 
 A name given to a judgment or decree pro- 
 nounced by a court, ascertaining the amount 
 of a debt against the estate of a deceased 
 landed proprietor, on cause shown, or after 
 due investigation. Bell, Diet. 
 
 COGNITOR. 
 
 In Old English Law. One who ac- 
 knowledges. 
 
 In Roman Law. An advocate or de- 
 fender in a private cause; one who de- 
 fended the cause of a person who was pres- 
 ent. Brissonius; Calv. Lex. 
 
 COGNIZANCE, CONUSANCE, or COGNI- 
 
 sance (Lat. co(7Miito, recognition, knowledge). 
 Acknowledgment; recognition; jurisdiction; 
 judicial power; hearing a matter judicially. 
 
 In Pleading. The answer of the de- 
 fendant in an action of replevin who is not 
 entitled to the distress of goods which are 
 the subject of the action, acknowledging the 
 taking, and justifying it as having been 
 done by the command of one who is so en- 
 titled. Lawes, PI. 35, 36; 4 Bouv. Inst, 
 note 3571. An acknowledgment made by the 
 deforciant, in levying a fine, that the lands 
 in question are the right of the complainant. 
 2 Sharswood, Bl. Comm. 350. 
 
 Cognizance of Pleas. Jurisdiction of 
 
 causes. A privilege granted by the king to 
 a city or town to hold pleas within the same. 
 Termes de la Ley. It' is in frequent use 
 among the older writers on English law In 
 this latter sense, but is seldom used, if at all, 
 in America, except in its more general mean- 
 ing. The universities of Cambridge and Ox- 
 ford possess this franchise. Willes, 233; 1 
 Sid. 103; 11 East, 543; 1 W. Bl. 454; 10 
 Mod. 126; 3 Sharswood, Bl. Comm. 298. 
 
 Claim of Cognizance (or Conusance). 
 
 An intervention by a third person, demand- 
 ing judicature in the cause against the plain- 
 tiff, who has chosen to commence his action 
 out of claimant's court. 2 Wils. 409; 2 
 Sharswood, Bl. Comm. 350, note. 
 
 It is a question of jurisdiction between the 
 two courts (Fortesque, 157; 5 Viner, Abr. 
 588), and not between the plaintiff and de- 
 fendant, as in the case of plea to the juris- 
 diction, and must be demanded by the party 
 entitled to conusance, or by his representa- 
 tive, and not by the defendant or his attor- 
 ney (1 Chit. PI. 403). 
 
 There are three sorts of conusance: Tenere 
 placita, which does not oust another court of 
 its jurisdiction, but only creates a concur- 
 rent one. Cognitio placitorum, when the 
 plea is commenced in one court, of which 
 conusance belongs to another. A conusance 
 of exclusive jurisdiction; as, that no other 
 court shall hold plea, etc. Hardr. 509; Bac. 
 Abr. "Courts" (D). 
 
 COGNIZEE. The party to whom a fine 
 was levied. 2 Bl. Comm. 351. 
 
 COGNIZOR. In old conveyancing. The 
 party levying a fine. 2 Bl. Comm. 350, 351. 
 
 COGNOMEN (Lat.) A family name. 
 
 The praenomen among the Romans distin- 
 guished the person, the nomen the gens, or 
 all the kindred descended from a- remote 
 common stock through males, while the cog- 
 nomen denoted the particular family. The 
 agnomen was added on account of some par- 
 ticular event, as a further distinction. Thus, 
 in the designation Publius Cornelius Sciplo 
 Africanus, Publius is the praenomen, Cor- 
 nelius is the nomen, Scipio the cognomen. 
 and Africanus the agnomen. Vicat. These 
 several terms occur frequently in the Roman 
 laws. See Cas. temp. Hardw. 286; 6 Coke, 
 65; 1 Tayl. (N. C.) 148. 
 
 COGNOVI ACTIONEM (Lat.) Hehascon- 
 
COHABIT 
 
 (165) 
 
 COLLATERAL KINSMEN 
 
 fessed the action. Cognovit alone is in com- 
 mon use With the same significance. 
 
 In Pleading. A -written confession of 
 
 an action by a defendant, subscribed, but not 
 sealed, and authorizing the plaintiff to sign 
 judgment and issue execution, usually for a 
 sum named. 
 
 It is given after the action is brought, to 
 save expense, and differs from a \farrant of 
 attorney, which is given before the com- 
 mencement of any action, and is under seal. 
 3 Chanc. Prac. 664; 3 Bouv. Inst. 3229. 
 
 COHABIT. (Lat. con and habere). To live 
 together in the same house, claiming to be 
 married. The word does not include 
 in its signification, necessarily, the oc- 
 cupying the same bed (1 Hagg. Con- 
 sist 144; 4 Paige, Ch. [N. Y.] 425; 
 116 TJ. S. 55), though the word is pop- 
 ularly, and sometimes in statutes, used in 
 this latter sense (20 Mo. 210; Bish. Mar. & 
 Div. § 506, note). It does not include mere 
 sexual intercourse, without a habitual dwell- 
 ing together. 36 Ark. 84; 10 Mass. 153. 
 
 To live together in the same house. Used 
 without reference to the relation of the par- 
 ties to each other as husband and wife, or 
 otherwise. Used of sisters or other members 
 of the same family, or of persons not mem- 
 bers of the same family, occupying the same 
 house. 2 Vern. 323; Bish. Mar. & Div. 506, 
 note. 
 
 COHAEREDES, orCOHAERES. Coheirs; 
 a term applied to coparceners who consti- 
 tute, as it were, but one heir or body. ' Brac- 
 ton, fols. 76b, 67b. 
 
 COHAEREDES UNA PERSONA CEN- 
 sentur, propter unitatem juris quod habent. 
 Coheirs are deemed as one person, on ac- 
 count of the unity of right which they pos- 
 sess. Co. Litt. 163. 
 
 COHUAGIUM. A tribute made by those 
 who meet promiscuously in a market or 
 fair. Du Cange. 
 
 COIF. A headdress. 
 
 In England there are certain Serjeants at 
 law who are called Serjeants of the coif, from 
 the lawn coif they wear on their heads un- 
 der their thin caps when they are admitted 
 to that order. It was anciently worn as a 
 distinguishing badge. Spelman. 
 
 COJUDICES (Lat.) In old English law. 
 Associate judges having equality of power 
 with others. 
 
 COLD-WATER ORDEAL. The trial which 
 was anciently used for the common sort of 
 people, who, having a cord tied about them 
 under their arms, were cast into a river. If 
 they sank to the bottom until they were 
 drawn up, which was in a very short time, 
 then were they held guiltless; but such as 
 did remain upon the water were held cul- 
 pable, being, as they said, of the water re- 
 jected. Wharton. 
 
 COLIBERTUS. One who, holding in free 
 socage, was obliged to do certain services for 
 
 the lord. A middle class of tenants between 
 servile and free, who held their freedom of 
 tenure on condition of performing certain 
 services. Said to be the same as the con- 
 ditionales. Cowell. 
 
 COLLATERAL (Lat. con, with, latus. the 
 side). That which is by the side, and not 
 the direct line; that which is additional to 
 or beyond a thing. 
 
 COLLATERAL ACT. In old practice. The 
 name "collateral act" was given to any act 
 (except the payment of money) for the per- 
 formance of which a bond, recognizance, etc., 
 was given as security. 
 
 COLLATERAL ANCESTORS. A phrase 
 sometimes used to designate uncles and 
 aunts, and other ascending collateral rela- 
 tives, who are not strictly ancestors. 
 
 COLLATERAL ASSURANCE. That which 
 is made over and above the deed itself. 
 
 COLLATERAL CONSANGUINITY. That 
 relationship which subsists between per- 
 sons who have the same ancestors, but not 
 the same descendants; who do not descend 
 one from the other. 2 Bl. Comm. 203. 
 
 The essential fact of consanguinity (com- 
 mon ancestral blood) is the same in pineal 
 and collateral consanguinity, but the re- 
 lationship is aside from the direct line. 
 Thus, father, son, and grandson are lineally 
 related; uncle and nephew, collaterally. 
 
 COLLATERAL DESCENT. Descent in a 
 transverse or zigzag line, i. c, up through 
 the common ancestor, and then down from 
 him; descent to collaterals. 
 
 COLLATERAL ESTOPPEL. The collat- 
 eral determination of a question by a court 
 having general jurisdiction of the subject. 
 See 26 Vt. 209. 
 
 COLLATERAL FACTS. Facts not direct- 
 ly connected with the issue or matter in 
 dispute. Such as afford no reasonable in- 
 ference as to the principal fact. Greenl. 
 
 Bv. § 52. 
 
 COLLATERAL IMPEACHMENT. A term 
 frequently used in respect of the conclu- 
 siveness of judgments, the general rule be- 
 ing that a judgment of a court of record 
 cannot be collaterally impeached, i. e., in 
 an action other than that in which it was 
 rendered, except upon proof of fraud or 
 want of jurisdiction. 
 
 COLLATERAL ISSUE. An issue taken 
 upon some matter aside from the general is- 
 sue in the case. Thus, for example, a plea 
 by the criminal that he is not the person at- 
 tainted, when an interval exists between at- 
 tainder and execution, a plea in abatement, 
 and other such pleas, each raise a collateral 
 issue. 4 BI. Comm. 396. And see 4 Bl. 
 Comm. 338. 
 
 COLLATERAL KINSMEN. Those who 
 descend from one and the same common an- 
 cestor, but not from one another. Thus, 
 
COLLATERAL LIMITATION 
 
 (166) 
 
 COLLEGIALITER 
 
 brothers and sisters are collateral to each 
 other; the uncle and nephew are collateral 
 kinsmen, and cousins are the same. All 
 kinsmen are either "lineal"- or "collateral." 
 
 COLLATERAL LIMITATION. A limita- 
 tion in the conveyance of an estate, giving 
 a'n interest for a specified period, but mak- 
 ing the right of enjoyment depend upon 
 some collateral event, as, an estate to A. 
 till B. shall go to Rome. Park, Dower,. 163 ; 
 4 Kent, Comm. 128; 1 Washb. Real Prop. 
 215. 
 
 COLLATERAL SECURITY. A separate 
 obligation attached to another contract to 
 guaranty its performance. The transfer of 
 property or of other contracts to insure the 
 performance of a principal engagement. 38 
 Ga. 292; 9 Iowa, 331. 
 
 The property or securities thus conveyed 
 are also called collateral securities. 1 Pow- 
 ell, Mortg. 393; 2 Powell, Mortg. 666, note 
 871; 3 Powell, Mortg. 944, 1001. 
 
 COLLATERAL WARRANTY. Warranty 
 as to an estate made by one who was an- 
 cestor to the heir thereof, either actually 
 or by implication of law, in respect to oth- 
 er property, but who could not have been 
 so in respect to the estate in question. 
 
 Warranty made where the heir's title to 
 the land neither was nor could have been 
 derived from the warranting ancestor. 
 Termes de la Ley; 2 Bl. Comm. 301; 4 Kent, 
 Comm. 469. 
 
 COLLATERALES ET SOCII. The former 
 title of masters in chancery. 
 
 COLLATIO BONORUM. A collation of 
 goods. See "Collation." 
 
 COLLATIO SIGNORUM. The ancient 
 mode of testing the genuineness of a seal, 
 by comparing it with another known to be 
 genuine. Bracton, fols. 389b, 398b; Fleta, 
 lib. 6, c. 34, § 5. 
 
 COLLATION. 
 
 In Civil Law. The bringing together 
 
 of property into a common fund; hotchpot. 
 2 Bl. Comm. 517. Particularly applied to 
 the supposed or real return to the mass of 
 the succession, which an heir makes of the 
 property he received in advance of his 
 share, or otherwise, in order that such prop- 
 erty may be divided together with the oth- 
 er effects of the succession. Civ. Code La. 
 art. 1305. 
 
 In Ecclesiastical Law. The act by 
 
 which the bishop who has the bestowing of 
 a benefice gives it to an incumbent. 
 
 In. Practice. The comparison of a 
 
 copy with its original, in order to ascertain 
 its correctness and conformity. The report 
 of the officer who made the comparison is 
 also called a collation. 
 
 COLLATION OF SEALS. When, upon the 
 same label, one seal was set on the back 
 or reverse of the other. Wharton. 
 
 COLLATION TO A BENEFICE (Law Lat. 
 collatio ieneflcii) . In English ecclesiastical 
 
 law. The conferring or bestowing of a ben-' 
 efice by the bishop, where he has himself 
 the advowson, or right of patronage, and 
 which single act of collation effects all that 
 is done in common case by the acts of pres- 
 entation and institution. 2 Bl. Comm. 22. 
 Or, in other words, the presentation and in- 
 stitution are one and the same act, and, 
 taken together, are called a "collation." 1 
 Bl. Comm. 391; 1 Wooddeson, Lect. 193. The 
 advowson, in such cases, is termed an "ad- 
 vowson collative." 2 Bl. Comm. 22. 
 
 COLLATIONE FACTA UNI POST MOR- 
 
 tem alterius. A writ directed to justices of 
 the common pleas, commanding them to Is- 
 sue their writ to the bishop, for the admis- 
 sion of a clerk in the place of another pre- 
 sented by the crown, where there had been 
 a demise of the crown during a suit; for 
 judgment once passed for the king's clerk, 
 and, he dying before admittance, the king 
 may bestow his presentation on another. 
 Reg. Grig. 31. 
 
 COLLATIONE HEREIVIITAGII. In old 
 
 English law. A writ whereby the king con- 
 ferred the keeping of an hermitage upon a 
 clerk. Reg. Grig. 303, 308. 
 
 COLLECTOR. Gne appointed to receive 
 taxes or other impositions, as, collector of 
 taxes, collector of militia fines, etc. A per- 
 son appointed by a private person to collect 
 the credits due him. 
 
 COLLECTOR OF THE CUSTOMS. An of- 
 ficer of the United States, appointed for the 
 term of four years, but removable at the 
 pleasure of the president. Act May 15, 1820, 
 § 1; 3 Story, U. S. Laws, 1790. 
 
 The duties of a collector of the customs 
 are to receive the entries of all ships or 
 vessels, and of the goods, wares, and mer- 
 chandise imported in them, estimate the 
 amount of duties payable thereupon, and 
 receive all moneys paid for duties. Act 
 March 2, 1779, § 21; 1 Story, U. S. Laws, 
 590. 
 
 COLLEGA. In the civil law. A colleague; 
 an associate; one having the same power 
 with another, qui sunt ejusdem potestatis. 
 Dig. 50. 16. 173. 
 
 COLLEGATARIUS (Lat.; Bng. colegato- 
 ry). In the civil law. A colegatee. Inst. 
 2. 20. 8. 
 
 COLLEGE. An organized collection or as- 
 semblage of persons; a civil corporation, so- 
 ciety, or company, having, in general, some 
 literary object. 
 
 The assemblage of the cardinals at Rome 
 is called a "college." The body of presiden- 
 tial electors is called the "electoral college," 
 although the whole body never come to- 
 gether. 
 
 An educational institution of the highest 
 class. 
 
 COLLEGIA. The guild of a trade. 
 
 COLLEGIALITER. In a corporate capac- 
 ity. 2 Kent, Comm. 296. 
 
COLLEGIATE CHURCH 
 
 (167) 
 
 COLOR 
 
 COLLEGIATE CHURCH. In English ec- 
 clesiastical law. A church built and en- 
 dowed for a society or body corporate of a 
 dean or other president, and secular priests, 
 as canons or prebendaries in the said church, 
 such as the churches of Westminster, Wind- 
 sor, and others. Cowell. 
 
 COLLEGIUM (Lat. colUycre, to collect). 
 In civil law. A society or assemblage of 
 those of the same rank or honor; an army; 
 a company, in popular phrase; the whole or- 
 der of bishops. Du Cange. 
 
 Collegium ilUcitum is one which abused 
 its right, or assembled for any other pur- 
 pose than that expressed in its charter. 
 
 Collegium licitum is an assemblage or so- 
 ciety of men united for some useful purpose 
 or business, with power to act like a single 
 individual. 
 
 All collegia were illicita which were not 
 ordained by a decree of the senate or of the 
 emperor. 2 Kent, Comm. 269. 
 
 COLLEGIUM ADMIRALITATIS. The col- 
 lege or society of the admiralty. See a de- 
 scription in Locc. de Jur. Mar. lib. 1, c. 2. 
 
 COLLEGIUM EST SOCIETAS PLURIUM 
 corporum simul habitantium. A college is 
 a society of several persons dwelling to- 
 gether. Jenk. Cent. Gas. 229. 
 
 COLLIGENDUM BONA DEFUNCTI. See 
 "Ad Colligendum, etc." 
 
 COLLISION. In maritime law. The act 
 of ships or vessels striking together, or of 
 one vessel running against or foul of an- 
 other. 
 
 As ordinarily used, it includes "allision" 
 (g. V.) 
 
 COLLISTRIGIUM. The pillory. 
 
 COLLITIGANT. A litigant. 
 
 COLLOBIUM. A hood or covering for 
 the shoulders, formerly worn by Serjeants at 
 law. Spelman. 
 
 COLLOCATION. In French law. The act 
 by which the creditors of an estate are ar- 
 ranged in the order in which they are to be 
 paid according to law. 
 
 The order in which the creditors are 
 placed is also called collocation. 2 Low. (U. 
 S.) 9, 139. 
 
 COLLOQUIUM. In actions for libel or 
 slander, the averment that the language 
 in question was published or uttered of and 
 concerning the plaintiff. It is, however, fre- 
 quently used in practice to denote both the 
 inducement (g. v.), and the colloquium prop- 
 er. Towns. Libel & Slander, § 323. 
 
 It is to be distinguished from "innuen- 
 do," which Is an explanation by reference 
 to that which has been already sufficiently 
 explained, and cannot extend the meaning 
 of words unless there be something before 
 averred, to which the innuendo may refer. 
 5 Johns. (N. Y.) 220. 
 
 COLLUSION. An agreement between two 
 or more persons to defraud a person of his 
 
 rights by the forms of law, or to obtain an 
 object forbidden by law. 
 
 The act of married persons in procuring 
 a divorce by mutual consent, whether by the 
 preconcerted commission, by one, of a matri- 
 monial offense, or by failure, in pursuance 
 of agreement, to defend divorce proceedings. 
 It is distinguished from "connivance," which 
 is the abetting by a spouse of a matrimonial 
 offense in order to procure a divorce there- 
 for, but without previous agreement as to its 
 commission. Nelson, Div. & Sep. § 500. 
 
 CO L LY B I ST A. In the civil law. A money 
 changer. 
 
 COLLYBUM. In the civil law. Exchange, 
 camiium. Grotius de Jure Belli, lib. 2, c. 
 12, § 3, par. 4. 
 
 COLNE, or CONE. In Saxon and old Eng- 
 lish law. An account or calculation. 1 
 Reeve, Hist. Eng. Law, 284, note. 
 
 COLONIAL LAWS. The laws of a colony. 
 
 In the United States. The term is 
 
 used to designate the body of law in force 
 in the colonies of America at the time of 
 the commencement of our independence, 
 which was, in general, the common law of 
 England, with such modifications as the 
 colonial experience had introduced. The 
 colonial law is thus a transition state, 
 through which our present law is derived 
 from the English common law. 
 
 In England. The term "colonial law" 
 
 is used with reference to the present colo- 
 nies of that realm. 
 
 COLONUS (Lat.) In civil law. A free- 
 man of inferior rank, corresponding with 
 the Saxon ceorl, and the German rural 
 
 slaves. 
 
 COLONY. A union of citizens or subjects 
 who have left their country to people an- 
 other, and remain subject to the mother- 
 country. 3 Wash. C. C. (U. S.) 287. 
 
 The country occupied by the colonists. 
 
 A colony differs from a possession or a 
 dependency. 
 
 COLOR. In pleading. An apparent but 
 legally insufficient ground of action admit- 
 ted to subsist in the opposite party by the 
 pleading of one of the parties to an action. 
 3 Sharswood, BI. Comm. 309; 4 Barn. & C. 
 547; 1 Moore & P. 307. To give color is 
 to give the plaintiff credit for having an 
 apparent or prima facie right of action, in- 
 dependent of the matter introduced to de- 
 stroy it, in order to introduce new matter 
 in avoidance of the declaration. It was nec- 
 essary that all pleadings in confession and 
 avoidance should give color. See 3 Shars- 
 wood, Bl. Comm. 309, note; 1 Chit. PI. 531. 
 
 Express color is a feigned matter, pleaded 
 by the defendant, from which the plaintiff 
 seems to have a good cause, whereas he has 
 in truth only an appearance or color of 
 cause. Bac. Abr. "Trespass" (14); 1 Chit. PI. 
 530. It was not allowed in the plaintiff to 
 traverse the colorable right thus given, and 
 it thus became necessary to answer the 
 
COLOR OF OFFICE 
 
 (Ifab) 
 
 UUMiiJlls li'Aun.-i.a 
 
 plea on which the defendant intended to 
 rely. 
 
 Implied color is that which arises from 
 the natilire of the defense, as where the de- 
 fense consists of matter of law, the facts be- 
 ing admitted, but their legal sufficiency de- 
 nied, by matters alleged in the plea. 1 
 Chit. PI. 528; Steph. PI. 206. 
 
 By giving color, the defendant could re- 
 move the decision of the case from before 
 a jury, and introduce matter in a special 
 plea, which would otherwise oblige him to 
 plead the general issue. 3 Bl. Comm. 309. 
 
 The colorable right must be plausible, or 
 afford a supposititious right, such as might 
 induce an unlearned person to imagine it 
 sufficient, and yet it must be in legal strict- 
 ness inadequate to defeat the defendant's 
 title as shown in the plea. Comyn, Dig. 
 "Pleading;" Keilw. 1036; 1 Chit. PI. 531; 
 4 Dane. Abr. 552; Archb. PI. 211. 
 
 COLOR OF OFFICE (Lat. colore officii). 
 A pretense of official right to do an act made 
 by one who has no such right. 9 Bast, 364. 
 It implies an illegal claim of authority to 
 do an act by virtue of one's office (23 Wend. 
 [N. Y.] 606; 1 N. Y. 365; 16 N. Y. 439, 442), 
 and is distinguished from by "virtue of of- 
 fice," implying lawful power (4 N. Y. 173). 
 
 COLOR OF TITLE. That which in ap- 
 pearance is title, but in reality is no title. 
 18 How. (U. S.) 50; 56 Mich. 337. 
 
 Anything in writing connected with the 
 title which serves to define the extent of 
 the claim. 70 Ga. 809. 
 
 A deed void on its face is not color 
 of title. 27 Minn. 449; 2 Pet. (U. S.) 
 241; 7 Wend. (N. Y.) 152. But see, con- 
 tra, 94 Ala. 135; 68 Iowa, 507. But de- 
 fects in the execution (112 N. C. 223; 27 
 III. 224), or lack of title in the • grantor 
 (53 N. Y. 287; 71 111. 38), will not impair 
 the effect of a deed to give color of title. 
 
 COLORABLE ALTERATION. An altera- 
 tion made only for the purpose of evading 
 the law, — of copyright, for instance. 
 
 , COLORABLE IMITATION. As applied to 
 trademark (g. v.), colorable imitation is 
 such a close or ingenious imitation as to 
 be calculated to deceive ordinary persons. 
 L. R. 5 H. L., at page 519. 
 
 COLORABLE PLEADING. The practice 
 of giving color in pleading. 3 Reeve, Hist. 
 Eng. Law, 438. 
 
 COLORE OFFICII. Color of office. 
 
 COLPINDACH. In old Scotch law. A 
 yoiing beast or cow, of the age of one or 
 two years; in later times called a "cow- 
 dach," or "quoyach." 
 
 Skene says it is an Irish word, and prop- 
 erly signifies "foot follower." 
 
 COM BARON ES. In old English law. Fel- 
 low barons; fellow citizens. The citizens 
 or freemen of the Cinque Ports, being an- 
 ciently called "barons;" the term "com- 
 barones" is used in this sense in a grant 
 
 of Henry III. to the barons of the port of 
 Fevresham. Cowell. 
 
 COMBAT. The form of a forcible en- 
 counter between two or more persons or 
 bodies of men; an engagement or battle; a 
 duel. 
 
 COMBATERRAE. A valley or piece of 
 low ground between two hills. Kennett, Par. 
 Ant. 
 
 COMBINATION. 
 
 In Criminal Law. A union of men for 
 
 the purpose of violating the law; a con- 
 spiracy (g. V.) 
 
 In Patent Law. A union of different 
 
 elements. A patent may be taken out for 
 a new combination of existing machines. 2 
 Mason (U. S.) 112. 
 
 COMBUSTIO. In old English law. The 
 punishment of burning. 
 
 COMBUSTIO DOMORUM. Arson. 4 Bf. 
 Comm. 272. 
 
 COMBUSTIO PECUNIAE (Law Lat.) In 
 old English law. The burning (that is, 
 melting) of money; the old way of trying 
 mixed and corrupt money, by melting it 
 down upon payments into the exchequer. 
 Cowell. 
 
 COMES (Lat. comes, a companion). An 
 earl; a companion, attendant, or follower. 
 
 CO M I N U S. Hand-to-hand ; in personal con- 
 tact. 
 
 COMITAS (Lat.) Courtesy; comity; an 
 indulgence or favor granted another nation, 
 as a mere matter of indulgence, without any 
 claim of right made. 
 
 COMITATU COMMISSO. A writ or com- 
 mission, whereby a sheriff is authorized to 
 enter upon the charges of a county. Reg. 
 Grig. 295. 
 
 COMITATU ET CASTRO COMMISSO. A 
 writ by which the charge of a county, to- 
 gether with the keeping of a castle, is com- 
 mitted to the sheriff. 
 
 COMITATUS (Lat. from comes). A county; 
 a shire; the portion of the country under 
 the government of a comes or count. 1 Bl. 
 Comm. 116. 
 
 An earldom. Earls and counts were orig- 
 inally the same as the comitates. 1 Ld. 
 Raym. 13. 
 
 The county court, of great dignity among 
 the Saxons. 1 Spenoe, Eq. Jur. 42, 66. 
 
 COMITES. Persons who are attached to 
 a public minister. As to their privileges, 
 see 1 Dall. (Pa.) 117; Baldw. (U. S.) 240. 
 See "Ambassador." 
 
 COMITES PALEYS. Counts or earls pala- 
 tine; those who had the government of a 
 county palatine. ' Bracton, fol. 122b. Other 
 copies of Bracton have it oomites palen- 
 tynes. 
 
COMITIA 
 
 (169) 
 
 COMMENDATIO 
 
 COMITIA (Lat.) The public assemblies of 
 the Roman people, at which all the most 
 important business of the state was trans- 
 acted, including, in some cases, even the 
 trial of persons charged with the commis- 
 sion of crime. Anthon, Rom. Ant. 51. The 
 votes of all citizens were equal in the comi- 
 tiae. 1 Kent, Comm. 518. 
 
 Comltia Calata. A session of the coiin- 
 
 tia curiata for the purposes of adrogation, 
 the confirmation of wills, and the adoption 
 by an heir of the sacred rites which fol- 
 lowed the inheritance. 
 
 Comitia Centuria, or Comitia Majora. 
 
 An assemblage of the people voting by cen- 
 turies. The people acting in this form elect- 
 ed their own officers, and exercised an ex- 
 tensive jurisdiction for the trial of crimes. 
 Anthon, Rom. Ant. 52. 
 
 Comitia Curiata. An assemblage of 
 
 the populus (the original burgesses) by 
 tribes. In these assemblies no one of the 
 pleis could vote. They were held for the 
 purpose of confirming matters acted on by 
 the senate, for electing certain high officers, 
 and for carrying out certain religious ob- 
 servances. 
 
 Comitia Tributa. Assemblies to create 
 
 certain inferior magistrates, elect priests, 
 make laws, and hold trials. Their power 
 was increased very materially subsequently 
 to their first creation, and the range of sub- 
 jects acted on became much more extensive 
 than at first. Anthon, Rom, Ant. 62; 1 
 Kent, Comm. 518. 
 
 COMITISSA. In old English law. A 
 countess; an earl's wife. Towns. PI. 149. 
 
 COIVIITIVA (Law Lat. from comes, q. v.) 
 In old English law. The dignity and of- 
 fice of a comes (count or earl) ; the same 
 with what was afterwards called comitatus. 
 Spelman. 
 
 Used in the Register, in the sense of 
 comitatus, a train, suite, following, attend- 
 ance, or household. Reg. Orig. 23, 24. 
 
 COMITY. Courtesy; a disposition to ac- 
 commodate. 
 
 Courts of justice in one state will, out of 
 comity, enforce the laws of another state, 
 when by such enforcement they will not 
 violate their own laws, or inflict an injury 
 on some one of their own citizens; as, for 
 example, the discharge of a debtor under 
 the insolvent laws of one state will be re- 
 spected in another state, where there is a 
 reciprocity in this respect. 
 
 COIVIMANDERY, or COIV1IVIANDRY (Lat. 
 praeceptoria) . In English law. An estab- 
 lishment belonging to the priory of St. John 
 of Jerusalem, consisting usually of a man- 
 or, or chief messuage, with lands and tene- 
 ments appertaining thereto, under the gov- 
 ernment of an officer called a "commander," 
 who received a part of the income thence 
 arising for his own use, and accounted for 
 the rest. Cowell; Termes de la Ley. 
 
 COMIMANDITAIRES. Special partners; 
 partners en commandite. See "Comman- 
 dite." 
 
 COMIVIANDITE. In French law. A part- 
 nership in which some furnish money, and 
 others furnish their skill and labor in place 
 of capital. A special or limited partner- 
 ship. 
 
 Those who embark capital in such a part- 
 nership are bound only to the extent of the 
 capital so invested. Guyot, Rep. Univ. 
 
 COMMANDIVIENT. 
 
 In- Practice. An act of authority, as 
 
 of a magistrate or judge, in committing a 
 person to prison. Cowell. 
 
 In Old Criminal Law. The act or of- 
 fense of one who commands another to 
 transgress the law, or do anything contrary 
 to law, as theft, murder, or the like. Brac- 
 ton, fols. 138, 139; Termes de la Ley; St. 
 Westminster I. c. 14. Particularly applied 
 to the act of an accessory before the fact, in 
 inciting, procuring, setting on, or stirring up 
 another to do the fact or act. 2 Inst. 128. 
 
 COMIVIARCHIO. A boundary, or border; 
 a common boundary. 
 
 COIVIIVIENDA. 
 
 In French Law. The delivery of a 
 
 benefice to one who cannot hold the legal 
 title, to keep and manage it for a time lim- 
 ited, and render an account of the proceeds. 
 Guyot, Rep. Univ. 
 
 In Mercantile Law. An association in 
 
 which the management of the property was 
 intrusted to individuals. Troubat, Lim. 
 Partn. c. 3, § 27. 
 
 COMMENDA EST FACULTAS RECIPi- 
 endi et retinendi beneficium contra jus posi- 
 tivum a suprema potestate. A commendam 
 is the power of receiving and retaining a 
 benefice contrary to positive law, by supreme 
 authority. Moore, 905. 
 
 COMMENDAM. 
 
 In Ecclesiastical Law. The appoint- 
 ment of a suitable clerk to hold a void or 
 vacant benefice or church living until a reg- 
 ular pastor be appointed. Hob. 144; Latch, 
 236. 
 
 In Louisiana. A species of limited 
 
 partnership. 
 
 It is formed by a contract, by which one 
 person or partnership agrees to furnish an- 
 other person or partnership a certain 
 amount, either in property or money, to be 
 employed by the person or partnership to 
 whom it is furnished, in his or their own 
 name or firm, on condition of receiving a 
 share in the profits in the proportion deter- 
 mined by the contract, and of being liable 
 to losses and expenses to the amount fur- 
 nished, and no more. Civ. Code La. art. 
 2810. A similar partnership exists In 
 Prance. Code de Comm. 26, 33; Slrey, 12, 
 pt. 2, p. 25. He who makes this contract 
 is called, in respect to those to whom he 
 makes the advance of capital, a partner 
 in commendam. Civ. Code La. art. 2811. 
 
 COMMENDATIO. In the civil law. Com- 
 mendation; praise; that recommendation of 
 his wares by a seller which does not bind 
 him as a warranty. 
 
COMMENDATION 
 
 (170) 
 
 COMMISSARY UUUKi 
 
 COMMENDATION. In feudal law. Com- 
 mendation was where an owner of land 
 placed himself and his land under the pro- 
 tection of a lord, so as to constitute him- 
 self his vassal or feudal tenant. Commen- 
 dation, and the grant of beneflcia or feuds, 
 were the two principal modes tiy which the 
 feudal system was established. See 1 Stubbs, 
 Const. Hist. 153. 
 
 COMMENDATORY. He who holds a 
 church living or preferment in commendam. 
 Rapalje & L. 
 
 COMMENDATORY LETTERS. Letters 
 written by one bishop to another on behalf 
 of any of the clergy, or others of his dio- 
 cese traveling thither, that they may be re- 
 ceived among the faithful, or that the clerk 
 may be promoted, or necessaries adminis- 
 tered to others, etc. Wharton. 
 
 COMMENDATUS. In feudal law. One 
 who, by voluntary homage, put himself un- 
 der the protection of a superior lord. Cow- 
 ell; Spelman. 
 
 COMMENDATORS. In ecclesiastical law. 
 Secular persons upon whom ecclesiastical 
 benefices are bestowed. So called because 
 they are commended and intrusted to their 
 oversight. They are merely trustees. 
 
 COMMERCE. The various agreements 
 which have for' their object facilitating the 
 exchange of the products of the earth or the 
 industry of man, with an intent to realize a 
 profit. Pardessus, Dr. Com. note 1. Any 
 reciprocal agreements between two persons, 
 by which one delivers to the other a thing, 
 which the latter accepts, and for which he 
 pays a consideration. If the consideration 
 be money, it is called a "sale;" if any other 
 thing than money, it is called "exchange" 
 or "barter." Domat, Dr. Pub. liv. 1, tit. 7, 
 § 1, note 2. 
 
 Congress has power, by the constitution, 
 to regulate commerce with foreign nations 
 and among the several states, and with the 
 Indian tribes. 1 Kent, Comm. 431; Story, 
 Const. § 1052 et seq. The sense in which 
 the word "commerce" is used in the consti- 
 tution seems not only to include trafiic, but 
 intercourse and navigation (Story, Const. § 
 1057; 9 Wheat. [U. S.] 190, 191, 215, 229; 
 12 Wheat. [U. S.] 419; 102 U. S. 691; 4 
 Biss. [U. S.] 156; 31 Iowa, 187), but only 
 such intercourse as consists in trade or traf- 
 fic (1 Stew. & P. [Ala.] 327). 
 
 COMMERCIA BELLI. Compacts entered 
 into by belligerent nations to secure a tem- 
 porary and limited peace. 1 Kent, Comm. 
 159. 
 
 Contracts made between citizens of hos- 
 tile nations in time of war. 1 Kent, Comm. 
 104. 
 
 COMMERCIAL LAW. A phrase employed 
 to denote those branches of the law which 
 relate to the rights of property and rela- 
 tions of persons engaged in commerce. 
 
 This term denotes more than the phrase 
 "maritime law," which is sometimes used 
 
 as synonymous, but which more strictly re- 
 lates to shipping and its incidents. See 
 "Law 'Merchant." 
 
 COMMERCIAL PAPER. Bills, notes,, 
 checks, etc.; negotiable instruments. 
 
 COMMERCIUM (Lat.) In the civil law. 
 Commerce; business; trade; dealings in the 
 way of purchase and sale; a contract. Dig 
 49. 15. 16. 
 
 The right to purchase or sell. Inst. 3 
 20. 2. 
 
 COMMERCIUM JURE GENTIUM COM 
 mune esse debet,, et non in monopolium et 
 privatum paucorum quaestum converten 
 dum. Commerce, by the law of nations, 
 ought to be common, and not to be con- 
 verted into a monopoly and the private gain 
 of a few. Coke, 3d Inst. 181, in marg. 
 
 COMMINALTY (Law Pr.) The common- 
 alty or the people. St. Westminster I. 1, pr. 
 
 COMMINATORIUM (from commonari, to 
 threaten). In old practice. A clause some- 
 times added at the end of writs, admonish- 
 ing the sheriff to be faithful in executing 
 them. Bracton, fol. 398. 
 
 COMMISE. In old French law. Forfeit- 
 ure; the forfeiture of a fief; the penalty 
 attached to the ingratitude of a vassal. 
 Guyot, Inst. Feud. c. 12. 
 
 COMMISSARIA LEX. A principle of the 
 Roman law relative to the forfeiture of con- 
 tracts. It was not unusual to restrict a 
 sale upon credit, by a clause in the agree- 
 ment that if the buyer should fail to make 
 due payment the seller might rescind the 
 sale. In the meantime, however, the prop- 
 erty was the buyer's, and at his risk. .A. 
 debtor and his pledgee might also agree 
 that, if the debtor did not pay at the day 
 fixed, the pledge should become the absolute 
 property of the creditor. 2 Kent, Comm. 
 583. This was abolished by law of Con- 
 stantine. Code, 8. 35. 3. 
 
 COMMISSARY. 
 
 In Military Law. An oflicer whose 
 
 principal duties are to supply an army, or 
 some portion thereof, with provisions. 
 
 In English Ecclesiastical Law. A title 
 
 formerly applied to an officer who exercised 
 spiritual jurisdiction in distant places of the 
 bishop's diocese; being specially ordained 
 for the purpose of supplying the bishop's 
 jurisdiction and oflfice in the outplaces of his 
 diocese, or else in such places as were pe- 
 culiar to the bishop, and exempted from the 
 jurisdiction of the archdeacon. Termes de la 
 Ley; Cowell; Lyndewode, Prov. c. 1. 
 
 COMMISSARY COURT. In Scotch law. 
 A court of general ecclesiastical jurisdic- 
 tion. It was held before four commission- 
 ers, appointed by the crown from among the 
 faculty of advocates. It had a double juris- 
 diction: First, that exercised within a cer- 
 tain district; second, another, universal, by 
 which it reviewed the sentences of Inferior 
 
COMMISSION 
 
 (171) 
 
 COMMISSION 
 
 commissioners, and confirmed the testa- 
 ments of those dying abroad, or dying in 
 the country without having an established 
 domicile. Bell, Diet. It has been abrogat- 
 ed, its jurisdiction in matters of confirma- 
 tion being given to the sheriff, and the ju- 
 risdiction as to marriage and divorce to the 
 court of session. Paterson, Comp. See 4 
 Geo. IV. c. 47; 1 Wm. IV. c. 69; 6 & 7 Wm. 
 IV. c. 41; 13 & 14 Vict. c. 36. 
 
 COMMISSION (Lat. comniiKxio; from oom- 
 mittere, to intrust to). 
 
 An undertaking without reward to do 
 something for another, with respect to a 
 thing bailed. Rutherforth, Inst. 105. 
 
 A body of persons authorized to act in a 
 certain matter. 5 Barn. & C. S50. 
 
 The act of perpetrating an offense. An 
 instrument issued by a court of justice, or 
 other competent tribunal, to authorize a per- 
 son to take depositions, or do any other act 
 by authority of such court or tribunal, is 
 called a "commission." For a form of a 
 commission to take depositions, see Gresl. 
 Eq. Ev. 72. 
 
 Letters patent granted by the government, 
 under the public seal, to a person appointed 
 to an office, giving him authority to perform 
 the duties of his oflice. The commission is 
 not the appointment, but only evidence of it, 
 and, as soon as it is signed and sealed, vests 
 the office in the appointee. 1 Cranch (U. 
 S.) 137; 2 Nott & McC. (S. C.) 357; 1 Mc- 
 Cord (S. C.) 233, 238. See 1 Pet. (U. S.) 
 1.94; 2 Sumn. (U. S.) 299; 8 Conn. 109; 1 
 Pa. St. 297; 2 Const. (S. C.) 696; 2 Tyler 
 (Vt) 235. 
 
 In Common Law. A sum allowed, 
 
 usually a certain per cent, upon the value of 
 the property involved, as compensation to a 
 servant or agent for services performed. 
 See "Commissions." 
 
 -Of Array. This commission issued to 
 
 send into every county officers to muster or 
 set in military order the inhabitants. The 
 introduction of commissions of lieutenancy, 
 which contained, in substance, the same 
 powers as these commissions, superseded 
 them. 2 Steph. Comm. (7th Ed.) 582. 
 
 Of Assize. In English practice. A 
 
 commission which formerly issued from the 
 king, appointing certain persons as commis- 
 sioners or judges of assize to hold the as- 
 sizes in association with discreet knights 
 during those years in which the justices in 
 eyre did not come. 
 
 Other commissions were added to this, 
 which has finally fallen into complete dis- 
 use. See "Courts of Assize and Nisi Pri- 
 us." 
 
 Of Bankrupt. A commission or au- 
 thority formerly granted by the lord chan- 
 cellor to such discreet persons as he should 
 think proper, to examine the bankrupt in all 
 matters relating to his trade and effects, and 
 to perform various other important duties 
 connected with bankruptcy matters. These 
 persons were thence called "commissioners 
 of bankruptcy," and had in most respects 
 the powers and privileges of judges in their 
 own courts; but regularly constituted courts 
 
 and judges in bankruptcy have now super- 
 seded such commissions and commissioners. 
 Brown. 
 
 Of Charitable Uses. This commission 
 
 issues out of chancery to the bishop and 
 others, where lands given to charitable uses 
 are misemployed, or there is any fraud or 
 dispute concerning them, to inquire of and 
 redress the same, etc. 43 Eliz. c. 4. Whar- 
 ton. 
 
 Of Delegates. When any sentence was 
 
 given in any ecclesiastical cause by the 
 archbishop, this commission, under the 
 great seal, was directed to certain persons, 
 usually lords, bishops, and judges of the law, 
 to sit and hear an appeal of the same to the 
 king, in the court of chancery; but latterly 
 the judicial committee of the privy council 
 has supplied the place of this commission. 
 Brown. 
 
 Of Lunacy. A writ issued out of chan- 
 cery, or such court as may have jurisdiction 
 of the case, directed to a proper officer, to in- 
 quire whether a person named therein is a 
 lunatic or not. 1 Bouv. Inst, note 382 et seq. 
 
 Of Partition. Formerly a partition was 
 
 fected in England by issuing a commission 
 to commissionefs, to divide the property, 
 and, on their return coming in, the parties 
 were ordered to execute mutual conveyances 
 to carry out the division. Haynes, Eq. 153. 
 Similar commissions are still issued in some 
 of the states. See "Partition." 
 
 Of Rebellion. In English law. A writ 
 
 formerly issued out of chancery to compel an 
 attendance. It was abolished by the order 
 of August 8, 1841. 
 
 Of Review. In English ecclesiastical 
 
 law. A commission formerly sometimes 
 granted in extraordinary cases, to revise the 
 sentence of the court of delegates. 3 Bl. 
 Comm. 67. Now out of use; the privy coun- 
 cil being substituted for the court of dele- 
 gates, as the great court of appeal in all ec- 
 clesiastical causes. 3 Steph. Comm. 432. 
 
 Of the Peace. In English law. A com- 
 mission from the crown, appointing certain 
 persons therein named, jointly and several- 
 ly, to keep the peace, etc. Justices of the 
 peace are always appointed by special com- 
 mission under the great seal, the form of 
 which was settled by all the judges, A. D. 
 1590, and continues with little alteration to 
 this day. 1 Bl. Comm. 351; 3 Steph. Comm. 
 39, 40. 
 
 Of Treaty with Foreign Princes. 
 
 Leagues and arrangements made between 
 states and kingdoms, by their ambassadors 
 and ministers, for the mutual advantage of 
 the kingdoms in alliance. Wharton. 
 
 Of Unlivery. In an action in the Eng- 
 lish admiralty division, where it is necessary 
 to have the cargo in a ship unladen in order 
 to have it appraised, a commission of unliv- 
 ery is issued and executed by the marshal. 
 Williams & B. Adm. Jur. 233. 
 
 To Take Answers in Equity. When a 
 
 defendant in a suit lived more than twenty 
 miles from London, there might have been a 
 commission granted to take his answer in 
 the country, where the commissioners ad- 
 ministered to him the usual oath, and then 
 
COMMISSION DAY 
 
 (172) 
 
 COMMODATO 
 
 the answer being sealed up, either one of the 
 commissioners carried it up to court or it 
 was sent by a messenger, who swore that 
 he received it from one of the commission- 
 ers, and that the same had not been opened 
 or altered since he received it. But latterly 
 such an answer might be sworn in the coun- 
 try before any solicitor of the court who has 
 been appointed a ^commissioner to adminis- 
 ter oaths in chancery. The present answer 
 in chancery, and at common law, is a mere 
 affidavit, and is not a pleading. It is sworn 
 anywhere before a solicitor who is a com- 
 missioner to administer oaths. Brown. 
 
 COMMISSION DAY. In English practice. 
 The opening day of the assizes. Wharton. 
 
 COMMISSION MERCHANT. A factor 
 
 {g- V.) 
 
 COMMISSION DEL CREDERE. See "Del 
 Credere Commission." 
 
 COMMISSIONER OF PATENTS. The 
 
 title given by law to the head of the patent 
 office bureau. 
 
 COMMISSIONERS OF BAIL. Officers ap- 
 pointed by some courts to take recognizances 
 of bail in civil cases. 
 
 COMMISSIONERS OF BANKRUPT. In 
 
 English law. Commissioners appointed un- 
 der the great seal, and whose duties are to 
 take proof of the petitioning creditor's debt, 
 the trading and act of bankruptcy, to ex- 
 amine the bankrupt in all matters relating 
 to his trade and effects, assign his property 
 to assignees, and to perform various other 
 important duties connected with bankrupt- 
 cy matters. 1 Bl. Comm. 480-486; Eden, 
 Bankr. Law, 79, et passim. 
 
 These commissioners now compose per- 
 manent courts of bankruptcy. St. 1 & 2 Wm. 
 IV. c. 56; 5 & 6 Wm. IV. c. 29, § 21; 5 & 6 
 Vict. c. 122; 2 Steph. Comm. 199, 200; 3 
 Steph. Comm. 425, 426. 
 
 COMMISSIONERS OF HIGHWAYS. Offi- 
 cers having certain powers and duties con- 
 cerning the highways within the limits of 
 their jurisdiction. They are usually three 
 in number. In some of the states they are 
 county officers, and their jurisdiction is co- 
 extensive with the county. In others, as i;i 
 New York, Michigan, Illinois, and Wiscon- 
 sin, they are town or township officers. 
 They have power to establish, alter, and va- 
 cate highways, and it is their duty to cause 
 them to be kept in repair. 
 
 COMMISSIONERS OF SEWERS. 
 
 In English Law. A court of record of 
 
 special jurisdiction in England. 
 
 It is a temporary tribunal, erected by vir- 
 tue of a commission under the great seal, 
 which formerly was granted pro re nata at 
 the pleasure of the crown, but now at the 
 discretion and nomination of the lord chan- 
 cellor, lord treasurer, and chief justices, 
 pursuant to the statute of sewers. 23 Hen. 
 VIII. c. 5. Its jurisdiction is to overlook 
 the repairs of the banks and walls of the 
 seacoast and navigable rivers and the 
 
 streams communicating therewith, and is 
 confined to Such county or particular dis- 
 trict as the commission shall expressly 
 name. The commissioners may take order 
 for the removal of any annoyances, or the 
 safeguard and conservation of the sewers 
 within their commission, either according to 
 the laws and customs of Romney Marsh, or 
 otherwise, at their own discretion. They 
 are also to assess and collect taxes for such 
 repairs and for the expenses of the commis- 
 sion. They may proceed with the aid of 
 a jury or upon their own view. Consult 7 
 Anne, c. 10; 4 & 5 Vict. c. 45; 11 & 12 Vict, 
 c. 50; 18 & 19 Vict. c. 120; 3 & 4 Wm. IV. 
 cc. 10, 19-22; 3 Bl. Comm. 73, 74; Crabb, 
 Hist. Eng. Law, 469. 
 
 In American Law. Commissioners 
 
 have been appointed for the purpose of reg- 
 ulating the flow of water in streams. Their 
 duties are discharged in the different states 
 by county courts, county commissioners, etc. 
 
 COMMISSIONS. In practice. Compensa- 
 tion allowed to agents, factors, executors, 
 trustees, receivers, and other persons who 
 manage the affairs of others, in recompense 
 for their services. 
 
 COMMITMENT. In practice. The war- 
 rant or order by which a court or magis- 
 trate directs a ministerial officer to take a 
 person to prison. See 1 Mete. (Mass.) 504. 
 
 The act of sending a person to prison by 
 means of such a warrant or order. 9 N. H. 
 204. 
 
 COMMITTEE. A person or body of per- 
 sons to whom a matter is committed for su- 
 perintendence, action, or recommendation. 
 
 In Legislation. One or more mem- 
 bers of a legislative body, to whom is spe- 
 cially referred some matter before that 
 body, in order that they may Investigate and 
 examine into it, and report to those who 
 delegated this authority to them. 
 
 In Practice. A guardian appointed to 
 
 take charge of the person or estate of one 
 who has been found to be non compos. 
 
 COMMITTITUR PIECE. In English law. 
 An instrument in writing, on paper or parch- 
 ment, which charges a person already in 
 prison, in execution at the suit of the per- 
 son who arrested him. 
 
 COM Ml XT ION. In civil law. A term used 
 to signify the act by which goods are mixed 
 together. 
 
 The commixtion of liquids is called "con- 
 fusion" (g. v.), and that of solids a "mix- 
 ture." Lee. Elm. §§ 370, 371; Story, Bailm. 
 § 40; 1 Bouv. Inst, note 506. 
 
 COMMODATE. In Scotch law. A loan 
 for use. Ersk! Inst. bk. 3, tit. 1, § 20; 1 
 Bell, Comm. 225. 
 
 COMMODATI ACTIO (Lat.) See "Actio 
 Commodatio," etc. 
 
 COMMODATO. In Spanish law. A con- 
 tract by which one person lends gratuitous- 
 ly to another some object not consumable, 
 to be restored to him in kind at a given 
 period. 
 
COMMODATUM 
 
 (173) 
 
 COMMON BARRETOR 
 
 COMMODATUM. A species of bailment, 
 by which one of the parties binds himself to 
 return to the other certain personal chattels 
 which the latter delivers to him to be used 
 by him without reward; loan for use. Story, 
 Bailm. § 221. See "Bailment." 
 
 COMMODUM EX INJURIA SUA NON 
 habere debet. No man ought to derive any 
 benefit of his own wrong. Jenk. Cent. Cas. 
 161; Finch, Law, bk. 1, c. 3, note 62. 
 
 COMMON. As an adjective, — owned by 
 several; usual; habitual. As a noun, — an in- 
 corporeal hereditament, which consists in 
 a profit which one man has in connection 
 with one or more others in the land of an- 
 other. 12 Serg. & R. (Pa.) 32; 10 Wend. 
 (N. Y.) 647; 11 Johns. (N. Y.) 498; 16 
 Johns. (N. Y.) 14, 30; 10 Pick. (Mass.) 364; 
 
 3 Kent, Comm. 403. 
 
 Common of Estovers. The liberty of 
 
 taking necessary wood, for the use of furni- 
 ture of a house or farm, from another man's 
 estate. This right is inseparably attached 
 to the house or farm, and is not apportion- 
 able. If, therefore, a farm entitled to es- 
 tovers be divided by the act of the party 
 among several tenants, neither of them can 
 take estovers, and the right is extinguished. 
 2 Bl. Comm. 34; Plowd. 381; 10 Wend. (N. 
 Y.) 639; 1 Barb. (N. Y.) 592, It is to be 
 distinguished from the right to estovers 
 which a tenant for life has in the estate 
 which he occupies. See "Estovers." 
 
 Common of Pasture. The right of feed- 
 ing one's beasts on another's land. It is 
 either appendant, appurtenant because of 
 vicinage, or in gross. 
 
 Common of Piscary. The liberty of 
 
 fishing in another man's water. 2 Bl. Comm. 
 34. See "Fishery." 
 
 Common of Shack. The right of per- 
 sons occupying lands lying together in the 
 same common field to turn out their cattle 
 after harvest to feed promiscuously in that 
 field. Wharton; 2 Steph. Comm. 6; 1 Barn. 
 & Aid. 710. 
 
 Common of Turbary. The liberty of 
 
 digging turf in another man's ground. Com- 
 mon of turbary can only be appendant or 
 appurtenant to a house, not to lands, be- 
 cause turves are to be spent in the house. 
 
 4 Coke, 37; 3 Atk. 189; Nov. 145; 7 East, 127. 
 Common Appendant. A right annexed 
 
 to the possession of land, by which the owner 
 thereof is entitled to feed his beasts on the 
 wastes of the manor. It can only be claimed 
 by prescription, so that it cannot be pleaded 
 by way of custom. 1 Rolle, Abr. 396; 6 
 Coke, 59. 
 
 Common Appurtenant. This differs 
 
 from common appendant in the following par- 
 ticulars, viz. : It may be claimed by grant or 
 prescription, whereas common appendant 
 can only arise from prescription; it does not 
 arise from any connection of tenure, nor is 
 it confined to arable land, but may be 
 claimed as annexed to any kind of land; it 
 may be not only for beasts usually com- 
 monable, such as horses, oxen, and sheep, 
 but likewise for goats, swine, etc. ; it may be 
 severed from the land to which It is appur- 
 
 tenant; it may be commenced by grant; and 
 an uninterrupted usage for twenty years is 
 evidence of a grant. In most other respects, 
 commons appendant and appurtenant agree. 
 2 Greenl. Cruise, Dig. 5; Bouv. Inst, note 
 1650; 30 Eng. Law & Eq. 176; 15 East, 108. 
 
 Common Because of Vicinage. The 
 
 right which the inhabitants of two or more 
 contiguous townships or villas have of inter- 
 commoning with each other. It ought to be 
 claimed by prescription, and can only be 
 used by cattle levant and couchant upon the 
 lands to which the right is annexed, and 
 cannot exist except between adjoining town- 
 ships, where there is no intermediate land. 
 Co. Litt. 122a; 4 Coke, 38a; 7 Coke, 5; 10 
 Q. B. 581, 589, 604; 19 Q. B. 620; 18 Barb. 
 (N. Y.) 523. 
 
 It is, indeed, only a permissive right, in- 
 tended to excuse what, in strictness, is a 
 trespass in both, and to prevent a multiplic- 
 ity of suits, and therefore either township 
 may inclose and bar out the other, though 
 they have intercommoned time out of mind. 
 2 Bl. Comm. 33; Co. Litt. 12a; Bracton, fol. 
 222. 
 
 Dr. Wooddeson observes that Blackstone's 
 account of common pvr cause de vicinage is 
 not properly a definition, but rather a de- 
 scriptive example or illustration, there be- 
 ing other occasions when the excuse for 
 trespass may be used. 2 Wooddeson, Lect. 50. 
 
 Common in Gross. A right of common 
 
 which must be claimed by deed or prescrip- 
 tion. It has no relation to land, but is an- 
 nexed to a man's person, and may be for 
 a certain or an indefinite number of cattle. 
 It cannot be aliened so as to give the en- 
 tire right to several persons to be enjoyed 
 by each in severalty. And where it comes 
 to several persons by operation of law, as 
 by descents, it is incapable of division 
 among them, and must be enjoyed jointly. 
 Common appurtenant for a limited number 
 of cattle may be granted over, and by such 
 grant becomes common in gross. Co. Litt. 
 122a, 164a; 5 Taunt. 244; 16 Johns. (N. Y.) 
 30; 2 Bl. Comm. 34. 
 
 See, generaly, Viner, Abr.; Bac. Abr.; 
 Comyn, Dig.; 2 Sharswood, Bl. Comm. 34 et 
 seq.; 2 Washb. Real Prop. 4. 
 
 COMMON ASSURANCES. Deeds which 
 make safe or assure to a man the title to 
 his estate, whether they are deeds of con- 
 veyance, or to charge or discharge. 
 
 COMMON BAIL. Fictitious sureties en- 
 tered in the proper office of the court. See 
 "Bail." 
 
 COMMON BAR. In pleading. A plea to 
 compel the plaintiff to assign the particular 
 place where the trespass has been commit- 
 ted. Steph. PI. 256. It is sometimes called 
 a "blank bar." 
 
 COMMON BARRATRY. See "Barratry." 
 
 COMMON BARRETOR. In criminal law. 
 One who frequently excites and stirs up 
 suits and quarrels, either at law or other- 
 wise. See "Barratry." 
 
COMMON BENCH 
 
 (174) 
 
 COMMON LAW 
 
 COMMON BENCH. The ancient name for 
 the court of common pleas. 
 
 COMMON CARRIERS. Such as carry 
 goods for hire indifferently for all persons. 
 
 The definition includes carriers by land 
 and water. 
 
 One who plies between certain termini, 
 and openly professes to carry for hire the 
 goods of all such persons as may choose to 
 employ him. Redf. Carr. 1. 
 
 One undertaking to carry for hire the 
 goods of all persons indifferently. 3 Wend. 
 (N. Y.) 161; 22 N. J. Law, 372. 
 
 "The test [of whether one is a common 
 carrier] is not whether he is carrying as a 
 public employment, or whether he carries 
 to a fixed place, but whether he holds out, 
 either expressly or by a course of conduct, 
 that he will carry for hire, so long as he 
 has room, the goods of all persons, indif- 
 ferently, who send him goods to be carried." 
 L. R. ] C. P. 19, 423. 
 
 Common Carriers of Passengers. Such 
 
 as carry persons for hire, and are bound to 
 carry all who offer. 19 Wend. (N. Y.) 239; 
 10 N. H. 486; 15 111. 472; 2 Sumn. (U. S.) 
 221; 3 Brod. & B. 54; 9 Price, 408. 
 
 COMMON CHASE (Law Pr. oomon chace). 
 In old English law. A place where the right 
 of hunting wild animals (.touts beasts chace- 
 ables) was common to all (a toutzgents) . 
 Y. B. P. 10 Edw. III. 28. 
 
 COMMON COUNCIL. The more numerous 
 house of the municipal legislative assembly 
 in some American cities. 
 
 The English parliament is the common 
 council of the whole realm. 
 
 COMMON COUNTS. Certain general 
 counts, not founded on any special contract, 
 which are introduced in a declaration for 
 the purpose of preventing a defeat of a just 
 right by the accidental variance of the evi- 
 dence. 
 
 These are, In an action of assumpsit, 
 counts founded on express or implied prom- 
 ises to pay money in consideration of a 
 precedent debt, and are of four descriptions, 
 — the indebitatus assumpsit, the quantum 
 meruit, the quantum, valebant, and the ac- 
 count stated. 
 
 COMMON DAY (Law Lat. dies communis). 
 In old English practice. An ordinary day 
 in court (St. 13 Rich. II. St. 1, c. 17), such 
 as octabis Michaelis (the octave of St. 
 Michael), quindena Paschae (the quinzlme of 
 Easter), etc. (St. 51 Hen. III. sts. 2, 3; 
 Cowell; Termes de la Ley). 
 
 COMMON DEBTOR. In Scotch law. A 
 debtor whose effects have been arrested by 
 several creditors. In regard to these cred- 
 itors, he is their common debtor, and by 
 this term is distinguished in the proceed- 
 ings that take place in the competitioh. 
 Bell, Diet. 
 
 COMMON DRUNKARD. See "Drunkard." 
 
 COMMON ERROR (Lat. communis error). 
 
 An error for which there are many prec- 
 edents. "Common error goeth for a law." 
 Finch, Law, bk. 1, c. 3, No. 54. 
 
 COMMON FINE (Law Lat. ^rais communis). 
 In old English law. A certain sum of mon- 
 ey which the residents in a leet paid to the 
 lord of the leet, otherwise called head silver, 
 cert money (q. v.), or certum letae. Termes 
 de la Ley; Cowell. A sum of money paid 
 by the inhabitants of a manor to their lord, 
 towards the charge of holding a court leet. 
 Bailey. See "Leet." 
 
 A fine or amercement imposed upon a 
 county at large. Bracton, fol. 36b; St. West- 
 minster I. c. 18; Pleta, lib. 3, c. 14, § 9; 
 2 Inst. 197. 
 
 COMMON FISHERY. A fishery to which 
 all persons have a right, such as the cod 
 fisheries off Newfoundland. A "common fish- 
 ery" is different from a "common of fish- 
 ery,'*" which is the right to fish in another's 
 pond, pool, or river. See "Fishery." 
 
 COMMON HALL. A court in the city of 
 London, at which all the citizens, or such 
 as are free of the city, have a right to at- 
 tend. Wharton. 
 
 COMMON HIGHWAY. By this term is 
 meant a road to be used by the comlnunlty 
 at large for any purpose of transit or traffic. 
 Hammond, N. P. 239. See "Highway." 
 
 COMMON INFORMER. One who, without 
 being specially required by law or by vir- 
 tue of his office, gives information of crimes, 
 offenses, or misdemeanors which have been 
 committed, in order to prosecute the offend- 
 er; a prosecutor. 
 
 COMMON INTENT. (The natural sense 
 given to words. 
 
 It is the rule that when words are used 
 which will bear a natural sense and an arti- 
 ficial one, or one to be made out by argu- 
 ment and inference, the natural sense shall 
 prevail. It is simply a rule of construction, 
 and not of addition. Common Intent cannot 
 add to a sentence words which have been 
 omitted. 2 H. Bl. 530. In pleading, cer- 
 tainty is required; but certainty to a com- 
 mon intent is sufficient, — that is, what, up- 
 on a reasonable construction, may be called 
 certain, without recurring to possible facts. 
 Co. Litt. 203a; Doug. 163. See "Certainty." 
 
 COMMON JURY. An ordinary petit jury, 
 as distinguished from a special or struck 
 jury. 
 
 COMMON LAW. That system of law or 
 form of the science of jurisprudence which 
 has prevailed in England and in the United 
 States of America, in contradistinction to 
 other great systems, such as the Roman or 
 civil law. 
 
 As distinguished from statute law, those 
 principles, usages, and rules of action ap- 
 plicable to the government and security of 
 persons and of property, which do not rest 
 for their authority upon any express and 
 
COMMON-LAW, ETC. 
 
 (17S) 
 
 COMMONALTY 
 
 positive declaration of the will of the legis- 
 lature. 1 Kent, Comm. 492. 
 
 The body of rules and remedies adminis- 
 tered by courts of law, technically so called, 
 in contradistinction to those of equity, and 
 to the canon law. 3 Pet. (U. S.) 446. 
 
 The law of any country, to denote that 
 which is common to the whole country, in 
 contradistinction to laws and customs of lo- 
 cal application. 
 
 As used in the United States, it includes 
 both the unwritten law of England and the 
 statutes passed before the settlement of the 
 United States. 5 Pet. (U. S.) 241; 18 Wis. 
 147. 
 
 The common law is not iixed in its scope, 
 but develops new principles by analogy as 
 new conditions arise. 42 Ala. 597. 
 
 COMMON-LAW PROCEDURE ACTS. 
 
 Three acts of parliament, passed in the 
 years 1852, 1854, and 1860, respectively, for 
 the amendment of the procedure in the com- 
 mon-law courts. The common-law procedure 
 act of 1852 is St. 15 & 16 Vict. c. 76, that of 
 1854, St. 17 & 18 Vict. c. 125, and that of 
 1860, St. 23 & 24 Vict. c. 126. Mozley & W. 
 
 COMMON LAWYER. A lawyer learned 
 in the common law. 
 
 COMMON LEARNING. Familiar law or 
 doctrine. Dyer, 27b, 33. 
 
 COMMON NUISANCE. One which affects 
 the public in general, and not merely some 
 particular person. 1 Hawk. P. C. 197. See 
 "Nuisance." 
 
 COMMON OPINION IS GOOD AUTHOR- 
 ity in- law. Co. Lift. 186a; 3 Barb. Ch. (N. 
 Y.) 528, 577. 
 
 COMMON PLEAS. The name of a court 
 having jurisdiction generally of civil ac- 
 tions. 
 
 Such pleas or actions as are brought by 
 private persons against private persons, or 
 by the government, when the cause of action 
 is of a civil nature. In England, whence 
 we derived this phrase, common pleas are 
 so called to distinguish them from pleas of 
 the crown. . 
 
 COMMON RECOVERY. A judgment re- 
 covered in a fictitious suit, brought against 
 the tenant of the freehold, in consequence 
 of a default made by the person who is last 
 vouched to warranty in the suit, which re- 
 covery, being a supposed adjudication of the 
 right, binds all persons, and vests a free 
 and absolute fee simple in the recoveror. 
 
 A common recovery is a kind of convey- 
 ance, and is resorted to when the object is 
 to create an absolute bar of estates tail, and 
 of the remainders and reversions expectant 
 on the determination of such estates. 2 Bl. 
 Comm. 357. Though it has been used in 
 some of the stages, this form of conveyance 
 is nearly obsolete, easier and less expensive 
 modes of making conveyances, which have 
 the same effect, having been substituted. 2 
 Bouv. Inst, notes 2092, 2096; 7 N. H. 9; 9 
 HorB * B r Pa. t 390; 2 Rawle (Pa.) 168; 
 
 4 Yeates (Pa.) 413; 1 Whart. (Pa.) 151; 6 
 Mass. 328. 
 
 COMMON SANS NOMBRE. Common with- 
 out number, that is, without limit as to the 
 number of cattle which may be turned on; 
 otherwise called "common without stint." 
 Bracton, fols. 53b, 222b; 2 Steph. Comm. 6, 
 7; 2 Bl. Comm. 34; 3 Bl. Comm. 238; 1 
 Crabb, Real Prop. 269. 
 
 COMMON SCHOOLS. Schools for gen- 
 eral elementary instruction, free to all the 
 public. 2 Kent, Comm. 195-202. 
 
 COMMON SCOLD. One who, by the prac- 
 tice of frequent scolding, disturbs the neigh- 
 borhood. Bish. Crim. Law, § 147. 
 
 The offense of being a common scold is 
 cognizable at common law. It Is a particu- 
 lar form of nuisance, and was punishable 
 by the ducking stool at common law, in 
 place of which punishment fine and impris- 
 onment are substituted in the United States. 
 12 Serg. & R. (Pa.) 220; 3 Cranch, C. C. 
 (U. S.) 620. See 1 Term R. 748; 6 Mod. 11; 
 4 Rog. (N. Y.) 90; 1 Russ. Crimes, 302; 
 Rose. Crim. Ev. 665. 
 
 COMMON SEAL. The seal of a corpora- 
 tion. 
 
 It was an ancient and technical rule of 
 the common law that a corporation could 
 not manifest its intentions by any personal 
 act or oral discourse, and that it spoke and 
 acted only by its common seal. 4 Kent, 
 Comm. 288. This is said to be no longer 
 law in the United States. 7 Cranch (U. S.) 
 299; 9 Paige, Ch. (N. Y.) 188; 21 Vt. 343; 
 21 Miss. 408; 1 Smith (Ind.) 98; 6 Ga. 166; 
 2 Kent, Comm; 289. 
 
 COMMON SERJEANT. A judicial officer 
 of the city of London, who aids the recorder 
 in disposing of the criminal business of the 
 Old Bailey Sessions. Holthouse. 
 
 COMMON, TENANTS IN. See "Tenant." 
 
 COMMON TRAVERSE. See "Traverse." 
 
 • COMMON VOUCHEE. In common recov- 
 eries, the person who is vouched to war- 
 ranty. In this fictitious proceeding, the cri- 
 er of the court usually performs the office 
 of a common vouchee. 2 Bl. Comm. 358; 2 
 Bouv. Inst, note 2093. 
 
 COMMON WEAL. The public good. 
 
 COMMONABLE. Entitled to common. 
 Commonable beasts are either beasts of the 
 plow, as horses and oxen, or such as manure 
 the land, as kine and sheep. Beasts not 
 commonable are swine, goats, and the like. 
 Co. Litt. 122a; 2 Bl. Comm. 33. 
 
 COMMON AG E. In old conveyancing. The 
 right o'f common. See "Common." 
 
 COMMONALTY. The common people of 
 England, as distinguished from the king and 
 nobles. 
 
 The bojiy of a society or corporation, as 
 
COMMONANCE 
 
 (176) 
 
 COMMUNIBUS ANNIS 
 
 distinguished from the officers. 1 Per. & 
 D. 243. ,' Charters of incorporation of the 
 various tradesmen's societies, etc., in Eng- 
 land are usually granted to the master, war- 
 dens, and commonalty of such corporation. 
 
 COMMONANCE, or COMMUNANCE. The 
 commoners, or tenants and inhabitants, Who 
 have the right of common or commoning in 
 open field. Cowell. 
 
 COMMONER. One possessing a right of 
 common. 
 
 COMMONS. Those subjects of the Eng- 
 lish nation who are not noblemen. They 
 are represented in parliament by the house 
 of commons. 
 
 COM MONTY. In Scotch law. Land pos- 
 sessed in common by different proprietors, 
 or by those having acquired rights of servi- 
 tude. Bell, Diet; 36 Eng. Law & Eq. 20. 
 
 COMMONWEALTH. A free state or re- 
 public having a republican form of govern- 
 ment. 
 
 The English nation during the time of 
 Cromwell was called a commonwealth. It 
 is the legal title of the states of Kentucky, 
 Massachusetts, Pennsylvania, and yirginla. 
 
 Used sometimes as denoting the public; 
 the common welfare of the people. 
 
 COMMORANCY. The dwelling in any 
 place as an inhabitant, which consists in 
 usually lying there. 4 Bl. Comm. 273. In 
 American law it Is used to denote a mere 
 temporary residence. 19 Pick. (Mass.) 247, 
 248. 
 
 COMMORANT. One residing in a par- 
 ticular town, city, or district. Barnes, 162. 
 
 COMMORIENTES. Those who perish at 
 the same time in consequence of the same 
 calamity. 
 
 COMMORTH, or COMORTH. A contri- 
 bution which was gathered at marriages, and 
 when young priests said or sung the first 
 masses. Prohibited by 26 Hen. VIII.' c. 6. 
 Cowell. 
 
 COMMOTE (Law Lat. conimotuni, from 
 Brit, cymiocl; cym. together, &o(Z, being or 
 dwelling; or from cicmmwd, a province). 
 Half a cantred or hundred in Wales, con- 
 taining, properly, fifty villages. St. Walliae, 
 12 Edw. I. 21 Hen. VIII. c. 26. Spelman, 
 voc. "Commotum." The fourth part of a 
 hundred, according to Mr. Barrington, who 
 cites Girald. Camb. c. 2. Barr. Obs. St. 125, 
 note (h). 
 
 A great seigniory or lordship, including 
 one or more manors. Co. Litt. 5a. Part of 
 a seigniory. Thel. Dig. lib. 8, c. 2, § 18. 
 
 COMMUNE. A self-governing town or vil- 
 lage. The name given to the committee of 
 the people in the French revolution of 1793; 
 and again, in the revolutionary uprising of 
 1871, it signified the attempt to establish ab- 
 solute self-government in Paris, or the mass 
 of those concerned in the attempt. In old 
 
 French law, it signified any municipal cor- 
 poration; and in old English law, the com- 
 monalty or common people. 
 
 COMMUNE CONCILIUM REGNI. The 
 
 common council of the realm. One of the 
 names of the English parliament. 
 
 COMMUNE FORUM. The common place 
 of justice; the seat of the principal courts, 
 especially those that are fixed. 7 Bell, App. 
 Gas. 169. 
 
 COMMUNE PLACITUM. In old English 
 law. A common plea or civil action, such 
 as an action of debt. Fleta; lib. 2, c. 61, 
 § 18. 
 
 COMMUNE VINCULUM. A common or 
 mutual bond. Applied to the common stock 
 of consanguinity, and to the feodal bond of 
 fealty, as the common bond of union be- 
 tween lord and tenant. 2 Bl. Comm. 250; 
 3 Bl. Comm. 230. 
 
 COMMUNI CUSTODIA. An obsolete writ 
 which anciently lay for the lord, whose ten- 
 ant, holding by knight's service, died, and 
 left his eldest son under age, against a 
 stranger that entered the land, and obtained 
 the ward of the body. Reg. Grig. 161. 
 
 COMMUNI DIVIDENDO. In civil law. An 
 action which lies for those who have prop- 
 erty in common, to procure a division. It lies 
 where parties hold land in common, but not 
 in partnership. Calv. Lex. 
 
 COM MUNI A. In old English law. Com- 
 mon. Bracton, fol. 222. * 
 
 Common things (res communes), such as 
 running water, the air, the sea, etc. Id. 7b. 
 
 COMMUNIA, or COMMUNIAE (Lat.) In 
 old European law. Communities. Towns en- 
 franchised by the crown, in most of the feu- 
 dal kingdoms of Europe, about the twelfth 
 century, and formed into free corporations, 
 by what were termed "charters of communi- 
 ty." 1 Robertson, Hist. Charles V. 24-29, and 
 notes in Appendix. 
 
 COMMUNIA PLACITA. Actions between 
 citizens, as distinguished from placita coro- 
 nae, pleas of the crown, or criminal prosecu- 
 tions. 
 
 COMMUNIA PLACITA NON TENENDA 
 in scaccario. An ancient writ directed to 
 the treasurer and barons of the exchequer, 
 forbidding them to hold pleas between com- 
 mon persons (i. e., not debtors to the king, 
 who alone originally sued and were sued 
 there) in that court, where neither of the 
 parties belonged to the same. Reg. Orig. 
 187. Since superseded by 2 & 3 Wm. IV. c. 
 39. 
 
 COMMUNIA PLACITUM. In old English 
 law. A common plea or action, such as an 
 action of debt. 
 
 COMMUNIBUSANNIS. In ordinary years; 
 on the annual average. 2 Bl. Comm. 322. 
 
COMMUNICATION 
 
 (177) 
 
 COMPANIONS 
 
 COMMUNICATION. Information; consul- 
 tation; conference. A letter is a communi- 
 cation. 49 N. J. Law, 256. But see 4 Mete. 
 (Mass.) 459. 
 
 In French Law. Discovery and inspec- 
 tion of books and papers, Arg. Pr. Merc. 
 Law, 552. 
 
 COMMUNINGS. In Scotch law. The ne- 
 gotiations preliminary to a contract. 
 
 COMMUNIO BONORUM (Lat.) In civil 
 law. A community of goods. 
 
 COMMUNION OF GOODS. In Scotch law. 
 The right enjoyed by married persons in the 
 movable goods belonging to them. Bell, 
 Diet. 
 
 COMMUNIS ERROR FACIT JUS. A com- 
 mon error makes law. What was at first 
 illegal, being repeated many times, is pre- 
 sumed to have acquired the force of usage; 
 and then it would be wrong to depart from 
 it. Hilliard, Real Prop. 268; 1 Ld. Raym. 
 42; 6 Clark & F. 172; 3 Maule & S. 396; i 
 N. H. 458; 2 Mass. 357. The converse of 
 this maxim is communis error non facit jus, 
 a common error does not make law. Coke, 
 4th Inst. 242; 3 Term R. 725; 6 Term R. 
 564. 
 
 COMMUNIS OPINIO. Common opinion; 
 general professional opinion. Co. Litt. 186a. 
 
 COMMUNIS PARIES. In the civil law. 
 A common or party wall. Dig. 8. 2. 8. 13. 
 
 COMMUNIS RIXATRIX. In old English 
 law. A common scold (g. v.) 4 Bl. Comm. 
 168. 
 
 COMMUNIS SCRIPTURA. In old English 
 law. A common writing; a writing common 
 to both parties; a chirograph. Glanv. lib. 8, 
 c. 1. 
 
 COMMUNIS STIPES (Lat.) In old Eng- 
 lish law. A common stock; the common or 
 root stock of descent; a common ancestor. 
 Bl. Law Tr. 6. 
 
 COMMUNITAS REGNI ANGLIAE (Lat.) 
 The general assembly of the kingdom of 
 England. One of the ancient names of the 
 English parliament. 1 Bl. Comm. 148. Ac- 
 cording to Cowell, it signified the barons 
 and tenants in capite of the kingdom. But 
 in St. Cart. Conf. 49 Hen. III., it is used 
 in the sense of "commonalty," as distin- 
 guished from the prelates, earls, and bar- 
 ons (prelatorum, comitum, haronum et com,- 
 munitatis regni) . 
 
 COMMUNITY (Lat. communis, common). 
 
 In Civil Law. A corporation or body 
 
 politic. Dig. 3. 4. 
 
 In French Law. A species of partner- 
 ship which a man and woman contract when 
 they are lawfully married to each other. 
 
 Conventional community is that which is 
 formed by express agreement in the con- 
 tract of marriage. By this contract, the le- 
 gal community which would otherwise sub- 
 sist may be modified as to the proportions 
 
 which each shall take, and as to the things 
 which shall compose it. Civ. Code La. 2393. 
 Legal community is that which takes 
 place by virtue of the contract of marriage 
 itself. 
 
 COMMUNITY PROPERTY. Property ac- 
 quired during the existence of the matri- 
 monial relation, which in some states (Lou- 
 isiana, Texas, New Mexico, Arizona, Califor- 
 nia, Idaho, and Washington) belongs equally 
 to the spouses. The doctrine is of Spanish 
 origin. See Schmidt, Civ. Law, p. 28; White, 
 New Recop. p. 60. 
 
 The husband, as head of the community 
 (g. v.), has control of the property during the 
 existence of the marriage relation (101 Cal. 
 563; 3 Wash. 592) ; but on dissolution of the 
 community by death or divorce, it is di- 
 vided equally betv/een the parties (63 Cal. 
 77) ; the testamentary power of the deceased 
 spouse being limited to the testator's moiety 
 (18 Cal. 291). 
 
 COMMUTATION. The change of a pun- 
 ishment to which a person has been con- 
 demned into a less severe one. This can 
 be granted only by the executive authority 
 in which the pardoning power resides. 
 
 Not a conditional pardon, but "the substi- 
 tution of one punishment known to the law 
 for another and different punishment, also 
 known to the law." 1 Nev. 321. 
 
 COMMUTATIVE CONTRACT. In civil 
 law. One in which each of the contracting 
 parties gives and receives an equivalent. 
 The contract of sale is of this kind. The 
 seller gives the thing sold, and receives the 
 price, which is the equivalent. The buyer 
 gives the price, and receives the thing sold, 
 which is the equivalent. Such contracts are 
 usually distributed into four classes, name- 
 ly: Do ut des, I give that you may give; 
 facia ut facias, 1 do that you may do; facio 
 ut des, I do that you may give; do ut facias, 
 I give that you may do. Poth. Obi. note 13. 
 See Civ. Code La. art. 1761. 
 
 COMMUTATIVE JUSTICE. See "Jus- 
 tice." 
 
 COMPACT. An agreement; a contract 
 between parties, which creates obligations 
 and rights capable pf being enforced, and 
 contemplated as such between the parties, in 
 their distinct and independent characters. 
 Story, Const, bk. 3, c. 3; Rutherforth, Inst, 
 bk. 2, c. 6, § 1. 
 
 The parties may be nations, states, or in- 
 dividuals, but it is commonly applied to 
 the former, and in this sense is a broader 
 term than "treaty." 14 Pet. (U. S.) 572. 
 
 As applied to individuals. It Is synony- 
 mous with "contract." 8 Wheat. (U. S.) 92. 
 
 COMPANION OF THE GARTER. A 
 
 knight of the Order of the Garter. See 
 "Knights of the Garter." 
 
 COMPANIONS. In French law. A gen- 
 eral term, comprehending all persons who 
 compose the crew of a ship or vessel. Poth. 
 Mar. Cont. note 163. 
 
COMPANY 
 
 (178) 
 
 COMPENSATION 
 
 COMPANY. An association of a number 
 of Individuals for the purpose of carrying 
 on some legitimate business. 
 
 This term is not synonymous with "part- 
 nership," though every such unincorporated 
 company is a partnership. Usage has re- 
 served the term to associations whose mem- 
 bers are in greater number, their capital 
 more considerable, and their enterprises 
 greater, either on account of their risk or 
 importance. 
 
 When these companies are authorized by 
 the government, they are known by the 
 name of "corporations." 
 
 Sometimes the word is used to represent 
 those members of a partnership whose 
 names do not appear in the name of the 
 firm. See 12 Toullier, Dr. Civ. 97. 
 
 COMPARATIO LITERARUM (Lat.) In 
 the civil law. Comparison of writings, or 
 handwritings. A mode of proof allowed in 
 certain cases. Code, 4. 21. 20; Nov. 49, c. 2; 
 Bell, Diet. 
 
 COMPARATIVE NEGLIGENCE. A doc- 
 trine whereby negligence is classified as 
 "slight," "ordinary," or "gross." In such 
 case, if the negligence of a defendant be 
 gross, there may be a recovery, notwith- 
 standing slight contributory negligence (96 
 111. 47) ; but not where the negligence of 
 the parties is of the same class, or the de- 
 fendant's "ordinary," and the plaintiff's 
 "slight" (72 111. 351). 
 
 The doctrine is now abandoned in the only 
 state where it prevailed as a common-law 
 doctrine. 153 111. 165. 
 
 COMPARISON OF HANDWRITING. A 
 
 mode of deducing evidence of the authen- 
 ticity of a written instrument, by showing 
 the likeness of the handwriting to that of 
 another instrument proved to be that of 
 the party whom it is sought to establish as 
 the author of the instrument in question. 1 
 Greenl. Bv. § 578. 
 
 "This is as distinct and separate a thing 
 from that comparison which a witness called 
 to testify to handwriting makes between the 
 writing in question and the exemplar in his 
 mind as an external, visible, and tangible 
 object is distinct from a mental impression 
 or memory." 43 Pa. St. 12. 
 
 COMPASCUUM. Belonging to common- 
 age. Jus compascuum, the right of common 
 of pasture. 
 
 COMPASSING. Imagining or contriving. 
 
 COMPATERNITAS (Eng. compaternity). 
 In the canon law. A kind of spiritual re- 
 lationship (copnatio spirituaUs) contracted 
 by baptism. It was a ground of- divorce. 
 Bracton, fol. 298b. 
 
 COMPATIBILITY. Capability of harmo- 
 ny or accord. 
 
 Of Offices. Such harmony between 
 
 the duties of two offices that they may be 
 discharged by one person. 
 
 In Divorce Law. Incompatibility of 
 
 temper is a ground of divorce in one or two 
 states. 
 
 COMPEAR, or COMPEIR. In Scotch law. 
 To appear. 1 Forbes, Inst. pt. 4, bk. 2, c. 2, 
 tit. 2. 
 
 COMPEARANCE, or COMPEIRANCE. In 
 Scotch practice. Appearance; an appear- 
 ance made for a defendant; an appearance by 
 counsel. Bell, Diet. 
 
 COMPELLATIVUM. In old records. An 
 adversary or accuser. Whishaw. 
 
 COMPENDIA SUNT DISPENDIA. Abridg- 
 ments are hindrances. Co. Litt. 305. 
 
 COMPENSACION. In Spanish law. The 
 extinction of a debt by another debt of equal 
 dignity between persons who have mutual 
 claims on each other. 
 
 COMPENSATIO. In the civil law. Com- , , 
 pensation, or set-off. A proceeding resem- ' 
 bling a set-off in the common law, being a 
 claim on the part of the defendant to have 
 an amount due to him from the plaintiff 
 deducted from his demand. Dig. 16. 2; Inst. 
 4. 6. 30. 39; 3 Bl. Comm. 305; 1 Kames, Eq. 
 395. 
 
 COMPENSATIO CRIMINIS. The compen- 
 sation or set-off of one crime against anoth- 
 er. For example, in questions of divorce, 
 where one party claims the divorce on the 
 ground of adultery of his or her companion, 
 the latter may show that the complainant 
 has been guilty of the same offense, and, 
 having himself violated the contract, cannot 
 complain of its violation on the other side. 
 This principle is incorporated in the codes 
 of most civilized nations. See 1 Hagg. Con- 
 sist. 144; 1 Hagg. Ecc. 714; 2 Paige, Ch. (N. 
 Y.) 108; 2 Dev. & B. (N. C.) 64; Bish. Mar. & 
 Div. §§ 393, 394. 
 
 COMPENSATION (Lat. compendere, to bal- 
 ance). Indemnification; recompense. Some- 
 thing to be done for or paid to another of 
 equal value with something of which he 
 has been deprived by the act or negligence 
 of the party so doing or paying. 
 
 As compared with "consideration" and 
 "damages," "compensation," in its most care- 
 ful use, seems to be between them. Consid- 
 eration is amends for something given by 
 consent, or by the owner's choice. Damages 
 is amends exacted from a wrongdoer 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; com- 
 pensation for land taken for a railway; dam- 
 ages for a trespass. But such distinctions 
 are not uniform. "Land damages" is a com- 
 mon expression for compensation for lands 
 taken for public use. Abbott. 
 
 In a statute providing for compensation 
 for property taken for public use, compensa- 
 tion means an equivalent for the value of 
 the land. 17 N. J. Law, 47. 
 
 It is applied to the remuneration of offi- 
 cers, fiduciaries, etc., but is not synonymous 
 with "salary." 76 111. 548. 
 
 In Civil Law. A reciprocal liberation 
 
 between two persons who are both creditors 
 
COMPERENDINATIO 
 
 (179) 
 
 COMPOSITION 
 
 and debtors of each other. Est deHH et 
 crediti inter se contriiutio. Dig. 16. 2. 1. 
 
 It resembles in many respects the com- 
 mon-law set-ofi. The principal difference is 
 that a set-off must be pleaded to be effec- 
 tual; -whereas compensation is effectual with- 
 out any such plea. See 2 Bouv. Inst, note 
 1407. 
 
 It may be legal, by way of exception, or 
 by reconvention. 8 La. 158; Dig. 16. 2; Code, 
 4. 31; Inst. 4. 6. 30; Burge, Sur. bk. 2, c. 6, 
 p. 181. 
 
 It takes place by mere operation of law, 
 and extinguishes reciprocally the two debts 
 as soon as they exist simultaneously, to the 
 amount of their respective sums. It takes 
 place only between two debts having equally 
 for their object a sum of money, or a cer- 
 tain quantity of consumable things of one 
 and the same kind, and which are equally 
 liquidated and demandable. It takes place, 
 whatever be the cause of the debts, except 
 in case, first, of a demand of restitution of 
 a thing of which the owner has been unjust- 
 ly deprived; second, of a demand of resti- 
 tution of a deposit and a loan for use; 
 third, of a debt which has for its cause 
 aliments declared not liable to seizure. Civ. 
 Code La. arts. 2203-2208. 
 
 In Old Criminal Law. Recrimination 
 
 («. V.) 
 
 COMPERENDINATIO. In the Roman law. 
 The adjournment of a cause, in order to 
 hear the parties or their advocates a second 
 time; a second hearing of the parties to a 
 cause. Calv. Lex.; Brissonius. 
 
 COIVIPERTORIUIVI. In the civil law. A 
 Judicial inquest made by delegates or com- 
 missioners to find out and relate the truth 
 of a cause. Cowell. 
 
 COMPERUIT AD DIEIV1 (Lat he appeared 
 at the day). In pleading. A plea in bar to 
 an action of debt on a bail bond. The usual 
 replication to this plea is nul tiel record, 
 that there is not any such record of appear- 
 ance of the said . For forms of this 
 
 plea, see 5 Wentw. 470; Lilly, Bntr. 114; 2 
 Chit. PI. 527. 
 
 COMPETENCY. Qualification to act; ca- 
 pacity. 
 
 In the Law of Evidence. The legal 
 
 fitness or ability of a witness to be heard on 
 the trial of a cause; that quality of written 
 or other evidence which renders it proper to 
 be given on the trial of a cause, if it be 
 relevant to the issues therein. See "Rel- 
 evancy." 
 
 There is a difference between competency 
 and credibility. A witness may be compe- 
 tent, and, on examination, his story may be 
 so contradictory and improbable that he may 
 not be believed; on the contrary, he may be 
 incompetent, and yet be perfectly credible 
 if he were examined. 
 
 In French Law. The right in a court 
 
 to exercise jurisdiction in a particular case, 
 as where the law gives jurisdiction to the 
 court when a thousand francs shall be in 
 dispute, the court is competent if the sum 
 
 demanded is a thousand francs or upwards, 
 although the plaintiff may ultimately re- 
 cover less. 
 
 COMPETENT. Pit; qualified; lawful. 
 Thus, "competent authority" is held to 
 mean lawful authority (8 PeL [U. S.] 449). 
 
 A "competent court," one having jurisdic- 
 tion. 1 0. P. Div. 176. 
 
 COMPETENT AND OMITTED. In Scotch 
 practice. A term applied to a plea which 
 might have been urged by a party during 
 the dependence of a cause, but which had 
 been omitted. Bell, Diet. 
 
 COMPETENT WITNESS. One who is 
 legally qualified to be heard to testify in a 
 cause. 
 
 COMPETITION. In Scotch practice. The 
 contest among creditors claiming on their 
 respective diligences, or creditors claiming 
 on their securities. Bell, Diet. 
 
 COMPILATION. A literary production, 
 composed of the works of others, and ar- 
 ranged in a methodical manner. 
 
 When a compilation requires in its execu- 
 tion taste, learning, discrimination, and in- 
 tellectual labor, it is an object of copyright: 
 as, for example. Bacon's Abridgment. Cur- 
 tis, Copyright, 186. 
 
 COMPLAINANT. One who makes a com- 
 plaint. A plaintiff in a suit in chancery is 
 so called. 
 
 COMPLAINT. 
 
 In Criminal Law. The allegation made 
 
 to a proper officer that some person, wheth- 
 er known or unknown, has been guilty of a 
 designated offense, with an offer to prove 
 the fact, and a request that the offender 
 may be punished. It is a technical term, de- 
 scriptive of proceedings before a magistrate. 
 11 Pick. (Mass.) 436. 
 
 In Code Pleading. The plaintiff's first 
 
 pleading in a civil action. 
 
 COMPLICE. An accomplice. 
 
 COMPOS MENTIS. See "Non Compos 
 
 Mentis." 
 
 COMPOS SUI (Lat.) Having power of 
 one's self; having the use of one's limbs, or 
 the power of bodily motion. Si fuit ita com- 
 pos sui quod itinerare potuit de lo'co in lo- 
 cum, if he had so far the use of his limbs 
 as to be able to travel from place to place. 
 Bracton, fol. 14b. 
 
 COMPOSITIO MENSURARUM. The or- 
 dinance of measures; the title of an ancient 
 ordinance, not printed, mentioned in St. 23 
 Hen. VIII. c. 4, establishing a standard of 
 measures. 1 Bl. Comm. 275. 
 
 COMPOSITIO ULNARUM ET PERTICA- 
 rum. The statute of ells and perches. The 
 title of an English statute establishing a 
 standard of measures. 1 Bl. Comm. 275. 
 
 COMPOSITION. An agreement, made 
 upon a sufficient consideration, between a 
 
COMPOSITION IN BANKRUPTCY (180) 
 
 COMTE 
 
 debtor and creditor, by which the creditor 
 accepts part of the debt due to him in satis- 
 faction of the whole. 
 
 Generally applied to agreements between a 
 debtor and several or all of his creditors. 
 
 In Ancient Law. Compensation tor 
 
 crime; weregild. 
 
 COMPOSITION IN BANKRUPTCY. An 
 agreement by the creditors of a bankrupt 
 to receive a certain percentum of their 
 claims in full satisfaction. 
 
 The national bankrupt act provides for 
 such compositions, requiring a formal offer 
 of composition by the bankrupt, a creditors' 
 meeting to consider the same, and, if ac- 
 cepted by a majority both in number and 
 amount of claims, an application for confir- 
 mation by the court. Loveland, Bankr. §§ 
 241-253. 
 
 COMPOSITION OF TITHES. Sometimes 
 called "real composition." An agreement by 
 a land owner with the incumbent, whereby 
 the land is discharged from liability for 
 tithes in consideration of some land or oth- 
 er real recompense given in lieu thereof. 2 
 Steph. Comm. 727. 
 
 COMPOTARIUS. In old English law. A 
 party accounting. Pleta, lib. 2, c. 71, § 17. 
 
 COMPOUNDING A FELONY. The act of 
 a party immediately aggrieved, who agrees 
 with a thief or other felon that he will not 
 prosecute him, on condition that he return 
 to him the goods stolen, or who takes a 
 reward not to prosecute. 
 
 It is not necessary that the person with 
 whom the composition was made should be 
 guilty of the alleged felony (42 Ohio St. 405; 
 13 Wend. [N. Y.] 592), nor that the consid- 
 eration for the compounding was received 
 for the benefit of another (58 Iowa, 151). 
 
 Though, at common law, the offense was 
 restricted to the composition of felonies, the 
 composition of misdemeanors is made penal 
 in most of the United States. 
 
 COMPRA Y VENTA (Spanish). Buying 
 and selling. The laws of contracts arising 
 from purchase and sale are given very fully 
 in Las Partidas, pt. 3, tit. xviii. 11. 56 et 
 seq. 
 
 COMPRINT. The surreptitious printing 
 of the copy of another to the intent to make 
 a gain thereby. Strictly, it signifies to print 
 together. There are several old statutes pro- 
 hibiting this act. Jacob; Cowell. 
 
 COMPRIRIGUI (Lat.) Step-brothers or 
 step-sisters; children who have one parent, 
 and only one, in common. Calv. Lex. 
 
 COMPRIVIGNI. In the civil law. Chil- 
 dren by a former marriage (individually 
 called "privigni," or "privignae"), consid- 
 ered relatively to each other. Thus, the son 
 of a husband by a former wife, and the 
 daughtei* of a wife by a former husband, are 
 the comprivigni of each other. Inst. 1. 10. 8. 
 
 COMPROMISARIUS. In civil law. 
 arbitrator. 
 
 An 
 
 COMPROMISE. An agreement made be- 
 tween two or more parties as a settlement 
 of matters in dispute between them. 
 
 In Civil Law. An agreement between 
 
 two or more persons, who, wishing to settle 
 their disputes, refer the matter in contro- 
 versy to arbitrators, who are so called be- 
 cause those who choose them give them full 
 powers to arbitrate and decide what shall 
 appear just and reasonable, to put an end to 
 the differences of which they are made the 
 judges. 1 Domat, Civ. Law, liv. 1, tit. 14. 
 
 COMPROMISSARII SUNT JUDICES. Ar- 
 bitrators are judges. ,Ienk. Cent. Cas. 128. 
 
 COMPROMISSARIUS. In the civil law. 
 An arbitrator. Dig. 4. 9. 41. 
 
 COMPROMISSUM. In the civil law. A 
 submission to arbitration. Dig. 4. 8; 4 
 Reeve, Hist. Eng. Law, 13. 
 
 COMPROMISSUM AD SIMILITUDINEM 
 judiciorum redigitur. A compromise is 
 brought into afiinity with judgments. 9 
 Cush. (Mass.) 571. 
 
 COMPTER. In Scotch law. An account- 
 ing party. Skene de Verb. Sign. 
 The name of a prison in London. 
 
 COMPTROLLER. An ofiicer of a state, or 
 of the United States, who has certain duties 
 to perform in the regulation and manage- 
 ment of the fiscal matters of the govern- 
 ment under which he holds oflice. 
 
 COMPULSION. Forcible inducement to 
 the commission of an act. 
 
 COMPULSORY. In ecclesiastical proced- 
 ure. A compulsory is a kind of writ to 
 compel the attendance of a witness, to un- 
 dergo examination. Phillim. Ecc. Law, 1258. 
 
 COMPURGATOR. One of several neigh- 
 bors of a person accused of a crime, or 
 charged as a defendant in a civil action, 
 who appeared and swore that they believed 
 him on his oath. 3 Bl. Comm. 341. 
 
 COMPUTUS (Lat. computare, to account). 
 A writ to compel a guardian, bailiff, receiv- 
 er, or accountant to yield up his accounts. 
 It is founded on St. Westminster II. c. 12; 
 Reg. Grig. 135. 
 
 COMTE (Pr.; Lat. comes). Count. A title 
 of office in the ancient law of Prance, de- 
 noting a governor of a particular territory 
 or district, who united the characters of a 
 military leader and a judge. As a judge, he 
 had an equal jurisdiction with the missus 
 do'miniciis, or king's commissary. Esprit 
 des Lois, liv. 28, c. 28; Id. liv. 30, c. 18. As 
 a military officer, he commanded the free- 
 men, and led them to the field. Id. liv. 30, 
 cc. 17, 18. Montesquieu says he was at the 
 head of all the freemen of the monarchy. 
 Id. liv. 31, c. 23. See, also, Id. liv. 30, c. 
 18; Id. liv. 31, c. 1. The comte was subor- 
 dinate to the due (duke). Guyot, Inst. 
 Peud. c. 1, § 8. See "Comes;" "Count." 
 
 In later times, a title of nobility. Bou- 
 
CON BIIENA FE 
 
 (181) 
 
 CONCLUSION 
 
 lainvilllers Etat de la France, 111. 56; Barr. 
 Obs. St. 31. 
 
 CON BUENA FE. In Spanish law. With 
 good faith; in good faith; 6ono fide. White, 
 New Recop. bk. 2, tit. 2, c. 8. 
 
 CONACRE. In Irish practice. The pay- 
 ment of wages in land, the rent being work- 
 ed out in labor at a money valuation. Whar- 
 ton. 
 
 CONATUS QUID SIT, NON DEFINITUR 
 
 in jure. What an attempt is, is not defined 
 in law. 2 Bulst. 277. 
 
 CONCEALERS. Such as find out con- 
 cealed lands; that is, lands privily kept from 
 the king by common persons having nothing 
 to show for them. They are called "a 
 troublesome, disturbant sort of men; turbu- 
 lent persons." Cowell. 
 
 CONCEALMENT. The improper suppres- 
 sion of any fact or circumstance by one of 
 the parties to a contract from the other, 
 which in justice ought to be known. 
 
 The omission by an applicant for insur- 
 ance preliminarily to state facts known to 
 him, or which he is bound to know, materi- 
 al to the risk proposed to be insured against, 
 or omission to state truly the facts expressly 
 inquired about by the underwriters to whom 
 application for insurance is made, whether 
 the same are or are not material to the risk. 
 See 12 Cush. (Mass.) 416. 
 
 CONCEPTUM. In the civil law. A theft 
 ifurtum) was called "conceptum" when the 
 thing stolen was searched for, and found 
 upon some person in the presence of wit- 
 nesses. Inst. 4. 1. 4. 
 
 CONCESSI (Lat. I have granted). A term 
 formerly used in deeds. 
 
 It is a word of general extent, and Is said 
 to amount to a grant, feoffment, lease, re- 
 lease, and the like. 2 Saund. 96; Co. Litt. 
 301, 302; Dane, Abr. Index; 5 Whart. (Pa.) 
 278. 
 
 It has been held in a feoffment or fine to 
 imply no warranty. Co. Litt. 384; 4 Coke, 
 80; Vaughan's Argument in Vaughan, 126; 
 Butler's Note, Co. Litt. 384. But see 1 
 Freem. 339, 414. 
 
 CONCESSIMUS (Lat. we have granted). 
 A term used in conveyances. It created a 
 joint covenant on the part of the grantors. 
 5 Coke, 16; 3 Keb. 617; Bac. Abr. "Cove- 
 nant." 
 
 CONCESSIO. In old English law. A 
 grant; one of the old common assurances, or 
 forms of conveyance, being properly of 
 things incorporeal which cannot pass by 
 deed. 2 Bl. Comm. 317. 
 
 CONCESSIO PER REGEM FIERI DEBET 
 de certitudine. A grant by the king ought 
 to be a grant of a certainty. 9 Coke, 46. 
 
 CONCESSIO VERSUS CONCEDENTEM 
 latam interpretationem habere debet. A 
 grant ought to have a liberal interpretation 
 against the grantor. Jenk. Cent. Cas. 279. 
 
 CONCESSION. A grant. The word is 
 frequently used in this sense when applied 
 to grants made by the French and Spanish 
 governments in Louisiana. 
 
 CONCESSIT SOLVERE. A form of ac- 
 tion of debt on simple contract which lies 
 by custom in the mayor's courts of London 
 and Bristol. The declaration is to the ef- 
 fect that the defendant on a fictitious date, 
 in consideration of divers fictitious sums of 
 money before that time due and owing from 
 him to the plaintiff, and then in arrear and 
 unpaid, granted and agreed to pay (concessit 
 solvere) to the plaintiff the sum sued for, 
 but has not done so. 
 
 CONCESSOR. A grantor. 
 
 CON CESS US. A grantee. 
 
 CONCILIABULUM. A council house. 
 Towns. PI. 184. 
 
 CONCILIUM. A council. 
 
 Concilium Ordinarium. In Anglo-Nor- 
 man times, an executive and residuary ju- 
 dicial committee of the aula regis (q. v.) 
 
 Concilium Regis. A tribunal which ex- 
 isted in England during the times of Ed- 
 ward I. and Edward II., composed of the 
 judges and sages of the law. To them were 
 referred cases of great difficulty. Co. Litt. 
 304. 
 
 CONCLUSION (Lat. con olaudere, to shut 
 together). The close; the end. 
 
 In Pleading. In declarations, that part 
 
 which follows the statement of the cause of 
 action. In personal or mixed actions, where 
 the object is to recover damages, the con- 
 elusion is, properly, to the damage of the 
 plaintiff, etc. Comyn, Dig. "Pleadpr," c. 84; 
 10 Coke, 1156. 
 
 The form was anciently, in the king's 
 bench, "To the damage of the said A. B., 
 and thereupon he brings suit;" in the ex- 
 chequer, "To the damage," etc., "whereby 
 he is the less able to satisfy our said lord 
 the king the debts which he owes his said 
 majesty at his exchequer, and therefore h« 
 brings his suit." 1 Chit. PI. 356-358. 
 
 In pleas, the conclusion is either to the 
 country, — which must be the case when an 
 issue is tendered, that is, whenever the 
 plaintiff's material statements are contra- 
 dicted, — or by verification, which must be 
 the case when new matter is introduced. 
 Every plea in bar, it is said, must have its 
 proper conclusion. All the formal parts of 
 pleadings have been much modified by stat- 
 ute in the various states and in England 
 within the last few years. 
 
 In Practice. Making the last argu- 
 ment or address to the court or jury. The 
 party on whom the onus probandi is cast, in 
 general, has the conclusion. 
 
 In Remedies. An estoppel; a bar; 
 
 the act of a man by which he has confessed 
 a matter or thing which he can no longer 
 deny. For example, the sheriff is concluded 
 by his return to a writ, and therefore, if 
 upon a capias he return cepi corpus, he can- 
 not afterwards show that he did not arrest 
 
CONCLUSION TO, ETC. 
 
 (182) 
 
 CONCURRENT WRIT 
 
 the defendant, but is concluded by his re- 
 turn. See Plowd. 276b; 3 Thomas, Co. Litt. 
 600. 
 
 CONCLUSION TO THE COUNTRY. In 
 
 pleading. The tender of an issue for trial 
 by a jury. When the issue is tendered by 
 the defendant, it is as follows: "And of 
 this the said C. D. puts himself upon the 
 country." When tendered by the plaintiff, 
 the formula is, "And this the said A. B. 
 prays may be inquired of by the country." 
 It is held, however, that there is no material 
 difference between these two modes of ex- 
 pression, and that if the one be substituted 
 for the other the mistake is unimportant. 
 10 Mod. 166. 
 
 CONCLUSIVE EVIDENCE. That which 
 cannot be controlled or contradicted by any 
 other evidence. 
 
 CONCLUSIVE PRESUMPTION. A rule 
 of law determining the quantity of evidence 
 requisite for the support of a particular aver- 
 ment which is not permitted to be overcome 
 by any proof that the fact is otherwise. 1 
 Greenl. Bv. § 15. Thus, for example, the 
 possession of land under claim of title for a 
 certain period of time raises a conclusive 
 presumption of a grant. 
 
 In the civil law, such presumptions are 
 said to be juris et de jure. 
 
 CONCORD. An agreement, or supposed 
 agreement, between the parties in levying a 
 fine of lands, in which the deforciant (or he 
 who keeps the other out of possession) ac- 
 knowledges that the lands in question are 
 the right of the complainant, and from the 
 acknowledgment or admission of right thus 
 made, the party who levies the fine is called 
 the "cognizor," and the person to whom it is 
 levied, the "cognizee." 2 Bl. Comm. 350; 
 Cruise, Dig. tit. 35, c. 2, § 33; Comyn, Dig. 
 "Fine" (E 9). 
 
 CONCORDARE LEGES LEGIBUS EST 
 optlmus interpretandi modus. To make laws 
 agree with laws is the best mode of inter- 
 preting them. Halk. Max. 70. 
 
 CONCORDAT. A convention; a pact; an 
 agreement. The term is generally confined 
 to the agreements made between independent 
 governments, and most usually applied to 
 those between the pope and some prince. 
 
 CONCORDIA (Lat.) In old English law. 
 An agreement, or concord. Fleta, lib. 5, c. 
 
 3, § 5. The agreement or unanimity of a 
 jury, compellere ad concordiam. Fleta, lib. 
 
 4, c. 9, § 2. 
 
 CONCORDIA DISCORDANTIUM CANO- 
 num. The harmony of the discordant can- 
 ons. A collection of ecclesiastical consti- 
 tutions made by Gratian, an Italian monk, 
 A. D. 1151; more commonly known by the 
 name of decretum gratiani. 1 Bl. Comm. 82. 
 
 CONCORDIA PARVAE RES CRESCUNT 
 et opulentia lites. Small means increase by 
 concord, and litigations by opulence. Coke, 
 4th Inst. 74. 
 
 CONCUBARIA. A fold, pen, or place 
 where cattle lie. Cowell. 
 
 CONCUBEANT. Lying together. 
 
 CONCUBINAGE. A species of marriage 
 which took place among the ancients, and 
 which is yet in use in some countries. See 
 "Concubinatus." 
 
 The act or practice of cohaWitlng, in sex- 
 ual commerce, without the authority of law 
 or a legal marriage. See 1 Brown, Civ. Law, 
 80; Merlin, Repert; Dig. 32. 49. 4; Id. 7. 
 1. 1; Code, 5. 27. 12. 
 
 CONCUBINATUS. A natural marriage, as 
 contradistinguished from the justae nuptiae, 
 or justum matrimonium, the civil marriage. 
 
 The concubinatus was the only marriage 
 which those who did not enjoy the jus con- 
 wttftii, could contract. Although this natural 
 marriage was authorized and regulated by 
 law, yet it produced none of those impor- 
 tant rights which flowed from the civil mar- 
 riage, such as the paternal power, etc.; nor 
 was the wife entitled to the honorable ap- 
 pellation of mater-familias, but was desig- 
 nated by the name of concubina. After the 
 exclusive and aristocratic rules relative to 
 the connubium had been relaxed, the eoncw- 
 binatus fell into disrepute and the law per- 
 mitting it was repealed by a constitution of 
 the Emperor Leo, the Philosopher, in the 
 year 886 of the Christian era. See "Pater- 
 Familias." 
 
 CONCUBINE. A woman who cohabits 
 with a man as his wife, without being mar- 
 ried. 
 
 CONCUR. In Louisiana. To claim a part 
 of the estate of an insolvent along with other 
 claimants (6 Mart. [La.; N. S.] 460); as 
 "the wife concurs with her husband's credi- 
 tors, and claims a privilege over them." 
 
 CONCURRENCE. In French law. The 
 equality of rights, or privilege which sev- 
 eral persons have over the same thing; as, 
 for example, the right which two judgment 
 creditors, whose judgments were rendered 
 at the same time, have to be paid out of the 
 proceeds of real estate bound by them. Diet, 
 de Jur. 
 
 CONCURRENT. Running together; hav- 
 ing the same authority. Thus, we say, a 
 concurrent consideration occurs in the case 
 of mutual promises; such and such courts 
 have concurrent jurisdiction, — that is, each 
 has the same jurisdiction. 
 
 CONCURRENT SENTENCES. Such as, 
 being passed on a conviction for several 
 crimes, are computed as beginning simulta- 
 neously and running concurrently. See 
 "Cumulative Sentences." 
 
 CONCURRENT WRIT. In English prac- 
 tice. A copy of the original writ of sum- 
 mons issued in an action, the very date being 
 the same, the seal bears the word "concur- 
 rent" on it, and shows the date when the 
 concurrent seal was impressed, i. e., issued. 
 
CONCURSUS 
 
 (183) 
 
 CONDITIO DICITUR, ETC. 
 
 A concurrent writ is frequently issued for 
 service out of the jurisdiction. Brown. 
 
 CONCURSUS (Lat. from conourrere). In 
 the civil law. A running together; a 
 meeting or concurrence. Goncursus credi- 
 torum, the conflict or conflicting rights of 
 creditors, in relation to their liens, privi- 
 leges, and priorities, in cases of insolvency 
 and other cases. Story, Confl. Laws, 325c, 
 433a. 
 
 CONCUSS. In Scotch law. To coerce. 
 Shaw, 322. 
 
 CONCUSSIO. In civil law. The offense 
 of extortion by threats of violence. Dig. 47. 
 13. 
 
 CONCUSSION. In civil law. The unlaw- 
 ful forcing of another by threats of violence 
 to give something of value. It differs from 
 robbery in this, that in robbery the thing is 
 taken by force, while in concussion it is ob- 
 tained by threatened violence. Heinec. Lee. 
 Elm. § 1071. 
 
 CONDEDIT. In ecclesiastical law. The 
 name of a plea entered by a party to a libel 
 filed in the ecclesiastical court, in which it 
 is pleaded that the deceased made the will 
 which is the subject of the suit, and that 
 he was of sound mind. 2 Bcc. 438; 6 Bcc. 
 431. 
 
 CONDEMN. To sentence; to adjudge. 3 
 Bl. Comm. 291. 
 
 To declare a vessel a prize; to declare a 
 vessel unfit for service. 1 Kent, Comm. 102; 
 5 Esp. 65. 
 
 To take by exercise of the power of emi- 
 nent domain. 
 
 CONDEMNATION. 
 
 In Admiralty. The sentence of a com- 
 petent tribunal which declares a ship unfit 
 for service. This sentence may be re-exam- 
 ined and litigated by the parties interested 
 In disputing it. 5 Esp. 65; Abb. Shipp. 4. 
 
 The judgment,, sentence or decree by which 
 property seized and subject to forfeiture for 
 an infraction of revenue, navigation, or oth- 
 er laws is condemned or forfeited to the 
 government. See "Captor." 
 
 The sentence or judgment of a court of 
 competent jurisdiction, that a ship or vessel 
 taken as a prize on the high seas was liable 
 to capture, and was properly and legally 
 captured and held as prize. 
 
 In Civil Law. A sentence or judgment 
 
 which condemns some one to do, to give, or 
 to pay something, or which declares that 
 his claim or pretensions are unfounded. 
 
 In Criminal Law. The word is used in 
 
 this sense by common-law lawyers also, 
 though it is more usual to say "conviction." 
 3 Bl. Comm. 291. It is a maxim that no 
 man ought to be condemned unheard, and 
 without the opportunity of being heard. 
 
 CONDEMNATION MONEY. In practice. 
 The damages which the party failing in an 
 action Is adjudged or condemned to pay; 
 sometimes simply called the "condemna^ 
 
 tion." 3 Bl. Comm. 291. It answers to the 
 judicatum of the civil law. Id. 291, 292. 
 
 CONDESCENDENCE. In the Scotch law. 
 A part of the proceedings in a cause, set- 
 ting forth the facts of the case on the part 
 of the pursuer or plaintiff. 
 
 CONDICTIO (Lat. from condicere). In civil 
 law. An assignment; a summons. 
 
 A personal action; an action arising from 
 an obligation to do or give some certain, 
 precise, and defined thing. Inst. 3. 15. pr. 
 
 Condictio is a general name given to per- 
 sonal actions, or actions arising from obli- 
 gations, and is distinguished from vindicatio 
 (real action), an action to regain possession 
 of a thing belonging to the actor, and from 
 mixed actions (actiones mixtae). Condictio 
 is also distinguished from an action ex stipu- 
 latu, which is a personal action which lies 
 where the thing to be done or given is un- 
 certain in amount or identity. See Calv. 
 Lex.; Halifax, Anal. 117. 
 
 Condictio Certi. An action which lies 
 
 upon a promise to do a thing, where such 
 promise or stipulation is certain, si carta sit 
 stipidatio. Inst. 3. 16. pr.; Id. 3. 15. pr.; Dig. 
 12. 1; Bracton, fol. 103b; Pleta, lib. 2, c. 60, 
 § 23. 
 
 Condictio ex Lege. An action arising 
 
 where the law gave a remedy, but provided 
 no appropriate form of action. Calv. Lex. 
 
 Condictio Indebitati. An action which 
 
 lies to recover that which the plaintiff has 
 paid to the defendant, by mistake, and which 
 he was not bound to pay, either in fact or in 
 law. 
 
 This action does not lie if the money was 
 due ex aequitate, or by a natural obligation, 
 or if he who made the payment knew that 
 nothing was due; for qui consulto dot, quod 
 non deietat, praesumitur donare. Bell, 
 Diet; Calv. Lex.; 1 Karnes, Eq. 307. 
 
 Condictio Rei Furtivae. An action 
 
 against the thief or his heir to recover the 
 thing stolen. 
 
 Condictio Sine Causa. An action by 
 
 which anything which has been parted with 
 without consideration may be recovered. It 
 also lay in case of failure of consideration, 
 under certain circumstances. Calv. Lex. 
 
 CONDITIO (Lat.) A condition. Bracton, 
 fols. 19, 47. 
 
 CONDITIO BENEFICIALIS, QUAE STAT- 
 um, construit, benigne, secundum verborum 
 intentionem est interpretanda; odiosa autem, 
 quae statum destruit, striate, secundum ver- 
 borum proprietatem, accipienda. A beneficial 
 condition, which creates an estate, ought to 
 be construed favorably, according to the in- 
 tention of the words; but an odious condi- 
 tion, which destroys an estate, ought to be 
 construed strictly, according to the letter of 
 the words. 8 Coke, 90; Shep. Touch. 134. 
 
 CONDITIO DICITUR, CUM QUID IN 
 casum incertum qui potest tendere ad esse 
 aut non esse, confertur. It is called a con- 
 dition when something is given on an un- 
 certain event, which may or may not come 
 into existence. Co. Litt. 201. 
 
CONDITIO ILLICITA, ETC. 
 
 (184) 
 
 CONDITION 
 
 CONDITIO ILLICITA HABETUR PRO 
 non adjicta. An unlawful condition is 
 deemed as not annexed. 
 
 CONDITIO PRAECEDENS ADIMPLERI 
 debet priusquam sequatur effectus. A con- 
 dition precedent must be fulfilled before the 
 effect can follow. Co. Litt. 201. 
 
 CONDITION. 
 
 In Civil Law. The situation of every 
 
 person in some one of the different orders of 
 persons which compose the general order 
 of society, and allot to each person therein 
 a distinct, separate rank. Domat, Civ. Law, 
 torn. ii. lib. 1, tit. 9, § i. art. viii. 
 
 A paction or agreement which regulates 
 that which the contractors have a mind 
 should be done if a case which they foresee 
 should come to pass. Domat, Civ. Law, torn, 
 i. lib. 1, tit. 1, § 4. 
 
 Domat says conditions are of three sorts. 
 The first tend to accomplish the covenants to 
 which they are annexed. The second dis- 
 solve covenants. The third neither accom- 
 plish nor avoid, but create, some change. 
 When a condition of the first sort comes 
 to pass, the covenant is thereby made ef- 
 fectual. In case of conditions of the second 
 sort, all things remain in the condition they 
 were In by the covenant, and the effect of 
 the condition is in suspense until the condi- 
 tion comes to pass and the covenant is void. 
 Domat, Civ. Law, lib. i. tit. 1, § 4, art. 6 et 
 seq. See Poth Obi. pt. 1, c. 2, art. 1, § 1; 
 Id. pt. ii. c. 3, art. 2. 
 
 (1) Casual conditions are such as depend 
 upon accident, and are in no wise in the 
 power of the person in whose favor the 
 obligation is entered into. 
 
 (2) Mixed conditions are such as depend 
 upon the joint wills of the person in whose 
 favor the obligation is contracted, and of a 
 third person; as, "If you marry my cousin, I 
 will give," etc. Poth. Obi. 
 
 (3) Potestative conditions are those which 
 are in the power of the person in whose favor 
 the obligation was contracted; as. If I con- 
 tract to give my neighbor a sum of money 
 in case he cuts down a tree. 
 
 (4) Resolutory conditions are those which 
 are added not to suspend the obligation till 
 their accomplishment, but to make it cease 
 when they are accomplished. 
 
 (5) Suspensive obligations are those which 
 suspend the obligation until the performance 
 of the condition. They are casual, mixed, or 
 potestative. 
 
 In Common Law. The status or rela- 
 tive situation of a person in the state aris- 
 ing from the regulations of society. Thus, 
 a person under twenty-one is an infant, with 
 certain privileges and disabilities. Every 
 person is bound to know the condition of 
 the person with whom he deals. 
 
 A qualification, restriction, or limitation 
 modifying or destroying the original act 
 with which it is connected. 
 
 A clause In a contract or agreement in- 
 tended to suspend, rescind, or modify the 
 principal obligation, or, in case of a will, to 
 
 suspend, revoke, or modify the devise or be- 
 quest. 1 Bouv. Inst, note 730. 
 
 A modus or quality annexed by him that 
 hath an estate, or interest or right to the 
 same, whereby an estate, etc., may either be 
 defeated, enlarged, or created upon an un- 
 certain event. Co. Litt. 201a. 
 
 A qualification or restriction annexed to a 
 conveyance of lands, whereby it is provided 
 that in case a particular event does or does 
 not happen, or in case the grantor or grantee 
 does or omits to do a particular act, an es- 
 tate shall commence, be enlarged, or be de- 
 feated. Greenl. Cruise, Dig. tit. xiii. c. i. 
 § 1. 
 
 A future uncertain event, on the happen- 
 ing or the nonhappening of which the accom- 
 plishment, modification, or rescission of a 
 testamentary disposition is made to depend. 
 
 (1) Affirmative conditions are positive 
 conditipns. Affirmative conditions implying 
 a negative are spoken of by the older writ- 
 ers, but no such class is now recognized. 
 Shep. Touch. 117. 
 
 (2) Collateral conditions are those which 
 require the doing of a collateral act. Shep. 
 Touch. 117. 
 
 (3) Compulsory conditions are such as ex- 
 pressly require a thing to be done. 
 
 (4) Repugnant or insensible conditions 
 are those inconsistent with the original act. 
 
 (5) Consistent conditions are those which 
 agree with the other parts of the transac- 
 tion. 
 
 (6) Copulative conditions are those which 
 are composed of distinct parts or separate 
 conditions, all of which must be performed. 
 They are generally conditions precedent, but 
 may be subsequent. Powell, Dev. c. 15. 
 
 ( 7 ) Disjunctive conditions are those which 
 require the doing of one of several things. 
 If a condition become impossible in the copu- 
 lative, it may be taken in the disjunctive. 
 Viner, Abr. "Condition" (S b) (Y b 2). 
 
 (8) Single conditions are those which re- 
 quire the doing of a single act only. 
 
 ( 9 ) Restl-ictive conditions are such as con- 
 tain a restraint, as that a lessee shall not 
 alien. 
 
 (10) I^awful conditions are those which 
 the law allows to be made. 
 
 (11) Unlawful conditions are those which 
 the law forbids. 
 
 (12) Independent conditions are those, 
 each of which must be performed without 
 regard to the performance of the others. 
 
 (13) Dependent conditions are those the 
 failure of performance of one of which ex- 
 cuses performance of the others. 
 
 (14) Express conditions are those which 
 are created by express words. Co. Litt. 328. 
 Express conditions are also known as "con- 
 ditions in deed." 
 
 (15) Implied conditions are those which 
 the law supposes the parties to have had in 
 mind at the time the transaction was en- 
 tered into, though no condition was ex- 
 pressed. Implied conditions are also known 
 as "covert conditions," or "conditions in 
 law," but the latter term is little used by 
 modern writers. 2 Bl. Comm. 155. 
 
CONDITIONAL FEE 
 
 (185) 
 
 CONE AND KEY 
 
 (16) Impossible conditions are those which 
 cannot be performed in the course of nature. 
 
 (17) Possible conditions are those which 
 may be performed. 
 
 (18) Inherent conditions are such as are 
 annexed to the rent reserved out of the land 
 whereof the estate is made. Shep. Touch. 
 118. 
 
 (19) Precedent conditions are those which 
 are to be performed before the estate or the 
 obligation commences, or the bequest takes 
 effect. Powell, Dev. c. 15. A bond to convey 
 land on the payment of the purchase money 
 furnishes a common example of a condition 
 precedent. 9 Gush. (Mass.) 95. They are 
 distinguished from conditions subsequent. 
 
 (20) Subsequent conditions are those 
 whose effect is not produced until after the 
 vesting of the estate or bequest, or the com- 
 mencement of the obligation. 
 
 "Where a condition must be performed 
 before the estate can commence, it is called 
 a 'condition precedent;' but when the effect 
 of the condition is to enlarge or defeat the 
 estate already created, it is then called a 'con- 
 dition subsequent.'" 12 Barb. (N. Y.) 440. 
 
 A condition subsequent determines an es- 
 tate after breach upon entry or claim by the 
 proper person; as, limitation marks the 
 period which ipso facto determines an es- 
 tate. 3 Gray (Mass.) 143. 
 
 CONDITIONAL FEE. A fee which, at the 
 common law, was restrained to some par- 
 ticular heirs, exclusive of others. It was 
 called a conditional fee by reason of the 
 condition, expressed or implied in the dona- 
 tion of it, that, if the donee died without 
 such particular heirs, the land should re- 
 vert to the donor. For this was a condition 
 annexed by law to all grants whatsoever, 
 that, on failure of the heirs specified in the 
 grant, the grant should be at an end, and 
 the land return to its ancient proprietor. 2 
 Bl. Comm. 110. 
 
 CONDITIONAL LEGACY. A bequest 
 whose existence depends upon the happening 
 or not happening of some uncertain event, 
 by which it is either to take place or to be 
 defeated. 1 Rop. Leg. (3d Ed.) 645. 
 
 CONDITIONAL LIMITATION. A condi- 
 tion followed by a limitation over to a third 
 person in case the condition be not fulfilled, 
 or there be a breach of it. 
 
 A condition determines an estate after 
 breach, upon entry or claim by the proper 
 person. A limitation marks the period 
 which determines an estate without any act 
 on the part of him who has the next ex- 
 pectant Interest. A conditional limitation 
 is therefore of a mixed nature, partaking of 
 that of a condition and a limitation. Big- 
 elow, J., 3 Gray (Mass.) 143. The limitation 
 over need not be to a stranger. 2 Bl. Comm. 
 155; 11 Mete. (Mass. 102; Watk. Conv. 204. 
 
 It is distinguished from an estate on con- 
 dition subsequent by the fact that, on breach 
 of a conditional limitation, the estate termi- 
 nates ipso facto. 1 Steph. Coriim. 310. 
 
 CONDITIONAL OBLIGATION. An obli- 
 gation subject to a condition. 
 
 In Louisiana. An implied obligation. 
 
 See 2 La. Ann. 989, 991. 
 
 CONDITIONAL STIPULATION. A stipu- 
 lation on condition. 
 
 CONDITIONES QUAELIBET ODIOSAE; 
 nnaxime autem contra matrlmonlum et com- 
 mercium. Any conditions are odious, but 
 especially those against matrimony and com- 
 merce. Lofft, 644. 
 
 CONDITIONS OF SALE. The terms upon 
 which the vendor of property by auction pro- 
 poses to sell it. 
 
 The instrument containing these terms, 
 when reduced to writing or printing. 
 
 CONDOMINIA. In civil law. Co-owner- 
 ships or limited ownerships, such as empUy- 
 teusis, superficies, pignus, hypotheca, usus- 
 fructus, usus, and habitatio. These were 
 more than mere jura in re aliena, being por- 
 tion of the dominium itself, although they 
 are commonly distinguished from the do- 
 minium strictly so called. Brown. 
 
 CONDONACION. A Spanish law term, 
 signifying the remission of a debt. 
 
 CONDONATION. The conditional forgive- 
 ness or remission, by a husband or wife, of a 
 matrimonial offense which the other has 
 committed. 
 
 Condonation is the remission by one of 
 the named parties of an offense which he 
 knows the other has committed, on the con- 
 dition, implied where it is not expressed, 
 of being continually afterwards treated by 
 the other with conjugal kindness. 2 Bish. 
 Mar., Div. & Sep. § 269. 
 
 Condonation may be either express or im- 
 plied (27 Ind. 186), as by continued matri- 
 monial cohabitation after knowledge of the 
 offense (13 N. J. Bq. 81). 
 
 CONDUCT MONEY. In English practice. 
 Money paid to a witness who has been sub- 
 poenaed on a trial, suflJcient to defray the 
 reasonable expenses of going to, staying at, 
 and returning from the place of trial. Lush, 
 Com. Law Prac. 460; Archb. New Prac. 639. 
 
 CONDUCTI ACTIO, 
 ducto." 
 
 See "Actio ex Con- 
 
 CONDUCTIO (Lat.) A hiring; a bailment 
 for hire. 
 
 It is the correlative of locatio, a letting for 
 hire. Conducti actio, in the civil law, is an 
 action which the hirer of a thing or his 
 heir had against the latter or his heir to be 
 allowed to use the thing hired. Conducere, 
 to hire a thing. Conductor, a hirer, a car- 
 rier; one who undertakes to perform labor 
 on another's property for a specified sum. 
 Conductus, the thing hired. Calv. Lex.; Du 
 Cange; 2 Kent, Comm. 586. 
 
 CONE. See "Colne." 
 
 CONE AND KEY. A woman at fourteen 
 or fifteen years of age may take charge of 
 
CONFARREATIO 
 
 (186) 
 
 CONFIDENTIAL, ETC. 
 
 her house, and receive cone and key, — ^that 
 is, keep the accounts and keys. Cowell. 
 Said by Lord Coke to he "cover and keye," 
 meaning that at that age a woman knew 
 what in her house should be kept under lock 
 and key. Coke, 2d Inst. 203. 
 
 CONFARREATIO. In Roman law. Asac- 
 ^rificial rite resorted to by marrying persons 
 of high patrician or priestly degree, for the 
 purpose of clothing the husband with the 
 manus over his wife; the civil modes of ef- 
 fecting the same thing being coemptio (for- 
 mal), and ms«s mttZieris (informal). Brown. 
 
 CONFECTIO (Lat. from confioere). The 
 making and completion of a written instru- 
 ment. 5 Coke, 1. 
 
 CONFEDERACY. 
 
 In Criminal Law. An agreement be- 
 tween two or more persons to do an unlaw- 
 ful act, or an act which, though not unlawful 
 in itself, becomes so by the confederacy. The 
 technical term usually employed to signify 
 this offense is " conspiracy." 
 
 In Equity Pleading. An improper com- 
 bination alleged to have been entered into 
 between the defendants to a bill in equity. 
 
 A general charge of confederacy is made 
 a part of a bill in chancery, and is the 
 fourth part, in order, of the bill, but it has 
 become merely formal, except in cases where 
 the complainant intends to show that such 
 a combination actually exists or existed, in 
 which case a special charge of such con- 
 federacy must be made. Story, Eq. PI. §§ 
 29, 30; Mitf. Eq. PI. (Jeremy Ed.) 41; 
 Cooper, Eq. PI. 9. 
 
 In International Law. An agreement 
 
 between two or more states or nat;ions, by 
 which they unite for their mutual protection 
 and good. This term is applied to such an 
 agreement made between two independent 
 nations, but it is also used to signify the 
 union of different states of the same nation, 
 as, the confederacy of the states. 
 
 CONFEDERATION. The name given to 
 that form of government which the Amer- 
 ican colonies during the Revolution devised 
 for their mutual safety and government. 
 
 toNFERENCE. 
 
 In French Law. A similarity between 
 
 two laws or two systems of laws. 
 
 In International Law. Verbal explana- 
 tions between the representatives of at least 
 two nations, for the purpose of accelerating 
 matters by avoiding the delays and other 
 difficulties necessarily attending written 
 communications. 
 
 In Legislation. Mutual consultations 
 
 by two committees appointed, one by each 
 house of a legislature, in cases where the 
 houses cannot agree in their action. 
 
 CONFESSIO FACTA IN JUDICIO OMNI 
 probatione major est. A confession made in 
 court is of greater effect than any proof. 
 Jenk. Cent. Cas. 102. 
 
 CONFESSION. In criminal law. The vol- 
 untary declaration, made by a person who 
 has committed a crime or misdemeanor, to 
 
 another, of the agency or participation which 
 he had in the same. 
 
 An admission or acknowledgment by a 
 prisoner, when arraigned for an offense, that 
 he committed the crime with which he is 
 charged. 
 
 A confession is an admission of the crim- 
 inal act, and is to be distinguished from "ad- 
 missions" or "declarations" by the defendant 
 of facts from which guilt may be inferred. 
 53 Iowa, 69; 17 111. 427. 
 
 Judicial confessions are those made before 
 a magistrate or in court in the due course 
 of legal proceedings. 
 
 Extrajudicial confessions are those made 
 by the party elsewhere than before a magis- 
 trate or in open court. 1 Greenl. Ev. § 216. 
 
 CONFESSION AND AVOIDANCE. In 
 
 pleading. The admission in a pleading of 
 the truth of the facts as stated in the plead- 
 ing to which it is an answer, and the allega- 
 tion of new and related matter of fact which 
 destroys the legal effect of the facts so ad- 
 mitted. The plea and any of the subsequent 
 pleadings may be by way of confession and 
 avoidance, or, which is the same thing, "in" 
 confession and avoidance. Pleadings in con- 
 fession and avoidance must give color. See 
 "Color;" 1 East, 212. They must admit the 
 material facts of the opponent's pleading, 
 either expressly in terms (Dyer, 171b), or 
 in effect. They must conclude with a veri- 
 fication. 1 Saund. 103, note. For the form 
 of statement, see Steph. PI. 72, 79. 
 
 Pleas in confession and avoidance are ei- 
 ther in justification and excuse, which go to 
 show that the plaintiff never had any right 
 of action, as, for example, son assault de- 
 mesne, or in discharge, which- go to show 
 that his right has been released by some 
 matter subsequent. 
 
 CONFESSOR. A priest of some Christian 
 sect, who receives an account of the sins of 
 his people, and undertakes to give them ab- 
 solution of their sins. The common law 
 does not recognize any such relation, at 
 least so as to exempt or prevent the confes- 
 sor from disclosing such communications as 
 are made to him in this capacity, when he 
 is called upon as a witness in a court of 
 justice. 
 
 CONFESSORIA ACTIO. See "Actio Con- 
 fessoria." 
 
 CONFESSUS IN JUDICIO PRO JUDl- 
 cato habetur et quodammodo sua sententia 
 damnatur. A person who has confessed in 
 court is deemed as having had judgment 
 passed upon him, and, in a manner, is con- 
 demned by his own sentence. 11 Coke, 30. 
 See Dig. 42. 2. 1. 
 
 CONFIDENTIAL COMMUNICATIONS. 
 
 Those statements with regard to any trans- 
 action made by one person to another during 
 the continuance of some relation between 
 them which calls for or warrants such com- 
 munications. 
 
 At law, certain classes of such communi- 
 cations are held not to be proper subjects of 
 
CONFIRMARE EST ID, ETC. 
 
 (187) CONFLICT OF PRESUMPTIONS 
 
 inquiry in courts of justice, and the persons 
 receiving them are excluded from disclosing 
 them when called upon as witnesses, upon 
 grounds of public policy; as communications 
 between husband and wife, between attorney 
 and client, or between priest and penitent. 
 
 CONFIRMARE EST ID QUOD PRIUS IN- 
 flrmum fuit simul firmare. To confirm is to 
 make firm what was before infirm. Co. Lltt. 
 295. 
 
 CONFIRMARE NEMO POTEST PRIUS- 
 quam jus ei acciderit. No one can confirm 
 before the right accrues to him. 10 Coke, 48. 
 
 CONFIRMATIO (Lat. confinnare). The 
 conveyance of an estate, or the communica- 
 tion of a right that one hath in or unto 
 lands or tenements, to another that hath the 
 possession thereof, or some other estate 
 therein, whereby a voidable estate is made 
 sure and unavoidable, or whereby a particu- 
 lar estate is increased or enlarged. Shep. 
 Touch. 311; 2 Bl. Comm. 325. 
 
 Gonflrmatio crescens tends and serves to 
 increase or enlarge a rightful estate, and so 
 to pass an interest. 
 
 Gonflrmatio diminuens tends or serves to 
 diminish and abridge the services whereby 
 the tenant holds. 
 
 Gonflrmatio perflciens tends and serves to 
 confirm and make good a wrongful and de- 
 feasible estate, by adding the right to the 
 possession or defeasible seisin, or to make 
 a conditional estate absolute, by discharging 
 the condition. 
 
 CONFIRMATIO CHARTARUM (Lat. con- 
 firmation of the charters). A statute passed 
 in 25 Edw. I., whereby the Great Charter is 
 declared to be allowed as the common law; 
 all judgments contrary to it are declared 
 void; copies of it are ordered to be sent to 
 all cathedral churches, and read twice a year 
 to the people; and sentence of excommuni- 
 cation is directed to be as constantly de- 
 nounced against all those that, by word or 
 deed or counsel, act contrary thereto, or in 
 any degree infringe it. 1 Bl. Comm. 128. 
 
 CONFIRMATIO EST NULLA, UBI DON- 
 um praecedens est invalidum. A confirma- 
 tion is null where the preceding gift is In- 
 valid. Co. Litt. 295; F. Moore, 764. 
 
 CONFIRMATIO OMNES SUPPLET DE- 
 fectus, licet id quod actum est ab initio non 
 valult. Confirmation supplies all defects, 
 though that which has been done was not 
 valid at the beginning. Co. Litt. 295b. 
 
 CONFIRMATIO PERFICIENS (Law Lat.) 
 In old English law. A perfecting confirma- 
 tion; a confirmation which tends and serves 
 to confirm and make good a wrongful and de- 
 feasible estate, by adding the right to the 
 possession, or defeasible seisin, or to make a 
 conditional estate absolute, by discharging 
 the condition. Shep. Touch, (by Preston) 
 311. 
 
 CONFIRMATION. A contract by which 
 
 that which was voidable is made firm and 
 unavoidable. 
 
 A conveyance, whereby a voidable estate 
 previously granted is made firm. 
 
 Ratification of an oflicial act by a person 
 or body having a supervisory jurisdiction; 
 as confirmation of a referee's report by the 
 court; confirmation of a sheriff's sale; con- 
 fiimation by the legislative body of an ap- 
 pointment by the executive. 
 
 In Ecclesiastical Law. Ratification 
 
 by the archbishop of the election of a bish- 
 op by the dean and chapter. Wharton. 
 
 CONFIRMAT USUM QUI TOLLIT ABUS- 
 
 um. He confirms a use who removes an 
 abuse. P. Moore, 764. 
 
 CONFIRMAVI (Lat.) I have confirmed. 
 Used in ancient deeds of confirmation. 
 
 CONFIRMEE. He to whom a confirma- 
 tion is made. 
 
 CONFIRMOR. 
 
 tion to another. 
 
 He who makes a confirma- 
 
 CONFISCARE. To confiscate. 
 
 CONFISCATE. To appropriate to the use 
 of the state. Especially used of the goods 
 and property of alien enemies found in a 
 state in time of war. 1 Kent, Comm. 52 et 
 seq. Bona confiscata and forisfacta are said 
 to be the same (1 Bl. Comm. 299), and the 
 result to the individual is the same whether 
 the property be forfeited or confiscated; but, 
 as distinguished, an individual forfeits, a 
 state confiscates, goods or other property. 
 Used also as an adjective, — forfeited. I Bl. 
 Comm. 299. 
 
 Confiscation is to be distinguished from a 
 proceeding in prize. "Confiscation is the act 
 of the sovereign against a rebellious sub- 
 ject; condemnation as prize is the act of a 
 belligerent against another belligerent." 14 
 Ct. CI. Rep. 48. 
 
 CONFISK. An old form of confiscate. 
 Finch, Law, bk. 3, c. 17. 
 
 CONFITENS REUS. An accused person 
 who admits his guilt. 
 
 CONFLICT OF LAWS. A contrariety or 
 opposition in the laws of states in those 
 cases where, from their relations to each 
 other, or to the subject-matter in dispute, 
 the rights of the parties are liable to be af- 
 fected by the laws of both jurisdictions. 
 
 An opposition or inconsistency of domestic 
 laws upon the same subject. 
 
 As a term of art, it also includes the de- 
 ciding which law is in such cases to have 
 superiority. It also includes many cases 
 where there is no opposition between two 
 systems of law, but where the question is 
 how much force may be allowed to a foreign 
 law with reference to which an act has been 
 done, either directly or by legal implication, 
 in the absence of any domestic law exclu- 
 sively applicable to the case. 
 
 CONFLICT OF PRESUMPTIONS. In this 
 confiict, certain rules are applicable, viz.: 
 
CONFORMITY 
 
 (188) 
 
 CONJECTIO 
 
 (1) Special take precedence of general pre- 
 sumptions; (2) constant of casual ones; (3) 
 presume in favor of innocence; (4) of le- 
 gality; (5) of validity; and, when these 
 rules fail, the matter is said to be "at large." 
 Brown. 
 
 CONFORMITY. In English ecclesiastical 
 law. Adherence to the doctrines and usages 
 of the Church of England. 
 
 CONFORMITY, BILL OF. See "Bill of 
 Conformity." 
 
 CONFRAIRIE (Fr.) A fraternity, brother- 
 hood, or society. Cowell. 
 
 CONFRONTATION. In practice. The act 
 by which a witness is brought into the pres- 
 ence of the accused, so that the latter may 
 object to him, if he can, and the former may 
 know and identify the accused, and main- 
 tain the truth in his presence. No man can 
 be a witness unless confronted with the ac- 
 cused, except by consent. 
 
 CONFUSIO (Lat. confundere). In civil 
 law. A pouring together of liquids; a melt- 
 ing of metals; a blending together of an 
 inseparable compound. 
 
 It is distinguished from commixtis by the 
 fact that in the latter case a separation may 
 be made, while in a case of confusio there 
 cannot be. Bowyer, Comm. 88; 2 Bl. Comm. 
 405. 
 
 CONFUSION. 
 
 In Common Law. The intermixture 
 
 of the goods of two persons, so that the sev- 
 eral portions can be no longer distinguished. 
 2 Bl. Comm. 405. The term, and, in a great 
 degree, the doctrine, are borrowed from the 
 confusio of the civil law. The meaning of 
 the former, however, has been so far modi- 
 fied as to include not only the intermixture 
 or interfusion of liquids and metals (the 
 confusio proper of the civil law), but also 
 that of dry articles (properly expressed in 
 the same law by the term commixtio) . The 
 doctrines, also, of the two systems so far 
 differ that, while the civil law allows a party 
 who willfully intermixes his property with 
 that of another, without his approbation or 
 consent, a satisfaction for what he has so 
 Improvidently lost, the common law allows 
 him nothing, but gives the entire property to 
 the other party. 2 Bl. Comm. 405-; Inst. 2. 1. 
 28; 2 Steph, Comm. 85; 2 Kent, Comm. 
 364; U. S. Dig. It is the admixture of 
 goods of the same kind, as distinguished 
 from "accession," which is the union of ma- 
 terials of different kinds. 
 
 In Civil Law. The blending or union 
 
 of the characters of debtor and creditor in 
 the same person ; the union of the obligation 
 of the debtor with the right of the creditor, 
 which dissolves or extinguishes the former. 
 Heinec. Blem. Jur. Civ. bk. 3, tit. 30, § 
 1006; Ersk. Inst. lib. e, tit. 4, § 23. Thus, 
 where a woman obligee marries the obligor, 
 the debt is extinguished. 1 Salk. 306. 
 
 CONFUSION OF RIGHTS. A union of 
 the qualities of debtor and creditor in the 
 
 same person. The effect of such a union is 
 generally to extinguish the debt. 1 Salk. 
 306; Cro. Car. 551; 1 Ld. Raym. 515. See 
 5 Term R. 381; Comyn, Dig. "Baron et 
 Feme" (D). 
 
 CONGE. In French law. A clearance; a 
 species of passport or permission to navi- 
 gate. 
 
 CONGE D'ACCORDER (Fr. leave to ac- 
 cord). A phrase used in the process of 
 levying a fine. Upon the delivery of the 
 original writ, one of the parties immediately 
 asked for a conge d'accorder, or leave to 
 agree with the plaintiff. Termes de la Ley; 
 Cowell. See "Licentia Concordandi;" 2 Bl. 
 Comm. 350. 
 
 CONGE D'EMPARLER (Fr. leave to im- 
 parl). The privilege of an imparlance {li- 
 centia loquendi). 3 Sharswood, Bl. Comm. 
 299. 
 
 CONGE D'ESLIRE (Fr.) The king's per- 
 mission royal to a dean and chapter in time 
 of vacation to choose a bishop, or to an 
 abbey or priory of his own foundation to 
 choose the abbot or prior. 
 
 Originally, the king had free appointment 
 of all ecclesiastical dignities whensoever 
 they chanced to be void. Afterwards he 
 made the election over to others, under cer- 
 tain forms and conditions, as, that at every 
 vacation they should ask of the king conge 
 d'esUre. Cowell; Termes de la Ley; 1 Bl. 
 Comm. 379, 382. 
 
 CONGEABLE (Fr. conge, permission, 
 leave). Lawful, or lawfully done, or done 
 with permission; as, entry congeable, and 
 the like. Litt. § 279. 
 
 CONGILDONES. In Saxon law. Fellow 
 members of a guild. Spelman, voc "Gel- 
 dum." 
 
 CONGIUS. An ancient measure containing 
 about a gallon and a pint. Cowell; Blount. 
 
 CONGREGATION. A society of a number 
 of persons who compose an ecclesiastical 
 body. 
 
 In the ecclesiastical law, this term is used 
 to designate certain bureaus at Rome, where 
 ecclesiastical matters are attended to. 
 
 In the United States, by congregation is 
 meant the members of a particular church 
 who meet in one place to worship. See 2 
 Russ. 120. 
 
 It is a broader term than "communicants," 
 including all who habitually meet together 
 for worship. 11 N. Y. 243. 
 
 CONG R ESS. An assembly of deputies con- 
 vened from different governments to treat 
 of peace or of other international affairs. 
 
 The name of the legislative body of the 
 United States, composed of the senate and 
 house of representatives. Const. U. S. art. 
 1, § 1. 
 
 CONJECTIO. In the civil law of evidence. 
 A throwing together; presumption; the put- 
 ting of things together, with the inference 
 drawn therefrom. Matt. Pr. c. 1, note 43. 
 
CONJECTIO CAUSAE 
 
 (189) 
 
 CONQUEST 
 
 CONJECTIO CAUSAE. In civil law. A 
 statement of the case; a brief synopsis of 
 the case given by the advocate to the judge 
 in opening the trial. Calv. Lex. 
 
 CONJECTURE. A slight degree of cre- 
 dence, arising from evidence too weak or 
 too remote to cause belief. 1 Mascardus de 
 Prob. quaest. 14, note 14. 
 
 An idea or notion founded on a probabil- 
 ity, without any demonstration of its truth. 
 
 CONJOINTS. Persons married to each 
 other. Story, Confl. Laws, § 71. Wolff. Dr. 
 Nat. § 858. 
 
 CONJUGAL RIGHTS. Rights arising from 
 the relation of husband and wife. 
 
 In England, a writ lies for restitution to 
 conjugal rights in case of intentional de- 
 sertion, including, perhaps, a refusal to con- 
 summate marriage, under some circum- 
 stances, but this remedy has never been 
 adopted in the United States. Bish. Mar. 
 & Div. § 503 et seq. ; 3 Bl. Comm. 94. 
 
 CONJUGIUM. One of the names of mar- 
 riage, among the Romans. Tayl. Civ. Law, 
 284. 
 
 CONJUNCT, In Scotch law. Joint, as 
 applied to rights. Ersk. Inst. bk. 3, tit. 8, § 
 34; Bell, Diet. 
 
 Connected, as applied to persons. Bell, 
 Diet. 
 
 CONJUNCT A. In civil law. Things joined 
 together or united; as distinguished from 
 disjuncta. things disjoined or separated. 
 Dig. 50. 16. 53. 
 
 CONJUNCTIM (Lat.) In old English law. 
 Jointly. Inst. 2. 20. 8; Bracton, fol. 19. 
 
 CONJUNCTIM ET DIVISIM (Law Lat.) 
 In Old English Law. Jointly and sev- 
 erally. Bracton, fol. 19. 
 
 In the Civil Law. Conjunctim et dis- 
 
 junctim and conjunctim et separatim, were 
 used. 
 
 CONJUNCTIO. In civil law. Conjunc- 
 tion; connection of words In a sentence. 
 See Dig. 50. 16. 29. 142. 
 
 CONJUNCTIO IVIARITI ET FEIVIINAE 
 est de jure naturae. The union of a man 
 and a woman is of the law of nature. 
 
 CONJUNCTIVE. 
 denoting union. 
 
 Connecting in a manner 
 
 CONJURATIO. 
 
 In Old English Law. A swearing to- 
 gether; an oath administered to several to- 
 gether; a combination or confederacy under 
 oath. Cowell; Blount; Tomlin. 
 
 In Old European Law. A compact of 
 
 the inhabitants of a commune, or munici- 
 pality, confirmed by their oaths to each 
 other, and which was the ^asls of the com- 
 mune. Steph. Lect. 119. 
 
 CONJURATION (Lat. a swearing to- 
 gether). A plot, bargain, or compact, made 
 by a number of persons under oath, to do 
 some public harm. 
 
 Personal conference with the devil or 
 some evil spirit, to know any secret or effect 
 any purpose. 
 
 CONJURATOR. In old English law. One 
 who swears or is sworn with others; one 
 bound by oath with others; a compurgator; 
 a conspirator. Britt. 27, 120; Pleta, lib. 2, 
 e. 47, § 6. 
 
 CONNIVANCE. An agreement or con- 
 sent, indirectly given, that something unlaw- 
 ful shall be done by another. 
 
 A married party's corrupt consenting to 
 evil conduct, of which afterwards he com- 
 plains. 2 Bish. Mar. & Div. § 203. 
 
 Connivance differs from condonation, 
 though the same legal consequences may at- 
 tend it. Connivance necessarily involves 
 criminality on the part of the individual who 
 connives; condonation may take place with- 
 out imputing the slightest blame to the 
 party who forgives the injury. Connivance 
 must be the act of the mind before the of- 
 fense has been committed; condonation is 
 the result of a determination to forgive an 
 injury which was not known until after it 
 was inflicted. 3 Hagg. Ecc. 350. 
 
 An error of judgment not involving a 
 willingness to have the delinquency com- 
 mitted is not connivance. 10 Jur. 829. Nor 
 is a watching of the guilty parties, without 
 interference. 109 Mass. 408. 
 
 CONNOISSEMENT. In French law. An 
 instrument, signed by the master of a ship 
 or his agent, containing a description of the 
 goods loaded on a ship, the persons who 
 have sent them, the persons to whom they 
 were sent, and the undertaking to transport 
 them. A bill of lading. Guyot, Rep. Univ.; 
 Ord. de la Mar. lib. 3, tit 2, art. 1. 
 
 CONNUBIUM (Lat.) A lawful marriage. 
 
 CONOCIAIVIENTO. In Spanish law. A 
 recognizance. White, New Recop. bk. 3, tit. 
 7, c. 5, § 3. 
 
 CONOCIIVIIENTO. In Spanish law. A bill 
 of lading. In the Mediterranean ports it is 
 called poliza de cargamiento. For the requi- 
 sites of this instrument, see Code Comm. 
 Spain, arts. 799-811. 
 
 CONPOSSESSIO. In modern civil law. 
 A joint possession. Mackeld. Civ. Law, § 
 245. 
 
 CONQUEREUR. In Norman and old Eng- 
 lish law. The first purchaser of an estate; 
 he who first brought an estate into his fam- 
 ily. 2 Bl. Comm. 243. 
 
 CONQUEROR. In old English and Scotch 
 law. Same as "conquereur." 
 
 CONQUEST (Lat. conquiro, to seek for). 
 In Feudal Law. Purchase; any means 
 
CONQUETS 
 
 (190) 
 
 CONSEIL, DE FAMILLE 
 
 of obtaining an estate out of the usual 
 course of inheritance. 
 
 The estate itself so acquired. 
 
 According to Blackstone and Sir Henry 
 Spelman, the word in its original meaning 
 was entirely dissociated from any connection 
 with the modern idea of military subjuga- 
 tion, but was used solely in the sense of 
 purchase. 
 
 In International Law. The acquisition 
 
 of the sovereignty of a country by force of 
 arms, exercised by an independent power 
 which reduces the vanquished to the sub- 
 mission of its empire. 
 
 CONQUETS. In French law. The name 
 given to every acquisition which the hus- 
 band and wife, jointly or severally, make 
 during the conjugal community. Thus, what- 
 ever is acquired by the husband and wife, 
 either by his or her industry or good fortune, 
 inures to the extent of one-half for the ben- 
 efit of the other. Merlin, Repert; Merlin, 
 Quest. In Louisiana, these gains are called 
 aguets. Civ. Code La. art. 2369. The com- 
 quets by a former marriage may not be set- 
 tled on a second wife to prejudice the heirs. 
 2 Low. (U. S.) 175. 
 
 CONQUISITIO. In feudal and old Eng- 
 lish law. Acquisition. Spelman, voc. "Con- 
 questus;" 2 Bl. Comm. 242. 
 
 CONQUISITOR. In feudal law. A pur- 
 'chaser, acquirer, or conqueror. 2 Bl. Comm. 
 242, 243. 
 
 CONSANGUINEOUS FRATER. Abrother 
 who has the same father. 2 Bl. Comm. 231. 
 
 CONSANGUINEUS. One within the de- 
 grees of consanguinity. 
 
 CONSANGUINEUS EST QUASI EODEM 
 sanguine natus. A person related by con- 
 sanguinity is, as it were, sprung from the 
 same blood. Co. Litt. 157. 
 
 CONSANGUINITY (Lat. consanguis, blood 
 together). The relation subsisting among all 
 the different persons descending from the 
 same stock or common ancestor. 
 
 Collateral Consanguinity. The rela- 
 tion subsisting among persons who descend 
 from the same common ancestor, but not 
 one from the other. It is essential, to con- 
 stitute this relation, that they spring from 
 the same common root or stock, but in dif- 
 ferent branches. 
 
 The mode of computing degrees of collat- 
 eral consanguinity at the common and by 
 the canon law is to discover the common 
 ancestor, to begin with him to reckon down- 
 wards, and the degree the two persons, or 
 the more remote of them, is distant from 
 the ancestor, is the degree of kindred sub- 
 sisting between them. For instance, two 
 brothers are related to each other in the 
 first degree, because from the father to each 
 of them is one degree. An uncle and a 
 nephew are related to each other in the sec- 
 ond degree, because the nephew is two de- 
 grees distant from the common ancestor; 
 and the rule of computation is extended to 
 
 the remotest degrees of collateral relation- 
 ship. 
 
 The method of computing by the civil law 
 is to begin at either of the persons in ques- 
 tion, and count up to the common ancestor, 
 and then downwards to the other person, 
 calling it a degree for each person, both as- 
 cending and descending, and the degrees 
 they stand from each other is the degree in 
 which they stand related. Thus, from a 
 nephew to his father is one degree; to the 
 grandfather, two degrees; and then to the 
 uncle, three; which points out the relation- 
 ship. 
 
 The mode of the civil law is preferable, 
 for it points out the actual degree of kindred 
 in all cases. By the mode adopted by the 
 common law, different relations may stand 
 in the same degree. The uncle and nephew 
 stand related in the second degree by the 
 common law, and so are two first cousins, or 
 two sons of two brothers; but by the civil 
 law the uncle and nephew are in the third 
 degree, and the cousins are in the fourth. 
 The mode of computation, however, is im- 
 material, for both will establish the same 
 person to be the heir. 2 Bl. Comm. 202. See 
 "Descent;" "Line." 
 
 Lineal Consanguinity. That relation 
 
 which exists among persons where one is 
 descended from the other, as between the 
 son and the father, or the grandfather, and 
 so upwards in a direct ascending line, and 
 between the father and the son, or the grand- 
 son, and so downwards in a direct descend- 
 ing line. 
 
 In computing the degree of lineal con- 
 sanguinity existing betwen two persons, ev- 
 ery generation in the direct course of rela- 
 tionship between the two parties makes a 
 degree, and the rule is the same by the 
 canon, civil, and common law. 
 
 CONSCIENCE. Internal or self knowl- 
 edge or judgment of right or wrong. It is 
 not identical with "principle." An "objec- 
 tion on principle" to the death penalty Is 
 not the same as a conscientious scruple. 7 
 Cal. 140. 
 
 CONSCIENCE, COURTS OF. Courts, not 
 of record, constituted by act of parliament 
 in the city of London, and other towns, for 
 the recovery of small debts; otherwise and 
 more commonly called "Courts of Requests." 
 3 Steph. Comm. 451. 
 
 CONSCIENTIA DICITUR A CON ET 
 scio, quasi scire cum Deo. Conscience is 
 called from con and scio, to know, as it 
 were, with God. 1 Coke, 100. 
 
 CONSECRATIO EST PERIODUS ELEC- 
 cionis; electio est praeambula consecra- 
 tionis. Consecration is the termination of 
 election; election is the preamble of conse- 
 cration. 2 Rolle, Abr. 102. 
 
 CONSEIL DE FAMILLE. A council of 
 the family. In French law, certain acts 
 require the sanction of this body. For ex- 
 ample, a guardian can neither accept nor re- 
 ject an inheritance to which the minor has 
 succeeded without his authority (Code Nap. 
 
CONSEIL JUDICIAIRE 
 
 (191) CONSERVATOR OF THE PEACE 
 
 461) ; nor can he accept for the child a gift 
 inter vivos without the like authority (Id. 
 463). So, also, in bringing or compromising 
 a suit on behalf of the child, or generally in 
 compounding claims, and in numerous per- 
 sonal relations, e. g., consent to marriages of 
 orphans, the authority of this body is neces- 
 sary. 
 
 CONSEIL JUDICIAIRE. In French law. 
 When a person has been subjected to an in- 
 terdiction on the ground of his insane ex- 
 travagance, but the interdiction is not abso- 
 lute, but limited only, the court of first in- 
 stance, which grants the interdiction, ap- 
 points a "Council, called by this name, with 
 whose assistance the party may bring or de- 
 fend actions, or compromise the same, alien- 
 ate his estate, make or incur loans, and the 
 like. Brown. 
 
 CONSENSUAL CONTRACT. In civil law. 
 A contract completed by the consent of the 
 parties merely, without any further act. 
 
 The contract of sale, among the civilians, 
 is an example of a consensual contract, be- 
 cause the moment there is an agreement be- 
 tween the seller and the buyer as to the 
 thing and the price, the vendor and the pur- 
 chaser base reciprocal actions. On the con- 
 trary, on a loan, there is no action by the 
 lender or borrower, although there may have 
 been consent until the thing is delivered, or 
 the money counted. Poth. Obi. pt. 1, c. 1, § 
 1, art. 2; 1 Bell, Comm. (5th Ed.) 435. 
 
 CONSENSUS EST VOLUNTAS PLU- 
 rlum ad quos res pertinet, simul juncta. 
 Consent is the conjoint will of several per- 
 sons to whom the thing belongs. Loftt, 514. 
 
 CONSENSUS FACIT LEGEM. Consent 
 makes the law. A contract is law between 
 the parties having received their consent. 
 Branch, Princ. 
 
 CONSENSUS, NON CONCUBITUS, FACIT 
 matrimonlum. Consent, not coition, consti- 
 titutes marriage. Co. Lift. 33a; Dig. 50. 17. 
 30. See 10 Clark & F. 534; 1 Bouv. Inst. 
 103; Broom, Leg. Max. (3d London Ed.) 
 129. 
 
 CONSENSUS, NON CONCUBITUS, FA- 
 cit nuptias vel matrimonlum, et consentire 
 non possunt ante annos nublles. Consent, 
 and not cohabitation, constitutes nuptials or 
 marriage, and persons cannot consent before 
 marriageable years. 6 Coke, 22; 1 31. Comm. 
 434. 
 
 CONSENSUS TOLLIT ERROREM. Con- 
 S3nt removes or obviates a mistake. Co. 
 Litt. 126; Coke, 2d Inst. 123; Broom, Leg. 
 Max. (3d London Ed.) 129; 1 Bing. N. C. 
 68; 6 El. & Bl, 338; 7 Johns. (N. Y.) 611. 
 
 CONSENSUS VOLUNTAS MULTORUM 
 ad quos res pertinet, simul juncta. Consent 
 is the united will of several interested in one 
 subject-matter. Dav. 48; Branch, Princ. 
 
 CONSENT (Lat. con, with, together, sen- 
 tire, to feel). A concurrence of wills. 
 
 Express consent is that directly given, 
 either viva voce or in writing. 
 
 Implied consent is that manifested by 
 signs, actions, or facts, or by inaction or si- 
 lence, which raise a presumption that the 
 consent has been given. 
 
 Consent supposes a physical power to act, 
 a moral power of acting, and a serious, de- 
 termined, and free use of these powers. 
 Ponbl. Eq. bk. 1, c. 2, § 1. See "Agreement;" 
 "Contract." 
 
 CONSENT RULE. An entry of record by 
 the defendant, confessing the lease, entry, 
 and ouster by the plaintiff, in an action of 
 ejectment. This was, until recently, used in 
 England and in those of the United States 
 in which the action of ejectment is still re- 
 tained as a means of acquiring possession of 
 land. 
 
 CONSENTIENTES ET AGENTES PARI 
 
 poena plectentur. Those consenting and 
 those perpetrating shall receive the same 
 punishment. 5 Coke, 80. 
 
 CONSENTIRE MATRIMONIO NON POS- 
 sunt infra annos nublles. Persons cannot 
 consent to marriage before marriageable 
 years. 5 Coke, 80; 6 Coke, 22. 
 
 CONSEQUENTIAE NON EST CONSE- 
 
 quentia. A consequence ought not to be 
 drawn from another consequence. Bac. 
 Aph. 16. 
 
 CONSEQUENTIAL DAMAGES. Those 
 damages or those losses which arise not 
 from the immediate act of the party, but in 
 consequence of such act. Those produced 
 naturally, but not directly. 
 
 CONSERVATOR (Lat. conservare, to pre- 
 serve). A preserver; one whose business it 
 is to attend to the enforcement of certain 
 statutes. 
 
 A delegated umpire or standing arbitrator, 
 chosen to compose and adjust diflBculties 
 arising between two parties. Cowell. 
 
 A guardian. So used in Connecticut. 3 
 Day (Conn.) 472; 5 Conn. 280; 3 Conn. 228; 
 12 Conn. 376. 
 
 CONSERVATOR OF THE PEACE. He 
 
 who hath an especial charge, by virtue of 
 his office, to see that the king's peace be 
 kept. 
 
 Before the reign of Edward III., who cre- 
 ated justices of the peace, there were sundry 
 persons interested to keep the peace, of 
 whom there were two classes; one of which 
 had the power annexed to the office which 
 they held; the other had it merely by itself, 
 and were hence called "wardens" or "con- 
 servators of the peace." Lambard, Eiren. 
 lib. 1, c. 3. This latter sort are superseded 
 by the modern justices of the peace. 1 Bl. 
 Comm. 349. 
 
 The judges and other similar officers of 
 the various states, and also of the United 
 States, are conservators of the public peace, 
 being entitled "to hold to the security of the 
 peace and during good behavior." 1 Shars- 
 wood, Bl. Comm. 349. 
 
CONSERVATOR TRUCIS 
 
 (192) 
 
 CONSIDERATUM EST, ETC. 
 
 CONSERVATOR TRUCIS (Lat.) An of- 
 ficer whose duty it was to inquire into all 
 offenses against the king's truces and safe- 
 conducts ui>on the main seas out of the lib- 
 erties of the Cinque Ports. 
 
 Under St. 2 Hen. V. st. 1, c. 6, such of- 
 fenses are declared to be treason, and such 
 officers are appointed in every port, to hear 
 and determine such cases, "according to the 
 ancient maritime law then practised in the 
 admiral's court, as may arise upon the high 
 seas, and with two associates to determine 
 those arising upon land." 4 Bl. Comm. 69, 
 70. 
 
 CONSERVATORS OF RIVERS. In Eng- 
 lish law. Commissioners who are, by act 
 of parliament, given the control of a cer- 
 tain river. 
 
 CONSIDtRATIO CURIAE. The consid- 
 eration of the court; that is, the judgment of 
 the court implying consideration or study. 
 
 CONSIDERATION (Law Lat. consideratio) . 
 The material cause which moves a contract- 
 ing party to enter into a contract. 2 Bl. 
 Comm. 443. 
 
 The price, motive, or matter of induce- 
 ment to a contract, — whether it be the com- 
 pensation which is paid, or the inconven- 
 ience which is suffered by the party from 
 whom it proceeds. A compensation or equiv- 
 alent. A cause or occasion meritorious, re- 
 quiring mutual recompense in deed or in 
 law. Viner, Abr. "Consideration" (A). 
 
 The quid pro quo, that which the party to 
 whom a promise is made does or agrees to 
 do in exchange therefor. 120 XT. S. 197. 
 
 Mutuality of obligation, as to each party, 
 is the obligation imposed by the contract on 
 the other party. 
 
 As applied to contracts, "consideration" 
 and "obligation" are really convertible 
 terms, though frequently used as correla- 
 tives. The essence of every contract is its 
 mutuality, and, in necessary consequence, 
 the obligation of each, party is the consid- 
 eration running to the other, while the en- 
 tire obligation of the contract is the mutual 
 considerations. 
 
 "The motive for entering into a contract, 
 and the consideration of the contract, are 
 not the same. Nothing is consideration that 
 is not regarded as such by both parties. It 
 is the price voluntarily paid for the prom- 
 isor's undertaking. Expectation of results 
 will not constitute a consideration." Beach. 
 Cont. § 147. 
 
 Consideration is the very life and essence 
 of a contract, and a contract or promise for 
 which there is no consideration cannot be 
 enforced at law. Such a promise is called 
 a nudum pactum (ex nudo pacio non oritur 
 actio), or nude pact, because a gratuitous 
 promise to do or pay anything on the one 
 side, without any compensation on the oth- 
 er, could only be enforced, in the Roman 
 law, when made (or clothed) with proper 
 words or formalities, — pactum rerbis pre- 
 scriptis vestitum. 7 Watts & S. (Pa.) 317; 
 Plowd. 308; Smith, Lead. Cas. 456; Doctor 
 & Stud. 2, c. 24; 3 Call (Va.) 439; 7 Conn. 57; 
 
 1 Stew. (Ala.) 51; 5 Mass. 301; 4 Johns 
 (N. Y.) 235; 6 Yerg. (Tenn.) 418; Cooke 
 (Tenn.) 467; 6 Halst. (N. J.) 174; 4 Munf. 
 (Va.) 95; 11 Md. 281; 25 Miss. 66; 30 Me 
 412. 
 
 Considerations, according to their general 
 nature, are: 
 
 (1) Valuable, being one which confers 
 some benefit on the party at whose in- 
 stance it is made, or upon a third party, 
 at his request, or some detriment sustained 
 at the instance of the party promising by 
 .'.he party to whom the promise is made. 
 
 (2) Good, being one of blood, natural af- 
 fection, or the like. Beach, Cont. § 148; 
 Chit. Cqpt. 7; Doctor & Stud. 179; i 
 Selw. N. P. 39, 40; 2 Pet. (U. S.) 182; 5 
 Cranch (U. S.) 142, 150; 1 Lift. (Ky.) 183- 
 3 Johns. (N. Y.) 100; 14 Johns. (N. Y.) 
 466; 8 N. Y. 207; 6 Mass. 58; 2 Bibb (Ky.) 
 30; 2 J. J. Marsh. (Ky.) 222; 2 N. H. 97- 
 Wright (Ohio) 660; 5 Watts & S. (Pa.) 427; 
 13 Serg. & R. (Pa.) 29; 12 Ga. 52; 24 Miss. 
 9; 4 111. 33; 5 Humph. (Tenn.) 19; 4 Blackf. 
 (Ind.) 388; 3 C. B. 321; 4 Bast, 55. 
 
 Valuable considerations are divided by the 
 civilians into four classes, which are given, 
 with literal translations: Do ut des, I give 
 that you may give, facio ut facias, I do that 
 you may do, facio ut des, I do that you may 
 give, do ut facias, I give that you may do. 
 
 They are also: 
 
 (3) Executed or past, being those done or 
 received before the obligor made the promise. 
 
 (4) Executory, being those by which it is 
 undertaken to do something in the future. 
 95 U. S. 683; 6 Colo. 318. 
 
 They are also: 
 
 (5) Concurrent, being those which arise 
 at the same time, or where the promises are 
 simultaneous. 
 
 (6) Continuing, being those which are 
 executed only in part. 
 
 (7) Equitable, being moral considerations. 
 
 (8) Moral, being such as, though not 
 valuable, are of moral obligation, and are 
 suflicient to support an executed contract. 
 18 S. E. 421. 
 
 (9) Gratuitous, being those which are not 
 founded on such a deprivation or injury 
 to the promisee as to make the consid- 
 eration valid at law. 2 Mich. 381. 
 
 (10) Illegal, being agreements to do 
 things in contravention of the common or 
 of statute law. 
 
 (11) Impossible, being those which can- 
 not be performed. 
 
 Considerations have been further classified 
 as "express" or "Implied." accordingly as 
 they are stated in the contract, or left to be 
 inferred by law, but the distinction is based 
 rather on the manner of contracting than 
 on the nature of the consideration. See 
 "Contract." 
 
 CONSIDERATUM EST PER CURIAM 
 
 (Lat. it is considered by the court). A for- 
 mula used in giving judgments. 
 
 A judgment is the decision or sentence 
 of the law, given oy a court of justice, as 
 the result of proceedings instituted therein 
 for the redress of an injury. The language 
 
CONSIDERATUR 
 
 (193) 
 
 CONSOLIDATED FUND 
 
 of the judgment is not, therefore, that "it 
 is decreed," or "resolved," by the court, but 
 that "it is considered by the court," consid- 
 vi-atum est per curkim, that the plaintiff re- 
 cover his debt, etc. 3 Bouv. Inst, note 
 3298. 
 
 CONSIDERATUR (Law Lat. it is consid- 
 ered). Held to mean the same with consid- 
 eratum est. 2 Strange, 874. 
 
 CONSIGN. To send goods to a factor or 
 agent. 
 
 In Civil Law. To deposit in the custody 
 
 of a third person a thing belonging to the 
 debtor, for the benefit of the creditor, under 
 the authority of a court of justice. Poth. 
 Obi. pt. 3, c. 1, art. 8. 
 
 The term "to consign," or "consignation," 
 is derived from the Latin consignare, which 
 signifies to seal; for it was formerly the 
 practice to seal up the money thus received 
 in a bag or box. Aso & M. Inst. bk. 2, tit. 
 11. c. 1, § 5. 
 
 Generally, the consignation is made with 
 a public officer.' It is very similar to our 
 practice of paying money into court. 
 
 CONSIGNATIO. See "Consign." 
 
 CONSIGNATION. Prom consignare, to 
 seal up. 
 
 In Scotch Law. The payment of mon- 
 ey into the hands of a third party, when the 
 creditor refuses to accept of it. The person 
 to whom the money is given is termed the 
 "consignatory." Bell, Diet. 
 
 In French Law. A deposit which a 
 
 debtor makes of the thing that he owes in- 
 to the hands of a third person, and under 
 the authority of a court of justice. 
 
 It is not properly a payment, but it is 
 equivalent to a payment, and extinguishes 
 the debt no less than if an actual payment had 
 been made. Code, 8. 43. 9; Poth. Obi. pt. 3, 
 c. 1, art. 8. 
 
 CONSIGNEE. One to whom a consign- 
 ment is made. 
 
 CONSIGNMENT. The goods or property 
 sent by means of a common carrier by one 
 or more persons, called the "consignorg," in 
 one place, to one or feiore persons, called 
 the "consignees," who are in another. The 
 goods sent by one person to another, to be 
 sold or disposed of by the latter for and on 
 account of the former. The act of consign- 
 ing goods. 
 
 In French Law. "A deposit which the 
 
 debtor makes of the thing that he owes in- 
 to the hands of a third person, and under 
 the authority of a court of justice." 1 Poth. 
 Obi. 376. 
 
 CONSIGNOR. One who makes a con- 
 signment. 
 
 CONSILIA MULTORUM REQUIRUNTUR 
 in magnis. The advice of many persons is 
 requisite in great affairs. Coke, 4th Inst. 1. 
 
 CONSILIARIUS (Lat. consiliare, to ad- 
 vise). In civil law. A counsellor, as dis- 
 
 tinguished from a pleader or advocate; an 
 assistant judge; one who participates In th!e 
 decisions. Du Cange. 
 
 CONSILIUM, or DIES CONSILII. A day 
 
 appointed to hear the counsel of both par- 
 ties. A case set down for argument. 
 
 It is commonly used for the day appoint- 
 ed for the argument of a demurrer, or errors 
 assigned. 1 Tidd, Prao. 438; 2 Tidd, Prac. 
 684, 1122; 1 Sellon, Prac. 336; 2 Sellon, Prac. 
 385; 1 Archb. Prac. 191, 246. 
 
 CONSIMILI CASU (Lat. in like case). 
 In practice. A writ of entry, framed under 
 the provisions of St. Westminster II. (13 
 Bdw. I.) c. 24, which lay for the benefit 
 of the reversioner, where a tenant by the 
 curtesy aliened in fee or for life. 
 
 Many other new writs were framed under 
 the provisions of this statute, but this par- 
 ticular writ was known emphatically by the 
 title here defined. The writ is now prac- 
 tically obsolete. See "Case;" "Assumpsit;" 
 3 Sharswood, Bl. Comm. 51; 3 Bouv. Inst, 
 note 3482. 
 
 CONSISTORIUM. The state council of 
 the Roman emperors. Mackeld. Civ. Law, § 
 58. 
 
 CONSISTORY. In ecclesiastical law. An 
 assembly of cardinals convoked by the pope. 
 
 The consistory is either public or secret. 
 It is public when the pope receives princes 
 or gives audience to ambassadors; secret 
 when he fills vacant sees, proceeds to the 
 canonization of saints, or judges and settles 
 certain contestations submitted to him. 
 
 CONSISTORY COURT. In English law. 
 The courts of diocesan bishops held in their 
 several cathedrals before the bishops' chan- 
 cellor, or commissary, who is the judge, for 
 the trial of all ecclesiastical causes arising 
 within their respective dioceses, and also 
 for granting probates and administrations. 
 From the sentence of these courts an ap- 
 peal lies to the archbishop of each province 
 respectively. 2 Steph. Comm. 230, 237; 3 
 Steph. Comm. 430, 431; 3 Bl. Comm. 641; 1 
 Wooddeson, Lect. 145; Halifax, Anal. bk. 3, 
 c. 10, note 12. 
 
 CONSOLATO DEL MARE. A code of sea 
 laws, compiled by order of the ancient kings 
 of Arragon. It comprised the ancient ordi- 
 nances of the Greek and Roman emperors, 
 and of the kings of Prance and Spain, and 
 the laws of the Mediterranean islands and 
 of Venice and Genoa. See "Admiralty." It 
 was originally written in the dialect of Cata- 
 lonia, as its title indicates, and it has been 
 translated into every language of Europe. 
 This code has been reprinted in the second 
 volume of the Collection de Lois Maritimes 
 Anterieures au XVIII Siecle, par J. M. Par- 
 dessus, Paris, 1831, — a collection of sea laws 
 which is very complete. See, also, Riddu's 
 Hist. Mar. Comm. 171; Marvin, Leg. Bibl. 
 
 CONSOLIDATED FUND. In England. 
 Usually abbreviated to consols. A fund for 
 the payment of the public debt. 
 
CONSOLIDATED ORDERS 
 
 (194) 
 
 CONSTABLE 
 
 CONSOLIDATED ORDERS. The orders 
 regulating the practice of the English court 
 of chancery, which were issued, in 1860, in 
 substitution for the various orders which 
 had previously been promulgated from time 
 to time. Some of the consolidated orders 
 have been abrogated by the judicature act, 
 but others are still in force. 
 
 CONSOLIDATION. 
 
 In Civil Law. The union of the usu- 
 fruct with the estate out of which it issues, 
 in the same person, which happens when the 
 usufructuary acquires the estate, or vice 
 versa. In either case the usufruct is ex^ 
 tinct. Lee. Elm. 424. 
 
 It may take place in two ways: First, 
 by the usufructuary surrendering his right 
 to the proprietor, which in the common law 
 is called a "surrender;" secondly, by the 
 release of the proprietor of his rights to the 
 usufructuary, which in our law is called a 
 "release." 
 
 In Ecclesiastical Law. The union of 
 
 two or more benefices in one. Cowell. 
 
 In. Practice. The union of two or more 
 
 pending actions in the same court between 
 the same parties, and involving the same 
 issues. 
 
 Of Corporations. The merger of the 
 
 franchises, rights, and effects of two or more 
 corporations into one, whether the single 
 corporation, known as the "consolidated 
 company," be a new one then created, or 
 one of the original companies continuing in 
 existence with only larger rights, capacities, 
 and property. 64 Ala. 656. 
 
 CONSOLIDATION RULE. In practice. 
 An order of the court requiring the plain- 
 tiff to join in one suit several causes of ac- 
 tion against the same defendant which may 
 be so joined consistently with the rules of 
 pleading, but upon which he has brought 
 distinct suits. 1 Ball. (Pa.) 147; 1 Yeates 
 (Pa.) 5; 4 Yeates (Pa.) 128; 3 Serg. & R. 
 (Pa.) 264; 2 Archb. Prac. 180. The matter 
 is regulated by statute in many of the 
 states. 
 
 CONSOLS. Funds formed by the consoli- 
 dation (of which word it is an abbreviation) 
 of different annuities, which had been sev- 
 erally formed into a capital. See "Consolidat- 
 ed Fund." 
 
 CONSORTIO MALORUM ME QUOQUE 
 malum facit. The company of wicked men 
 makes me also wicked. Moore, 817. 
 
 CONSORTIUM. 
 
 In Civil Law. A union of fortunes; 
 
 one of the names of lawful marriage among 
 the Romans. Tayl. Civ. Law, 284. 
 
 A union of several persons as parties 
 in one action. 1 Mackeld. Civ. Law, 197. 
 
 In Old English Law. Company; so- 
 ciety. It (Occurs in this last sense in the 
 phrase per quod consortium amisit, by which 
 he has lost the companionslfip, used when 
 the plaintiff declares for any bodily injury 
 done to his wife by a third person. 3 Bl. 
 Comm. 140. 
 
 In Pleading. The company or society 
 
 of a wife. 
 
 CONSPIRACY (Lat. con, together, spiro, to 
 breathe). In criminal law. A combination 
 of two or more persons by some concerted 
 action to accomplish some criminal or un- 
 lawful purpose, or to accomplish some pur- 
 pose, not in itself criminal or unlawful, by 
 criminal or unlawful means. 2 Mass. 337, 
 538; 4 Mete. (Mass.) Ill; 4 Wend. (N. Y) 
 229; 15 N. H. 396; 5 Har. & J. (Md.) 317; 
 3 Serg. & R. (Pa.) 220; 12 Conn. 101; 11 
 Clark & F. 155; 4 Mich. 414. 
 
 CONSPIRATIONE. An ancient writ that 
 lay against conspirators. Reg. Grig. 134; 
 Fitzh. Nat. Brev. 114. 
 
 CONSPIRATORS. Persons guilty of a 
 conspiracy. 
 
 CONSTABLE. An officer whose duty it 
 is to keep the peace in the district which is 
 assigned to him. 
 
 The most satisfactory derivation of the 
 term aiid history of the origin of this of- 
 fice is that which deduces it from the French 
 comestable (Lat. comes-stabuli) , who was 
 an officer second only to the king. He 
 might take charge of the army, wherever it 
 was, if the king were not present, and had 
 the general control of everything relating to 
 military matters, as the marching troops, 
 their encampment, provisioning, etc. Guy- 
 ot. Rep. Univ. 
 
 The same extensive duties pertained to 
 the constable of Scotland. Bell, Diet. 
 
 The duties of this officer in England seem 
 to have been first fully defined by St. West- 
 minster (13 Edw. I.), and question has been 
 frequently made whether the office existed 
 in England before that time. 1 Bl. Comm. 
 356. It seems, however, to be pretty certain 
 that the office in England is of Norman ori- 
 gin, being introduced by William, and that 
 subsequently the duties of the Saxon tithing 
 men, borsholders, etc., were added to its oth- 
 er functions. See Cowell; Willcock, Const.; 
 1 Bl. Comm. 356. 
 
 High constables were first ordained, ac- 
 cording to Blackstone, by the statute of 
 Westminster, though they were known as 
 efficient public officers long before that time. 
 1 Sharswood, Bl. Comm. 356. They are to 
 be appointed for each franchise or hundred 
 by the leet, or, in default of such appoint- 
 ment, by the justices at quarter sessions. 
 Their first duty is that of keeping the king's 
 peace. In addition, they are to serve war- 
 rants, return lists of jurors, and perform 
 various other services enumerated in Coke, 
 4th Inst. 267; 3 Steph. Comm. 47; Jacob, 
 Law Diet. In some cities and towns in the 
 United States there are officers called "high 
 constables," who are the principal police of- 
 ficers in their jurisdiction. 
 
 Petty constables are inferior officers in 
 every town or parish, subordinate to the high 
 constable. They perform the duties of head 
 borough, tithing man, or borsholder, and, in 
 addition, their more modern duties apper- 
 
CONSTABLE OF A CASTLE 
 
 (195) 
 
 CONSTITUTION 
 
 taining to the keeping the peace within 
 their town, village, or tithing. 
 
 In J3ngland, however, their duties have 
 been much restricted by Act 5 & 6 Vict. c. 
 109, which deprives them of their power as 
 conservators of the peace. 3 Steph. Comm. 
 47. 
 
 In the United States, generally, petty con- 
 stables only are retained, their duties being 
 generally the same as those of constables in 
 England prior to 5 & 6 Vict. c. 109, includ- 
 ing a limited judicial power as conservators 
 of the peace, a ministerial power for the 
 service of writs, etc., and some other duties 
 not strictly referable to either of these heads. 
 
 CONSTABLE OF A CASTLE. The war- 
 den or keeper of a castle; the castellain. St. 
 Westminster I. c. 7 (3 Edw. I.); Spelman. 
 
 The constable of Dover Castle was also 
 warden of the Cinque Ports. There was be- 
 sides a constable of the Tower, as well as 
 other constables of castles of less note. Cow- 
 ell; Lambard, Const. 
 
 CONSTABLE OF ENGLAND (called, also, 
 "Marshal"). His office consisted in the care 
 of the common peace of the realm in deeds 
 of arms and matters of war. Lambard, 
 Const. 4. He was to regulate all matters of 
 chivalry, tournaments, and feats of arms 
 which were performed on horseback. 3 
 steph. Comm. 47. He held the court of chiv- 
 alry, besides sitting in the aula regis. 4 Bl. 
 Comm. 92. 
 
 The office is disused in England, except on 
 coronation days and other such occasions of 
 state, and was last held by Stafford, duke of 
 Buckingham, under Henry VIII. His title is 
 Lord High Constable of England. 3 Steph. 
 Comm. 47; 1 Bl. Comm. 355. 
 
 CONSTABLE OF SCOTLAND. An officer 
 who was formerly entitled to command all 
 the king's armies, in the absence of the king, 
 and to take cognizance of all crimes com- 
 mitted within four miles of the king's per- 
 son or of parliament, the privy council, or 
 any general convention of the states of the 
 kingdom. The office was hereditary in the 
 family of Brrol, and was abolished by 20 
 Geo. III. c. 43. Bell, Diet.; Brsk. Inst. 1. 3. 
 37. 
 
 CONSTABLE OF THE EXCHEQUER. An 
 officer spoken of in 51 Hen. III. st. 5, cited 
 by Cowell. 
 
 CONSTABLEWICK. The territorial juris- 
 diction of a constable. 5 Nev. & M. 261. 
 
 CONSTABULARIUS (Lat.) An officer of 
 horse; an officer having charge of foot or 
 horse; a naval commander; an officer hav- 
 ing charge of military affairs generally. 
 Spelman. 
 
 The titles were very numerous, all derived, 
 however, from comes-statuU, and the duties 
 were quite similar in all the countries where 
 the civil law prevailed. His powers were 
 second only to those of the king in all mat- 
 ters relating to the armies of the kingdom. 
 
 In England his power was early dimin- 
 ished and restricted to those duties which 
 
 related to the preservation of the king's 
 peace. The office is now abolished in Eng- 
 land, except as a matter of ceremony, and in 
 Prance. Guyot, Rep. Univ.; Cowell. 
 
 CONSTAT (Lat. it appears). A certifi- 
 cate by an officer that certain matters there- 
 in stated appear of record. See 1 Hayw. 
 (N. C.) 410. 
 
 An exemplification under the great seal of 
 the enrollment of letters patent. Co. Litt. 
 225. 
 
 A certificate which the clerk of the pipe 
 and auditors of the exchequer make at the 
 request of any person who intends to plead 
 or move in the court for the discharge of any 
 thing, and the effect of it is the certifying 
 what constat (appears) upon record touch- 
 ing the matter in question. 
 
 CONSTATE. To constitute or establish. 
 "Constating instruments" is used to denote 
 the charter, etc., of a corporation. See 37 N. 
 J. Eq. 363. 
 
 CONSTITUENT (Lat. constituo, to ap- 
 point). He who gives authority to another 
 to act for him. The constituent is bound by 
 the acts of his attorney, and the attorney is 
 responsible to his constituent. 
 
 CONSTITUERE. In old English law. To 
 establish; to appoint; to ordain. 
 
 Used in letters of attorney, and translated 
 "constitute." Applied generally, also, to de- 
 note "appointment." Reg. Grig. 172; Du 
 Cange. 
 
 CONSTITUTED AUTHORITIES. The of- 
 ficers properly appointed under the consti- 
 tution for the government of the people. 
 Those powers which the constitution of each 
 people has established to govern them, to 
 cause their rights to be respected, and to 
 maintain those of each of its members. 
 
 They are called "constituted," to distin- 
 guish them from the "constituting" author- 
 ity which has created or organized them, 
 or has delegated to an authority, which it 
 has itself created, the right of establishing 
 or regulating their movements. 
 
 CONSTITUTIO. 
 
 In Civil Law. An establishment or 
 
 settlement. Used of controversies settled by 
 .the parties without a trial. Calv. Lex. 
 
 A sum paid according to agreement. Du 
 Cange. 
 
 An ordinance or decree having its force 
 from the will of the emperor. Dig. 1. 4. 1, 
 Cooper's notes. 
 
 In Old English Law. An ordinance or 
 
 statute; a provision of a statute. 
 
 CONSTITUTIO DOTIS. Establishment of 
 
 dower, 
 
 CONSTITUTION. The fundamental law 
 of a free country, which characterizes the 
 organism of the country, and secures the 
 rights of the citizen, and determines his 
 main duties as a freeman. 3 Barb. (N. Y.) 
 198. 
 
 The written instrument defining the pow- 
 
CONSTITUTIONAL 
 
 (196) 
 
 CONSUETUDO 
 
 ers, limitations, and functions of the United 
 States of America. 
 
 It has been said to be a tripartite instru- 
 ment, the parties being the state, the peo- 
 ple, and the United States. 3 Wis. 96. 
 
 In Old English Law. A statute. , 
 
 CONSTITUTIONAL. That which is conso- 
 nant to, and agrees with, the constitution. 
 
 CONSTITUTION ES. Laws promulgated, 
 i. e., enacted, by the Roman emperor. They 
 were of the following kinds: (1) E dicta; 
 (2) decreta; (3) rescripta, called, also, 
 "epistolae." Sometimes they were general, 
 and intended to form a precedent for other 
 like cases. At other times they were special, 
 particular, or individual {personates), and 
 not intended to form a precedent. The em- 
 peror had this power of irresponsible enact- 
 ment by virtue of a certain tex regia, where- 
 by he was made the fountain of justice and 
 of mercy. Brown. 
 
 CONSTITUTIONES TEMPORE POSTE- 
 riores potiores sunt his quae ipsas praeces- 
 serunt. Later laws prevail over those which 
 preceded them. Dig. 1. 4. 4. 
 
 CONSTITUTIONS OF CLARENDON. See 
 
 "Clarendon, Constitutions of." 
 
 CONSTITUTOR. In civil law. He who 
 promised by a simple pact to pay the debt 
 of another; and this is always a principal 
 obligation. Inst. 4. 6. 9. 
 
 CONSTITUTUIVI (Lat.) An agreement to 
 pay a subsisting debt which exists without 
 any stipulation, whether of the promisor or 
 another party. It differs from a stipulation 
 in that it must be for an existing debt. Du 
 Cange. 
 
 A day appointed for any purpose; a form 
 of appeal. Calv. Lex. 
 
 CONSTITUTUM ESSE EAIVI DOIVIUIVI 
 unicuique nostrum debere existimari, ubi 
 quisque sedes et tabulas haberet, suarumque 
 rerum constitutionem fecisset. It is settled 
 that that is to be considered the home of 
 each one of us where he may have his hab- 
 itation and account books, and where he may 
 have made an establishment of his business. 
 Dig. 50. 16. 203. 
 
 CONSTRAINT. In Scotch law. Duress. 
 
 It is a general rule that when one is com- 
 pelled into a contract there is no effectual 
 consent, though, ostensibly, there is the form 
 of it. In such case, the contract will be de- 
 clared void. The constraint requisite thus 
 to annul a contract must be a vis aut metus 
 qui cadet in constantem virum. such as 
 would shake a man of firmness and resolu- 
 tion. Ersk. Inst. 3. 1. 16; Id. 4. 1. 26; 1 
 Bell, Comm. bk. 3, pt. 1, c. 1, § 1, art. 1, p. 
 295. 
 
 CONSTRUCTIO LEGIS NON FACIT IN- 
 juriam. The construction of law does not 
 work an injury. Co. Litt. 183; Broom, Leg. 
 Max. (3d London Ed.) 537. 
 
 CONSTRUCTION (Lat. constrmre, to put 
 
 together). In practice. Determining the 
 meaning and application as to the case in 
 question of the provisions of a constitution, 
 statute, will, or other instrument, or of an 
 oral agreement. 
 
 Drawing conclusions respecting subjects 
 that lie beyond the direct expressions of the 
 term. Lieber, Leg. & Pol. Herm. 20. 
 
 "Interpretation," if an exact synonym, is a 
 preferable term, since it has but a single 
 significance; while "construction" is used 
 also in a mechanical sense, but see "Inter- 
 pretation" for an attempted distinction. 
 
 CONSTRUCTION CONTRACTS. Con- 
 tracts for works of permanent improvement 
 to realty, whether by the erection of build- 
 ings, filling, excavating, digging wells, etc. 
 
 CONSTRUCTION, COURT OF. A court 
 of equity or of common law, as the case 
 may be, is called the "court of construc- 
 tion" with regard to wills, as opposed to the 
 "court of probate," whose duty is to decide 
 whether an instrument be a will at all. 
 Now, the court of probate may decide that a 
 given instrument is a will, and yet the court 
 of construction may decide that it has no 
 operation, by reason of perpetuities, illegal- 
 ity, uncertainty, etc. Wharton. 
 
 CONSTRUCTIVE. That which amounts, 
 in the view of the law, to an act, although 
 the act itself is not really performed. ^For 
 words under this head, such as "construct- 
 ive fraud," etc., see the various titles, 
 "Fraud," etc. 
 
 CONSUETUDINARIUS (Lat.) In Old Eng- 
 lish law. A ritual or book containing the 
 rites and forms of divine offices, or the cus- 
 toms of abbeys and monasteries. 
 
 A record of the consuetudines (customs). 
 Blount; Whishaw. 
 
 CONSUETUDINARY LAW. Customary or 
 traditional law. 
 
 CONSUETUDINES FEUDORUM (Lat.feu- 
 dal customs). A compilation of the law of 
 feuds or fiefs in Lombarfly, ma:ie A. D. 1170. 
 
 It is called, also, the "Book of Fiefs," and 
 is of great and generally received authority. 
 The compilation is said to have been ordered 
 by Frederic Barbarossa (Ersk. Inst. 2. 3. 5), 
 and to have been made by two Milanese 
 lawyers (Spelman), but this is uncertain. 
 It is commonly annexed to the Corpus Juris 
 Civilis. and is easily accessible. See 3 Kent, 
 Comm. (10th Ed.) 665, note; Spelman. 
 
 CONSUETUDO (Lat.) A custom; an es- 
 tablished usage, or practice. Co. Litt. 58. 
 Tolls; duties; taxes. Id. 58b. This use of 
 consuetudo is not correct. Gustuma is the 
 proper word to denote duties, etc. 1 Shars- 
 wood, Bl. Comm. 313. note. An action for- 
 merly lay for the recovery of customs due,, 
 which was commenced by a writ de consue- 
 tudinibus et servitiis, of customs and serv- 
 ices. This is said by Blount to be "a writ 
 of right close which lies against the tenant 
 that deforceth the lord of the rent and serv- 
 
CONSUETUDO contra, etc. (197) 
 
 CONSUMMATE 
 
 ices due him." Blount; Old Nat. Brev. 77; 
 Fitzh. Nat. Brev. 151. 
 
 There were various customs; as, consue- 
 tudo Anglicana, custom of England (as dis- 
 tinguished from lex, the Roman or civil 
 law), consuetudo curiae, practice of a court, 
 consuetudo mercatonim, custom of mer- 
 chants. See "Custom." 
 
 CONSUETUDO CONTRA RATIONEM IN- 
 troducta, potius usurpatio quam consuetudo 
 appellari debet. A custom introduced against 
 reason ought rather to he called an usurpa- 
 tion than a custom. Co. Litt. 113. 
 
 CONSUETUDO CURIAE. The custom or 
 practice of a court. Hardr. 141. 
 
 CONSUETUDO DEBET ESSE CERTA. A 
 
 custom ought to he certain. Dav. 33. 
 
 CONSUETUDO EST ALTERA LEX. Cus- 
 tom is another law. 4 Coke, 21. 
 
 CONSUETUDO EST OPTIMUS INTER- 
 pres legum. Custom is the best expounder 
 of the law. Coke, 2d Inst. 18; Dig. 1. 3. 37; 
 Jenk. Cent. Cas. 273. 
 
 CONSUETUDO ET COMMUNIS ASSUE- 
 tudo vincit legem non scriptam, si sit spe- 
 cialis, et interpretatur legem scriptam, si 
 lex sit generalis. Custom and common us- 
 age overcome the unwritten law, if it he 
 special, and interpret the written law, if the 
 law he general. Jenk. Cent. Cas. 273. 
 
 CONSUETUDO EX CERTA CAUSA RA- 
 tionabili usitata privat communem legem. 
 Custom observed by reason of a certain and 
 reasonable cause supersedes the common 
 laws. Litt. § 169; Co. Litt. 33b. See 5 
 Bing. 293; Broom, Leg. Max. (3d London 
 Ed.) p. 825. 
 
 CONSUETUDO, LICET SIT MAGNAE 
 auctoritatis, nunquam tamen praejudicat 
 manifestae verltatl. A custom, though it be 
 of great authority, should never, however, 
 be prejudicial to manifest truth. 4 Coke, 18. 
 
 CONSUETUDO LOCI OBSERVANDAEST. 
 
 The custom of the place is to be observed. 
 4 Coke, 28b; 6 Coke, 67; 10 Coke, 139; 4 C. 
 B. 48. 
 
 CONSUETUDO MANERII ET LOCI OB- 
 servanda est. A custom of a manor and 
 place is to be observed. 6 Coke, 67. 
 
 CONSUETUDO MERCATORUM (Lat.) 
 The custom of merchants; the same with lex 
 mercatoria (q. v.) 
 
 CONSUETUDO NEQUE INJURIA ORITI, 
 neque tolli potest. A custom can neither 
 arise nor be abolished by a wrong. Loffit, 
 340. 
 
 CONSUETUDO NON HABITUR IN CON- 
 sequerTtiam. Custom is not to be drawn 
 into a precedent. 3 Keb. 499. 
 
 CONSUETUDO NON TRAHITUR IN CON- 
 sequentiam. Custom is not drawn into con- 
 sequence. 3 Keb. 499; 4 Jur. (N. S.) 139. 
 
 CONSUETUDO PRAESCRIPTA ET LE- 
 
 gitima vincit legem. A prescriptive and le- 
 gitimate custom overcomes the law. Co. 
 Litt. 113. 
 
 CONSUETUDO REGNI ANGLIAE EST 
 lex Angliae. The custom of the kingdom of 
 England is the law of England. Jenk. Cent. 
 Cas. 119. 
 
 CONSUETUDO SEMEL REPROBATA 
 non potest amplius induci. Custom once dis- 
 allowed cannot again be produced. Dav. 33; 
 Grounds and Rudiments of Law, 53. 
 
 CONSUETUDO TOLLIT COMMUNEM 
 legem. Custom takes away the common 
 law. Co. Litt. 33b. 
 
 CONSUETUDO VINCIT COMMUNEM 
 
 legem. Custom overrules common law. 1 
 Roper, Husb. & Wife, 351; Co. Litt. 33b. 
 
 CONSUETUDO VOLENTESDUCIT; LEX 
 
 nolentes trahit. Custom leads the willing; 
 law compels or draws the unwilling. Jenk. 
 Cent. Cas. 274. 
 
 CONSUL. A commercial agent of a coun- 
 try residing in a foreign seaport, whose duty 
 is to promote the commerce of the state com- 
 missioning him. 83 Tex. 88. He is not a 
 diplomatic agent, and has no authority to 
 represent his country in diplomatic negotia- 
 tions. 1 Kent, Comm. 43. 
 
 CONSULAR COURTS. Courts wherein, 
 pursuant to treaty, the consul exercises ju- 
 dicial powers in cases involving the rights 
 of citizens of the country by which he is 
 commissioned. 1 Kent, Comm. 42. 
 
 CONSULTA ECCLESIA. In ecclesiastical 
 law. A church full or provided for. Cowell. 
 
 CONSULTARY RESPONSE. The opin- 
 ion of a court of law on a special case. Whar- 
 ton. 
 
 CONSULTATION. The name of a writ 
 whereby a cause, being formerly removed 
 by prohibition out of an inferior court into 
 some of the king's courts in Westminster, 
 is returned thither again; for, if the judges 
 of the superior court, comparing the pro- 
 ceedings with the suggestion of the party, 
 find the suggestion false or not proved, and 
 that, therefore, the cause was wrongfully 
 called from the inferior court, then, upon 
 consultation and deliberation, they decree 
 it to be returned, whereupon this writ is- 
 sues. Termes de la Ley; 2 Bl. Comm. 114. 
 
 In French Law. The opinion of coun- 
 sel upon a point of law submitted to them. 
 
 CONSUMMATE. Complete; finished; en- 
 tire. 
 
 A marriage is said to be consummate. A 
 right of dower is inchoate when coverture 
 and seisin concur, consummate upon the hus- 
 band's death. 1 Washb. Real Prop. 250, 251. 
 A tenancy by Ihe curtesy is initiate upon the 
 birth of issue, and consummate upon ths 
 death of the wife. 1 Washb. Real Prop. 140; 
 13 Conn. 83; 2 Me. 400; 2 Bl. Comm. 128. 
 
 A contract is said to be consummated 
 
CQNTANGO 
 
 (198) 
 
 CONTINENS 
 
 when everything to be done in relation to 
 it has been accomplished. It is frequently 
 of great importance to know when a con- 
 tract has been consummated, in order to as- 
 certain the rights of the parties, particu- 
 larly in the contract of sale. See "Deliv- 
 ery," where the subject is more fully ex- 
 amined. It is also sometimes of conse- 
 quence to ascertain where the consummation 
 of the contract took place, in order to de- 
 cide by what law it is to be governed. See 
 "Conflict of Laws;" "Lex Loci." 
 
 CONTANGO. In English law. The com- 
 mission received for carrying over or putting 
 off the time of execution of a contract to 
 deliver stocks or pay for them at a certain 
 time. Wharton. 
 
 CONTEK (Law Fr.) A contest; dispute; 
 disturbance; opposition. Britt. c. 42; Kel- 
 ham. ContecTcours ; brawlers; disturbers of 
 the peace. Britt. c. 29. 
 
 CONTEMNER. A person guilty of con- 
 tempt of court. 
 
 CONTEMPLATION OF BANKRUPTCY. 
 
 As applied to transfers of property by an 
 insolvent. In contemplation of committing 
 an act in bankruptcy (g. v.), or of applying 
 for the benefits of the bankrupt law. 13 
 How. (U. S.) 167; Fed. Cas. No. 3,317. 
 
 CONTEMPORANEA EXPOSITIO (Lat.) 
 Contemporaneous exposition, or construc- 
 tion; a construction drawn from the time 
 when, and the circumstances under which, 
 the subject matter to be construed, as a 
 statute or custom, originated. 
 
 CONTEMPORANEA EXPOSITIO EST OP- 
 tima et fortissima In lege. A contempora- 
 neous exposition is the best and most pow- 
 erful in the law. Coke, 2d Inst. 11; 3 
 Coke, 7; Broom, Leg. Max. (3d London Ed.) 
 608. 
 
 CONTEMPT. A willful disregard or dis- 
 obedience of a public authority, whether ju- 
 dicial or legislative. 
 
 Contempts are either (1) civil or (2) 
 criminal. 
 
 (1) Civil contempts are those quasi con- 
 tempts which consist in failing to do some- 
 thing which the contemner is ordered to do 
 for the benefit of another party to a pro- 
 ceeding before the court; while 
 
 (2) Criminal contempts are all acts in 
 disrespect of the court or of its process ob- 
 structing the administration of justice gen- 
 erally, and tending to bring the court into 
 disrepute. Rapalje, Contempt, § 21; 11 Fla. 
 184; 4 Keyes (N. Y.) 46. 
 
 Contempts are also classified as 
 
 (3) Direct contempts, being those com- 
 mitted in the presence of the court or so 
 near as to disturb its proceedings; and 
 
 (4) Constructive contempts, being those 
 arising from matters not transpiring in 
 court. Rapalje, Contempt, § 23. 
 
 CONTEMPTIBI LITER. Contemptuously. 
 
 CONTENEMENTUM (Law Lat. from con. 
 
 together, and tenementum, a tenement, or 
 thing holden). Countenance; appearance; 
 credit or reputation. 
 
 CONTENTIOUS JURISDICTION. In ec- 
 clesiastical law. That Which exists in cases 
 where there is an action or judicial process, 
 and matter in dispute is to be heard and de- 
 termined between party and party. It is to 
 be distinguished from voluntary jurisdiction, 
 which exists in cases of taking probate of 
 wills, granting letters of administration, and 
 the like. 3 Sharswood, Bl. Comm. 66. 
 
 CONTERMINOUS. Adjacent or adjoin- 
 ing; having common boundaries. Hale, 
 Hist. Com. Law, 98. 
 
 CONTESTATIO LITIS. 
 
 In Civil Law. The statement and an- 
 swer of the plaintiff and defendant, thus 
 bringing the case before the judge, conducted 
 usually in the presence of witnesses. Calv. 
 Lex. 
 
 This sense is retained in the canon law. j 1 
 Kaufm. Mackeld. Civ. Law, -205. A cause 
 is said to be contestata when the judge be- 
 gins to hear the cause after an account of 
 the claims, given not through pleadings, but 
 by statement of the plaintiff and answer of 
 the defendant. Calv. Lex. 
 
 In Old English Law. Coming to an 
 
 issue; the issue so produced. Steph. PI. 39; 
 Crabb, Hist. Bug. Law, 216. 
 
 CONTESTATIO LITIS EGET TERMINOS 
 contradictarios. An issue requires terms of 
 contradiction; that is, there can be no issue 
 without an affirmative on one side and a 
 negative on the other. Jenk. Cent. Cas. 117. 
 
 CONTESTATION OF SUIT. In an ec- 
 clesiastical cause, that stage of the suit 
 which is reached when the defendant has 
 answered the libel by giving in an allega- 
 tion (q. V.) If he confesses the libel, he is 
 said to contest the suit affirmatively; if he 
 denies it, he is said to contest the suit nega- 
 tively; or he may give a qualified affirma- 
 tive or negative by confessing the whole or 
 part of the libel, and adding other facts. 
 Phillim. Ecc. Law, 1255; Rog. Ecc. Law, 
 720. See "Confession and Avoidance." The 
 term is a translation of contestatio litis, and 
 is taken from the Roman law. 
 
 CONTEXT (Lat. contextum, — con, with, 
 tigere, to weave, — that which is interwoven). 
 Those parts of a writing which precede and 
 follow a phrase or passage in question; the 
 connection. 
 
 CONTIGUOUS. In close proximity. 69 
 N. Y. 191, 25 Am. Rep. 168 ; affirming 7 Hun 
 (N. Y.) 455. 
 
 CONTINENCIA. In Spanish law. Conti- 
 nency or unity of the proceedings in a 
 cause. White, New Recop. bk. 3, tit. '6, c. 1. 
 
 CONTINENS. In the Roman law. Con- 
 tinuing; holding together; joined together. 
 Applied to buildings in the suburbs of 
 Rome. Dig. 50. 16. 2. 
 
CONTINENTIA 
 
 (199) 
 
 CONTRA FORMAM, ETC. 
 
 CONTINENTtA. In old English practice. 
 Continuance or connection. Applied to the 
 ■ proceedings in a cause. Bracton, fol. 362b. 
 Countenance. Fleta, lib. 1, c. 48, § 2. 
 
 CONTINGENCY WITH DOUBLE As- 
 pect. If there are remainders so limited 
 that the second is a substitute for the first 
 in case it should fail, and not in derogation 
 of it, the remainder is said to be in a con- 
 tingency with double aspect. Fearne, Cont. 
 Rem. 373. 
 
 CONTINGENT DAMAGES. Those given 
 where the issues upon counts to which no 
 demurrer has been filed are tried before de- 
 murrer to due ov more counts In the same 
 declaration has been decided. 1 Strange, 
 431. 
 
 CONTINGENT ESTATE. A contingent es- 
 tate depends for its effect upon an event 
 which may or may not happen; as, an es- 
 tate limited to a person not in esse, or not 
 yet born. Crabb, Real Prop. § 946. 
 
 CONTINGENT LEGACY. A legacy made 
 dependent upon some uncertain event. 1 
 Rop. Leg. 506. 
 
 A legacy which has not vested. Williams, 
 Ex'rs. 
 
 CONTINGENT REMAINDER. 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 remainderman, so that the par- 
 ticular estate may chance to be determined, 
 and the remainder never take effect. 2 Bl. 
 Comm. 169. 
 
 A remainder limited so as to depend upon 
 an event or condition which may never hap- 
 pen or -be performed, or which may not hap- 
 pen or be performed till after the deter- 
 mination of the preceding estate. Fearne, 
 Cont. Rem. 3; 1 Washb. Real Prop. 155. See 
 "Remainder." 
 
 CONTINGENT USE. A use limited in a 
 deed or conveyance of land which may or 
 may not happen to vest, according to the 
 contingency expressed in the limitation of 
 such use. 
 
 Such a use as by possibility may happen 
 in possession, reversion, or remainder. 1 
 Coke, 121; Comyn, Dig. "Uses" (K 6). A 
 use limited to take effect upon the happen- 
 ing of some future contingent event; as 
 where lands are conveyed to the use of A. 
 and B. after a marriage had between them. 
 2 Sharswood, Bl. Comm. 234. 
 
 A contingent remainder limited by way 
 of uses. Sugd. Uses, 175. See, also, 4 
 Kent, Comm. 237 et seq. ' * 
 
 CONTINUAL CLAIM. In old English law. 
 A formal claim made by a party entitled to 
 enter upon any lands or tenements, but de- 
 terred from such entry by menaces, or bod- 
 ily fear, for the purpose of preserving or 
 keeping alive his right. It was called "con- 
 tinual," because it was required to be re- 
 peated once in the space of every year and 
 day. It had to be made as near to the land 
 
 as the party could approach with safety, and, 
 when made in due form, had the same ef- 
 fect with, and in all respects amounted to, 
 a legal entry. Litt. §§ 419-423; Co. Litt. 
 250a; 3 Bl. Comm. 175. - 
 
 Lord Coke calls it an "entry in law," and 
 says that it is as strong as an "entry in 
 deed" (fact). Co. Litt. 256b. 
 
 It is now abolished. St. 3 & 4 Wm. IV. c. 
 27, § 11. 
 
 CONTINUANCE (Lat. continuere, to con- 
 tinue). In practice. The adjournment of a 
 cause from one day to another of the same 
 or a subsequent term. 
 
 The postponement of the trial of a cause. 
 
 CONTINUANDO (Lat. continuare, to con- 
 tinue; continuando, continuing). In plead- 
 ing. An averment that a trespass has been 
 continued during a number of days. 3 
 Sharswood, Bl. Comm. 212. It was allowed 
 to prevent a multiplicity of actions (2 RoUe, 
 Abr. 545) only where the injury was such as 
 could, from its nature, be continued (1 "Wm. 
 Saund. 24, note 1). 
 
 The form is now disused, and the same 
 end secured by alleging divers trespasses to 
 have been committed between certain days. 
 1 Saund. 24, note 1. See, generally, Gould, 
 PI. c. 3, § 86; Hammond, N. P. 90, 91; Ba- 
 con, Abr. "Trespass" (I 2, note 2). 
 
 CONTINUING CONSIDERATION. See 
 
 "Consideration." 
 
 CONTINUING DAMAGES. See "Dam- 
 ages." 
 
 CONTINUOUS EASEMENT. See "Ease- 
 ment." 
 
 CONTRA (Lat.) Over; against; opposite; 
 per contra, in opposition. 
 
 CONTRA BONOS MORES. Against sound 
 morals. 
 
 Contracts which are incentive to crime, 
 or of which the consideration is an obliga- 
 tion or engagement improperly prejudicial 
 to the feelings of a third party, offensive to 
 decency or morality, or which has a ten- 
 dency to mischievous or pernicious conse- 
 quences, are void, as being contra bonos 
 mores. 2 Wils. 447; Cowp. 729; 4 Campb. 
 152; 1 Barn. & Aid. 683; 16 East, 150. 
 
 CONTRA FORMAM COLLATIONIS. In 
 
 old English law. A writ that issued where 
 lands given in perpetual alms to lay houses 
 of religion, or to an abbot and convent, or 
 to the warden or mister of an hospital and 
 his convent, to find certain poor men with 
 necessaries, and do divine service, etc., were 
 alienated, to the disherison of the house and 
 church. By means of this writ the donor or 
 his heirs could recover the lands. Reg. Orig. 
 238; Fitzh. Nat. Brev. 210. 
 
 CONTRA FORMAM DONI. Against the 
 form of the grant. See "Formedon." 
 
 CONTRA FORMAM FEOFFAMENTI. A 
 
 writ that lay for the heir of a tenant, en- 
 feoffed of certain lands or tenements, by 
 charter of feoffment from a lord to make 
 
CONTRA FORMAM STATUTI 
 
 (200) 
 
 CONTRACT 
 
 certain services and suits to his court, who 
 was afterwards distrained for more services 
 than were mentioned in the charter. Reg. 
 Grig. 176; Old. Nat. Brev. 162. 
 
 CONTRA FORMAM STATUTI (Lat. 
 against the form of the statute). In plead- 
 ing. The formal manner of alleging that 
 the offense described in an indictment is 
 one forbidden by statute. 
 
 CONTRA JUS BELLI (Lat.) Against the 
 law of war. Grotius, de Jure Belli, lib. 3, 
 c. 11, § 15; 1 Kent, Comm. 6. 
 
 CONTRA JUS COMMUNE. Against com- 
 mon right or law; contrary to the rule of 
 the common law. Bracton, fol. 48b. 
 
 CONTRA LEGEM FACIT QUI ID FACIT 
 quod lex prohibet; in fraudem vero qui, 
 salvis verbis legis, sententiam ejus circum- 
 venit. He does contrary to the law who 
 does what the law prohibits; he acts in 
 fraud of the law who, the letter of the law 
 being inviolate, uses the law contrary to its 
 intention. Dig. 1. 3. 29. 
 
 CONTRA LEGEM TERRAE. Against the 
 law of the land. Mag. Ch. Johan. c. 55. 
 
 CONTRA NEGANTEM PRINCIPIA NON 
 est disputandum. There is no disputing 
 against one who denies principles. Co. Litt. 
 43; Grounds & Rudiments of Law, 57. 
 
 CONTRA NON VALENTEM AGERE 
 
 nulla currit praescriptio. No prescription 
 runs against a person unable to act. Broom, 
 Leg. Max. (3d London Ed.) 810; Evans, 
 Poth. 451. 
 
 CONTRA OMNES GENTES. Against all 
 people; formal words in old covenants of 
 warranty. Fleta, lib. 3, c. 14, § 11. 
 
 CONTRA PACEM (Lat. against the peace). 
 In pleading. An allegation in an action of 
 trespass or ejectment that the actions there- 
 in complained of were against the peace of 
 the king. Such an allegation was formerly 
 necessary, but has become a mere matter of 
 form, and not traversable. 4 Term R. 503; 
 1 Chit. PI. 375; Archb. Civ. PI. 169. See 
 "Trespass." 
 
 CONTRA TABULAS. In civil law. Against 
 the will (testament). Dig. 37. 4. 
 
 CONTRA VADIUM ET PLEGIUM. In old 
 English law. Against gage and pledge. 
 Bracton, fol. 15b; Fleta, lib. 1, c. 42, § 2. 
 
 CONTRA VERITATEM LEX NUNQUAM 
 aliquid permittit. The law never suffers 
 anything contrary to truth. Coke, 2d Inst. 
 252. But sometimes it allows a conclusive 
 presumption in opposition to truth. See 3 
 Bouv. Inst* note 3061. 
 
 CONTRABAND OF WAR. In interna- 
 tional law. Goods which neutrals may not 
 carry in time of war to either of the belliger- 
 ent nations without subjecting themselves 
 to the loss of the goods, and formerly the 
 owners, also, to the loss of the ship and 
 
 other cargo,r if intercepted. 1 Kent, Comm. 
 138, 143. 
 
 "The classification of goods as contraband 
 has much perplexed text writers and jurists. 
 A strictly accurate and satisfactory classifi- 
 cation is, perhaps, impracticable; but that 
 which is best supported by American and 
 English decisions may be said to divide all 
 merchandise into three classes: (1) Ar- 
 ticles manufactured and primarily or ordi- 
 narily used for military purposes in time of 
 war; (2) articles which may be, and are, 
 used for purposes of war or peace, accord- 
 ing 'to circumstances; (3) articles exclusive- 
 ly used for peaceful purposes. Merchandise 
 of the first class destined to a belligerent 
 country or place occupied by the army or 
 navy of belligerent is always contraband. 
 Merchandise of the second class is contra- 
 band only when destined to the military or 
 naval use of the belligerent. While mer- 
 chandise of a third class is not contraband 
 at all, though liable to seizure and condem- 
 nation for violation of blockade or siege." 5 
 Wall. 58. 
 
 CONTRACAUSATOR. A criminal; one 
 prosecuted for a crime. 
 
 CONTRACT (Lat. contractus, from con, 
 with, and traho, to draw). An agreement 
 between two or more parties to do or not to 
 do a particular thing. Taney, C. J., 11 Pet. 
 (U. S.) 420, 572. An agreement in which a 
 party undertakes to do or not to do a par- 
 ticular thing. Marshall, C. J., 4 Wheat. (U. 
 S.) 197. An agreement between two or 
 more parties for the doing or not doing of 
 some specified thing. 1 Pars. Cont. 5. 
 
 It has been variously defined as follows: 
 
 A compact between two or more parties. 
 6 Cranch (U. S.) 87, 136. 
 
 An agreement or covenant between two or 
 more persons, in which each party binds 
 himself to do or forbear some act, and each 
 acquires a right to what the other promises. 
 Enc. Amer.; Webster. 
 
 A contract or agreement is where a prom- 
 ise is made on one side and assented to on 
 the other; or where two or more persons 
 enter into an engagement with each other by 
 a promise on either side. 2 Steph. Comm. 
 108, 109. 
 
 An agreement upon sufiicient considera- 
 tion to do or not to do a particular thing. 2 
 Bl. Comm. 446; 2 Kent, Comm. 449. 
 
 A covenant or agreement between two par- 
 ties with a lawful consideration or cause. 
 West. Symb. lib. 1, § 10; Cowell; Blount. 
 
 A deliberate engagement between compe- 
 tent parties upon a legal consideration to do 
 or to abstain from doing some act. Story, 
 Cont. § 1. 
 
 A mutual promise upon lawful considera- 
 tion or cause which binds the parties to a 
 performance. 
 
 The writing which contains the agreement 
 of parties with the terms and conditions, and 
 which serves as a proof of the obligation. 
 The last is a distinct signification. 2 Hill 
 (N. Y.) 551. 
 
 We have not included "consideration" in 
 our definition of contract, because it does not 
 
CONTRACT 
 
 (201) 
 
 CONTRACT 
 
 seem to be essential to a contract, although 
 it is necessary to its enforcement. See "Con- 
 sideration." Mr. Stephen, whose definition 
 of contract is given above, thus criticizes the 
 definition of Blaclcstone, which has been 
 adopted by Chancellor Kent and other high 
 authorities: First, that the word "agree- 
 ment" itself requires definition as much as 
 "contract;" second, that the existence of a 
 consideration, though essential to the valid- 
 ity of a parol contract, forms properly no 
 part of the idea; third, that the definition 
 takes no sufiicient notice of the mutuality 
 which properly distinguishes a contract from 
 a promise. 2 Steph. Comm. 109. 
 
 The use of the word "agreement" (aggre- 
 gatio mentium) seems to have the authority 
 of the best writers in ancient and modern 
 times (see above) as a part of the definition 
 of contract. It is probably a translation of 
 the civil-law conventio (con and venio), a 
 coming together, to which (being derived 
 from acL and grego) it seems nearly equiva- 
 lent. We do not think the objection that it 
 is a synonym (or nearly so) a valid one. 
 Some word of the kind is necessary as a 
 basis of th« definition. No two synonyms 
 convey precisely the same idea. "Most of 
 them have minute distinctions," says Reid. 
 If two are entirely equivalent, it vnll soon 
 be determined by accident which shall re- 
 main in use, and which become obsolete. To 
 one who has no knowledge of a language, it 
 Is impossible to define any abstract idea; 
 but to one who understands a language, an 
 abstraction is defined by a synonym prop- 
 erly qualified. By pointing out distinctions 
 and the mutual relations between synonyms, 
 the object of definition is answered. Hence 
 we do not think Blackstone's definition, open 
 to the first objection. 
 
 As to the idea of consideration, Mr. 
 Stephen seems correct, and to have tlie au- 
 thority of some of the first legal minds of 
 modern times. Consideration, however, may 
 be necessary to enforce a contract, though 
 not essential to the idea. Even in that class 
 of contracts (by specialty) in which no con- 
 sideration is in fact required, one is always 
 presumed by law; the form of the instru- 
 ment being held to import a consideration. 
 2 Kent, Comm. 450, note. 
 
 A contract without consideration is called 
 a nudum pactum (nude pact), but it is still 
 a pactum, and this implies that considera- 
 tion is not an essential. The third objection 
 of Mr. Stephen to the definition of Black- 
 stone does not seem one to which it is fairly 
 obnoxious. 
 
 There is an idea of mutuality in con and 
 traJio, to draw together, but we think that 
 mutuality is implied in agreement as well. 
 An aggregatio mentium, seems impossible 
 without mutuality. Blackstone, in his analy- 
 sis, appears to have regarded agreement as 
 implying mutuality; for he defines it (2 
 Bl. Comm. 442) : "A mutual bargain or con- 
 vention." In our definition, however, all am- 
 biguity is avoided by the use of the words 
 "between two or more parties" following 
 agreement. 
 
 In its widest sense, "contract" includes 
 
 records and specialties; but this use as a 
 general term for all sorts of obligations, 
 though of too great authority to be now 
 doubted, seems to be an undue extension 
 of the proper meaning of the term, which 
 is much more nearly equivalent to "agree- 
 ment," which is never applied to specialties. 
 Mutuality is of the very essence of both, — 
 not only mutuality of assent, but of act. As 
 expressed by Lord Coke, actus contra actum. 
 2 Coke, 15; 7 Man. & G. 998, argument, and 
 note. 
 
 This is illustrated in contracts of sale, 
 bailment, hire, as well as partnership and 
 marriage; and no other engagements but 
 those with this kind of mutuality would 
 seem properly to come under the head of 
 contracts. In a bond there is none of this 
 mutuality, no act to be done by the obligee 
 to make the instrument binding. In a judg- 
 ment there is no mutuality either of act or 
 of assent. It is judicium redditum in in- 
 vitem. It may properly be denied to be a 
 contract, though Blackstone insists that one 
 is implied. Per Mansfield, 3 Burrows, 1545; 
 1 Cow. (N. Y.) 316; per Story, J., 1 Mason 
 (U. S.) 288. Mr. Chitty uses "obligation" 
 as an alternative word of description when 
 speaking of bonds and judgments. Chit. 
 Cont. 2, 4. An act of legislature may be a 
 contract. So may a legislative grant with 
 exemption from taxes. 5 Ohio St. 361. So 
 a charter is a contract between a state and 
 a corporation, within the meaning of the 
 constitution of the United States (article 1, 
 § 10, cl. 1). 27 Miss. 417. See "Obligation 
 of Contracts." 
 
 (1) Accessory contracts are those made for 
 assuring the performance of a prior contract, 
 either by the same parties or by others, such 
 as suretyship, mortgage, and pledges. Civ. 
 Code La. art. 1764; Poth. Obi. pt. 1, c. 1, § 
 1, art. 2, note 14. 
 
 (2) Contracts of beneficence are those by 
 which only one of the contracting parties is 
 benefited; as loans, deposit, and mandate. 
 Civ. Code La. art. 1767. 
 
 (3) Certain contracts are those in which 
 the thing to be done is supposed to depend 
 on the will of the party, or when, in the usual 
 course of events, it must happen in the man- 
 ner stipulated. 
 
 (4) Commutative contracts are those in 
 which what is done, given, or promised by 
 one party is considered as an equivalent to 
 or in consideration of what is done, given, or 
 promised by the other. Civ. Code La. art. 
 1761. 
 
 (5) Gratuitous contracts are those of which 
 the object is the benefit of the person with 
 whom it is made, without any profit or ad- 
 vantage received or promised as a considera- 
 tion for it. It is not, however, the less gra- 
 tuitous if it proceed either from gratitude 
 for a benefit before received, or from the 
 hope of receiving one hereafter, although 
 such benefit be of a pecuniary nature. Civ. 
 Code La. § 1766. 
 
 ( 6 ) Hazardous contracts are those in whi ch 
 the performance of that which is one of its 
 objects depends on an uncertain event. Civ. 
 Code La. art. 1769. 
 
CONTRACT 
 
 (202) 
 
 CONTRACT 
 
 (7) Consensual contracts are those which 
 are formed by mere consent of the parties, 
 such as all contracts of hiring and mandate. 
 
 (8) Executed contracts are those in which 
 nothing remains to be done by either party, 
 and where the transaction has been com- 
 pleted, or was completed at the time the con- 
 tract or agreement was made; as where an 
 article is sold and delivered, and payment 
 therefor is made on the spot. 
 
 (9) Executory contracts are those in which 
 some act remains to be done; as when an 
 agreement is made to build a house, in six 
 months, to do an act before some future 
 day, to lend money upon a certain interest 
 payable at a future time. 
 
 A contract "executed" (which differs in 
 nothing from a grant) conveys a chose in 
 possession; a contract "executory" conveys 
 a chose in action. 2 Bl. Comm. 443. As to 
 the importance of grants considered as con- 
 tracts, see "Obligation of Contracts." 
 
 (10) Express contracts are those in which 
 the terms of the contract 6r agreement are 
 openly and fully uttered and avowed at the 
 time of making; as, to pay a stated price for 
 certain specified goods; to deliver an ox, 
 etc. 2 Bl. Comm. 443. 
 
 (11) Implied contracts are such as reason 
 and justice dictate, and which, therefore, the 
 law presumes that every man undertakes to 
 perform. Thus, if I employ a person to do 
 any business for me or perform any work, 
 or take up wares with a tradesman, the law 
 implies that I understood or contracted to 
 pay the real value of the services or wares. 
 2 Bl. Comm. 443. These contracts form the 
 web and woof of actual life. 1 Pars. Cont. 4. 
 
 There is one species of implied contract 
 which runs through and is annexed to all 
 other contracts, conditions, and covenants, 
 viz., that if I fail in my part of the agree- 
 ment, I shall pay the other party such dam- 
 ages as he has sustained by my neglect or 
 refusal. See "Quantum Meruit;" "Quantum 
 Valebat;" "Assumpsit;" Comyn, Dig. "Ac- 
 tion upon the Case upon Assumpsit" (A 1) ; 
 "Agreement." 
 
 (12) Independent contracts are those in 
 which the mutual acts or promises have no 
 relation to each other either as equivalents 
 or as considerations. Civ. Code La. art. 1762. 
 
 (13) Mixed contracts are those by which 
 one of the parties confers a benefit on the oth- 
 er, receiving something of inferior value in re 
 turn, such as a donation subject to a charge, 
 
 (14) Contracts of mutual interest are such 
 as are entered into for the reciprocal interest 
 and utility of each of the parties; as sales, 
 exchange, partnership, and the like. 
 
 (15) Entire contracts are those whose con- 
 sideration is entire; divisible if the consid- 
 eration is apportioned, or If an apportion- 
 ment may be implied by law as to each item 
 to be performed. 40 Cal. 251. 
 
 (16) Severable (or separable) contracts 
 are those the considerations of which are by 
 their terms susceptible of apportionment or 
 division on either side, so as to correspond 
 to the several parts or portions of the con- 
 sideration on the other side. 
 
 A contract to pay a person the worth of 
 
 his services as long as he will do certain 
 work, or so much per week as long as he 
 shall work, or to give a certain price per 
 bushel for every bushel of so much corn 
 as corresponds to a sample, would be a 
 severable contract. If the part to be per- 
 formed by one party consists of several dis- 
 tinct and separate items, and the price to 
 be paid by the other is apportioned to each 
 item, to be performed, or is left to be implied 
 by law, such a contract will generally be 
 hole to be severable. So when the price to 
 be paid is clearly and distinctly apportioned 
 to different parts of what is to be perform ed, 
 although the latter is in its nature single 
 and entire. But the mere fact of sale by 
 weight or measure — i. e., so much per pound 
 or bushel — does not make a contract sever- 
 able. 
 
 (17) Simple contracts are those not of spe- 
 cialty or record. They are the lowest class 
 of express contracts, and answer most nearly 
 to our general definition of contract. 
 
 , To constitute a sufScient parol iigreement 
 to be binding in law, there must be that 
 reciprocal and mutual assent which is neces- 
 sary to all contracts. They are by parol, 
 which includes both oral and written. The 
 only distinction between oral and written 
 contracts is in their mode of proof. And it 
 is inaccurate to distinguish verbal from 
 written; for contracts are equally verbal 
 whether the words are written or spoken, — 
 the meaning of "verbal" being, "expressed 
 in words." See 3 Burrows, 1670; 7 Term 
 R. 350, note; 11 Mass. 27, 30; 5 Mass. 299, 
 301; 7 Conn. 57; 1 Caines (N. Y.) 386. 
 
 (18) Specialties are those which are under 
 seal, as deeds and bonds. 
 
 Specialties are sometimes said to include 
 also contracts of record (1 Pars. Cont. 7), 
 in which case there would be but two classes 
 at common law, viz., specialties and simple 
 contracts. The term "specialty" is always 
 used substantively. 
 
 They are the second kind of express con- 
 tracts, under the ordinary common-law divi- 
 sion. They are not merely written, but 
 signed, sealed, and delivered by the party 
 bound. The solemnities connected with 
 these acts, and the formalities of witnessing, 
 gave in early times an importance and char- 
 acter to this class of contracts which implied 
 so much caution and deliberation (consid- 
 eration) that it was unijecessary to prove 
 the consideration even in a court of equity. 
 Plowd. 305; 7 Term R. 477; 4 Barn. & Adol. 
 652; 3 Bing. Ill; 1 Fonbl. Eq. 342, note. 
 Though little of the real solemnity now re- 
 mains, except witnessing, and a scroll is sub- 
 stituted in most of the states for the seal, 
 the distinction with regard to specialties has 
 still been preserved intact. See "Considera- 
 tion." 
 
 When a contract by specialty is changed 
 by a parol agreement, the whole contract 
 becomes parol. 2 Watts (Pa.) 451; 9 Pick. 
 (Mass.) 298; 13 Wend. (N. Y.) 71. 
 
 (19) Unilateral contracts are those in which 
 the party to whom the engagement is made 
 makes no express agreement on his part. 
 They are so called even in cases where the 
 
CONTRACTION 
 
 (203) 
 
 CONTRAMANDATIO 
 
 law attacheB certain obligations to his ac- 
 ceptance. Civ. Code La. art. 1758. A loan 
 for use and a loan of money are of this kind. 
 Poth. Obi. pt. 1, c. 1, § 1, art. 2. 
 
 (20) Onerous contracts are those in which 
 something is given or promised as a consid- 
 eration for the engagement or gift, or some 
 service, interest, or condition is imposed on 
 what is given or promised, although unequal 
 to it in value. 
 
 (21) Principal contracts are those entered 
 into by both parties on their own accounts, 
 or in the several qualities or characters they 
 assume. 
 
 (22) Real contracts are those in which it is 
 necessary that there should be something 
 more than mere consent, such as^a loan of 
 money, deposit, or pledge, which, from their 
 nature, require a delivery of the thing (res). 
 
 (23) Reciprocal contracts are those by 
 which the parties expressly enter into mutual 
 engagements, such as sale, hire, and the like. 
 
 (24) Contracts of record are those which 
 are evidenced by matter of record, such as 
 judgments, recognizances, and statutes staple. 
 These are the highest class of contracts. 
 Statutes merchant and staple, and other se- 
 curities of the like nature, are confined to 
 England. They ate contracts entered into 
 by the intervention of some public authority, 
 and are witnessed by the highest kind of 
 evidence, ri^., matter of record. 4 Bl. Comm. 
 465. 
 
 (25) Verbal contracts are simple contracts. 
 
 (26) Written contracts are those evidenced 
 by writing. 
 
 In the Civil Law. Pothier's treatise on 
 
 Obligations, taken in connection with the 
 Civil Code of Louisiana, gives an idea of the 
 divisions of the civil law. Poth. Obi. pt. 1, 
 c. 1, § 1, art. 2, makes the five following 
 classes: Reciprocal and unilateral; consen- 
 sual and real; those of mutual interest, of 
 beneficence and mixed; principal and acces- 
 sory; those which are subjected by the civil 
 law to certain rules and forms, and those 
 which are regulated by mere natural justice. 
 
 It is true that almost all the rights of per- 
 sonal property do in great measure depend 
 upon contracts of one kind or other, or at 
 least might be reduced under some of them, 
 which is the method taken by the civil law. 
 It has referred the greatest part of the du- 
 ties and rights of which it treats to the head 
 of obligations ex contractu or quasi ex con- 
 tractu. Inst. 3. 14. 2; 2 Bl. Comm. 443. 
 
 CONTRACTION (Lat. con, together, traho, 
 to draw). A form of a word abbreviated by 
 the omission of one or more letters. This 
 was formerly much practiced, but in modern 
 times has fallen into general disuse. Much 
 information in regard to the rules for con- 
 traction is to be found in the Instructor 
 Clericalis. 
 
 CONTRACTOR. One who enters into a 
 contract. Those who undertake to do public 
 work, or the work for a company or corpo- 
 ration on a large scale, at a certain fixed 
 price, or to furnish goods to another at a 
 fixed or ascertained price. 2 Pardessus, 
 note 300. See 5 Whart. (Pa.) 366. 
 
 CONTRACTUS BONAE FIDEI. In Ro- 
 man law, those contracts (e. g., emptio ven- 
 ditio) which admitted of equitable defenses 
 and other equitable consideration. They 
 were opposed to contracts stricti juris (e. g., 
 stipulatio), which admitted no such equi- 
 table defenses or considerations, at least 
 until their original character was compelled 
 by statute to admit them. All the praetorian 
 contracts were contractus honae fidei, but 
 some of the civiles contractus were also 
 honae fidei. 
 
 CONTRACTUS CIVILES. In Roman law. 
 Those contracts (e. g., venditio)_ which were 
 actionable either in virtue of the old com- 
 mon law, or by virtue of any particular 
 statute. They were opposed to the con- 
 tractus praetorii which were actionable only 
 through the aid of the praetor, who, for that 
 purpose, had to adopt the existing legal 
 forms of actions. 
 
 CONTRACTUS EST QUASI ACTUS CON- 
 tra actum. A contract is, as it were, act 
 against act. 2 Coke, 15. 
 
 CONTRACTUS EX TURPI CAUSA, VEL 
 contra bonos mores nullus est. A contract 
 founded on a base and unlawful considera- 
 tion, or against good morals, is null. Hob. 
 167; Dig. 2. 14. 27. 4. 
 
 CONTRACTUS LEGEM EX CONVEN- 
 tlone acciplunt. The agreement of the par- 
 ties makes the law of the contract. Dig. 16. 
 3. 1. 6. 
 
 CONTRADICT. In practice. To prove a 
 fact contrary to what has been asserted by 
 a witness. 
 
 CONTRADICTION IN TERMS. Express, 
 patent, inconsistent between parts of a clause 
 or of an Instrument. 
 
 CONTRAESCRITURA. In Spanish law. 
 Counter letter. An instrument, usually exe- 
 cuted in secret, for the purpose of showing 
 that an act of sale, or some other public 
 instrument, has a different purpose from 
 that imported on its face. Acts of this 
 kind, though binding on the parties, have no 
 effect as to third persoos. 
 
 CONTRAFACTIO (Lat.) Counterfeiting; 
 as, contrafactio sigilH regis, counterfeiting 
 the king's seal. Cowell; Reg. Orig. 42. See 
 "Counterfeit." 
 
 CONTRAINTE PAR CORPS. In French 
 law. The civil process of arrest of the per- 
 son, which is imposed upon vendors falsely 
 representing their property to be unincum- 
 bered, or upon persons mortgaging property 
 which they are aware does not belong to 
 them, and in other cases of moral heinous- 
 ness. Brown. 
 
 CONTRALIGATIO. In old English law. 
 Counter obligation. Literally, counter bind- 
 ing. Est enim oMigatio quasi contraligatio. 
 Fleta, lib. 2, c. 56, § 1. 
 
 CONTRAMANDATIO. A countermanding. 
 Oontramandatio placiti. in old English law. 
 
CONTRAMANDATUM 
 
 (204) 
 
 CONTUBERNIUM 
 
 was the respiting of a defendant, or giving 
 him further time to answer, by countermand- 
 ing the day fixed for him to plead, and ap- 
 pointing a new day; a sort of imparlance. 
 Cowell. 
 
 CONTRAMANDATUM. A lawful excuse, 
 which a defendant in a suit by attorney al- 
 leges for himself to show that the plaintiff 
 has no cause of complaint. Blount. 
 
 CONTRAPLACITUM. In old English law. 
 A counter plea. Towns. PI. 61. 
 
 CONTRAPOSITIO. In old English law. 
 A plea or answer. Blount. A counter posi- 
 tion. 
 
 CONTRARIENTS. This word was used 
 in the time of Edw. II. to signify those who 
 were opposed to the government, but were 
 neither rebels nor traitors. Jacob. 
 
 CONTRARIORUM CONTRARIA EST RA- 
 
 tio. The reason of contrary things is con- 
 trary. Hob. 344. 
 
 CONTRAROTULATOR (Pr. contrerouleui; 
 a controller). One whose business it was to 
 observe the money which the collectors had 
 gathered for the use of the king or the 
 people. Cowell. 
 
 CONTRAROTULATOR PIPAE. An officer 
 of the exchequer that writeth out summons 
 twice every year to the sheriffs to levy the 
 farms (rents) and debts of the pipe. Blount. 
 
 CONTRAT. In French law. Contracts. 
 Contracts are of the following varieties: 
 
 (1) Bilateral, or synallagmatique, where 
 each party is bound to the other to do what 
 is just and proper. 
 
 (2) Unilateral, where the one side only is 
 bound. 
 
 (3) Commutatif, where one does to the 
 other something which is supposed to be an 
 equivalent for what the other does to him. 
 
 (4) Aleatoire, where the consideration for 
 the act of the one is a mere chance. 
 
 (5) Contrat de Menfaisance, where the one 
 party procures to the other a purely gratu- 
 itous benefit. 
 
 (6) Contrat a litre onerewx, where each 
 party is bound under some duty to the other. 
 Brown. 
 
 CONTRATALLIA. In old English law. A 
 counter tally. A term used in the exchequer. 
 Mem. in Scacc. M. 26 Edw. I. 
 
 CONTRATENERE. To hold against; to 
 withhold. Whlshaw. 
 
 CONTRAVENTION. In French law. An 
 act which violates the law, a treaty, or an 
 agreement which the party has made. That 
 infraction of the law punished by a fine 
 which does not exceed fifteen francs, and 
 by an imprisonment not exceeding three 
 days. 
 
 CONTRE MAITRE. In French law. The 
 second officer in command of a ship; the 
 officer next in command to the master, and 
 under him. His business is said to relate 
 to providing fit things for the navigation 
 of the vessel before the voyage, — ropes, sails, 
 anchors, etc.; to attending to its condition 
 
 through the voyage, reporting each day to 
 the master, and attending to the anchoring 
 and security of the vessel at the end of the 
 voyage. Ord. de la Marine de 1681, liv. 2. 
 He is always to execute, day or night, the 
 commands of the master, and represents the 
 master in his sickness or absence. Guyot, 
 Rep. Univ. 
 
 CONTRECTARE (Lat.) 
 
 In Civil Law. To handle; to take hold 
 
 of; to meddle with. 
 
 In Old English Law. To treat. Tel 
 
 m.ale contrectet, or shall ill treat. Fleta, 
 lib. 1, c. 17, § 4. 
 
 CONTRECTATIO. In civil law. The re- 
 moval of a thing from its place, amounting 
 to a theft. The offense is purged by a resto- 
 ration of the thing taken. Bowyer, Comm. 
 268. 
 
 CONTRECTATIO REI ALIENAE ANIMO 
 furandi, est furtum. The touching or remov- 
 ing of another's property, with an intention 
 of stealing, is theft. Jenk. Cent. Cas. 132. 
 
 CONTREFACON. In French law. The of- 
 fense of those who print or cause to be 
 printed, without lawful authority, a book of 
 which the author or his assigns have a copy- 
 right. Merlin, Repert. 
 
 CONTRIBUTION. 
 
 At Common Law. The payment by 
 
 each or any one of several parties who ar« 
 liable, in company with others, of his propor- 
 tionate part of the whole liability or loss, to 
 one or more of the parties so liable upon 
 whom the whole loss has fallen, or who 
 has been compelled to discharge the whole 
 liability. 1 Bibb (Ky.) 562; 4 Johns. Ch. 
 (N. Y.) 545; 4 Bouv. Inst, note 3935. 
 
 In Civil Law. A partition by which the 
 
 creditors of an insolvent debtor divide among 
 themselves the proceeds of his property pro- 
 portionably to the amount of their respec- 
 tive credits. Civ. Code La. art. 2522, note 10. 
 It is a division pro rata. Merlin, Repert. 
 
 In Maritime Law. Average (g. v.) 
 
 CONTRIBUTORY NEGLIGENCE. Fail- 
 ure of one injured by the negligence of an- 
 other to use ordinary care, which failure is 
 a concurrent cause with that of such other 
 person in producing the injury. 
 
 CONTROLLER. A comptroller (g. v.) 
 
 CONTROLMENT. In old English law. 
 The controlling or checking of another offi- 
 cer's account; the keeping of a counter roll. 
 Sometimes called "contra rollment." 
 
 CONTROVER. One who invents false 
 news. Coke, 2d Inst. 227. 
 
 CONTROVERSY. A dispute arising be- 
 tween two or more persons. ' It differs from 
 case, which includes all suits, criminal as 
 well as civil; whereas controversy is a civil, 
 and not a criminal, proceeding. 2 Dall. (U. 
 S.) 419, 431, 432; 1 Tucker, Bl. Comm. App. 
 420, 421; Story, Const. § 1668. 
 
 CONTUBERNIUM. In civil law. A mar- 
 
CONTUMACY 
 
 (205) 
 
 CONVERSANT 
 
 riage between persons of whom one or both 
 were slaves. Poth. Cont. pt. 1, c. 2, § 4. 
 
 CONTUMACY (Lat. contumacia, disobedi- 
 ence). The refusal or neglect of a party ac- 
 cused to appear or answer to a charge pre- 
 ferred against him in a court of justice. 
 Chiefly used in ecclesiastical courts; "con- 
 tempt" being used in the civil courts. 
 
 Actual contumacy is the refusal of a party 
 actually before the court to obey some order 
 of the court. 
 
 Presumed contumacy is the act of refus- 
 ing or declining to appear upon being cited. 
 3 Curt. Ecc. 1. 
 
 CONTUMAX. One accused of a crime who 
 refuses to appear and answer to the charge; 
 an outlaw. 
 
 CONTUSION. In medical jurisprudence. 
 An injury or lesion, arising from the shock 
 of a body with a large surface, which pre- 
 sents no loss of substance, and no apparent 
 wound. If the skin be divided, the injury 
 takes the name of a contused wound. See 
 1 Chanc. Prac. 38; 4 Car. & P. 381, 487, 558, 
 565; 6 Car. & P. 684; 2 Beck, Med. Jur. 178. 
 
 CONTUTOR (Lat.) In civil law. A co- 
 tutor, or co-guardian. Inst. 1. 24. 1. 
 
 CONUSANCE, CLAIM OF. See "Cogni- 
 zance." 
 
 CONUSANT. One who knows; as, if a 
 party knowing of an agreement in which he 
 has an interest makes no objection to it, he 
 is said to be conusant. Co. Litt. 157. 
 
 CONUSOR. A cognizor. 
 
 CONVENABLE. In old English law. Suit- 
 able; agreeable; convenient; fitting. Litt. § 
 103; Cowell. 
 
 CONVENE. In civil law. To bring an 
 action. 
 
 CONVENTICLE. A private assembly of a 
 few folks under pretense of exercise of re- 
 ligion. The name was first given to the meet- 
 ings of WicklifEe, but afterwards applied to 
 the meetings of the nonconformists. Cowell. 
 The meetings were made illegal by 16 Car. 
 II. c. 4, and the term, in its later significa- 
 tion, came to denote an unlawful religious 
 assembly. 
 
 CONVENTIO (Lat. a coming together). 
 
 In Canon Law. The act of summoning 
 
 or calling together the parties by summon- 
 ing the defendant. When the defendant was 
 brought to answer, he was said to be con- 
 vened, which the canonists called conventio, 
 because the plaintiff and defendant met to 
 contest. Story, Eq. PI. 402; 4 Bouv. Inst, 
 note 4117. 
 
 In Contracts. An agreement; a cove- 
 nant. Cowell. Often used in the maxim 
 conventio vincit legem, the express agree- 
 ment of the parties supersedes the law. 
 Story, Ag. § 368. But this maxim does not 
 aptily,' it is said, to prevent the application 
 of the general rule of law. Broom, Leg. 
 Mto. 308. 
 
 CONVENTIO PRIVATORUM NON PC- 
 test publico Juri derogare. An agreement of 
 private persons cannot derogate from pub- 
 lic right. Wingate, Max. p. 746, max. 201; 
 Co. Litt. 166a; Dig. 50. 17. 45. 1. 
 
 CONVENTIO VINCIT LEGEM. The agree- 
 ment of the parties overcomes or prevails 
 against the law. Story, Ag. § 368; 6 Taunt. 
 430. See Dig. 16. 3. 1. 6. 
 
 CONVENTION. 
 
 In Civil Law. A general term which 
 
 comprehends all kinds of contracts, treaties, 
 pacts, or agreements. The consent of two 
 or more persons to form with each other 
 an engagement, or to dissolve or change one 
 which they had previously formed. Domat, 
 Civ. Law; Dig. 2. 14. 1. 1; 1 Bouv. Inst, note 
 100. 
 
 In Legislation. This term is applied 
 
 to a meeting of the delegates elected by the 
 people for other purposes than usual legis- 
 lation. It is mostly used to denote an as- 
 sembly to make or amend the constitution 
 of a state; but it sometimes indicates an as- 
 sembly of the delegates of the people to nom- 
 inate ofiicers to be supported at an election. 
 
 CONVENTIONAL. Arising from, and de- 
 pendent upon, the act of the parties, as dis- 
 tinguished from "legal," which is something 
 arising from act of law. 2 Bl. Comm. 120. 
 
 CONVENTIONAL ESTATES. Those es- 
 tates for life which are expressly created 
 by the act of the parties, as distinguished 
 from legal estates, or those which are cre- 
 ated by operation of law. 2 Bl. Comm. 120. 
 
 CONVENTIONE. The name of a writ for 
 the breach of any covenant in writing, 
 whether real or personal. Reg. Orig. 115; 
 Fitzh. Nat. Brev. 145. 
 
 CONVENTUAL CHURCH. In ecclesias- 
 tical law. That which consists of regular 
 clerks, professing some order or religion; 
 or of dean and chapter; or other societies of 
 spiritual men. 
 
 CONVENTUALS. Religious men united 
 in a convent or religious house. Cowell. 
 
 CONVENTUS (Lat. corarcH/cc). An assem- 
 bly; convening magnatum vel procerum, an 
 assemblage of the chief men or nobility; a 
 name of the English parliament. 1 Shars- 
 wood, Bl. Comm. 148. 
 
 In Civil Law. A contract made be- 
 tween two or more parties. 
 
 A' multitude of men, of all classes, gath- 
 ered together. 
 
 A standing in a place to attract a crowd. 
 
 A collection of the people by the magis- 
 trate to give judgment. Calv. Lex. 
 
 CONVENTUS JURIDICUS. A Roman pro- 
 vincial court for the determination of civil 
 causes. 
 
 CONVERSANT. One who is in the habit 
 of being in a particular place is said to be 
 conversant there. Barnes, 162. 
 
 Acquainted; familiar. 
 
CONVERSANTES 
 
 (206) 
 
 CONVIVIUM 
 
 CONVERSANTES. In old English law. 
 Conversant or dwelling; commorant. 2 Inst. 
 122. 
 
 CONVERSION (Lat. con, with, together, 
 vertere, to turn; conversio, a turning to, 
 with, together). 
 
 In Equity. The exchange of one spe- 
 cies of property for another, which takes 
 place under some circumstances in the con- 
 sideration of the law, although no such 
 change has actually taken place. 
 
 Land is held to be converted into money, 
 in equity, when the owner has contracted 
 to sell; and if he die before making a con- 
 veyance, his executors will be entitled to the 
 money, and not his heirs. 2 Vern. 52; 1 
 W. Bl. 129. 
 
 Money may be held to be converted into 
 land under various circumstances; as where, 
 for example, a man dies before a conveyance 
 is made to him of land which he has bought. 
 10 Pet. (U. S.) 563; Bouv. Inst. Index. 
 
 At Law. An unauthorized assumption 
 
 and exercise of the right of ownership over 
 goods or personal chattels belonging to an- 
 other, to the alteration of their condition, or 
 the exclusion of the owner's rights. 44 Me. 
 197; 36 N. H. 311. 
 
 A' constructive conversion takes place when 
 a person does such acts in reference to the 
 goods or personal chattels of another as 
 amount, in view of the law, to appropriation 
 of the property to himself. 1 Kelly (Ga.) 
 381. 
 
 A direct , conversion takes place when a 
 person actually appropriates the property 
 of another to his own beneficial use and en- 
 joyment, or to that of a third person, or de- 
 stroys it, or alters its nature. 27 Mich. 454. 
 
 CONVEYANCE. The transfer of the title 
 of land from one person or class of persons 
 to another. 
 
 The instrument for effecting such transfer. 
 
 It is a general term, and comprehends the 
 several modes of passing title to real estate. 
 54 Miss. 90. 
 
 Every instrument in writing by which any 
 estate or interest in land is created, aliened, 
 or mortgaged, or by which the title to land 
 may be affected at law or in equity, except 
 lost wills and testaments, leases for not to 
 exceed three years, and executory contracts 
 for the purchase or sale of land. 1 Rev. St. 
 N. Y. p. 762, § 38. 
 
 CONVEYANCE OF VESSELS. The trans- 
 fer of the title to vessels. 
 
 CONVEYANCER. One who makes it his 
 business to draw deeds of conveyance of 
 lands for others. 1 Bouv. Inst, note 2422. 
 They frequently act as brokers for the sale of 
 estates and obtaining loans on mortgage. 
 
 CONVEYANCING. A term including both 
 the science and act of transferring titles to 
 real estate from one man to another. It 
 includes the examination of the title of the 
 alienor, and also the preparation of the in- 
 struments of transfer. It is, in England 
 and Scotland, and, to a greatly inferior ex- 
 tent, in the United States, a highly artificial 
 
 system of law, with a distinct class of prac- 
 titioners. A profound and elaborate treatise 
 on the English law of conveyancing is Mr. 
 Preston's. Geldart and Thornton's works 
 are important works; and an interesting 
 and useful summation of the American law 
 is given in Washburn on Real Property. 
 
 CONVEYANCING COUNSEL. By Act 15 
 
 & 16 Vict. c. 80, § 41, the lord chancellor Is 
 empowered to appoint not less than six bar- 
 risters, who have practiced as conveyancing 
 counsel for ten years at least, to be convey- 
 ancing counsel of the court of chancery, and 
 the opinion of any of them may be received 
 and acted on by the court or by a judge at 
 chambers in the investigation of the title to 
 an estate, or in the settlement of a draft, 
 conveyance, mortgage, etc. Daniell, Ch. Pr. 
 1046. By the judicature act of 1873 (section 
 77) they were transferred to the supreme 
 court. 
 
 CONVICIA SI IRASCARIS TUA DIVUL- 
 gas; spreta exolescunt. If you be moved to 
 anger by insults, you publish them; if de- 
 spised, they are forgotten. 3 Inst. 198. 
 
 CONVICIUM. In civil law. The name of 
 a species of slander or injury uttered in 
 public, and which charged some one with 
 some act contra honos mores. Vicat; Bac. 
 Abr. "Slander." 
 
 CONVICT. One who has been condemned 
 by a competent court; one who has been 
 convicted of a crime or misdemeanor. 
 
 To condemn; to find guilty of a crime or 
 misdemeanor. 4 Bl. Comm. 362. 
 
 CONVICTION (Lat. convictio; from con, 
 with, and vincere, to bind). In practice. 
 That legal proceeding of record which as- 
 certains the guilt of the party, and upon 
 which the sentence or judgment is founded. 
 7 Man. & G. 504. 
 
 Finding a person guilty by verdict of a 
 jury. 1 Bish. Grim. Law, § 223. 
 
 A record of the summary proceedings upon 
 any penal statute before one or more jus- 
 tices of the peace or other persons duly au- 
 thorized, in a case where the offender has 
 been convicted and sentenced. Holthouse, 
 The first of the definitions here given un- 
 doubtedly represents the accurate meaning 
 of the term, and includes an ascertainment 
 of the guilt of the party by an authorized 
 magistrate in a summary way, or by con- 
 fession of the party himself, as well as by 
 verdict of a jury. The word is also used in 
 each of the other senses given. It is said 
 to be sometimes used to denote final judg- 
 ment. Dwarr. St. (2d Ed.) 683. And a final 
 judgment is usually held essential to convic- 
 tion. 69 N. Y. 107; 99 Mass. 420. 
 
 Summary conviction is one which takes 
 place before an authorized magistrate or in- 
 ferior court, without the intervention of a 
 common-law jury, or not according to the 
 course of a common-law prosecution. 
 
 CONVIVIUM. A lay tenure, whereby a 
 tenant is bound to provide meat and drink 
 for his lord once or oftener in the year. 
 
CONVOCATION 
 
 (207) 
 
 COPULATIVK TERM 
 
 The same as procuratio with the clergy. 
 Blount. 
 
 CONVOCATION (Lat. con, together, voco, 
 to call). In ecclesiastical law. The gen- 
 eral assembly of the clergy to consult upon 
 ecclesiastical matters. 
 
 The clergy were always summoned at the 
 commencement of each parliament. They 
 themselves constituted a parliament, with a 
 higher and lower house of convocation; the 
 higher including the bishops and archbish- 
 ops; the lower, the rest of the clergy. It is 
 still summoned before each parliament pro 
 forma, preserving the ancient custom, but 
 adjourns without transacting any business. 
 2 Steph. Comm. 542; 2 Burn, Ecc. Law, 18 
 et seq. 
 
 CONVOY. A naval force, under the com- 
 mand of an officer appointed by government, 
 for the protection of merchant ships and 
 others, during the whole voyage, or such 
 part of it as is known to require such pro- 
 tection. Marsh. Ins. bk. 1, c. 9, § 5; Park, 
 Ins. 388. 
 
 Warranties are sometimes inserted in pol- 
 icies of insurance that the ship shall sail 
 with convoy. To comply with this warranty, 
 five things are essential: First, the ship 
 must sail with the regular convoy appoint- 
 ed by the government; secondly, she |must 
 sail from the place of rendezvous appointed 
 by the government; thirdly, the convoy must 
 be for the voyage; fourthly, the ship in- 
 sured must have sailing instructions; fifthly, 
 she must depart and continue with the con- 
 voy till the end of the voyage, unless sepa- 
 rated from it by necessity. Marsh. Ins. bk. 
 1, c. 9. § 5. 
 
 CO-OBLIGOR. One who is bound together 
 with one or more others to fulfill an obli- 
 gation. As to suing co-obligors, see "Par- 
 ties;" "Joinder, etc." 
 
 COOL BLOOD. Tranquillity, or calmness; 
 the condition of one who has the calm and 
 undisturbed use of his reason. In cases of 
 homicide, it frequently becomes necessary 
 to ascertain whether the act of the person 
 killing was done in cool blood or not, in or- 
 der to ascertain the degree of his guilt. 
 
 COOLING TIME. In criminal law. Time 
 for passion to subside and reason to inter- 
 pose. Cooling time destroys the effect of 
 provocation, leaving homicide murder, the 
 same as if no provocation had been given. 1 
 Russ. Crimes, 525; Whart. Horn. 179; 3 
 Grat. (Va.) 594. 
 
 CO-OPERTIO (Law Lat. from co-operire, to 
 cover). In old English law. A covering, or 
 exterior coat, as the bark of a tree. Cowell. 
 Quercus discooperta, an oak stripped of its 
 bark, or debarked. Id. 
 
 CO-OPERTUM, or CO-OPERTURA. (Law 
 Lat. from co-operire, to cover). In forest 
 law. A covert; a thicket (dumetum) or 
 shelter for wild beasts in a forest. Cart, 
 de Foresta, c. 12; Reg. Grig. 258; Spelman. 
 Extra co-opertum forestae, without the cov- 
 ert of the forest. Fleta, lib. 2, c. 41, § 2. 
 
 COPARCENARY, ESTATES IN. Estates 
 of which two or more persons form one 
 heir. 1 Washb. Real Prop. 414. 
 
 The title to such an estate is always by 
 descent. The shares of the tenants need 
 not be equal. The estate is rare in America, 
 but sometimes exists. 3 Ind. 360; 4 Grat. 
 (Va.) 16; 17 Mo. 13; 3 Md. 190. S.ee Wat- 
 kins, Conv. (Coventry Ed.) 145. 
 
 COPARCENERS. Persons to whom an es- 
 tate of inheritance descends jointly, and 
 by whom it is held as an entire estate. 2 
 HI. Comm. 187. 
 
 In the old English and the American sense, 
 the term includes males as well as females, 
 but in the modern English use is limited to 
 females. 4 Kent, Comm. 462; 2 Bouv. Inst, 
 note 1781. 
 
 COPARTICEPS. In old English law. A 
 coparcener. Co. Entr. 377, 711. 
 
 COPARTNER. One who is a partner with 
 one or more other persons; a member of a 
 partnership (g. v.) 
 
 COPARTNERSHIP. A partnership (<?. v.) 
 
 COPARTNERY. In Scotch law. The con- 
 tract of copartnership; a contract by which 
 the several partners agree concerning the 
 communication (sharing) of loss or gain, 
 arising from the subject of the contract. 
 Bell, Diet. 
 
 COPE, or COPPE (Saxon). A hill. Co. 
 Litt. 4b. 
 
 The top or summit of a thing, as of a 
 house. Cowell. 
 
 A tribute paid out of lead mines in Eng- 
 land. Blount. 
 
 COPEMAN, or COPESMAN. A chapman 
 
 (g. V.) 
 
 COPESMATE. A merchant; a partner in 
 merchandise. 
 
 COPIA (Lat.) In civil and old English 
 law. Opportunity or means of access. 
 
 COPIA VERA. In Scotch practice. A true 
 copy; words written at the top of copies 
 of instruments. 3 How. St. Tr. 427, 430, 
 432. 
 
 COPPA. In English law. A crop or cock 
 of grass, hay, or corn, divided into titheable 
 portions, that it may be more fairly and 
 justly tithed. Wharton. 
 
 COPPICE, or COPSE. A small wood, con- 
 sisting of underwood, which may be cut at 
 twelve or fifteen years' growth for fuel. 
 
 COPULA. Sexual intercourse; the con- 
 summation of marriage. 
 
 COPULATIO VERBORUM INDICAT AC- 
 ceptationem In eodem sensu. Coupling words 
 together shows that they ought to be under- 
 stood in the same sense. Bac. Max. reg. 3; 
 Broom, Leg. Max. (3d London Ed.) 523. 
 
 COPULATIVE TERM. One which is placed 
 
COPY 
 
 (208) 
 
 CORONARE 
 
 between two or more others to join them 
 together. 
 
 COPY. A true transcript of an original 
 writing. 
 
 Exemplifications kre copies verified by the 
 great seal or by the seal of a court. 1 Gilb. 
 Ev. 19. 
 
 Bxaniined copies are those which have 
 been compared with the original, or with an 
 official record thereof. 
 
 Office copies are those made by officers in- 
 trusted with the originals, and authorized 
 for that purpose. 
 
 COPYHOLD. A tenure by copy of court- 
 roll; any species of holding by particular 
 custom of the manor; the estate so held. 
 
 COPYHOLDER. A tenant by copyhold ten- 
 ure (by copy of court roll). 2 Bl. Comm. 
 95. 
 
 COPYRIGHT. The exclusive privilege, se- 
 cured according to certain legal forms, of 
 printing, publishing, and vending copies of 
 writings or drawings. 14 How. (XJ. S.) 530. 
 
 CORAAGIUM. Measures of corn. An un- 
 usual and extraordinary tribute, arising only 
 on special occasions. They are thus distin- 
 guished from services. Mentioned in con- 
 nection with hidage and carvage. Blount. 
 
 CORAM IPSO REGE (Lat.) Before the 
 king himself. Proceedings in the court of 
 king's bench are said to be coram rege ipso. 
 3 Bl. Comm. 41. 
 
 CORAM NOBIS. A writ of error on a 
 judgment in the king's bench is called a 
 coram nobis, before us. So called because 
 the record and proceedings were stated in 
 the writ to remain "before us." 1 Archb. 
 Prac. 234. 
 
 In Modern Practice. A writ of error 
 
 for a review before the same court which is 
 alleged to have committed the error. 
 
 CORAM NON JUDICE. Acts done by a 
 court which has no jurisdiction either over 
 the person, the cause, or the process, are 
 said to be coroTO non judice. 1 Conn. 40. 
 Such acts have no validity. If an act is 
 required to be done before a particular per- 
 son, it would not be considered as done be- 
 fore him if he were asleep or non compos 
 mentis. 5 Har. & J. (Md.) 42; 8 Cranch 
 (U. S.) 9; Paine (U. S.) 55; 1 Prest. Conv: 
 266. 
 
 CORAM PARIBUS. Before the peers or 
 freeholders. The attestation of deeds, like 
 all other solemn transactions, was originally 
 done only coram paribus. 2 Bl. Comm. 307. 
 Coram paribus de vicineto, before the peers 
 or freeholders of the neighborhood. Id. 315. 
 
 CORAM SECTATORIBUS. Before the suit- 
 ors. Cro. Jac. 582. 
 
 CORAM VOBIS. A writ of error on judg- 
 ments of other courts than the king's bench. 
 2 Tidd, Prac. 1056, 1137. So called because 
 the record was stated to remain "before 
 you," i. e., before the justices of king's bench. 
 
 In Modern Practice. A writ of error 
 
 for a review in a higher court than that al- 
 leged to have committed error. 
 
 CO-RESPONDENT. In England, where a 
 husband brings a suit against his wife 
 charging her with adultery, the alleged 
 adulterer must, as a rule, be made a party 
 to the petition as a co-respondent. If the 
 adultery is proved, the court may order him 
 to pay damages to the husband. The term 
 is sometimes applied in the United States 
 to the alleged adulterer, though the prac- 
 tice of joining him does not obtain. Browne, 
 Div. 143, 204; 20 & 21 Vict. c. 85, §§ 28, 83. 
 See "Adultery;" "Dissolution." 
 
 CORhUM FORFISFACERE. To forfeit one's 
 skin; applied to a person condemned to be 
 whipped; the ancient punishment of a serv- 
 ant. 
 
 CORN LAWS. Laws regulating the trade 
 in breadstufts. 
 
 The object of corn laws is to secure a 
 regular and steady supply of the great sta- 
 ples of food; and for this object the means 
 adopted in different countries and at dif- 
 ferent times widely vary, sometimes involv- 
 ing restriction or prohibition upon the ex- 
 port, and sometimes, in order to stimulate 
 production, offering a bounty upon the ex- 
 port. Of the former character was the fa- 
 mous system of corn laws of England, ini- 
 tiated in 1773 by Mr. Burke, and repealed 
 in 1846 under Sir Robert Peel. 
 
 CORN RENTS. Rents reserved in corn,— 
 that is, in wheat or malt. Proportions of 
 rents on college leases (being one-third), di- 
 rected by St. 18 Bliz. c. 6, to be reserved in 
 wheat or malt. 3 Steph. Comm. 141, 142; 2 
 Bl. Comm. 322. 
 
 CORN AGE. A species of tenure in Eng- 
 land, by which the tenant was bound to 
 blow a horn for the sake of alarming the 
 country on the approach of an enemy. Bac. 
 Abr. "Tenure" (N). 
 
 CORNET. A commissioned officer in a 
 regiment of cavalry. 
 
 CORODIUM. In old English law. A cor- 
 ody. 
 
 CORODY. An allowance of meat, drink, 
 money, clothing, lodging, and such like nec- 
 essaries for sustenance. 1 Bl. Comm. 282; 1 
 Chit. Prac. 225. An allowance from an ab- 
 bey or house of religion, to one of the king's 
 servants who dwells therein, of meat and 
 other sustenance. Pitzh. Nat. Brev. 230. 
 
 An assize lay for a corody. Cowell. Core- 
 dies are now obsolete. Coke, 2d Inst. 630; 
 2 Sharswood, Bl. Comm. 40. 
 
 CORONA MALA. In old English law. The 
 clergy who abuse their character were so 
 called. Blount. 
 
 CORONARE. In old records. To give the 
 tonsure, which was done on the crown, or 
 in the form of a crown; to make a man a 
 priest. Cowell. 
 
CORONARE FILIUM 
 
 (209) 
 
 CORPORATION 
 
 CORONARE FILIUM. To make one's son 
 a priest. Homo coronaius was one who had 
 received the first tonsure, as preparatory to 
 superior orders, and the tonsure was in 
 form of a corona, or crown of thorns. Cow- 
 ell. 
 
 ,CORONATOR (Lat.) A coroner {q. v.) 
 Spelman. 
 
 CORONER. An officer whose principal 
 duty it is to hold an inquisition, with the 
 assistance of a jury, over the body of any 
 person who may have come to a violent 
 death, or who has died in prison. 
 
 It is his duty also, in case of the death 
 of the sheriff, or his incapacity, or when a 
 vacancy occurs in that office, to serve all the 
 writs and processes which the sheriff is usu- 
 ally bound to serve. 20 Ga. 336; 11 Tex. 
 284; 14 Ala. (N. S.) 326; 10 Humph. (Tenn.) 
 346; 1 Sharswood, Bl. Comm. 349. 
 
 The chief justice of the king's bench is 
 the sovereign or chief coroner of all Eng- 
 land, though it is not to be understood that 
 he performs the active duties of that office 
 in any one county. 4 Coke, 57b; Bac. Abr. ; 
 3 Comyn, Dig. 242; 5 Comyn, Dig. 212. 
 
 It is also his duty to inquire concerning 
 shipwreck, and to find who has possession 
 of the goods; concerning treasure trove, 
 who are the finders, and where the property 
 is. 1 Sharswood, Bl. Comm. 349. 
 
 The office has lost much of the honor 
 which formerly appertained to it, but the 
 duties are of great consequence to society, 
 both for bringing murderers to punishment, 
 and protecting innocent persons from accu- 
 sation. It may often happen that the im- 
 perfections of the early examination enable 
 one who is undoubtedly a criminal to es- 
 cape. It is proper, in most cases of homi- 
 cide, to procure the examination to be made 
 by a physician, and in many cases it is his 
 duty. 4 Car. & P. 571. 
 
 CORPORAL (Lat. corpus, body). Bodily; 
 relating to the body; as, corporal punish- 
 ment. 
 
 A noncommissioned officer of the lowest 
 grade in an infantry company. 
 
 Corporal Oath. An oath which the 
 
 party takes, laying his hand on the Gospels. 
 Cowell. It is now held to mean solemn oath. 
 1 Ind. 184. 
 
 Corporal Touch. Actual, bodily con- 
 tact with the hand. 
 
 It was once held that, before a seller of 
 personal property could be said to have 
 stopped it in transitu, so as to regain the 
 possession of it, it was necessary that it 
 should come to his corporal touch, but the 
 contrary is now settled. These words were 
 used merely as a figurative expression. 3 
 Term R. 464; 5 Bast, 184. 
 
 CORPORALE SACRAMENTUM. In old 
 English law. A corporal oath. 
 
 CORPORALIS INJURIA NON RECIPIT 
 aestlmationem de future. A personal injury 
 does not receive satisfaction from a future 
 course of proceeding. Bac. Max. reg. 6; 3 
 How. St. Tr. 71; Broom, Leg. Max. (3d 
 London Ed.) 254. 
 
 CORPORATION (Lat. corpus, a body). A 
 franchise possessed by one or more individ- 
 uals, who subsist as a body politic under a 
 special denomination, and are vested, by the 
 policy of the law, with the capacity of per- 
 petual succession, and of acting in several 
 respects, however numerous the association 
 may be, as a single individual. 2 Kent, 
 Comm. 267. 
 
 "A corporation is a body, or artificial per- 
 son, consisting of one or more individuals, 
 or sometimes of individuals and other cor- 
 porations created by law, and invested by 
 the law with certain legal capacities, as the 
 capacity of succession, and the capacity to 
 sue and be sued, to make contracts, to take, 
 hold, and convey property, to commit torts 
 and crimes, and to do other acts, however 
 numerous its members may be, like a single 
 individual." Clark & Marshall, Corp. 2. 
 
 A body, consisting of one or more natural 
 persons, established by law, usually for some 
 specific purpose, and continued by a succes- 
 sion of members. 
 
 It is this last characteristic of a corpora- 
 tion, sometimes called its immortality, pro- 
 longing its existence beyond the term of 
 natural life, and thereby enabling a long- 
 continued effort and concentration of means 
 to the end which it was designed to an- 
 swer, that constitutes its principal utility. 
 A corporation is modelled upon a state or na- 
 tion, and is to this day called a body politic, 
 as well as corporate, thereby indicating its 
 origin and derivation. Its earliest form 
 was, probably, the municipality or city, which 
 necessity exacted for the control or local 
 police of the marts and crowded places of 
 the state or empire. The combination of 
 the commonalty in this form for local gov- 
 ernment became the earliest bulwark against 
 despotic power, and a late philosophical his- 
 torian traces to the remains and remem- 
 brance of the Roman municipia the forma- 
 tion of those elective governments of towns 
 and cities in modern Europe, which, after 
 the fall of the Roman empire, contributed 
 so largely to the preservation of order, and 
 to the protection of the rights of life and 
 property as to become the foundation of 
 modern liberty. Mcintosh, Hist. Eng. pp. 
 31, 32. 
 
 Aggregate Corporations. Those which 
 
 are composed of two or more members at 
 the same time. 
 
 Sole Corporations. Those which by 
 
 law consist of but one member at any one 
 time. 
 
 Civil Corporations. Those which are 
 
 created to facilitate the transaction of busi- 
 ness. 
 
 Ecclesiastical Corporations. Those 
 
 which are created to secure the public wor- 
 ship of God. 
 
 Eleemosynary Corporations. Those 
 
 which are created for the purposes of chari- 
 ties, such as schools, hospitals, and the like. 
 
 Lay Corporations. Those which exist 
 
 for secular purposes. 
 
 Private Corporations. Those which are 
 
 created wholly or in part for purposes of 
 
CORPORATOR 
 
 (210) 
 
 CORSNED 
 
 private emolument. 4 Wheat. (U. S.) 668; 
 ■9 Wheat. (U. S.) 907. 
 
 Public Corporations. Those which are 
 
 exclusively instruments of the public inter- 
 est. 
 
 CORPORATOR. A member of a corpora- 
 tion. 
 
 CORPORE ET ANIMO. See "Animo et 
 Corpore." 
 
 CORPOREAL HEREDITAMENTS. Sub- 
 stantial, permanent objects which may be 
 inherited. The term "land" will include 
 all such. 2 Sharswood, Bl. Comm. 17. 
 
 CORPOREAL PROPERTY. 
 
 In Civil Law. That which consists of 
 
 such subjects as are palpable. 
 
 In Common Law. The term to signify 
 
 the same thing is "property in possession." It 
 differs from incorporeal property, which con- 
 sists of choses in action and easements, as a 
 right of way, and the like. 
 
 CORPS DIPLOMATIQUE. The body^of 
 ambassadors and diplomatic persons. Whar- 
 ton. 
 
 CORPSE. The dead body of a human be- 
 ing. 1 Russ. & R. 366, note; 2 Term R. 733; 
 1 Leach, C. C. 497; 8 Pick. (Mass.) 370; Dig. 
 47. 12. 3. 7; Id. 11. 7. 38; Code, 3. 44. 1. 
 
 CORPUS (Lat. a body). The substance. 
 Used of a human body, a corporation, a col- 
 lection of laws, etc. 
 
 CORPUS COMITATUS. In old English 
 law. The body of a county. Cro. Jac. 514; 
 5 How. (U. S.) 453; 5 Mason (U. S.) 290. 
 The county at large, as distinguished from 
 any particular locality within it. 
 
 CORPUS CORPORATUM. A corporation ; 
 a corporate body, other than municipal. 
 Burr. Sett. Cas. 143. 
 
 CORPUS CUM CAUSA. See "Habeas Cor- 
 pus." 
 
 CORPUS DELICTI. The body of the of- 
 fense. The offense itself, as distinguished 
 from the participation of any person there- 
 in. Thus, the corpus delicti of homicide is 
 that a person has died by violence, not mere- 
 ly that he has died (43 Miss. 472), though 
 the weight of authority is that the mere 
 fact that a building has been burned is the 
 corpvs delicti of arson (29 Ga. 105; 33 Miss. 
 347. Contra, 76 Ala. 42). 
 
 CORPUS HUMANUM NON RECIPIT,AES- 
 timationem. A human body is not susceptible 
 of appraisement. Hob. 59. 
 
 CORPUS JURIS CANONICI (Lat. the body 
 of the canon law). The name given to the 
 collections of the decrees and canons of the 
 Roman church. See "Canon Law." 
 
 CORPUS JURIS CIVILIS (Lat. the body of 
 the civil law). The collection comprising 
 the Institutes, the Pandects or Digest, the 
 Code, and the Novels, of Justinian. See 
 
 those several titles, and also "Civil Law," 
 for fuller information. The name is said to 
 have been first applied to this collection 
 early in the seventeenth century. 
 
 CORPUS PRO CORPORE (Lat.) In old 
 records. Body for body. A phrase express- 
 ing the liability of manucaptors. 3 How. 
 St. Tr. 110. 
 
 CORRECTION, HOUSE OF. A reforma- 
 tory. 
 
 CORREGIDOR. In Spanish law. A mag- 
 istrate who took cognizance of various mis- 
 demeanors, and of civil matters. 2 White, 
 New Recop. 53. 
 
 CO R R E I . In civil law. Two or more bound 
 or secured by the same obligation. 
 
 Gorrei credendi are creditors secured by 
 the same obligation. 
 
 Correi deiendi are two or more persons 
 bound as principal debtors to pay or per- 
 form. Ersk. Inst. 3. 3. 74; Calv. Lex.; Bell, 
 Diet. 
 
 CORRESPONDENCE. The letters writ- 
 ten by one person to another, and the an- 
 swers thereto. See "Letter." 
 
 CORROBORATE. In evidence. To sus- 
 tain by the introduction of other evidence 
 to the same fact. Corroborative evidence is 
 "such evidence as tends in some degree of its 
 own strength, and independently to prove 
 some allegation or issue." 6 N. M. 250. 
 
 CORRUPTIO OPTIMI EST PESSIMA. 
 
 Corruption of the best is worst. 
 
 CORRUPTION. An act done with an in- 
 tent to give some advantage inconsistent 
 with official duty and the rights of others. 
 
 It includes bribery, but is more compre- 
 hensive, because an act may be corruptly 
 done', though the advantage to be derived 
 from it be not offered by another. Merlin, 
 Repert. 
 
 Something against law; as a contract by 
 which the borrower agreed to pay the lender 
 usurious interest. It is said, in such case, 
 that it was corruptly agreed, etc. 
 
 CORRUPTION OF BLOOD. The incapac- 
 ity to inherit, or pass an inheritance, in con- 
 sequence of an attainder to which the party 
 has been subject. 
 
 CORSE-PRESENT. In old English law. 
 A gift of the second-best beast belonging to 
 a man at his death, taken along with the 
 corpse, and presented to the priest. St. 21 
 Hen. VIII. c. 6; Cowell; 2 Bl. Comm. 425. 
 
 CORSNED. In old English law. A piece 
 of barley bread, which, after the pronuncia- 
 tion of certain imprecations, a person ac- 
 cused of crime was compelled to swallow. 
 
 A piece of cheese or bread of about an 
 ounce weight was consecrated, with an exor- 
 cism desiring of the Almighty that it might 
 cause convulsions and paleness, and find no 
 passage, if the man was really guilty, but 
 might turn to health and nourishment if he 
 was innocent. Spelman. It was then given 
 
CORTES 
 
 (211) 
 
 COTTAGE 
 
 to the suspected person, who at the same 
 time received the sacrament. If he swal- 
 lowed it easily, he was esteemed innocent. 
 If it choked him, he was esteemed guilty. 
 See 4 Sharswood, Bl. Comm. 345. 
 
 CORTES. The name of the legislative as- 
 semblies of Spain and Portugal. 
 
 CORTEX. The hark of a tree; the outer 
 covering of anything. 
 
 The letter of an instrument, as distin- 
 guished from its spirit. 
 
 CORTIS. In old records. A court or hall. 
 Spelman. 
 
 CORTULARIUM, or CORTARIUM. In old 
 records. A yard or court adjoining a coun- 
 try farm. Spelman. 
 
 CORVEE. In French law. Gratuitous la- 
 bor exacted, from the villages or communi- 
 ties, especially for repairing roads, con- 
 structing bridges, etc. 
 
 Corvee seigneuriale are services due the 
 lord of the manor. Guyot, Rep. Univ.; 3 
 Low. (U. S.) 1. 
 
 COSA J UZGADA. In Spanish law. A cause 
 or matter adjudged (res adjudicata) . White, 
 New Recop. bk. 3, tit. 8, note. 
 
 COSBERING. In feudal law. A preroga- 
 tive or seignorial right of a lord, as to lie 
 and feast himself and his followers at his 
 tenants' houses. Cowell. 
 
 COSDUNA. In feudal law. A custom or 
 tribute. 
 
 COSEN, or COZEN. In old English law. 
 To cheat. "A cosening knave." 3 Leon. 171. 
 
 COSENING. In old English law. An of- 
 fense whereby anything is done deceitfully, 
 whether in or out of contracts, which cannot 
 be fitly termed by any especial name. Called 
 in the civil law stellionatus. West, Symb. 
 pt. 2, "Indictment," § 68; Blount; 4 Bl. 
 Comm. 158. 
 
 COSHERING. In old English law. A feu- 
 dal iJrerogative or custom for lords to lie 
 and feast themselves at their tenants' houses. 
 Cowell. 
 
 COSINAGE, COUSINAGE, or COSENAGE. 
 
 A writ which lay where the father of the 
 great-grandfather of the demandant had 
 been disseised, and the heir brought his 
 writ to recover possession. Pitzh. Nat. Brev. 
 221. 
 
 Relationship; affinity. St. 4 Hen. III. c. 
 8; 3 Bl. Comm. 186; Co. Litt. 160a. 
 
 COST. The price actually paid for goods. 
 18 N. Y. 337. 
 
 COSTIPULATOR. A joint promisor. 
 
 COSTS. A pecuniary allowance made by 
 positive law to the successful party to a 
 suit, or to some distinct proceeding in a suit 
 In consideration of, and to reimburse, his 
 probable expense. Abbott. See 4 N. M. 356. 
 
 At common law, there were no costs by 
 name, but when the plaintiff failed, he was 
 amerced for presenting a false claim, and, 
 when judgment was rendered against de- 
 fendant, he was fined for resisting the just 
 claim of plaintiff. 
 
 Costs as allowed by statute in mo(J,ern 
 practice are the amount allowed the pre- 
 vailing party in lieu of the common-law 
 fines. The term is to be distinguished from 
 "disbursements," which includes the amounts 
 paid out by the prevailing party for certain 
 purposes incident to the suit, and allowed 
 to him as part of his recovery. 23 Ore. 451. 
 See "Double Costs." 
 
 COSTS DE INCREMENTO. Increased 
 costs; costs of increase; costs adjudged by 
 the court in addition to those assessed by 
 the jury. 13 How. (U. S.) 372. 
 
 The cost of the suit, etc., recovered orig- 
 inally under the statute of Gloucester, is 
 said to be the origin of costs de incremento. 
 Buller, N. P. 328a. Where the statute re- 
 quires costs to be doubled in case of an un- 
 successful appeal, costs de incremento stand 
 on the same footing as jury costs. 2 Strange, 
 1048. Costs were enrolled in England in the 
 time of Blackstone as "increase" of dam- 
 ages. 3 Bl. Comm. 299. 
 
 COSTS OF THE DAY (or TERM). Costs 
 incurred in preparing for trial on a particu- 
 lar day or term. Adams, Eq. 343. 
 
 COSTUMBRE. In Spanish law. Custom; 
 an unwritten law established by usage, dur- 
 ing a long space of time. Las Partidas, pt. 
 1, tit. 2, lib. 4. 
 
 COSURETIES. Joint sureties; two or 
 more sureties to the same obligation. 
 
 COTARIUS. In old English law. A cot- 
 tager. Spelman. 
 
 COTERELLI. Anciently, a kind of peas- 
 antry who were outlaws; robbers. Blount. 
 
 COTERELLUS. A cottager. 
 
 Coterellus was distinguished from cotarius 
 in this, that the cotarius held by socage ten- 
 ure, but the coterellus held in mere vil- 
 lenage, and his person, issue, and goods were 
 held at the will of the lord. Cowell. 
 
 COTESWOLD. A place where there is no 
 wood. 
 
 COTLAND. Land held by a cottager, 
 whether in socage or villenage. Cowell; 
 Blount. 
 
 COTSETHLAND. In old English law. The 
 seat of a cottage, including any land be- 
 longing to it. 
 
 COTSETUS. In old English law. A cot- 
 tager or cottage holder who, by servile ten- 
 ure, was bound to work for the lord. Cowell. 
 
 COTTAGE, COTA, or COTTAGIUM. In 
 
 old English law. A small house without 
 any land belonging to it, whereof mention 
 
COTUCHANS 
 
 (212) 
 
 COUNT 
 
 Is made in St. 4 Edw. I. But, by St. 31 
 Eliz. c. 7, no man may build such cottage 
 for habitation unless he lay unto it four 
 acres of freehold land, except in market 
 towns, cities, or within a mile of the sea, 
 or for the habitation of laborers in mines, 
 shepherds, foresters, sailors, etc. Termes de 
 la Ley. Twenty years' possession of cot- 
 tage gives good title as against the lord. 
 Duller, N. P. 103a, 104. By a grant of a 
 cottage the curtilage will pass. 4 Viner, 
 Abr. 582. 
 
 COTUCHANS. Boors; husbandmen. 
 Domesday Book. 
 
 COUCHANT. Lying down. Animals are 
 said to have been levant and couchant when 
 they have been upon another person's land, 
 damage feasant, one night at least. 3 Bl. 
 Comm. 9. 
 
 COUCHER, or COURCHER. A factor who 
 continues abroad for traffic (37 Bdw. III. c. 
 16) ; also the general book wherein any 
 corporation, etc., register their acts (3 & 4 
 Edw. VL c. 10). 
 
 COUNCIL (Lat. conrilium, an assembly). 
 The legislative body in the government of 
 cities or boroughs; an advisory body selected 
 to aid the executive. See 14 Mass. 470; 3 
 Pick. (Mass.) 517; 4 Pick. (Mass.) 25. 
 
 A governor's council is still retained in 
 some of the states of the United States. It 
 is analogous in many respects to the privy 
 council of the king of Great Britain, and of 
 the governors of .the British colonies, though 
 ' of a much more limited range of duties. See 
 "Privy Council." 
 
 COUNCIL OF CONCILIATION. ByAct30 
 & 31 Vict. c. 105, power is given for the 
 crown to grant licenses for the formation of 
 councils of conciliation and arbitration, con- 
 sisting of a certain number of masters and 
 workmen in any trade or employment, hav- 
 ing power to hear and determine all ques- 
 tions between masters and workmen which 
 may be submitted to them by both parties, 
 arising out of or with respect to the par- 
 ticular trade or manufacture, and incapable 
 of being otherwise settled. They have power 
 to apply to a justice to enforce the perform- 
 ance of their award. The members are 
 elected by persons engaged in the trade. 
 Davis, Bldg. Soc. 232; Sweet. 
 
 COUNCIL OF JUDGES. Under the Eng- 
 lish judicature act of 1873 (section 75), an 
 annual council of the judges of the supreme 
 court is to be held, for the purpose of con- 
 sidering the operation of the new practice, 
 offices, etc., introduced by the act, and of 
 reporting to a secretary of state as to any 
 alterations which they consider should be 
 made in the law for the administration of 
 justice. An extraordinary council may also 
 be convened at any time by the lord chan- 
 cellor. Sweet. 
 
 COUNCIL OF THE NORTH. A court in- 
 stituted by Henry VIII. in 1537, to adminis- 
 
 ter justice in Yorkshire and the four other 
 northern counties. Under the presidency of 
 Stratford, the court showed great rigor, bor- 
 dering, it is alleged, on harshness. It was 
 abolished by 16 Car. I., the same act which 
 abolished the star chamber. Brown. 
 
 COUNSEL. The counsellors who are as- 
 sociated in the management of a particular 
 cause, or who act as legal advisers in refer- 
 ence to any matter requiring legal knowl- 
 edge and judgment. 
 
 The term is used both as a singular and 
 plural noun, to denote one or more, though 
 it is perhaps more common, when speaking 
 of one of several counsellors concerned in 
 the management of a case in court, to say 
 that he is "of counsel." 
 
 Knowledge. A grand jury is sworn to 
 keep secret "the commonwealth's counsel, 
 their fellows', and their own." 
 
 COUNSELLOR AT LAW. See "Counsel;" 
 "Attorney at Law." 
 
 COUNSEL'S SIGNATURE. In equity 
 pleading. The signature of counsel required 
 to be appended to a bill to denote to the 
 court that he had perused the draft of it, 
 or been informed of the contents thereof in 
 such manner as would satisfy him that he 
 might certify that it stated a case entitling 
 the complainant to the relief prayed, and 
 that it set the same forth with such regard 
 to the essential rules of pleading, and with 
 such a prayer as would entitle the bill to the 
 consideration of the chancellor. 19 N. J. Bq. 
 180. Though the drawing of a bill is prop- 
 erly the duty of the solicitor, yet in prac- 
 tice it is usually both drawn and signed by 
 counsel. Daniell, Ch. Pr. 311. 
 
 COUNT (Pr. cnmte, from the Latin comef:). 
 An earl. It gave way as a distinct title to 
 the Saxon earl, but was retained in countess, 
 viscount, and as the basis of county. 
 Termes de la Ley; 1 Bl. Comm. 398. See 
 "Comes." 
 
 In Pleading. The plaintiff's statement 
 
 of his cause of action. This word, derived 
 from the French conte, a narrative, is in our 
 old law books used synonymously with "dec- 
 laration;" but practice has introduced the 
 following distinction: When the plaintiff's 
 complaint embraces only a single cause of 
 action, and he makes only one statement of 
 it, that statement is called, indifferently, a 
 "declaration" or "count," though the former 
 is the more usual term; but when the suit 
 embraces two or more causes of action, each 
 of which, of course, requires a different state- 
 ment, or when the plaintiff makes two or 
 more different statements of one and the 
 same cause of action, each several statement 
 is called a "count," and all of them, collec- 
 tively, constitute the "declaration." In all 
 cases, however, in which there are two or 
 more counts, whether there is a,ctually but 
 one cause of action or several, each count 
 purports, upon the face of it, to disclose a 
 distinct right of action, unconnected with 
 that stated in any of the other counts. 
 
COUNTEE 
 
 (213) 
 
 COUNTY CORPORATE 
 
 COUNTEE. An earl. Litt. 61, 181, 335. 
 
 COUNTER, or COMPTER. The name of 
 two prisons formerly standing in London, 
 but now demolished. They were the Poul- 
 try Counter and Wood Street Counter. Cow- 
 ell; Whishaw; Coke, 4th Inst. 248. 
 
 COUNTER AFFIDAVIT. An affidavit made 
 In opposition to one already made. This is 
 allowed in the preliminary examination of 
 some cases. 
 
 COUNTER BOND. A bond to indemnify. 
 2 Leon. 90. 
 
 COUNTER FEASANCE. The act of forg- 
 ing. 
 
 COUNTER LETTER. An agreement to re- 
 covery where property has been passed by 
 absolute deed with the intention that it shall 
 serve as security only. A defeasance by a 
 separate instrument. 11 Pet. (U. S.) 351. 
 
 COUNTER ROLL (Law Fr. corafreroMZe, co»- 
 terroUe; Law Lat. contra rotuXus). In old 
 English law and practice. A roll kept by an 
 officer as a check upon another officer's roll. 
 Sheriffs and coroners were anciently re- 
 quired to keep rolls or records of what was 
 done before them. Bracton, fols. 121b, 140b; 
 Britt. c. 1. Le vicont eit counterrolles ove 
 les coroners, auxyMen des appeals come des 
 enquests, etc., the sheriff shall have counter 
 rolls with the coroners, as well of appeals 
 as of inquests, etc. St. Westminster I. c. 
 10. 
 
 COUNTER SECURITY. Security given to 
 one who has become security for another, the 
 condition of which is, that if the one who 
 first became surety shall be damnified, the 
 one who gives the counter security will in- 
 demnify him. 
 
 COUNTERCLAIM. See "Set-Off." 
 
 COUNTERFEIT. In criminal law. To 
 make something false in the semblance of 
 that which is true. It always implies a 
 fraudulent intent. Generally applied to the 
 imitation of coin of the realm. 
 
 COUNTERMAND. A change or recalling 
 of orders previously given. 
 
 Express countermand takes place when 
 contrary orders are given, and a revocation 
 of the prior order is made. 
 
 Implied countermand takes place when a 
 new order is given which is inconsistent 
 with the former order. 
 
 COUNTERPART. Formerly, each party 
 to an indenture executed a separate deed; 
 that part which was executed by the grantor 
 was called the "original," and the rest the 
 "counterparts." It is now usual for all the 
 parties to execute every part, and this makes 
 them all originals. 2 Bl. Comm. 296. 
 
 COUNTERPLEA. In pleading. A plea to 
 some matter incidental to the main object 
 of the suit, and out of the direct line of 
 pleadings. 2 Wm. Saund. 45h. 
 
 Thus, counterplea of oyer is the defend- 
 
 ant's allegations why oyer of an instrument 
 should not be granted. 
 
 Counterplea of aid prayer is the demand- 
 ant's allegation why the vouchee of the ten- 
 ant in a real action, or a stranger who csks 
 to come in to defend his right, should not 
 be admitted. 
 
 Counterplea of voucher is the allegation of 
 the vouchee in avoidance of the warranty 
 after admission to plead. 
 
 Counterpleas are of rare occurrence. 
 Termes de la Ley; Doct. Plac. 300; Corny n. 
 Dig. "Voucher" (B 1, 2) ; Dane, Abr. 
 
 COUNTEZ (Law Fr. count, or reckon). 
 In old practice. A direction formerly given 
 by the clerk of a court to the crier, after a 
 jury was sworn, to number them, and which 
 Blackstone says was given in his time, in 
 good English, "count these." 4 Bl. Comm. 
 340, note (u). 
 
 COUNTOR, COUNTER, or COUNTOUR 
 
 (Law Fr. contour, from counter or confer, 
 to relate, recite, or state orally; Law Lat. 
 narrator). In old English practice. An ad- 
 vocate or professional pleader; one who 
 counted for his client, that is, related his 
 case, recited his count, or orally pleaded his 
 cause. 
 
 COUNTY. One of the civil divisions of a 
 country for judicial and political purposes. 
 1 Bl. Comm. 113. Etymologically, it denotes 
 that portion of the country under the im- 
 mediate government of a count. Id. 116. 
 
 The United States are generally divided 
 into counties. Counties are, in many of the 
 states, divided into townships or towns. In 
 the New England states, however, towns are 
 the basis of all civil divisions, and the ouu- 
 ties are rather to be considered as aggre- 
 gates of towns, so far as their origin is con- 
 cerned. In Pennsylvania, the state was orig- 
 inally divided into three counties by William 
 Penn. See Proud, Hist. vol. 1, p. 234; Id. 
 vol. 2, p. 258. 
 
 In the English law, this word signifies the 
 same as "shire," — county being derived from 
 the French, and shire from the Saxon. Both 
 these words signify a circuit or portion of 
 the realm into which the whole land is di- 
 vided, for the better government thereof, and 
 the more easy administration of justice. 
 There is no part of England that is not with- 
 in some county; and the shire-reeve (sheriff) 
 was the governor of the province, under the 
 comes, earl or count. 
 
 COUNTY COMMISSIONERS. Certain- of- 
 ficers generally intrusted with the superin- 
 tendence of the collection of the county 
 taxes, and the disbursements made for the 
 county. They are invested by the local laws 
 with various powers. 
 
 COUNTY CORPORATE. A city or town, 
 with more or less territory annexed, consti- 
 tuting a county by itself. 1 Bl. Comm. 120. 
 Something similar to this exists in this 
 country in regard to Philadelphia, New York, 
 and Boston. They differ in no material 
 points from other counties. 
 
COUNTY COURT 
 
 (214) 
 
 COURT 
 
 COUNTY COURT. 
 
 In English Law. Tribunals of limited 
 
 jurisdiction, originally established under St. 
 9 & 10 Vict. c. 95. They had, at their insti- 
 tution, jurisdiction of actions for the recov- 
 ery of debts, damages, and demands, lega- 
 cies, and balances of partnership accounts, 
 where tlje sum sued for did not exceed 
 twenty pounds. It has since been much ex- 
 tended, especially in cases where the parties 
 give assent in writing. They are chiefly 
 regulated by St. 9 & 10 Vict. c. 95; 12 & 13 
 Vict. c. 101; 13 & 14 Vict. c. 61; 15 & 16 Vict, 
 c. 54; 19 & 20 Vict. c. 108; 21 & 22 Vict. c. 74. 
 See 3 Sharswood, Bl. Comm. 76. 
 
 Tribunals of limited jurisdiction in the 
 county of Middlesex, established under St. 
 2i Geo. II. c. 33. 
 
 These courts are held once a month at 
 least in every hundred in the county of Mid- 
 dlesex, by the county clerk and a jury of 
 twelve suitors, or freeholders, summoned for 
 that purpose. They examine the parties un- 
 der oath, and make such order in the case as 
 they shall judge agreeable to conscience. 3 
 Steph. Comm. 452; 3 Bl. Comm. 83. 
 
 The county court was a court of great 
 antiquity, and originally of much splendor 
 and importance. It was a court of lim- 
 ited jurisdiction incident to the jurisdic- 
 tion of the sheriff, in which, however, the 
 suitors were really the judges, while the 
 sheriff was a ministerial officer. It had ju- 
 risdiction of personal actions for the recov- 
 ejy of small debts, and of many real actions 
 prior to their abolition. By virtue of a 
 justicies, it might entertain jurisdiction of 
 personal actions to any amount. At this 
 court, all proclamations of laws, outlawries, 
 etc., were made, and the elections of such 
 officers as sheriffs, coroners, and others took 
 place. In the time of Edward I. it was held 
 by the earl and bishop, and was of great dig- 
 nity. It was superseded by the courts of re- 
 quests to a great degree; and these. In turn, 
 gave way to the new county courts, as they 
 are sometimes called distinctively. 
 
 In American Law. Courts in many of 
 
 the states of the United States, and In Can- 
 ada, of widely varying powers. In some states 
 being courts of general original jurisdiction, 
 and in others courts of probate or limited 
 jurisdiction. 
 
 COUNTY PALATINE. A county possess- 
 ing certain peculiar privileges. The owners 
 of such counties have kingly powers within 
 their jurisdictions, as the pardoning crimes, 
 issuing writs, etc. These counties have ei- 
 ther passed into the hands of the crown, or 
 have lost their peculiar privileges to a great 
 degree. 1 Bl. Comm. 117; 4 Bl. Comm. 431. 
 The name Is derived from palatium (palace), 
 and was applied because the earls anciently 
 had palaces, and maintained regal state. 
 Cowell; Spelman; 1 Bl. Comm. 117. 
 
 COUNTY RATE. An imposition levied on 
 the occupiers of lands in England, and ap- 
 plied to many miscellaneous purposes, among 
 which the most imiwrtant are those of de- 
 fraying the expenses connected with prisons, 
 
 reimbursing to private parties the costs they 
 have Incurred in prosecuting public offend- 
 ers, and defraying the expenses of the county 
 police. Wharton. 
 
 COUNTY SESSIONS. In England. The 
 general quarter sessions of the peace for 
 each county, which are held four times a 
 year. Wharton; Warren, Law Stud. 367. 
 
 COUPONS. Those parts of a commercial 
 instrument which are to be cut, and which 
 are evidence of something connected with 
 the contract mentioned in the instrument. 
 They are generally attached to certificates of 
 loan, where the interest is payable at par- 
 ticular periods, and, when the interest is 
 paid, they are cut off and delivered to the 
 payor. 
 
 COUR DE CASSATION. In French law. 
 The supreme judicial tribunal and court of 
 final resort. It is composed of forty-nine 
 counsellors and judges, including a first 
 president and three presidents of chamber, 
 an attorney general and six advocates gen- 
 eral, one head registrar and four deputy reg- 
 istrars appointed by the head registrar, and 
 a certain number of ushers. Jones, Pr. Bar, 
 22; Guyot, Rep. Univ. 
 
 The jurisdiction of the court is only on 
 error shown in the proceedings of the lower 
 courts in matters of law, taking the facts as 
 found by the lower courts. 
 
 COURSE. The direction of a line with ref- 
 erence to a meridian. 
 
 Where there are no monuments, the land 
 must be bounded by the courses and dis- 
 tances mentioned in the patent or deed. 4 
 Wheat. (U. S.) 444; 3 Pet. (U. S.) 96; 3 
 Murph. (N. C.) 82; 2 Har. & J. (Md.) 267; 
 5 Har. & J. (Md.) 254. When the lines are 
 actually marked, they must be adhered to, 
 though they vary from the course men- 
 tioned in the deeds. 2 Overt. (Tenn.) 304; 
 7 Wheat. (U. S.) 7. See 3 Call (Va.) 239; 
 7 T. B. Mon. (Ky.) 333. See "Boundary." 
 
 COURSE OF THE VOYAGE. By this term 
 is understood the regular and customary 
 track, if such there be, which a ship takes 
 In going from one port to another, and the 
 shortest way. Marsh. Ins. 185. 
 
 COURSE OF TRADE. What is usually 
 done in the management of trade or busi- 
 ness. 
 
 Men are presumed to act for their own 
 interest, and to pursue the way usually 
 adopted by men generally; hence it is pre- 
 sumed in law that men in their actions will 
 pursue the usual course of trade. 
 
 COURT (Lat. cohors, an inclosure). A 
 body in the government to which the public 
 administration of justice is delegated. 
 
 A tribunal established for the administra- 
 tion of justice. 18 Mo. 570. 
 
 The presence of a sufficient number of the 
 members of a judicial body regularly con- 
 vened in an authorized place at an ap- 
 pointed time, engaged in the performance of 
 its functions. It is to be observed, however, 
 
COURT BARON 
 
 (215) 
 
 COURT HAND 
 
 that a court does not come into being when 
 it convenes, or pass out of existence when it 
 adjourns. 
 
 The idea of place in the Latin word from 
 which the term is derived is given too great 
 prominence in some definitions, notably in 
 that of Blackstone, that a court is "a place 
 where justice is judicially administered" (3 
 Bl. Comm. 23); a court being a tribunal 
 rather than a place. 
 
 The term is also used to signify the judge 
 or judges themselves when duly convened, 
 in contradistinction from the jury, and also 
 in contradistinction from the judge or judges 
 when not convened as a court. 
 
 It has been said that In every court there 
 must be three constituent parts, — the plain- 
 tiff, the defendant, and the judicial power 
 (actor, reus, and judex) (3 Bl. Comm. 25); 
 but it is manifestly not essential to the idea 
 of a court that it have a cause pending be- 
 fore it. See 1 Abb. Mich. Prac. § 2. 
 
 Classification. Courts are divided into 
 
 courts of record and courts not of record; a 
 court of record being one whose acts and ju- 
 dicial proceedings are enrolled or recorded, 
 and courts not of record being those inferior 
 courts whose proceedings are not formally 
 recorded or enrolled. 
 
 Courts are also divided, as to the extent 
 of their jurisdiction, into courts of general 
 jurisdiction, and courts of limited or special 
 jurisdiction; the former being those courts 
 whose jurisdiction extends to all cases com- 
 prised within a class or classes, especially 
 to cases of a civil nature (109 U. S. 278), 
 and the latter being those courts which are 
 limited either as to the value or the nature 
 of the pleas which they may entertain, or 
 as to the territory over which their jurisdic- 
 tion extends. 
 
 According to the nature of their jurisdic- 
 tion, and the principles upon which it is 
 exercised, courts are said to be of original 
 jurisdiction, intermediate or appellate; civil 
 or criminal; ecclesiastical; of law or of 
 equity; of admiralty; courts martial. 
 
 COURT BARON. A domestic court, in- 
 cident to every manor, to be held by the 
 steward within the manor, for redressing 
 misdemeanors and nuisances therein, and for 
 settling disputes among the tenants relating 
 to property. It is not a court of record. 
 
 Customary court baron is one appertain- 
 ing entirely to copyholders. See "Custom- 
 ary Court Baron." 
 
 Freeholders' court baron is one held before 
 the freeholders who owe suit and service to 
 the manor. It is the court baron proper. 
 These courts have now fallen into great dis- 
 use in England, and provision is made by 
 St. 9 & 10 Vict. c. 95, § 14, enabling the lord 
 of any manor which has a court in which 
 debts or demands are recoverable to surren- 
 der to the crown the right of holding such 
 court, and, upon such surrender, the court is 
 discontinued, and the right of holding it 
 ceases. In the state of New York, such 
 courts were held while the state was a prov- 
 ince. See charters in Bolton's History of 
 New Chester. The court has derived its 
 
 name from the fact that it was the court of 
 the baron or lord of the manor (3 Shars- 
 wood, Bl. Comm. 33, note. See Fleta, lib. 2, 
 c. 53), though it is explained by some as 
 being the court of the freeholders, who were 
 in some instances called barons (Co. Lift. 
 58a). 
 
 COURT FOR CROWN CASES RESERV- 
 
 ed. The court created by St. 11 & 12 Vict. 
 c. 78, for the decision of questions of law 
 arising on the trial of a person convicted 
 of treason, felony, or misdemeanor (e. g., 
 at the central criminal court, the assizes, or 
 quarter sessions), and reserved by the judge 
 or justices at the trial, for the considera- 
 tion of the court. For this purpose, the 
 judge or justices state and sign a case setting 
 forth the question and the facts out of which 
 it arises. Archb. Crim. PI. 191. The juris- 
 diction is now exercised by the judges of the 
 high court of justice, or five of them, at the 
 least. Their decision is final. Judicature 
 Act 1873, §§ 47, 100. 
 
 COURT FOR DIVORCE AND MATRIMO- 
 
 nial causes. In English law. A court which 
 has the jurisdiction formerly exercised by 
 the ecclesiastical courts in respect of di- • 
 vorces o mensa et thoro, suits of nullity of 
 marriage, suits of jactitation of marriage, 
 suits for restitution of conjugal rights, and 
 all suits, causes, and matters matrimonial. 
 It consists of the lord chancellor and the 
 justices of the queen's bench, the common 
 pleas, the exchequer, and the judge of the 
 court of probate, who is entitled "Judge or- 
 dinary." The judge ordinary exercises all 
 the powers of the court, except petitions for 
 dissolving or annulling marriages, and ap- 
 plications for new trials of matters of fact, 
 bills of exception, special verdict and special 
 cases, for hearing which excepted cases he 
 must be joined by two of the other judges. 
 Provision is made for his absence by author- 
 izing the lord chancellor to appoint one of 
 certain judicial persons to act in such ab- 
 sence. Juries may be summoned to try mat- 
 ters of fact, and such trials are conducted 
 in the same manner as jury trials at com- 
 mon law. See St. 20 & 21 Vict. c. 85; St. 
 21 & 22 Vict. c. 108; St. 22 & 23 Vict. c. 61. 
 
 COURT FOR THE RELIEF OF INSOL- 
 
 vent debtors in England. In English law. A 
 local court which has its sittings in London 
 only, which receives the petitions of insol- 
 vent debtors, and decides upon the question 
 of granting a discharge. It is held by the 
 commissioners of bankruptcy, and its deci- 
 sions, if in favor of a discharge, are not 
 reversible by any other tribunal. See 3 
 Steph. Comm. 426; 4 Steph. Comm. 287, 288. 
 
 COURT FOR THE TRIAL OF IMPEACH- 
 ments. A tribunal for determining the guilt 
 or innocence of any person properly im- 
 peached. In England, the house of lords, 
 and in this country, generally, the more se- 
 lect branch of the legislative assembly, con- 
 stitutes a court for the trial of impeach- 
 ments. See "Impeachment." 
 
 COURT HAND. In old English practice. 
 The peculiar hand in which the records of 
 
COURT HOUSE 
 
 (316) 
 
 COURT OF APPEALS 
 
 coul-ts were written froin the ealiest period 
 down to the reign of George II. Its charac- 
 teristics were great strength, compactness, 
 and undeviating uniformity, and its use un- 
 doubtedly gave to the ancient record its ac- 
 linowledged superiority over the modern, in 
 the important quality of durability. Sir 
 James Burrows, speaking of St. 4 Geo. II. c. 
 26, thus forcibly contrasts this style of writ- 
 ing with that by which it was superseded: 
 "A statute now took place for converting 
 them [common-law pleadings] from a fixed 
 dead language to a fluctuating living one, 
 and for altering the strong, solid, compact 
 hand, calculated to last for ages, wherein 
 they were used to be written, into a species 
 of handwriting so weak, flimsy and dif- 
 fuse that many a modern record will 
 hardly outlive its writer, and few per- 
 haps will survive much above a cen- 
 tury." 1 Burrows, pref. iv. Sir William 
 Blackstone mentions another disadvantage 
 attending the disuse of the old hand, "where- 
 by the reading of any record that is fifty 
 years old is now become the object of sci- 
 ence, and calls for the help of an antiqua- 
 • rian." 3 Bl. Comm. 323. 
 
 The writing of this hand, with its peculiar 
 abbreviations and contractions, constituted, 
 while it was in use, an art of no little im- 
 portance, being an indispensable part of the 
 profession of clerkship, as it was called. Two 
 sizes of It were employed, — a large and a 
 small hand; the former, called "great court 
 hand," being used for initial words or claus- 
 es, the placita of records, etc. Towns. PI. 
 passim; Instr. Cler. passim. See "Record." 
 
 COURT HOUSE. A building used for the 
 holding of sessions of court, whether such 
 use be permanent or temporary. 65 Ga. 165. 
 
 COURT LANDS. Domains or lands kept 
 in the lord's hands to serve his family. 
 
 COURT LEET (Law Lat. curia letae, the 
 court of the leet). A court of record in 
 England, held once or twice In every year 
 within a particular hundred, lord,ship, or 
 manor, before the stewa'rd of the leet, for 
 the preservation of the peace, and the pun- 
 ishment of all trivial misdemeanors. Kitch. 
 Cts. Its original intent was to view the frank 
 pledges, — that is, the freemen of the liberty 
 who anciently were all mutually pledges for 
 the good behavior of each other, — and hence it 
 was called, by the Anglo-Normans, the "view 
 of frank pledge," visus franci plegii. 4 Bl. 
 Comm. 273; Spelman, voc. "Leta;" 4 Inst. 
 261; Mirr. c. 1, § 10; 2 Hawk. P. C. 72; 1 
 Crabb, Real Prop. 495, § 637 et seq.; Tom- 
 lin. It has, however, latterly fallen into 
 almost total desuetude; its business having, 
 for the most part, gradually devolved upon 
 the quarter sessions. 4 Steph. Comm. 340. 
 See "Leet;" "Frank Pledge;" "View of Frank 
 Pledge." 
 
 COURT-MARTIAL. A military or naval 
 tribunal, which has jurisdiction of offenses 
 against the law of the service, military or 
 naval, in which the offender is engaged. 
 
 The original tribunal, for which courts- 
 martial are a partial substitute, was the 
 court of chivalry (g. v.) These courts ex- 
 ist and have their jurisdiction by virtue of 
 the military law, the court being constituted 
 and empowered to act in each instance by 
 authority from a commanding officer. The 
 general principles applicable to courts-mar- 
 tial in the army and navy are essentially 
 the same, and, for consideration of the ex- 
 act distinctions between them, reference 
 must be had to the works of writers upon 
 these subjects. Courts-martial for the regu- 
 lation of the militia are held in the various 
 states under local statutes, which resemble 
 In their main features those provided for 
 in the army of the United States; and when 
 in actual service, the militia, like the regular 
 troops, are subject to courts-martial, com- 
 posed, however, of militia oificers. 
 
 As to their constitution and jurisdiction, 
 these courts may belong to one of the follow- 
 ing classes: 
 
 (1) General, which have jurisdiction over 
 every species of offense of which courts-mar- 
 tial have jurisdiction. They are to be com- 
 posed in the United States of not less than 
 five nor more than thirteen commissioned 
 officers of suitable rank, according to the 
 exigencies of the service, and in England of 
 not less than thirteen commissioned ofiScers, 
 except in special cases, and usually do con- 
 sist of more than that number. 
 
 (2) Regimental, which have jurisdiction of 
 some minor offenses occurring in a regiment 
 or corps. They consist in the United States 
 of not less than three commissioned offi- 
 cers; in England, of not less than five com- 
 missioned officers, when that number can be 
 assembled without detriment to the service, 
 and of not less than three, in any event. 
 The jurisdiction of this class of courts-mar- 
 tial extends only to offenses less than capital 
 committed by those below the rank of com- 
 missioned officers, and their decision is sub- 
 ject to revision by the commanding officer of 
 the division, regiment, or detachment, by the 
 officer who appointed them, or by certain su- 
 perior officers. 
 
 (3) Garrison, which have jurisdiction of 
 some minor offenses occurring in a garrison, 
 fort, or barracks. They are of the same con- 
 stitution as to number and qualifications of 
 members as regimental courts-martial. Their 
 limits of jurisdiction in degree are the same, 
 and their decisions are in a similar manner 
 subject to revision. 
 
 COURT OF ADMIRALTY. See "Admi- 
 ralty." 
 
 COURT OF ANCIENT DEMESNE. In 
 
 English law. A court of peculiar constitu- 
 tion, held by a bailiff appointed by the king, 
 in which alone the tenants of the king's 
 demesne could be impleaded. 2 Burrows, 
 1046; 1 Spence, Eq. Jur. 100; 2 Sharswood, 
 Bl. Comm. 99; 1 Report Eng. Real Prop. 
 Comm. 28, 29; 3 Steph. Comm. 211, 212. 
 
 COURT OF APPEALS. In American law. 
 An appellate tribunal, which, in some states, 
 as Kentucky, Maryland, and New York, is 
 
COURT OF ARBITRATION, ETC. (217) 
 
 COURT OF CHIVALRY 
 
 the court of last resort, and in others, as Illi- 
 nois, is an intermediate appellate court. 
 
 COURT OF ARBITRATION OF THE 
 
 chamber of commerce. A court of arbitra- 
 ors, created for the convenience of mer- 
 chants in the city of New York, by act of 
 the legislature of New York. Laws 1874, 
 c. 278; Laws 1875, c. 495. It decides dis- 
 putes between members and outside mer- 
 chants who voluntarily submit themselves to 
 the jurisdiction of the court. 
 
 COURT OF ARCHES (Law Lat. curia dc 
 arcuJins). In English ecclesiastical law. A 
 court of appeal, and of original jurisdiction. 
 
 The most ancient consistory court belong- 
 ing to the archbishop of Canterbury for the 
 trial of spiritual causes, the judge of which 
 is called the "dean of the arches," because 
 he anciently held his court in the church of 
 St. Mary le Bow (Sancta Maria de Arcubus, 
 — literally, "St. Mary of Arches"), so named 
 from the style of its steeple, which is raised 
 upon pillars built archwise, like so many 
 bent bows. Termes de la Ley. It is now 
 held, as are also the other spiritual courts, 
 in the hall belonging to the College of Civil- 
 ians, commonly called "Doctors' Commons." 
 
 Its proper jurisdiction is only over the 
 thirteen peculiar parishes belonging to the 
 archbishop in London; but, the office of dean 
 of the arches having been for a long time 
 united with that of the archbishop's prin- 
 cipal official, the judge of the arches, in right 
 of such added office, receives and determines 
 appeals from the sentences of all inferior ec- 
 clesiastical courts within the province. S 
 Bl. Comm. 64; 3 Steph. Comm. 431; Whar- 
 ton, "Arches Court." 
 
 COURT OF ATTACHMENTS. The low- 
 est of the three courts held In the forests. 
 The highest court is called "Justice in Eyre's 
 Seat;" the middle, the "Sweinmote;" and 
 the lowest, the "Attachment." Sharswood, 
 For. Laws, 90, 99; Wharton, "Attachment of 
 the Forests." 
 
 The court of attachments is to be held be- 
 fore the verderors of the forest once in ev- 
 ery forty days, to inquire of all offenders 
 against vert and venison, by receiving from 
 the foresters or keepers their attachments or 
 presentments de viridi et venatione, enroll- 
 ing them, and certifying them under their 
 seals to the court of justice seat, or swein- 
 mote; for this court can only inquire of of- 
 fenders; it cannot convict them. 3 Bl. Comm. 
 439; Carta de Foresta, 9 Hen. III. c. 8; 
 Termea de la Ley. But see "Forest Courts." 
 
 COURT OF AUDIENCE. Ecclesiastical 
 courts, in which the primates once exercised 
 in person a considerable part of their juris- 
 diction. They seem to be now obsolete, or 
 at least to be only used on the rare occur- 
 rence of the trial of a bishop. Phillim. Ecc. 
 Law, 1201, 1204. 
 
 COURT OF AUGMENTATION. A court 
 established by 27 Hen. VIII. c. 27, for man- 
 agii'g the revenues and possessions of all 
 monasteries whose income was under two 
 hvnired pounds a year (which by an act of 
 
 parliament of the same session had been 
 given to the king), and for determining suits 
 relating thereto. It was called the "Court 
 of the Augmentations of the Revenues of the 
 King's Crown," from the augmentation of 
 the revenues of the crown derived from the 
 suppression of the monasteries, and was a 
 court of record, with one great seal and one 
 privy seal; the officers being a chancellor, 
 who had the great seal, a treasurer, a king's 
 attorney and solicitor, ten auditors, seven- 
 teen receivers, with clerk, usher, etc. 
 
 COURT OF BANKRUPTCY. A court of 
 record, in England, with jurisdiction in 
 bankruptcy, primary and appellate, and 
 which is declared a court of law and equity 
 for that purpose. The nature of its constitu- 
 tion may be learned from the early sections 
 of the bankrupt law consolidation act of 
 1849. 
 
 COURT OF CHANCERY, or CHANCERY. 
 
 A court existing in England and several of 
 the United States, which possesses an ex- 
 tensive equity jurisdiction. 
 
 The name is said by some to be derived 
 from that of the chief judge, who is called 
 a "chancellor." Others derive both names 
 directly from the cancelU (bars), which in 
 this court anciently separated the press of 
 people from the officers. 3 Sharswood, Bl. 
 Comm. 46, note. See "Cancellarius." 
 
 In American Law. A court of general 
 
 equity jurisdiction. 
 
 The terms "equity" and "chancery," "court 
 of equity" and "court of chancery," are con- 
 stantly used as synonymous in the United 
 States. It is presumed that this custom 
 arises from the circumstance that the eq- 
 uity jurisdiction which is exercised by the 
 courts of the various states is assimilated 
 to that possessed by the English courts of 
 chancery. Indeed, in some of the states it is 
 made identical therewith by statute, so far 
 as conformable to our institutions. 
 
 Separate courts of chancery or equity ex- 
 ist in a few of the states; in others, the 
 courts of law sit also as courts of equity; in 
 others, equitable relief is administered un- 
 der the forms of the common law; and in 
 others, the distinction between law and eq- 
 uity has been formally abolished, or never 
 existed. The federal courts exercise an equi- 
 ty jurisdiction, whether the state courts in 
 the district are courts of equity or not. 2 
 McLean (U. S.) 568; 15 Pet. (U. S.> 9; 11 
 How. (U. S.) 669; 13 How. (U. S.) 268, 519. 
 
 In English Law. The highest court of 
 
 judicature next to parliament. 
 
 The superior court of chancery, called, dis- 
 tinctively, the "High Court of Chancery," 
 consists of six separate tribunals, viz.: The 
 court of the lord high chancellor of Grpat 
 Britain; the court of the master of the rolls, 
 or keeper of the records in chancerv; the 
 court of appeal in chancerv ( g. v ) ; the 
 three separate courts of the vice chancellors. 
 
 COURT OF CHIVALRY. In English law. 
 An ancient military court, possessing both 
 civil and crimijnal jurisdiction touching mat- 
 ters of arms and deeds of war. 
 
COURT OF CLAIMS 
 
 (218) 
 
 COURT OF COMMON PLEAS 
 
 As a court of civil jurisdiction, it was 
 held by the lord high constable of England 
 while that office was filled, and the earl mar- 
 shal, jointly, and subsequently to the attain- 
 der of Stafford, duke of Buckingham, in the 
 time of Henry VIII., by th'e earl marshal 
 alone. It had cognizance, by St. 13 Rich. II. c. 
 2, "of contracts and other matters touching 
 deeds of arms and war, as well out of the 
 realm as within it." This jurisdiction was 
 of importance while the English kings held 
 territories in Prance. 
 
 As a court of criminal jurisdiction, it could 
 be held only by the lord high constable and 
 earl marshal jointly. It had jurisdiction over 
 "pleas of life and member arising in mat- 
 ters of arms and deeds of war, as well out of 
 the realm as within it." 
 
 It was not a court of record, could neither 
 iine nor imprison (7 Mod. 127), and has 
 fallen entirely into disuse (3 Sharswood, Bl. 
 Comm. 68; 4 Sharswood, Bl. Comm. 268). 
 
 COURT OF CLAIMS. This court, as orig- 
 inally created by the statute of February 24, 
 1855 (10 St. at Large,. 12), consisted of three 
 judges, with jurisdiction to hear and deter- 
 mine all claims founded upon any law of 
 congress, or regulation of an executive de- 
 partment, or upon any contract, express or 
 implied, with the government of the United 
 States, and of all claims which mighit be re- 
 ferred to it by either house of congress. 
 
 The court had no power to render a judg- 
 ment which it could execute, but reported to 
 congress the cases upon which it had finally 
 acted, the material facts it found established 
 by the evidence, with its opinion in the 
 case, and reasons therefor, or what was 
 equivalent to an opinion in the nature of a 
 judgment as to the rights of the parties up- 
 on the facts proved or admitted in the case. 
 Bright. Dig. 198-200. 
 
 By an amendatory act of March 3, 1863, 
 two judges were added. In addition to the 
 jurisdiction previously conferred upon the 
 court, it is now authorized to take jurisdic- 
 tion of all set-offs, counterclaims, claims for 
 damages, liquidated or unliquidated, or oth- 
 er demands whatsoever on the part of the 
 government against any person making 
 claim against the government in said court. 
 If the judgment of the court shall be in fa- 
 vor of the government, it shall be filed in the 
 office of the clerk of the -proper district or 
 circuit court of the United States, and shall 
 ipso facto become and be a judgment of such 
 district or circuit court, and shall he en- 
 forced in like manner as other judgments 
 are. If the judgment shall be in favor of the 
 claimant, the sum thereby found due to the 
 claimant shall he paid out of any general 
 appropriation made by law for the payment 
 of private claims, on presentation to the sec- 
 retary of the treasury of a duly-certified copy 
 of said judgment. 
 
 Proceedings in the court of claims origi- 
 nate by petition filed; and testimony used in 
 the hearing and determination of claims is 
 taken by commissioners who are appointed 
 by the court for the purpose. 
 
 COURT OF COMMISSIONERS OF SEW- 
 
 ers. See "Commissioners of Sewers." 
 
 COURT OF COMMON PLEAS. 
 
 In American Law. A court of original 
 
 and general jurisdiction for the trial of is- 
 sues of fact and law according to the prin- 
 ciples of the common law. 
 
 Courts of this name still exist in some of 
 the states of the United States, and frequent- 
 ly have a criminal as well as civil jurisdic- 
 tion. They are, in general, courts of record, 
 being expressly made so by statute in Penn- 
 sylvania. 3 Serg. & R. (Pa.) 246. In Penn- 
 sylvania they exercise an equity jurisdic- 
 tion, also, as well as that at common law. 
 Courts of substantially similar powers to 
 those indicated in the definition exist in all 
 the states, under various names; and for 
 peculiarities in their constitution reference 
 is made to the articles on the states in re- 
 gard to which the question may arise. 
 
 In English Law. One of the three su- 
 perior courts of common law at Westmin- 
 ster. 
 
 This court, which is sometimes called, al- 
 so, bancus communis, bancus, and common 
 bench, is a branch of the aula regis, and was 
 at its institution ambulatory, following the 
 household of the king. In the eleventh 
 clause of Magna Gharta, A. D. 1214, it is 
 provided that it shall be held at some fixed 
 place, which is Westminster. The estab- 
 lishment of this court at Westminster, and 
 the consequent construction of the Inns of 
 Court, and gathering together of the com- 
 mon-law lawyers, enabled the law itself to 
 withstand the attacks of the canonists and 
 civilians. It derived its name from the fact 
 that the causes of common people were 
 heard there. It had exclusive jurisdiction 
 of real actions as long as those actions were 
 in use, and had also an extensive, and, 
 for a long time, exclusive, jurisdiction 
 of all actions between subjects. This lat- 
 ter jurisdiction, however, was gradually en- 
 croached upon by the king's bench and 
 exchequer, with which it now has a concur- 
 rent jurisdiction in many matters. Former- 
 ly none but Serjeants at law were admitted 
 to practice before this court in hanc (6 
 Bing. [N. C] 235), but by St. 6 & 7 Vict. c. 
 18, § 61, and St. 9 & 10 Vict. c. 54, all bar- 
 risters at law have the right of "practice, 
 pleading, and audience." 
 
 It consists of one chief and four puisne or 
 associate justices. 
 
 It has a civil, common-law jurisdiction, 
 concurrent with the king's bench and ex- 
 chequer, of personal actions and actions of 
 ejectment, and a peculiar or exclusive juris- 
 diction of real actions, actions under the rail- 
 way and canal traffic act (17 & 18 Vict. c. 
 31), the registration of judgments, annuities, 
 etc. (1 & 2 Vict. c. 110; 2 & 3 Vict. c. 11; 3 
 & 4 Vict. c. 82; 18 Vict. c. 15); respecting 
 fees for conveyances under 3 & 4 Wm. IV. c. 
 74; the examination of married women con- 
 cerning their conveyances (11 & 12 Vict. c. 
 70; 17 & 18 Vict. c. 75; 19 & 20 Vict. c. 108, 
 § 73) ; and of appeals from the revising bar- 
 risters' court (6 & 7 Vict. c. 18). Wharton. 
 
COURT OP CONVOCATION 
 
 (219) 
 
 COURT OF FACULTIES 
 
 Appeals formerly lay from this court to 
 the king's bench; but, by the statutes of 11 
 Geo. IV. and 1 Wm. IV. c. 70, appeals for 
 errors in law are now taken to the judges 
 of the king's bench and barons of exchequer 
 in the exchequer chambers, from whose Judg- 
 ment an appeal lies only to the house of 
 lords. 3 Sharswood, Bl. Comm. 40. 
 
 COURT OF CONVOCATION. In English 
 ecclesiastical law. A convocation or ecclesi- 
 astical synod, which is in the nature of an 
 ecclesiastical parliament. 
 
 There is one for each province. They are 
 composed, respectively, of the archbishop, all 
 the bishops, deans, and archdeacons of their 
 province, with one proctor, or representa- 
 tive, from each chapter, and, in the province 
 of Canterbury, two proctors for the beneficed 
 parochial clergy in each diocese, while in the 
 province of York there are two proctors for 
 each archdeaconry. In York the convocation 
 consists of only one house; but in Canter- 
 bury there are two houses, of which the 
 archbishop and bishops form the upper 
 house, and the lower consists of the re- 
 maining members of the convocation. In 
 this house a prolocutor, performing the duty 
 of president, is elected. These assemblies 
 meet at the time appointed in the queen's 
 writ. The convocation has long been sum- 
 moned pro forma only, but is still, in fact, 
 summoned before the meeting of every new 
 parliament, and adjourns immediately after- 
 wards, without proceeding to the dispatch of 
 any business. 
 
 ■The purpose of the convocation is stated to 
 be the enactment of canon law, subject to 
 the license and authority of the sovereign, 
 and consulting on ecclesiastical matters. 
 
 In their judicial capacity, their jurisdic- 
 tion extends to matters of heresy, schisms, 
 and other mere spiritual or ecclesiastical 
 causes; an appeal lying from their judicial 
 proceedings to the queen in council, by St. 
 2 & 3 Wm. IV. c. 92. Cowell; Termes de la 
 Ley; Bac. Abr. "Ecclesiastical Courts" (A 
 1) ; 1 Sharswood, Bl. Comm. 279. 
 
 COURT OF EQUITY. A court which ad- 
 ministers justice according to the principles 
 of equity. 
 
 ' As to the constitution and jurisdiction of 
 such courts, see "Court of Chancery." 
 
 COURT OF EXCHEQUER. 
 
 In English Law. A superior court of 
 
 record, administering justice in questions of 
 law and revenue. 
 
 It is the lowest in rank of the three su- 
 perior common-law courts of record, and had 
 jurisdiction originally only of cases of in- 
 jury to the revenue by withholding or non- 
 payment. The privilege of suing and being 
 sued in this court in personal actions was 
 extended to the king's accountants, and then, 
 by a fiction that the plaintiff was a debtor 
 of the king, to all personal actions. It had 
 formerly an equity jurisdiction, and there 
 was then an equity court; but, by St. 5 Vict, 
 c. 5, this jurisdiction was transferred to the 
 court of chancery. 
 
 It consists of one chief and four puisne 
 judges or barons. 
 
 As a court of revenue, its proceedings are 
 regulated by 22 & 23 Vict. c. 1, § 9. 
 
 As a court of common law, it administers 
 redress between subject and subject in all 
 actions whatever, except real actions. 
 
 The appellate jurisdiction from this court 
 is to the judges of the king's bench and com- 
 mon pleas sitting as the court of exchequer 
 chamber, and from this latter court to the 
 house of lords. 3 Steph. Comm. 400-402; 3 
 Sharswood, Bl. Comm. 44-46. 
 
 In Scotch Law. A court which former- 
 ly had jurisdiction of matters of revenue, 
 and a limited jurisdiction over cases between 
 the crown and its vassals, where no ques- 
 tions of title were involved. 
 
 This court was established by St. G Anne, 
 c. 26, and its processes resembled those in 
 the English court of exchequer. It is now 
 merged in the court of sessions; but the 
 name is still applied to this branch of the 
 latter court, which is held by two of the 
 judges acting in rotation. Paterson, Comp. 
 1055, note. The proceedings are regulated 
 by St. 19 & 20 Vict. c. 56. 
 
 COURT OF EXCHEQUER CHAMBER. In 
 
 English law. A court for the correction 
 and prevention of errors of law in the three 
 superior common-law courts of the kingdom. 
 
 A court of exchequer chamber was first 
 erected by St. 31 Edw. III. c. 12, to determine 
 causes upon writs of error from the common- 
 law side of the exchequer court. It consisted 
 of the lord chancellor, lord treasurer, and 
 the justices of the king's bench and common 
 pleas. A second court of exchequer chamber 
 was instituted by St. 27 Eliz. c. 8, consisting 
 of the justices of the common pleas and the 
 exchequer, which had jurisdiction in error 
 of cases commenced in the king's bench. By 
 the statutes of 11 Geo. IV. and 1 Wm. IV. 
 c. 70, these courts were abolished, and the 
 present court of exchequer chamber substi- 
 tuted in their place. 
 
 As a court of debate, it is composed of the 
 judges of the three superior courts of law, 
 to whom is sometimes added the lord chan- 
 cellor. To this court, questions of unusual 
 difficulty or moment are referred before judg- 
 ment from either of the three courts. 
 
 As a court of appeals, it consists of the 
 judges of two of the three superior courts 
 of law (common bench, king's bench, and 
 exchequer) sitting to decide questions ap- 
 pealed from the others. 3 Sharswood, Bl. 
 Comm. 55. From the decisions of this court 
 a writ of error lies to the house of lords. 
 
 COURT OF FACULTIES. In ecclesiastic- 
 al law. A tribunal, in England, belonging to 
 the archbishop. 
 
 It does not hold pleas in any suits, but 
 creates rights to pews, monuments, and oth- 
 er mortuary matters. It has also various 
 other powers under 25 Hen. VIII. c. 21, in 
 granting licenses, faculties, dispensations, 
 etc., of different descriptions; as, a license to 
 marry, a faculty to erect an organ in a par- 
 ish church, to level a church yard, to remove 
 bodies previously buried; and it may also 
 
COURT OF GENERAL, ETC. 
 
 (220) 
 
 COURT OF KING'S BENCH 
 
 grant dispensations to eat flesh on days pro- 
 hibited, or to ordain a deacon under age, and 
 the like. The archbishop's oflice in this tri- 
 bunal is called magister ad facilitates. Coke, 
 4th Inst. 337; 2 Chit. Gen. Prac. 507. 
 
 COURT OF GENERAL QUARTER SES- 
 sions of the peace. 
 
 In American Law. A court of crim- 
 inal Jurisdiction. 
 
 In English Law. A court of criminal 
 
 jurisdiction, in England, held in each county 
 once in every quarter of a year. It is held 
 before two or more justices of the peace, 
 one of whom must be a justice of the quo- 
 rum. 
 
 The stated times of holding sessions are 
 fixed by St. 11 Geo. IV. and 1 Wm. IV. c. 70, 
 § 35. When held at other times than quar- 
 terly, the sessions are called "general ses- 
 sions of the peace." 
 
 As to the jurisdiction of the various ses- 
 sions, see 5 & 6 Vict. c. 38; 7 & 8 Vict. c. 71; 
 9 & 10 Vict. c. 25; 4 Sharswood, Bl. Comm. 
 271. 
 
 COURT OF HUSTINGS. 
 
 In English Law. The county court in 
 
 the city of London. It is held nominally be- 
 fore the lord mayor, recorder, and alder- 
 men, but the recorder is practically the sole 
 judge. It has an appellate jurisdiction of 
 causes in the sheriff's court of London. A 
 writ of error lies from the decisions of this 
 court to certain commissioners, usually five 
 of the judges of the superior courts of law, 
 from whose judgment a writ of error lies 
 to the house of lords. No merely personal 
 actions can be brought in this court. See 3 
 Bl. Comm. 80, note; 3 Steph. Comm. 449, 
 note; Maddox, Hist. Exch. c. 20; Coke, 2d 
 Inst. 327; Calth. 131. 
 
 In American Law. A local court in 
 
 some parts of the state of Virginia. 6 Grat. 
 (Va.) 696. 
 
 COURT OF INQUIRY. 
 
 In English Law. A court sometimes 
 
 appointed by the crown to ascertain the pro- 
 priety of resorting to ulterior proceedings 
 against a party charged before a court-mar- 
 tial. See 2 Steph. Comm. 600, note (z) ; 1 
 Coleridge, Bl. Comm. 418, note; 2 Brod. & B. 
 130. 
 
 In American Law. A court constituted 
 
 by authority of the articles of war, invested 
 with the power to examine into the nature of 
 any transaction, accusation, or imputation 
 against any officer or soldier. The said court 
 shall consist of one or more officers, not ex- 
 ceeding three, and a judge advocate, or other 
 suitable person, as a recorder, to reduce the 
 proceedings and evidence to writing; all of 
 whom shall be sworn to the performance of 
 their duty. Rev. St. U. S. §§ 1342, 1624. 
 
 COURT OF JUSTICE SEAT. In English 
 law. The principal of the forest courts. 
 
 It was held before the chief justice in 
 eyre, or his deputy, to hear and determine 
 all trespasses within the forest, and all 
 claims of franchises, liberties, privileges, and 
 all pleas and causes whatsoever, therein aris- 
 
 ing. It might also try presentments in the 
 inferior courts of the forests, and give judg- 
 ment upon conviction of the sweinmote. Aft- 
 er presentment made or indictment found, 
 the chief justice might issue his warrant to 
 the officers dt the forest to apprehend the of-, 
 fenders. It might be held every third year, 
 and forty days' notice was to be given of its 
 sitting. 
 
 COURT OF JUSTICIARY. In Scotch law. 
 A court of general criminal and limited civil 
 jurisdiction. 
 
 It consists of the lord justice general, the 
 lord justice clerk, and five other members of 
 the court of sessions. The kingdom is di- 
 vided into three circuits, in each of which 
 two sessions, of not less than three days 
 each, are to be held annually. Any two of 
 the justices, or the lord justice general alone, 
 or, in Glasgow, a simple justice, may hold 
 a term, except in Edinburgh, where three 
 justices constitute a quorum, and four gen- 
 erally sit in important cases. 
 
 Its criminal jurisdiction extends to all 
 crimes committed in any part of the king- 
 dom; and it has the power of reviewing the 
 sentences of all inferior criminal courts, un- 
 less excluded by statute. Alison, Prac. 25. 
 
 Its civil jurisdiction on circuits is appel- 
 late and final in cases involving not more 
 than twelve pounds sterling. See Paterson, 
 Comp. § 940, note, et seq. ; Bell, Diet.; Ali- 
 son, Prac. 25; 20 Geo. II. c. 43; 23 Geo. III. 
 c. 45; 30 Geo. III. c. 17; 1 Wm. IV. c. 69, § 
 19; 11 & 12 Vict. c. 79, § 8. 
 
 COURT OF KING'S BENCH. In English 
 law. The supreme court of common law in 
 the kingdom. 
 
 It is one of tha successors of the aula regis, 
 and received Its name, it is said, because the 
 king formerly sat in it in person, the style 
 of the court being coram rege ipso, before 
 the king himself. During the reign of a 
 queen it is called the "queen's bench," and 
 during Cromwell's protectorate it was called 
 the "upper bench." Its jurisdiction was orig- 
 inally confined to the correction of crimes 
 and misdemeanors which amounted to a 
 breach of the peace, including those tres- 
 passes which were committed with force (« 
 et armis) , and in the commission of which" 
 there was, therefore, a breach of the peace. 
 By aid of a fiction of the law, the number 
 of actions which might be alleged to be so 
 committed was gradually increased until the 
 jurisdiction extended to all actions of the 
 case, of debt upon statutes or ■ where fraud 
 was alleged, and, finally, included all per- 
 sonal actions whatever, and the action of 
 ejectment. See "Assumpsit;" "Arrest;" "At- 
 tachment." It is, from its constitution, am- 
 bulatory, and liable to follow the king's per- 
 son, all process in this court being return- 
 able "uMcungiie fuerimus in Anglia," wher- 
 ever in England we, the sovereign, may be, 
 but has for some centuries been held at 
 Westminster. 
 
 It consists of a lord chief justice and four 
 puisne or associate justices, who are, by vir- 
 tue of their office, conservators of the peace 
 and supreme coroners of the land. 
 
COURT OF MAGISTRATES, ETC. (221) 
 
 COURT OF RECORD 
 
 It has general criminal jurisdiction, and 
 also a considerable civil jurisdiction. 
 
 COURT OF MAGISTRATES AND FREE- 
 holders. In American law. The name of a 
 court existing in South Carolina, before the 
 abolition of slavery, for the trial of slaves 
 and free persons of color for criminal of- 
 fenses. 
 
 COURT OF NISI PRIUS. In American 
 law. A court of original civil jurisdiction 
 in the city and county of Philadelphia, held 
 by one of the judges of the supreme court of 
 the state. See, also, "Courts of Assize and 
 Nisi Prius;" "Nisi Prius." 
 
 COURT OF ORDINARY. In American 
 law. A court which has jurisdiction of the 
 probate of wills, and the regulation of the 
 management of decedents' estates. Such 
 courts exist in Georgia, New Jersey, South 
 Carolina, and Texas. See 2 Kent, Comm. 
 409; "Ordinary." 
 
 COURT OF ORPHANS. In English law. 
 The court of the lord mayor and aldermen 
 of London, which has the care of those or- 
 phans whose parent died in London, and was 
 free of the city. 
 
 By the custom of London, this court is 
 entitled to the possession of the person, 
 .lands, and chattels of every infant whose 
 parent was free of the city at the time of 
 his death, and who died in the city. The 
 executor or administrator of such deceased 
 parent is obliged to exhibit inventories of 
 the estate of the deceased, and give security 
 to the chamberlain for the orphan's part or 
 share. 2 Steph. Comm. 343. 
 
 COURT OF OYER AND TERMINER. In 
 American law. The name of courts of crim- 
 inal jurisdiction in several of the states of 
 the American Union, as in Georgia, New Jer- 
 sey, and New York. 
 
 COURT OF PASSAGE. An inferior court, 
 possessing a very ancient jurisdiction over 
 causes of action arising within the borough 
 of Liverpool. It appears to have been also 
 called the "borough court of Liverpool." It 
 has the same jurisdiction in admiralty mat- 
 ters as the Lancashire county court. Rose. 
 Adm. 75. 
 
 COURT OF PECULIARS. In English law. 
 A branch of the court of arches, to which 
 it is annexed. 
 
 It has jurisdiction of all ecclesiastical 
 causes arising in the peculiars of Canterbury 
 or other dioceses which are exempt from the 
 ordinary's jurisdiction, and subject to that 
 of the metropolitan only. The court of 
 arches has an appellate jurisdiction of caus- 
 es tried in this court. 3 Bl. Comm. 65; 3 
 Steph. Comm. 431, 432. See "Peculiar." 
 
 COURT OF PIEPOUDRE (Pr. pied, foot, 
 and poudre, dust, or puldreaux, old Pr. ped- 
 lar). In English law. A court of special 
 jurisdiction incident to every fair or market. 
 
 The word piepoudre, spelled also piedpou- 
 dre and pypowder, has been considered as 
 signifying dusty feet, pointing to the gen- 
 
 eral condition of the feet of the suitors there- 
 in (Cowell; Blount); or as indicating the 
 rapidity with which justice is administered, 
 — as rapidly as dust can fall from the foot 
 (Coke, 4th Inst. 472); or pedlar's feet, as 
 being the court of such chapmen or petty 
 traders as resorted to fairs. It was not con- 
 fined to fairs or markets, but might exLst, 
 by custom, in cities, boroughs, or vills for 
 the collection of debts and the like. Cro. 
 Jac. 313; Cro. Car. 46; 2 Salk. 604. It was 
 held before the steward of him who was en- 
 titled to the tolls from the market. It has 
 fallen into disuse. 
 
 The civil jurisdiction extended to all mat- 
 ters of contract arising within the precinct 
 of the fair or market during the continuaneo 
 of the particular fair or market at which 
 the court was held, the plaintiff being 
 obliged to make oath as to the time and 
 place. 
 
 The criminal jurisdiction embraced all of- 
 fenses committed at the particular fair or 
 market at which the court was held. An 
 appeal lay to the courts at Westminster. 
 See Barr. Obs. St. 337; 3 Bl. Comm. 32; 
 Skene de Verb. Sign. "Pede Pulverosus; " 
 Bracton, 334. 
 
 COURT OF PLEAS. A court of the coun- 
 ty palatine of Durham, having a local com- 
 mon-law jurisdiction. It was abolished by 
 the judicature act, which transferred its ju- 
 risdiction to the high court. Judicature Act 
 1873, § 16; 3 Bl. Comm. 79. 
 
 COURT OF POLICIES OF INSURANCE. 
 
 A court of special jurisdiction which took 
 cognizance of cases involving claims made by 
 those insured upon policies in the city of 
 London. 
 
 COURT OF PROBATE. 
 
 In American Law. A court which has 
 
 jurisdiction of the probate of wills, and the 
 regulation of the management and settle- 
 ment of decedents' estates, as well as a more 
 or less extensive control of the estates of 
 minors and other persons who are under the 
 especial protection of the law. 
 
 In English Law. A court in England 
 
 having exclusive jurisdiction of testamenta- 
 ry causes or proceedings relating to the 
 validity of wills and the succession to the 
 property of persons deceased intestate. See 
 St. 20 & 21 Vict. c. 77; St. 21 & 22 Vict. c. 95. 
 
 COURT OF QUARTER SESSIONS OF 
 
 the peace. In American law. A court of 
 criminal jurisdiction in the state of Penn- 
 sylvania. There is one such court in each 
 county of the state. Its sessions are, in 
 general, held at the same time and by the 
 same judges as the court of oyer and ter- 
 miner and general jail delivery. See Purd. 
 Dig. Pa. Laws (Stroud. & B. Ed.) 692. 
 
 COURT OF QUEEN'S BENCH. See"Court 
 of King's Bench." 
 
 COURT OF RECORD. A judicial, organ- 
 ized tribunal having attributes and exer- 
 cising functions independently of the person 
 of the magistrate designated generally to 
 
COURT OF REGARD 
 
 (222) 
 
 COURT OF SWEINMOTE 
 
 hold it, and proceeding according to the 
 course of the common law. 
 
 A court where the acts and proceedings 
 are enrolled in parchment for a perpetual 
 memorial and testimony. 3 Bl. Comm. 24. 
 
 A court which has jurisdiction to fine 
 and imprison, or one having jurisdiction of 
 civil causes above forty shillings, and pro- 
 ceeding according to the course of the com- 
 mon law. 37 Me. 29. 
 
 All courts are either "of record," or "not 
 of record." The possession of the right to 
 fine and imprison for contempt was former- 
 ly considered as furnishing decisive evidence 
 that a court was a court of record (Co. Litt. 
 117h, 260a; 1 Salk. 144; 12 Mod. 388; 2 Wm. 
 Saund. 101a; Viner, Abr. "Courts"), and it 
 is said that the erection of a new tribunal 
 with this power renders it by that very fact 
 a court of record (1 Salk. 200; 12 Mod. 388; 
 1 Wooddeson, Lect. 98; 3 Bl. Comm. 24, 25) ; 
 but every court of record does not possess 
 this power (1 Sid. 145; 3 S|iarswood, Bl. 
 Comm. 25, note). The mere fact that a per- 
 manent record is kept does not, in modern 
 law, stamp the character of the court, since 
 many courts, as probate courts, and others 
 of limited or special jurisdiction, are obliged 
 to keep records, and yet are held to be courts 
 not of record. See 11 Mass. 510; 22 Pick. 
 (Mass.) 430; 1 Cow. (N. Y.) 212; 3 Wend. 
 (N. Y.) 268; 10 Pa. St. 158; 5 Ohio, 545; 7 
 Ala. 351; 25 Ala. 540. The definition first 
 given above is taken from the opinion of 
 Shaw, C. J., in 8 Mete. (Mass.) 171, with 
 an additional element not required in that 
 case for purposes of distinction, and is be- 
 lieved to contain all the distinctive qualities 
 which can be said to belong to all courts 
 technically of record at modern law. 
 
 COURT OF REGARD. In English law. 
 One of the forest courts, in England, held 
 every third year, for the lawing or expedi- 
 tation of dogs, to prevent them from running 
 after deer. 3 Steph. Comm. 440 ; 3 Bl. Comm. 
 71, 72. 
 
 COURT OF SESSION. 
 
 In Scotch Law. The supreme court of 
 
 civil jurisdiction in Scotland. 
 
 The full title of the court is "council and 
 session." It was established in 1425. In 
 1469 its jurisdiction was transferred to the 
 king's council, which in 1503 was ordered 
 to sit in Edinburgh. In 1532 the jurisdic- 
 tion -of both courts and the joint title were 
 transferred to the present court. The regu- 
 lar number of judges wiis fifteen; but an 
 additional number of justices might be ap- 
 pointed by the crown to an unlimited ex- 
 tent. This privilege was renounced by 10 
 Geo. I. c. 19. 
 
 It consists of fifteen judges, and is divided 
 into an inner and an outer house. 
 
 The inner house is composed of two 
 branches or chambers, of co-ordinate juris- 
 diction, each consisting of four judges, and 
 called, respectively, the "first division" and 
 the "second division." The first division is 
 presided over by the lord president or lord 
 justice general, the second by the lord jus- 
 tice clerk. The outer house is composed of 
 
 five separate courts, each presided over by 
 a single judge, called a "lord ordinary." 
 
 All causes commence before a lord ordi- 
 nary, in general, and the party may select 
 the one before whom he will bring his ac- 
 tion, subject to a removal by the lord presi- 
 dent in case of too great an accumulation 
 before any one or more lords ordinary. See 
 Bell, Diet; Paterson, Comp. § 1055, note, et 
 seq. 
 
 In American Law. A court of crim- 
 inal jurisdiction existing in some of the 
 states of the United States. Courts of this 
 name exist in California, New York, and, 
 perhaps, other states. 
 
 COURT OF STAR CHAMBER, In Eng- 
 lish law. A court which was formerly held 
 by divers lords, spiritual and temporal, who 
 were members of the privy council, together 
 with two judges of the courts of common 
 law. 
 
 It was of very ancient origin, was new 
 modelled by 3 Hen. VII. c. 1, and 21 
 Hen. VIII. c. 20, and was finally abolished, 
 after having become very odious to the peo- 
 ple, by 16 Car. I. c. 10. The name "star 
 chamber" is of uncertain origin. It has been 
 thought to be from the Saxon "steoran," to 
 govern, alluding to the jurisdiction of the 
 court over the crime of cosenage,andhas been 
 thought to have been given because the hall, 
 in which the court was held was full of 
 windows (Lambard, Biren. 148) ; or because 
 the roof was originally studded with gilded 
 stars (Coke, 4th Inst. 66) ; or, according to 
 Blackstone, because the Jewish covenants 
 (called Starrs or stars, and -which, by a stat- 
 ute of Richard I., were to be enrolled in 
 three places, one of which was near the ex- 
 chequer) were originally kept there. 4 Bl. 
 Comm. 266, note. The derivation of Black- 
 stone receives confirmation from the fact 
 that this location (near the exchequer) is 
 assigned to the star chamber the first time 
 it is mentioned. The word "star" acquired 
 at some time the recognized signification of 
 inventory or schedule. St. Acad. Cont. 32; 
 4 Sharswood, Bl. Comm. 266, note. 
 
 The legal jurisdiction of this court ex- 
 tended originally to riots, perjuries, misbe- 
 havior of sheriffs, and other notorious mis- 
 demeanors. It acted without the assistance 
 of a jury, and Its proceedings were in se- 
 cret, by reason of which it fell into popu- 
 lar disrepute. See Hudson, Court of Star 
 Chamber (printed at the beginning of the 
 second tolume of the Collectanea Juridioa) ; 
 4 Sharswood, Bl. Comm. 266, and notes. 
 
 COURT OF SWEINMOTE, SWAINMOTE, 
 or swaingemote (Saxon swangi an attendant, 
 a freeholder, and mote or gemote, a meet- 
 ing). In English law. One of the forest 
 courts, held before the verderors, as judges, 
 by the steward, thrice in every year, — ^the 
 sweins or freeholders within the forest com- 
 posing the jury. 
 
 This court had jurisdiction to inquire in- 
 to grievances and oppressions committed by 
 the officers of the forest, and also to receive 
 and try presentments certified from the 
 court of attachments, certifying the cause,- in 
 
COURT OF THE CLERK, ETC. 
 
 (223) 
 
 COURTS OF ASSIZE, ETC. 
 
 turn, under the seals of the jury, in case 
 of conviction, to the court of justice seat 
 for the rendition of judgment. Cowell; 3 
 Bl. Comm. 71, 72; 3 Steph. Comm. 439. 
 
 COURT OF THE CLERK OF THE MAR- 
 ket. In English law. A tribunal incident to 
 every fair and ' market in the kingdom, to 
 punish misdemeanors therein. 
 
 This is the most inferior court of crim- 
 inal jurisdiction in the kingdom. The ob- 
 ject of its jurisdiction is principally the re- 
 cognizance of weights and measures, to try 
 whether they are according to the true 
 standard thereof, which standard was an- 
 ciently committed to the custody of the bish- 
 op, who appointed some clerk under him to 
 inspect the abuse of them more narrowly; 
 and hence this officer, though usually a lay- 
 man, is called the "clerk" of the market. 
 
 The jurisdiction over weights and meas- 
 ures formerly exercised by the clerk of the 
 market has been taken from him by St. 5 
 & 6 Wm. IV. c. 63. 
 
 COURT OF THE CORONER. In English 
 law. A court of record, to inquire, when 
 any one dies in prison, or comes to a violent 
 or sudden death, by what manner he came 
 to his end. 4 Steph. Comm. 341; 4 Shars- 
 wood. Bl. Comm. 274. See "Coroner." 
 
 COURT OF THE DUCHY OF LANCAS- 
 
 ter. In English law. A court of special ju- 
 risdiction, which has jurisdiction of all mat- 
 ters of equity relating to lands holden of 
 the king in right of the duchy of Lancaster. 
 It is held by the chancellor or his deputy, 
 is a court of equity jurisdiction, and not of 
 record. It is to be distinguished from the 
 court of the county palatine of Lancaster. 3 
 Bl. Comm. 78. 
 
 COURT OF THE LORD HIGH STEWARD. 
 
 In English law. A court instituted for the 
 trial of peers indicted for treason, felony, or 
 misprision of either. 
 
 This court can be held only during a re- 
 cess of parliament, since the trial of a peer 
 for either of the above offenses can take 
 place, during a session of that body, only 
 before the high court of parliament. It con- 
 sists of a lord high steward (appointed, in 
 modern times, pro hac vice merely), and as 
 many of the temporal lords as may desire to 
 take the proper oath and act; and all the 
 peers qualified to sit and vote in parliament 
 are to be summoned at least twenty days be- 
 fore the trial. St. 7 Wm. III. c. 3. 
 
 COURT OF THE LORD HIGH STEWARD 
 of the universities. In English law. A court 
 constituted for the trial of scholars or 
 privileged persons connected with the uni- 
 versity at Oxford or Cambridge who are in- 
 dicted for treason, felony, or mayhem. 
 
 COURT OF THE MARSHALSEA. In Eng- 
 lish law. A court which had jurisdiction of 
 causes to which the domestic servants were 
 parties. 
 
 It was held by the steward of the king's 
 household, as judge, and the marshal was 
 
 the ministerial officer, and held pleas of tres- 
 passes committed within twelve miles of the 
 sovereign's residence (called the "verge of 
 the court"), where one of the parties was a 
 servant of the king's household, and of all 
 debts, contracts, and covenants where both 
 parties were servants as above. Where one 
 of the parties only was of the king's house- 
 hold, a jury of the country was summoned; 
 in the other case, the inquest was composed 
 of men of the household only. This court 
 was merged, in the time of Charles I., in 
 the palace court, and abolished by 12 & 13 
 Vict. c. 101, § 13. See "Palace Court." 
 
 COURT OF THE STEWARD AND MAR 
 shal. See "Court of the Marshalsea." 
 
 COUR^T OF THE STEWARD OF THE 
 
 king's household. In English law. A court 
 which had jurisdiction of all cases of trea- 
 son, misprision of treason, murder, man- 
 slaughter, bloodshed, and other malicious 
 strikings whereby blood is shed, occurring 
 in or within the limits of any of the palaces 
 or houses of the king, or any other house 
 where the royal person is abiding. 
 
 It was created by St. 33 Hen. VIII. c. 12, 
 but long since fell into disuse. 4 Sharswood, 
 Bl. Comm. 276, 277, and notes. 
 
 COURT OF WARDS AND LIVERIES. In 
 
 English law. A court of record in England, 
 which had the supervision and regulation of 
 inquiries concerning the profits which arose 
 to the crown from the fruits of tenure, and 
 to grant to heirs the delivery of their lands 
 from the possession of their guardians. 
 
 The court of the king's wards was insti- 
 tuted by St. 32 Hen. VIII. c. 46, to take the 
 place of the ancient inquisitio post mortem, 
 and the jurisdiction of the restoration of 
 lands to heirs on their becoming of age (liv- 
 ery) was added by St. 33 Hen. VIII. c. 22, 
 when it became the court of wards and liv- 
 eries. It was abolished by St. 12 Car. II. c. 
 24. 
 
 The jurisdiction extended to the superin- 
 tendence of lunatics and idiots in the king's 
 custody, granting licenses to the king's wid- 
 ows to marry, and imposing fines for marry- 
 ing without license. 4 Reeve, Hist. Eng. 
 Law, 259; Crabb, Hist. Eng. Law, 468; 1 
 Steph. Comm. 183, 192; 4 Steph. Comm. 40; 
 2 Sharswood, Bl. Comm. 68, 77; 3 Shars- 
 wood, Bl. Comm. 258. ' 
 
 COURTESY. See "Curtesy." 
 
 COURTS CHRISTIAN. Ecclesiastical 
 courts (g. v.) 
 
 COURTS OF ASSIZE AND NISI PRIUS. 
 In English law. Courts composed of two or 
 more commissioners, called "judges of as- 
 size" (or of assize and nisi prius), who are 
 twice in every year sent by the queen's (or 
 king's) commission on circuits all round the 
 kingdom, to try, by a jury of the respective 
 counties, the truth of such matters of fact 
 as are then under dispute in the courts of 
 Westminster Hall; there being, however, as 
 to London and Middlesex, this exception: 
 That, instead of their being comprised with- 
 
COURTS OF CONSCIENCE 
 
 (224) COURTS OF THE CINQUE PORTS 
 
 in any circuit, courts of nisi prius are lield 
 there for the same purpose, in and after 
 every term, before the chief or other judge 
 of the superior court, at what are called the 
 London and Westminster sittings. 
 
 These judges of assize came into use in 
 the room of the ancient justices in eyre 
 {justiciarii in itinere), who were regularly 
 established, if not first appointed, by the 
 parliament of Northampton, A. D. 1176 (22 
 Hen. II.), with a delegated power from the 
 king's great court, or aula regis, being look- 
 ed upon as members thereof; though the 
 present justices of assize and nisi prius are 
 more immediately derived from St. West- 
 minster II. (13 Edw. I. c. 30), and consist 
 prlpcipally of the judges of the superior 
 courts of common law, being assigned by 
 that statute out of the king's sworn jus- 
 tices, associating to themselves one or two 
 discreet knights of each county. By St. 27 
 Edw. I. c. 4 (explained by 12 Edw. II. c. 
 3), assizes and inquests are allowed to be 
 taken before any one justice of the court in 
 which the plea is brought, associating with 
 him one knight or other approved man of 
 the county. By St. 14 Edw. III. c. 16, in- 
 quests of nisi prius may be taken before any 
 justice of either bench (though the plea be 
 not depending in his own court), or before 
 the chief baron of the exchequer, if he be a 
 man of the law, or, otherwise, before tlie 
 justices of assize, so that one of such jus- 
 tices be a judge of the king's bench or 
 common pleas, or the king's sergeant sworn. 
 And, finally, by 2 & 3 Vict. c. 22, all justices 
 of assize may, on their respective circuits, 
 try causes pending in the court of exchequer, 
 without issuing (as it had till then been 
 considered necessary to do) a separate com- 
 mission from the exchequer for that pur- 
 pose. 3 Steph. Comm. 421-423; 3 Bl. Comm. 
 57, 58. 
 
 COURTS OF CONSCIENCE. See "Courts 
 of Requests." 
 
 COURTS OF OYER AND ' TERMINER 
 and general gaol delivery. 
 
 In English Law. Tribunals for the ex- 
 amination and trial of criminals. 
 
 They are held before commissioners se- 
 lected by the queen, among whom are usu- 
 ally two justices of the superior courts at 
 Westminster, twice in every year in all the 
 counties of England except the four north- 
 ern, where they are held once only, and Mid- 
 dlesex and parts of other counties, over 
 which the central criminal court has juris- 
 diction. 
 
 Under the commission of oyer and ter- 
 miner, the justices try indictments previ- 
 ously found at the same assizes for treason, 
 felony, or misdemeanors. Under the com- 
 mission of general gaol delivery, they may 
 try and deliver every prisoner who is in 
 gaol when the judges arrive at the circuit 
 town, whenever or before whomsoever in- 
 dicted, or for whatsoever crime committed. 
 These commissions are joined with those of 
 assize and nisi prius and the commission of 
 
 the peace. See "Courts of Assize and Nisi 
 Prius." 
 
 In American Law. Courts of criminal 
 
 jurisdiction in the state of Pennsylvania. 
 
 They are held at the same time with the 
 court of quarter sessions, as a general rule, 
 and by the same judges. See Purd. Dig. Pa. 
 Laws (Stroud & B. Ed.) pp. 694, 1377. 
 
 COURTS OF PRINCIPALITY OF WALES. 
 
 A species of private courts, of a limited 
 though extensive jurisdiction, which, upon 
 the thorough reduction of that principality, 
 and the settling of its polity in the reign 
 of- Henry VIII., were erected all over the 
 country. These courts, however, have been 
 abolished by 1 Wm. IV. c. 70; the principal- 
 ity being now divided into two circuits, 
 which the judges visit in the same manner 
 as they do the circuits in England, for the 
 purpose of disposing of those causes which 
 are ready for trial. Brown. 
 
 COURTS OF REQUESTS, or COURTS OF 
 conscience. In English law. Courts of spe- 
 cial jurisdiction, constituted by act of par- 
 liament in the city of London and other 
 towns, for the recovery of small debts. 
 
 They were courts not of record, and pro- 
 ceeded in a summary way to examine upon 
 oath the parties and other witnesses, with- 
 out the aid of a jury, and made such order 
 as is consonant to equity and good con- 
 science. 
 
 They had jurisdiction of causes of debt 
 generally to the amount of forty shillings, 
 but In many Instances to the amount of five 
 pounds sterling. 
 
 The courts of requests in London consisted 
 of two aldermen and four common council- 
 men, and was formerly a court of consider- 
 able importance, but was abolished, as well 
 as all other courts of requests, by the small 
 debts act (9 & 10 Vict. c. 95), and the order 
 in council of May 9, 1847, and their juris- 
 diction transferred to the county courts. 
 
 The court of requests before the king in 
 person was virtually abolished by 16 Car. I. 
 c. 10. 3 Steph. Comm. 449, and note (j); 
 Bac. Abr. "Courts in London." See "County 
 Court." 
 
 COURTS OF SURVEY. Courts for the 
 hearing of appeals by owners or masters of 
 ships, from orders for the detention of un- 
 safe ships, made by the English board of 
 trade under the merchant shipping act of 
 1876 (section 6), consisting of a judge sum- 
 moned by the registrar from a list of wreck 
 commissioners (q. v.), stipendiary magis- 
 trates, etc., which is provided for the pur- 
 pose, and of two assessors; one appointed 
 by the board of trade, and the other sum- 
 monsed by the registrar out of a list of per- 
 sons provided for the purpose (Id. § 7). 
 Rules of Court of Survey 1876. 
 
 COURTS OF THE CINQUE PORTS. In 
 
 English law. Courts of limited local juris- 
 diction, formerly held before the mayor and 
 jurats (aldermen) of the Cinque Ports. 
 
 A writ of error lay to the lord warden in 
 his court of Shepway, and from this court to 
 
COURTS, ETC. 
 
 (225) 
 
 COVENANT 
 
 the queen's bench. By 18 and 19 Vict. c. 48, 
 and 20 & 21 Vict. c. 1, the jurisdiction and 
 authority of the lord warden of the Cinque 
 Ports and constable of Dover Castle, in or in 
 relation to the administration of justice in 
 actions, suits, or other civil proceedings, at 
 law or in equity, are abolished. 3 Sharswoorl, 
 Bl. Comm. 79; 3 Steph. Comm. 447, 44S. 
 See "Cinque Ports." 
 
 COURTS OFTHE COUNTIES PALATINE. 
 
 In English law. A species of private court 
 which formerly appertained to the counties 
 palatine of Lancaster and Durham. 
 
 They were local courts, which had exclu- 
 sive jurisdiction in law and equity of all 
 cases arising within the limits of the re- 
 spective counties. The judges who held these 
 courts sat by special commission from the 
 owners of the several franchises, and under 
 their seal, and all process was taken in the 
 name of the owner of the franchise, though 
 subsequently to 27 Hen. VIII. c. 24, it ran 
 in the king's name. See "County Palatine." 
 
 COURTS OF THE TWO UNIVERSITIES. 
 
 In English law. See "Chancellors' Courts in 
 the Two Universities." 
 
 COURTS OFWESTMINSTER HALL. The 
 superior courts, both of law and equity, were 
 for centuries fixed at Westminster, an an- 
 cient palace of the monarchs of England. 
 Formerly, all the superior courts were held 
 before the king's capital justiciary of Eng- 
 land, in the aula regis, or such of his palaces 
 wherein his royal person resided, and re- 
 moved with his household from one end of 
 the kingdom to another. This was found to 
 occasion great inconvenience to the suit- 
 ors, to remedy which it was made an arti- 
 cle of the great charter of liberties, both of 
 King John and King Henry III., that "com- 
 mon pleas should no longer follow the king's 
 court, but be held in some certain place," in 
 consequence of which they have ever since 
 been held (a few necessary removals in 
 times of the plague excepted) in the palace 
 of Westminster only. The courts of equity 
 also sit at Westminster, nominally, during 
 term time, although, actually, only during 
 the first day of term, for they generally 
 sit in courts provided for the purpose in, 
 or in the neighborhood of, Lincoln's Inn. 
 Brown. 
 
 COUSIN. The son or daughter of the 
 brother or sister of one's father or mother. 
 
 The Issue, respectively, of two brothers or 
 two sisters, or of a brother and a sister. 
 
 Those who descend from the brother or 
 sister of the father of the person spoken of 
 are called "paternal cousins." "Maternal 
 cousins" are those who are descended from 
 the brothers or sisters of the mother. See 
 2 Brown, Ch. 125; 1 Sim. & S. 301; 3 Russ. 
 140; 9 Sim. 386, 457. 
 
 COUSINAGE. See "Coslnage." 
 
 COUSTUM (Fr.) Custom; duty; toll. 1 
 Sharswood, Bl. Comm. 314. 
 
 COUSTUM I ER (Fr.) A collection of cus- 
 toms and usages in the old Norman law. 
 
 COUTHUTLAUGH. He that willingly re- 
 ceives an outlaw, and cherishes or conceals 
 him. In ancient times he was subject to the 
 same punishment as the outlaw. Blount. 
 
 COVENANT (Lat. ciiiiieiiire, to come to- 
 gether; conventio, a coming together). It 
 is equivalent to the factum conventum of the 
 civil law. 
 
 In Contracts. An agreement between 
 
 two or more persons, entered into by deed, 
 whereby one of the parties promises the per- 
 formance or nonperformance of certain acts, 
 or that a given state of things does or shall, 
 or does not or shall not, exist. It differs 
 from an express assuiiii)iiit in that it must be 
 by deed. 
 
 Covenants are classified on several lines of 
 division, the principal ones being: 
 
 Affirmative or negative. 
 
 (1) Affirmative covenants are those In 
 which the covenantor declares that some- 
 thing has been already done, or shall be 
 done in the future. Such covenants do not 
 operate to deprive covenantees of rights en- 
 joyed independently of the covenants. Dyer, 
 19b; 1 Leon. 251. 
 
 (2) Negative covenants are those in which 
 the party obligates himself not to do or per- 
 form some act. Courts are unwilling to con- 
 strue a negative covenant a condition preced- 
 ent, inasmuch as it cannot be said to be 
 performed till a breach becomes impossible. 
 2 Wm. Saund. 156; 1 Mod. 64; 2 Keb. 674; 1 
 Sid. 87. 
 
 Inherent or collateral. 
 
 (3) Inherent covenants are those which 
 relate directly to the land itself, or matter 
 granted. Shep. Touch. 161. Distinguished 
 from collateral covenants. 
 
 If real, they run with the land. Piatt, 
 Cov. 66. 
 
 (4) Collateral covenants are those which 
 are entered into in connection with the grant 
 of something, but which do not relate im- 
 mediately to the thing granted; as, to pay a 
 sum of money in gross, that the lessor shall 
 distrain for rent on some other land than 
 that which is demised, to build a house on 
 the land of some third person, or the like. 
 Piatt, Cov. 69; Shep. Touch. 161; 4 Burrows, 
 2439; 3 Term R. 393; 2 J. B. Moore, 164; 5 
 Barn. & Aid. 7; 2 Wils. 27; 1 Ves. Jr. 56. 
 
 Dependent, concurrent, and independent. 
 
 (5) Dependent covenants are those in 
 which the obligation to perform one is made 
 to depend upon the performance of the oth- 
 er. Covenants may be so connected that the 
 right to insist upon the performance of one 
 of them depends upon a prior performance 
 on the part of the party seeking enforce- 
 ment. Piatt, Cov. 71; 2 Selw. N. P. 443; 
 Steph. N. P. 1071; 1 C. B. (N. S.) 646; 6 
 Cow. (N. Y.) 296; 2 Johns. (N. Y.) 209: 2 
 Watts & S. (Pa.) 227; 8 Serg. & R. (Pa.) 
 268; 4 Conn. 3; 24 Conn. 624; 11 Vt. 549; 17 
 Me. 232; 3 Ark. 581; 1 Blackf. (Ind.) 175; 
 6 Ala. 60; 3 Ala. (N. S.) 330. 
 
 (6) Concurrent covenants are those which 
 are to be performed at the same time. When 
 one party is ready and offers to perform his: 
 part, and the other refuses or neglects to 
 
COVENANT 
 
 (226) 
 
 COVENANT 
 
 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. Piatt, Gov. 71; 2 Selw. N. P. 
 443; Doug. 698; 18 Eng. Law & Eq. 81; 4 
 Wash. C. C. (U. S.) 714; 16 Mo. 450. 
 
 (7) Independent covenants are those the 
 necessity of whose performance is deter- 
 mined entirely by the requirements of the 
 covenant itself, without regard to other 
 covenants between the parties relative to the 
 same subject-matter or transactions or series 
 of transactions. 
 
 Covenants are generally construed to be 
 independent (Piatt, Gov. 71; 2 Johns. [N. 
 Y.] 145; 10 Johns. [N. Y.] 204; 21 Pick. 
 [Mass.] 438; 1 Ld. Raym. 666; 3 Bing. LN. 
 S.] 355) ; unless the undertaking on one side 
 is in terms a condition to the stipulation of 
 the other, and then only consistently with 
 the intention of the parties (3 Maule & S. 
 308; 10 East, 295, 530); or unless depend- 
 ency results from the nature of the acts to 
 be done, and the order in which they must 
 necessarily precede and follow each other in 
 the progress of performance (Willes,496) ; or 
 unless the nonperformance on one side goes 
 to the entire substance of the contract, and 
 to the whole consideration (1 Seld. [N. Y.] 
 247). If once independent, they remain so. 
 19 Barb. (N. Y.) 416. 
 
 Executed or executory. 
 
 (8) Executed covenants are those which 
 relate to acts already performed. Shep. 
 Touch. 161. 
 
 (9) Executory covenants are those whose 
 performance is to be future. Shep. Touch. 
 161. 
 
 Express or implied. 
 
 (10) Express covenants are those which 
 are created by the express words of the par- 
 ties to the deed declaratory of their inten- 
 tion. Piatt, Gov. 25. The formal word 
 "covenant" is not indispensably requisite for 
 the creation of an express covenant. 2 Mod. 
 268; 3 Keb. 848; 1 Leon. 324; 1 Bing. 433; 
 8 J. B. Moore, 546; 12 East, 182, note; 16 
 Bast, 352; 1 Bibb (Ky.) 379; 2 Bibb (Ky.) 
 614; 3 Johns. (N. Y.) 44; 5 Cow. (N. Y.) 
 170; 4 Conn. 508; 1 Har. (Del.) 233. The 
 words "I oblige," "I agree" (1 Ves. Jr. 516; 
 
 2 Mod. 266), "I bind myself" (Hardr. 178; 
 
 3 Leon. 119), have been held to be words of 
 covenant, as are the words of a bond (1 
 Chanc. Gas. 194). Any words showing the 
 intent of the parties to do or not to do a cer- 
 tain thing raise an express covenant (13 N. 
 H. 513) ; but words importing merely an or- 
 der or direction that other persons should 
 pay a sum of money are not a covenant (6 
 J. B. Moore, 202, note [al ) . 
 
 (11) Implied covenants are those which 
 arise by intendment and construction of law 
 from the use of certain words in some kinds 
 of contracts. Bac. Abr. "Covenant" (B) ; 
 Rawle, Cov. 364; 1 C. B. 402. Thus, in a 
 conveyance of lands in fee, the words 
 "grant, bargain, and sell" imply certain cov- 
 enants (see 4 Kent, Comm. 473), and the 
 word "give" Implies a covenant of warranty 
 during the life of the feoffor (10 Cush. 
 
 [Mass.] 134; 4 Gray [Mass.] 468; 2 Gaines 
 [N. Y.] 193; 9 N. ri. 222; 7 Ohio, pt. 2, p. 
 63); and in a lease the use of the words 
 "grant and demise" (Go. Litt. 384; 4 Wend. 
 [N. Y.] 502; 8 Cow. [N. Y.] 36), "grant" 
 (Preem. Ch. 367; Cro. Ellz. 214; 4 Taunt. 
 609; 1 Per. & D. 360), "demise" (4 Coke, 
 80; 10 Mod. 162; Hob. 12; 9 N. H. 222; 15 
 N. Y. 327), "demlsement" (1 Show. 79; 1 
 Salk. 137), raises an implied covenant on 
 the part of the lessor, as do "yielding and 
 paying" (9 Vt. 151) on the part of the les- 
 see. In regard to the covenants arising to 
 each grantee by implication on sale of an 
 estate with conditions, in parcels to several 
 grantees, see 23 Barb. (N. Y.) 153. 
 
 Obligatory or declaratory. 
 
 (12) Obligatory covenants are those which 
 are binding on the party himself. 1 Sid. 27; 
 1 Keb. 337. 
 
 (13). Declaratory covenants are those which 
 serve to limit or direct uses. 1 Sid. 27; 1 
 Hob. 224. 
 
 Principal or auxiliary. 
 
 (14) Principal covenants are those which 
 relate directly to the principal matter of the 
 contract entered into between the parties. 
 They are distinguished from auxiliary. 
 
 (15) Auxiliary covenants are those which 
 do not relate directly to the principal mat- 
 ter of contract between the parties, but to 
 something connected with it. Those the 
 scope of whose operation is in aid or sup- 
 port of the principal covenant. If the prin- 
 cipal covenant is void, the auxiliary is dis- 
 charged. Anstr. 256; Prec. Chanc. 475. 
 
 Transitive or intransitive. 
 
 (16) Transitive covenants are those per- 
 sonal covenants the duty of performing 
 which passes over to the representatives of 
 the covenantor. 
 
 (17) Intransitive covenants are those the 
 duty of performing which is limited to the 
 covenantee himself, and does not pass over 
 to his representative. 
 
 (18) Disjunctive or alternative covenants 
 are those which are for the performance of 
 one or more of several things, at the election 
 of the covenantor or covenantee, as the case 
 may be. Piatt, Gov. 21; 1 Duer (N. Y.) 209. 
 
 (19) Covenants in deeds are express cove- 
 nants. 
 
 (20) Covenants in gross are such as do not 
 run with the land. 
 
 (21) Covenants in law are implied cove- 
 nants. 
 
 (22) Illegal covenants are those which are 
 expressly or impliedly forbidden by law. Cove- 
 nants are absolutely void when entered into 
 in violation of the express provisions of 
 statutes (5 Har. & J. [Md.] 193; 5 N. H. 96; 
 6 N. H. 225; 1 Bin. [Pa.] 118; 6 Bin. [Pa.] 
 321; 4 Serg. & R. [Pa.] 159; 4 Halst. [N. J.] 
 252), or if they are of an immoral nature 
 (3 Burrows, 1568; 1 Bsp. 13; 1 Bos. & P. 
 340; 3 T. B. Mon. [Ky.] 35), against public 
 policy (4 Mass. 370; 5 Mass. 385; 7 Me. 
 113; 5 Halst. [N. J.] 87; 3 Day [Conn.] 
 145; 7 Watts [Pa.] 152; 5 Watts & S. [Pa.] 
 315; 6 Miss. 769; 2 McLean [U. S.] 464; 4 
 Wash. G. G. [U. S.] 297; 11 Wheat. [U. 
 S.] 258), in general restraint of trade (21 
 
COVEN'ANT, ETC. 
 
 (227) 
 
 COVENANT REAL 
 
 Wend. [N. Y.] 166; 7 Cow. [N. Y.] 307; 6 
 Pick. [Mass.] 206; 19 Pick. [Mass.] 51), or 
 fraudulent between the parties (4 Serg. & 
 R. [Pa.] 483; 7 Watts & S. [Pa.] Ill; 5 
 Mass. 16), or third persons (3 Day [Conn.] 
 450; 14 Serg. & R. [Pa.] 214; 3 Calnes [N. 
 Y.] 213; 2 Johns. [N. Y.] 286; 12 Johns. [N. 
 Y.] 306; 15 Pick. [Mass.] 49). 
 
 Covenants are also classified generally in 
 the same manner as simple contracts. See 
 "Contract." 
 
 In Practice. A form of action which 
 
 lies to recover damages for breach of a con- 
 tract under seal. It is one of the brevia 
 formata of the register, is sometimes a con- 
 current remedy with debt, though never 
 with assumpsit, and is the only proper rem- 
 edy where the damages are unliquidated in 
 nature, and the contract is under seal. 
 Pitzh. Nat. Brev. 340; Chit. PI. 112, 113; 
 Steph. N. P. 1058. 
 
 COVENANT AGAINST INCUMBRANCES. 
 
 One which has for its object security against 
 those rights to, or interests in, the land 
 granted which may subsist in third persons 
 to the diminution of the value of the estate, 
 though consistently with the passing of the 
 fee by the deed of conveyance. For what 
 constitutes an incumbrance, see "Incum- 
 brance." 
 
 COVENANT COLLATERAL. A covenant 
 which is conversant about some collateral 
 thing that doth nothing at all, or not so 
 immediately concern the thing granted; as 
 to pay a sum of money in gross, etc. Shep. 
 Touch. 161. 
 
 COVENANT FOR FURTHER ASSUR- 
 
 ance. One by which the covenantor under- 
 takes to do such reasonable acts in addition 
 to those already performed as may be neces- 
 sary for the completion of the transfer made, 
 or intended to be made, at the requirement 
 of the covenantee. It relates both to the 
 title of the vendor and to the instrument of 
 conveyance to the vendee, and operates as 
 well to secure the performance of all acts 
 for supplying any defect in the former, as to 
 remove all objections to the sufficiency and 
 security of the latter. Piatt, Gov. 341. 
 
 COVENANT FOR QUIET ENJOYMENT. 
 An assurance against the consequences of 
 a defective title, and of any disturbances 
 thereupon. Piatt, Cov. 312. By it, when 
 general in its terms, the covenantor stipu- 
 lates at all events (11 Bast, 642; 1 Mod. 
 101) to indemnify the covenantee against all 
 acts committed by virtue of a paramount 
 title (Piatt, Cov. 313; 1 Lev. 83; 8 Lev. 305; 
 Hob. 34; 4 Coke, 80h; Cro. Car. 5; 3 Term 
 R. 584; 6 Term R. 66; 3 Duer [N. Y.] 464; 
 2 Jones [N. C] 203; Busb. [N. C] 384; 3 
 N. J. 260), not including the acts of a mob 
 (19 Miss. 87; 2 Strobh. [S. C] 366), nor a 
 mere trespass by the lessor (10 N. Y. 151). 
 It most generally occurs in leases. 
 
 COVENANT IN DEED (called, also, "cove- 
 nant in fact," French, covenant en fait, and 
 "covenant expressed"). A covenant ex- 
 
 pressed in words, or inserted in a deed in 
 specific terms. Termes de la Ley; Shep. 
 Touch. 160. There is no set form of words 
 necessary to constitute a covenant. The 
 usual form is that the covenantor, "for him- 
 self, his heirs, executors, and administra- 
 tors, covenants, promises, and agrees to and 
 with (the covenantee), his heirs, executors, 
 administrators, and assigns, that," etc. 1 
 Archb. N. P. 250; U. S. Dig. "Covenant." 
 The formal word "covenant" itself is not 
 absolutely essential for this purpose. Bou- 
 vier, voc. "Covenant," pi. 10, and cases there 
 cited; Hilliard, Real Prop. 364. 
 
 COVENANT INHERENT. A covenant 
 which is conversant about the land, and knit 
 to the estate in the land; as that the thing 
 demised shall be quietly enjoyed, shall be 
 kept in reparation, shall not be aliened, etc. 
 Shep. Touch. 161. 
 
 COVENANT NOT TO SUE. One entered 
 into by a party who has a cause of action 
 at the time of making it, by which he agrees 
 not to sue the party liable to such action. 
 
 A perpetual covenant not to sue is one by 
 which the covenantor agrees not to sue the 
 covenantee at any time. Such a covenant 
 operates as a release to the covenantee, and 
 may be pleaded as such. Cro. Eliz. 623; 1 
 Term R. 446; 8 Term R. 486; 2 Salk. 375; 3 
 Salk. 298; 12 Mod. 415; 7 Mass. 153; 16 
 Mass. 24; 17 Mass. 623; 3 Ind. 473. And 
 see 11 Serg. & R. (Pa.) 149. 
 
 A limited covenant not to sue, by which 
 the covenantor agrees not to sue for a lim- 
 ited time, does not operate a release; and 
 a breach must be taken advantage of by ac- 
 tion, earth. 63; 1 Show. 46; 2 Salk. 573; 
 6 Wend. (N. Y.) 471; 5 Cal. 501. See 29 
 Ala. (N. S.) 322, as to requisite considera- 
 tion. 
 
 COVENANT OF RIGHT TO CONVEY. An 
 
 assurance' by the covenantor that the grantor 
 has suflBcient capacity and title to convey 
 the estate which he by his deed undertakes 
 to convey. 
 
 COVENANT OF SEISIN. An assurance to 
 the grantee that the grantor has the very 
 estate, both in quantity and quality, which 
 he professes to convey. Piatt, Cov. 306. It 
 has given place in English conveyancing to 
 the covenant of right to convey, but Is in 
 use in several states of the United States. 
 2 Washb. Real Prop. 648. 
 
 COVENANT OF WARRANTY. An assur- 
 ance by the grantor of an estate that the 
 grantee shall enjoy the same without inter- 
 ruption by virtue of paramount title. 2 
 Jones (N. C.) 203; 3 Duer (N. Y.) 464. 
 
 It is not in use in English conveyances, 
 but is in general use in the United States 
 (2 Washb. Real Prop. 659), and in several 
 states is the only covenant in general use 
 (Rawle, Cov. 203, note; 4 Ga. 593; 8 Grat. 
 [Va.] 353; 6 Ala. 60). 
 
 COVENANT REAL. A covenant in a deed 
 binding the heirs of the covenantor, and 
 passing to assignees, or to the purchaser. 2 
 
COVENANT RUNNING WITH LAND (228) 
 
 COVENTRY ACT 
 
 Bl. Comm. 304; 4 Kent, Comm. 471, 472. A 
 covenant whicli so runs with, the land that 
 he that hath the one hath or is. subject to the 
 other. Shep. Touch. 161. It is thus distin- 
 guished from a personal- covenant, which af- 
 fedts only the covenantor, and the assets in 
 the hands of his representatives after his 
 death. 4 Kent, Comm. 470. The covenants 
 in a deed that the grantor is lawfully seised, 
 and has good right to convey, and that the 
 land is free from incumbrance, are personal 
 covenants, not running with the land; the 
 covenant for quiet enjoyment, and the cove- 
 nant of warranty, are in the nature of real 
 covenants. Id. 471. But see Id. 472, and 
 notes; 1 Sumn. (U. S.) 263. 
 
 In the old books, a covenant real is also 
 defined to be a covenant by which a man 
 binds himself to pass a thing real, as lands 
 or tenements. Termes de la Ley; 3 Bl. 
 Comm. 156. 
 
 COVENANT RUNNING WITH LAND. A 
 covenant which goes with the land (con- 
 veyed by the deed in which it is expressed), 
 as being annexed to the estate, and which 
 cannot be separated from the land, and trans- 
 ferred without it. 4 Kent, Comm. 472, note. 
 A covenant is said to run with the land 
 when not only the original parties to the 
 deed of conveyance, or their representatives, 
 but each successive owner of the land, will 
 be entitled to its beneiat, or be liable, as the 
 case may be, to its obligation. 1 Steph. 
 Comm. 455, and note (r) ; Burton, Real 
 Prop. 157. Or, in other words, it is so called 
 when either the liability to perform it, or 
 the right to take advantage of it, passes to 
 the assignee of the land. 1 Smith, Lead. 
 Cas. 27, note; 5 Coke, 16a; 4 Kent, Comm. 
 470-473. See 17 Wend. (N. Y.) 136; U. S. 
 Dig. "Covenant." 
 
 A covenant to pay rent, to produce title 
 deeds, or for renewal, are covenants which 
 run with the land. All covenants concern- 
 ing title run with the land, with the excep- 
 tion of those that are broken, if at all, be- 
 fore the land passes. 4 Kent, Comm. 473. 
 
 COVENANT TO CONVEY. A covenant by 
 which the covenantor undertakes to convey 
 to the covenantee the estate described in 
 the covenant, under certain circumstances. 
 
 This form of conditional alienation of 
 lands is in frequent use in several of the 
 United States. 14 Pa. St. 308; 19 Barb. (N. 
 Y.) 639; 4 Md. 498; 11 111. 194; 19 Ohio, 347. 
 Substantially the same effect is secured as 
 by a conveyance and a mortgage back for 
 the purchase money, with the important dif- 
 ference, however, that the title of course re- 
 mains in the covenantor till he actually exe- 
 cutes the conveyance. 
 
 The remedy for breach may be by action 
 on the covenant (29 Pa. St. 264), but the bet- 
 ter remedy is said to be in equity for spe- 
 cific perfol-mance (1 Grant Ce^s. [Pa.] 230). 
 
 It is satisfied only by a perfect conveyance 
 of the kind bargained for (19 Barb. [N. Y.] 
 639); otherwise where an imperfect convey- 
 ance has been accepted (4 Md. 498). 
 
 COVENANT TO STAND SEISED TO 
 
 uses. A covenant by means of which, under 
 the statute of uses, a conveyance of an es- 
 tate may be effected. Burton, Real Prop. §§ 
 136, 145. 
 
 Such a covenant cannot furnish the ground 
 for an action of covenant broken, and in 
 this respect resembles the ancient real cove- 
 nants. 
 
 The consideration for such a covenant 
 must be relationship either by blood or 
 marriage. 2 Washb. Real Prop. 129, 130. 
 See 2 Seld. (N. Y.) 342. 
 
 As a mode of conveyance It has fallen 
 into disuse; though the doctrine is often re- 
 sorted to by courts in order to give effect 
 to the intention of the parties who have 
 undertaken to convey lands by deeds which 
 are insufficient for the purpose, under the 
 rules required in other forms of convey- 
 ance. 2 Washb. Real Prop. 155, 156; 2 
 Sanders, Uses, 79, 83; 4 Mass. 136; 18 Pick. 
 (Mass.) 397; 22 Pick. (Mass.) 376; 5 Me. 
 232; 11 Johns. (N. Y.) 351; 20 Johns. (N. 
 Y.) 85; 5 Yerg. (Tenn.) 249. 
 
 COVENANTEE. One in whose fa'vor a 
 covenant is made. 
 
 COVENANTOR. One who becomes bound 
 to perform a covenant. 
 
 COVENANTS APPURTENANT. 
 
 which run with the land. 
 
 Those 
 
 COVENANTS FOR TITLE. Those in aid 
 of the title to property, usually land, con- 
 veyed or sold. They are "covenant of sei- 
 sin," "covenant against incumbrances," 
 "covenant for further assurance," "covenant 
 for quiet enjoyment," "covenant of war- 
 ranty," and "covenant of right to convey" 
 (9. V.) 
 
 COVENANTS PERFORMED. In pleading. 
 A plea to an action of covenant, allowed in 
 the state of Pennsylvania, whereby the de- 
 fendant, upon informal notice to the plain- 
 tiflC, may give anything in evidence which he 
 might have pleaded. 4 Dall. (Pa.) 439; 2 
 Yeates (Pa.) 107; 15 Serg. & R. (Pa.) 105. 
 And this evidence, it seems, may be given 
 in the circuit court without notice, unless 
 called for. 2 Wash. C. C. (U. S.) 456. 
 
 COVENTION IN UNUM. The agreement 
 between the two parties to a contract upon 
 the sense of the contract proposed. It is 
 an essential part of the contract, following 
 the pollicitation or proposal emanating from 
 the one, and followed by the consension or 
 agreement of the other. If the second party 
 does not assent to the proposal in the sense 
 in which it is made, he is not bound by his 
 assent unless his mistake is unreasonable. 
 
 COVENTRY ACT. The common name for 
 St. 22 & 23 Car. II. c. 1, against maiming by 
 lying in wait, it having been enacted in 
 consequence of an assault on Sir John Cov- 
 entry in the street, and slitting his nose, in 
 revenge, as was supposed, for some obnox- 
 ious words uttered by him in parliament. 
 
COVERT 
 
 (229) 
 
 CREDITORS' BILL 
 
 COVERT. Covered; protected; sheltered. 
 A pound, covert is one that is close or cov- 
 ered over, as distinguished from pound 
 overt, which is open overhead. Co. Litt. 
 47b; 3 Bl. Comm. 12. A feme covert is so 
 called, as being under the wing, protection, 
 or cover of her husband. 1 Bl. Comm. 442. 
 
 In the colony laws of New Plymouth, chil- 
 dren are said to be "under the covert" of 
 their parents. 
 
 COVERT BARON. A wife. So called from 
 being under the protection of her husband, 
 baron, or lord. 
 
 COVERTURE. The condition or state of 
 a married woman. 
 
 During coverture, the civil existence of the 
 wife is, for many purposes, merged in that 
 of her husband. See "Abatement;" "Par- 
 ties." 
 
 COVI N. A secret contrivance between two 
 or more persons to defraud and prejudice 
 another of his rights. Co. Litt. 357b; 
 Comyn, Dig. "Covin" (A) ; 1 Viner, Abr. 473. 
 See "Collusion;" "Fraud." 
 
 COWARDICE. Pusillanimity; fear; mis- 
 behavior through fear in relation to some 
 duty to be performed before an enemy. 
 O'Brien, Court-Martial, 142. 
 
 By both the army and navy regulations of 
 the United States, this is an offense punish- 
 able in officers or privates with death, or 
 such other punishment as may be inflicted 
 by a court-martial. 1 Story, TJ. S. Laws, 761; 
 Act Cong. April 10, 1806, art. 52. 
 
 CRANAGE. A toll paid for drawipg mer- 
 chandise out of vessels to the wharf. So 
 called because the instrument used for the 
 purpose is called a "crane." 8 Coke, 46. 
 
 CRASSA. Gross. Crassanegligentia, gross 
 negligence; crassa ignorantia, gross igno- 
 rance. 
 
 CRASTINUM, or CRASTINO (Lat. tomor- 
 row). On the day after. The return day of 
 writs is made the second day of the term; 
 the first day being some saint's day, which 
 gives its name to the term. In the law 
 Latin, crastino (the morning, the day after) 
 would then denote the return day. 2 Reeve, 
 Hist. Bng. Law, 56, 57. 
 
 CRATES. An iron gate before a prison. 1 
 Vent. 304. 
 
 CRAVE. To ask; to demand. 
 
 This word is frequently used in pleading; 
 as, to crave oyer of a bond on which the 
 suit is brought; and in the settlement of 
 accounts the accountant general craves a 
 credit or an allowance. 1 Chit. Prac. 520. 
 See "Oyer." 
 
 CRAVEN, CRAVENT, or CRAVANT (from 
 Saxon crafan, to crave, beg, or implore). 
 In old English law. A word of obloquy and 
 disgrace, in the ancient trial by battel, on 
 the uttering of which by either champion, 
 he was considered as yielding the victory to 
 his opponent, and was condemned, as a 
 
 recreant, amittere liberam legem, to lose his 
 frank law, that is, to become infamous, and 
 not to be accounted a free and lawful man, 
 liber et legalis homo, being supposed by the 
 court to be proved forsworn, and therefore 
 never to be put on a jury or admitted as a 
 witness in any cause. 3 Bl. Comm. 340; 4 
 Bl. Comm. 348; 4 Steph. Comm. 415. Called 
 verbum recreantisae, the word of recreancy. 
 Fleta, lib. 1, c. 38, § 18. The word is still 
 popularly used in the same dishonorable 
 sense. See "Battel;" "Champion;" "Recre- 
 ant." 
 
 CREAMER. A foreign merchant; but gen- 
 erally taken for one who has a stall in a 
 fair or market. Blount. 
 
 CREAM US. We create. One of the words 
 by which a corporation in England was for- 
 merly created by the king. 1 Bl. Comm. 473. 
 
 CREANCE (Law Fr. from creicr, to be- 
 lieve). Belief; persuasion; trust; credit; 
 faith. Law Fr. Diet. 
 
 A claim; a debt. 1 Bouv. Inst, note 1040. 
 
 CREANCER, or CREANSOR. One who 
 trusts or gives credit; a creditor. Old Nat. 
 Brev. 66; Britt. cc. 28, 78. 
 
 CREDENTIALS. Papers which give a title 
 or claim to confidence. 
 
 In International Law. The instru- 
 ments which authorize and establish a pub- 
 lic minister in his character with the 
 state or prince to whom they are addressed. 
 If the state or prince receive the minister, 
 he can be received only In the quality at- 
 tributed to him in his credentials. They are, 
 as it were, his letter of attorney, his man- 
 date patent, mandatum manifestum. Vattel, 
 liv. 4, c. 6, § 76. 
 
 CREDIBILITY. In a witness. Worthiness 
 of belief, as distinguished from competency 
 or capacity to testify. 
 
 CREDIBLE WITNESS. One who, being 
 competent to give evidence, is worthy of 
 belief. 5 Mass. 219; 17 Pick. (Mass.) 154; 
 2 Curt. Ecc. 336. 
 
 CREDIT. 
 
 (1) The ability to borrow, on the opinion 
 conceived by the lender that he will be re- 
 paid. 
 
 (2) A debt due in consequence of a con- 
 tract of hire or borrowing of money. 
 
 (3) The time allowed by the creditor for 
 the payment of goods sold by him to the 
 debtor. 
 
 (4) That which is due to a merchant, as 
 distinguished from "debit," that which is 
 due by him. 
 
 (5) That influence connected with certain 
 social positions. 20 Toullier, Dr. Civ. note 
 19. 
 
 CREDITOR. He who has a right to re- 
 quire the fulfillment of an obligation or con- 
 tract; he to whom a debt is owing. 
 
 CREDITORS' BILL. A bill in equity, filed 
 by one or more creditors, by and in behalf 
 
CREDITORUM, ETC. 
 
 (230) 
 
 CRIME 
 
 of him or themselves, and all other creditors 
 who shall come in under the decree, for an 
 account of the assets and a due settlwrnent 
 of the estate of a decedent. 
 
 The usual decree against the executor or 
 administrator is quod computet; that is to 
 say, it directs the master to take the ac- 
 counts between the deceased and all his 
 creditors, and to cause the creditors, upon 
 due public notice, to come before him to 
 prove their debts at a certain place, and 
 within a limited time; and it also directs 
 the master to take an account of all the 
 personal estate of the deceased in the hands 
 of the executor or administrator, and the 
 same to be applied in payment of the debts 
 and other charges in a due course of admin- 
 istration. 1 Story, Bq. Jur. 442. 
 
 CREDITORUM APPELLATIONE NON HI 
 tantum accipiuntur qui pecuniam credide- 
 runt, sed omnes quibus ex qualibet causa de- 
 betur. Under the head of creditors are in- 
 cluded not alone those who have lent money, 
 but all to whom, from any cause, a debt is 
 owing. Dig. 50. 16. 11. 
 
 CREEK. In maritime law. Such little in- 
 lets of the sea, whether within the precinct 
 or extent of a port or without, which are 
 narrow passages, and have shore on either 
 side of them. Callis, Sew. 56; 5 Taunt. 705. 
 
 Such inlets that, though possibly for their 
 extent and situation they might be ports, yet 
 they are either members of or dependent 
 upon other ports. 
 
 The term imports a recess, cove, bay, or 
 inlet in the shore of a river, and not a sep- 
 arate or independent stream, though some- 
 times used in the latter meaning. 38 N. Y. 
 103. 
 
 In England the name arose thus: The 
 king could not conveniently have a customer 
 and comptroller in every port or haven; 
 but such custom oflBcers were fixed at some 
 eminent port, and the smaller adjacent ports 
 became by that means creeks, or appendants 
 of that port where these custom officers were 
 placed. 1 Chit. Com. Law, 726; Hale, de 
 Port. Mar. pt. 2, c. 1, vol. 1, p. 46; Comyn, 
 Dig. "Navigation" (C) ; Callis, Sew. 34. 
 
 CREMENTUIVl COMITATUS. The in- 
 crease of the county. The increase of the 
 king's rents above the old vicontiel rents, 
 for which the sheriffs were to account. 
 Wharton. 
 
 CREPARE OCULUIVI. In Saxon law. To 
 put out an eye; which had a pecuniary pun- 
 ishment of fifty shillings annexed to it. 
 Wharton. 
 
 CREPUSCULUM. Daylight; twilight. The 
 light which Immediately precedes or follows 
 the rising or setting of the sun. 4 Bl. 
 Comm. 224. Housebreaking during the pe- 
 riod in which there is sunlight enough to dis- 
 cern a person's face (crepMSC«Z«m) is not 
 burglary. Coke, 3d Inst. 63; 1 Russ. Crimes, 
 820; 3 Greenl. Bv. § 75. 
 
 CRESCENTE IVIALITIA CRESCERE DE- 
 
 bet et poena. Vice increasing, punishment 
 ought also to increase. Coke, 2d Inst. 479. 
 
 CRETiO. Time for deliberation allowed 
 an heir to decide whether he would or would 
 not take an inheritance. Calv. Lex. ; Taylor. 
 
 CREW. A ship's complement of men and 
 officers. "In its general and popular sense, 
 it is equivalent to 'company.' In the laws 
 of the United States on maritime subjects, 
 it is sometimes used to comprehend all per- 
 sons composing the ship's company, includ- 
 ing the master.; sometimes to comprehend 
 the officers as common seamen, excluding 
 the master; and sometimes to include the 
 common seamen only, excluding the master 
 and officers. But in the last two classes it 
 will be found that the context contains lan- 
 guage which explains and limits the general 
 to the particular use." 3 Sumn. (U. S.) 209. 
 
 CRIER. A bailiff or other attendant in 
 court, whose duty is to make proclamations 
 in court. 
 
 CRIEZ LA PEEZ. Rehearse the concord, 
 or peace. A phrase used in the ancient pro- 
 ceedings for levying fines. It was the form 
 of words by which the justice before whom 
 the parties appeared directed the Serjeant 
 or counter in attendance to recite or read 
 aloud the concord or agreement between 
 the parties, as to the lands intended to be 
 conveyed. 2 Reeve, Hist. Eng. Law, 224, 225; 
 Crabb, Hist. Eng. Law, 179. 
 
 CRIIVl. CON. An abbreviation for criminal 
 conversation, of very frequent use, denoting 
 adultery; unlawful sexual intercourse with a 
 married woman. BuUer, N. P. 27; Bac. Abr. 
 "Marriage" (E 2); 4 Blackf. (Ind.) 157. 
 
 CRIIVl E. Any act or omission prohibited 
 by public law for the protection of the pub- 
 lic, and made punishable by the state in a 
 judicial proceeding in its own name. It is 
 a public wrong, as distinguished from a 
 mere private wrong or injury to an indi- 
 vidual. 1 Clark & Marshall, Crimes, § 1. 
 
 A wrong which the government deems 
 injurious to the public at large, and pun- 
 ishes through a judicial proceeding in its 
 own name. 1 Bish. New Crim. Law, § 32. 
 
 An act committed or omitted in violation 
 of a public law either forbidding or com- 
 manding it. 4 Bl. Comm. 15. This defini- 
 tion has frequently been quoted with ap- 
 proval, but it is inaccurate. In the first 
 place, it is not the "act omitted" that con- 
 stitutes a crime, but the omission to act. In 
 the second place, the term "public law" is 
 too broad, for it includes many other laws 
 besides those which define and punish 
 crimes. An act is not necessarily a crime 
 because it is prohibited by a public law. To 
 constitute a crime, it must be punished to 
 protect the public, and must be punished 
 by the state or other sovereign. Clark & 
 Marshall, Crimes, § 1. 
 
 Violations of municipal ordinances are 
 generally held not to be crimes, for the 
 reason that such ordinances are not public 
 
CRIME AGAINST NATURE 
 
 (231) 
 
 CRO 
 
 laws, and the punishment for their violation 
 is imposed by a less authority than the 
 state. 29 Minn. 445; 36 Ala. 261; 47 Ohio 
 St. 481; 55 Wis. 487. Contra, see 75 Mich. 
 611; 27 Tex. App. 342. 
 
 "Crime" is a generic term, including trea- 
 son, felonies, and misdemeanors (31 Wis. 
 383; 75 Mich. 611; 60 111. 168; 42 Minn. 
 258; 48 Ind. 123), though some earlier writ- 
 ers use the term as excluding misdemeanors 
 (4 Bl. Comm. 5). 
 
 CRIME AGAINST NATURE. Sodomy. 
 
 CRIMEN (Lat) A crime. , 
 
 In the civil law. A charge of crime. 
 
 Crimen Falsi. In civil law. A fraud- 
 ulent alteration, or forgery, to conceal or al- 
 ter the truth, to the prejudice of another. 
 This crime may be committed in three ways, 
 namely: by forgery; by false declarations 
 or false oath, — perjury; by acts, as by deal- 
 ing with false weights and measures, by al- 
 tering the current coin, by making false 
 keys, and the like. See Dig. 48. 10. 22; Id. 
 34. 8. 2; Code, 9. 22; Id. 2. 5. 9. 11. 16. 17. 23. 
 24; Merlin, Repert. ; 1 Brown, Civ. Law, 426; 
 1 Phil. Ev. 26; 2 Starkie, Ev. 715. 
 
 At common law. Any crime which may in- 
 juriously affect the administration of justice, 
 by the introduction of falsehood- and fraud. 
 
 1 Greenl. Ev. § 373. 
 
 The meaning of this term at common law 
 is not well defined. It has been held to 
 include forgery (5 Mod. 74), perjury, sub- 
 ornation of perjury (Co. Litt. 6b; Comyn, 
 Dig. "Testmoigne" [A 5]), suppression of 
 testimony by bribery or conspiracy to pro- 
 cure the absence of a witness (Ryan & M. 
 434), conspiracy to accuse of crime (2 Hale, 
 P. C. 277; 2 Leach, C. C. 496; 3 Starkie, 21; 
 
 2 Dods. Adm. 191), barratry (2 Salk. 690). 
 The effect of a conviction for a crime of this 
 class is infamy, and incompetency to testify. 
 Statutes sometimes provide what shall be 
 such crimes. 
 
 Crimen Furtl. The offense of theft. 
 
 -Crimen Incendll. In old criminal law. 
 
 The crime of burning, which included not 
 only the modern crime of arson, or burning 
 of a house, but also the burning of a man, 
 beast, or other chattel. Britt. c. 9; Crabb, 
 Hist. Eng. Law, 308. 
 
 Crimen Innomlnatum. The nameless 
 
 crime; sodomy. 
 
 Crimen Laesae-Majestatis. Injuring 
 
 or violating the majesty of the king's per- 
 son; any crime affecting the king's person. 
 4 Bl. Comm. 75. 
 
 Crimen Raptus. Rape. 
 
 Crimen Roberiae. Robbery. 
 
 -Crimen Trahlt Personam. The crime 
 
 carries the person; i. e., the commission of 
 a crime gives the courts of the place where 
 it is committed jurisdiction over the person 
 of the offender. 3 Denio (N. Y.) 190, 210. 
 
 CRIMEN FALSI DICITUR, CUM QUIS IL- 
 licitur, cul non fuerit ad haec data auctorltas, 
 de siglllo regis rapto vel invento brevia, car- 
 tasve conslgnaverit. The crimen falsi (crime 
 of falsifying) is when any one illicitly, to 
 whom power has not been given for such 
 
 purposes, has signed writs or charters with 
 the king's seal, which he has either stolen 
 or found. Pleta, lib. 1, c. 23. 
 
 CRIMEN LAESAE MAJESTATIS OMNIA 
 alia crlmina excedit quoad poenam. The 
 crime of treason exceeds all other crimes as 
 far as its punishment is concerned. Coke, 
 3d Inst. 210. 
 
 CRIMEN OMNIA EX SE NATA VITIAT. 
 Crime vitiates everything which springs 
 from it. 5 Hill (N. Y.) 523, 531. 
 
 CRIMINA MORTE EXTINGUUNTUR. 
 Crimes are extinguished by death. 
 
 CRIMINAL. As a noun, one who has been 
 guilty of a crime. 
 
 As an adjective, violative of the criminal 
 law; pertaining to crime, or to penal juris- 
 prudence. 
 
 CRIMINAL ACT. A crime. Sometimes 
 applied to the act of crime, as severed from 
 the criminal intent. 
 
 . CRIMINAL CONVERSATION. See"Crim. 
 Con." 
 
 CRIMINAL INFORMATION. A criminal 
 suit brought, without the interposition of a 
 grand jury, by the proper officer of the king 
 or state. Cole, Crim. Inf.; 4 Bl. Comm. 398. 
 
 CRIMINAL INTENT. See "Intent" 
 
 CRIMINAL LAW. That branch of juris- 
 prudence which treats of crimes and of- 
 fenses. 
 
 CRIMINAL LAWCONSOLIDATION ACTS. 
 
 The English acts (24 & 25 Vict. cc. 94-100) 
 whereby the criminal law of the country was 
 practically codified. 
 
 CRIMINAL LETTERS. In Scotch law. A 
 summons issued by the lord advocate or his 
 deputies as the means of commencing a 
 criminal process. It differs from an indict- 
 ment, and is like a criminal information 
 at common law. 
 
 CRIMINAL PROCEDURE. The rnurse or 
 system of proceedings established by law, 
 whereby persons accused of crime are ap- 
 prehended, tried, and their punishment fixed. 
 
 CRIMINALITER. Criminally; or criminal 
 process. 
 
 CRIMINATE. To exhibit evidence of the 
 commission of a criminal offense. 
 
 To charge with crime, or implicate in a 
 charge of crime. 
 
 CRITICISM. The art of judging skillfully 
 of the merits or beauties, defects or faults, 
 of a literary or scientific performance, or of 
 a production of art. When the criticism is 
 reduced to writing, the writing itself Is 
 called a criticism. 
 
 CRO, CROO, or CROY. In old Scotch law. 
 A composition, satisfaction, or assythment 
 for the slaughter of a man. Same as were- 
 gild. Spelman. 
 
CROCKARDS 
 
 (232) 
 
 CROWN SOLICITOR 
 
 CROCKARDS, or CROCARDS. A foreign 
 coin of base metal, prohibited by St. 27 
 Edw. I. St. 3, from being brouglit into the 
 realm. 4 BI. Comm. 98; Crabb, Hist. Eng. 
 Law, 176. 
 
 CROFT. A little close adjoining a dwell- 
 ing house, and inclosed for pasture and 
 tillage, or any particular use. Jacob, Law 
 J)ict. A small space fenced off, in which to 
 keep farm cattle. Spelman. The word is 
 now entirely obsolete. 
 
 CROISES. Pilgrims; so called, as wear- 
 ing the sign of the cross on their upper 
 garments. Britt. c. 122. The knights of 
 the order of St. John of Jerusalem, created 
 for the defense of the pilgrims. Cowell; 
 Blount. 
 
 CROITEIR. A crofter; one holding a croft. 
 
 CROPPER. One who, having no interest 
 in the land, works it in consideration of re- 
 ceiving a portion of the crop for his labor. 
 2 Rawle (Pa.) 12. 
 
 CROPS. Grain or other cultivated plants 
 or fruits; the product of the harvest thereof. 
 
 CROSS ACTION. An action by a defend- 
 ant in an action, against the plaintiff in the 
 same action, upon the same contract, or for 
 the same tort. Thus, if Peter bring an ac- 
 tion of trespass against Paul, and Paul bring 
 another action of trespass against Peter, the 
 subject of the dispute being an assault and 
 battery, it is evident that Paul could not set 
 off the assault committed upori him by Peter, 
 in the action which Peter had brought 
 against him; therefore a cross action be- 
 comes necessary. 
 
 CROSS APPEAL. Where both parties ap- 
 peal, the appeals are sometimes called "cross 
 appeals." 
 
 CROWN CASES. In English law. Crim- 
 inal prosecutions. 
 
 CROWN CASES RESERVED. Questions 
 of law reserved on the trial of criminal cases 
 at assize for consideration of the court of 
 crimipal appeal. 
 
 CROSS BILL. A bill by a defendant to a 
 bill in equity against the plaintiff or a co- 
 defendant for further relief in respect to the 
 matters embraced in the suit. 
 
 It is an auxiliary suit or dependency on 
 the original suit. 35 N. H. 251. 
 
 CROSS DEMANDS. Mutual demands; 
 claim and counterclaim. 
 
 CROSS ERRORS. Errors being assigned 
 by the respondent in a writ of error, the er- 
 rors assigned on both sides are called "cross 
 errors." 
 
 CROSS EXAM IN ATON. In practice. The 
 examination of a witness by the party op- 
 posed to the party who called him, and who 
 examined or was entitled to examine him in 
 chief. 
 
 CROSS REMAINDER. Where a particular 
 estate is conveyed to several persons in com- 
 mon, and, upon the termination of the in- 
 terest of either of them, his share is to re- 
 main over to the rest, and the reversioner 
 or remainder man is not to take till the 
 termination of all the estates, the parties 
 take as tenants in common, with cross re- 
 mainders between them. 4 Cruise, Dig. 249; 
 1 Hilliard, Real Prop. 650. It is not an es- 
 sential quality of cross remainders that the 
 original estates should be held in common. 
 1 Prest. Est. 94; 2 Washb. Real Prop. Index. 
 
 CROSS RULES. These were rules where 
 each of the opposite litigants obtained a rule 
 nisi, as the plaintiff to increase the damages, 
 and the defendant to enter a nonsuit. Whar- 
 ton. 
 
 CROWN LAW. Criminal law; the crown 
 being the prosecutor. 
 
 CROWN OFFICE. The criminal side of 
 the court of king's bench. The king's at- 
 torney in this court is called "master of the 
 crown office." 4 Bl. Comm. 308. 
 
 CROWN OFFICE IN CHANCERY. One of 
 
 the offices of the English high court of chan- 
 cery, now transferred to the high court of 
 justice. The principal official, the clerk of 
 the crown, is an officer of parliament, and 
 of the lord chancellor, in his nonjudicial ca- 
 pacity, rather than an officer of the courts 
 of law. Second Rep. Leg. Dep. Comm. 39. 
 His principal duties are to make out and is- 
 sue writs of summons and election for both 
 houses of parliament, and to keep the cus- 
 tody of poll books and ballot papers. Nearly 
 all patents passing the great seal, except 
 those for inventions (Great Seal Act, 1880), 
 are made out in his office, and he makes out 
 the warrants for almost all letters patent 
 under the great seal. See "Patent." He 
 also does the duties formerly performed by 
 the clerk of the Hanaper. They chiefly con- 
 sisted in collecting fees, but have now ceased 
 almost entirely. He is registrar of the lord 
 high steward's court. Second Rep. Leg. Dep. 
 Comm. 39; Rep. Comm. on Fees, 5; 2 & 3 
 Wm. IV. c. 3; 3 & 4 Wm. IV. c. 84; 15 & 16 
 Vict. c. 87; 37 & 38 Vict. c. 81. 
 
 CROWN PAPER. A paper containing the 
 list of criminal cases which await the hear- 
 ing or decision of the court, and particu- 
 larly of the court of queen's bench; and it 
 then includes all cases arising from infor- 
 mations quo warranto, criminal informa- 
 tions, criminal cases brought up from infe- 
 rior courts by writ of certiorari, and cases 
 from the sessions. Brown. 
 
 CROWN SIDE. The criminal side M the 
 court of king's bench. Distinguished from 
 the pleas side, which transacts the civil 
 business. 4 Bl. Comm. 265. 
 
 CROWN SOLICITOR. In England, the so- 
 licitor to the treasury acts, in state prose- 
 cutions, as solicitor for the crown In prepar- 
 ing the prosecution. In Ireland there are 
 officers called "crown solicitors" attached to 
 each circuit, whose duty it is to get up every 
 
CROWNER 
 
 (233) 
 
 CUJUS EST DARE, ETC. 
 
 case for the crown in criminal prosecutions. 
 They are paid hy salaries. There is no such 
 system in England, where prosecutions are 
 conducted by solicitors appointed by the par- 
 ish, or other persons bound over to prose- 
 cute by the magistrates on each committal; 
 hut in Scotland the still better plan exists 
 of a crown prosecutor (called the "procura- 
 tor-fiscal," and being a subordinate of the 
 lord-advocate) in every county, who pre- 
 pares every criminal prosecution. Wharton. 
 
 CROWNER, or CROUNER. In old Scotch 
 law. Coroner; a coroner. Skene de Verb. 
 Sign. 
 
 CROY. 
 
 Blount. 
 
 In old English law. Marsh land. 
 
 CRUCE SIGNATI. In old English law. 
 Signed or marked with a cross. Pilgrims to 
 the holy land, or crusaders. So called be- 
 cause they wore the sign of the cross upon 
 their garments. Spelman, voc. "Crucifen." 
 
 CRUISE. A voyage or expedition in quest 
 of vessels or fleets of the enemy which may 
 he expected to sail in any particular track 
 at a certain season of the year. The region 
 in which these cruises are performed is usu- 
 ally termed the "rendezvous," or "cruising- 
 latitude." When the ships employed for this 
 purpose, which are accordingly called "cruis- 
 ers," have arrived at the destined station, 
 they traverse the sea backwards and for- 
 wards, under an easy sail, and within a lim- 
 ited space, conjectured to be in the track of 
 their expected adversaries. Weskett, Ins.; 
 Lex Merc. Rediv. 271, 284; Doug. 509; Park, 
 Ins. 58; Marsh. Ins. 196, 199, 520; 2 Gall. 
 (U. S.) 268. 
 
 CRY DE PAYS, or CRY DE PAIS. A hue 
 and cry raised by the country. This was 
 allowable, in the absence of the constable, 
 when a felony had been committed. 
 
 CRYER. See "Crier." 
 
 CLICKING STOOL. An engine or machine 
 for the punishment of scolds and unquiet 
 women. Called, also, a "trebucket," "tum- 
 brill," and "castlgatory." Bakers and brew- 
 ers were formerly also liable to the same 
 punishment. Being fastened in the machine, 
 they were immersed over head and ears in 
 some pool. Blount; Coke, 3d Inst. 219; 4 
 Bl. Comm. 168. 
 
 CUI ANTE DIVORTIUM (Law Lat.) The 
 full phrase was, ciii ipsa ante divortium con- 
 tradicere non poUiit. whom she before the 
 divorce could not gainsay. 
 
 In Practice. A writ which anciently lay 
 
 in favor of a woman who had been divorced 
 from her husband to recover lands and tene- 
 ments which she had in fee simple, fee tail, 
 or for life, from him to whom her husband 
 had aliened them during marriage, when she 
 could not gainsay it. Pitzh. Nat. Brev. 240; 
 3 Sharswood, Bl. Comm. 183, note; Stearns, 
 Real Actions. 143; Booth, Real Actions, 188. 
 
 CUI IN VITA (Law Lat.) The full phrase 
 was, mi in vita sua. ipsa contradioere non 
 
 potuit, whom in his lifetime she could not 
 gainsay. 
 
 In Practice. A writ of entry which lay 
 
 for a widow against a person to whom her 
 husband had in his lifetime aliened her 
 lands. Fitzh. Nat. Brev. 193. The object 
 of the writ was to avoid a judgment ob- 
 tained against the husband by confession or 
 default. It is now of no use in England, 
 by force of the provisions of St. 32 Hen. 
 VIII. c. 28, § 6. See 6 Coke, 8, 9; Booth, 
 Real Actions, 186. As to its use in Penn- 
 sylvania, see 3 Bin. (Pa.); Rep. Comm. Pa. 
 Civ. Code 1835, 90, 91. 
 
 CUI JURISDICTIO DATA EST, EA QUO- 
 que concessa esse videntur sine quibus juris- 
 dictio explicari non potest. To whom juris- 
 diction is given, to him those things also 
 are held to be granted without which the 
 jurisdiction cannot be exercised. Dig. 2. 1. 
 2; 1 Wooddeson, Lect. introd. Ixxi.; 1 Kent, 
 Comm. 339. 
 
 CUI JUS EST DONANDI,EIDEIVI ETVEN- 
 dendi et concedendi jus est. He who has a 
 right to give has also a right to sell and to 
 grant. Dig. 50. 17. 163. 
 
 CUI LICET QUOD IVIAJUS NON DEBET 
 quod minus est non iicere. He who has au- 
 thority to do the more important act shall 
 not be debarred from doing that of less im- 
 portance. 4 Rep. 23; Co. Litt. 355b; 2 Inst. 
 307; Noy, Max. 26; Pinch, Law, 22; 3 Mod. 
 382, 392; Broom, Leg. Max. (3d London Ed.) 
 165; Dig. 50. 70. 21. 
 
 CUI PATER EST POPULUS NON HABET 
 ilia patrem. He to whom the people is father 
 has MOt a father. Co. Litt. 123. 
 
 CUICUNQUE ALIQUIS QUID CONCEDIT 
 concedere videtur et id, sine quo res ipsa 
 esse non potuit. Whoever grants a thing is 
 supposed also tacitly to grant that without 
 which the grant itself would be of no effect. 
 11 Coke, 52; Broom, Leg. Max. (3d London 
 Ed.) 426; Hob. 234; Vaughan, 109; 11 Exch. 
 775; Shep. Touch. 89; Co. Litt. 56a. 
 
 CUILIBET IN ARTE SUA PERITO EST 
 credendum. Credence should be given to one 
 skilled in his peculiar art. Co. Litt. 125; 
 1 Sharswood, Bl. Comm. 75; Phil. Bv. (Cow. 
 & H. notes), pt. 1, p. 759; 11 Clark & P. 85. 
 
 CUILIBET LICET JURI PRO SE INTRO- 
 ducto renunciare. Any one may waive or 
 renounce the benefit of a principle or rule 
 of law that exists only for his protection. 
 
 CUIQUE IN SUA ARTE CREDENDUM 
 est. Every one is to be believed in his own 
 art. 9 Mass. 227. 
 
 CUJUS EST COMMODUM EJUS DEBET 
 esse incommodum. He who receives the 
 benefit should also bear the disadvantage. 1 
 Kames, Eq. 289; Broom, Leg. Max. (3d Lon- 
 don Ed.) 837. 
 
 CUJUS EST DARE EJUS EST DISPO- 
 
 nere. He who has a right to give has the 
 right to dispose of the gift. Wingate, Max. 
 
CUJUS EST DIVISIO, ETC. 
 
 (234) 
 
 CUM DUO JURA, ETC. 
 
 53; Broom, Leg. Max. (3d London Ed.) 440; 
 2 Coke, 71. 
 
 CUJUS EST DIVISIO ALTERIUS EST 
 electio. Whichever of two parties has the 
 division, the other has the choice. Co. Litt. 
 166. 
 
 CUJUS EST DOMINIUM EJUS EST PER- 
 iculum. The rislt lies upon the owner of the 
 subject. Tray. Lat. Max. 114. 
 
 CUJUS EST INSTITUERE EJUS EST 
 abrogare. Whose it is to institute, his it is 
 also to abrogate. Sydney, Gov. 15; Broom, 
 Leg. Max. (3d London Ed.) 785. 
 
 CUJUS EST SOLUM EJUS EST USQUE 
 ad coelum. He who owns the soil owns it up 
 to the sky. Broom, Leg. Max. (3d London 
 Ed.) 309; Shep. Touch. 90; 2 Bouv. Inst, 
 notes 15, 70; 2 Sharswood, Bl. Comm. 18; 9 
 Coke, 54; 4 Campb. 219; 11 Exch. 822; 6 El. 
 & Bl. 76. 
 
 CUJUS JURIS (i. e., JURISDICTIONIS) 
 est principale, ejusdem juris erit accessorium. 
 He who has jurisdiction of the principal has 
 also of the accessory. Coke, 2d Inst. 493; 
 Bracton, 481. 
 
 CUJUS PER ERROREM DATI REPETI- 
 tio est, ejus consulto dati, donatio est. That 
 which, when given through mistake, can be 
 recovered back, when given with knowledge 
 of the facts, is a gift. Dig. 50. 17. 53. 
 
 CUJUSQUE REI POTISSIMAPARS PRIN- 
 cipium est. The principal part of everything 
 is the beginning. Dig. 1. 2. 1; 10 Coke, 49. 
 
 CUL DE SAC (Pr. the bottom of a sack). 
 A blind alley; a street which is open at one 
 end only. 
 
 CULAGIUM. The laying up a ship in a 
 dock for repair. Cowell; Blount. 
 
 « 
 
 CULPA. A fault; negligence. Jones, 
 Bailm. 8. 
 
 Culpa is to be distinguished from dolus, 
 the latter being a trick for the purpose of 
 deception, the former merely negligence. 
 There are three degrees of culpa: Lata cul- 
 pa, gross fault or neglect; levis culpa, ordi- 
 nary fault or neglect; levissima culpa, slight 
 fault or neglect; and the definitions of these 
 degrees are precisely the same as those in 
 our law. Story, Bailm. § 18. 
 
 CULPA CARET, QUI SCIT, SED PROHI- 
 bere non potest. He is clear of blame who 
 knows, but cannot prevent. Dig. 50. 17. 50. 
 
 CULPA EST IMMISCERE SE REI AD SE 
 non pertinent!. It is a fault to meddle with 
 v/hat does not belong to or does not concern 
 you. Dig. 50. 17. 36; Coke, 2d Inst. 208. 
 
 CULPA LATA DOLO AEQUIPARATUR. 
 
 Gross neglect is equivalent to fraud. Dig. 
 11. 6. 1. 
 
 CULPA TENET SUOS AUCTORES. A 
 
 fault binds its own authors. Ersk. Inst. bk. 
 4, tit. 1, § 14; 6 Bell, App. Cas. 539. 
 
 CULPABILIS (Lat.) Guilty. 
 
 CULPAE POENA PAR ESTO. Let the 
 
 punishment be proportioned to the crime. 
 Branch, Princ. 
 
 ■ CULPRIT. A person who is guilty, or sup- 
 posed to be guilty, of a crime. 
 
 When a prisoner is arraigned, and he 
 pleads not guilty, in English practice, the 
 clerk, who arraigns him on behalf of the 
 crown, replies that the prisoner is guilty, 
 and that he is ready to prove the accusation. 
 This is done by writing two monosyllabic 
 abbreviations, — cul. prit. 4 Bl. Comm. 339; 
 1 Chit. Crim. Law, 416. See Christian's note 
 to Bl. Comm. cited. The technical meaning 
 has disappeared, and the compound is used 
 in the popular sense as above given. 
 
 CULRACH. In old Scotch law. A species 
 of pledge or cautioner (Scottice, back iorgh), 
 used in cases of the replevin of persons from 
 one man's court to another's. Skene de 
 Verb. Sign. 
 
 CULTURA. Aparcelof arable land. Blount. 
 Called a "wrong." 
 
 CULVERTAGE. A base kind of slavery; 
 the confiscation or forfeiture, which takes 
 place when a lord seizes his tenant's estate. 
 Blount; Du Cange. 
 
 CUM ACTIO FUERIT MERE CRIMINAL- 
 is, institui poterit ab initio criminaliter vel 
 civiliter. When an action is merely crim- 
 inal, it can be instituted from the beginning, 
 either criminally or civilly. Bracton, 102. 
 
 CUM ADSUNT TESTIMONIA RERUM, 
 quid opus est verbis? When the proofs of 
 facts are present, what need is there of 
 words? 2 Bulst. 53. 
 
 CUM ALIQUIS RENUNCIAVERIT SOCIE- 
 tati, solvitur societas. When any partner re- 
 nounces the partnership, the partnership is 
 dissolved. Tray. Lat. Max. 118. 
 
 CUM CONFITENTE SPONTE MITIUS 
 est agendum. One making a voluntary con- 
 fession is to be dealt with more mercifully. 
 Coke, 4th Inst. 66; Branch, Princ. 
 
 CUM DE LUCRO DUORUM QUAERITUR 
 melior est causa possidentis. When the ques- 
 tion of gain lies between two, the cause of 
 the possessor Is the better. Dig. 50. 17. 126. 
 
 CUM DUO INTER SE PUGNANTIA RE- 
 periuntur in testamento, ultimum ratum est. 
 When two things repugnant to each other 
 are found in a will, the last is to be con- 
 firmed. Co. Litt. 112; Shep. Touch. 451; 
 Broom. T^eg. Max. (3d London Ed.) 518; 1 
 Jarm. Wills (2d Ed.) 394; 16 Johns. (N. Y.) 
 146; 1 Phil. 536. 
 
 CUM DUO JURA CONCURRUNT IN 
 una persona aequum est ac si essent in duo- 
 bus. When two rights meet in one person, 
 it is the same as if they were in two per- 
 sons. 
 
CUM IN CORPORE, ETC. 
 
 (235) 
 
 CURATORSHIP 
 
 CUM IN CORPORE DISSENTITUR, AP- 
 paret nullam esse acceptionem. When there 
 is a disagreement In the substance, it ap- 
 pears that there is no acceptance. 12 Allen 
 (Mass.) 44. 
 
 CUM IN TESTAMENTO AMBIGUE AUT 
 etiam perperam scriptum, est benigne inter- 
 pretari, et secundum id quod credibile est 
 cogltatum credendum est. When an ambigu- 
 ous or even an erroneous expression occurs 
 in a will, it should be construed liberally, 
 and li) accordance with the testator's prob- 
 able meaning. Dig. 34. 5. 24; Broom, Leg. 
 Max. (3d London Ed.) 506; 3 Poth. ad 
 Pand. (Ed. 1819) 46. 
 
 CUM LEGITIMAE NUPTIAE FACTAE 
 sunt, patrem liber! sequuntur. Children born 
 under a legitimate marriage follow the con- 
 dition of the father. 
 
 CUM ONERE (Lat.) With the burden; 
 subject to the incumbrance; subject to the 
 charge. A purchaser with knowledge of an 
 incumbrance takes the property cum onere. 
 Co. Litt. 231a; 7 East, 164; Paley, Ag. 175. 
 
 CUM PAR DELICTUM EST DUORUM, 
 semper oneratur petitor, et melior habetur 
 possessoris causa. Where two parties are 
 equally in fault, the claimant always is at 
 a disadvantage, and the party in possession 
 has the better cause. Dig. 50. 17. 154; 
 Broom, Leg. Max. (3d London Ed.) 644. 
 
 CUM QUOD AGO NON VALET UT AGO, 
 valeat quantum valere potest. When that 
 which I do is of no effect as I do it, it shall 
 have as much effect as it can, i. e., in some 
 other way. 4 Kent, Comm. 493. 
 
 CUM TESTAMENTO ANNEXO (Law Lat.) 
 With the will annexed. A term applied to 
 administration granted where a testator 
 makes an Incomplete will, without naming 
 any executors, or where he names incapable 
 persons, or where the executors named re- 
 fuse to act. 2 Bl. Comm. 503, 504. 
 
 CUMULATIVE EVIDENCE. That which 
 goes to prove what has already been estab- 
 lished by other evidence. 
 
 CUMULATIVE LEGACY. See "Legacy." 
 
 CUMULATIVE REMEDY. A second or 
 additional mode of procedure in addition to 
 one already available, as opposed to alter- 
 native remedy. Wharton. 
 
 CUMULATIVE SENTENCES. Sentences 
 on a trial and conviction of several crimes, 
 each sentence being in addition to the oth- 
 ers, and not for the same fine or concurrent 
 terms of imprisonment. See "Concurrent 
 Sentences." 
 
 CUMULATIVE VOTING. That by which 
 the voter concentrates his ballots on one or 
 more candidates, instead of voting for the 
 full number to iDe elected. Thus, a stock- 
 , holder holding fifty shares may, under such 
 a system, if five directors are to be chosen, 
 cast two hundred and fifty votes for one, or 
 
 one hundred and twenty-five for each of two. 
 Instead of voting fifty votes for each of Ave. 
 
 CUNEATOR. A coiner. Du Cange. Cu- 
 neare, to coin; cuneus, the die with which 
 to coin; cuneata, coined. Du Cange; Spel- 
 man. 
 
 CUR. A common abbreviation of curia. 1 
 Inst. Cler. 9. 
 
 CURA (Lat.) Care; charge; oversight; 
 guardianship. 
 
 In the Civil Law. A species of guard- 
 ianship which commenced at the age of pu- 
 berty, when the guardianship called "tutela" 
 expired, and continued to the completion of 
 the twenty-fifth year. Inst. 1. 23. pr.; Id. 
 1. 25. pr.; Halifax, Civ. Law, bk. 1, c. 9. 
 
 CURAGULOS. One who takes care of a 
 thing. 
 
 CURATE. One who represents the incum- 
 bent of a church, parson, or vicar, and takes 
 care of the church, and performs divine 
 services in his stead. An officiating tem- 
 porary minister in the English church, who 
 represents the proper incumbent. Burn, 
 Ecc. Law; 1 Bl. Comm. 393. 
 
 CU RATIO (Lat.) In civil law. The pow- 
 er or duty of managing the property of him 
 who, either on account of infancy or some 
 defect of mind or body, cannot manage his 
 own affairs; the duty of a curator or guardi- 
 an. Calv. Lex. 
 
 CURATOR. One who has been legally ap- 
 pointed to take care of the interests of one 
 who, on account of his youth, or defect of 
 his understanding, or for some other cause, 
 is unable to attend to them himself; a 
 guardian. 
 
 There are curators ad bona (of property), 
 who administer the estate of a minor, take 
 care of his person, and intervene in all his 
 contracts; curators ad litem (of suits), who 
 assist the minor in courts of justice, and 
 act as curators ad bona in cases where the 
 interests of the curator are opposed to the 
 interests of the minor. Civ. Code La. arts. 
 357-366. There are also curators of insane 
 persons (Id. art. 31), and of vacant succes- 
 sions and absent heirs (Id. arts. 1105, 1125). 
 
 CURATOR AD HOC. A guardian for this 
 special purpose; as one appointed to rep- 
 resent an absentee. 
 
 CURATOR AD LITEM (Lat.) Guardian 
 for the suit. In English law, the correspond- 
 ing phrase is "guardian ad litem." 
 
 CURATOR BONIS (Lat.) 
 
 In Civil Law. A guardian to take care 
 
 of the property. Calv. Lex. 
 
 In Scotch Law. A guardian for mi- 
 nors, lunatics, etc. Halk. Tech. Terms; 
 Bell, Diet. 
 
 CURATORSHIP. The office of a curator. 
 
 Curatorship differs from tutorship (g. v.) 
 in this, that the latter is instituted for the 
 protection of property in the first place, 
 and, secondly, of the person; while the for- 
 
CURATRIX 
 
 (236) 
 
 CURIA LEGITIME, ETC. 
 
 mer is intended to protect, first, the person, 
 and, secondly, the property. 1 Lee. Elm. 241. 
 
 CURATRIX. A woman who has been ap- 
 pointed to the office of curator. 
 
 CURATUS NON HABET TITULUM. A 
 curate has no title (to tithes). 3 Bulst. 
 310. 
 
 CURE BY VERDICT. See "Aider by Ver- 
 dict." 
 
 CURE OF SOULS. The ordinary duties 
 of an officiating clergyman. 
 
 "Curate" more properly denotes the in- 
 cumbent in general who hath the cure of 
 souls, but more frequently it is understood 
 to signify a clerk not instituted to the cure 
 of souls, but exercising the spiritual office 
 in a parish under the rector or vicar. 2 
 Burn, Ecc. Law, 54; 1 H. BI. 424. 
 
 CURFEW (French, couvre, to cover, and 
 feu, fire). This is generally supposed to be 
 an institution of William the Conqueror, 
 who required, by ringing of the bell at eight 
 o'clock in the evening, that all lights and 
 fires in dwellings should then be extin- 
 guished. But the custom is evidently older 
 than the Norman; for we find an order of 
 King Alfred that the inhabitants of Oxford 
 should, at the ringing of that bell, cover up 
 their fires and go to bed. And there is evi- 
 dence that the same practice prevailed at 
 this period in France, Normandy, Spain, 
 and probably in most of the ofher countries 
 of Europe. Henry, Hist. Brit. vol. 3, 567. 
 It was doubtless intended as a precaution 
 against fires, which were very frequent and 
 destructive when most houses were built of 
 wood. 
 
 That it was not intended as a badge of in- 
 famy is evident from the fact that the law 
 was of equal obligation upon the nobles of 
 the court and upon the native-born serfs. 
 And yet we find the name "curfew law" em- 
 ployed as a by-word denoting the most odi- 
 ous tyranny. 
 
 It appears to have met with so much op- 
 position that in 1103 we find Henry I. re- 
 pealing the enactment of his father on the 
 subject; and Blackstone says that, though 
 It is mentioned a century afterwards, it is 
 rather spoken of as a time of night, than 
 as a still subsisting custom. Shakespeare 
 frequently refers to it in the same sense. 
 This practice is still pursued, in many parts 
 of England and in this country, as a very 
 convenient mode of apprising people of the 
 time of night. 
 
 CURIA. 
 
 In Roman Law. One of the divisions 
 
 of the Roman people. The Roman people 
 were divided by Romulus into three tribes 
 and thirty curiae. The members of each 
 curia were united by the tie of common re- 
 ligious rites, and also by certain common 
 political and civil powers. Dion. Hal. lib. 2, 
 p. 82; Liv. lib. 1, c. 13; Plut. in Romulo, 
 p, 30; Festus Brisson, in Verb. 
 
 In later times the word signified the sen- 
 ate or aristocratic body of the provincial 
 
 cities of the empire. Festus Brisson, in 
 Verb.; Ort. Histoire, No. 25, 408; Ort. Inst. 
 No. 125. 
 
 The senate house at Rome; the senate 
 house of a provincial city. Code, 10. 31. 2; 
 Spelman. 
 
 In English Law. The king's court; 
 
 the palace; the royal household. The res- 
 idence of a noble; a manor or chief manse; 
 the hall of a manor. Spelman. 
 
 A court of justice, whether of general or 
 special jurisdiction. Fleta, lib. 2, 1. 72, § 1; 
 Spelman; Co well; 3 Bl. Comm. c. iv. See 
 "Court." 
 
 A courtyard or inclosed piece of ground; 
 a close. St. Edw. Conf. 1, 6; Bracton, 76, 
 222b, 335b, 356b, 358; Spelman. See "Curia 
 Claudenda." 
 
 The civil or secular power, as distin- 
 guished from the church. Spelman. 
 
 CURIA ADVISARE VULT (Lat.) The 
 court wishes to consider the matter. 
 
 In Practice. The entry formerly made 
 
 upon the record to vindicate the continuance 
 of a cause until a final judgment should be 
 rendered. 
 
 It is commonly abbreviated thus: Cur. 
 adv. vult. Thus, from amongst many ex- 
 amples, in 2 Barn. & C. 172, after the report 
 of the argument, we find "cur. adv. vult.," 
 then, "on a subsequent day judgment was 
 delivered," etc. 
 
 CURIA BARONIS (or BARONUM). In old 
 English law. A court baron. Fleta, lib. 2, 
 c. 53. 
 
 CURIA CANCELLARIAE OFFICINA JUS- 
 titiae. The court of chancery is the work- 
 shop of justice. 2 Inst. 552. 
 
 CURIA CHRISTIANITATIS. A court Chris- 
 tian. 
 
 CURIA CLAUDENDA (Lat.) In practice. 
 A writ which anciently lay to compel a 
 party to inclose his land. Fitzh. Nat. Brev. 
 297. 
 
 CURIA COMITATUS (Law Lat.) In old 
 English law. The court of the county; the 
 county court, or court of the shire (Saxon, 
 scyregemot) , in the Saxon times. See 
 "County Court." 
 
 CURIA CURSUS AQUAE. A court held 
 by the lord of the manor of Gravesend for 
 the better management of barges and boats 
 plying on the river Thames between Graves- 
 end and Windsor, and also at Gravesend 
 bridge, etc. 2 Geo. II. c. 26. 
 
 CURIA DOMINI. In old English law. The 
 lord's court, house, or hall, where all the 
 tenants met at the time of keeping court. 
 Cowell. 
 
 CURIA LEGITIME AFFIRMATA (Law- 
 Lat.) In old Scotch practice. Court law- 
 fully opened, or opened in due form. A 
 formal phrase used in the captions of rec- 
 ords. 3 How. St. Tr. 654; 1 Pltc. Crim. Tr. 
 pt. 1, p. 143. 
 
CURIA MAGNA 
 
 (237) 
 
 CURTILAGE 
 
 CURIA MAGNA. In old English law. The 
 great court; one of the ancient names of 
 parliament. 1 Bl. Comm. 148. 
 
 The king's court, or aula regis. Crahb, 
 Hist. Eng. Law, 144. 
 
 CURIA MAJOR IS. In old English law. 
 The mayor's court. Calth. 144. 
 
 CURIA MILITUM. A court so called, an- 
 ciently held at Carisbrook Castle, in the Isle 
 of Wight. Cowell. 
 
 CURIA PALATII. In English law. The 
 palace court. 
 
 CURIA PARLIAMENTI SUIS PROPRMS 
 legibus subslstit. The court of parliament is 
 governed by its own peculiar laws. Coke, 
 4th Inst. 50; Broom, Leg. Max. (3d London 
 Ed.) 82; 12 C. B. 413, 414. 
 
 CURIA PEDIS PULVERIZATI. In old 
 
 English law. The court of piedpoudre or 
 piepoudres (q. v.) 3 Bl. Comm. 32. 
 
 CURIA PENTICIARUM. A court held by 
 the sheriff of Chester, in a place there 
 called the "Pendlce." Cowell. 
 
 CURIA PERSON AE. In old records. A 
 parsonage house, or manse. Kennett, Par. 
 Ant. 205; Cowell. 
 
 CURIA REGIS (Lat. the king's court). A 
 term applied to the aula regis, the bancus 
 or communis bancus, and the iter or eyre, 
 as being courts of the king, but especially 
 to the aula regis (q. v.) 
 
 CURIALTY. In Scotch law. Curtesy. 
 
 CURIOSA ET CAPTIOSA INTERPRETA- 
 tio in lege reprobatur. A curious and cap- 
 tious interpretation in the law is to be re- 
 proved. 1 Bulst. 6. 
 
 CURNOCK. In old English law. A meas- 
 ure containing four bushels or half a quar- 
 ter of corn. Cowell; Blount. 
 
 CURRENCY. Current money (<?. v.) 
 
 CURRENT. Present; now in progress or 
 transit. 
 
 CURRENT MONEY. Lawful money ; what- 
 ever passes current for money, whether coin 
 or paper money. 27 111. 501; 9 Mo. 701; 8 
 Minn. 329. 
 
 In commercial use, "currency" is confined 
 to paper money, as distinguished from "spe- 
 cie" or coin money. 14 Mich. 379; 12 Wall. 
 (U. S.) 657. 
 
 CURRIT QUATUOR PEDIBUS (Law Lat. 
 it runs upon four feet; or, as sometimes 
 expressed, it runs upon all fours). A phrase 
 used in arguments to signify the entire and 
 exact application of a case quoted. "It 
 does not follow that they run quatuor pedi- 
 bus." 1 W. Bl. 145. 
 
 CURRIT TEMPUS CONTRA DESIDES ET 
 sul juris contemptores. Time runs against 
 the slothful and those who neglect their 
 rights. Bracton, fols. 100b, 101; Fleta, lib. 
 4, c. 5, § 12. 
 
 CURSITOR. A junior clerk in the court 
 of chancery, whose business it formerly was 
 to write out from the register those forms of 
 writs which issued of course. Such writs 
 were called writs de cursu (of course), 
 whence the name, which had been acquired 
 as early as the reign of Edward III. The 
 body of cursitors constituted a corporation, 
 each clerk having a certain number of coun- 
 ties assigned to him. Coke, 2d Inst. 670; 1 
 Spence, Eq. Jur. 238. 
 
 CURSITOR BARON. An officer of the 
 court of exchequer, who is appointed by 
 patent under the great seal to be one of the 
 barons of the exchequer. The office is abol- 
 ished by St. 19 & 20 Vict. c. 86. Wharton. 
 
 CURSOR. An inferior officer of the papal 
 court. 
 
 CURSUS CURIAE EST LEX CURIAE. 
 
 The practice of the court is the law of the 
 court. 3 Bulst. 53; Broom, Leg. Max. (3d 
 London Ed.) 126; 12 C. B. 414; 17 Q. B. 86; 
 8 Exch. 199; 2 Maule & S. 25; 15 East, 226; 
 12 Mees. & W. 7; 4 Mylne & C. 635; 3 Scott, 
 N. R. 599. 
 
 CURTESY. The estate to which, by com- 
 mon law, a man is entitled, on the death of 
 his wife, in the lands or tenements of which 
 she was seised in possession in fee simple 
 or in tail during her coverture, provided 
 they have had lawful issue born alive which 
 might have been capable of inheriting the 
 estate. 
 
 It is a freehold estate for the term of his 
 natural life. 1 Washb. Real. Prop. 127. In 
 the common law, the word is used in the 
 phrases "tenant by curtesy," or "estate by 
 curtesy," but seldom alone; while in Scot- 
 land of itself it denotes the estate. See 
 "Estates." 
 
 Some considerable question has been made 
 as to the derivation both of the custom and 
 its name. It seems pretty clear, however, 
 that the term is derived from curtis. a 
 court, and that the custom, in England at 
 least, is of English origin, though a similar 
 custom existed in Normandy, and still ex- 
 ists in Scotland. 1 Washb. Real Prop. 128, 
 note; Wright, Ten. 192; Co. Litt. 30a; 2 Bl. 
 Comm. 126; Ersk. Inst. 380; Grand Cout. de 
 Normandie, c. 119. 
 
 CURTILAGE. The inclosed space imme- 
 diately surrounding a dwelling house, con- 
 tained within the same inclosure. 
 
 It is defined by Blount as a yard, back- 
 side, or piece of ground near a dwelling 
 house, in which they sow beans, etc., yet 
 distinct from the garden. Blount; Spelman. 
 By others it is said to be a waste piece of 
 ground so situated. Cowell. 
 
 It has recently been defined as "a fence 
 or inclosure of a small piece of land around 
 a dwelling house, usually Including the 
 buildings occupied in connection with the 
 dwelling house, the inclosure consisting ei- 
 ther of a separate fence, or partly of a fence 
 and partly of the exterior of buildings so 
 within this inclosure." 10 Cush. (Mass ) 
 480. 
 
 The term is used in determining whether 
 
CURTILES TERRAE 
 
 (238) 
 
 CUSTOMS 
 
 the offense of breaking into a barn or ware- 
 bouse is burglary. See 4 Bl. Comm. 224; 1 
 Hale, P. C. 558; 2 Russ. Crimes, 13; 1 
 Russ. Crimes, 790; Russ. & R. 289; 1 Car. & 
 K. 84; 10 Cush. (Mass.) 480. 
 
 In Michigan the meaning of curtilage has 
 been extended to include more than an in- 
 closure near the house. 2 Mich. 250. 
 
 CURTILESTERRAE. In old English law. 
 Court lands. Cowell. See "Court Lands." 
 
 CURTILLUM. The area or space within 
 the inclosure of a dwelling bouse. Spelman. 
 
 CURTIS. The area about a building; a 
 garden; a hut or farmer's house; a farmer's 
 house with the land enrolled with it. 
 
 A village or a walled town containing a 
 small number of houses. 
 
 The residence of a nobleman; a hall or pal- 
 ace. 
 
 A court; a tribunal of justice. 1 Wasbb. 
 Real Prop. 120; Spelman; 3 Bl. Comm. 320. 
 
 The similarity of the derivative meaning 
 of this word and of aula is quite noticeable, 
 both coming to denote the court itself, from 
 denoting the place where the court was held. 
 
 CUSTA, or CUSTANTIA. Costs. 
 
 CUSTODES. Keepers; guardians; con- 
 servators. 
 
 Gustodes pacts, guardians of the peace. 1 
 Bl. Comm. 349. 
 
 Gustodes liiertatis Angliae auctoritate par- 
 liamenti, guardians of the liberty of Eng- 
 land by authority of parliament. The style 
 in which writs and all judicial process ran 
 during the grand rebellion, from the death 
 of Charles I. till Cromwell was declared pro- 
 tector. Jacob. . 
 
 CUSTODIA LEG IS. In custody of the law. 
 
 CUSTODIAM LEASE. In English law. A 
 grant from the crown under the exchequer 
 seal, by which the custody of lands, etc., 
 seized in the king's hands, is demised or 
 committed to some person as custodee or 
 lessee thereof. Wharton. 
 
 CUSTODY. The detainer of a person by 
 virtue of a lawful authority. 3 Chit. Prac. 
 355. 
 
 The care and possession of a thing. 
 
 CUSTOM. Such a usage as by common 
 coneent and uniform practice has become 
 the law of the place, or of the subject-matter, 
 to which it relates. 
 
 It differs from prescription, which is per- 
 sonal, and is annexed to the person of the 
 owner of a particular estate; while the oth- 
 er is local, and relates to a particular dis- 
 trict. An instance of the latter occurs where 
 the question is upon the manner of conduct- 
 ing a particular branch of trade at a cer- 
 tain place; of the former, where a certain 
 person and his ancestors, or those whose 
 estates he has, have been entitled to a cer- 
 tain advantage or privilege, as to have com- 
 mon of pasture in a certain close, or the 
 like. 2 Bl. Comm. 263. 
 
 Oeneral customs are such as constitute a 
 
 part of the common law, and extend to the 
 whole country. 
 
 Particular customs are those which are 
 confined to a particular district. 
 
 CUSTOM HOUSE. A place appointed by 
 law, in ports of entry, where importers of 
 goods, wares, and merchandise are bound to 
 enter the same, in order to pay or secure 
 the duties or customs due to the govern- 
 ment. 
 
 CUSTOM OF MERCHANTS. A system of 
 customs acknowledged and taken notice of 
 by all nations, and which are therefore a 
 part of the general law of . the land. See 
 "Law Merchant;" 1 Chit. Bl. Comm. 76, 
 note 9. 
 
 CUSTOMARY COURT BARON. A court 
 baron, at which copyholders might transfer 
 their estates, and where other matters re- 
 lating to their tenures were transacted. 3 
 Bl. Comm. 33. 
 
 This court was held on the manor, the 
 lord or his steward sitting as judge. 1 
 Crabb, Real Prop. § 633. It might be held 
 anywhere in the manor, at the pleasure of 
 the judge, unless there was a custom to the 
 contrary. It might exist at the same time 
 with a court baron proper, or even where 
 there were no freeholders in the manor. 
 
 CUSTOMARY ESTATES. Estates which 
 owe their origin and existence to the cus- 
 tom of the manor in which they are held. 2. 
 Bl. Comm. 149. 
 
 CUSTOMARY FREEHOLD. A class of 
 freeholds held according to the custom of 
 the manor, derived from the ancient tenure 
 in villein socage. Holders of such an estate 
 have a freehold interest, though it is not 
 held by a freehold tenure. 2 Bl. Comm. 149. 
 
 CUSTOMARY SERVICE. A service due 
 by ancient custom or prescription only. 
 Such is, for example, the service of doing 
 suit at another's mill, where the persons 
 resident in a particular place, by usage, time 
 out of mind have been accustomed to grind 
 corn at a particular mill. 3 Bl. Comm. 234. 
 
 CUSTOMARY TENANTS (Law Lat. cus- 
 tumarii tenentes). In English law. Such 
 tenants as hold by the custom of the manor, 
 as their special evidence. Termes de la 
 Ley. Copyholders belong to this class. 2 
 Bl. Comm. 147, 148. See "Copyholder." 
 
 CUSTOMESERRA PRISE STRICTE. Cus- 
 tom must be taken strictly. Jenk. Cent. Cas. 
 83. 
 
 CUSTOMS. This term is usually applied 
 to those taxes which are payable upon goods 
 and merchandise imported or exported. 
 Story, Const. § 949; Bac. Abr. "Smuggling^' 
 
 The duties, toll, tribute, or tariff payable 
 upon merchandise exported or Imported. 
 These are called customs from having been 
 paid from time immemorial. Expressed in 
 law Latin by custuma, as distinguished from 
 consuetudines, which are usages merely. 1 
 Sharswood, Bl. Comm. 314. 
 
CUSTOMS AND SERVICES 
 
 (239) 
 
 CY PRES 
 
 CUSTOMS AND SERVICES (bawLat. con- 
 suetvdines et servitia). In old English law. 
 Services which the tenants of lands, under 
 the feudal law, owed to their lords, and 
 which, if withheld, the lord might resort to 
 the writ of customs and services (breve de 
 consuetudinibus et servitiis) to compel them. 
 Tomlin. See "De Consuetudinibus et Ser- 
 vitiis." 
 
 CUSTOMS CONSOLIDATION ACT. St. 16 
 & 17 Vict. c. 107, which has been frequently- 
 amended. See 2 Steph. Comm. 563. 
 
 CUSTOMS OF LONDON. Particular reg- 
 ulations in force within the city of London, 
 in regard to trade, apprentices, widows anil 
 orphans, etc., which are recognized as form- 
 ing part of the English common law. 1 Bl. 
 Comm. 75. 
 
 CUSTOS. A custodian, guard, keeper, or 
 warden; a magistrate. 
 
 CUSTOS BREVIUM (Lat.) Keeper of 
 writs. An officer of the court of common 
 pleas, whose duty it is to receive and keep 
 all the writs returnable to that court, and 
 put them upon file, and also to receive of the 
 prothonotaries all records of nisi prius, 
 called posteas. Blount. An officer in the 
 king's bench, having similar duties. Cow- 
 ell; Termes de la Ley. The office is now 
 abolished. 
 
 CUSTOS FERARUM. A gamekeeper. 
 Towns. PI. 265. 
 
 CUSTOS HORREI REGII. Protector of 
 the royal granary. 2 Bl. Comm. 394. 
 
 CUSTOS MARIS (Lat.) Warden or guard- 
 ian of the seas. Among the Saxons, an ad- 
 miral. Spelman, "Admiralius." 
 
 CUSTOS MORUM. The guardian of morals. 
 The court of queen's bench has been so 
 styled. 4 Steph. Comm. 377. 
 
 CUSTOS PLACITORUM CORONAE (Lat.) 
 Keeper of the pleas of the crown (the crim- 
 inal records). Said by Blount and Cowell to 
 be the same as the custos rotulorum. 
 
 CUSTOS ROTULORUM (Lat.) Keeper of 
 the rolls. The principal justice of the peace 
 of a county, who is the keeper of the rec- 
 ords of the county. 1 Bl. Comm. 349. He 
 is always a justice of the peace and quorum, 
 is the chief civil officer of the king in the 
 county, and is nominated under the king's 
 sign manual. He is rather to be considered 
 a minister or officer than a judge. Blount; 
 Cowell; Lambard, Eiren. lib. 4, c. 3, p. 373; 
 4 Bl. Comm. 272; 3 Steph. Comm. 37. 
 
 CUSTOS SPIRITUALIUM. In English ec- 
 clesiastical law. Keeper of the spirituali- 
 ties; he who exercises the spiritual jurisdic- 
 tion of a diocese during the vacancy of the 
 see. Cowell. 
 
 CUSTOS STATUM HAEREDIS IN CUS- 
 todla existentis meliorem non deteriorem, 
 facere potest. A guardian can make the es- 
 
 tate of an heir living under his guardian- 
 ship better, not worse. 7 Coke. 7. 
 
 CUSTOS TEMPORALIUM (Law Lat.) In 
 English ecclesiastical law. Keeper of the 
 temporalities. He to whose custody a va- 
 cant see or abbey was committed by the 
 king, ^s supreme lord; who, as a steward 
 of the goods and profits, was to give account 
 to the escheator, and he into the exchequer. 
 Cowell. 
 
 CUSTOS TERRAE. In old English law. 
 Guardian, warden, or keeper of the land. 
 Mag. Chart, c. 4. 
 
 CUSTUMA ANTIQUA SIVE MAGNA (Lat. 
 ancient or great duties). The duties on 
 wool, sheepskin, or wool pelts and leather 
 exported were so called, and were payable 
 by every merchant stranger as well as na- 
 tive, with the exception that merchant 
 strangers paid one-half as much again as 
 natives. 1 Sharswood, Bl. Comm. 314. 
 
 CUSTUMA PARVA ET NOVA (Lat.) An 
 impost of three pence in the pound sterling 
 on all commodities exported or imported by 
 merchant strangers. Called at first the "Al- 
 ien's duty," and first granted by St. 31 Edw. 
 I. Maddox, Hist. Exch. 526, 532; 1 Shars- 
 wood, Bl. Comm. 314. 
 
 CUTH, or COUTH (Saxon). Known; know- 
 ing. Vncuth. unknown. See "Couthut- 
 laugh;" "Uncuth." 
 
 CUTH RED. A knowing or skillful coun- 
 sellor. 
 
 CUTPURSE (Law Lat. bursarum scissor; 
 Law Pr. cynsour de burse). In old criminal 
 law. An offender answering to the modern 
 pickpocket. Pleta, lib. 1, c. 36, § 11. 
 
 CUTTER OF THE TALLIES. In old Eng- 
 lish law. An officer in the exchequer, to 
 whom it belonged to provide wood for the 
 tallies, and to cut the sum paid upon them, 
 etc. 
 
 CY PRES (Law Fr. as near as). The rule 
 of construction applied to a will, but not to 
 a deed, by which, where the testator evinces 
 a particular and a general intention, and 
 the particular intention cannot take effect, 
 the words shall be so construed as to give 
 effect to the general intention. 3 Hare, 12; 
 2 Term R. 254: 2 Bligh, 49; Sugd. Powers, 
 60; 1 Spence, Eq. Jur. 532. 
 
 The principle is applied to sustain wills 
 in which perpetuities are attempted to be 
 created, so that, if it can possibly be done, 
 the devise is not regarded as utterly void, 
 but is expounded in such a manner as to 
 carry the testator's Intention into effect as 
 far as the law respecting perpetuities will 
 allow. This is called a construction cy pres. 
 Its rules are vague, and depend chiefly upon 
 judicial discretion applied to the particular 
 case. Sedgw. Const. Law, 265; Story, Eq. 
 Jur. § 1169 et seq. 
 
 It is also applied to sustain devises and 
 bequests for charity. Where there is a defi- 
 nite charitable purpose which cannot take 
 
CYNEBOTE 
 
 (240) 
 
 CYROGRAPHUM 
 
 place, the courts will not substitute another, 
 as they once did; but if charity be the gen- 
 eral substantial intention, though the mode 
 provided for its execution fails, the Eng- 
 lish chancery will find some means of ef- 
 fectuating it, even by applying the fund to 
 a different purpose from that contemplated 
 by the testator, provided only it be charita- 
 ble. Boyle, Char. 147, 155; Shelf. Mortm. 
 601; 3 Brown, Ch. 379; 4 Ves. 14; 7 Ves. 
 69, 82. 
 
 The doctrine is denied in Alabama (19 
 Ala. 814), Connecticut (22 Conn. 31), Dela- 
 ware (2 Har. 18), Indiana (35 Ind. 198), 
 Iowa (2 Iowa, 315), Maryland (5 Har. & J. 
 392), New York (23 N. Y. 298), North Caro- 
 lina (37 N. C. 255), and Wisconsin (40 Wis. 
 276, 75 Wis. 431) ; but is in force in Califor- 
 nia (58 Cal. 457), Illinois (16 111. 225), Mas- 
 sachusetts (96 Mass. 539), Missouri (94 Mo. 
 459), Pennsylvania (51 Pa. St. 196), and 
 Rhode Island (14 R. T. 412). 
 
 CYNEBOTE (Saxon, from cyii, kin, or re- 
 lationship, and bot, a. satisfaction). In Sax- 
 
 on law. A pecuniary composition for kill- 
 ing a relative; the same with oenegild (q. 
 V.) Spelman, voc. "Cenegild." 
 
 CYPHONISM. A punishment used by the 
 ancients, which some suppose to have been 
 the smearing of the body with honey, and 
 exposing the person to flies, wasps, etc. But 
 the author of the notes on Hesychius says 
 it is derived from the Greek to bend or 
 stoop, and signifies that kind of punishment 
 still used by the Chinese, called by Sir 
 George Staunton "the wooden collar," by 
 which the neck of the malefactor is bent or 
 weighed down. Bnc. Lond.; Wharton. 
 
 CYRCE (Saxon). A church. 
 
 CYRICBRYCE. In Saxon law. A break- 
 ing into a church. Blount. 
 
 CYROGRAPHARIUS. In old "English law. 
 A cyrographer; an officer of the common 
 pleas court. 
 
 CYROGRAPHUM. A cirograph. 
 
D B E 
 
 (241) 
 
 DAMAIOUSE 
 
 r> 
 
 D. B. E. De Jjeiie esse (g. v.) 
 
 D. B. N. De IjoiUs non, a species of admin- 
 istration. 
 
 D. E. R. I. C. De ca re ita consiierc, con- 
 cerning this matter have decreed. A phrase 
 used in the record of decrees of the Roman 
 senate. 
 
 D. S. B. Debitum sans (or sine) hreie. 
 
 DA TUA DUM TUA SUNT, POST MOR- 
 tem tunc tua non sunt. Give the things 
 which are yours whilst they are yours; after 
 death then they are not yours. 3 Bulst. 18. 
 
 DABIS? DABO (Lat. will you give? I will 
 give). In the Roman law. One of the forms 
 of making a verbal stipulation. Inst. 3. 15. 
 1; Bracton, fol. 15b. 
 
 DACION. In Spanish law. The real and 
 effective delivery of an object in the execu- 
 tion of a contract. 
 
 DAILY. Every day. A newspaper pub- 
 lished six days in each week, whether Sun- 
 day or Monday be the day omitted, is held 
 to be a "daily newspaper." 45 Minn. 27. 
 
 DAKER, or DIKER. Ten hides. Blount. 
 
 DALE and SALE. Fictitious names of 
 places, used in the English books as exam- 
 ples. Perk. c. 2, § 152. "The manor of Dale 
 and the manor of Sale, lying both in Vale." 
 Bac. Abr. "Case of Revocation of Uses;" 
 Perk. c. 3, § 230. 
 
 DALUS, DAILUS, or DAI LI A. A certain 
 measure of land; such narrow slips of pas- 
 ture as are left between the plowed furrows 
 in arable land. Cowell. 
 
 DAM. A construction of wood, stone, or 
 other materials, made across a stream of 
 water for the purpose of confining it; a mole. 
 
 DAMAGE. The loss caused by one person 
 to another, or to his property, either with 
 the design of injuring him, or with negli- 
 gence and carelessness, or by inevitable ac- 
 cident. See "Damages." 
 
 DAMAGE CLEER. The tenth part in the 
 common pleas, and the twentieth part in the 
 king's bench and exchequer courts, of all 
 damages beyond a certain sum, which was 
 to be paid the prothonotary or chief officer 
 of the court in which they were recovered 
 before execution could be taken out. At 
 first it was a gratuity, and of uncertain 
 proportions. Abolished by St. 17 Car. II. c. 
 6. Cowell; Termes de la Ley. 
 
 DAMAGE FEASANT (Fr. faisant dommage, 
 doing damage). A term usually applied to 
 the injury which animals belonging to one 
 person do upon the land of another by feed- 
 
 ing there, and treading down his grass, corn, 
 or other production of the earth. 3 Bl. 
 Comm. 6; Co. Lift. 142, 161. 
 
 DAMAGED GOODS. In maritime law. 
 Goods, subject to duties, which have re- 
 ceived some injury either in the voyage 
 home, or while bonded in warehouse. 
 
 DAMAGES. The indemnity recoverable 
 by a person who has sustained an injury, 
 either in his person, property, or relative 
 rights, through the act or default of an- 
 other. 
 
 The sum claimed as such indemnity by a 
 plaintiff in his declaration. 
 
 The injury or loss for which compensation 
 is sought. 
 
 The sums allowed by law for tortious in- 
 jury or losses from breach of contract. 1 
 Suth. Dam. 3. 
 
 In Modern Law. The term is not used 
 
 in a legal sense to include the costs of suit, 
 though it was formerly so used. Co. Lift. 
 267a; Doug. 751. 
 
 Damages are either direct or consequen- 
 tial. 
 
 (1) Direct are those which result imme- 
 diately from the act complained of. 
 
 (2) Consequential are more remote conse- 
 quences of such act. See "Consequential 
 Damages." 
 
 Compensatory or exemplary; the latter 
 being also called "punitive" or "vindictive." 
 
 (3) Compensatory damages are those al- 
 lowed as recompense for the injury suf- 
 fered. 
 
 (4) Exemplary damages are those allowed 
 as a punishment for torts committed with 
 fraud or actual malice. See "Exemplary 
 Damages." 
 
 General or special. 
 
 (5) General damages are those necessa- 
 rily and by implication of law resulting 
 from the act or default complained of. 
 
 (6) Special damages are those arising di- 
 rectly, but not necessarily or by implication 
 of law. 
 
 Liquidated or unliquidated. 
 
 (7) Liquidated damages are those whose 
 amount has been determined by anticipatory 
 agreement between the parties. 
 
 f8) Unliquidated damages are those not 
 so fixed, but determined after they have re- 
 sulted. 
 
 Substantial or nominal. 
 
 (9) Substantial damages are those allowed 
 as actual compensation. 
 
 (10) Nominal damages are a trifling sum 
 allowed where an infraction of a right is 
 shown, but no resultant damage is proved. 
 See "Nominal Damages." 
 
 DAMAIOUSE. In old English law. Caus- 
 ing damage or loss, as distinguished fromi 
 torcenouse, wrongful. Brltt. c. 61. 
 
DAMNA 
 
 (242) 
 
 DATA 
 
 DAMNA (Lat. damnum). Damages, both 
 inclusive and exclusive of costs. 
 
 DAMNI INJURIAE ACTIO (Lat.) In civil 
 law. An action for the damage done by 
 one who intentionally injured the beast of 
 another. Calv. Lex. 
 
 DAMNOSA HAEREDITAS. A name given 
 by Lord Kenyon to that species of property 
 of a bankrupt which, so far from being 
 valuable, would be a charge to the creditors; 
 for example, a term of years, where the rent 
 would exceed the revenue. 
 
 The assignees are not bound to take such 
 property;, but they must make their elec- 
 tion, and, having once entered into posses- 
 sion, they cannot afterwards abandon the 
 property. 7 East, 342; 3 Campb. 340. 
 
 DAMNUM,ABSQUE INJURIA (Lat. injury 
 without wrong). A wrong done to a man 
 for which the law provides no remedy. 
 Broom,' Leg. Max. 1. 
 
 Damage sustained without the infraction 
 of a legal right. 25 Conn. 265; 103 Ind. 314. 
 
 Injuria is here to be taken in the sense of 
 "legal injury;" and, where no malice ex- 
 ists, there are many cases of wrong or suf- 
 fering inflicted upon a man for which the 
 law gives no remedy. 2 Ld. Raym. 595; 11 
 Mees. & W. 755; 11 Pick. (Mass.) 527; 10 
 Mete. (Mass.) 371. Thus, if the owner of 
 property, in the prudent exercise of his own 
 right of dominion, does acts which cause 
 loss to another, it is damnum absque injuria. 
 2 Barb. (N. Y.) 168; 5 Barb. (N. Y.) 79; 
 10 Mete. (Mass.) 371; 10 Mees. & W. 109^ See 
 "Nominal Damages." 
 
 DAMNUM FATALE. In civil law. Dam- 
 ages caused by a fortuitous event, or in- 
 evitable accident; damages arising from the 
 act of God. Among these were Included 
 losses by shipwreck, lightning, or other cas- 
 ualty; also losses by pirates, or by vis ma- 
 jor, by Are, robbery, and burglary; but theft 
 was not numbered among these casualties. 
 In general, bailees are not liable for such 
 damages. Story, Bailm. 471. 
 
 DAMNUM INFECTUM. In Roman law. 
 Damage not yet committed, but threatened 
 or impending. A preventive interdict might 
 be obtained to prevent such damage from 
 happening; and it was treated as a quasi- 
 delict, because of the imminence of the dan- 
 ger. 
 
 DAMNUM REI AMISSAE. A loss arising 
 from a payment made by a party in conse- 
 quence of an error of law. 
 
 DAMNUM SINE INJURI ESSE POTEST. 
 
 There may be damage or injury inflicted 
 without any act of injustice. Lofft, 112. 
 
 DAN. Anciently the better sort of men in 
 England had this title; so the Spanish Don. 
 The old term of honor for men, as we now 
 say Master or Mister. Wharton. 
 
 DANEGELT. A tax or tribute imposed 
 upon the English when the Danes got a foot- 
 ing in their island. 
 
 DANELAGE. The laws of the Danes which 
 obtained in the eastern counties and part of 
 the midland counties of England in the elev- 
 enth century. 1 Bl. Comm. 65. 
 
 DANGERIA. A money payment made by 
 forest tenants, that they might have liberty 
 to plow and sow in time of pannage, or 
 mast feeding. Mann. 
 
 DANGEROUS WEAPON. A weapon cal- 
 culated to cause death or great bodily harm. 
 Guns, swords, knives, and the like, are dan- 
 gerous weapons, as a matter of law. 110 N. 
 C. 497; 1 Baldw. (U. S.) 78. Others are 
 dangerous or not, according to their capa- 
 bility of causing great bodily harm in the 
 manner in which they are used. Thus, a 
 champagne bottle (33 Ga. 207), a chair (3 
 Tex. App. 13), a club (104 N. C. 786), a 
 stone (10 Minn. 407) or a shovel (17 S. C. 
 55) may be a dangerous weapon. 
 
 DANGERS OF THE SEA. See "Perils of 
 the Sea." 
 
 DANISM. The act of lending money on 
 usury. 
 
 DANO. In Spanish law. Damage; the de- 
 terioration, injury, or destruction which a 
 man suffers with respect to his person or his 
 property by the fault (culpa} of another. 
 White, New Recop. bk. 2, tit. 19, c. 3, § 1; 
 Id. bk. 2, tit. 10, c. 12. 
 
 DANS ET RETINENS, NIHIL DAT. One 
 
 who gives and yet retains does not give ef- 
 fectually. Tray. Lat. Max. 129. Or, one who 
 gives yet retains [possession] gives nothing. 
 
 DAPIFER. A steward either of a king or 
 lord. Spelman. 
 
 DARE. In the civil law. To transfer prop- 
 erty. When this transfer is made in order 
 to discharge a debt, it is datio solvendi ani- 
 mo; when in order to receive an equivalent, 
 to create an obligation, it is datio contra- 
 hendi animo; lastly, when made donandi an- 
 imo, from mere liberality, it is a gift, dono 
 datio. 
 
 DARE AD REMANENTIAM. To give 
 away in fee, or forever. 
 
 DARRAIGN. To clear a legal account; to 
 answer an acciisation; to settle a contro- 
 versy. 
 
 DARREIN (Pr. dernier). Last. Darrein 
 continuance, last continuance. 
 
 DARREIN PRESENTMENT (Law Pr.) In 
 
 old English law. The last presentment. 
 See "Assize of Darrein Presentment." 
 
 DARREIN SEISIN (Law Pr. last seisin). 
 A plea which lay in some cases for the ten- 
 ant in a writ of right. 3 Mete. (Mass.) 184; 
 Jackson, Real Actions, 285. See 1 Roscoe, 
 Real Actions, 206 ; 2 Prest. Abstr. 345. 
 
 DATA (from Lat. dare, to give). In old 
 practice and conveyancing. The date of a 
 
DATE 
 
 (243) 
 
 DAYLIGHT 
 
 deed; the time when it was given; that is, 
 executed. Bl. Comm. Append. 1. 
 
 The date of a writ; the time when it was 
 issued. Bracton, fol. 176. 
 
 DATE. The designation or indication in 
 an instrument of writing of the time and 
 place when and where it was made. 
 
 When the place is mentioned in the date 
 of a deed, the law intends, unless the con- 
 trary appears, that it was executed at the 
 place of the date. Plowd. 7b. The word is 
 derived from the Latin datum, given; be- 
 cause, when instruments were in Latin, the 
 
 form ran datum, etc., given the day of, 
 
 etc. 
 
 The date of an instrument is that stated 
 therein as that of its execution, rather than 
 the actual time of execution. 32 N. J. Law, 
 515. 
 
 DATE CERTAINE. In French law. A 
 fixed date; one made certain by the regis- 
 tration of the instrument. 
 
 DATIO. In civil law. A giving, or act of 
 giving. Datio in solutum, a giving in pay- 
 ment; a species of accord and satisfaction. 
 Called, in modern law, "dation." 
 
 Appointment or assignment. Datio judi- 
 cis, the appointment of a judge to hear and 
 determine a cause. 
 
 DATION. In civil law. The act of giving 
 something. It differs from donation, which 
 is a gift; dation, on the contrary, is giving 
 something without any liberality; as, the 
 giving of an office. 
 
 DATION EN PAIEMENT. In civil law. A 
 giving by the debtor and receipt by the 
 creditor of something in payment of a debt 
 instead of a sum of money. 
 
 It is somewhat like the accord and satis- 
 faction of the common law. 16 Toullier, Dr. 
 Civ. note 45; Both. Vente, note 601. Dation en 
 paiement resembles in some respects the 
 contract of sale; dare in solutum est quasi 
 vendere. There is, however, a very marked 
 difference between a sale and a dation en 
 ■paiement. First, the contract of sale is com- 
 plete by the mere agreement of the parties; 
 the dation en paiement requires a delivery 
 of the thing given. Second, when the debt- 
 or pays a certain sum which he supposed he 
 was owing, and he discovers he did not owe 
 so much, he may recover back the excess; 
 not so when property other than money has 
 been given in payment. Third, he who has 
 in good faith sold a thing of which he be- 
 lieved himself to be the owner is not pre- 
 cisely required to transfer the property of 
 it to the buyer; and, while he is not trou- 
 bled in the possession of the thing, he cannot 
 pretend that the seller has not fulfilled his 
 obligations. On the contrary, the dation en 
 paiement is good only when the debtor trans- 
 fers to the creditor the property in the thing 
 which he has agreed to take in payment; 
 and if the thing thus delivered be the prop- 
 erty of another, it will not operate as a 
 payment. Both. Vente, notes 602-604. See 
 1 Low. (U. S.) 53. 
 
 DATIVE. . 
 
 In Old English Law. In one's gift; 
 
 that may be given and disposed of at will 
 and pleasure. Applied to an officer in the 
 sense of "removable," as distinguished from 
 "perpetual." St. 9 Rich. II. c. 4; St. 45 
 Edw. III. cc. 9, 10; Cowell. 
 
 In Civil Law. That which is given by 
 
 the magistrate, as distinguished from that 
 which is cast upon a party by the law or by 
 a testator. Bouvier. A dative executor an- 
 swers to the administrator of the common 
 law. Code Louis, arts. 1671, 1672. 
 
 DATUM. A thing given. 
 
 DATUR DIGNIORI. It is given to the 
 more worthy. 2 Vent. 268. 
 
 DAUGHTER. An immediate female de- 
 scendant. 
 
 DAY. The space of time which elapses 
 while the earth makes a complete revolution 
 on its axis. 
 
 A portion of such space of time which, by 
 usage or law, has come to be considered as 
 the whole for some particular purpose. 
 
 The space of time which elapses between 
 two successive midnights. 2 Bl. Comm. 141. 
 
 That portion of such space of time during 
 which the sun is shining. 
 
 Generally, in legal signification, the term 
 includes the time elapsing from one mid- 
 night to the succeeding one (2 Bl. Comm. 
 141), but it is also used to denote those 
 hours during which business is ordinarily 
 transacted, frequently called a "business" 
 day (5 Hill [N. Y.] 437), as well as that 
 portion of time during which the sun is 
 above the horizon, called, sometimes, a "so- 
 lar" day, and, in addition, that part of the 
 morning or evening during which sufficient 
 of his light is above for the features of a 
 man to be reasonably discerned. Coke, 3d 
 Inst. 63. 
 
 By custom, the word "day" may be under- 
 stood to include working days only (3 Bsp. 
 121), and, in a similar manner only, a cer- 
 tain number of hours less than the number 
 during which the work actually continued 
 each day (5 Hill [N. Y.] 437). 
 
 A day is generally, but not always, re- 
 garded in law as a point of time, and frac- 
 tions will not be recognized. 15 Ves. 257; 2 
 Barn. & Aid. 586. And see 9 East, 154; 4 
 Campb. 397; 11 Conn. 17. 
 
 DAY BOOK. In mercantile law. An ac- 
 count book in which merchants and others 
 make entries of their daily transactions. 
 This is generally a book of original entries, 
 and, as such, may be given in evidence to 
 prove the sale and delivery of merchandise, 
 or of work done. 
 
 DAY RULE, or DAY WRIT. A rule or or- 
 der of the court by which a prisoner on 
 civil process, and not committed, is enabled, 
 in term time, to go out of the prison and 
 its rule or bounds. Tidd, Prac. 961. Abol- 
 ished by 5 & 6 Vict. c. 22, § 12. 
 
 DAYLIGHT. The daytime; between sun- 
 rise and sunset. 4 Bl. Comm. 224. Sufficient 
 
DAYS IN BANK 
 
 (244) 
 
 DE ARBITRATIONE FACTA 
 
 light, of day, to distinguish a man's features. 
 11 Car. & P. 297; HE. C. L. 398. 
 
 An insurance policy requiring lamps to be 
 filled by daylight was held to mean not that 
 they must be filled in the daytime, but that 
 they must not be filled by artificial light. 
 134 U. S. 110. 
 
 DAYS IN BANK. In English practice. 
 Days of appearance in the court of common 
 pleas, usually called bancum. They are at 
 tjie distance of about a week from each oth- 
 er, and are regulated by some festival of the 
 church. 
 
 DAYS OF GRACE. In mercantile law. 
 Certain days (generally three) allowed to 
 the acceptor of a bill or the maker of a 
 note in which to make payment, in addi- 
 tion to the time, contracted for by the bill or 
 note itself. 
 
 DAYSMAN. An arbitrator, umpire, or 
 elected judge. Cowell. 
 
 DAYTIME. See "Daylight." 
 
 DAYWERE. As much arable land as could 
 be ploughed in one day's work. Cowell. 
 
 DE. Of; about; concerning; respecting. 
 
 DEACQUIRENDO RERUM DOMINIO. Of 
 
 (about) acquiring the ownership of things. 
 Dig. 11. 1; Bracton, lib. 2, fol. 8b. 
 
 DE ADMENSURATIONE. Of admeasure- 
 ment. 
 
 Used of the writ of admeasurement of 
 dower, which lies where the widow has had 
 more dower assigned to her than she' is 
 entitled to. It is said by some to lie where 
 either an infant heir or his guardian made 
 such assignment, at suit of the infant heir 
 whose rights are thus prejudiced. 2 Bl. 
 Comm. 136; Pitzh. Nat. Brev. 348. It seems, 
 however, that an assignment by a guardian 
 binds the infant heir, and that, after such 
 assignment, the heir cannot have his writ 
 of admeasurement. 2 Ind. 388; 1 Pick. 
 (Mass.) 314; 37 Me. 509; 1 Washb. Real 
 Prop. 226. 
 
 Used also of the writ of admeasurement 
 of pasture, which lies where the quantity of 
 common due each one of several having 
 rights thereto has not been ascertained. 3 
 Bl. Comm. 38. See "Admeasurement of 
 Dower." 
 
 DE ADVISAMENTO CONSILII NOSTRI 
 
 (Law Lat. with or by the advice of our 
 council). A phrase used in the old writs 
 of summons to parliament. Reg. Jud. Ap- 
 pend. 7. 8; Crabb, Hist. Eng. Law, 240. 
 
 DEAEQUITATE. Inequity. De jure stricto, 
 nihil possum venclicare, de aeguitate tamen, 
 nullo modo hoc ohtinet, in strict law, I can 
 claim nothing, but in equity this by no 
 means obtains. Pleta, lib. 3, c. 2, § 10. 
 
 DE AESTIMATO. In Roman law. One of 
 the innominate contracts, and, in effect, a 
 sale of land or goods at a price fixed (aesti- 
 mato) and guarantied by some third party, 
 who undertook to find a purchaser. 
 
 DEAETATE PROBANDA (Law Lat.) Writ 
 of (about) proving age. An old writ which 
 lay to the escheator or sheriff of a county 
 to summon a jury to inquire whether the 
 heir of a tenant in capite, claiming his es- 
 tate on the ground of full age, was, in fact, 
 of age or not. Reg. Orig. 294; Pitzh. Nat. 
 Brev. 257. 
 
 DE ALEATORIBUS. About gamesters. 
 Dig. 11. 5. 
 
 DE ALLOCATIONE FACIENDA (Lat. for 
 making allowance). A writ to allow the 
 collectors of customs, and other such ofli- 
 cers having charge of the king's money, for 
 sums disbursed by them. 
 
 It was directed to the treasurer and bar- 
 ons of the exchequer. 
 
 DE ALTO ET BASSO. Of high and low. 
 A phrase anciently used to denote the ab- 
 solute submission of all differences to arbi- 
 tration. Cowell; 2 Reeve, Hist. Eng. Law, 
 90. 
 
 DE AMBITU (Lat. concerning bribery). 
 Ambitus (bribery) was the subject of sev- 
 eral of the Roman laws; as, the Lex Aufldia, 
 the Lex Pompeia, the Lex Tullia, and others. 
 See "Ambitus." 
 
 DE ANNO BISSEXTILI. Of the bissextile 
 or leap year. The title of a statute passed 
 in the twenty-first year of Henry III., which 
 in fact, however, is nothing more than a 
 sort of writ or direction to the justices of 
 the bench, instructing them how the. extraor- 
 dinary day in the leap year was to be 
 reckoned in cases where persons had a day 
 to appear at the distance of a year, as on the 
 essoin de malo lecti, and the like. It was 
 thereby directed that the additional day 
 should, together with that which went be- 
 fore, be reckoned only as one, and so, of 
 course, within the preceding year. 1 Reeve, 
 Hist. Eng. Law, 266. 
 
 DE ANNUA PENSIONE (Lat. of annual 
 pension). A writ by which the king, hav- 
 ing due unto him an annual pension from 
 any abbot or prior for any of his chaplains 
 which he will name who is not provided 
 with a competent living, demands it of the 
 said abbot or prior for the one that is 
 named in the writ. Pitzh. Nat. Brev. 231; 
 Termes de la Ley. 
 
 DE ANNUO REDITU (Lat. for a yearly 
 rent). A writ to recover an annuity, no 
 matter how payable. 2 Reeve, Hist. Eng. 
 Law, 258. 
 
 DE APOSTATA CAPIENDO (Lat. for tak- 
 ing an apostate). A writ directed to the 
 sheriff for the taking the body of one who, 
 having entered into and professed some 
 order of religion, leaves his order and de- 
 parts from his house and wanders in the 
 country. Pitzh. Nat. Brev. 233; Termes de 
 la Ley. 
 
 DE ARBITRATIONE FACTA (Lat. of ar- 
 bitration had). A writ formerly used when 
 an action was brought for a cause which had 
 
DE ARREST ANDIS, ETC. 
 
 (245) 
 
 DE BONIS TESTATORIS 
 
 been settled by arbitration. Watson, Arb. 
 
 256. 
 
 DE ARRESTANDIS BONIS NE DISSI- 
 pentur. An old writ which lay to seize goods 
 in the hands of a party during the pendency 
 of a suit, to prevent their being made away 
 with. Reg. Orlg. 126b. 
 
 DE ARRESTANDO IPSUM QUI PECU- 
 niam receplt. A writ which lay for the ar- 
 rest of one who had taken the king's money 
 to serve in the war, and hid himself to es- 
 cape going. Reg. Orig. 24b; Blount. 
 
 DE ARTE ET PARTE. Of art and part. 
 A phrase in old Scotch law. 1 Pitcairn, pt. 
 2, p. 55. See "Art and Part." 
 
 DE ASPORTATIS RELIGIOSORUM. Con- 
 cerning the property of religious persons 
 carried away. The title of St. 35 Edw. I. 
 passed to check the abuses of clerical pos- 
 sessions, one of which was the waste they 
 suffered by being drained into foreign coun- 
 tries. 2 Reeve, Hist. Eng. Law, 157; 2 Inst. 
 580. 
 
 DE ASSISA PROROGANDA (Lat. for pro- 
 roguing assize). A writ to put off an assize 
 issuing to the justices, where one of the par- 
 ties is engaged in the service of othe king. 
 
 DE ATTORNATO RECIPIENDO (Lat. for 
 receiving an attorney). A writ to compel 
 the judges to receive an attorney and admit 
 him for the party. Pitzh. Nat. Brev. 156b. 
 
 DE AUDIENDO ET TERMINANDO. For 
 hearing and determining; to hear and de- 
 termine. 
 
 The name of a writ or commission granted 
 to certain justices to hear and determine 
 cases of heinous misdemeanor, trespass, ri- 
 otous breach of the peace, etc. Reg. Orig. 
 123 et seq.; Pitzh. Nat. Brev. 110 (B). See 
 "Oyer and Terminer." 
 
 DE AVERIIS CAPTIS IN WITHERNAM 
 
 (Lat. for cattle taken in withernam). A 
 writ which lies to take other cattle of the 
 defendant where he has taken and carried 
 away cattle of the plaintiff out of the coun- 
 try, so that they cannot be reached by re- 
 plevin. Termes de la Ley; 3 Sharswood, Bl. 
 Comm. 149. 
 
 DE AVERIIS REPLEGIANDIS (Lat.) A 
 writ to replevy beasts. 3 Bl. Comm. 149. 
 
 DE AVERIIS RETORNANDIS (Lat. for re- 
 turning cattle). Used of the pledges in the 
 old action of replevin. 2 Reeve, Hist. Eng. 
 , Law, 177. 
 
 DE BENE ESSE (Lat. formally; condi- 
 tionally; provisionally). A technical phrase 
 applied to certain acts deemed for the time 
 to be well done, or until an exception or 
 other avoidance. It is equivalent to "pro- 
 visionally," with which meaning the phrase 
 is commonly employed. For example, a dec- 
 laration is filed^or delivered, special bail is 
 put in, a witness is examined, etc., de bene 
 esse, or pjovisionally. 
 
 DE BIEN ET DE MAL. 
 Malo." 
 
 3ee "De Bono et 
 
 DE BIENS LE MORT (Law Pr.) Of the 
 goods of the deceased. Dyer, 32. 
 
 DE BIGAMIS. Concerning men twice mar- 
 ried. The title of St. 4 Edw. I. st. 3 ; so called 
 from the initial words of the fifth chapter. 
 2 Inst. 272; 2 Reeve, Hist. Eng. Law, 142. 
 
 DE BONE MEMORIE (Law Pr.) Of good 
 memory; of sound mind. St. Mod. Lev. 
 Pines; 2 Inst. 510. 
 
 DE BONIS ASPORTATIS (Lat. for goods 
 carried away). The name of the action for 
 trespass to personal property is trespass de 
 ionis asportatis. BuUer, N. P. 836; 1 Tidd, 
 Prac. 5. 
 
 DE BONIS NON. See "Administration." 
 
 DE BONIS NON ADMINISTRATIS (Law 
 Lat. of the goods not administered). Where 
 the administration of the estate of an intes- 
 tate is left unfinished, in consequence of 
 the death, removal, etc., of the administra- 
 tor, and a new administrator is appointed, 
 the latter is termed an administrator de 
 honis non; i. e., of the goods of the deceased 
 not administered by the former administra- 
 tor. 2 Steph. Comm. 243. An administra- 
 tor of this kind is also sometimes appointed 
 to succeed an executor. Id. 
 
 DE BONIS NON AMOVENDIS (Law Lat.) 
 Writ for not removing goods. A writ an- 
 ciently directed to the sheriffs of London, 
 commanding them, in cases where a writ 
 of error was brought by a defendant against 
 whom a judgment was recovered, to see that 
 his goods and chattels were safely kept 
 without being removed, while the error re- 
 mained undetermined, so that execution 
 might be had of them, etc. Reg. Orig. 131b; 
 Termes de la Ley. This seems to have been 
 a local writ. 
 
 DE BONIS PROPRIIS (Lat. of his own 
 goods). A judgment against an executor or 
 administrator which is to be satisfied from 
 his' own property. 
 
 When an executor or administrator has 
 been guilty of a devastavit, he is responsible 
 for the loss which the estate has sustained 
 de bonis propriis. He may also subject him- 
 self to the payment of a debt of the deceased 
 de bonis propriis by his false plea when sued 
 in a representative capacity; as, if he plead 
 plene administravit, and it be found against 
 him, or a release to him when false. In 
 this latter case the judgment is de bonis tes- 
 tatoris si, et si non de bonis propriis. 1 
 Wm. Saund. 336b, note 10; Bac. Abr. "Ex- 
 ecutor" (B 3). 
 
 DE BONIS TESTATORIS (Lat. of the goods 
 of the testator). A judgment rendered 
 agaiuFt an executor which is to be satisfied 
 out of the goods or property of the testa- 
 tor. Distinguished from a judgment de 
 bonis propriis. 
 
DE BONIS, ETC. 
 
 (246) 
 
 DE CONJUNCTIM FEOFPATIS 
 
 DE BONIS TESTATORIS AC SI (Lat.) 
 Prom the goods of the testator, if he has 
 any, and, if not, from those of the executor. 
 A judgment rendered where an executor 
 falsely pleads any matter as a release, or, 
 generally, in any case where he is to be 
 charged in case his testator's estate is in- 
 sufficient. 1 Wm. Saund. 366b; Bac. Abr. 
 "Executor" (B 3); 2 Archb. Prac. 148. 
 
 DE BONO ET MALO (Lat. for good or ill). 
 A person accused of crime was said to put 
 himself upon his country de bono et tnalo. 
 The French phrase de Men et de mal has the 
 same meaning. 
 
 A special writ of gaol delivery, one being 
 issued for each prisoner; now superseded by 
 the general commission of gaol delivery. 4 
 Bl. Comm. 270. 
 
 DE BONO GESTU. For good behavior. 
 
 DE CAETERO, or DE GETERO. Hence- 
 forth; henceforward; hereafter; in the fu- 
 ture. 
 
 DE GALGETO REPARENDO (Lat.) A 
 writ for repairing a highway, directed to 
 the sheriff, commanding him to distrain the 
 inhabitants of a place to repair the highway. 
 Reg. Grig. 154; Blount. 
 
 DE CAPiTALIBUS DOMINIS FEODI. Of 
 
 the chief lords of the fee. 
 
 A phrase in ancient charters, denoting the 
 tenure by which the estate was granted to 
 be held. 2 Bl. Comm. 298, 299. 
 
 DE CAPITE MINUTIS. Of those who have 
 lost their status, or civil condition. Dig. 4. 
 5. See "Capitas Deminutio." 
 
 DE CARTIS REDDENDIS (Lat. for restor- 
 ing charters) . A writ to secure the delivery 
 of charters; a writ of detinue. Reg. Orig. 
 159b. 
 
 DE CATALLIS REDDENDIS (Law Lat.) 
 Writ for rendering chattels. A writ to com- 
 pel the specific delivery of chattels detained 
 from the owner. Reg. Orig. 139b; Old Nat. 
 Brev. 63. A writ of detinue. Fitzh. Nat. 
 Brev. 138; Cowell. 
 
 DE CAUTIONE ADMITTENDA (Lat. for 
 admitting bail) . A writ directed to a bishop 
 who refused to allow a prisoner to go at 
 large on giving sufficient bail, requiring him 
 to admit him to bail. Pitzh. Nat. Brev. 63c. 
 
 DE GERTIFICANDO. A writ requiring a 
 thing to be certified; a kind of certiorari. 
 Reg. Orig. 151, 152b. 
 
 DE GERTIORANDO. A writ for certifying. 
 A writ directed to the sheriff, requiring him 
 to certify to a particular fact. Reg. Orig. 
 24. 
 
 DE CHAMPERTIA. Writ of champerty. 
 A writ directed to the justices of the bench, 
 commanding the enforcement of the statute 
 of champertors. Reg. Orig. 183; Fitzh. Nat. 
 Brev. 172. See "Champerty." 
 
 DE CHAR ET DE SANK (Law Fr. of flesh 
 
 and blood). Affaire rechat de char et de 
 sank. Words used in claiming a person to 
 be a villein, in the time of Edward II. Y. B. 
 P. 1 Edw. II. p. 4. 
 
 DECHIMINO. A writ for the enforcement 
 of a right of way; a species of quo permittat. 
 Reg. Orig. 155. 
 
 DE GIBARIIS UTENDIS. Of victuals to 
 be used. The title of a sumptuary statute 
 passed 10 Edw. III. st. 3, to restrain the 
 expense of entertainments. Barr. Obs. St. 
 240. 
 
 DE GLAMIA ADMITTENDA IN ITINERE 
 per attornatum (Law Lat.) An ancient writ, 
 by which the king commanded the justices 
 in eyre to admit a person's claim by attor- 
 ney, who was employed in the king's service, 
 and could not come in his own person. Reg. 
 Orig. 19b. 
 
 DE CLARO DIE. By daylight. Pleta, lib. 
 2, c. 76, § 8. 
 
 DE CLAUSO FRACTO. Of close broken; 
 of breach of close. See "Clausum Pregit." 
 
 DE CLERICO CAPTO PER STATUTUM 
 mercatorlum deliberando. Writ for deliver- 
 ing a clerk arrested on a statute merchant. 
 A writ for the delivery of a clerk out of 
 prison, who had been taken and imprisoned 
 upon the breach of a statute merchant. Reg. 
 Orig. 147b. 
 
 DE GLERO (Law Lat.) Concerning the 
 clergy. The title of St. 25 Edw. III. st. 3; 
 containing a variety of provisions on the 
 subject of presentations, indictments of spir- 
 itual persons, and the like. 2 Reeve, Hist. 
 Eng. Law, 378; Crabb, Hist. Eng. Law, 270. 
 
 DECOMBUSTIONE DOMORUM. Of house 
 burning. One of the kinds of appeal for- 
 merlyin use in England. Bracton, fol. 146b; 
 2 Reeve, Hist. Eng. Law, 38. 
 
 DE COMMUNI DIVIDENDO. In civil law. 
 A writ of partition of common property. 
 See "Communi Dividendo." 
 
 DE COMON DROIT (Law Pr.) Of com- 
 mon right; that is, by the common law. Co. 
 Litt. 142a. 
 
 DE COMPUTO. Writ of account. A writ 
 commanding a defendant to render a reason- 
 able account to the plaintiff, or show cause 
 to the contrary. Reg. Orig. 135-138; Pitzh. 
 Nat. Brev. 117 (E). The foundation of the 
 modern action of account. 
 
 DE GONGILIO CURIAE. See "De Consilio 
 Curiae." 
 
 DE CONFLICTU LEGUM. Concerning 
 the conflict of laws. The title of several 
 works written on that subject. 2 Kent, 
 pomm. 455. 
 
 DE CONJUNCTIM FEOFFATIS. Con- 
 cerning persons jointly enfeoffed, or seised. 
 The title of St. 34 Edw. I., which was passed 
 to prevent the delay occasioned by tenants 
 in novel disseisin, and other writs, pleading 
 
DE CONSANGUINEO 
 
 (247) 
 
 DE DEBITORE, ETC. 
 
 that some one else was seised jointly with 
 them. 2 Reeve, Hist. Eng. Law, 243. 
 
 DE CONSANGUINEO. Writ of cosinage 
 (g. V.) Reg. Grig. 226; Co. Litt. 160a. 
 
 DE CONSILIO. In old criminal law. Of 
 counsel; concerning counsel or advice to 
 commit a crime. Fleta, lib. 1, c. 31, § 8. 
 
 DE CONSILIO CURIAE. By the advice or 
 direction of the court. Bracton, fol. 345t). 
 
 DE CONSUETUDINIBUS ET SERVICIIS 
 
 (Law Lat.) Writ of customs and services. 
 A writ which lay for a lord against his ten- 
 ant, who withheld from him or deforced him 
 of the rents and services due by custom or 
 tenure for his land. Reg. Orig. 159; Fitzh. 
 Nat. Brev. 151; Bracton, fol. 83; 3 Bl. Comm. 
 232; Roscoe, Real Actions, 32. See "Cus- 
 tom." 
 
 DE CONTINUANDO ASSISAM. Writ to 
 continue an assize. Reg. Orig. 217h. 
 
 DE CONTRIBUTIONE FACIENDA (Law 
 Lat.) Writ for malcing contribution. A 
 writ, founded on the statute of Marlbridge 
 (chapter 9), to compel coparceners, or ten- 
 ants in common, to aid the eldest in per- 
 forming the services due by him, or to make 
 contribution, where the services had been 
 already performed. Reg. Orig. 176b; Pitzh. 
 Nat. Brev. 162 (B), (C) ; 2 Reeve, Hist. Eng. 
 Law, 327; 3 Reeve, Hist. Eng. Law, 55; 
 Crabb, Hist. Eng. Law, 212. 
 
 DE CONTUMACE CAPIENDO (Law Lat.) 
 Writ for taking a contumacious person. A 
 writ which issues out of the English court 
 of chancery in cases where a person has 
 been pronounced by an ecclesiastical court 
 to be contumacious, and in contempt. Shelf. 
 Mar. & Div. 494-496, and notes. It Is a com- 
 mitment for contempt. Id. 504, 505; 5 Adol. 
 & E. (N. S.) 335. 
 
 DE COPIA LIBELLI DELIBERANDA 
 
 (Law Lat.) Writ for delivering the copy 
 of a libel. An ancient writ directed to the 
 judge of a spiritual court, commanding him 
 to deliver to a defendant a copy of the libel 
 filed against him in such court. Reg. Orig. 
 58. The writ in the register Is directed to 
 the dean of Arches, and his commissary. Id. 
 See "Copia." 
 
 DE CORODIO HABENDO (Law Lat.) 
 Writ for having a corody. A writ to exact 
 a corody from a religious house. Reg. Orig. 
 264; Fitzh. Nat. Brev. 230. See "Corody." 
 
 DE CORONATORE ELIGENDO (Law 
 Lat.) Writ for electing a coroner. A writ 
 Issued to the sheriff in England, command- 
 ing him to proceed to the election of a coro- 
 ner, which is done in full county court (in 
 plena comitatu), the freeholders being the 
 electors. Reg. Orig. 177; Reg. Jud. Appen- 
 dix, 19; 1 Bl. Comm. 347; 3 Steph. Comm. 
 31; Sewell, Sheriffs, 372. A writ of this 
 kind was issued as late as May, 1852. See 
 35 Eng. Law & Eq. 136. 
 
 DE CORONATORE EXONERANDO (Law 
 
 Lat.) Writ for discharging or removing a 
 coroner. A writ by which a coroner in Eng- 
 land may be removed from office for some 
 cause therein assigned. Fitzh. Nat. Brev. 
 163, 164; 1 Bl. Comm. 348; Sewell, Sheriffs, 
 373. 
 
 DE CORPORE COMITATUS. Prom the 
 body of the county at large, as distinguished 
 from a particular neighborhood (de vicine- 
 io). 3 Bl. Comm. 360. 
 
 DE CORRODIO HABENDO. Writ for hav- 
 ing a corody. A writ to exact a corody from 
 a religious house. Reg. Orig. 264; Fitzh. 
 Nat. Brev. 230. See "Corody." 
 
 DE CURIA CLAUDENDA (Lat. of inclos- 
 ing a court). An obsolete writ, to require 
 a defendant to fence in his court or land 
 about his house, where it was left open to 
 the injury of his neighbor's freehold. 1 
 Crabb, Real Prop. 314; 6 Mass. 90. 
 
 DE CURSU. Of course. Reg. Orig. 29b. 
 
 The formal proceedings in an action, as 
 distinguished from those incidental proceed- 
 ings that may be taken in summons, peti- 
 tion, or motion, all of which latter are called 
 "summary proceedings." 
 
 DE CUSTODE ADMITTENDO. Writ for 
 admitting a guardian. Reg. Orig. 93b, 198. 
 
 DE CUSTODE AMOVENDO. Writ for re- 
 moving a guardiai}. Reg. Orig. 198. 
 
 DE CUSTODIA TERRAE ET HAEREDIS. 
 
 Writ of ward, or writ of right of ward. A 
 writ which lay for a guardian in knight's 
 service or in socage, to recover the posses- 
 sion and custody of the Infant, or the ward- 
 ship of the land and heir. Reg. Orig. 161b; 
 Fitzh. Nat. Brev. 139 (B) ; 3 Bl. Comm. 141. 
 
 DE DEBITO. Writ of debt. Reg. Orig. 
 139. Fitzh. Nat. Brev. 119 (C), 121. 
 
 DE DEBITORE IN PARTES SECANDO. 
 
 Of cutting a debtor in pieces. This was the 
 name of a law contained in the Twelve Ta- 
 bles, the meaning of which has occasioned 
 much controversy. Some commentators have 
 concluded that it was literally the privi- 
 lege of the creditors of an insolvent debtor 
 (all other means failing) to cut his body in- 
 to pieces and distribute it among them. 
 Others contend that the language of this 
 law must be taken figuratively, denoting a 
 cutting up and apportionment of the debt- 
 or's estate. 
 
 The latter view has been adopted by Mon- 
 tesquieu, Bynkershoek, Heineccius, and Tay- 
 lor. Esprit des Lois, liv. 29, c. 2; Bynk. 
 Obs. Jur. Rom. lib. 1, c. 1; Heinec. Ant. 
 Rom. lib. 3, tit. 30, § 4; Tayl. Comm. Leg. 
 Dec. The literal meaning, on the other 
 hand, is advocated by Aulus Gellius and oth- 
 er writers of antiquity, and receives support 
 from an expression (semoto omni cruciatu) 
 in the Roman code Itself. Aul. Gel. Noctes 
 Atticae, lib. 20, c. 1; Code, 7. 7. 8. This is 
 also the opinion of Gibbon, Gravina, Po- 
 thier, Hugo, and Niehbuhr. 3 Gib. Rom. 
 Emp. (Am. Ed.) p. 183; Grav. de Jur. Nat. 
 
DE DECEPTIONE 
 
 (248) 
 
 DE EVE ET DE TREVE 
 
 Gent, et XII. Tab. § 72; Poth. Introd. ad 
 Pand.; Hugo, Hist, du Droit Rom. torn. i. 
 p. 233, § 149; 2 Niehb. Hist. Rom. r. 597; 1 
 Kent, Comm. 523. note. 
 
 DE DECEPTIONE. A writ of deceit 
 wtiicli lay against one who acted in the name 
 of another, whereby the latter was damnified 
 and deceived. Reg. Orig. 112; Fitzh. Nat. 
 Brev. 95 (E); Reg. Jud. 9h, 10. 
 
 DE DEONERANDA PRO RATA POR- 
 
 tionis. A writ that lay where one was dis- 
 trained for rent that ought to be paid by 
 others proportionately with him. Fitzh. Nat. 
 Brev. 234; Termes de la Ley. 
 
 DE DIE IN DIEM. Prom day to day. 
 Bracton, lol. 205b; Holt, C. J., 6 Mod. 252. 
 
 DE DIVERSIS REGULIS JURIS AN- 
 tlqul. Of divers rules of the ancient law. 
 A celebrated title of the Digests, and the 
 last in that collection. It consists of two 
 hundred and eleven rules or maxims. Dig. 
 50. 17. 
 
 DE DOLO MALO. Of or founded upon 
 fraud. Dig. 4. 3. See "Actio de Dolo Malo." 
 
 DE DOMO REPARANDA (Lat.) The 
 name of an ancient common-law writ, by 
 which one tenant in common might compel 
 his cotenant to concur in the expense of re- 
 pairing the property held in common. 8 
 Barn. & C. 269; 1 Thomas, Co. Litt. 216, 
 note 17, and page 787. 
 
 DE DONIS. See "Estates." 
 
 DE DONIS, THE STATUTE (more fully, 
 de bonis conditionalibus, concerning condi- 
 tional gifts). St. Edw. I. c. 1. 
 
 The object of the statute was to prevent 
 the alienation of estates by those who held 
 only a part of the estate in such a manner 
 as to defeat the estate of those who were 
 to take subsequently. By introducing per- 
 petuities, it built up great estates, and 
 strengthened the power of the barons. See 
 Bac. Abr. "Estates Tail;" 1 Cruise, Dig. 70; 
 1 Washb. Real Prop. 271. 
 
 DE DOTE ASSIGNANDA (Lat. for as- 
 signing dower). A writ commanding the 
 king's escheator to assign dower to the 
 widow of a tenant in capite. Fitzh. Nat4 
 Brev. 263c. 
 
 DE DOTE UNDE NIHIL HABET (Lat. of 
 dower in that whereof she has none). A 
 writ of dower which lay for a widow where 
 no part of her dower had been assigned to 
 her. It is now much disused; but a form 
 closely resembling it is still much used in 
 the United States. 4 Kent, Comm. 63; 
 Stearns, Real Actions, 302; 1 Washb. Real 
 Prop. 230. 
 
 DE EJECTIONE CUSTODIAE (Law Lat; 
 Law Fr. ejectment de gard). Writ of eject- 
 ment of ward. A writ which lay where a 
 guardian had been forcibly ejected from his 
 wardship. Reg. Orig. 162. 
 
 -DE EJECTIONE FIRMAE. A writ which 
 
 lay at the suit of the tenant for years 
 against the lessor, reversioner, remainder- 
 man, or stranger who had himself deprived 
 the tenant of the occupation of the land 
 during his term. 3 Bl. Comm. 199. Orig- 
 inally lying to recover damages only, it 
 came to be used to recover the rest of the 
 term, and then generally the possession of 
 lands. Involving, in the question of who 
 should have possession, the further question 
 of who had the title, it gave rise to the mod- 
 arn action of ejectment. Brooke, Abr.; Ad- 
 ams, Ej.; 3 Sharswood, Bl. Comm. 199 et seq. 
 
 . DE ESCAETA. A writ of escheat, which 
 lay for the lord to recover the land where 
 the tenant died without an heir. Reg. Orig 
 194. 
 
 DE ESCAMBIO MONETAE. A writ of 
 excliange of money. An ancient writ to au- 
 thorize a merchant to make a bill of ex- 
 change literas cambitorias facere. Reg. Orig. 
 194. 
 
 DE ESSE IN PEREGRINATIONE. Of be- 
 ing on a journey. A species of essoin. 1 
 Reeve, Hist. Eng. Law, 119. 
 
 DE ESSENDO QUIETUM DE THEO- 
 
 lonio (or tolonio) (Law Lat.) Writ of being 
 quit of toll. A writ which lay for citizens 
 and burgesses of any city or borough, and 
 other persons, who, by charter or prescript 
 tion, were exempted from toll, to enforce 
 such exemption. Reg. Orig. 258b-261; Fitzh. 
 Nat. Brev. 226 (I). An action was brought 
 on such a writ as late as 29 Geo. III. 1 H. 
 Bl. 206. 
 
 DE ESSONIO DE MALO LECTI. Writ of 
 essoin of malum lecti. A writ which is- 
 sued upon an essoin of malum lecti being 
 cast, to examine whether the party was in 
 fact sick or not. Reg. Orig. 8b. See "De 
 Malo Lecti." 
 
 DE ESTOVERIIS HABENDIS (Lat. to ob- 
 tain estovers). A writ which lay for a wo- 
 man divorced a mensa et thoro to recover 
 her alimony or estovers. 1 Bl. Comm. 441. 
 
 DE ESTREPAMENTO (Law Lat.) Writ 
 of estrepement. A writ to prevent or stop 
 the commission of waste in lands by a ten- 
 ant during the pendency of a suit against 
 him for their recovery. Reg. Orig. 76b; 
 Fitzh. Nat. Brev. 60; 3 Bl. Comm. 225, 226. 
 Abolished by St. 3 & 4 Wm. IV. c. 27. See 
 "Estrepement." 
 
 DE EU ET TRENE (Law Fr.) Of water 
 and whip of three cords. A term applied 
 to a neife, that is, a bond woman or female 
 villein, as employed in servile work, and 
 subject to corporal punishment. Co. Litt. 
 25b. 
 
 DE EVE ET DE TREVE (Law Fr.; Lat. 
 de avo et de tritavo). From grandfather 
 and great-grandfather's great-grandfather. A 
 phrase used in the Year Books in cases 
 where a party was claimed by another as his 
 villein, as descriptive of the ancestral rights 
 of lords in such cases. 
 
DE EXCOMMUNICATO, Ei;C. 
 
 (249) 
 
 DE FRANGENTIBUS, ETC. 
 
 DE EXCOMMUNICATO CAPIENDO (Lat. 
 for taking one who is excommunicated). A 
 writ commanding the sheriff to arrest one 
 who was excommunicated, and imprison 
 him till he should become reconciled to the 
 church. 3 Bl. Comm. 102. 
 
 DE EXCOMMUNICATO DELIBERANDO 
 
 (Lat. for freeing one excommunicated). A 
 writ to deliver an excommunicated person, 
 who has made satisfaction to the church, 
 from prison. 3 Bl. Comm. 102. 
 
 DE EXCOMMUNICATO RECAPIENDO 
 
 (Law Lat.) Writ for retaking an excom- 
 municated person, where he has been lib- 
 erated from prison without making satis- 
 faction to the church, or giving security for 
 that purpose. Reg. Orig. 67. 
 
 DE EXCUSATIONIBUS (Lat. Of excuses). 
 The first title of the twenty-seventh book of 
 the Digests is so denominated, as treating 
 of the circumstances which would excuse 
 persons from serving in the offices of tutor 
 or curator. It is made up, in a great de- 
 gree, of extracts from the Greek work of 
 Herennius Modestinus on the subject. 
 
 DE EXECUTIONE FACIENDA IN WITH- 
 
 ernamlum (Law Lat.) Writ for making ex- 
 ecution in withernam. Reg. Orig. 82b. A 
 species of capias in withernam. 
 
 DE EXECUTIONE JUDICII (Law Lat.) 
 Writ of execution of judgment. A writ di- 
 rected to a sheriff or bailiff, commanding 
 him to do execution upon a judgment. Reg. 
 Grig. 18 ; Fitzh. Nat. Brev. 20 ; 3 Reeve, Hist. 
 Eng. Law, 56. 
 
 DE EXEMPLIFICATIONE. Writ of ex- 
 emplification. A writ granted for the ex- 
 emplification of an original. Reg. Orig. 
 290b. 
 
 DE EXONERATIONS SECTAE. A writ 
 to free the king's ward from suit in any 
 court lower than the court of common pleas 
 duping the time of such wardship. 
 
 DE EXPENSIS CIVIUM ET BURGEN- 
 sium. An obsolete writ addressed to the 
 sheriff to levy the expenses of every citizen 
 and burgess of parliament. 4 Inst. 46. 
 
 DE EXPENSIS MILITUM NON LEVAN- 
 dis (Law Lat.) Writ for levying the ex- 
 penses of knights. A writ directed to the 
 sheriff for levying the allowance for knights 
 of the shire in parliament, Reg. Orig. 191b. 
 
 DE FACTO. Actually; in fact; in deed. 
 A term used to denote a thing actually 
 done. 
 
 An officer de facto is one who performs the 
 duties of an office with apparent right, and 
 under claim and color of an appointment, 
 but without being actually qualified in law 
 so to act. 37 Me. 423. See "Officer." 
 
 An officer in the actual exercise of execu- 
 tive power would be an officer de facto, and 
 as such distinguished from one who, being 
 legally entitled to such power, is deprived of 
 it; such a one being an officer de jure only. 
 An officer holding without strict legal au- 
 
 thority. 2 Kent, Comm. 295. An officer de 
 facto is frequently considered an officer de 
 jure, and legal validity allowed his official 
 acts. 10 Serg. & R. (Pa.) 250; 11 Serg. & 
 R. (Pa.) 411; 1 Coxe (N. J.) 318; 10 Mass. 
 290; 15 Mass. 180; 5 Pick. (Mass.) 487; 25 
 Conn. 278; 5 Wis. 308; 24 Barb. (N. Y.) 587; 
 37 Me. 423; 19 N. H. 115; 2 Jones (N. C.) 
 124; 2 Swan (Tenn.) 87. 
 
 An officer de facto is prima facie one de 
 jure. 21 jGa. 217. 
 
 A wife de facto only is one whose mar- 
 riage is voidable by decree. 4 Kent, Comm. 
 36. 
 
 Blockade de facto is one actually main- 
 tained. 1 Kent, Comm. 44 et seq. 
 
 DE FALSO JUDICIO. Writ of false judg- 
 ment. Reg. Orig. 15; Fitzh. Nat. Brev. 18. 
 See "False Judgment." 
 
 DE FALSO MONETA. Of false money. 
 The title of St. 27 Edw, I., ordaining that 
 persons importing certain coins, called "pol- 
 lards," and "crokards," should forfeit their 
 lives and goods, and everything they could 
 forfeit. 2 Reeve, Hist. Eng. Law, 228, 229. 
 
 DE FIDE ET OFFICIO JUDICIS NON 
 recipitur quaestio, sed de scientia sive sit 
 error Juris sive facti. The bona fides and 
 honesty of purpose of a judge cannot be 
 questioned, but his decision may be impugn- 
 ed for error either of law or of fact. Bac. 
 Max. reg. 17; 5 Johns. (N. Y.) 291; 9 Johns. 
 (N. Y.) 396; 1 N. Y. 45; Broom, Leg. Max. 
 (3d London Ed.) 82. 
 
 DE FIDEI LAESIONE. Of breach of faith 
 or fidelity. 4 Reeve, Hist. Eng. Law, 99. 
 
 DE FINE CAPIENDO PRO TERRIS (Law 
 Lat.) A writ which lay for a juror who 
 had been attainted for giving a false ver- 
 dict, to obtain the lease of his person, lands, 
 and goods, on payment of a certain fine to 
 the king. Reg. Orig. 232. See "Attaint." 
 
 DE FINE FORCE (Law Pr.) Of neces- 
 sity; of pure necessity. Dyer, 41. See 
 "Fine Force." 
 
 DE FINE NON CAPIENDO PRO PUU- 
 chre placitando (Law Lat.) A writ prohib- 
 iting the taldng of fines for beaupleader. 
 Reg. Orig. 179. See "Beaupleader." 
 
 DE FINE PRO REDISSEISINA CA- 
 piendo (Law Lat.) A writ which lay for the 
 release of one imprisoned for a redisselsin, 
 on payment of a reasonable fine. Reg. Orig. 
 
 222b. 
 
 DE FINIBUS LEVATIS. Concerning fines 
 levied. The title of St. 27 Edw. I., requir- 
 ing fines thereafter to be levied, to be read 
 openly and solemnly in court. 2 Inst. 521; 
 Barr. Obs. St. 176. 
 
 DE FORISFACTURE MARITAGII. A 
 
 writ of forfeiture of marriage. Reg. Orig. 
 163, 164. 
 
 DE FRANGENTIBUS PRISONAM. Con- 
 cerning those that break prison. The title 
 of St. 1 Edw. II., ordaining that none from 
 
DE FURTO 
 
 (250) 
 
 DE INJURIA 
 
 thenceforth who broke prison should have 
 judgment of life or limb for breaking prison 
 only, unless the cause for Which he was 
 taken and imprisoned required such a judg- 
 ment if he was lawfully convicted thereof. 
 2 Reeve, Hist. Eng. Law, 290; 2 Inst. 589. 
 
 DE FURTO. Of theft. One of the kinds 
 of criminal appeal formerly in use in Eng- 
 land. 2 Reeve, Hist. Eng. Law, 40. 
 
 QE GESTU ET FAMA. Of behavior and 
 reputation. An old writ vifhich lay in cases 
 where a person's conduct and reputation 
 were impeached. Lambard, Eiren. lib. 4, c. 
 14. 
 
 DE GRATIA. Of grace or favor; by favor. 
 Fleta, lib. 2, c. 57, § 11. De speciali gratia, 
 of special grace or favor. Id. 
 
 DE GRATIA SPECIALI CERTA SCIEN- 
 
 tia et mero motu, talis clausula non valet in 
 his in quibus praesumitur principem esse 
 ignorantem. The clause "of our special 
 grace, certain knowledge, and mere motion," 
 is of no avail in those things in which it is 
 presumed that the prince was ignorant. 1 
 Coke, 53. 
 
 DE GROSSIS ARBORIBUS DECIMAE 
 non dabuntur sed de sylvia caedua decimae 
 dabuntur. Of whole trees, tithes are, not 
 given; hut of wood cut to be used, tithes are 
 given. 
 
 DE HAEREDE DELIBERANDO ALTERI 
 qui habet custodium terrae. An ancient writ, 
 directed to the sheriff, to require one that 
 had the body of an heir, being in ward, to 
 deliver him to the person whose ward he 
 was by reason of his land. Reg. Qrig. 161. 
 
 DE HAEREDE DELIBERANDO ILLI QUI 
 habet custodiam terrae. Writ for deliver- 
 ing an heir to him who has wardship of the 
 land. A writ directed to the sheriff, to re- 
 quire one that had the body of him that 
 was ward to another to deliver him to the 
 person whose ward he was by reason of his 
 land. Reg. Grig. 161. 
 
 DE HAEREDE RAPTO ET ABDUCTO. 
 
 Writ concerning an heir ravished and car- 
 ried away. A writ which anciently lay for 
 a lord who, having by right the wardship 
 of his tenant under age, could not obtain 
 his body, the same being carried away by 
 another person. Reg. Grig. 163; Old Nat. 
 Brev. 93. 
 
 -DE HAERETICO COMBURENDO (Lat 
 for burning a heretic). A writ which lay 
 where a heretic had been convicted of here- 
 sy, had abjured, and had relapsed into her- 
 esy. Said to be very ancient. 4 Bl. Comm. 
 46. 
 
 DE HOMAGIO RESPECTUANDO. A writ 
 for respiting or postponing homage. Pltzh. 
 Nat. Brev. 269 (A). 
 
 DE HOMINE CAPTO IN WITHERNAM 
 (Lat. for taking a man in withernam). A 
 
 writ to take a man who had carried away a 
 bondman or bondwoman into another coun- 
 try beyond the reach of a writ of replevin. 
 3 Bl. Comm. 129. 
 
 DE HOMINE REPLEGIANDO (Lat. for 
 replevying a man). A writ which lies to 
 replevy a man out of prison, or out of tha 
 custody of a private person, upon giving 
 security to the sheriit that the man shall be 
 forthcoming to answer any charge against 
 him. Pitzh. Nat. Brev. 66; 3 Bl. Comm. 
 129. The statute — which had gone nearly 
 out of use, having been superseded by the 
 writ of habeas corpus— ha.s been revived 
 within a few years in some of the Uniteii 
 States in an amended and more effectual 
 form. 1 Kent, Comm. 404, note; Gen. St. 
 Mass. c. 144, § 42 et seq. 
 
 DE IDENTITATE NOMINIS. A writ 
 which lay for one arrested in a personal 
 action, and committed to prison uijder a 
 mistake as to his identity, the proper de- 
 fendant bearing the same name. Reg. Grig. 
 194. 
 
 DE IDIOTA INQUIRENDO (Law Lat.) A 
 writ to inquire whether a man be an idiot or 
 not. Reg. Grig. 266; Pitzh. Nat. Brev. 232 
 (A) ; 1 Bl. Comm. 303. 
 
 DE IIS QUI PONENDI SUNT IN ASSISIS. 
 Of those who are to be put on assizes. The 
 title of a statute passed 21 Edw. I., defin- 
 ing the qualifications of jurors. Crabb, Hist. 
 Eng. Law, 167, 189; 2 Reeve, Hist. Eng. 
 Law, 184. 
 
 DE INCREMENT© (Lat. of increase). 
 Costs de inoremento, costs of increase, — that 
 is, which the court assesses in addition to 
 the damages established by the' jury. See 
 "Costs de Incremento." 
 
 DE INFIRMITATE. Of infirmity. The 
 principal essoin in the time of Glanville; 
 afterwards called "de malo." 1 Reeve, Hist. 
 Eng. Law, 115. See "De Malo;" "Essoin." 
 
 DE INGRESSU. A writ of entry. Brao- 
 ton, fols. 318, 319. Reg. Grig. 227b, 231, 235- 
 237; Cowell. 
 
 DE INJURIA (Lat.) The full form is de 
 injuria sua propria absque tali causa, of his 
 own wrong without such cause; or, where 
 part of the plea is admitted, absque residua 
 causae, without the rest of the cause. 
 
 In Pleading. The replication by which 
 
 in an action of tort the plaintiff denies the 
 effect of excuse or justification offered by the 
 defendant. , 
 
 It can only be used where the defendant 
 pleads matter merely in excuse and not in 
 justification of his act. It is confined to 
 those instances in which the plea neither de- 
 nies the original existence of the right 
 which the defendant is charged with hav- 
 ing violated, nor alleges that it has been 
 released or extinguished, but setq up some 
 new matter as a sufficient excuse or cause 
 for that which would otherwise and in its 
 
DE INOFFICIOSO TESTAMKNTO (251) 
 
 DE MALO LECTI 
 
 own nature be wrongful. It cannot, there- 
 fore, be properly used when the defendant's 
 plea alleges any matter in the nature of ti- 
 tle, interest, authority, or matter of record. 
 8 Coke, 66; 1 Bos. & P. 76; 4 Johns. (N. Y.) 
 159, note; 5 Johns. (N. Y.) 112; 12 Johns. 
 (N. Y.) 491; 1 Wend.' (N. Y.) 126; 8 Wend. 
 (N. Y.) 129; 25 Vt. 328; Staph. PI. 276. 
 
 DE INOFFICIOSO TESTAMENTO. Con- 
 cerning an inofficious or undutHul will. A 
 title of the civil law. Dig. 5. 2; Inst. 2. 18. 
 
 DE INTEGRO. Anew; a second time. 1 
 Vern. 223, 232. 
 As it was before. 5 Maule & S. 222. 
 
 DE INTRUSIONE. A writ of intrusion; 
 where a stranger entered after the death of 
 the tenant, to the injury of the reversioner. 
 Reg. Grig. 233b. 
 
 DE JACTURA EVITANDA. For avoiding 
 a loss^ A phrase applied to a defendant, as 
 de lucro captando is to a plaintff. 1 Litt. 
 (Ky.) 51. 
 
 DE JUDAISMO, STATUTUM. The name 
 of a statute passed in the reign of Edward 
 I., which Lcnacted severe penalties against 
 the Jews. Barr. Obs. St. 197. 
 
 DE JUDICATO SOLVENDO. For pay- 
 ment of the amount adjudged. A term ap- 
 plied in the Scotch law to bail to the ac- 
 tion, or special bail. Clerke, Prax. tit. 11. 
 
 DE JUDICIIS. Of judicial proceedings. 
 The title of the second part of the Digests or 
 Pandects, including the fifth, sixth, seventh, 
 eighth, ninth, tenth, and eleventh books. 
 See Dig. proem. § 3. 
 
 DE JUDICIO SISTI. For appearing in 
 court. A term applied in the Scotch and 
 admiralty law to bail for a defendant's ap- 
 pearance. Clerke, Prax. tit. 11. 
 
 DE JURE. Rightfully; of right; lawfully; 
 by legal title. Contrasted with de facto (q. 
 V.) 4 Bl. Comm. 77. 
 
 Of right; distinguished from de gratia, by 
 favor. By law, distinguished from de aequi- 
 tate, by equity. 
 
 DE JURE DECIMARUM, ORIGINEM 
 ducens de jure patronatus, tunc cognitio 
 spectat at legem civllem, i. e., communem. 
 With regard to the right of tithes, deducing 
 its origin from the right of the patron, then 
 the cognizance of them belongs to the civil 
 law, — ^that is, the common law. Godb. 63. 
 
 DE JURE JUDICES, DE FACTO JURA- 
 tores, respondent. The judges , answer con- 
 cerning the law, the jury concerning the 
 facts. See Co. Litt. 295; Broom, Leg. Max. 
 (3d London Ed.) 99. 
 
 DE LA PLUS BELLE (Fr. of the fairest). 
 A kind of dower. So called because as- 
 signed from the best part of the husband's 
 estate. It was connected with the military 
 tenures, and was abolished, with them, by 
 St. 12 Car. II. c. 24.. Litt. § 48; 2 Bl. Comm. 
 132, 135; 1 Washb. Real Prop. 149, note. 
 
 DE LATERE. From the side; on the 
 side; collaterally; of collaterals. Code, 5. 
 6. 6. 
 
 DE LEGATIS ET FIDEI COMMISSIS. Of 
 legacies and trusts. Dig. 30. 
 
 DE LEPROSO AMOVENDO. Writ for re- 
 moving a leper. A writ to remove a leper 
 who thrust himself into the company of his 
 neighbors in any parish, in public or pri- 
 vate places, to their annoyance. Reg. Orig. 
 267; Fitzh. Nat. Brev. 234 (B) ; New Nat. 
 Brev. 521. 
 
 DE LIBERA FALDA. Writ of free fold. 
 A species of quod permittat. Reg. Orig. 155. 
 
 DE LIBERA PISCARIA. Writ of free 
 fishery. A species of quod permittat. Reg. 
 Orig, 155. 
 
 DE LIBERO PASSAGIO. Writ of free 
 passage. A species of quod permittat. Reg. 
 Orig. 155. 
 
 DE LIBERTATE PROBANDA. Writ for 
 proving liberty. A writ which lay for such 
 as, being demanded for villeins or niefs, 
 offered to prove themselves free. Reg. Orig. 
 87b; Fitzh. Nat. Brev. 77 (F). 
 
 DE LIBERTATIBUS ALLOCANDIS (Lat. 
 for allowing liberties). A writ, of various 
 forms, to enable a citizen to recover the 
 liberties to which he was entitled. Fitzh. 
 Nat. Brev. 229; Reg. Orig. 262. 
 
 DE LICENTIA TRANSFRETANDI. Writ 
 of permission to cross the sea. An old writ 
 directed to the wardens of the port of Do- 
 ver, or other seaport in England, command- 
 ing them to permit the persons named in 
 the writ to cross the sea from such port, 
 on certain conditions. Reg. Orig. 193b. 
 
 DE LUNATICO INQUIRENDO (Lat.) 
 The name of a writ directed to the sheriff, 
 directing him to inquire by good and lawful 
 men whether the party charged is a lunatic 
 or not. See 4 Rawle (Pa.) 234; 1 Whart. 
 (Pa.) 52; 5 Halst. (N. J.) 217; 6 Wend. (N. 
 Y.) 497. 
 
 DE MAGNA ASSISA ELIGENDA (Law 
 Lat.) Writ of or for choosing the grand as- 
 size. A writ directed to the sheriff to sum- 
 mon four lawful knights, before the justices 
 of assize, there upon their oaths, to choose 
 twelve knights of the vicinage to be joined 
 with them, which sixteen knights consti- 
 tuted the grand assize, or great jury, which 
 was to try the matter of right in a writ of 
 right. Reg. Orig. 8; Fitzh. Nat. Brev. 4(F): 
 3 Bl. Comm. 351. Abolished by St. 3 & 4 
 Wm. IV. c. 27. See "Grand Assize." 
 
 DE MAJORI ET MINOR! NON VARIANT 
 Jura. Concerning major and minor, laws do 
 not vary. 2 Vern. 552. 
 
 DE MALO. Of illness. See "De Malo 
 Lecti." 
 
 DE MALO LECTI (Law Lat.; Law Fr. de 
 mal de lyt). Of infirmity or illness of (in) 
 bed. Closely rendered, in old Scotch law. 
 
DE MANUCAPTIARE 
 
 (252) DE NON PROCEDENDO, ETC. 
 
 bed-evil (bedde-evill) . A species of es- 
 soin or excuse for nonappearance in court, 
 formerly allowed a defendant in England, 
 and more anciently called de infirmitate de 
 reseantisa; the excuse being that the . de- 
 fendant was confined to his house in bed 
 {lectus) by infirmity or indisposition (.mal- 
 um). Glanv. lib. 1, c. 18, 19; Braoton, fol. 
 337, 344b; Britt. cc. 122, 123; Fleta, lib. G, 
 c. 10; 1 Reeve, Hist. Eng. Law, 115, 412; 
 Skene de Verb. Sign. voc. "Reseantisa." 
 This essoin commonly followed immediately 
 upon that de malo ccniendo (infra) ; for where 
 a person, having been detained on the road 
 by sickness, and having cast the essoin de 
 malo venkiuU, had found himself obliged to 
 return home, the order of essoins, conform- 
 ably with what was likely to be the real fact, 
 led to the essoin de malo lecti. 1 Reeve, 
 Hist. Eng. Law, 412; Bracton, fol. 344b. 
 
 DE MANUCAPTIARE (Lat. of mainprize). 
 A writ directed to the sheriff, commanding 
 him to take sureties for the prisoner's ap- 
 pearance, — usually called mainpernors, — and 
 to set him at large. Pitzh. Nat. Brev. 250; 
 1 Hale, P. C. 141; Coke, "Ball & Mainprize," 
 c. 10; Reg. Orig. 268b. 
 
 DE MANUTENENDO. Writ of mainte- 
 nance. A writ which lay against a person 
 for the offense of maintenance. Reg. Orig. 
 lS2b, 189. 
 
 DE MEDIETATE LINGUAE. See "Medie- 
 tas Linguae." 
 
 DE MEDIO (Lat. of the mesne). A writ in 
 the nature of a writ of right, which lies 
 where, upon a subinfeudation, the mesne (or 
 middle) lord suffers his under tenant or 
 tenant paravail to be distrained upon by the 
 lord paramount for the rent due him from 
 the mesne lord. Booth, Real Actions, 136; 
 Pitzh. Nat. Brev. 135; 3 Sharswood, Bl. 
 Comm. 234; Co. Lift. 100a. 
 
 DE MELIORIBUS DAMNIS (Lat.) Of the 
 better damages. When a plaintiff has sued 
 several defendants, and the damages have 
 been assessed severally against each, he has 
 the choice of selecting the best, as he can- 
 not recover the whole. This Is done by 
 making an election de melioribus damnis. 
 
 DE MERCATORIBUS, THE STATUTE. 
 
 The statute of Acton Burnell. See "Acton 
 Burnell." 
 
 DE MINIMIS NON CURAT LEX. The 
 law does not notice (or care for) trifling 
 matters. Broom, Leg. Max. (3d London 
 Ed.) 134; Hob. 88; 5 Hill (N. Y.) 170. 
 
 DE MINIS. Writ of threats. A writ 
 which lay where a person was threatened 
 with personal violence, or the destruction of 
 his property, to compel the offender to keep 
 the peace. Reg. Orig. 88b, 89; Pitzh. Nat. 
 Brev. 79 (G), 80. 
 
 DE MITTENDO TENOREM RECORDI. 
 
 A writ to send the tenor of a record, or to 
 exemplify it under the great seal. Reg. 
 Orig. 220b. 
 
 DE MODERATA MISERICORDIA CA- 
 plenda. Writ for taking a moderate amerce- 
 ment. A writ, founded on Magna Charta 
 (c. 14), which lay for one who was exces- 
 sively amerced in a court not of record, -di- 
 rected to the lord of the court, or his bailiff, 
 commanding him to take a moderate amerce- 
 ment of the party. Reg. Orig. 86b; Pitzh. 
 Nat. Brev. 75, 76. 
 
 DE MODO DECIMANDI (Lat. of a manner 
 of taking tithes). A prescriptive manner of 
 taking tithes, different from the general law 
 of taking tithes in kind. It is usually by a 
 compensation either in work or labor, and 
 is generally called a modus. 1 Keb. 162; 1 
 Rolle, Abr. 649; 1 Lev. 179; Cro. Eliz. 446; 
 Salk. 657; 2 P. Wms. 462; 2 Russ. & M. 102; 
 4 Younge & C. 269, 283; 12 East, 35; 2 
 Sharswood, Bl. Comm. 29 et seq.; 3 Stepli. 
 Comm. 130. 
 
 DE MOLENDINO DE NOVO ERECTO 
 non jacet prohibitio. A prohibition lies not 
 against a new-erected mill. Cro. Jac. 429. 
 
 DE MORTE HOMINIS NULLA EST 
 cunctatio longa. When the death of a hu- 
 man being may be concerned, no delay is 
 long. Co. Litt. 134. When the question is 
 concerning the life or death of a man, no 
 delay is too long to admit of inquiring into 
 facts. 
 
 DE NATIVO HABENDO (Law Lat.; Law 
 Pr. brief e do naife). Writ for having one's 
 villein. A writ which lay for a lord whose 
 villein had fled from him (fngitivo) , di- 
 rected to the sheriff, commanding him to 
 apprehend the villein, and restore him, with 
 all his chattels, to the lord. Reg. Orig. 87; 
 Pitzh. Nat. Brev. 77; Roscoe, Real Actions, 
 34. 
 
 DE NOMINE PROPRIO NON EST CU- 
 randum cum In substantia non erretur; quia 
 nomlna mutabllia sunt, res autem immobiles. 
 As to the proper name, it is not to be re- 
 garded when one errs not in substance; be- 
 cause names are changeable, but things are 
 immutable. 6 Coke, 66. 
 
 DE NON APPARENTIBUS ET NON EX- 
 istentibus eadem est lex. The law is the 
 same respecting things which do not ap- 
 pear and those which do not exist. 6 Ired. 
 (N. C.) 61; 12 How. (U. S.) 253; 5 Coke, 
 6; 6 Bing. N. C. 453; 7 Clark & P. 872; 5 C. 
 B. 53; 8 C. B. 286; 1 Term R. 404; Broom, 
 Leg. Max. (3d London Ed.) 150. 
 
 DE NON DECIMANDO (Lat. of not taking 
 tithes). An exemption by custom from pay- 
 ing tithes is said to be a prescription de 
 non decimando. A claim to be entirely dis- 
 charged of the payment of tithes, and to 
 pay no compensation in lieu of them. Cro. 
 Eliz. 511; 3 Sharswood, Bl. Comm. 31. , 
 
 DE NON PROCEDENDO AD ASSISAM. 
 
 Writ for not proceeding to take an issue. A 
 writ, directed to the justices assigned to hold 
 assizes, commanding them not to proceed 
 to take an assize in a particular case. Reg. 
 Orig. 221. 
 
DE NON RESIDENTIA, ETC. 
 
 (253) 
 
 DE PLAGIS ET MAHEMIO 
 
 DE NON RESIDENTIA CLERICI REGIS. 
 
 An ancient writ where a parson was em- 
 ployed in the royal service, etc., to excuse 
 and discharge him of nonresidence. 2 Inst. 
 264. 
 
 DE NON SANE MEMORIE (Law Pr.) Of 
 
 unsound memory or mind; a phrase synony- 
 
 . mous with noii compos mentis. Litt. § 405; 
 
 Plowd. 368. Stock, Non Compos Mentis, 1. 
 
 DE NOVI OPERIS NUNCIATIONE (Lat.) 
 In civil law. A form, of injunction or in- 
 terdict which lies In some cases for the 
 party aggrieved, where a thing is intended 
 to he done against his right. Thus, where 
 one huild a house contrary to the usual and 
 received form of building, to the injury of 
 his neighbor, there lies such an injunction, 
 which, being served, the offender is either 
 to desist from his work, or to put in sure- 
 ties that he shall pull it down if he does not 
 in a short time avow, i. e., show, the lawful- 
 ness thereof. Ridley, Civ. & Ecc. Law, pt. 
 1, c. 1, § 8. 
 
 DE NOVO (Lat.) Anew; afresh. When 
 a judgment upon an issue in part is re- 
 versed on error for some mistake made by 
 the court in the course of the trial, a venire 
 de novo is awarded, in order that the case 
 may again be submitted to a jury. 
 
 DE NULLO, QUOD EST SUA NATURA 
 indivisibile, et divisionem non patitur, nul- 
 lam partem habebit vidua, sed satisfaciat 
 ei ad valentiam. A widow shall have no 
 part from that which in its own nature is 
 Indivisible, and is not susceptible of divi- 
 sion, but let the heir satisfy her with an 
 equivalent. Co. Litt. 32. 
 
 DE NULLO TENEMENTO, QUOD TENE- 
 tur ad terminum, fit homagii, fit tamen 
 inde fideiitatis sacramentum. In no tene- 
 ment which is held for a term of years is 
 there an avail of homage; but there is the 
 oath of fealty. Co. Litt. 67b. 
 
 DE ODIO ET ATIA (Lat. of hatred and 111 
 will). A writ directed to the sheriff, com- 
 manding him to inquire whether a person 
 charged with murder was committed upon 
 just cause of suspicion, or merely propter 
 odium et atiam, through hatred and ill will; 
 and if, upon the inquisition, due cause of 
 suspicion did not appear, then there issued 
 another writ for the sheriff to admit him to 
 bail. 3 Sharswood, Bl. Comm. 128. 
 
 DE OFFICE (Law Pr.) Of office; in vir- 
 tue of office; officially; in the discharge of 
 ordinary duty. Le cotirt d'ofjlce est tenv, 
 the court is bound in virtue of its office. Y. 
 B. H. 4 Hen. VI. 16. 
 
 The phrase corresponds to the Latin vir- 
 tute officii. 
 
 DE ONERANDO PRO RATA PORTIONE. 
 
 Writ for charging according to a ratable 
 proportion. A writ which lay for a joint 
 tenant, or tenant in common, who was dis- 
 trained for more rent than his proportion 
 of the land came to. Reg. Grig. 182; Fitzh. 
 Nat. Brev. 234 (H). 
 
 DE PACE ET LEGALITATE TUENDA 
 
 (Law Lat.) For keeping the peace, and for 
 good behavior. Tradat fLdejussores de pace 
 et legalitate tiienda, he shall deliver or find 
 sureties for keeping the peace and good be- 
 havior. LL. Edw. Conf. c. 18; 4 Bl. Comm. 
 252, 254; Spelman, voc. "Legalitas." 
 
 DE PACE ET PLAGIS. Of peace (breach 
 of peace), and wounds. One of the kinds of 
 criminal appeal formerly in use in England, 
 and which lay in cases of assault, wound- 
 ing, and breach of the peace. Bracton, fol. 
 144; 2 Reeve, Hist. Eng. Law, 33. 
 
 DE PACE ET ROBERIA. Of peace 
 (breach of peace) and robbery. One of 
 the kinds of criminal appeal formerly in 
 use in England, and which lay in cases of 
 robbery and breach of the peace. Bracton, 
 fol. 146 ; 2 Reeve, Hist. Eng. Law, 37. 
 
 DE PALABRA (Spanish). By word; by 
 parol. White, New Recop. bk. 2, tit. 19, c. 3, 
 § 2. 
 
 DE PARCO FRACTO (Lat. of pound 
 breach). A writ which lay where cattle 
 taken in distress were rescued by their own- 
 er after being actually impounded. Pitzh. 
 Nat. Brev. 100; 3 Bl. Comm. 146; Reg. Orig. 
 116b; Co. Litt. 47b. 
 
 DE PARTITIONS FACIENDA (Lat. for 
 making partition). The ancient writ for the 
 partition of lands held by tenants in com- 
 mon. 
 
 DE PERAMBULATIONE FACIENDA (Lat. 
 for making a perambulation). A writ which 
 lay where there was a dispute as to the 
 boundaries of two adjacent lordships or 
 towns, directed to the sheriff, commanding 
 him to take with him twelve discreet and 
 lawful knights of his county, and make the 
 perambulation, and set the bounds and lim- 
 its in certainty. Pitzh. Nat. Brev. 
 
 DE PIGNORE SURREPTO FURTI, AC- 
 
 tio. In civil law. An action to recover a 
 pledge stolen. Inst. 4. 1. 14. 
 
 DE PIPA VINI CARIANDA. A writ of 
 trespass for carrying a pipe of wine so care- 
 lessly that it was stove, and the contents 
 lost. Reg. Orig. 110. Alluded to by Sir Wil- 
 liam Jones in his remarks on the case of 
 Coggs V. Barnard, 2 Ld. Raym. 909. Jones, 
 Bailm. 59. 
 
 DE P LAC I TO (Law Lat. of a plea; of or 
 in an action). Formal words used in dec- 
 larations and other proceedings, as descrip- 
 tive of the particular action brought. De 
 placito debiti, of a plea of debt; de placilo 
 conventionis fractae, of a plea of breach of 
 covenant; de placito transgressionis, of a 
 plea of trespass; de placito transgressionis 
 super casum, of a plea of trespass on the 
 case. Towns. PI. 162-165. See the older 
 forms in Fleta, lib. 2, c. 65, § 12. See 
 "Placitum." 
 
 DE PLAGIS ET MAHEIVIIO. Of wounda 
 and mayhem. The name of a criminal ap- 
 
DEPLANO 
 
 (254) 
 
 DE RECTO PATENS 
 
 peal formerly in use in England in cases 
 of wounding and maiming. Bracton, fol. 
 144b; 2 Reeve, Hist. Eng. Law, 34. See 
 "Appeal." 
 
 DE PLANO (Lat.) 
 
 In Civil Law. Witliout form; in a 
 
 summary manner. The praetor was said to 
 administer justice in this way (dfe piano cog- 
 noscere) when he did so standing on the 
 ground, or on the same level with the suit- 
 ors, instead of occupying a tribunal (pro 
 tribiinali) elevated seat, or "bench," as it 
 was termed in the English law. See "Bench." 
 The' French de plain is derived from this. 
 
 In Common Law. Clearly; manifestly. 
 
 The phrase is used in this classical sense in 
 the statute De Bigamis (4 Edw. I.) 
 
 By covin or collusion. St. Westminster II. 
 c. 4. This did not mean by default. Id.; 2 
 Inst. 349. See 2 Reeve, Hist. Eng. Law, 191; 
 4 Reeve, Hist. Eng. Law, 23, 34, 36. 
 
 In Scotch Practice. Forthwith. 2 Ali- 
 son, Prac. 650. 
 
 DE PLEGIIS ACQUIETANDIS (Lat. for 
 clearing pledges). A writ which lay where 
 one had become surety for another to pay 
 a sum of money at a specified day, and the 
 principal failed to pay it. If the surety was 
 obliged to pay, he was entitled to this writ 
 against his principal. Fitzh. Nat. Brev. 
 37 (C); 3 Reeve, Hist. Eng. Law, 65. 
 
 DE PONENDO SIGILLUM AD EXCEP- 
 
 tionem. Writ for putting a seal to an ex- 
 ception. A writ by which justices were 
 formerly commanded to put their seals to 
 exceptions taken by a party in a suit. Reg. 
 Orig. 182. 
 
 DE POST DISSEISINA. Writ of post dis- 
 seisin. A writ which lay for him who, hav- 
 ing recovered lands or tenements by prae- 
 cipe quod reddat, on default, or reddltion, 
 was again disseised by the former disseisor. 
 Reg. Orig. 208; Fitzh. Nat. Brev. 190. 
 
 DE PRAEROGATIVA REGIS (Law Lat. 
 of the king's prerogative). The title of St. 
 17 Edw. II. St. 1, defining the prerogatives 
 of the crown on certain subjects, partly of 
 a feudal and partly of a political or general 
 nature. Crabb, Hist. Eng. Law, 204 et seq.; 
 Barr. Obs. St. 202; Hale, Hist. Com. Law, 
 c. 8. 
 
 DE PRAESENTI. Of the present; in the 
 present tense. See "Per Verba de Praesen- 
 ti." 
 
 DE PROPRIETATE PROBANDA (Lat. 
 for proving property). A writ which is- 
 sues in a case of repleviii, when the de- 
 fendant claims property in the chattels re- 
 plevied, and the sheriff makes a return ac- 
 cordingly. The writ directs the sheriff to 
 summon an inquest to determine on the 
 validity of the claim; and, if they find for 
 the defendant, the sheriff merely returns 
 their finding. The plaintiff is not concluded 
 by such finding. He may come into the 
 court above and traverse it. Hammond, N. 
 P. 456. 
 
 DE QUIBUS SUR DISSEISIN. An an- 
 cient writ of entry. 
 
 DE QUO, or DE QUIBUS. Of which. 
 Formal words in the simple writ of entry, 
 from which it was called a writ of entry "in 
 the quo," or "in the quihus." 3 Reeve, Hist. 
 Eng. Law, 33. 
 
 DE QUOTA LITIS (Lat.) In civil law. A 
 contract by which one who has a claim dif- 
 ficult to recover agrees with another to give 
 a part, for the purpose of obtaining his serv- 
 ices to recover the rest. 1 Duv. note 201. 
 See "Champerty." 
 
 DE RAPTU VIRGINUIVI. Of the ravish- 
 ment of maids. The name of an appeal for- 
 merly in use in England in cases of rape. 
 Bracton, fol. 147; 2 Reeve, Hist. Eng. Law, 
 38. 
 
 DE RATIONABILI PARTE BONORUM 
 (Lat. of a reasonable part of the goods). A 
 writ to enable the widow and children of a 
 decedent to recover their proper shares of 
 the inheritance. 2 Bl. Comm. 492. The 
 writ is said to be founded on the customs of 
 the counties, and not on the common-law al- 
 lowance. Fitzh. Nat. Brev. 122 (L). 
 
 DE RATIONALIBUS DIVISIS (Lat. for 
 reasonable boundaries). A writ which lies 
 to determine the boundaries between the 
 lands of two proprietors, which lie in dif- 
 ferent towns. The writ is to be brought by 
 one against the other. Fitzh. Nat. Brev. 
 128 (M) ; 3 Reeve, Hist. Eng. Law, 48. 
 
 DE REBUS. Of things. The title of the 
 third part of the Digests or Pandects, com- 
 prising the twelfth, thirteenth, fourteenth, 
 fifteenth, sixteenth, seventeenth, eighteenth, 
 and nineteenth books. 
 
 DE REBUS DUBIIS. Of doubtful things 
 or matters. Dig. 34. 5. 
 
 DE RECORDO ET PROCESSU IMITTEN- 
 dis. Writ to send the record and process 
 of a cause to a superior court; a species of 
 writ of error. Reg. Orig. 209. 
 
 DE RECTO. Writ of right. Reg. Orig. 1, 
 2; Bracton, fol. 327b. 
 
 DE RECTO DE ADVOCATIONE (Lat. ,of 
 right of advowson; called, also, de droit de 
 advocatione). A writ which lay to restore the 
 right of presentation to a benefice, for him 
 who had an advowson, to himself and heirs 
 in fee simple, if he was disturbed in the 
 presentation. Y. B. 39 Hen. VI. 20a; Fitzh. 
 Nat. Brev. 30 (B). 
 
 DE RECTO DE RATIONABILI PARTE. 
 
 Writ of right, of reasonable part. A writ 
 which lay between privies in blood, as be- 
 tween brothers in gavelkind, or between sis- 
 ters or other coparceners for lands in fee 
 simple, where one was deprived of his or her 
 share by another. Reg. Orig. 3b; Fitzh. Nat. 
 Brev. 9 (B). Abolished by St. 3 & 4 Wm. 
 IV. c. 27. 
 
 DE RECTO PATENS. Writ of right pat- 
 ent. Reg. Orig. 1. 
 
DE REDISSEISINA 
 
 (2S5) 
 
 DE UNA PARTE 
 
 DE REDISSEISINA. Writ of redisseisin. 
 A writ which lay where a man recovered, 
 hy assize of novel disseisin, land, rent, or 
 common, and the like, and was put in pos- 
 session thereof by -verdict, and afterwards 
 was disseised of the same land, rent, or com- 
 mon by him by whom he was disseised be- 
 fore. Reg. Orig. 206b; Pitzh. Nat. Brev. 
 188 (B). 
 
 DE REPARATIONE FACIENDA (Lat.) 
 The name, of a writ which lies by one ten- 
 ant in common against the other, to cause 
 him to aid in repairing the common prop- 
 erty. 8 Barn. & C. 269. 
 
 DE RESCUSSU. Writ of rescue. A writ 
 which lay where cattle distrained, or per- 
 sons arrested, were rescued from those tak- 
 ing them. Reg. Orig. 117, 118; Fitzh. Nat. 
 Brev. 101 (C), (G). 
 
 DE RETORNO HABENDO (Lat.) The 
 name of a writ issued after a judgment has 
 been given in replevin that the defendant 
 should have a return of the goods replev- 
 ied. See 3 Bouv. Inst, note 3376. 
 
 DE RIEN CULPABLE (Law Pr.) Guilty 
 of nothing; not guilty. Y. B. H. 7 Bdw. II. 
 224; Kellw. 3h. 
 
 DE SA VIE (Law Pr.) Of his or her lite; 
 of his own life; as distinguished from pur 
 autre vie, for another's life. Lltt. §§ 35, 36; 
 Crabb. Hist. Eng. Law, 383. 
 
 DE SALVA GUARDIA (Lat. of safeguard). 
 A writ to protect the persons of strangers 
 seeking their rights in English courts. Reg. 
 Orig. 26. 
 
 DE SALVO CONDUCTU. A writ of safe- 
 conduct. Reg. Orig. 25b, 26. 
 
 DE SCACCARIO. Of or concerning the 
 exchequer. The title of a statute passed In 
 the fifty-first year of Henry III. 2 Reeve, 
 Hist. Eng. Law, 61. 
 
 DE SCUTAGIO HABENDO (Lat. of hav- 
 ing scutage). A writ which lay In case a 
 man held lands of the king by knight's serv- 
 ice, to which homage, fealty, and escuage 
 were appendant, to recover the services or 
 fee due in case the knight failed to accom- 
 pany the king to the war. It lay also for 
 the tenant in capite, who had paid his fee, 
 against his tenants. Pitzh. Nat. Brev. 83 
 (C). 
 
 DE SE BENE GERENDO. For behaving 
 himself well; for his good behavior. Yelv. 
 90, 154. 
 
 DE SECTA AD MOLENDINUM (Lat. of 
 suit to a mill). A writ which lies to com- 
 pel one to continue his custom of grinding 
 at a mill. 3 Bl. Comm. 235; Fitzh. Nat. Brev. 
 122 (M) ; 3 Reeve, Hist. Eng. Law, 55. 
 
 DE SIMILIBUS AD SIMILIA EADEM 
 ratione procedendum est. Prom similars to 
 similars we are to proceed by the same rule. 
 Branch, Princ. 
 
 DE SIMILIBUS IDEM EST JUDICIUM. 
 Concerning similars the judgment is the 
 same. 7 Coke, 18. 
 
 DE SON TORT (Pr.) Of his own wrong. 
 This term is usually applied to a person 
 who, having no right to meddle with the 
 affairs or estate of a deceased person, yet 
 undertakes to do so by acting as executor of 
 the deceased. See "Executor." 
 
 DE STATUTO MERCATORIO (Law Lat.) 
 Writ of statute merchant. A writ which lay 
 for imprisoning him who had forfeited a 
 statute-merchant bond until the debt was 
 satisfied. Reg. Orig. 146b. There are sev- 
 eral writs under this head. Id. 148; Reg. 
 Jud. 8. See "Statute Merchant." 
 
 DE STATUTO STAPULAE (Law Lat.) 
 Writ of statute staple. A writ that lay to 
 take the body to prison, and seize upon the 
 lands and goods of one who had forfeited 
 the bond called "statute staple." Reg. Orig. 
 151. See "Statute Staple.' 
 
 DE SUPERONERATIONE PASTURAE 
 (Lat. of surcharge of pasture). A writ ly- 
 ing where one who had been previously im- 
 pleaded in the county court was again im- 
 pleaded in the same court for surcharging 
 common of pasture, and the cause was re- 
 moved to Westminster Hall. Reg. Jur. 36b. 
 
 DE TABULIS EXHIBENDIS. Of showing- 
 the tablets of a will. Dig. 43. 5. 
 
 DE TALLAGIO NON CONCEDENDO (Lat. 
 of not allowing talliage). The name given 
 to St. 34 Edw. I., restricting the power of 
 the king to grant talliage. Coke, 2d Inst. 
 532; 2 Reeve, Hist. Eng. Law, 104. 
 
 DE TEMPORE CUJUS CONTRARIUM 
 memoria hominum non existat (Law Lat.) 
 From time whereof the memory of man does 
 not exist to the contrary. Litt. § 170. 
 
 DE TEMPORE IN TEMPUS, ET AD OM- 
 nia tempera. From time to time, and at all 
 times. Towns. PI. 17. 
 
 DE TEMPS DONT MEMORIE NE COURT 
 (Law Pr.) From time whereof memory run- 
 neth not; time out of memory of man. Litt. 
 §§ 143, 145, 170; Dyer, 70. 
 
 DE TESTAMENTIS. Of testaments. The 
 title of the fifth part of the Digests or Pan- 
 dects; comprising the twenty-eighth to the 
 thirty-sixth books, both inclusive. 
 
 DE THEOLONIO. A writ which lay for a 
 person who was prevented from taking toll. 
 Reg. Orig. 103. 
 
 DE TRANSGRESSIONE. A writ of tres- 
 pass. Reg. Orig. 92. 
 
 DE TRANSGRESSIONE, AD AUDIEN- 
 
 dum et terminandum. A writ or commis- 
 sion for the hearing and determining any 
 outrage or misdemeanor. 2 Reeve, Hist. 
 Eng. Law, 170. 
 
 DE UNA PARTE (Lat.) A deed de una 
 
DE UXORE, ETC. 
 
 (256) 
 
 DEAD MAN'S PART 
 
 parte is one wliere only one party grants, 
 gives, or binds himself to do a thing to 
 another. It differs from a deed inter partes 
 (q. V.) 2 Bouv. Inst, note 2001. 
 
 DE UXORE RAPTA ET ABDUCTA (Lat. 
 of a wife ravished and carried away). A 
 kind of writ of trespass. Fitzh. Nat. Brev. 
 89 (O); 3 Sharswood, Bl. Comm. 139. 
 
 DE VASTO. Writ of waste. A writ which 
 might be brought by him who had the im- 
 mediate estate of inheritance in reversion 
 or remainder, against the tenant for life, in 
 dower, by curtesy, or for years, where the 
 latter had committed waste in lands; call- 
 ing upon the tenant to appear and show 
 cause why he committed waste and destruc- 
 tion in the place named, to the disinherison 
 (ad exhaeredationem) of the plaintiff. Reg. 
 Orig. 72-75; Reg. Jud. 17b; Fitzh. Nat. Brev. 
 55 (C); 3 Bl. Comm. 227, 228. Abolished 
 by St. 3 & 4 Wm. IV. c. 27; 3 Steph. Comm. 
 506. 
 
 DE VENTRE INSPICIENDO (Lat. of in- 
 specting the belly). A writ to inspect the 
 body, where a woman feigns to be pregnant, 
 to see whether she is with child. It lies for 
 the heir presumptive to examine a widow 
 suspected to be feigning pregnancy in order 
 to enable a supposititious heir to obtain the 
 estate. 1 Bl. Comm. 456; 2 Steph. Comm. 
 808; Cro. Eliz. 556; Cro. Jac. 685; 2 P. Wms. 
 593; 21 Viner, Abr. 547. 
 
 It lay also where a woman sentenced to 
 death pleaded pregnancy. 4 Bl. Comm. 495. 
 This writ has been recognized in America. 
 
 2 Chand. Am. Crim. Tr. 381. 
 
 DE VERBO IN VERBUM. Word for word. 
 Bracton, fol. 138b. Literally, from word to 
 word. Fleta uses de verbo ad verbum. Lib. 
 1, c. 21, § 3. 
 
 DE VERBORUM SIGNIFICATIONE. Of 
 
 the signification of words. An important 
 title of the Digests or Pandects (Dig. 50. 
 16), consisting entirely of definitions of 
 words and phrases used in the Roman law, 
 compiled from the writings of the best ju- 
 rists, such as Ulpian, Paulus, Pomponius, 
 Gaius, Scaevola, Javolenus, Celsus, Alfenus, 
 Florentinus, Callistratus, and others. 
 
 DE VI LAICA AMOVENDA. Writ of (or 
 for) removing lay force. A writ which lay 
 where two parsoos contended for a church, 
 and one of them entered into it with a great 
 number of laymen, and held out the other 
 vi et armis; then he that was holden out 
 had this writ directed to the sheriff, that he 
 remove the force. Reg. Orig. 59; Fitzh. Nat. 
 Brev. 54 (D). 
 
 DE VICINETO (Lat. from the neighbor- 
 hood). The sheriff was anciently directed 
 in some cases to summon a jury de vicineto. 
 
 3 Bl. Comm. 360. 
 
 DE WARRANTIA CHARTAE (Lat. of 
 warranty of charter). This writ lieth prop- 
 erly where a man doth enfeoff another by 
 deed, and bindeth himself and heirs to war- 
 ranty. Now, if the defendant be impleaded 
 
 in an assize, or in a writ of entry in the 
 nature of an assize, in which actions he 
 cannot vouch, then he shall have the writ 
 against the feoffor or his heirs who made 
 such warranty. Pitzh. Nat. Brev. 134 (D); 
 Cowell; Termes de la Ley; Blount; 3 Reeve, 
 Hist. Eng. Law, 55. 
 
 DE WARRANTIA DIEI. A writ which lay 
 for a party in the service of the king who 
 was required to appear in person on a cer- 
 tain day, commanding the justices not to 
 record his default, the king certifying to the 
 fact of such service. Fitzh. Nat. Brev. 36. 
 
 DEACON. In ecclesiastical law. A minis- 
 ter or servant in the church, whose ofiice in 
 some churches is to assist the priest in di- 
 vine service, and in the distribution of the 
 sacrament. 
 
 DEAD BODY. A coipse. 
 
 DEAD BORN. A dead-born child is to be 
 considered as if it had never been conceived 
 or born; in other words, it is presumed it 
 never had life, it being a maxim of the com- 
 mon law that mortuus exitus non est exitus. 
 Co. Litt. 29b. See 2 Paige, Ch. (N. Y.) 35; 
 Domat, liv. prel. tit. 2, § 1, notes 4, 6; 4 Ves. 
 334. 
 
 This is also the doctrine of the civil law. 
 Dig. 50. 16. 120. Non nasci, et natum mori, 
 pari sunt, not to be born, and to be born 
 dead, are equivalent. Mortuus exitus non 
 est exitus, a dead birth is no birth. Civ. 
 Code La. art. 28. 
 
 DEAD FREIGHT. The amount paid by a 
 charterer for that part of the vessel's ca- 
 pacity which he does not occupy, although 
 he has contracted for it. 
 
 When the charterer of a vessel has shipped 
 part of the goods on board, and is not ready 
 to ship the remainder, the master, unless 
 restrained by. his special contract, may take 
 other goods on board, and the amount which 
 is not supplied, required to complete the 
 cargo, is considered dead freight. The dead 
 freight is to be calculated according to the 
 actual capacity of the vessel. 3 Chit. Com. 
 Law, 399; 2 Starkie, 450. 
 
 DEAD LETTERS. Letters transmitted 
 through the mails according to direction, 
 and remaining for a specified time uncalled 
 for by the persons addressed, are called 
 "dead letters." 
 
 DEAD MAN'S PART. That portion of the 
 personal estate of a person deceased which, 
 by the custom of London, became the ad- 
 ministrator's. 
 
 If the decedent left wife and children, 
 this was one-third of the residue after de- 
 ducting the widow's chamber. If only a 
 widow, or only children, it was one-half. 1 
 P. Wms. 341; Salk. 246. If neither widow 
 nor children, It was the whole. 2 Show. 175. 
 This provision was repealed by St. 1 Jac. II. 
 c. 17, and the same made subject to the stat- 
 ute of distributions. 2, Sharswood, Bl. 
 Comm. 5, 8. 
 
DEAD PLEDGE 
 
 (257) 
 
 DEBENTURE STOCK 
 
 DEAD PLEDGE. A mortgage. 
 
 DEAD RENT. A rent payable on a min- 
 ing lease in addition to a royalty. So called 
 because it is payable, although the mine may 
 not be worked.' Wharton. 
 
 DEAD USE. A future use. 
 
 DEADHEAD. A term applied to persons 
 other than the officers or employes of a rail- 
 road company who are permitted by the rail- 
 road to travel without payment of fare. 
 Phil. Law (61 N. C.) 22. 
 
 DEADLY FEUD (Lat. fuida mortalis, or 
 mortifera). A profession of irreconcilable 
 hatred against an enemy, until revenge were 
 obtained even by his death. This was al- 
 lowed by the ancient Saxon laws, where a 
 man had been killed, and no pecuniary sat- 
 isfaction had been made to his kindred. 
 Spelman, voc. "Faida." The term was also 
 applied to the predatory warfare carried on 
 in the northern borders of England. St. 43 
 Eliz. c. 13: 4 Bl. Comm. 244. See "Paida." 
 
 A dangerous weap- 
 
 DEADLY WEAPON. 
 
 on ((/. V.) 
 
 DEAD'S PART. In Scotch law. The part 
 remaining over beyond the shares secured to 
 the widow and children by law. Of this the 
 testator had the unqualified disposal. Stair, 
 Inst. lib. iii. tit. 4, § 24; Bell, Diet.; Pater- 
 son, Comp. §§ 674, 848, 902. 
 
 DEAFFOREST. In old English law. To 
 discharge from being forest; to free from 
 forest laws. 
 
 DEALER. One who buys to sell again. 
 27 Pa. St. 495. 
 
 DEALINGS. Transactions in the course of 
 business. Two sales of goods by one to a 
 firm constitute "dealings" with it, so as to 
 entitle one to notice of dissolution. 2 Barb. 
 (N. Y.) 549. 
 
 DEAN. In ecclesiastical law. An eccle- 
 siastical officer, who derives his name from 
 the fact that he presides over ten canons, or 
 prebendaries, at least. 
 
 There are several kinds of deans, namely, 
 deans of chapters; deans of peculiars; rural 
 deans; deans in the colleges; honorary 
 deans; deans of provinces. 
 
 DEAN AND CHAPTER. In ecclesiastical 
 law. The council of a bishop, to assist him 
 with their advice in the religious and also 
 in the temporal affairs of the see. 3 Coke, 
 75; 1 Bl. Comm. 382; Co. Litt. 103, 300; 
 Termes de la Ley; 2 Burn, Ecc. Law, 120. 
 
 DEAN OF THE ARCHES. The presiding 
 judge of the court of arches. He is also an 
 assistant judge in the court of admiralty. 1 
 Kent, Comm. 371; 3 Steph. Comm. 727. 
 
 DEATH. The cessation of life; the ceas- 
 ing to exist. 
 
 Civil death is the state of a person who, 
 though possessing natural life, has lost all 
 
 his civil rights, and as to them is considered 
 as dead. 
 
 A person convicted and attainted of fel- 
 ony, and sentenced to the state prison for 
 life, is, in the state of New York, in conse- 
 quence of the act of March 29, 1799, and by 
 virtue of the conviction and sentence of im- 
 prisonment for life, to be considered as 
 civilly dead. 6 .Johns. Ch. (N. Y.) 118; 4 
 Johns. Ch. (N. Y.) 228, 260; Laws N. Y. 
 Sess. 24, u. 49, §§ 29, 30, 31. And a similar 
 doctrine anciently prevailed in other cases 
 at common law in England. See Co. Litt. 
 133; 1 Sharswood, Bl. Comm. 132, note. 
 
 Natural death is the cessation of life. It 
 is also used to denote a death which occurs 
 by the unassisted operation of natural 
 causes, as distinguished from a violent 
 death, or one caused or accelerated by the 
 interference of human agency. 
 
 DEATH-BED DEED. A deed made by one 
 who was at the time sick of a disease from 
 which he afterwards died. Bell, Diet. 
 
 DEATH'S PART. 
 
 "Dead Man's Part." 
 
 See "Dead's Part;" 
 
 DEATHSMAN. The executioner; hang- 
 man; he who executes the extreme penalty 
 of the law. 
 
 DEBAUCH. To entice or lead away. In 
 modern usage it implies carnal knowledge. 
 97 Mo. 668. It has been held synonymous 
 with "seduce." 8 Abb. Pr. (N. Y.) 384, 389. 
 In early use it signified merely to draw 
 away from duty, being derived from French 
 d'c (from) and bauchc (shop). 
 
 DEBENTURE (Lat. debentur, they [mon- 
 eys] are due). 'The word with which cer- 
 tain obsolete bonds given by the exchequer 
 began. Blount. 
 
 In English Law. An instrument is- 
 sued by a company or public body as se- 
 curity for a loan of money. It contains, ei- 
 ther expressly or impliedly, a promise to 
 pay the amount mentioned in it, and almost 
 invariably creates a charge on the whole 
 or part of the property of the company or 
 public body. A debenture generally forms 
 part of a series or issue of similar instru- 
 ments, with a provision that they shall all 
 rank pari passu in proportion to their 
 amounts. As to debentures generally, see 
 Cav. § 267 et seq. 
 
 In American Law.' A custom-house 
 
 certificate given by the collector of the port 
 to the exporter or importer of goods, en- 
 titling him, under certain circumstances, to 
 a drawback of duties paid on exported or 
 imported goods. See "Drawback." 
 
 DEBENTURE STOCK. A stock or fund 
 representing money borrowed by a company 
 or public body, in England, and charged on 
 the whole or part of its property. It dif- 
 fers from debentures chiefly in these re- 
 spects: The title of each original holder 
 appears in a register, instead of being rep- 
 resented by an instrument complete in it- 
 self; and the stock is capable of being trans- 
 ferred in any amounts, unless the regula- 
 
DEBET ESSE FINIS LITIUM 
 
 (258) 
 
 DEBT 
 
 tions of the company, etc., forbid the trans- 
 fer of amounts or fractions less than £10, 
 or the like. Provision is sometimes made 
 for issuing to each holder a certificate rep- 
 resenting the amount of his stock, transfer- 
 able by delivery, so as to entitle the bearer 
 for the time being to the stock in question. 
 Such certificates generally have coupons for 
 interest attached to them, and, while they 
 are outstanding, the stock ceases to be trans- 
 ferable on the register. Perpetual deben- 
 ture stock is stock which cannot be paid oft. 
 The principal statutes relating to debenture 
 stock are the company clauses acts of 1845 
 and 1863, the commissioners clauses act of 
 1847, and the local loans act of 1875. De- 
 benture stock issued under these acts is not 
 within the mortmain or charitable uses act. 
 9 Ch. Div. 337. 
 
 DEBET ESSE FINIS LITIUM. There 
 ought to be an end of lawsuits. Jenk. Cent. 
 Cas. 61. 
 
 DEBET ET DETINET (Lat. he owes and 
 withholds). In pleading. An action of 
 debt is said to be in the cLeiet et detinet 
 when it is alleged that the defendant owes 
 and unjustly withholds or detains the debt 
 or thing in question. 
 
 The action is so brought between the con- 
 tracting parties. See "Detinet." 
 
 DEBET ET SOLET (Lat. he owes and is 
 ,used to). Where a man sues in a writ of 
 right, or to recover any right of which he is 
 for the first time disseised, as of a suit 
 at a mill, or in case of a writ of quod per- 
 mittat, he brings his writ in the debet et 
 solet. Reg. Orlg. 144a; Termes de la Ley; 
 Fitzh. Nat. Brev. 122 (M). 
 
 DEBET QUIS JURI SUBJACERE UBI DE- 
 linquit. Every one ought to be subject to 
 the law of the place where he offends. 3 
 Inst. 34; Bracton, fol. 154b; Pinch, Law, 14, 
 36; Wingate, Max. 113, 114; 3 Coke, 231; 8 
 Scott, N. R. 567. 
 
 DEBET SUA CUIQUE DOMUS ESSE 
 perfugium tutissimum. Every man's house 
 should be a perfectly safe refuge. 12 Johns. 
 (N. Y.) 31, 54. 
 
 DEBILE FUNDAMENTUM, FALLIT 
 opus. Where there is a weak foundation, 
 the work falls. 2 Bouv. Inst, note 2068; 
 Broom, Leg. Max. (3d London Ed.) 169, 171. 
 
 DEBITA FUNDI (Lat.) In Scotch law. 
 Debts secured on land. Bell, Diet. 
 
 DEBITS LAICORUM (Lat.) Debts of the 
 laity; those which may be recovered in civil 
 courts. 
 
 DEBITA SEQUUNTUR PERSONAM DE- 
 bltoris. Debts follow the person of the debt- 
 or. Story, Confl. Laws, § 362; 2 Kent, 
 Comm. 429; Halk. Max. 13. 
 
 DEBITOR NON PRAESUMITUR DO- 
 nare. A debtor is not presumed to make a 
 gift. See 1 Karnes, Bq. 212; Dig. 50. 16. 
 108; 1 P. Wms. 239. 
 
 DEBITORUM PACTIONIBUS, CREDI- 
 torum petltio nee tol li, nee minui potest. The 
 right to sue of creditors cannot be taken 
 away or lessened by the contracts of their 
 debtors. Poth. Obi. 87, 108; Broom, Leg. 
 Max. (3d London Ed.) 622. 
 
 DEBITRIX. A female debtor. 
 
 DEBITUM ET CONTRACTUS SUNT NUL- 
 lius loei. Debt and contract are of no par- 
 ticular place. 7 Coke, 61; 7 Man. & G. 1019, 
 note; 1 Smith, Lead. Cas. (4th Am. Ed.) 
 528, note. 
 
 DEBITUM IN PRESENTI, SOLVENDUM 
 in future. A present debt, to be discharged 
 in the future. 2 Barb. (N. Y.) 457, 470; 16 
 Barb. (N. Y.) 171, 176; 19 Barb. (N. Y.) 442, 
 445. 
 
 DEBITUM SINE BREVI (Law Lat.) In 
 old practice. Debt without writ. An ac- 
 tion begun by original bill, instead of by 
 writ. 
 
 DEBT. Any sum of money due under con- 
 tract, express or implied. 20 Cal. 351. 
 
 Blackstone restricts the term to money 
 due on express contract (3 Bl. Comm. 154), 
 but it has been thought that he used the 
 word "express" not so much in contradis- 
 tinction to Implied contracts, as to liabili- 
 ties arising outside of contract. 2 Mo. App. 
 94. 
 
 The word includes not only debts of record 
 or judgments and debts by specialty, but all 
 that is due to a man under any form of 
 promise. 3 Mete. (Mass.) 526. 
 
 In a strict sense, it is confined to sums 
 fixed by agreement, and not dependent on 
 after calculation (1 Yeates [Pa.] 70), but in 
 common use, the absolute fixing of the 
 amount is not necessary (2 Wash. C. C. [U. 
 S.] 386). . 
 
 "Debt" is a much narrower word than "de- 
 mand." 2 Hill (N. Y.) 223. 
 
 Many qualifying terms are used with the 
 word "debt," most of which are self-explana- 
 tory. A few of the more obscure may be 
 given: 
 
 (1) Active debt is one due to a person. 
 Used in the civil law. 
 
 (2) Doubtful debt is one oi which the pay- 
 ment ig uncertain. Clef des Lois Romaines. 
 
 (3) Hypothecary debt is one which is a 
 lien upon an estate. 
 
 (4) Judgment debt is one which is evi- 
 denced by matter of record. 
 
 (5) Liquid debt is one which is immediate- 
 ly and unconditionally due. 
 
 (6) Passive debt is one which a person 
 owes. 
 
 (7) Privileged debt is one which is to he 
 paid before others, in case a debtor is in- 
 solvent. 
 
 (8) Debt of record is one proved to ex- 
 ist by the ofllcial records of a court of record, 
 as a judgment or a recognizance. 
 
 In Practice. A form of action which 
 
 lies to recover a sum certain. 2 Greenl. Bv. § 
 279. It lies wherever the sum due is cer- 
 tain or ascertained in such a manner as to 
 be readily reduced to a certainty, withoat 
 
DEBT EX MUTUO 
 
 (259) 
 
 DECENNARY 
 
 regard to the manner in which the obliga- 
 tion was incurred or is evidenced. 3 Sneed 
 (Tenn.) 145; 1 Dutch. (N. J.) 506; 26 Miss. 
 521; 3 McLean (U. S.) 150; 2 A. K. Marsh. 
 (Ky.) 264; 1 Mason (U. S.) 243. 
 
 It is thus distinguished from "<issuini)ifit," 
 which lies as well where the sum due is 
 uncertain as where it is certain, and from 
 "covenant," which lies only upon contracts 
 evidenced in a certain manner. 
 
 It is said to lie in the dehet and detinet, 
 when it is stated that the defendant owes 
 and detains, or in the detinet, when it is 
 stated merely that he detains. Debt in the 
 detinet for goods differs from detinue, be- 
 cause it is not essential in this action, as in 
 detinue, that the specific property in the 
 goods should have been vested in the plain- 
 tiff at the time the action is brought. Dyer, 
 24b. 
 
 It is used for the recovery of a debt eo 
 nomine and in numero, though damages, 
 which are in most instances merely nominal, 
 are usually awarded for the detention. 1 
 H. Bl. 550; Cowp. 588. 
 
 DEBT EX MUTUO. A species of debt or 
 obligation mentioned by Glanville and Brac- 
 ton, and which arose ex mutuo, out of a cer- 
 tain kind of loan. Glanv. lib. 10, c. 3; 
 Bracton, fol. 99. See "Mutuum;" "Ex 
 Mutuo." 
 
 DEBTEE. One to whom a debt is due; a 
 creditor; as, debtee executor. 3 Bl. Comm. 
 18. 
 
 DEBTOR. One who owes a debt; he who 
 may be constrained to pay what he owes. 
 
 DEBTORS' ACT 1869. St. 32 & 33 Vict. c. 
 62, relating to insolvent debtors. See L. R. 
 Ch. 152; L. R. 10 Ch. 76; 13 Ch. Div. 338: 
 Id. 815. 
 
 DEBTOR'S SUMMONS. A summons un- 
 der the seal of a court of bankruptcy in Eng- 
 land, giving notice to the person to whom it 
 is addressed (the debtor) that, unless he 
 ' pays or compounds for a debt (not less than 
 £50) due by him to a person therein 
 named (the creditor) within a certain time, 
 he will be liable to be adjudicated a bank- 
 rupt, unless he disproves the debt. Bankr. 
 Act 1869, §§ 6, 7, form 4. 
 
 A trade debtor's summons is one for serv- 
 ice on a trader, and differs from a non- 
 trader debtor's summons in giving the debt- 
 or a shorter time for compliance with its 
 terms. Id. §§ 4, 5. 
 
 DECANATUS, DECANIA, or DECANA 
 
 (Lat.) A town or tithing, consisting orig- 
 inally of ten families of freeholders. Ten 
 tithings compose a hundred. 1 Bl. Comm. 
 114. 
 
 Decanatus, a deanery, a company of ten. 
 Spelman; Calv. Lex. 
 
 Decania, or decana, the territory under 
 the charge of a dean. 
 
 DECANUS (Lat.) A dean; an officer hav- 
 ing charge of ten persons. In Constanti- 
 nople, an officer who has charge of the burial 
 
 of the dead. Nov. Jus. 43. 59; Du Cange. 
 The term is of extensive use, being found 
 with closely related meanings in the old 
 Roman, the civil, ecclesiastical, and old 
 European law. It is used of civil and ec- 
 clesiastical, as well as military, affairs. 
 There were a variety of decani: 
 
 Decanus monasticus, the dean of a monas- 
 tery. 
 
 Decamis in majori ecclesia, dean of a 
 cathedral church. 
 
 Decamcs militaris, a military captain of 
 ten soldiers. 
 
 Decanus episcopi, a dean presiding over 
 ten parishes. 
 
 Decanus friborgi, dean of a fribourg, tith- 
 ing, or association of ten inhabitants. A 
 Saxon officer, whose duties were those of an 
 inferior judicial officer. Du Cange; Spel- 
 man; Calv. Lex. 
 
 DECEASE. As a noun, death; departure 
 from life. 
 
 As a verb, to die; to depart life, or from 
 life. This has always been a common term 
 in Scotch law. "Gif ane man deceasis." 
 Skene de Verb. Sign. 
 
 DECEDENT. A deceased person. 
 
 The signification of the word has become 
 more extended than its strict etymological 
 meaning. Strictly taken, it denotes a dying 
 person, but is always used in the more ex- 
 tended sense given, denoting any deceased 
 person, testate or intestate. 
 
 DECEIT. A fraudulent misrepresentation 
 or contrivance, by which one man deceives 
 another, who has no means of detecting the 
 fraud, to the injury and damage of the lat- 
 ter. 
 
 It requires (1) a false representation; 
 (2) inability of the person damaged to pre- 
 vent the fraud; (3) resultant damage. 
 
 Deceit is a type of fraud (Bigelow, Frauds, 
 § 1); fraud being the generic term, and de- 
 ceit being active fraud by misrepresenta- 
 tion, or other positive contrivance. 
 
 DECEM TALES (Lat. ten such). In prac- 
 tice. A writ requiring the sheriff to ap- 
 point ten like men (apponere decern tales) 
 to make up a full jury when a sufficient 
 number do not appear. 
 
 DECEMVIRI LITIBUSJUDICANDIS. Ten 
 
 judges (five being senators and five 
 knights), appointed by Augustus to act as 
 judges in certain cases. Calv. Lex.; Anthon, 
 Rom. Ant. 
 
 DECENNAr(us (Lat.) One who held one- 
 half a virgate of land. Du Cange. One of 
 the ten freeholders in a decennary. Du 
 Cange; Calv. Lex. 
 
 Decennier, one of the decennarii, or ten 
 freeholders making up a tithing. Spelman; 
 Du Cange, "Decenna;" 1 Bl. Comm. 114. See 
 "Decanus." 
 
 DECENNARY (Lat. decern, ten). A district 
 originally containing ten men with their 
 families. 
 
 King Alfred, for the better preservatioa 
 
DECEPTIS NON DECIPIENTIBUS (260) 
 
 DECLARATION OF PARIS 
 
 of the peace, divided England into counties, 
 the counties into hundreds, and the hun- 
 dreds into tithings or decennaries, the in- 
 habitants whereof, living together, were 
 sureties or pledges for each other's good be- 
 havior. One of the principal men of the 
 latter number presided over the rest, and 
 was called the chief pledge, borsholder, bor- 
 row's elder, or tything man. 
 
 DECEPTIS NON DECIPIENTIBUS, JURA 
 subvenlunt. The laws help persons who are 
 deceived, not those deceiving. Tray. Lat. 
 Max. 149. 
 
 DECERN. In Scotch law. To decree. 
 "Decernit and ordainit." 1 How. St. Tr. 927. 
 "Decerns." Shaw, 16. 
 
 DEC ESS US (Lat. from decedere, to depart). 
 
 In the Civil Law. Decease; death. 
 
 Dig. 33. 2. 34. Rarely used. 
 
 In Old English Law. Decease; death. 
 
 Post meum decessum, after my decease. 
 Fleta, lib. 3, c. 9, § 5; Id. c. 17, § 1. 
 
 Departure. 3 Salk. 123. See "Depart- 
 ure." 
 
 DECET TAMEN PRINCIPEM SERVARE 
 leges, quibus ipse servatus est. It behooves, 
 indeed, the prince to keep the laws by which 
 he himself is preserved. 
 
 DECIES TANTUM (Lat.) An obsolete 
 writ, which formerly lay against a juror 
 who had taken money for giving his verdict. 
 Called so because it was sued out to recover 
 from him ten times as much as he took. 
 
 DECIMAE (Lat.) The tenth part of the 
 anxiual profit of each living, payable for- 
 merly to the pope. There were several val- 
 uations made of these livings at different 
 times. The decimae (tenths) were appro- 
 priated to the crown, and a new valuation 
 established, by 26 Hen. VIII. c. 3. 1 Shars- 
 wood, Bl. Comm. 284. 
 
 DECIMAE DE DECIMATIS SOLVI NON 
 debent. Tithes are not to be paid from that 
 which is given for tithes. 
 
 DECIMAE DE JURE DIVINO ET CA- 
 nonica institutione pertinent ad personam. 
 Tithes belong to the parson by divine right 
 and canonical institution. Dal. 50. 
 
 DECIMAE DEBENTURPAROCHO. Tithes 
 are due to the parish priest. 
 
 DECIMAE NON DEBENT SOLVI, UBI 
 non est annua renovatio, et ex annuatis re- 
 novantibus simul semel. Tithes ought not to 
 be paid where there is not an annual renova- 
 tion, and from annual renovations once only. 
 Cro. Jac. 42. 
 
 D EC I M AT ION. The punishing every tenth 
 soldier by lot, for mutiny or other failure of 
 duty, was termed "decimatio leffionis" by the 
 Romans. Sometimes only the twentieth 
 man was punished {vicesimatio) , or the 
 hundredth ( centesimatio ) . 
 
 Also tithing or tenth part. ^ 
 
 DEC I ME. A French coin, of the value of 
 
 the tenth part of a franc, or nearly two 
 
 cents. 
 
 DECIPI GUAM FALLERE EST TUTIUS. 
 
 It is safer to be deceived than to deceive. 
 Lofft, 396. 
 
 DECISION. In practice. A judgment giv- 
 en by a competent tribunal. The French 
 lawyers call the opinions which they give on 
 questions propounded to them, decisions. 
 See Inst. 1. 2. 8; Dig. 1. 2. 2. ^ 
 
 DECISIVE OATH. In the civil law. Where 
 one of the parties to a suit, not being able 
 to prove his charge, offered to refer the de- 
 cision of the cause to the oath of his adver- 
 sary, which the adversary was bound to ac- 
 cept, or tender the same proposal back 
 again, otherwise the whole was taken as 
 confessed by him. Code, 4. 1. 1'2. • 
 
 DECLARANT. One who makes a declara- 
 tion. 
 
 DECLARATION. 
 
 In Pleading. A specification, in a me- 
 thodical and logicM form, of the circum- 
 stances which constitute the plaintiff's cause 
 of action. 1 Chit. PI. 248; Co. Litt. 17a, 
 303a; Bac. Abr. "Pleas" (B); Comyn, Dig. 
 "Pleader" (C 7); Lawes, PI. 35; Steph. PI. 
 36; 6 Serg. & R. (Pa.) 28. 
 
 In real actions, it is most properly called 
 the "count;" in a personal one, the "declara- 
 tion." Steph. PI. 36; Doctrina Plac. 83; 
 Lawes, PL 33. See Fitzh. Nat. Brev. 16a, 
 60d. The latter, however, is now the gen- 
 eral term, being that commonly used when 
 referring to real and personal actions with- 
 out distinction. 3 Bouv. Inst, note 2815. 
 
 In an action at law, the declaration an- 
 swers to the bill in chancery, the libel (nar- 
 ratio) of the civilians, and the allegation of 
 the ecclesiastical courts. ^ 
 
 It may be general or special. For exam- 
 ple, in debt on a bond, a declaration count- 
 ing on the penal part only is general. One 
 which sets out both the bond and the con- 
 dition, and assigns the breach, is special. 
 Gould, PI. c. 4, § 50. 
 
 In Evidence. An unsworn statement 
 
 made out of court by a party in interest. 
 
 In Scotch Law. The statement made 
 
 before the magistrate by one arrested for 
 crime. 
 
 DECLARATION OF INTENTION. The 
 
 act of an alien who goes before a court of 
 record, and in a formal manner declares 
 that it is bona fide his intention to become 
 a citizen of the United States, and to re- 
 nounce forever all allegiance and fidelity to 
 any foreign prince, potentate, state, or sov- 
 ereignty whereof at the time he may be a 
 citizen or subject. Act Cong. April 14, 1802, 
 I 1. 
 
 DECLARATION OF PARIS. The name 
 given to an agreement announcing four im- 
 portant rules of international law effected 
 between the principal European powers at 
 the Congress of Paris in 1856. These rules 
 are: (1) Privateering is and remains abol- 
 
r>KCLARATION OF; TRUST 
 
 (261) 
 
 DECREE 
 
 ished; (2) the neutral flag covers enemy's 
 goods, except contraband of war; (3) neu- 
 tral goods, except contraband of war, are 
 not liable to confiscation under a hostile 
 flag; (4) blockades, to be binding, must be 
 effective. Abbott. 
 
 DECLARATION OF TRUST. The act by 
 which an individual acknowledges that a 
 property, the title of which he holds, does 
 in fact belong to another, for whose use he 
 holds the same. 
 
 The instrument in which such an acknowl- 
 edgment is made. 
 
 DECLARATION OF WAR. The public 
 proclamation of the government of a state, 
 by which it declares itself to be at war with 
 a foreign power, which is named, and which 
 forbids all and every one to aid or assist 
 the common enemy. 
 
 The power of declaring war is vested in 
 congress by the constitution (article 1, § 8). 
 There is no form or ceremony necessary 
 except the passage of the act. A manifesto 
 stating the causes of the war is usually pub- 
 lished; but war exists as soon as the act 
 takes effect. It was formerly usual to pre- 
 cede hostilities by a public declaration com- 
 municated to the enemy, and to send a 
 herald to demand satisfaction. Potter, Grec. 
 Ant. bk. 3, c. 7; Dig. 49. 15. 24. But that 
 is not the practice of modern times. 
 
 A state of war, known as "imperfect" or 
 "unsolemn" war, may exist without a dec- 
 laration. Grotius de Jure Belli, bk. 1, c. 3, § 
 4. See 25 Wend. (N. Y.) 577. 
 
 DECLARATOR. , In Scotch law. An ac- 
 tion whereby a party prays something to be 
 declared in his favor. Scotch Diet. 
 
 DECLARATOR OF TRUST. In Scotch 
 law. An action resorted to against a trustee 
 who holds property upon titles ex facie for 
 his own benefit. Bell, Diet. 
 
 DECLARATORY. Something which ex- 
 plains or ascertains what before was uncer- 
 tain or doubtful; as, a declaratory statute, 
 which is one passed to put an end to a doubt 
 as to what the law is, and which declares 
 what it is, and what it has been. 1 Bl. 
 Comm. 86. 
 
 DECLARATORY ACTION. In Scotch law. 
 An action in which the right of the pursuer 
 (or plaintiff) is craved to be declared, but 
 nothing claimed to be done by the defender 
 (defendant). Bell, Diet.; Ersk. Inst. 5. 1. 
 46. Otherwise called an "action of declara- 
 tor." 
 
 DECLARATORY JUDGMENT (or DE- 
 cree). In practice. One which declares the 
 rights of the parties, without ordering any- 
 thing to be done. 
 
 DECLARATORY PART OF A LAW. That 
 which clearly defines rights to be observed 
 and wrongs to be eschewed. 1 Bl. Comm. 
 53. 
 
 DECLINATION. In Scotch law. A pre- 
 liminary plea objecting to the jurisdiction 
 
 on the ground that the judge is interested in 
 the suit. 
 
 DECLINATORY PLEA. In English prac- 
 tice. The plea of sanctuary, or of benefit of 
 clergy, before trial or conviction. 2 Hale, 
 P. C. 236; 4 Bl. Comm. 333. Now abolished. 
 4 Steph. Comm. 400, note; Id. 436, note. 
 
 DECLINATURE. In Scotch practice. An 
 objection to the jurisdiction of the judge. 
 Bell, Diet. 
 
 DECOCTION. The operation of boiling 
 certain ingredients in a fiuid for the pur- 
 pose of extracting the parts soluble at that 
 temperature. The product of this operation. 
 
 In a case in which the indictment charged 
 the prisoner with having administered to a 
 woman a decoction of a certain shrub, called 
 "savin," it appeared that the prisoner had 
 administered an infusion, and not a decoc- 
 tion. The prisoner's counsel insisted that 
 he was entitled to an acquittal on the ground 
 that the medicine was misdescribed; but it 
 was held that infusion and decoction are 
 ejusdem, generis, and that the variance was 
 immaterial. 3 Campb. 74, 75. 
 
 DECOCTOR. In Roman law. A bankrupt; 
 a person who squandered the money of the 
 state. Calv. Lex. ; Du Cange. 
 
 DECOLLATIO. Decollation; beheading. 
 
 DECONFES. In French law. A name for- 
 merly given to those persons who died with- 
 out confession, whether they refused to con- 
 fess, or whether they were criminals io 
 whom the sacrament was refused. Droit de 
 Canon, par M. I'Abbe Andre. 
 
 DECOY. A pond used for the breeding and 
 maintenance of water fowl. 11 Mod. 74, 
 130; 3 Salk. 9; Holt, 14; 11 East, 571. 
 
 An article exposed for the purpose of af- 
 fording an opportunity for the commission 
 of a crime, and thereby detecting the perpe- 
 trator. 
 
 Particularly applied to letters sent through 
 the mail to detect persons stealing or open- 
 ing them in violation of the postal laws. 
 Am. & Eng. Bnc. Law (2d Ed.) tit. "Decoys." 
 
 DECREE. 
 
 In Practice. The judgment or sen- 
 tence of a court of equity, or of admiralty. 
 It corresponds to the judgment of a court of 
 law. It is either interlocutory or final. 
 The former is given on some plea or issue 
 arising in the cause which does not decide 
 the main question; the latter settles the 
 matter in dispute; and a final decree has the 
 same effect as a judgment at law. 2 Madd. 
 462; 1 Chanc. Cas. 27; 2 Vern. 89; 4 Brown, 
 Pari. Cas. 287. See 7 Viner, Abr. 394;- 7 
 Comyn. Dig. 445; 1 Belt, Supp. to Ves. 223; 
 Bouv. Inst. Index. 
 
 In Legislation. In some countries, as 
 
 in France, some acts of the legislature or of 
 the sovereign, which have the force of law, 
 are called "decrees;" as, the Berlin and 
 Milan decrees. 
 
 — — In Scotch Law. A final judgment or 
 
DECREE DATIVE 
 
 (262) 
 
 DECRETUM 
 
 sentence of court, by which the question at 
 issue between the parties is decided. , 
 
 DECREE DATIVE. In. Scotch law. The 
 order of a court of probate appointing an 
 administrator. 
 
 DECREE IN ABSENCE. In Scotch law. 
 Judgment by default or pro confesso. ' 
 
 DECREE OF CONSTITUTION. In Scotch 
 law. Any decree by which the extent of a 
 debt or obligation is ascertained. 
 
 The term is, however, usually applied 
 especially to those decrees which are re- 
 quired to found a title in the person of the 
 creditor in the event of the death of either 
 the debtor or the original creditor. Bell, 
 Diet. 
 
 DECREE OF FORTHCOMING. In Scotch 
 law. The decree made after an arrestment, 
 ordering the debt to be paid or the effects to 
 be delivered up to the arresting creditor. 
 Bell, Diet. 
 
 DECREE OF LOCALITY. In Scotch law. 
 The decree of a teind court allocating sti- 
 pend upon different heritors. It is equiva- 
 lent to the apportionment of a tithe rent 
 charge. 
 
 DECREE OF MODIFICATION. In Scotch 
 law. A decree of the teind court modifying 
 or fixing a stipend. 
 
 DECREE OF REGISTRATION. In Scotch 
 law. A proceeding by which the creditor 
 has immediate execution. It is somewhat 
 like a warrant of attorney to confess judg- 
 ment. 1 Bell, Comm. 1. 1. i. 
 
 D EC R E ET. In Scotch law. The final judg- 
 ment or sentence of court by which the 
 question at issue between the parties is de- 
 cided. 
 
 Decreet absolutor is one where the de- 
 cision is in favor of the defendant. 
 
 Decreet condemnaior is one where the de- 
 cision is in favor of the plaintiff. Brsk. 
 Inst. 4. 3. 5. 
 
 Decreet absolvitor is one dismissing a claim, 
 or acquitting a defendant. 2 Karnes, Bq. 
 367; 1 Forbes, Inst. pt. 4, bk. 1, c. 2, tit. 1, 
 §3. 
 
 Decreet arbitral is the award of arbitra- 
 tion; the form of promulgating such award. 
 Bell, Diet. "Arbitration;" 2 Bell, H. L. Sc. 
 49. 
 
 DECREMENTUM MARIS (Lat.) In old 
 English law. Decrease of the sea; the re- 
 ceding of the sea from the 'land. Callis, 
 Sew. (53), 65. See "Reliction." 
 
 DECRETA. In the Roman law. Judicial 
 sentences given by the emperor as supreme 
 judge. 
 
 DECRETA CONCILIORUM NONtLIGANT 
 reges nostros. The decrees of councils bind 
 not our kings. Moore, 906. 
 
 DECRETAL ORDER. In chancery prac- 
 
 tice. An order made by the court of chan- 
 cery, upon a motion or petition, in the na- 
 ture of a decree. 2 Daniell, Ch. Prac. 637. 
 
 DECRETALES BONIFACIl OCTAVI. A 
 
 supplemental collection of the canon law, 
 published by Boniface VIII. in 1298. Called, 
 also, liber sextus decretalium, sixth book of 
 the decretals. 1 Kaufm. Mackeld. Civ. Law, 
 83, note. See "Decretals." 
 
 DECRETALES GREGORII NONI. The de- 
 cretals of Gregory the Ninth. A collection 
 of the laws of the church, published by or- 
 der of Gregory IX. in 1227. It is composed 
 of five books, subdivided into titles, and each 
 title is divided into chapters. They are 
 cited by using an X (or extra) thus: Gap. 
 & X (Ze Regulis Juris, etc. 1 Kaufm. Mack- 
 eld. Civ. Law, 83, note; Butler, Hor. Jur. 
 115. 
 
 DECRETALS. In ecclesiastical law. Ca- 
 nonical epistles, written by the pope alone, 
 or by the pope and cardinals, at the in- 
 stance or suit of one or more persons, for 
 the ordering and determining some matter 
 in controversy, and which have the author- 
 ity of a law in themselves. 
 
 The decretals were published in three vol- 
 umes. The first volume was collected by 
 Raymundus Barcinius, chaplain to Gregory 
 IX., about the year 1227, and published by 
 him to be read in schools, and used in the 
 ecclesiastical courts. The second volume is 
 the work of Boniface VIII., compiled about 
 the year 1298, with additions to and altera- 
 tions of the ordinances of his predecessors. 
 The third volume is called the "Clemen- 
 tines," because made by Clement V., and was 
 published by him in the council of Vienna, 
 about the year 1308. To these may be added 
 the Bxtravagantes of John XXII. and other 
 bishops of Rome, which, relatively to the 
 others, are called Novellae Gonstitutiones. 
 Ridley's View, etc., 99, 100; 1 Fournel, Hist, 
 des Avocats, 194, 195. 
 
 The false decretals were forged in the 
 names of the early bishops of Rome, and 
 first appeared about A. D. 845-850. The 
 author of them is not known. They are 
 mentioned in a letter written in the name 
 of the council of Quierzy, by Charles the 
 Bald, to the bishops and lords of Prance. 
 See Van Bspen Fleury, Droit de Canon, by 
 Andre. 
 
 The decretals constitute the second divi- 
 sion of the Corpus Juris Ganonioi. 
 
 DECRETO. In Spanish colonial law. An 
 order emanating from some superior tribu- 
 nal, promulgated in the name and by the 
 authority of the sovereign, in relation to 
 ecclesiastical matters. Schmidt, Civ. Law, 
 93, note. 
 
 DECRETUM. 
 
 In Civil Law. A species of imperial 
 
 constitution, being a judgment or sentence 
 given by the emperor upon hearing of a 
 cause, quod imperator cognoscens decrevit. 
 Inst. 1. 2. 6. 
 
 In Canon Law. An ecclesiastical law, 
 
DECRETUM GRATIANI 
 
 (263) 
 
 DEDUCTION FOR NEW 
 
 in contradistinction to a secular law (lex). 
 1 Kaufm. Mackeld. Civ. Law, p. 81, § 93. 
 
 DECRETUM GRATIANI. A collection o£ 
 ecclesiastical law made by Gratian, a Bo- 
 lognese monk, in the year 1151. It is the 
 oldest of the collections constituting the 
 Corpus Juris Ganonici. 1 Kaufm. Mackeld. 
 Civ. Law, 81; 1 Bl. Comm. 82; Butler, Hor. 
 Jur. 113. 
 
 DECRY. To cry down; to destroy the 
 credit of. It is said that the king may at 
 any time decry the coin of the realm. 1 Bl. 
 Comm. 278. 
 
 DECURIO. In Roman law. One of the 
 chief men or senators in the provincial 
 towns. The decuriones, taken together, had 
 the entire management of the internal af- 
 fairs of their towns or cities, with powers 
 resembling in some degree those of our mod- 
 ern city councils. 1 Spence, Bq. Jur. 54; 
 Calv. Lex. 
 
 DEDBANA. An actual homicide or man- 
 slaughter. 
 
 DEDI (Lat. I have given). A word used in 
 deeds and other instruments of conveyance 
 when such instruments were made in Latin. 
 
 The use of this word formerly carried 
 with it a warranty in law, when in a deed; 
 for example, if in a deed it was said, "dedi 
 (I have given), etc., to A. B.," there was a 
 warranty to him and his heirs. Brooke, 
 Abr. "Guaranty," pi. 85. The warranty thus 
 wrought was a special warranty, extending 
 to the heirs of the feoffee during the life of 
 the donor only. Co. Litt. 384b; 4 Coke, 81; 
 5 Coke, 17. Dedi is said to be the aptest 
 word to denote a feoffment. 2 Sharswood, 
 Bl. Comm. 310. The future, dabo, is found 
 in some of the Saxon grants. 1 Spence, Bq. 
 Jur. 44. 
 
 DEDI ET CONCESSI (Lat. I have given 
 and granted). The aptest words to work a 
 feoffment. They are the words ordinarily 
 used, when instruments of conveyance were 
 in Latin, in charters of feoffment, gift, or 
 grant. These words were held the aptest, 
 though others would answer. Co. Litt. 384b; 
 1 Steph. Comm. 114; 2 Bl. Comm. 53, 316. 
 
 DEDICATION. An appropriation of land 
 to some public use, made by the owner, and 
 accepted for such use by or on behalf of the 
 public. Angell, Highways, c. Ill, § 132. 
 
 There may be a dedication for pious and 
 charitable purposes, as well as for public 
 easements. 32 Barb. (N. Y.) 222. 
 
 Dedications are either — 
 
 (1) Statutory, being those in pursuance 
 of a statute, or 
 
 (2) Common law, being that implied by 
 acquiescence in the public user. It operates 
 not by grant, but by estoppel. 9 Iowa; 451. 
 
 "In common-law dedication, no particular 
 formality is necessary. It is not affected 
 by the statute of frauds. It may be made, 
 either with or without writing, by any act 
 of the owner, such as throwing open his 
 land to public travel, or platting it and 
 selling lots bounded by streets designated 
 
 in the plat, thereby indicating a clear in- 
 tention to dedicate. Or an acquiescence in 
 the use of his land for a highway, or his 
 declared assent to such use, will iDe suffi- 
 cient; the dedications being proved in most 
 if not all of the cases by matter in pais, 
 and not by deed. The vital principle of the 
 dedication is the intention to dedicate; and 
 whenever this is unequivocally manifested, 
 the dedication, so far as the owner of the 
 soil is concerned, has been made. Time, 
 therefore, though often a very material in- 
 gredient in the evidence, Is not an indis- 
 pensable ingredient in the act of dedica- 
 tion. If accepted and used by the public 
 in the manner intended, the dedication is 
 complete, precluding the owner and all 
 claiming in his right from asserting any 
 ownership inconsistent with such use. Dedi- 
 cation, therefore, is a conclusion of fact to 
 be drawn by the jury from the circumstances 
 of each particular case; the whole question, 
 as against the owner of the soil, being 
 whether there is sufficient evidence of an 
 intention on his part to dedicate the land 
 to the public use as a highway." 14 Cal. 642. 
 
 DEDICATION DAY. The feast of dedica- 
 tion of churches, or rather the feast day of 
 the saint and patron of a church, which was 
 celebrated not only by the inhabitants of 
 the place, but by those of all the neighbor- 
 ing villages, who usually came thither; and 
 such assemblies were allowed as lawful. It 
 was usual for the people to feast and to 
 drink on those days. Cowell. 
 
 DEDIMUS ET CONCESSIMUS (Lat. we 
 have given and granted). Words used by 
 the king where there were more grantors 
 than one, instead of dedi et conoessi. 
 
 DEDIMUS POTESTATEM (Lat. we have 
 given power). The name of a writ to com- 
 mission private persons to do some act in 
 the place of a judge; as, to administer an 
 oath of office to a justice of the peace, to 
 examine witnesses, and the like. Cowell; 
 Comyn, Dig. "Chancery" (K 3), (P 2), 
 "Pine" (B 7); Dane, Abr. Index; 2 Shars- 
 wood, Bl. Comm. 351. 
 
 DEDIMUS POTESTATEM DE ATTORNO 
 faciendo (Lat.) The name of a writ which 
 was formerly issued by authority of the 
 crown in England to authorize an attorney 
 to appear for a defendant. 
 
 By St. Westminster II. (13 Bdw. I. c. 10), 
 all persons impleaded may make an attorney 
 to sue for them, in all pleas moved by or 
 against them, in the superior courts there 
 enumerated. 3 Man. & G. 184, note. 
 
 DEDITITII (Lat.) In Roman law. Crim- 
 inals who have been marked in the face or 
 on the body with fire or an iron so that the 
 mark cannot be erased, and subsequently 
 manumitted. Calv. Lex. 
 
 DEDUCTION FOR NEW. In maritime 
 law. The allowance (usually one-third) on 
 the cost of repairing a damage to the ship 
 by the extraordinary operation of the perils 
 of navigation, the renovated part being pre- 
 sumed to be better than before the damage. 
 
DEED 
 
 (264) 
 
 DEFECTUM 
 
 In some ports, by custom or by express pro- 
 vision in the policy, the allowance is not 
 made on a new vessel during the first year, 
 or on new sheathing, or on an anchor or 
 chain cables. 1 Phil. Ins. § 50; 2 Phil. Ins. 
 §§ 1369, 1431, 1433; Behecke & S. Av. (Phil. 
 Ed.) 167, note 238; 2 Serg. & R. (Pa.) 229; 
 1 Caines (N. Y.) 573; 18 La. 77; 2 Cranch, 
 C. C. (U. S.) 218; 21 Pick. (Mass.) 456; 5 
 Cow. (N. Y.) 63. 
 
 DEED. A written instrument under seal, 
 containing a contract or agreement which 
 has been delivered by the party to be bound 
 and accepted by the obligee or covenantee. 
 Co. Litt. 171; 2 Bl. Comm. 295; Shep. Touch. 
 50. 
 
 A writing under seal, by which lands, 
 tenements, or hereditaments are conveyed 
 for an estate not less than a freehold. 2 
 Sharswood, Bl. Comm. 294. 
 
 Any instrument in writing under seal, 
 whether it relates to the conveyance of real 
 estate, or to any other matter, — as, for in- 
 stance, a bond, single bill, agreement, or 
 contract of any kind, — is as much a deed as 
 is a conveyance of real estate, and, after 
 delivery and acceptance, is obligatory. 2 
 Serg. & R. (Pa.) 504; 5 Dana (Ky.) 365; 2 
 Miss. 154. The term is, however, often 
 used in the latter sense above given, and 
 perhaps oftener than in its more general 
 signification. 
 
 According to Sir William Blackstone (2 
 Comm. 313), deeds may be considered as 
 conveyances at common law, — of which the 
 original are feoffment, gift, grant, lease, ex- 
 change, partition; the derivative are re- 
 lease, confirmation, surrender, assignment, 
 defeasance, — or conveyances which derive 
 their force by virtue of the statute of uses, 
 namely, covenant to stand seised to uses; 
 bargain and sale of lands; lease and release; 
 deed to lead and declare uses; deed of revo- 
 cation of uses. 
 
 DEED INDENTED. See "Indenture." 
 
 DEED OF COVENANT. Covenants are 
 sometimes entered into by a separate deed, 
 for title, or for the indemnity of a pur- 
 chaser or mortgagee, or for the production 
 of title deeds. A covenant with a penalty 
 is sometimes taken for the payment of a 
 debt, instead of a bond with a condition, 
 but the legal remedy is the same in either 
 case. Rapalje & L. 
 
 DEED POLL. A deed which is made by 
 one party only. 
 
 A deed in which only the party making it 
 executes it, or binds hin»self by it as a deed. 
 2 Washb. Real Prop. 588. 
 
 The distinction between "deed poll" and 
 "indenture" has come to be of but little im- 
 portance. The ordinary purpose of a deed 
 poll is merely to transfer the rights of the 
 grantor to the grantee. It was formerly 
 called charta de una parte, and usually be- 
 gan with these words: Sciant praesentes 
 et futuri quod ego, A., etc.; and now begins, 
 ■ "Know all men by these presents that I, A. 
 B., have given, granted, and enfeoffed, and 
 
 by these presents do give, grant, and en- 
 feoff," etc. Cruise, Dig. tit. 32, c. 1, § 23. 
 See "Indenture." 
 
 DEED TO DECLARE USES. A deed made 
 after a fine or common recovery, to show the 
 object thereof. 
 
 DEED TO LEAD USES. A deed made be- 
 fore a fine or common recovery, to show the 
 object thereof. 
 
 DEEMSTERS. Judges in the Isle of Man, 
 who decide all controversies without process, 
 writings, or any charges. These judges are 
 chosen by the people, and are said by Spel- 
 man to be two in number. Spelman; Cam- 
 den, Brit.; Cowell; Blount. 
 
 DEER FALD. A park or fold for deer. 
 
 DEER HAYES. Engines or great nets 
 made of cord to catch deer. 19 Hen. VIII. 
 c. 11. 
 
 DEFALCATION. The act of a defaulter. 
 Embezzlement or misappropriation of pub- 
 lic or trust funds. 
 
 The reduction of the claim of one of the 
 contracting parties against the other, by de- 
 ducting from it a smaller claim due from the 
 former to the latter. See 1 Rawle <Pa.) 
 291; 3 Bin. (Pa.) 135. 
 
 DEFAMATION. The speaking or writing 
 words of a person so as to hurt his good 
 fame, de bona fama aliquid detrahere. Writ- 
 ten defamation is termed "libel," and oral 
 defamation "slander." 
 
 DEFAMES (Law Fr.) Infamous. 
 
 D E F A U LT. The nonperformance of a duty, 
 whether arising under a contract or other- 
 wise. 2 Barn. & Aid. 516. 
 
 In Practice. The nonappearance of a 
 
 plaintiff or defendant at court within the 
 time prescribed by law to prosecute his 
 claim or make his defense. 
 
 DEFEASANCE (Pr. defaire, to defeat). An 
 instrument which defeats the force- or op- 
 eration of some other deed or estate. That 
 which is in the same deed is called a con- 
 dition, and that which is in another deed 
 is a defeasance. Comyn, Dig. "Defeasance." 
 
 A collateral deed made at the same time 
 with a feoffment or grant, containing cer- 
 tain conditions, upon the performance of 
 which the estate created by such feoffment 
 or grant may be defeated. 43 Me. 371. 
 
 An instrument collateral to a bond, and 
 containing the condition thereof. 2 Bl. 
 Comm. 342. 
 
 DEFEASIBLE. An estate is defeasible 
 when subject to be defeated by the opera- 
 tion of a condition subsequent, or condi- 
 tional limitation. 
 
 DEFECT. The want of something re- 
 quired by law. See 20 N. Y. 355; 40 Barb. 
 (N. Y.) 574. 
 
 DEFECTUM. See "Propter Defectum." 
 
DEFECTUS SANGUINIS 
 
 (265) 
 
 DEFENSOR CIVITATUS 
 
 DEFECTUS SANGUINIS. Failure of Is- 
 sue. 
 
 DEFENDANT. A party sued In a personal 
 action. The terna does not in strictness 
 apply to the person opposing or denying the 
 allegations of the demandant in a real ac- 
 tion, who is properly called the "tenant." 
 The distinction, however, is very commonly 
 disregarded; and the term is further fre- 
 quently applied to denote the person called 
 upon to answer, either at law or in equity, 
 and as well in criminal as civil suits. 
 
 DEFENDANT IN ERROR. The distinctive 
 term appropriate to the party against whom 
 a writ of error is sued out. 
 
 DEFENDER. 
 
 In French Law. To deny; to defend; 
 
 to conduct a suit for a defendant; to for- 
 bid; to prevent; to protect. 
 
 In Scotch and Canon Law. A defend- 
 ant. 
 
 DEFENDER OF THE FAITH. A peculiar 
 title belonging to the sovereign of Eng- 
 land, as that of "Catholic" to the king of 
 Spain, and that of "Most Christian" to the 
 king of France. These titles were originally 
 given by the popes of Rome; and that of 
 Defensor Fidei was first conferred by Pope 
 Leo. X. on King Henry VIII., as a reward 
 for writing against Martin Luther; and the 
 bull for it bears date quinto Idus Octob., 
 1521. Enc. Lond. 
 
 DEFENDERE SE PER CORPUS SUUM. 
 To offer duel or combat as a legal trial and 
 appeal. Abolished by 59 Geo. III. § 46. See 
 "Battel." 
 
 DEFENDERE UNICA MANU. To wage 
 law; a denial of an accusation upon oath. 3 
 Bl. Comm. 341; 3 Steph. Comm. 424. 
 
 DEFENDIT VIM ET INJURIAM. He de- 
 fends the force and injury. Fleta, lib. 5, c. 
 39, § 1. 
 
 DEFENDOUR (Law Fr. a defender or de- 
 fendant). The party accused in an appeal. 
 Britt. c. 22. 
 
 DEFENERATION. The act of lending 
 money on usury. 
 
 DEFENSA. A park or place fenced in for 
 deer, and defended as a property, and pe- 
 culiar for that use and service. Cowell. 
 
 DEFENSE. 
 
 In Torts. A forcible resistance of an 
 
 attack by force. See "Self-Defense." 
 
 In Pleading and Practice. The denial 
 
 of the truth or validity of the complaint. 
 A general assertion that the plaintiff has no 
 ground of action, which is afterwards ex- 
 tended and maintained in the plea. 3 Shars- 
 wood, Bl. Comm. 296; Co. Litt. 127. 
 
 In this sense it is similar to the contesta- 
 tio litis of the civilians, and does not in- 
 clude justification. In a more general sense 
 it denotes the means by which the defend- 
 ant prevents the success of the plaintiff's 
 action, or, in criminal practice, the indict- 
 
 ment. The word is commonly used in this 
 sense in modern practice. 
 
 Half defense was that which was made 
 by the form "defends the force and injury, 
 and says," defendit vim et injtiriam, et 
 dicit. 
 
 Full defense was that which was made by 
 the form "defends the force and injury when 
 and where it shall behoove him, and the 
 damages and whatever else he ought to de- 
 fend," defendit vim et injuria m qiiando et 
 ubi curia consideravit, et damna et quicquid 
 quod ipse defendere debet, et dicit, common- 
 ly shortened into "defends the force and in- 
 jury when," etc. Gilb. C. P. 188; 8 Term R. 
 632; 3 Bos. & P. 9, note; Co. Litt. 127b; 
 Willes, 41. It follows immediately upon the 
 statement of appearance, "comes" (reiiit), 
 thus: "comes and defends." By the general 
 defense, the propriety of the writ, the com- 
 petency of the plaintiff, and the jurisdiction 
 of the court were allowed; by defending the 
 force and injury, misnomer was waived; by 
 defending the damages, all exceptions to the 
 person of the plaintiff; and by defending 
 either when, etc., the jurisdiction of the 
 court was admitted. 3 Sharswood, Bl^ Comm. 
 298. 
 
 The distinction between the forms of half 
 and full defense was first lost sight of (8 
 Term R. 633; Willes, 41; 3 Bos. & P. 9; 2 
 Saund. 209c), and no necessity for a tech- 
 nical defense exists, under the modern forms 
 of practice. 
 
 DEFENSE AU FOND EN DROIT (called, 
 also, defence en droit) . A demurrer. 2 Low. 
 (U. S.) 278. See, also, 1 Low. (tr. S.) 216. 
 
 DEFENSE AU FOND EN FAIT. The gen- 
 eral issue. 3 Low. (U. S.) 421. 
 
 DEFENSIVA. In old English law. A lord 
 or earl of the marches, who was the warden 
 and defender of his country. Cowell. 
 
 DEFENSIVE ALLEGATION. In ecclesias- 
 tical practice. The answer of the party de- 
 fending to the allegations of the party mov- 
 ing the cause. 
 
 DEFENSIVE WAR. A war in defense of 
 national right, — not necessarily defensive in 
 its operations. 1 Kent, Comm. 50. 
 
 DEFENSO. See "Defensum." 
 
 DEFENSOR. 
 
 In Civil Law. A defender; one who 
 
 takes upon himself the defense of anoth- 
 er's cause, assuming his liabilities. 
 
 An advocate in court. In this sense the 
 word is very general in its signification, in- 
 cluding advocatus, patronus, procurator, etc. 
 A tutor or guardian. Calv. Lex. 
 
 In Old English Law. A guardian or 
 
 protector. Spelman. The defendant; a war- 
 rantor. Bracton. 
 
 In Canon Law. The advocate of a 
 
 church. The patron. See "Advocatus." An 
 officer having charge of the temporal affairs 
 of the church. Spelman. 
 
 DEFENSOR CIVITATUS (Lat. defender of 
 
DEFENSUM 
 
 (266) 
 
 IDEI GRATIA 
 
 the state). In Roman law. An officer whose 
 business it was to transact certain business 
 of the state. 
 
 Those officers were so called who, like the 
 tribunes of the people at first, were chosen 
 by the people in the large cities and towns, 
 and iWhose duty it was to watch over the 
 order of the city, protect the people and the 
 decuriones from all harm, protect sailors 
 and naval people, attend to the complaints 
 of those who had suffered injuries, and dis- 
 charge various other duties. As will be 
 seen, they had considerable judicial power. 
 Du Cange; Schmidt, Civ. Law, Introd. 16. 
 
 DEFENSUM (Law Lat.) In old English 
 law. .^n inclosure, or any fenced ground. 
 2 Mon. Ang. 114; 3 Mon. Ang. 306. Inclu- 
 sum ,ei positum in defensum, inclosed and 
 put in defense or fence. Bracton, fol. 228. 
 BatianatiiUa defensa. reasonable defenses. 
 Fleta, lib. 4, c. 19, § 7. 
 
 A part of an open field, appropriated to a 
 particular use, as for hay, which was hence 
 said to be m defenso. Cowell. 
 
 A state of several occupancy or appropri- 
 ation. Magna Charta, c. 16. 
 
 Defense, in the old sense of prohibition; a 
 state of prohibition, or in which the use of a 
 thing is prohibited by law. St. Westminster 
 II. c. 47. 
 
 DEFrCIENTE UNO SANGUINE NON 
 potest esse haeres. One blood being wanted, 
 he cannot be heir. 3 Coke, 41. 
 
 DEFINITIVE. That which terminates a 
 suit; final. A definitive sentence or judg- 
 ment is put in opposition to an interlocu- 
 tory judgment. 
 
 DEFLORATION. The act by which a 
 woman is deprived of her virginity. 
 
 When this is done unlawfully and against 
 her will, it bears the name of "rape" (g.v.) ; 
 when she consents, it is "fornication" (q. 
 V.) ; or if the man be married, it is "adul- 
 tery" on his part. 2 Greenl. Ev. § 48; 21 
 Pick. (Mass.) 509; 36 Me. 261; 11 Ga. 53; 
 
 2 Ball. (Pa.) 124. 
 
 DEFORCE. 
 
 In English Law. To withhold wrong- 
 fully; to withhold the possession of lands 
 from one who is lawfully entitled to them. 
 
 3 Bl. Comm. 172. 
 
 In Scotch Law. To resist the execu- 
 tion of the law; to oppose by force a public 
 officer in the execution of his duty. Bell, 
 Diet. 
 
 DEFORCEMENT. The holding any lands 
 or tenements to which another has a right. 
 
 In its most extensive sense, the term in- 
 cludes any withholding of any lands or 
 tenements to which another person has a 
 right (Co. Litt. 277); so that this includes 
 as well an abatement, an intrusion, a dis- 
 seisin, or a discontinuance, as any other 
 species of wrong whatsoever, by which the 
 owner of the freehold is kept out of pos- 
 session. But, as contradistinguished from 
 
 the former, it is only such a detainer of the 
 freehold from him who has the right of 
 property as falls within none of the inju- 
 ries above mentioned. 3 Bl. Comm. 173; 
 Archb. Civ. PI. 13; Dane, Abr. Index. 
 
 In Scotch Law. The opposition given, 
 
 or resistance made, to messengers or other 
 officers while they are employed in execut- 
 ing the law. 
 
 This crime is punished by confiscation of 
 movables, the one half to the king and the 
 other to the creditor at whose suit the dili- 
 gence is used. Ersk. Prac. 4. 4. 32. 
 
 DEFORCIANT. One who wrongfully keeps 
 the owner of lands and tenements out of 
 the possession of them. 2 Bl. Comm. 350. 
 
 DEFORCIARE. To withhold lands or ten-, 
 ements from the rightful owner. This is a 
 word of art which cannot be supplied by any 
 other word. Co. Litt. 331b; 3 Thomas, Co. 
 Litt. 3; Bracton, lib. 4, 238; Fleta, lib. 5, c. 
 11. 
 
 DEFOSSION. The punishment of being 
 buried alive. 
 
 DEFRAUDACION. In Spanish law. The 
 crime committed by a person who fraudu- 
 lently avoids the payment of some public 
 tax. 
 
 DEFUNCT. 
 
 son. 
 
 Deceased; a deceased per- 
 
 DEGASTER (LawPr.) To waste. Degast, 
 degaste, deaata, wasted, destroyed. Kel- 
 ham. 
 
 DEGRADATION. In ecclesiastical law. A 
 censure by which a clergyman is deprived 
 of the holy orders which he had as a priest 
 or deacon. 
 
 DEGREE (Fr. degre, from Lat. gradus, a 
 step in a stairway; a round of a ladder). 
 A remove or step in the line of descent or 
 consanguinity. 
 
 The state or civil condition of a person. 
 The ancient English statute of additions, for 
 example, requires that in process, for the 
 better description of a defendant, his state, 
 degree, or mystery shall be mentioned. 
 
 An honorable state or condition to which 
 a student is advanced in testimony of pro- 
 ficiency in arts and sciences. They are of 
 pontifical origin. See 1 Schmidt, Thesaurus, 
 144; Vicat, Doctores; Minshew, Diet. "Bach- 
 elor;" Merlin, Repert.; Van Espen, pt. 1, tit. 
 10; Giannone, Istoria di Napoli, lib. xi. c. 2, 
 — for a full account of this matter. 
 
 DEHORS (Fr. outof; without). Something 
 out of the record, agreement, will, or other 
 thing spoken of; something foreign to the 
 matter in question. 
 
 DEI GRATIA (Lat. by the grace of God). 
 An expression used in the titles of sover- 
 eigns, 'and considered as one of the preroga- 
 tives of royalty, propria jura majestatis, al- 
 though anciently a part of the titles of in- 
 ferior officers and magistrates, ecclesiastical 
 and civil. Spelman. 
 
DEI JUDICIUM 
 
 (267) 
 
 DELIBERATION 
 
 DEI JUDICIUM (Latthejudgmentof God). 
 A name given fo the trial by ordeal. 
 
 DEJACION. In Spanish law. A general 
 term applicable to the surrender of his 
 property to his creditors by an insolvent; 
 the renunciation of an inheritance; the re- 
 lease of a mortgage upon payment, and the 
 abandonment of the property insured to the 
 insurer. 
 
 DEJERATION. A taking of a solemn oath. 
 
 DEL BIEN ESTRE (Law Fr.; Law Lat. de 
 bene esse). In old English practice. Of 
 well being; of form. Britt. c. 39. 
 
 DEL CREDERE COMMISSION. An addi- 
 tional commission received by a factor in 
 consideration of his engaging to insure to 
 his principal not only the solvency of the 
 debtor, but the punctual discharge of the 
 debt. 104 Mass. 497; 47 Barb. (N. Y.) 9; 
 33 Mo. 412. 
 
 He was formerly held to be a principal 
 debtor, but it is now well settled that his 
 liability is only as a guarantor. Story, Ag. 
 (9th Ed.) § 215; 5 Hill (N. Y.) 458. 
 
 DELATE. In Scotch law. To accuse. Bell, 
 Diet. 
 
 DELATIO. In civil law. An accusation or 
 information. Du Cange; Calv. Lex. 
 
 DELATOR. An accuser or informer. Du 
 Cange. 
 
 DELATURA. In old English law. There- 
 ward of an informer. Whishaw. 
 
 DELECTUS PERSONAE (or PERSONA- 
 rum) (Lat. the choice of the person). A 
 term applied to the doctrine that no new 
 member can be introduced into a firm with- 
 out the unanimous consent of the then part- 
 ners. Shumaker, Partn. 9. 
 
 This doctrine excludes even executors and 
 representatives of partners from succeeding 
 to the state and condition of partners. 7 
 Pick. (Mass.) 237; 3 Kent, Comm. 55. 
 
 In Scotch Law. The personal prefer- 
 ence which is supposed to have been exer- 
 cised by a landlord in selecting his tenant, 
 by the members of a firm in making choice 
 of partners, in the appointment of persons 
 to office, and other cases. Nearly equivalent 
 to personal trust, as a doctrine in law. Bell, 
 Diet. 
 
 DELEGATA POTESTAS NON POTEST 
 delegari. A delegated authority cannot be 
 again delegated. Coke, 2d Inst. 597; 5 Bing. 
 N. C. 310; 2 Bouv. Inst, note 1300; Story, 
 Ag. § 13; 11 How. (U. S.) 233. 
 
 DELEGATE CLutdelepere, to choose from). 
 One authorized by another to act in his 
 name; an agent or attorney. 
 
 A person elected, by the people of an or- 
 ganized territory of the United States, to 
 congress, who has a seat in congress, and a 
 right of debating, but not of voting. Ord. 
 July 13, 1787 (3 Story, U. S. Laws, 2076). 
 
 A person elected to any deliberative as- 
 sembly. It is, however, in this sense gen- 
 
 erally limited to occasional assemblies, such 
 as conventions, and the like, and does not 
 usually apply to permanent bodies, as houses 
 of assembly, etc. 
 
 DELEGATION. 
 
 In Civil Law. A kind of novation by 
 
 which the original debtor, in order to be 
 liberated from his creditor, gives him a 
 third person, who becomes obliged in his 
 stead to the creditor or to the person ap- 
 pointed by him. See "Novation." 
 
 Perfect delegation exists when the debtor 
 who makes the delegation is discharged by 
 the creditor. / 
 
 Imperfect delegation exists when the cred- 
 itor retains his rights against the original 
 debtor. 2 Duv. note 169. 
 
 At Common Law. The transfer of au- 
 thority from one or more persons to one or 
 more others. 
 
 All persons, sui juris, may delegate to an- 
 other authority to act for them in a matter 
 which is lawful and otherwise capable of 
 being delegated. Comyn, Dig. "Attorney," 
 c. 1; 9 Coke, 75b; Story, Ag. § 6. 
 
 In Legislation. The whole number of 
 
 the persons who represent a district, a state, 
 and the like in a deliberative assembly; as, 
 the delegation from Ohio, the delegation 
 from the city of Philadelphia. 
 
 DELEGATUS DEBITOR EST ODIOSUS 
 
 in lege. A delegated debtor is hateful in 
 law. 3 Bulst. 148. 
 
 DELEGATUS NON POTEST DELEGARE. 
 
 A delegate or deputy cannot appoint anoth- 
 er. 2 Bouv. Inst, note 1936; Story, Ag. § 
 13; Broom, Leg. Max. (3d London Ed.) 756- 
 758; 9 Coke, 77; 2 Scott, N. R. 509; 12 
 Mees. & W. 712; 6 Exch. 156; 8 C. B. 627. 
 
 DELETE. In Scotch law. To erase; to 
 strike out. 1 How. St. Tr. 1381. 
 
 DELIBERANDUM EST DIU QUOD STAT- 
 uendum est semel. That which is to be re- 
 solved once for all should be long deliber- 
 ated upon. 12 Coke, 74. 
 
 DELIBERATE. To examine, to consult, in 
 order to form an opinion. Thus, a jury de- 
 liberate as to their verdict. 
 
 DELIBERATION. The act of the under- 
 standing by which a party examines wheth- 
 er a thing proposed ought to be done or not 
 to be done, or whether it ought to be done 
 in one manner or another. 
 
 The deliberation relates to the end pro- 
 posed, to the means of accomplishing that 
 end, or to both. It is a presumption of law 
 that all acts committed are done with due^ 
 deliberation, — that the party intended to do 
 what he has done. But he may show the 
 contrary. In contracts, for example, he may 
 show that he has been taken by surprise {q. 
 V.) ; and when a criminal act is charged, he 
 may prove that it was an accident, and not 
 with deliberation, — that, in fact, there was 
 no intention or will. In relation to crime, 
 it implies a weighing of the motives for the 
 
DELICATUS DEBITOR, ETC. 
 
 (268) 
 
 DELIVERY ORDER 
 
 act and its consequences, with a view to 
 decision thereon. 28 Iowa, 524. 
 
 In Legislation. The council which is 
 
 held touching some business in an assem- 
 bly having the power to act in relation to it. 
 
 "Deliberation" is not synonymous with 
 "premeditation." "Deliberation is prolonged 
 premeditation." 74 Mo. 247. See "Malice 
 Aforethought." 
 
 It does not mean brooded over, reflected 
 upon for a week, a day, or an hour, but it 
 means an intent executed, not under the in- 
 fluence of violent passion, but in the fur- 
 therance of a formed design. 66 Mo. 13. 
 
 DELICATUS DEBITOR ESTODIOSUS IN 
 lege. A luxurious debtor is odious in law. 2 
 Bulst. 148. Imprisonment for debt has now, 
 however, been generally abolished. 
 
 DELICT. In civil law. The act by which 
 one person, by fraud or malignity, causes 
 some damage or tort to some other. 
 
 In its most enlarged sense, this term in- 
 cludes all kinds of crimes and misdemean- 
 ors, and even the injury which has been 
 caused by another, either voluntarily or ac- 
 cidentally, without evil intention. But more 
 commonly by "delicts" are understood those 
 small offenses which are punished by a 
 small flne or a short imprisonment. 
 
 Private delicts are those which are di- 
 rectly injurious to a private individual. 
 
 Public delicts are those which affect the 
 whole' community in their hurtful conse- 
 quences. ■ 
 
 Quasi delicts are the acts of a person who, 
 without malignity, but by an inexcusable 
 imprudence, causes an injury to another. 
 Poth. Obi. note 116; Ersk. Prac. 4. 4. 1. 
 
 DELICTUM (Lat.) A crime or offense; a 
 tort or wrong, as in actions ex delicto. 1 
 Chit. PI. A challenge of a juror propter de- 
 lictum is for some crime or misdemeanor 
 that affects his credit, and renders him in- 
 famous. 3 Bl. Comm. 363; 2 Kent, Comm. 
 241. Some offense committed, or wrong 
 done. 1 Kent, Comm. 552; Cowp. 199. 200. 
 A state of culpability. Occurring- often, in 
 the phrase "in pari delicto melior est con- 
 ditio defendentis." So, where both parties 
 to a broken contract have been guilty of 
 unlawful acts, the law will not interfere, 
 but will leave them in pari delicto. 2 Greenl. 
 Ev. § 111. 
 
 DELIMIT. To mark or lay out the limits 
 or boundary line of a territory or country. 
 
 DELINQUENS PER IRAM PROVOCATUS 
 puniri debet mitius. A delinquent provoked 
 by anger ought to be punished more mildly. 
 3 Inst. 55. 
 
 DELINQUENT. In civil law. He who has 
 been guilty of some crime, offense, or failure 
 of duty. 
 
 DELIRIUM FEBRILE. In medical juris- 
 prudence. A form of mental aberration in- 
 cident to febrile diseases, and sometimes to 
 the last stages of chronic diseases. 
 
 DELIRIUM TREMENS (called, also, moww- 
 
 a-potu). In medical jurisprudence. A form of 
 mental disorder incident to habits of intem- 
 perate drinking, which generally appears 
 as a sequel to a few days' abstinence from 
 stimulating drink. 
 
 DELITO. In Spanish law. Crime; a crirae> 
 offense, or delict. White, New Recop. bk. 2, 
 tit. 19, c. 1, § 4. 
 
 DELIVERANCE. In practice. Atermused 
 by the clerk in court to every prisoner who 
 is arraigned and pleads not guilty, to whom 
 he wishes a good deliverance. In modern 
 practice this is seldom used. 
 
 DELIVERY. 
 
 Of Deed. The transfer of a deed from 
 
 the grantor to the grantee, or some person 
 acting in his behalf, in such a manner as to 
 deprive the grantor of the right to recall 
 it at his option. Delivery may be (1) ab- 
 solute, which is complete upon the actual 
 transfer of the instrument from the posses- 
 sion of the grantor; or (2) conditional, 
 which passes the deed from the possession 
 of the grantor, but is not to be completed 
 by possession in the grantee, or a third 
 person as his agent, until the happening of 
 a specified event. 
 
 Of Cliattels. The tradition or transfer 
 
 of the possession of a chattel from one per- 
 son to another. It may be actual or symbol- 
 ical, as of goods in a storehouse by deliv- 
 ery of the key (39 Me. 496), or goods in 
 the hands of a carrier by delivery of' the 
 bill of lading (5 Ohio, 88). 
 
 The word "delivery," as applied to sales, 
 has been used in several senses, viz.: 
 
 (1) Delivery sufficient to pass title. 
 
 (2) Delivery suificient to allow the seller 
 to sue for goods sold and delivered. 
 
 (3) Delivery suflScient to destroy the ven- 
 dor's lien. 
 
 (4) Delivery sufficient to determine the 
 right of stoppage in transitu. 
 
 (5) Delivery sufficient under the statute of 
 frauds. 
 
 (6) Delivery sufficient as against credit- 
 ors or subsequent purchasers. 
 
 Unless the particular sense in which the 
 word is used in each case be borne in mind, 
 confusion will follow in reading the deci- 
 sions. Benj. Sales, p. 649, note. 
 
 In Medical Jurisprudence. The act of 
 
 a woman giving birth to her offspring. 
 
 DELIVERY ORDER. An order addressed, 
 in England, by the owner of goods to a per- 
 son holding them on his behalf, requesting 
 him to deliver them to a person named in 
 the order. Delivery orders are chiefly used 
 in the cage of goods held by dock compa- 
 nies, wharfingers, etc. Such an order is not 
 a document, of title, and therefore does not 
 transfer the property, or divest the vendor's 
 lien for the purchase money, until it is 
 acted on by the holders obtaining either 
 (1) actual delivery, (2) an entry of his ti- 
 tle in the wharfinger's books, or (3) the 
 issue of a dock warrant in his name; which 
 last operation would apparently presuppose 
 the second. Until he does one of these 
 things, the original owner may obtain de- 
 
DELUSION 
 
 (269) 
 
 DEMI-VILL 
 
 liyery to himself, or transfer the property 
 in the goods to some one else. 2 H. L. Gas. 
 309; 5 Ch. Div. 195; Benj. Sales, 6S4. See 
 "Dock Warrant." 
 
 DELUSION. In medical jurisprudence. A 
 diseased state of the mind, in which per- 
 sons believe things to exist which exist on- 
 ly, or in the degree they are conceived of 
 only, in their own imaginations, with a per- 
 suasion so fixed and firm that neither evi- 
 dence nor argument can convince them to 
 the contrary. 
 
 DEM. An abbreviation for "demise;" 
 Jackson ex dem. Wood v. Wood, Jackson on 
 the demise of Wood, etc. 6 Cow. (N. Y.) 
 
 586. 
 
 DEMAIN. See "Demesne." 
 
 DEMAND. A claim; a legal obligation. 
 
 Demand is a word of art of an extent 
 greater in its signification than any other 
 word except "claim." Co. Litt. 291; 2 Hill 
 (N. Y.) 220; 9 Serg. & R. (Pa.) 124; 6 
 Watts & S. (Pa.) 226. 
 
 In Practice. A requisition or request 
 
 to do a particular thing specified under a 
 claim of right on the part of the person 
 requesting. 
 
 DEMAND IN RECONVENTION. A de- 
 mand which the defendant institutes in 
 consequence of that which the plaintiff has 
 brought against him. Used in Louisiana. 
 Prac. Code La. art. 374. 
 
 DEMANDA (Law Lat.) 
 
 In Old English Law. A demand. Brac- 
 
 ton, fols. 17. 35; Fleta. lib. 2, c. 39, § 1. Si 
 ijiiis m-upiriirerit fleinundam niiiiiii. if one shall 
 recover his demand. St. Westminster II. 
 c. 44. See 8 Coke, 153. 
 
 In Spanish Law. The petition of a 
 
 plaintiff, setting forth his demand. Las 
 Partidas, pt. 3, tit. 10, lib. 3. 
 
 DEMANDANT. The plaintiff or party who 
 brings a real action. Co. Litt. 127; Comyn, 
 Dig. 
 
 DEMANDRESS. A female demandant. 
 
 DEMEASE. Death. 
 
 DEMEMBRATION. In Scotch law. Mali- 
 ciously cutting off or otherwise separating 
 one limb from another. 1 Hume, 323; Bell, 
 Diet. 
 
 DEM ENS (Lat.) One who has lost his 
 mind through sickness or some other cause; 
 one whose faculties are enfeebled. Dean, 
 Med. Jur. 481. See "Dementia." 
 
 DEMENTENANT EN AVANT (Law Pr.) 
 From this time forward. Kelham. 
 
 DEMENTIA. In medical jurisprudence. 
 That form of insanity which is character- 
 ized by mental weakness and decrepitude, 
 and by total inability to reason correctly or 
 incorrectly. 
 
 DEMESNE. Lands of which the lord had 
 
 the absolute property or ownership, as dis- 
 tinguished from feudal lands which he held 
 of a superior. 2 Sharswood, Bl. Comm. 104; 
 Cowell. Lands which the lord retained un- 
 der his immediate control, for the purpose 
 of supplying his table and the immediate 
 needs of his household. Distinguished from 
 that farmed out to tenants, called among 
 the Saxons "bordlands." Blount; Co. Litt. 
 17a. 
 
 Own; original. Son assault demesne, his 
 (the plaintiff's) original assault, or assault 
 in the first place. 2 Greenl. Ev. § 633; 3 Bl. 
 Comm. 120, 306. 
 
 DEMESNE AS OF FEE. A man is said to 
 be seised in his demesne as of fee of a cor- 
 poreal inheritance, because he has a property 
 dominicum or demesne in the thing itself. 
 
 2 Bl. Comm. 106. But when he has no do- 
 minion in the thing itself, as in the case 
 of an incorporeal hereditament, he is said 
 to be seised as of fee, and not in his de- 
 mesne as of fee. Litt. § 10; 17 Serg. & R. 
 (Pa.) 196; Jones, Land Tit. 166. 
 
 Formerly it was the practice in an action 
 on the case — e. g. for a nuisance to real es- 
 tate — to aver in the declaration the seisin 
 of the plaintiff in demesne as of fee; and 
 this is still necessary, in order to estop the 
 record with the land, so that it may run 
 with or attend the title. Archb. Civ. PL 
 104; Coke, Entr. 9, pi. 8; Lilly, Entr. 62; 
 1 Saund. 346; Willes, 508. But such an ac- 
 tion may be maintained on the possession as 
 well as on the seisin, although the effect of 
 the record in this case upon the title would 
 not be the same. Steph. PI. 322; 1 Lutw. 
 120; 2 Mod. 71; 4 Term R. 718; 2 Wm. 
 Saund. 113b; Cro. Car. 500, 575. 
 
 • 
 
 DEMESNE LANDS. A phrase meaning 
 the same as "demesne." 
 
 DEMESNE LANDS OF THE CROWN. 
 
 That share of lands reserved to the crown 
 at the original distribution of landed prop- 
 erty, or which came to it afterwards by for- 
 feiture or otherwise. 1 Sharswood, Bl. 
 Comm. 286; 2 Steph. Comm. 550. 
 
 DEMESNIAL. Pertaining to a demesne. 
 
 DEMI-MARK. A sum of money (6s. 8d., 3 
 Bl. Comm. App. v.) tendered and paid into 
 court in certain cases in the trial of a writ 
 of right by the grand assize. Co. Litt. 294b; 
 Booth, Real Actions, 98. 
 
 It was paid by the tenant to obtain an 
 inquiry by the grand assize into the time of 
 the demandant's seisin. 1 Reeve, Hist. Eng. 
 Law, 429; Stearns, Real Actions, 378, and 
 note. It compelled the demandant to begin. 
 
 3 Chit. PI. 1373. It is unknown in American 
 practice. 13 Wend. (N. Y.) 546; Stearns, 
 Real Actions, 378. 
 
 DEMI-OFFICIAL. Partly olficial or au- 
 thorized. 
 
 DEMI-SANGUE, or DEMY-SANGUE (Law 
 Fr.) Half-blood. 
 
 DEMI-VILL. Half a tithing. 
 
DEMIDIETAS 
 
 (270) 
 
 DEMURRER 
 
 DEMIDIETAS. A word used in ancient 
 records for a moiety, or one-half. 
 
 DEMIES. In some universities and col- 
 leges this term is synonymous with "schol- 
 ars." Boyle, Char. 129. 
 
 DEMINUTIO. In civil law. A taking 
 away; loss or deprivation. See "Capitas Dem- 
 inutio." 
 
 DEMISE. 
 
 (1) A conveyance, either in fee for life or 
 for years. A lease or conveyance for a term 
 of years. According to Chief Justice Gib- 
 son, the term strictly denotes a posthumous 
 grant, and no more. 5 Whart. (Pa.) 278. 
 See 4 Bing. N. C. 678 ; 2 Bouv. Inst, note 
 1774 et seq. 
 
 (2) A term nearly synonymous with 
 "death," appropriated in England especially 
 to denote the decease of the king or queen. 
 
 DEMISE AND RE-DEMISE. A convey- 
 ance by mutual leases made from one to 
 another on each side of the same land, or 
 of something issuing from it. A lease for 
 a given sum, — usually a mere nominal 
 amount, — and a release for a larger rent. 
 TouUier, Dr. Civ.; Whishaw; Jacob. 
 
 DEMISE OF THE KING. The natural dis- 
 solution of the king. 
 
 The term Is said to denote in law merely 
 a transfer of the property of the crown. 1 
 Bl. Comm. 249. By demise of the crown, 
 we mean only that, in consequence of the 
 disunion of the king's natural body from 
 his body politic, the kingdom is transferred 
 or demised to his successor, and so the roy- 
 al dignity remains perpetual. Plowd. 117, 
 234. 
 
 A similar result, viz., the perpetual exist- 
 ence of the president of the United States, 
 has been secured by the constitution and 
 subsequent statutes. 1 Sharswood, Bl. Comm. 
 249. 
 
 DEMISI. I have demised or leased. De- 
 misi, ooncessi, et ad firmam tradidi, have 
 demised, granted, and to farm let. The usu- 
 al operative words in ancient leases, as the 
 corresponding English words are in the hiod- 
 ern forms. 2 Bl. Comm. 317, 318. 
 
 DEMONSTRATIO. Description. 
 Falsa demonstraiii) iinii iioc-et, a false de- 
 scription does not injure. 
 
 DEMONSTRATION (Lat. dmmnMrnre, to 
 point out). Whatever is said or written to 
 designate a thing or person. 
 
 Several descriptions may be employed to 
 denote the same person or object; and the 
 rule of law in such cases is that, if one of the 
 descriptions be erroneous, it may be rejected, 
 if, after it is expunged, enough will remain 
 to identify the person or thing intended. 
 For falsa demonstratio non nocet. The 
 meaning of this rule is that, if there be an 
 adequate description with convenient cer- 
 tainty of what was contemplated, a subse- 
 quent erroneous addition will not vitiate it. 
 The complement of this maxim is, non oc- 
 cipi debent verba in demonstrationem fal- 
 
 sam quae competent in Hmitationem, verami; 
 which means that if it stand doubtful upon 
 the words whether they import a false ref- 
 erence or demonstration, or whether they 
 be words of restraint that limit the gener- 
 ality of the former words, the law will never 
 intend error or falsehood. If, therefore, 
 there is some object wherein all the demon- 
 strations are true, and some wherein part 
 are true and part false, they shall be in- 
 tended words of true limitation to ascer- 
 tain that person or thing wherein all the 
 circumstances are true. 4 Bxch. 604, per 
 Alderson, B.; 8 Bing. 244; Broom, Leg. Max. 
 490; Plowd. 191; 7 Gush. (Mass.) 460. 
 
 The rule that falsa demonstratio does not 
 vitiate an otherwise good description applies 
 to every kind of statement of fact. Some of 
 the particulars in an averment in a declara- 
 tion may be rejected if the declaration is 
 sensible without them, and by their presence 
 is made insensible or defective. Yelv. 182. 
 
 In Evidence. That proof which ex- 
 cludes all possibility of error. 
 
 DEMONSTRATIVE LEGACY. A pecun- 
 iary legacy, coupled with a direction that it 
 be paid out of a specific fund. 
 
 DEMPSTER, or DEEMSTER. In Scotch 
 law. A doomsman; one who pronounced 
 the sentence of court. 1 How. St. Tr. 937. 
 
 DEMURRAGE. The delay of a vessel by 
 the freighter beyond the time allowed for 
 loading, unloading, or sailing. 3 Kent. 
 Comm. 203. 
 
 Payment for such delay. 
 
 Demurrage is an extended freight or re- 
 ward to the vessel in compensation for earn- 
 ings she is compelled to lose. Abb. Adm. (D. 
 C.) 548. 
 
 DEMURRANT. One who demurs to a 
 pleading or indictment. 
 
 DEMURRER (Lat. demororj; old YT.dcinor- 
 rer, to stay; to abide). 
 
 In Pleading at Law. An allegation 
 
 that, admitting the facts of the preceding 
 pleading to be true as stated by the i>arty 
 making it, he has yet shown no cause why 
 the party demurring should be compelled 
 by the court to proceed further. A declara- 
 tion that the party demurring will go no 
 further, because the other has shown noth- 
 ing against him. 5 Mod. 232; Co. Lift. 71b. 
 It imports that the objecting party will not 
 proceed, but will wait the judgment of the 
 court whether he is bound so to do. Co. 
 Lift. 71b; Steph. PI. 61. 
 
 A general demurrer is one which excepts 
 to the suflJciency of a previous pleading in 
 general terms; such a demurrer being suf- 
 ficient if the objection is to matters of sub- 
 stance. Steph. PI. 159. 
 
 A special demurrer is one which shows 
 specifically the nature of the objection, and 
 the ground of exception. Co. Litt. 72a. 
 
 In Equity Pleading. An allegation of a 
 
 defendant, which, admitting the matters of 
 fact alleged by the bill to be true, shows 
 that as they are therein set forth they are 
 insufficient for the plaintiff to proceed upon 
 
DEMURRER BOOK 
 
 (271) 
 
 DENIER A DIEU 
 
 or to oblige the defendant to answer; or that, 
 for some reason apparent on the face of the 
 bill, or on account of the omission of some 
 matter which ought to be contained therein, 
 or for want of some circumstances which 
 ought to be attendant thereon, the defend- 
 ant ought not to be compelled to answer to 
 the whole bill, or to some certain part there- 
 of. Mitf. Eq. PI. (Jeremy Ed.) 107. 
 
 Demurrers are general, where no particu- 
 lar cause is assigned except the usual for- 
 mulary that there is no equity in the bill; 
 or special, where the particular defects are 
 pointed out. Story, Eq. PI. § 455. General 
 demurrers are used to point out defects of 
 substance; special, to point out defects in 
 form. 
 
 In many states, the grounds of demurrer 
 and the requisites of a demurrer are regu- 
 lated by statute. Thus, in Minnesota a 
 complaint may be demurred to for (1) ab- 
 sence of jurisdiction; (2) lack of legal ca- 
 pacity in plaintiff to sue; (3) another ac- 
 tion pending; (4) defect of parties; (5) 
 misjoinder of causes of action; (6) failure 
 to state facts sufficient to constitute a cause 
 of action. The demurrer must distinctly 
 specify the ground of objection as being one 
 of those enumerated by Gen. St. Minn. 1878, 
 c. 66, §§ 92, 93. 
 
 In Practice. Demurrer to evidence is 
 
 a declaration that the party making it will 
 not proceed, because the evidence offered on 
 the other side is not sufficient to maintain 
 the issue. 28 Ala. (N. S.) 637. Upon join- 
 der by the opposite party, the jury is gen- 
 erally discharged from giving any verdict 
 (1 Archb. Prac. 186); and the demurrer, 
 being entered on record, is afterwards ar- 
 gued and decided by the court in banc; 
 and the judgment there given upon it may 
 ultimately be brought before a court of er- 
 ror. See 2 H. Bl. 187; 4 Chit. Prac. 15; 
 Gould, PI. c. 9, pt. 2, I 47. It admits the 
 truth of the evidence given, and the legal 
 deductions therefrom. 14 Pa. St. 275. As to 
 the right so to demur, and the practice, see 
 4 Iowa, 63. 
 
 Demurrer to interrogatories is the reason 
 which a witness tenders for not answering 
 a particular question in interrogatories. 2 
 Swanst. Ch. 194. It is not, strictly speak- 
 ing, a demurrer, except in the popular sense 
 of the word. Gresl. Eq. Ev. 61. The court 
 are judicially to determine its validity. The 
 witness must state his objection very care- 
 fully, for these demurrers are held to strict 
 rules, and are readily overruled if they cov- 
 er too much. 2 Atk. 524; 1 Younge & J. 
 132. 
 
 See, generally, as to demurrer, Bouv. Inst. 
 Index. 
 
 DEMURRER BOOK. In English practice. 
 A transcript of all the pleadings that have 
 been filed or delivered between the parties 
 made upon the formation of an issue at law. 
 Steph. PI. 95. 
 
 DEMYSANKE, or DEMYSANGUE. Half- 
 blood. A corruption of demi-sang. 
 
 DEN AND STROND. Liberty for ships 
 
 and vessels to run aground or come ashore, 
 — strand themselves. Cowell. 
 
 DENARIATE. As much land as is worth 
 one penny per annum. Rapalje & L. 
 
 DENARII. An ancient general term for 
 any sort of ■peounia numerata, or ready 
 money. The French use the word denier in 
 the same sense, payer de ses propres deni- 
 ers. 
 
 DENARII DE CARITATE. Customary ob- 
 lations made to a cathedral church at Pen- 
 tecost. 
 
 DENARII S. PETRI. Commonly called 
 "Peter's Pence." An annual payment on 
 St. Peter's feast of a penny from every fam- 
 ily to the pope, during the time that the 
 Roman Catholic religion was established in 
 England. 
 
 DENARIUS (Law Lat.; Pr. denier). A 
 penny; an English penny. By the statute 
 called Gompositio Mensurarum, 51 Edw. 1. 
 (Hen. III.), it was declared that the penny 
 sterling of England, denarius Angliae qui 
 nominatur sterlingus, should weigh 32 
 grains of corn from the middle of the ear, 
 and 20 pennies (penny weights) should 
 make an ounce, and 12 ounces a pound. 
 Spelman; Pleta, lib. 2, c. 12. See 2 Inst. 
 575. 
 
 In the Roman Law. A silver coin of 
 
 the value of ten asses, or ten pounds of 
 brass. Its value in modern money is esti- 
 mated at 7%d. sterling, or about 14% pents. 
 Enc. Am. Brande. 
 
 DENARIUS DEI. A certain sum of money 
 which is given by one of the contracting 
 parties to the other as a sign of the com- 
 pletion of the contract. 
 
 It differs from arrhae in this, that the lat- 
 ter is a part of the consideration, while the 
 denarius Dei is no part of it. 1 Duv. note 
 132; 3 Duv. note 49; Repert. de Jur. "Denier 
 a Dieu." 
 
 It does not bind the parties, as he who 
 received it may return it in a limited time, 
 or the other may abandon it, and avoid the 
 engagement. 
 
 DENARIUS TERTIUS COMITATUS (Law 
 Lat.) In old English law. The third penny 
 of the county; the third part of the fines 
 and profits arising from the county court, 
 which anciently were reserved to the comes, 
 or earl, as his official stipend. Spelman, 
 voc. "Comes;" LL. Edw. Conf. c. 31; Cowell. 
 
 DENIAL. In pleading. A traverse of the 
 statement of the opposite party; a defense. 
 
 It may be general of all the allegations in 
 a pleading, or a particular part thereof, or 
 special of certain stated facts. 
 
 DENIER (Law Fr.) In old English law. 
 Denial; refusal. Denier is when the rent 
 (being demanded upon the land) is not paid. 
 Finch, Law, bk. 3, c. 5. 
 
 DENIER A DIEU. In French law. A sum 
 of money which the hirer of a thing gives 
 to the other party as evidence, or for the- 
 
DENIZATION 
 
 (272) 
 
 DEPENDENCY 
 
 consideration of the contract, which either 
 party may annul within twenty-four hours; 
 the one who gave the denier a Dieu by de- 
 manding, and the other by returning, it. See 
 "Denarius Dei.' 
 
 DENIZATION. The act by which a for- 
 eigner becomes a subject, but without the 
 rights either of a natural-born subject, or of 
 one who has become naturalized. Bac. Abr. 
 "Aliens" (B). 
 
 DENIZE. To make a denizen. 
 
 DENIZEN. In English law. An alien born 
 who has obtained, ex donatione legis, letters 
 patent to make him an English subject. 
 
 He is intermediate between a natural-born 
 subject and an alien. He may take lands by 
 purchase or devise, which an alien cannot; 
 but he is incapable of taking by inheritance. 
 1 Bl. Comm. 374. 
 
 In South Carolina, and perhaps in other 
 states, this civil condition is well known to 
 the law, having been created by statute. 
 
 The right of making denizens is not exclu- 
 sively vested in the king, for it is possessed 
 by parliament, but is scarcely ever exer- 
 cised but by royal power. It may be effect- 
 ed by conquest. 7 Coke, 6a; 2 Ventr. 6; 
 Comyn, Dig. "Alien" (D 1) ; Chit. Com. Law, 
 120. 
 
 DENMAN'S (LORD) ACT. St. 6 & 7 Vict. 
 85. For the amendment of the law of evi- 
 dence, which provides that no person of- 
 fered as a witness shall thereafter be ex- 
 cluded by reason of incapacity, from crime 
 or interest, from giving evidence. Whar- 
 ton. 
 
 DENMAN'S (MR.) ACT. St. 28 & 29 Vict. 
 18. For amendment of procedure in crimi- 
 nal trials, allowing counsel to sum up the 
 evidence in criminal as in civil trials, pro- 
 vided the prisoner be defended by counsel 
 Wharton. 
 
 DENOMBREMENT. In French feudal law. 
 A minute or act drawn up, on the creation 
 ot a fief, containing a description of the fief, 
 and all the rights and incidents belonging 
 to it. Guyot, Inst. Feud. c. 3. 
 
 DENOMINATIO I^IERi DEBET A DIGN!-' 
 oribus. Denomination should be made from 
 the more worthy. 
 
 DENUMERATION. The act of present 
 payment. Rapalje & L. 
 
 DENUNCIATION. In civil law.' The act 
 by which an individual informs a public 
 ofl5cer, whose duty it is to prosecute offend- 
 ers, that a crime has been committed. See 
 1 Brown, Civ. Law, 447; 2 Bi;own, Civ. Law, 
 389; Ayliffe, Par. 210; Poth. Proc. Cr. 2, § 2. 
 
 DENUNTIATIO. In old English law. A 
 public notice or summons. Bracton, 202b. 
 
 DEODAND. Any personal chattel what- 
 ever which is the immediate cause of the 
 death of a human creature, which is forfeit- 
 ed to the king, to be distributed in alms by 
 
 his high almoner. 1 Bl. Comm. 301; 1 Hale, 
 P. C. 422. 
 
 DEPART. 
 
 In Pleading. To forsake or abandon 
 
 the ground assumed in a former pleading, 
 and assume a new one. See "Departure." 
 
 In Old English Law. To divide or 
 
 separate; to part. Cowell. 
 
 In Maritime Law. To leave a port; to 
 
 be out of a port. To depart imports more 
 than to sail, or set sail. A warranty in a 
 policy that a vessel shall depart on or be- 
 fore a particular day is a warranty not only 
 that she shall sail, but that she shall be out 
 of the port on or before that day. 3 Maule 
 & S. 461; 3 Kent, Comm. 307, note. "To 
 depart" does not mean merely to break 
 ground, but fairly to set forward upon the 
 voyage. 6 Taunt. 241. 
 
 DEPARTMENT. A portion of a country. 
 
 In France, the country is divided into de- 
 partments, which are somewhat similar to 
 the counties in this country. The United 
 States have been divided into military de- 
 partments, including certain portions of the 
 country. 1 Pet. (U. S.) 293. These depart- 
 ments are, for the purposes for which they 
 are created, under the immediate govern- 
 ment of some officer, who is, in turn, re- 
 sponsible to his superior. 
 
 A portion of the agents employed by the 
 execiitive branch of the United States gov- 
 ernment, to whom a specified class of du- 
 ties is assigned. 
 
 DEPARTURE. 
 
 In Maritime Law. A deviation from 
 
 the course prescribed in the policy of in- 
 surance. It may be justifiable. See "Devi- 
 ation." 
 
 In Pleading. The statement of matter 
 
 in a replication, rejoinder, or subsequent 
 pleading, as a cause of action or defense, 
 which is not pursuant to ths previous plead- 
 ing of the same party, and which does not 
 support and fortify it. 3 Bl. Comm. 301. 
 
 Where a party quits or departs from the 
 case or defense he has just made, and has 
 recourse to another. 13 N. Y. 89. 
 
 DEPARTURE IN DESPITE OF COURT. 
 
 This took place where the tenant, having 
 once made his appearance in court upon 
 demand, failed to reappear when demanded. 
 Co. Litt. 139a. As the whole term is, in 
 contemplation of law, but a single day, an 
 appearance on any day, and a subsequent 
 failure to reappear at any subsequent part 
 of the term, is such a departure. 8 Coke, 
 62a; 1 Rolle, Abr. 583; Mete. Yelv. 211; Ros- 
 coe. Real Actions, 283. 
 
 DEPASTURE. In old English law. To 
 pasture. "If a man depastures unprofitable 
 cattle in his ground." Bunb. 1, case 1. 
 
 DEPECULATION. A robbing of the prince 
 or commonwealth; an embezzling of the 
 public treasure. 
 
 DEPENDENCY. A territory distinct from 
 the country in which the supreme sover- 
 eign power resides, but belonging rightfully 
 
DEPENDENT CONTRACT 
 
 (273) 
 
 DEPOSITARY 
 
 to it, and subject to the laws and regulations 
 which the sovereign may think proper to 
 prescribe. 
 
 It differs from a "colony," because it is 
 not settled by the citizens of the sovereign 
 or mother state; and from "possession," be- 
 cause it is, held by other title than that of 
 mere conquest. For example, Malta was 
 considered a dependency of Great Britain in 
 the year 1813. 3 Wash. C. C. (U. S.) 286. 
 See Act Cong. March 1, 1809, commonly 
 called the "Nonimportation Law." 
 
 DEPENDENT CONTRACT. One which it 
 is not the duty of the contractor to perform 
 until some obligation contained in the same 
 agreement has been performed by the other 
 party. Hammond, Part. 17, 29, 30, 109. 
 
 DEPENDENT COVENANTS. Those in 
 which the performance of one depends on 
 the performance of the other. 
 
 DEPENDING. Sometimes used for "pend- 
 ing." 
 
 DEPESAS. In Spanish-American law. 
 Spaces of ground in towns reserved for com- 
 mons or public pasturage. 12 Pet. (U. S.) 
 443, note. White, New Recop. bk. 2, tit. 1, 
 c. 6. 
 
 DEPONE. In Scotch practice. To depose; 
 to make oath in writing. 
 
 DEPONENT. One who gives information, 
 on oath or affirmation, respecting some facts 
 known to him, before a magistrate; strictly, 
 he who makes a deposition; but sometimes 
 used for "affiant." 
 
 DEPONER. In old Scotch practice. A de- 
 ponent. 3 How. St. Tr. 695. 
 
 DEPpPULATIO AGRORUM. In old Eng- 
 lish law. The crime of destroying, ravag- 
 ing, or laying waste a country. 2 Hale, P. C. 
 333; 4 Bl. Comm. 373. 
 
 DEPOPULATION. In old English law. A 
 species of waste, by which the population 
 of the kingdom was diminished. Depopula- 
 tion of houses was a public offense. 12 
 Coke, 30, 31. 
 
 DEPORTATIO (Lat.) In the civil law. A 
 kind of banishment, where a condemned 
 person was sent or carried away to some for- 
 eign country, usually to an island, in insu- 
 lam deportatur, and thus taken out of the 
 number of Roman citizens, ex numero civi- 
 um Romanorum tolHtur, being treated as 
 though he were dead. Inst. 1. 12. 1. It 
 was banishment for life, attended with the 
 loss of civil rights, and the forfeiture of 
 property. Relegatio was banishment for 
 years, without the loss of civil rights. Dig. 
 48. 22; Calv. Lex. Bracton uses the term 
 deportaiio as synonymous with "exile," "ab- 
 juration of the realm," and "outlawry." 
 Bracton, fol. 136b. 
 
 DEPORTATION. In Roman law. A per- 
 petual banishment, depriving the banished 
 of his rights as a citizen. It differed from 
 "relegation" (g. v.) and "exile" (q. v.) 1 
 
 Brown, Civ. Law, 125, note; Inst. 1. 12. 1. 2; 
 Dig. 48. 22. 14. 1. 
 
 DEPOSE. To deprive an individual of a 
 public employment or office against his will. 
 Wolffius, Inst. § 1063. The term is usually 
 applied to the deprivation of all authority of 
 a sovereign. 
 
 To give a deposition. 
 
 DEPOSIT. A naked bailment of goods to 
 be kept for the depositor without reward, 
 and to be returned when he shall require it. 
 Jones, Bailm. 36, 117; 9 Mass. 470. 
 
 A bailment of goods to be kept by the 
 bailee without reward, and delivered accord- 
 ing to the object or purpose of the original 
 trust. Story, Bailm. § 41. 
 
 A contract by which one of the contract- 
 ing parties gives a thing to another to keep, 
 who is to do so gratuitously, and obliges 
 himself to return it when he shall be re- 
 quested. 
 
 To constitute a deposit, there must be (1) 
 an actual delivery of the property; (2) the 
 object must be to keep the property for the 
 owner; (3) the custody must be gratuitous; 
 (4) the deposit must be with another than 
 the owner; and (5) there must be a volun- 
 tary undertaking by the bailee. Story, 
 Bailm. §§ 55-60. 
 
 Deposits are divided in the civil law in- 
 to necessary and voluntary. 
 
 (1) Necessary deposits are those made up- 
 on some sudden emergency, as of fire or 
 shipwreck. 
 
 (2) Voluntary deposits are those made, in 
 the absence of necessity, by contract of the 
 parties. This distinction was unknown at 
 common law. 
 
 Deposits are again divided in the civil 
 law into simple deposits and sequestrations. 
 
 (3) Simple deposits are those made by 
 one or more persons having a common in- 
 terest. 
 
 (4) Deposits by sequestration are by pei-- 
 sons having different or adverse interests 
 in the property. Sequestrations are (a) 
 conventional, by act of the parties, or (b) 
 judicial, by order of a court in a judicial 
 proceeding. 
 
 There are also certain contracts in the 
 nature of deposits, and Commonly regarded 
 as such. 
 
 Irregular deposits, where money is depos- 
 ited to be returned not in specie, but by an 
 equal sum. 
 
 Quasi deposits, where one comes lawfully 
 into the possession of goods of another by 
 finding. Story, Bailm. §§ 41-85. 
 
 In modern usage, the term is most fre- 
 quently used to denote the deposit of money 
 in a banking institution. Deposits in bank 
 are general if the money deposited becomes 
 the property of the bank, and it undertakes 
 to repay only an equal amount. Special, if 
 the particular funds are to be returned. 
 
 DEPOSIT OF TITLE DEEDS. A pledge 
 of land as security by giving the muniments 
 of title to the pledgee. It is now seldom, if 
 ever, used. 
 
 DEPOSITARY. One with whom anything 
 
DEPOSITION 
 
 (274) 
 
 DERECHO 
 
 is deposited ( see "Deposit")or lodged in trust; 
 as "depository" is the place where it is put. 
 The obligation on the part of the depositary 
 is that he keep the thing with reasonable 
 care, and, upon request, restore it to the 
 depositor, or otherwise deliver it, according 
 to the original trust. 
 
 DEPOSITION. The testimony of a wit- 
 ness reduced to writing, in due form of law, 
 by virtue of a commission or other authority 
 of a competent tribunal, or according to the 
 provisions of some statute law, to be used 
 on the trial of some question of fact in a 
 court of justice. 
 
 In some states it is applied to the testi- 
 mony taken on a preliminary hearing, and 
 reduced to writing by the committing magis- 
 trate. 
 
 In its generic sense, it embraces all writ- 
 ten evidence verified by oath, and includes 
 affidavits, but in legal language, a distinc- 
 tion is maintained between depositions and 
 affidavits. 3 Blatchf. (U. S.) 456. 
 
 In its technical sense, it is confined to the 
 written testimony of a witness given in a 
 judicial proceeding. 53 Am. Dec. 270. 
 
 In Ecclesiastical Law. The act of de- 
 priving a clergyman, by a competent tri- 
 bunal, of his clerical orders, to punish him 
 for some offense, and to prevent his acting 
 in future in his clerical character. AylifCe, 
 Par. 206. 
 
 DEPOSITO. In Spanish law. A real con- 
 tract by which one person confides to the 
 custody of another an object on the condition 
 that it shall be returned to him whenever he 
 shall require it. 
 
 DEPOSITOR. He who makes a deposit. 
 
 DEPOSITUIVl (Lat. from deponere, to de- 
 posit). In the civil and common law. A 
 naked bailment of goods, to be kept for the 
 bailor without reward, and to be returned 
 when he shall require it. Story, Bailm. §§ 
 4, 41; 2 Kent, Comm. 558, 559; Jones, Bailm. 
 36; Inst. 3. 15. 3; Bracton, fol. 100b; Dig. 16. 
 3; Code, 4. 34; Pleta, lib. 2, c. 56, § 7. 
 Otherwise termed "deposit" (g. v.); the 
 bailor being in this case termed the "de- 
 positor," and the bailee the "depositary." 
 Bell, Diet. 
 
 DEPOT. In the French law. The depos- 
 itum of the Roman, and the "deposit" of the 
 English law. It is of two kinds, being either 
 (1) depot simply so called, and which may 
 be either voluntary or necessary, and (2) 
 seguestre. which is a deposit made either un- 
 der an agreement of the parties, and to 
 abide the event of pending litigation re- 
 garding it, or by virtue of the direction of 
 the court or a judge, pending litigation re- 
 garding it. Brown. 
 
 DEPRAVE. To defame; vilify; exhibit 
 contempt for. In England, depraving the 
 Lord's supper or the Book of Common 
 Prayer is a criminal offense, punishable with 
 fine and imprisonment. Steph. Crim. Dig. 
 99. ■ 
 
 DEPREDATION. In French law. The 
 pillage which is made of the goods of a de- 
 cedent. 
 
 DEPRIVATION. In ecclesiastical law. A 
 censure by which a clergyman is deprived 
 of his parsonage, vicarage, or other eccle- 
 siastical promotion or dignity. See Ayliffe, 
 Par. 206; 1 Bl. Comm. 393. 
 
 DEPUTY. One authorized by an officer to 
 exercise the office or right which the officer 
 possesses, for and in place of the latter. 
 
 A deputy differs from an assignee in that 
 an assignee has an interest in the office 
 itself, 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, but is only the 
 shadow of the officer in whose name he acts. 
 And there is a distinction between doing an 
 act by an agent or by a deputy. An agent 
 can only bind his principal when he acts in 
 the name of the principal. But a deputy 
 may do the act, and sign his own name, and 
 bind the principal, for a deputy has in law 
 the whole power of his principal. Wharton. 
 
 DEPUTY STEWARD. A steward of a 
 manor may depute or authorize another to 
 hold a court; and the acts done in a court 
 so holden will be as legal as if the court 
 had been holden by the chief steward in 
 person. So an under steward or deputy may 
 authorize another as subdeputy, pro hac vice, 
 to hold a court for him; such limited au- 
 thority not being Inconsistent with the rule 
 delegatus non potest delegare. Wharton. 
 
 DERAIGN, DEREYN, or DEREINE (Law 
 Lat. derationare, dirationare, or disration- 
 are; Law Fr. dereiner, derener, disreigner, 
 desrener, contra for deraisner or deraisoner) . 
 In old English law. To prove; to "deraign 
 the warranty paramount." St. 31 Hen. VIII. 
 c. 1; Cowell. See Glanv. lib. 2, c. 3; Id. c. 
 6, 20; 1 Reeve, Hist. Eng. Law, 123; Spel- 
 man, voc. "Dirationare." 
 
 In Texas, and perhaps other states, it is 
 used to signify the assertion or proof of title 
 from an ancestor or predecessor, e. g., "to 
 deraign title from the original patentee or 
 pre-emptor." 
 
 To disprove or refute the assertion of an 
 adverse party. Spelman makes this to be 
 the proper meaning, relying in particular 
 upon the etymology of disrationare (from 
 dis, contrary, and ratiocinari, to reason). 
 
 To deny or refuse. "He cannot deraign 
 battel." Dyer, 137. See Barr. Obs. St. 328. 
 
 To put out of place or order; to displace 
 or disarrange; to turn one out of his order; 
 to degrade. Some of the old books give the 
 words this sense, deriving it either from the 
 French disarrayer, to confound, or derayer, 
 desranger, to derange or displace. Termes 
 de la Ley; Cowell; Co. Litt. 136; Perkins, 
 c. 1, § 3 (G). This derivation, however, is 
 not approved by Spelman. 
 
 DERECHO. In Spanish law. Lawor right. 
 White, New Recop. bk. 4, tit. 4. Deredho 
 comun, common law. The civil law is so 
 called. Id. bk. 2, tit. 13, c. 1, § 5. A right. 
 Derechos, rights. 
 
DERELICT 
 
 (27S) 
 
 DESCENT CAST 
 
 DERELICT. Abandoned ; deserted; cast 
 away. 
 
 Land left uncovered by the receding of 
 water from its former bed. 2 Rolle, Abr. 
 170; 2 Bl. Comm. 262; 1 Crabb, Real Prop. 
 109. 
 
 When so left by degrees, the derelict land 
 belongs to the owner of the soil adjoining; 
 but when the sea retires suddenly, it be- 
 longs to the government. 2 Bl. Comm. 262; 
 
 1 Brown, Civ. Law, 239; 1 Sumn. (U. S.) 
 328, 490; 1 Gall. (U. S.) 133; Bee, Adm. 
 (U. S.) 62, 178, 260; Ware (U. S.) 332. 
 
 Personal property abandoned or thrown 
 away by the owner in such manner as to 
 indicate that he intends to make no further 
 claim thereto. 2 Bl. Comm. 9; 2 Reeve, 
 Hist. Eng. Law, 9; 1 C. B. 112; Broom, Leg. 
 Max. 261. 
 
 DERELICTION i'Lat. derelictio) . The gain- 
 ing of land from the water, in consequence 
 of the sea shrinking back below the usual 
 water mark; the opposite of alluvion (q. v.) 
 
 2 Rolle, Abr. 170; Dyer, 326b; 2 Bl. Comm. 
 262; 1 Steph. Comm. 419. 
 
 The abandonment of property. 2 Bl. 
 Comm. 9. 
 
 DERIVATIVA POTESTAS NON POTEST 
 esse major primitiva. The power which is 
 derived cannot be greater than that from 
 which it is derived. Wingate, Max. 36; 
 Pinch, Law, bk. 1, c. 3, p. 11. 
 
 DERIVATIVE. Coming from another; 
 taken from something preceding; secondary: 
 as, derivative title, which is that acquired 
 from another person. 
 
 There is considerable difference between 
 an original and a derivative title. When the 
 acquisition is original, the right thus ac- 
 quired to the thing becomes property, which 
 must be unqualified and unlimited, and, 
 since no one but the occupant has any right 
 to the thing, he must have the whole right 
 of disposing of it. But with regard to de- 
 rivative acquisition it may be otherwise; for 
 the person from whom the thing is acquired 
 may not have an unlimited right to it, or he 
 may convey or transfer it with certain reser- 
 vations of right. Derivative title must al- 
 ways be by contract. 
 
 Derivative Conveyances. Those which 
 
 presuppose some precedent conveyance, and 
 serve only to enlarge, confirm, alter, re- 
 strain, restore, or transfer the interest 
 granted by such original conveyance. 3 Bl. 
 Comm. 324. 
 
 DEROGATON. The partial abrogation of 
 a law. To derogate from a law is to enact 
 something which impairs its utility and 
 force; to abrogate a law is to abolish it en- 
 tirely. See "Abrogation." 
 
 DEROGATORY CLAUSE. In a will, this 
 is a sentence or secret character inserted by 
 the testator, of which he reserves the knowl- 
 edge to himself, with a condition that no will 
 he may make thereafter should be valid, un- 
 less this clause be inserted word for word. 
 This is done as a precaution to guard against 
 later wills being extorted by violence, or 
 
 otherwise improperly obtained. By the law 
 of England such a clause would be void, as 
 tending to make the will irrevocable. Whar- 
 ton. 
 
 DEROGATUR LEGI, CUM PARS DETRA- 
 hitur; abrogatur leg!, cum prorsus tollitur. 
 To derogate from a law is to take away part 
 of it; to abrogate a law is to abolish it en- 
 tirely. Dig. 50. J.6. 102. See 1 Bouv. Inst, 
 note 91. 
 
 DESAFUERO. In Spanish law. An irreg- 
 ular action committed with violence against 
 law, custom, or reason. 
 
 DESCENDANTS. Those who have issued 
 from an individual, including his children, 
 grandchildren, and their children to the re- 
 motest degree. Amb. 327; 2 Brown, 30, 230; 
 3 Brown, 367; 1 Rop. Leg. 115; 2 Bouv. Inst, 
 note 1956. 
 
 The descendants from what is called the 
 "direct descending line." The term is op- 
 posed to that of "ascendants." 
 
 "Descendants" is a good term of descrip- 
 tion in a will, and includes all who proceed 
 from the body of the person named; as grand- 
 children and great-grandchildren. Amb. 397; 
 2 Vern. 108, note 2; 2 Hilliard, Real Prop. 
 242. 
 
 There is a difference between the number 
 of ascendants and descendants which a man 
 may have. Every one has the same order 
 of ascendants, though they may not be ex- 
 actly alike as to numbers, iDecause some may 
 be descended from a common ancestor. In 
 the line of descendants they fork differently, 
 according to the number of children, and 
 continue longer or shorter, as generations 
 continue or cease to exist. Many families 
 become extinct, while others continue. The 
 line of descendants is, therefore, diversified 
 in each family. 
 
 DESCENDER. Descent. See"Pormedon." 
 
 DESCENT. Hereditary succession. 
 
 Title by descent is the title by which one 
 person, upon the death of another, acquires 
 the real estate of the latter as his heir at 
 law. 2 Bl. Comm. 201; Comyn, Dig. "Dis- 
 cent" (A). 
 
 It was one of the principles of the feudal 
 system that, on the death of the tenant in 
 fee, the land should descend, and not ascend. 
 Hence the title by inheritance is in all cases 
 called descent, although by statute law the 
 title is sometimes made to ascend. 
 
 The English doctrine of primogeniture, 
 by which by the common law the eldest son 
 and his issue take the whole real estate, 
 has been universally abolished in this coun- 
 try. So, with few exceptions, has been the 
 distinction between male and female heirs. 
 
 Descent is either "lineal," as from father 
 to son, or "collateral," as from brother to 
 brother. 
 
 DESCENT CAST. The same as what the 
 older writers called a "descent which tolls 
 entry." Where a person who had acquired 
 land by disseisin, abatement, or intrusion 
 died seised of the land, the descent of it to 
 
DESCRIPTIO PERSONAE 
 
 (276) 
 
 DESPOTISM 
 
 his heir took away or "tolled" the real 
 owner's right of entry, so that he could only 
 recover the land by an action. Litt. § 385 
 et seq.; Co. Litt. 237b. The doctrine of 
 descent cast was abolished by St. 3 & 4 Wm. 
 IV. c. 27; Shelf. R. P. St. 228. 
 
 The term seems to have originally meant 
 "the happening of any descent," because the 
 law casts the land upon the heir. Litt. § 
 385; Watk. Desc. 33. 
 
 DESCRIPTIO PERSONAE. Description 
 of the person. In wills, it frequently hap- 
 pens that the word "heir" is used as a de- 
 scripiio personae. It is then a sufficient des- 
 ignation of the person. In criminal cases, 
 a mere descriptio personae or addition, if 
 false, can be taken advantage of only by 
 plea in abatement. 1 Mete. (Mass.) 151. 
 
 The most common use of the term is in 
 respect to designations as "agent," "execu- 
 tor," etc., attached to the name of one exe- 
 cuting an instrument. If such designation 
 is not sufficient to indicate that he is acting 
 in an official or representative capacity, it is 
 said to be descriptio personae, and he is 
 bound personally. See 120 Mass. 92; 136 N. 
 Y. 655; 5 111. 325; 19 Mo. 193. 
 
 DESCRIPTION. An account of the acci- 
 dents and qualities'Of a thing. AylifEe, Pand. 
 60. 
 
 A written account of the state and condi- 
 tion of personal property, titles, papers, and 
 the like. It is a kind of inventory, but is 
 more particular in ascertaining the exact 
 condition of the property, and is without any 
 appraisement of it. 
 
 In Pleading. One of the rules which 
 
 regulate the law of variance is that allega- 
 tions of matter of essential description 
 should be proved as laid. It is impossible 
 to explain with precision the meaning of 
 these words; and the only practical mode of 
 understanding the extent of the rule is to 
 examine some of the leading decisions on 
 the subject, and then to apply the reasoning 
 or ruling contained therein to other analo- 
 gous cases. With respect to criminal law, it 
 is clearly established that the name or na- 
 ture of the property stolen or damaged is 
 matter of essential description. Thus, for 
 example, if the charge is one of firing a 
 stack of hay, and it turns out to have been 
 a stack of wheat, or if a man is accused of 
 stealing a drake, and it is proved to have 
 been a goose, or even a duck, the variance 
 is fatal. 1 Tayl. Ev. § 233. 
 
 Of Persons. Words identifying a per- 
 son by reference to a fiduciary or official ca- 
 pacity, as "Executor," "Treasurer." Such a 
 word, without more, is generally regarded 
 as merely descriptio personis, and not as 
 indicative of intention to act in the official 
 or fiduciary capacity. See "Addition." 
 
 Of Land. That part of a deed or oth- 
 er instrument that describes or identifies the 
 property involved. 
 
 DESERTION. Abandonment; the aban- 
 donment of a duty or of a person as to whom 
 the deserter is charged with a duty; as de- 
 sertion by a seaman, or a soldier, or by a 
 husband of his wife. 
 
 As a cause for divorce, is an unwarranted 
 departure from the conjugal relation, in- 
 tending not to return. The precise elements 
 vary according to the statutes. In only one 
 or two states is mere abstinence from sexual 
 intercourse regarded as desertion. 
 
 DESIGNATIO PERSONAE. The descrip- 
 tion contained in a contract of the persons 
 who are parties thereto. 
 
 DESIGNATIO UNIUS EST EXCLUSIO 
 alterius, et expressum facit cessare taciturn. 
 The appointment or designation of one is 
 the exclusion of another; and that expressed 
 makes that which is implied to cease. Co. 
 Litt. 210. 
 
 DESIGNATION. The expression used by 
 a testator to denote a person or thing, in- 
 stead of the name itself. 
 
 A bequest of the farm which the testator 
 bought of a person named, or of a picture 
 which he owns, painted by a certain artist, 
 would be a designation of the thing. A lej;- 
 acy "to the eldest son" of A. would be a 
 designation of the person. See 1 Hop. Leg. 
 c. 2. 
 
 DESLINDE. In Spanish law. The act of 
 determining and indicating the boundaries 
 of an estate, county, or province. 
 
 DESMEMORIADOS. In Spanish law. Per- 
 sons without memory. White, New Recop. 
 lib. 1, tit. 2, c. 1, § 4. 
 
 DESPACHEURS. The name given, in 
 come countries, to persons appointed to set- 
 tle cases of average. Ord. Hamb. tit. 21, art. 
 
 10. 
 
 DESPERATE. Of which there is no hope. 
 
 This term is used frequently in making 
 an inventory of a decedent's effects, when a 
 debt is considered so bad that there is no 
 hope of recovering it. It is then called a 
 desperate debt, and, if it be so returned, it 
 will be prima facie considered as desperate. 
 See Toller, Ex'rs, 248; 2 Williams, Ex'rs, 
 644; 1 Chit. Prac. 580; 11 Wend. (N. Y.) 361. 
 
 DESPITUS. A contemptible person. Pleta, 
 lib. 4, c. 5, § 4. 
 
 DESPONSATION. The act of betrothing 
 persons to each other. 
 
 DESPOSORIO. In Spanish law. Espous- 
 als; mutual promises of future marriage. 
 White, New Recop. bk. 1, tit. 6, c. 1, § 1. 
 
 DESPOT. This word, in its original and 
 most simple acceptation, signifies "master 
 and supreme lord." It is synonymous with 
 "monarch;" but taken in bad part, as it is 
 usually employed, it signifies a "tyrant." In 
 some states, "despot" is the title given to 
 the sovereign, as king is given in others. 
 Enc. Lond. 
 
 DESPOTISM. That abuse of government 
 where the sovereign power is not divided, 
 but united in the hands of a single man, 
 whatever may be his official title. It is 
 
DESRENABLE 
 
 (277) 
 
 DETINUE 
 
 not, properly, a form of government. Ruth- 
 erforth, Inst. bk. 1, c. 20, § 1. 
 
 DESRENABLE. Unreasonable. Britt. c. 
 121. 
 
 DESTINATION. The intended application 
 of a thing. 
 
 For example, when a testator gives to a 
 hospital a sum of money to be applied in 
 erecting buildings, he is said to give a desti- 
 nation to the legacy. Mill stones taken out 
 of a mill to be picked, and to be returned, 
 have a destination, and are considered real 
 estate, although detached from the freehold. 
 Heirlooms, although personal chattels, are, 
 by their destination, considered real estate; 
 and money agreed or directed to be laid out 
 in land is treated as real property. New- 
 land, Cont. c. 3; 3 Wheat. (U. S.) 577; 2 
 Bell, Comm. 2; Brsk. Inst. 2. 2. 14; Fonbl. 
 Eq. bk. 1, c. 6, § 9. See "Easement;" "Fix- 
 tures." 
 
 In Common Law. The port at which a 
 
 ship is to end her voyage is called her "port 
 of destination." 
 
 The place for ultimate delivery of goods 
 intrusted for carriage. 
 
 DESTRUCTION. A term used in old Eng- 
 lish law, generally in connection with 
 "waste," and having, according to some, the 
 same meaning. 1 Reeve, Hist. Eng. Law, 
 385; 3 Bl. Comm. 223. Britton, however, 
 makes a distinction between waste of woods 
 and destruction of houses. Britt. c. 66; St. 
 Marlb. c. 17. 
 
 DESUBITO. To weary a person with con- 
 tinual barkings, and then to bite, provided 
 against by old laws. 
 
 DESUETUDE. Disuse. 
 
 DETACH I ARE. To seize or take into cus- 
 tody another's goods or person. 
 
 The word is given by Cowell, but seems 
 a corruption of attachiare. 
 
 DETAINER. Detention; the act of keep- 
 ing a person against his will, or of with- 
 holding the possession of goods or other per- 
 sonal or real property from the owner. 
 
 "Detainer" and "detention" are pretty 
 much synonymous. If there be any distinc- 
 tion, it is perhaps th3.t detention applies 
 rather to the act considered as a fact; de- 
 tainer to the act considered as something 
 done by some person. Detainer is more fre- 
 quently used with reference to real estate 
 than in application to personal property. 
 
 In Practice. A writ or instrument, is- 
 sued or made by a competent officer, author- 
 izing the keeper of a prison to keep in his 
 custody a person therein named. A detainer 
 may be lodged against one within the walls 
 of a prison, on what account soever he is 
 there. Comyn, Dig. "Process" (E) (3 B). 
 
 DETENTION. The act of retaining and 
 preventing the removal of a person or prop- 
 erty. See "Detainer." 
 
 DETERMINABLE. Liable to come to an 
 end by the happening of a contingency: as, 
 
 a determinable fee. 
 1695. 
 
 See 2 Bouv. Inst, note 
 
 DETERMINABLE FEE (also called a 
 "qualified" or "base" fee). One which has 
 a qualification subjoined to it, and which 
 must be determined whenever the qualifi- 
 cation annexed to it is at an end. A limita- 
 tion to a man and his heirs on the part of 
 his father affords an example of this spe- 
 cies of estate. Litt. § 254; Co. Litt. 27a, 
 220; 1 Preston, Est. 449; 2 Bl. Comm. 109; 
 Cruise, Dig. tit. 1, § 82; 2 Bouv. Inst, note 
 1695. 
 
 DETERMINATE. That which is ascer- 
 tained; what is particularly designated; as, 
 if I sell you my horse Napoleon, the article 
 sold is here determined. This is very dif- 
 ferent from a contract by which I would 
 have sold you a horse, without a particular 
 designation of any horse. 1 Bouv. Inst, 
 notes 947, 950. 
 
 DETERMINATION. The decision of a 
 court of justice. 
 
 The end, the conclusion, of a right or au- 
 thority; as, the determination of a lease. 
 Comyn, Dig. "Estates by Grant" (G 10, 11, 
 12). 
 
 The determination of an authority is the 
 end of the authority given; the end of the 
 return-day of a writ determines the author- 
 ity of the sheriff; the death of the principal 
 determines the authority of a mere attorney. 
 
 DETERMINE. To come to an end. To 
 bring to an end. 2 Bl. Comm. 121; 1 Washb. 
 Real Prop. 380. 
 
 DETESTATIO (Lat) In the civil law. A 
 summoning made, or notice given, in the 
 presence of witnesses, denuntiatio facta cum 
 testatione. Dig. 50. 16. 40. 
 
 DETINET (Lat. (Jctinere, to detain; detinet, 
 he detains). In pleading. An action of 
 debt is said to be in the detinet when it 
 alleged merely that the defendant with- 
 holds or unjustly detains from the plaintiff 
 the thing or amount demanded, as distin- 
 guished from actions in the cepit where a 
 wrongful taking is alleged. 
 
 DETINUE (Lat. detinere, — de, and tenere, — 
 to hold from; to withhold). In practice. A 
 form of action which lies for the recovery, 
 in specie, of personal chattels from one who 
 acquired possession of them lawfully, but 
 retains it without right, together with dam- 
 ages for the detention. 3 Bl. Comm. 151. 
 
 It is generally laid down as necessary to 
 the maintenance of this action that the orig- 
 inal taking should have been lawful, thus 
 distinguishing it from replevin, which lies 
 in case the original taking is unlawful. 
 Brooke, Abr. "Detinue," 21, 36, 63. It is 
 said, however, by Chitty, that it lies in 
 cases of tortious taking, except as a dis- 
 tress, and that it is thus distinguished from 
 replevin, which lay originally only where a 
 distress was made, sis was claimed, wrong- 
 fully. 1 Chit. PI. 112, 113. See 3 Shars- 
 wood, Bl. Comm. 152, and notes. In Eng- 
 land this action has yielded to the more 
 
DETINUE OF GOODS, ETC. 
 
 (278) 
 
 DEVISE 
 
 practical and less technical action trover, 
 but is much used in the slaveholding states 
 of the United States for the recovery of 
 slaves. 4 Munf. (Va.) 72; 4 Ala. 221; 3 
 Bibb (Ky.) 510; 16 Overt. (Tenn.) 187; 10 
 Ired. (N. C.) 124. 
 
 DETINUE OF GOODS IN FRANK MAR- 
 riage. An obsolete writ, by which, after a 
 divorce, the wife might obtain the goods 
 which were given with her in marriage. 
 
 DETINUIT (Lat. he detained). In plead- 
 ing. An action of replevin is said to be 
 in the detinuit when the plaintiff acquires 
 possession of the property claimed by means 
 of the writ. The right to retain is, of course, 
 subject in such case to the judgment of the 
 court upon his title to the property claimed. 
 Buller, N. P. 521. 
 
 DETRACTARE (Law Lat.) In old Eng- 
 lish law. To draw, or drag; to draw along; 
 to draw or drag a convict to the gallows or 
 stake. Detractentur et suspendentur, they 
 shall be drawn and hanged. Pleta, lib. 1, c. 
 37, § 4. Detractari et comburi, to be drawn 
 and burned. Id. § 2. 
 
 DETUNICARI. To discover or lay open 
 to the world. Matt. Westminster, 1240. 
 
 DEUNX (Lat. pi. deunces). In the Roman 
 law. A division of the as, containing eleven 
 unciae or duodecimal parts; the proportion 
 of eleven-twelfths. 2 Bl. Comm. 462, note; 
 Tayl. Civ. Law, 492. 
 
 DEUS SOLUS HAEREDEM FACERE PO- 
 test, non homo. God alone, and not man, 
 can make an heir. Co. Litt. 7b; cited 5 
 Barn. & C. 440, 454; Broom, Leg. Max. (3d 
 London Ed.) 457. 
 
 DEUTEROGAMY. A second marriage. 
 
 DEVADIATUS, or DIVADIATUS. An of- 
 fender without sureties or pledges. Cowell. 
 
 DEVASTATION. Wasteful use of the 
 property of a deceased person; as, for ex- 
 travagant funeral or other unnecessary ex- 
 penses. 2 Bl. Comm. 508. 
 
 DEVASTAVERUNT (Lat. pi. of devasta- 
 vit). They have wasted. A term applied in 
 old English law to waste by executors and 
 administrators, and to the process issued 
 against them therefor. Cowell. See "De- 
 vastavit." 
 
 DEVASTAVIT. A mismanagement and 
 waste by an executor, administrator, or oth- 
 er trustee, of the estate and effects trusted 
 to him as such, by which a loss occurs. 
 • Devastavit may be: 
 
 (1) By direct abuse, as when the execu- 
 tor, administrator, or trustee sells, embez- 
 zles, or converts to his own use the goods 
 intrusted to him (Comyn, Dig. "Adminis- 
 tration" [I 1]), releases a claim due to the 
 estate (3 Bac. Abr. 700; Hob. 266; Cro. Eliz. 
 43; 7 Johns. [N. Y.] 404; 9 Mass. 352), or 
 surrenders a lease below its value (2 Johns. 
 Cas. [N. T.] 376; 3 P. Wms. 330). 
 
 (2) By maladministration, as by the pay- 
 
 ment of claims which were not due nor ow- 
 ing, or by paying others out of the order 
 in which they ought to be paid, or by the 
 payment of legacies before all the debts 
 are satisfied. 4 Serg. & R. (Pa.) 394; 5 
 Rawle (Pa.) 266. 
 
 (3) By neglect, as by neglect to sell the 
 goods at a fair price within' a reasonable 
 time, or, if they are perishable goods, be- 
 fore they are wasted; or a neglect to collect 
 a doubtful debt which, by proper exertion, 
 might have been collected. Bac. Abr. "Ex- 
 ecutors" (L). 
 
 DEVENERUNT (Lat. devenire, to come to). 
 A writ directed to the king's escheators 
 when any of the king's tenants in capite 
 dies, and when his son and heir dies within 
 age, and in the king's custody, commanding 
 the escheat, or that by the oaths of twelve 
 good and lawful men they shall inquire what 
 lands or tenements by the death of the ten- 
 ant have come to the king. Dyer, 360; 
 Termes de la Ley; Kellw. 199a; Blount; 
 Cowell. 
 
 DEVEST (Law Pr. devester, deseester; Law 
 Lat. devestire). 
 
 In Old English Law. To take away; 
 
 to deprive of, as a possession, title, or es- 
 tate; the opposite of "invest." Termes de 
 la Ley; Cowell. Sometimes written "di- 
 vest," but "devest" has the support of the 
 best authority. Co. Litt. 15a, 15b; Hale, 
 Anal. § 32. See "Invest." 
 
 In Modern Law. To take or draw 
 
 away. "The whose estate was devested and 
 drawn out of the feoffees." 4 Kent, Comm. 
 240. "The feoffment made by the feoffees 
 devested all the estates." Id. 
 
 To strip or deprive. "The statute devest- 
 ed the feoffees of all the estate." Id. 239. 
 See "Vest." 
 
 DEVIATION. 
 
 In Insurance. Varying from the risks 
 
 insured against, as described in the policy, 
 without necessity or just cause, after the 
 risk has begun. 1 Phil. Ins. § 9'77 et seq. 
 
 In Contracts. A change made In the 
 
 progress of a work from the original plan 
 agreed on. 
 
 DEVISAVIT VEL NON. In practice. The 
 name of an issue sent out of a court of 
 chancery, or one which exercises chancery 
 jurisdiction, to a court of law, to try the 
 validity of a paper asserted and denied to 
 be a will, to ascertain whether or not the 
 testator did devise, or whether or not that 
 paper was his will. 7 Brown, Pari. Cas. 437; 
 2 Atk. 424; 5 Pa. St. 21. 
 
 DEVISE. A gift of real property by a per- 
 son's last will and testament. 
 
 The term "devise," properly and technical- 
 ly, applies only to real estate. The object of 
 the devise must, therefore, be that kind of 
 property. 1 Hill, Abr. c. 36, notes 62-74. 
 But it is also sometimes improperly applied 
 to a bequest or legacy. See 2 Bouv. Inst, 
 note 2095 et seq.; 4 Kent, Comm. 489; 8 
 Viner, Abr. 41; Comyn, Dig. "Estates by De- 
 vise." 
 
DEVISEE 
 
 (279) 
 
 DIEI DICTIO 
 
 DEVISEE. A person to whom a devise 
 has been made. 
 
 DEVISOR. A testator; one who devises 
 real estate. 
 
 DEVOIR. Duty. It is used In the statute 
 of 2 Rich. II. c. 3, in the sense of "duties" 
 or "customs." 
 
 DEVOLUTION. In ecclesiastical law. 
 The transfer, by forfeiture, of a right and 
 power which a person has to another, on 
 account of some act or negligence of the 
 person who is vested with such right or 
 power; for example, when a person has the 
 right of presentation, and he does not pre- 
 sent within the time prescribed, the right 
 devolves on his next Immediate superior. 
 Ayllffe, Par. 331. 
 
 In the law of decedents' estates, It com- 
 prehends the processes whereby title is 
 transmitted on the death of the owner of 
 property. 
 
 DEVOLVE. "To devolve means to pass 
 from a person dying to a person living." 1 
 Mylne & K. 648. 
 
 DEVYER (Law Fr.) To die. Deoya, died. 
 Y. B. I. 1 Edw. II. 11. 
 
 DEXTANS (Lat.) In Roman law. A di- 
 vision of the as, consisting of ten unciae; 
 ten-twelfths, or five-sixths. 2 Bl. Comm. 
 462, note (m) ; Tayl. Civ. Law, 492. 
 
 Dl. ET Fl. (Law Lat.) In old writs. An 
 abbreviation of dilecto et fldeli, to his be- 
 loved and faithful. Reg. Grig. 17. 
 
 Dl COLONNA. In maritime law. A con- 
 tract between the owner of a ship, the cap- 
 tain, and the mariners, that the voyage shall 
 be for the benefit of all. The term Is used 
 In the Italian law. Targa, cc. 36, 37; Emer- 
 Ig. Mar. Loans, § 5. 
 
 DIARIUM. Daily food, or as much as will 
 suffice for the day. Du Cange. 
 
 DIATIM. In old records. Dally; every 
 day; from day to day. Spelman. 
 
 DICA. In old English law. A tally for 
 accounts, by number of cuts (.taillees), 
 marks or notches. Cowell. See "Tallla;" 
 "Tally." 
 
 DICAST. An officer in ancient Greece an- 
 swering nearly to our juryman. 
 
 DICTATOR. In Roman law. A magis- 
 trate at Rome Invested with absolute power. 
 His authority over the lives and fortunes of 
 the citizens was without bounds. His office 
 continued but for six months. Hist, de la 
 Jur. Dig. 1. 2. 18. 1. 1. 1. 
 
 DICTUM. An opinion expressed by a 
 court, but which, not being necessarily In- 
 volved in the case, lacks the force of an 
 adjudication. Usually given obiter dictum. 
 
 It frequently happens that. In assigning 
 its opinion upon a qu«g{lon before it, the 
 court discusses collatiMgk|gstions, and ex- 
 presses a decided oplnl^^^Mj%.them. Such, 
 
 opinions, however, are frequently given with- 
 out much reflection, or without previous ar- 
 gument at the bar; and as, moreover, they 
 do not enter Into the adjudication of the 
 point before it, they have only that author- 
 ity which may be accorded to the opinion, 
 more or less deliberate, of the individual 
 judge who announces it. It may be observed 
 that In recent times, particularly In those 
 jurisdictions where appeals are largely fa- 
 vored, the ancient practice of courts in this 
 respect is much modified. Formerly, judges 
 aimed to confine their opinion to the pre- 
 cise point involved, and were glad to make 
 that point as narrow as it might justly be. 
 Where appeals are frequent, however, a 
 strong tendency may be seen to fortify the 
 judgment given with every principle that 
 can be Invoked in its behalf, — those that are 
 merely collateral, as well as those that are 
 necessarily Involved. In some courts of last 
 resort, also, when there are many judges, 
 it is not unfrequently'' the case^that, while 
 the court come to om' and the .sain,e conclu- 
 sion, the different jufl§Ss»may 
 conclusion by dlff erdit vie 
 that it becomes diflKult to^Saftgrmin'S 
 is to be regarded as'Oie princij 
 the case was decided, and ^ 
 deemed mere dicta. According 
 rigid rule, an expression of 
 ever deliberate, iipon a question, 
 fully argued, if not essential to the disposi- 
 tion that was made of the case, may be re- 
 garded as a dictum; but it is, on the other 
 hand, said that it is difficult to see why, in 
 a philosophical 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. 
 pref. iv. Consult 17 Serg. & R. (Pa.) 292: 
 1 Phillim. Ecc. Law, 406; 1 Eng. Ecc. 129; 
 Ram, Judgm. c. 5, p. 36; Willes, 666; 1 H. 
 HI. 53-63; 2 Bos. & P. 375; 7 Pa. St. 287; 3 
 Barn. & Aid. 341; 2 Blng. 90. The doctrine 
 of the courts of France on this subject is 
 stated in 11 Toulller, Dr. Civ. 177, note ISS!^ 
 As to weight given to dicta in former deci- 
 sions, see 6 Wheat. (U. S.) 399; 4 Heisk. 
 (Tenn.) 419. 
 
 In French Law. The report of a judg- 
 ment made by one of the judges who has 
 given it. Poth. Proc. Civ. pi. 1. c. 5, art. 2. 
 
 DICTUM DE KENILWORTH. The edict 
 or declaration of Kenllwortbl An edict or 
 award between King Henry III. and all the 
 barons and others who had been in arms 
 against him; and so called because it was 
 made at Kenilworth Castle, in Warwick- 
 shire, in the fifty-first year of his reign, 
 containing a composition of five years' rent 
 for the lands and estates of those who had 
 forfeited them in that rebellion. Blount; 2 
 Reeve, Hist. Eng. Law, 62; Hale, Hist. Com. 
 Law, 10, and note. 
 
 DIEI DICTIO (Lat.) In the Roman law. 
 The notice given by a magistrate that he 
 intended to impeach a certain citizen, whom 
 
DIEM CLAUSIT EXTREMUM 
 
 (280) 
 
 DIET 
 
 lie mentioned by name, of a certain crime, 
 before the people, on a certain day. Hali- 
 fax, Anal. bk. 3, c. 13, No. 40. 
 
 DIEM CLAUSIT EXTREMUM (Lat. he 
 closed his last day, — died). A writ which 
 lay on the death of a tenant in capite, to 
 ascertain the lands of which he died seised, 
 and reclaim them into the king's hands. It 
 was directed to the king's escheators. Fitzh. 
 Nat. Brev. 251 (K) ; 2 Reeve, Hist. Eng. 
 Law, 327. 
 
 A writ of the same name, issuing out of 
 the exchequer after the death of a debtor of 
 the king, to levy the debt of the lands or 
 goods of his heir, executor, or administrator. 
 Termes de la Ley. This writ is still in force 
 in England. 4 Steph. Comm. 47. 
 
 DIES (Lat.) A day; days; days for ap- 
 pearance in court; provisions or mainte- 
 nance for a day. "The king's rents were an- 
 ciently reserved by so many days' provi- 
 sions. Spelman; Cowell; Blount. 
 
 DIES A QUO (Lat.) In civil law. The 
 day from which a transaction begins, the 
 conclusion being the dies ad guem. Calv. 
 Lex.; 1 Kaufm. Mackeld. Civ. Law, 168. 
 
 DIES AMORIS (Lat.) A day of favor. If 
 obtained after a default by the defendant, it 
 amounted to a waiver of the default. Co. 
 Litt. 135a; 2 Reeve, Hist. Eng. Law, 60. 
 
 DIES CEDIT. The day begins; dies venit, 
 the day has come. Two expressions in 
 Roman law which signify the vesting or 
 fixing of an interest, and the interest be- 
 coming a present one. Sandars, Just. Inst. 
 (5th Ed.) 225, 232. 
 
 DIES COMMUNES IN BANCO (Lat.) 
 Regular days for appearance in court; called, 
 also, "common return days." 2 Reeve, Hist. 
 Eng. Law, 57. 
 
 DIES DAT US (Lat. a day given). A day 
 or time given to a defendant in a suit, which 
 is in fact a continuance of the cause. It 
 is so called when given before a declaration. 
 When, it is allowed afterwards, it assumes 
 the name of "imparlance" (g. v.) 
 
 Dies datus in tanco, a day in bank. Co. 
 Litt. 135. Dies datus partihus, a continu- 
 ance; dies datus prece partium, a day given 
 on prayer of the parties. 
 
 DIES DOMINICUS NON EST JURIDI- 
 cus. Sunday Is not a day in law. Co. Litt. 
 135a; 2 Saund. 291; Broom, Leg. Max. (3d 
 London Ed.) 21; Pinch, Law, 7; Noy, Max. 
 2; Plowd. 265; 3 Dowl. & L. 328; 13 Mass. 
 327. See "Sunday." 
 
 DIES EXCRESCENS. In old English law. 
 The added or increasing day in leap year. 
 Bracton, fols. 359, 359b. 
 
 DIES FASTI (Lat.) In Roman law. Days 
 on which courts might be held, and judi- 
 cial and other business legally transacted. 
 Calv. Lex.; Anthon, Rom. Ant.; 3 Bl. Comm. 
 424. 
 
 DIES FERIATI (Lat.) In the civil law. 
 Holidays. Dig. 2. 12. 2. 9. 
 
 DIES GRATIAE (Lat.) In old English 
 law. Days of grace. Co. Litt. 134b. 
 
 DIES INCEPTUS PRO COMPLETO HAB- 
 etur. A day begun is held as complete. 
 
 DIES INCERTUS PRO CONDITIONE 
 
 habetur. A day uncertain is held as a coa- 
 dition. Bell, Diet. "Computation of Time." 
 
 DIES INTERCISI. In Roman law. Di- 
 vided days; days on which the courts were 
 open for a part of the day. Calv. Lex.; 1 
 Mackeld. Civ. Law, p. 24, § 35, note. 
 
 DIES LEGITIMUS. In the civil and old 
 English law. A lawful or law day; a term 
 day; a day of appearance. Halifax, Anal, 
 bk. 3, c. 9, § 6; Bracton, fols. 334b, 359. 
 
 DIES MARCH I AE. In old English law. 
 The day of meeting of English and Scotch, 
 which was annually held on the marches or 
 borders to adjust their differences and pre- 
 serve peace. Cowell; Tomlin. 
 
 DIES NEFASTI (Lat.) In Roman law. 
 Days on which it was unlawful to transact 
 judicial affairs, and on which the courts 
 were closed. Anthon, Rom. Ant.; Calv. Lex.; 
 1 Kaufm. Mackeld. Civ. Law, 24. 
 
 DIES NON (Lat.) An abbreviation of the 
 phrase dies nonjuridicus, universally used 
 to denote nonjudicial days. Days during 
 which courts do not transact any business, 
 as, Sunday, or the legal holidays. 3 Chit. 
 Gen. Prac. 104; W. Jones, 156. 
 
 DIES NONJURIDICUS (Lat.) Nonjudi- 
 cial days. See "Dies Non." 
 
 DIES PACIS (Lat. day of peace). The 
 year was formerly divided into the days of 
 the peace of the church, and the days of the 
 peace of the king, including in the two divi- 
 sions all the days of the year. Crabb, Hist. 
 Eng. Law, 35. 
 
 DIES SOLARIS. In old English law. A 
 solar day, as distinguished from what was 
 called "dies lunaris" (a lunar day), both 
 composing an artificial day. Bracton, fol. 
 264. See "Day." 
 
 DIES SO LIS. In the civil and old English 
 law. Sunday, literally, the day of the sun. 
 So called in Code, 3. 12. 7. 
 
 DIES UTILES (Lat. useful or available 
 days). Days in which an heir might apply 
 to the judge for an inheritance. Cooper, 
 Inst; Calv. Lex.; Du Cange. 
 
 DIET, orDYET. In Scotch practice. The 
 sitting of a court. 3 How. St. Tr. 654. 
 
 An appearance day. Bell, Diet. 
 
 A day fixed for the trial of a criminal 
 cause. 2 Alison, Prac. 343; 2 Brown, 240. 
 
 A criminal cause as prepared for trial. 1 
 Brown, 268; 2 Brown, 141. "Deserting the 
 diet." Arkley, 481. 
 
DIETA 
 
 (281) 
 
 DILIGENCE 
 
 DIETA (Lat.) A day's journey; a day's 
 ■work; a day's expenses. A reasonable day's 
 journey is said to be twenty miles, by an old 
 computation. Cowell; Spelman; Bracton, 
 235b; 3 BI. Comm. 218. 
 
 DIETS OF COMPEARANCE. In Scotch 
 law. The days allowed in which to appear 
 after citation. 
 
 DIEU SON ACTE (Law Fr.) In old law. 
 God, his act; God's act. An event beyond 
 human foresight or control. Termes de la 
 Ley. 
 
 DIFFACERE, or DISFACERE (Law Lat; 
 eld Fr. deffacer). In old European law. 
 To disfigure or deface; to mutilate; to de- 
 stroy. Spelman; LL. Longobard, lib. 1, tit. 
 25, 1, 68. 
 
 Dijfactio, a mutilating or maiming. Whl- 
 shaw. 
 
 DIFFICILE EST UT UNUS HOMO VI- 
 cem duorum sustineat. It is difiicult that 
 one man should sustain the place of two. 
 4 Coke, 118. 
 
 DIFFORCIARE. In old English law. To 
 deny, or keep from one. Difforciare rectum, 
 to deny justice to any one, after having 
 been required to do it. Matt. Par. A. D. 
 1164. Perhaps the same with deforciare. 
 
 DIGAMA, or DIGAMY. Second marriage; 
 marriage to a second wife after the death 
 of the first, as "bigamy," in law, is having 
 two wives at once. Originally, a man who 
 married a widow, or married again after 
 the death of his wife, was said to be guilty 
 of bigamy. Co. Litt. 40b, note. 
 
 DIGEST. A compilation arranged in an 
 orderly manner. 
 
 The name is given to a great variety of 
 topical compilations, abridgments, and ana- 
 lytical indices of reports, statutes, etc. When 
 reference is made to "Digest," the Pandects 
 of Justinian are intended, they being the 
 authoritative compilation of the civil law. 
 As to this Digest, and the mode of citing 
 it, see "Pandects." Other digests are re- 
 ferred to by their distinctive names. For 
 some account of digests of the civil and can- 
 on law, and those of Indian law, see "Civil 
 Law," "Code," and "Canon Law." 
 
 The digests of English and American law 
 are for the most part deemed not authori- 
 ties, but simply manuals of reference, by 
 which 'the reader may find his way to the 
 original cases which are authorities. 1 Bur- 
 rows, 364; 2 Wils. 1, 2. Some of them, how- 
 ever, which have been the careful work of 
 scholarly lawyers, possess an independent 
 value as original repositories of the law. 
 Bacon's Abridgment, which has long been 
 deservedly popular in this country, and 
 Comyn's Digest, also often cited, are exam- 
 ples of these. 
 
 DIGNITARY. In ecclesiastical law. An 
 ecclesiastic who holds a dignity or benefice 
 which gives him some pre-eminence over 
 mere priests and canons, such as a bishop, 
 archbishop, prebendary, etc. Swift; Burns. 
 
 DIGNITIES. In English law. Titles ot 
 honor. 
 
 They are considered as incorporeal here- 
 ditaments. The genius of our government 
 forbids their admission into the republic. 
 
 DIJUDICATION. Judicial distinction. 
 
 DILACION. In Spanish law. The time 
 granted by law or by the judge to parties 
 litigant for the purpose of answering a de- 
 mand, or proving some disputed fact. 
 
 DILAPIDATION. A species of ecclesias- 
 tical waste which occurs whenever the in- 
 cumbent suffers any edifices of his ecclesias- 
 tical living to go to ruin or decay. It is 
 either voluntary, by pulling down, or per- 
 missive, by suffering the church, parsonage 
 houses, and other buildings thereunto be- 
 longing, to decay. And the remedy for ei- 
 ther lies either in the spiritual court, where 
 the canon law prevails, or in the courts of 
 common law. It is also held to be good 
 cause of deprivation if the bishop, parson, or 
 other ecclesiastical person dilapidates build- 
 ings or cuts down timber growing on the 
 patrimony of the church, unless for neces- 
 sary repairs; and that a writ of prohibition 
 will also lie against him in the common-law 
 courts. 3 Bl. Comm. 91. 
 
 DILATIONES IN LEGE SUNT ODIOSAE. 
 
 Delays in law are odious. Branch, Princ. 
 
 DILATORY DEFENSE. In chancery prac- 
 tice. One the object of which is to dis- 
 miss, suspend, or obstruct the suit, without 
 touching the merits, until the impediment 
 or obstacle insisted on shall be removed. See 
 "Defense." 
 
 DILATORY PLEA. One which goes to 
 defeat the particular action brought, merely, 
 and which does not answer as to the general 
 right of the plaintiff. 
 
 DILIGENCE. In Scotch law. Process; 
 execution. 
 
 Diligence against the Heritage. A 
 
 writ of execution by which the creditor pro- 
 ceeds against the real estate of the debtor. 
 
 Diligence Incident. A writ or process 
 
 for citing witnesses and examining havers. 
 It is equivalent to the English subpoena for 
 witnesses, and rule or order for examination 
 of parties and for interrogatories. 
 
 Diligence to Examine Havers. A pro- 
 cess to obtain testimony, equivalent to a bill 
 of discovery in chancery, or a rule to compel 
 oral examination and a subpoena duces tecum 
 at common law. 
 
 Diligence against the Person. A writ 
 
 of execution, by which the creditor proceeds 
 against the person of the debtor; equivalent 
 to the English ca. sa. 
 
 Second Diligence. Second letters is- 
 sued where the first have' been disregarded. 
 A similar result is produced in English prac- 
 tice by the attachment for contempt. 
 
 Summary Diligence. Diligence issued 
 
 in a summary manner, like an execution of a 
 
DILIGIATUS 
 
 (282) 
 
 DIRECTION 
 
 warrant of attorney, cognovit actionem, and 
 the like, in English practice. 
 
 Diligence against Witnesses. Process 
 
 to compel the attendance of witnesses ; equiv- 
 alent to the English subpoena. See Pater- 
 son, Comp. 
 
 DILIGIATUS (Law Lat. from di, away, 
 and ligius, or ligiatus, under the protection 
 of the law). In old English law. Cast out 
 of the law's protection, ejectus e patrocinio 
 legis; outlawed; an outlaw. Spelman; LL. 
 Hen. I. c. 45. 
 
 DILLIGROUT. Pottage formerly made 
 for the king's table on the coronation day. 
 There was a tenure in serjeantry, by which 
 lands were held of the king by the service 
 of finding this pottage at that solemnity. 39 
 Hen. III. 
 
 DIIVIIDIETAS. The moiety or half of a 
 thing. 
 
 DIIV1INUTIO. In the civil law. Diminu- 
 tion; a taking away; loss or deprivation. 
 Diminutio capitis, loss of status or condition. 
 See "Capitis Diminutio." 
 
 DIIVIINUTION OF THE RECORD. In 
 
 practice. Incompleteness of the record of a 
 case sent up from an inferior to a superior 
 court. 
 
 DIMISI. In old conveyancing. I have de- 
 mised. Dimisi, concessi, et ad firmam tra- 
 didi, have demised, granted, and to farm 
 let. The usual words of operation in a lease. 
 2 Bl. Comm. 317, 318. Sometimes written 
 demisi. 
 
 DIMISIT. In old conveyancing. He has 
 demised. See "Dimisi." 
 
 DIMISSORIAE LITTERAE. In the civil 
 law. Letters dimissory or dismissory, com- 
 monly called "apostles" {quae vulgo apostoU 
 dicuntur). Dig. 50. 16. 106. See "ApostoU;" 
 "Apostles." 
 
 DINARCHY. A government by two per- 
 sons. 
 
 DINERO. 
 
 In Spanish Law. Money. Dinero con- 
 
 tado, money counted. White, New Recop. bk. 
 2, tit. 13, c. 1, § 1. 
 
 In Roman Law. A civil division of 
 
 the Roman empire, embracing several prov- 
 inces. Calv. Lex. 
 
 DIOCESAN COURTS. Ecclesiastical courts 
 taking cognizance of all matters arising 
 within the diocese of each bishop. They 
 consist of the consistorial court, and the 
 courts of archdeacons, exercising general or 
 limited jurisdictions, according to the terms 
 of their patents, or to local custom, or to 
 the authority of recent legislation. Phlllim. 
 Ecc. Law, 1202. 
 
 DIOCESE. The territorial extent of a 
 bishop's jurisdiction; the circuit of every 
 bishop's jurisdiction. Co. Litt. 94; 1 Bl. 
 Comm. Ill; 2 Burn, Ecc. Law, 158. 
 
 DIPLOIVIA. An Instrument of writing, ex- 
 ecuted by a corporation or society, certify- 
 ing that a certain person therein named is 
 entitled to a certain distinction' therein men- 
 tioned. 
 
 It is usually granted by learned institu- 
 tions to their members, or to 'persons who 
 have studied in them. 
 
 This word, which is also written "duplo- 
 ma," in the civil law signifies letters issued 
 by a prince. They are so called, it is sup- 
 posed, a dupUcatis tabelUs, to which Ovid is 
 thought to allude (1 Amor. 12. 2. 27) when 
 he says. Tunc ego vos dupUces rebus pro no- 
 mine sensi fSueton. in Augustum, c. 26). 
 Seals also were called "diplomata." Vicat. 
 
 DIPLOIVIATICS. The art of judging ot 
 ancient charters, public documents, or diplo- 
 mas, and discriminating the true from the 
 false. Enc. Lond. 
 
 DIPSOIVIANIA. In medical jurisprudence. 
 A disease produced by drunkenness, and, in- 
 deed, other causes, which overmasters the 
 will of its victim, and irresistibly impels 
 him to drink to intoxication. 1 Bish. Crim. 
 Law, § 304. How far the law will hold a 
 party responsible for acts committed while 
 the mind is overwhelmed by the effects of 
 liquor so taken is an open question. 
 
 DIPTYCH A. Diptychs; tablets of wood, 
 metal, or other substance, used among the 
 Romans for the purpose of writing, and 
 folded like a book of two leaves. The dip- 
 tychs of antiquity were especially employed 
 for public registers. They were used in the 
 Greek, and afterwards in the Roman, church, 
 as registers of the names of those for whom 
 supplication was to be made, and are ranked 
 among the earliest monastic records. Hub- 
 back, Ev. Success. 567; Enc. Am. See Calv. 
 Lex.; Brissonius. 
 
 DIRECT. Straightforward; immediate; not 
 collateral. The direct line of descent is 
 formed by a series of relationships between 
 persons who descend successively one from 
 the other. 
 
 Evidence is termed "direct" which ap- 
 plies immediately to the fact to be proved, 
 without any intervening process, as distin- 
 guished from "circumstantial," which ap- 
 plies immediately to collateral facts sup- 
 posed to have a connection, near or remote, 
 with the fact in controversy. 
 
 The examination in chief of a witness is 
 called the "direct examination." 
 
 Interrogatories propounded to a dfeponent 
 by the party by whom the deposition is 
 taken are called "direct interrogatories." 
 
 DIRECT LINE. In the law of descent. 
 Direct lineal succession. 
 
 DIRECT TAX. See "Tax." 
 
 DIRECTION. The order and government 
 of an institution; the persons who compose 
 the board of directors are jointly called the 
 "direction." Direction, in another sense, is 
 nearly synonymous with instruction (g. v.] 
 
 In Practice. That part of a bill in 
 
 chancery which contains the address of the 
 
DIRECTORS 
 
 (283) 
 
 DISBOCATIO 
 
 bill to the court. This must, of course, con- 
 tain the appropriate and technical descrip- 
 tion of the court. See "Bill." 
 
 DIRECTORS. Persons appointed or elect- 
 ed according to law, authorized to manage 
 and direct the affairs of a corporation or 
 company. The whole of the directors col- 
 lectively form the board of directors. 
 
 DIRECTORY TRUST. One where, by the 
 terms of the trust, the trust fund is directed 
 to be vested In a particular manner until 
 the period arrives when the trust is to be 
 terminated. 10 Yerg. (Tenn.) 272. 
 
 DIRIBITORES. In Roman law. Officers 
 who distributed ballots to the people, to be 
 used In voting. Tayl. Civ. Law, 192. 
 
 DIRIMANT IMPEDIMENTS. Those bars 
 which annul a consummated marriage. 
 
 DISABILITY. The want of legal capacity. 
 
 "Disability implies want of power, not 
 want of inclination. It refers to incapacity, 
 and not to disinclination." 32 Barb. (N. Y.) 
 473. 
 
 Disabilities were anciently classified as 
 general and special. 
 
 (1) A disability is called general when 
 it disables a person from performing all acts 
 of a given kind, as in the case of an out- 
 law. 
 
 (2) A disability is special when it disa- 
 bles him from doing a specific act, as where 
 one renders himself Incapable of performing 
 a contract which he has entered into. 
 
 They are also classified as personal and 
 absolute. 
 
 (3) A personal disability is confined to 
 the person affected. 
 
 (4) An absolute disability descends to his 
 heirs. The absolute disabilities such as at- 
 tainder have been all abolished. 
 
 They are also classified as civil and ca- 
 nonical. 
 
 This classification eiisted only as to dis- 
 ability to enter the marriage contract. Civil 
 were such as to render the marriage void, 
 as prior marriage, consanguinity, etc., while 
 a canonical disability, such as sterility, ren- 
 dered the marriage voidable only. 2 Steph. 
 Comm. 240. 
 
 DISABLING STATUTES. The acts of 1 
 Eliz. c. 19, 13 Eliz. c. 10, 14 Eliz. cc. 11, 14, 
 18 Eliz. c. 11, and 43 Eliz. c. 29, by which 
 the power of ecclesiastical or eleemosynary 
 corporations to lease their lands was re- 
 stricted. 2 Bl. Comm. 319, 321; Co. Litt. 44a; 
 3 Steph. Comm. 140. Also called the "Re- 
 straining Statutes." 
 
 DISADVOCARE. To disavow. 
 
 DISAFFIRMANCE. The act by which a 
 person who has entered into a voidable con- 
 tract, as, for example, an infant, disagrees 
 to such contract, and declares he will not 
 abide by it. ^ 
 
 Disaffirmance is express or implied, — ^the 
 former, when the declaration is made in 
 terms that the party will not abide by the 
 
 contract; the latter, when he does an act 
 which plainly manifests his determination 
 not to abide by it; as where an infant made 
 a deed for his land, and on coming of age he 
 made a deed for the same land to another. 2 
 Dev. & B. (N. C.) 320; 10 Pet. (U. S.) 58; 
 13 Mass. 371, 375. 
 
 DISAFFOREST. To restore to their for- 
 mer condition lands which have been turned 
 into forest. To remove from the operation 
 of the forest laws. 2 Sharswood, Bl. Comm. 
 416. 
 
 DISAGREEMENT. The refusal by a 
 grantee, lessee, etc., to accept an estate, 
 lease, etc., made to him; the annulling of a 
 thing that had essence before. No estate 
 can be vested in a person against his will, 
 consequently no one can become a grantee, 
 etc., without his agreement. The law im- 
 plies such an agreement until the contrary 
 is shown, but his disagreement renders the 
 grant, etc., inoperative. If an infant pur- 
 chase an estate, he may, on coming to full 
 age, disagree thereto; and, if he agree there- 
 to, his heirs, after his death, may waive it. 
 If a person of unsound mind purchase an 
 estate, he cannot afterwards disagree there- 
 to himself; but if he does not recover, or, 
 after recovery, dies without agreement, his 
 heir may disagree to it. If a feme covert 
 purchase an estate, her husband may dis- 
 agree thereto; and, if he neither agrees nor 
 disagrees, the purchase is good during the 
 coverture, but after his death, notwithstand- 
 ing his agreement, the wife may disagree 
 thereto, and so, after her death, may her 
 heirs, if she does not herself agree thereto. 
 Persons who purchase an estate under du- 
 ress may disagree thereto when the duress 
 ceases. See Co. Litt. 2b, 3a, 380b; 3 Prest. 
 Abstr. 104; 2 Bl. Comm. 292; Viner, Abr.; 
 Wharton. 
 
 DISALT. To disable a person. 
 
 DISAPPROPRIATION. This is where the 
 appropriation of a benefice is severed, either 
 by the patron presenting a clerk, or by the 
 corporation which has the appropriation be- 
 ing dissolved. 1 Bl. Comm. 385. 
 
 DISAVOW. To deny the authority by 
 which an agent pretends to have acted, as 
 when he has exceeded the bounds of his au- 
 thority. 
 
 It is the duty of the principal to fulfill the 
 contracts which have been entered into by 
 his authorized agent; and when an agent has 
 exceeded his authority, he ought promptly to 
 disavow such act, so that the other party 
 may have his remedy against the agent. See 
 "Agent;" "Principal." 
 
 DISBAR. 
 
 In English Law. To expel a barrister 
 
 from the bar. 
 
 In the United States. To debar an at- 
 torney from the right to practice. 
 
 DISBOCATIO. In old English law. A 
 conversion of wood grounds into arable or 
 pasture; an assarting. Cowell. See "As- 
 sart." 
 
DISCARCAEE 
 
 (284) 
 
 DISCOVERY 
 
 DISCARCARE, or DISCARGARE (Law 
 Lat. from dis, priv., and carcare, to load or 
 charge). In old Englisli law. To discharge; 
 to unload; as a vessel. Carcare et discarcare, 
 to charge and discharge; to load and unload. 
 Cowell; Plac. Pari. 18 Bdw. I. 
 
 In the Salian law it is written discargare. 
 
 Disoarcatio, a discharging or unloading of 
 a vessel. Towns. PI. 226. 
 
 DISCEPTATIO CAUSAE (Lat.) In Ro- 
 man law and practice. The argument or 
 disputation of a cause by the advocates on 
 both sides. Halifax, Anal. bk. 3, c. 9, No. 39. 
 
 DISCEPTIO CAUSAE (Lat.) In Roman 
 law. The argument of a caiise by the coun- 
 sel on both sides. Calv. Lex. 
 
 DISCHARGE. To free from a charge or 
 
 load; to remove; to satisfy or pay; to set 
 
 free, dismiss, or absolve; to carry on or per- 
 
 , form. The term has many applications, the 
 
 principal being: 
 
 Of Cargo. The unloading of a cargo 
 
 from a ship. 5 Wall. (U. S.) 557. 
 
 Of Debt or Obligation. Full and final 
 
 release from and termination of the obliga- 
 tion in whatever manner; a receipt or other 
 instrument acting as a discharge. 147 Mass. 
 585. 
 
 Of Prisoner. The setting at liberty of 
 
 one held in confinement under process of 
 law. 68 Mich. 331. 
 
 Of Jury. The dismissal of a jury 
 
 when, for any cause, the rendition of a ver- 
 dict becomes impossible. 
 
 DISCLAIMER. A disavowal; a renuncia- 
 tion; as, for example, the act by which a 
 ■patentee renounces part of his title of inven- 
 tion. 
 
 Of Estates. The act by which a party 
 
 refuses to accept an estate which has been 
 conveyed to him. Thus, a trustee is said to 
 disclaim who releases to his fellow trustees 
 his estate, and relieves himself of the trust. 
 1 Hilliard, Real Prop. 354. 
 
 Of Tenancy. The act of a person in 
 
 possession, who denies, holding the estate of 
 the person who claims to be the owner. 2 
 Nev. & M. 672. An aflBrmation, by pleading 
 or otherwise, in a court of record, that the 
 reversion is in a stranger. It works a for- 
 feiture of the lease at common law (Co. Litt. 
 251; 1 Cruise, Dig. 109), but not, it is said, 
 in the United States (1 Washb. Real Prop. 
 93). Equity, it is said, will not aid a tenant 
 in denying his landlord's title. 1 Pet. (U. 
 S.) 486. 
 
 In Pleading. A renunciation by the 
 
 defendant of all claim to the subject of the 
 demand made by the plaintiff's bill. Cooper, 
 Eq. PI. 309; Mitf. Eq. PI. (Jeremy Ed.) 318. 
 
 DISCLAMATION. In Scotch law. Dis- 
 avowal of tenure; denial that one holds lands 
 of another. Bell, Diet; Skene de Verb. 
 Sign. 
 
 DISCOMMON. To deprive commonable 
 lands of their commonable quality, by in- 
 closing and appropriating or improving them. 
 
 DISCONTINUANCE. 
 
 Of Estates. An alienation made or 
 
 suffered by the tenant in tail, or other ten- 
 ant seised in autre droit, by which the is- 
 sue in tail, or heir or successor, or those in 
 reversion or remainder, are driven to their 
 action, and cannot enter. 
 
 The term "discontinuance" is used to dis- 
 tinguish those cases where the party whose 
 freehold is ousted can restore it only by 
 action, from those in which he may restore 
 it by entry. Co. Litt. 325a; 3 Bl. Comm. 171; 
 Adams, Ej. 35-41; Comyn, Dig.; Bac. Abr.; 
 Viner, Abr; Cruise, Dig. Index; 2 Saund. In- 
 dex. 
 
 — :— In Pleading. The chasm or interrup- 
 tion which occurs when no answer is given 
 to some material matter In the preceding 
 pleading, and the opposite party neglects to 
 take advantage of such omission. See 
 Comyn, Dig. "Pleader" (W) ; Bac. Abr. 
 "Pleas" (P). It is distinguished from insuf- 
 ficient pleading by the fact that the plead- 
 ing does not profess to answer all the pre- 
 ceding pleading in a case of discontinuance. 
 1 Wm. Saund. 28, note. 
 
 In Practice. The chasm or interrup- 
 tion in proceedings occasioned by the fail- 
 ure of the plaintiff to continue the suit reg- 
 ularly, from time to time, as he ought. 3 
 Bl. Comm. 296. 
 
 DISCONTINUOUS SERVITUDE, or Dis- 
 continuous easement. An easement made up 
 of repeated acts, instead of one continuous 
 act, such as right of way, drawing water, 
 etc. 
 
 DISCONVENABLE (Law Fr.) Improper; 
 unfit. Kelham. 
 
 DISCOUNT. 
 
 In Contracts. Interest reserved from 
 
 the amount lent at the time of making a 
 loan. An allowance sometimes made for 
 prompt payment. As a verb, it is used to 
 denote the act of giving money for a bill of 
 exchange or promissory note, deducting the 
 interest. 
 
 The taking legal interest in advance is not 
 usurious; but it is only allowed for the 
 benefit of trade, and where the bill or note 
 discounted is meant for circulation, and is 
 for a short term. 2 Cow. (N. Y.) 678, 712; 
 3 Wend. (N. Y.) 408. 
 
 There is a difference between "buying" a 
 bill and "discounting" it. The former word 
 is used when the seller does not indorse the 
 bill, and is not accountable for its payment. 
 See Both, de I'Usure, note 128; 3 Pet. (U. S.) 
 40; Blydenburgh, Usury; Sewell, Banking. 
 
 In Practice. A set-off or defalcation 
 
 in an action. Viner, Abr. 
 
 DISCOVERT. Not covert; unmarried. 
 The term is applied to a woman unmarried, 
 or widow, — one not within the bonds of mat- 
 rimony. 
 
 DISCOVERY (Fr. decouvrir, to uncover; to 
 discover). The act of finding an unknown 
 country. 
 
 The nations of Europe adopted the prin- 
 ciple that the discovery of any part of Amer- 
 
DISCREDIT 
 
 (2SS) 
 
 DISFRANCHISEMENT 
 
 ica gave title to the government by whose 
 subjects or by whose authority it was made, 
 as against all European governments. This 
 title was to be consummated by possession. 
 8 Wheat. (U. S.) 543; 16 Pet. (U. S.) 367; 2 
 Washb. Real Prop. 518. 
 
 An invention or improvement. Act Cong. 
 July 4, 1836, § 6. 
 
 In Practice. The disclosure of facts 
 
 resting in the knowledge of the defendant, or 
 the production of deeds, writings, or things 
 in his possession or power, in order to main- 
 tain the right or title of the party asking it, 
 In some suit or proceeding in another court. 
 
 It was originally an equitable form of pro- 
 cedure, and a "bill of discovery," strictly so 
 called, was brought to assist parties to suits 
 in other courts. 
 
 In modern practice, a statutory proceed- 
 ing is generally substituted, by which an in- 
 spection of books and papers, or an exami- 
 nation of a party, may be had on motion. 
 
 DISCREDIT. To deprive one of credit or 
 confidence. 
 
 The impeachment of a witness, as distin- 
 guished from a contradiction of his testi- 
 mony. See "Impeachment." 
 
 DISCREPANCY. A difference between 
 one thing and another; between one writing 
 and another; a variance. ^ 
 
 A material discrepancy exists when there 
 is such a difference between a thing alleged 
 and a thing offered in evidence as to show 
 they are not substantially the same; as 
 when the plaintiff in his declaration for a 
 malicious arrest averred that "the plaintiff 
 in that action did not prosecute his said 
 suit, but therein made default," and the rec- 
 ord was that he obtained a rule to discon- 
 tinue. 
 
 An immaterial discrepancy is one which 
 does not materially affect the cause; as 
 where a declaration stated that a deed bore 
 date in a certain year of our Lord, and the 
 deed was simply dated "March 30, 1701." 2 
 Salk. 658; 19 Johns. (N. Y.) 49; 5 Taunt. 
 707; 2 Barn. & A. 301; 8 Miss. 428; 2 Mc- 
 Lean (U. S.) 69; 1 Mete. (Mass.) 59; 21 
 Pick. (Mass.) 486. 
 
 DISCRETIO EST DISCERNERE PER 
 legem quid sit justum. Discretion is to dis- 
 cern through law what is just. 5 Coke, 99, 
 100; 10 Coke, 140; Broom, Leg. Max. (3d 
 London Ed.) p. 81; Coke, 4th Inst. 41; 1 W. 
 Bl. 152; 1 Burrows, 570; 3 Bulst. 128; 6 Q. 
 B. 700. 
 
 DISCRETIO EST SCIRE PER LEGEIVI 
 quid sit justum. Discretion consists in know- 
 ing what is just in law. 4 Johns. Ch. (N. 
 Y.) 352, 356. 
 
 DISCRETION. 
 
 In Practice. The equitable decision 
 
 of what is just and proper under the cir- 
 cumstances. 
 
 The power of a judge. In certain matters. 
 to decide in accordance with his own judg- 
 ment of the equities of the cases, unham- 
 pered by inflexible rules of law. The lati- 
 tude allowed to judges as to the action to be 
 
 taken on certain facts. See 34 Barb. (N. Y.) 
 29L 
 
 The discretion of a judge is said to be 
 the law of tyrants. It is always unknown; 
 it is different in different men; it is casual, 
 and depends upon constitution, temper, and 
 passion. In the best, it is oftentimes ca- 
 price; in the worst, it is every vice, folly, 
 and passion to which human nature is lia- 
 ble. Optima lex quae minimum relinquit ar- 
 bitrio judicis; optimus judex qui minimum 
 siM. Bac. Aph.; 1 Cas. (Pa.) 80, note; 1 
 Powell, Mortg. 247a; 2 Belt, Supp. to Ves. 
 391; TouUier, Dr. Civ. liv. 3, note 338; 1 Lilly, 
 Abr. 447. 
 
 There is a species of discretion which is 
 authorized by express law, and without 
 which justice cannot be administered; for 
 example, if an old offender, a man of much 
 intelligence and cunning, whose talents ren- 
 der him dangerous to the community, in- 
 duces a young man of weak intellect to com- 
 mit a larceny in company with himself, they 
 are both liable to be punished for the of- 
 fense. The law, foreseeing such a case, has 
 provided that the punishment should be pro- 
 portioned so as to do justice, and it has 
 left such apportionment to the discretion of 
 the judge. It is evident that, without such 
 discretion, justice could not be administered; 
 for one of these parties assuredly deserves 
 a much more severe punishment than the 
 other. 
 
 And many matters relating to the trial, 
 such as the order of giving evidence, grant- 
 ing of new trials, etc., are properly left 
 mainly or entirely to the discretion of the 
 judge. 
 
 As applied to executive officers, it means 
 a power to decide on the propriety of cer- 
 tain actions, without any review by others. 
 
 In Criminal Law. The ability to 
 
 know and distinguish between good and evil. 
 • — between what is lawful and what Is un- 
 lawful. 
 
 DISCRETIONARY TRUSTS. Thosewhich 
 cannot be duly administered without the ap- 
 plication of a certain degree of prudence 
 and judgment; as, when a fund is given to 
 trustees to be distributed in certain chari- 
 ties to be selected by the trustees. 
 
 DISCUSSION. In civil law. A proceed- 
 ing, on the part of a surety, by which the 
 property of the principal debtor is made li- 
 able before resort can be had to the sureties. 
 This is called the "benefit of discussion." 
 .This is the law in Louisiana. Civ. Code La. 
 arts. 3014-3020. See Domat, 3. 4. 1-4; Burge, 
 Sur. 329, 343, 348; 5 Toullier, Dr. Civ. 544; 
 7 Toullier, Dr. Civ. 93; 2 Bouv. Inst, note 
 1414. 
 
 DISENTAILING DEED. An assurance by 
 which a tenant in tail bars his estate tail, 
 so as to convert it into an estate in fee, 
 either absolute or base. 
 
 Disentailment is regulated by 3 & 4 Wm. 
 IV. c. 74. 
 
 DISFRANCHISEMENT. The act of de- 
 priving a member of a corporation of his. 
 
DISGAVEL 
 
 (286) 
 
 DISPARAGEMENT 
 
 right as such, by expulsion. 1 Bouv. Inst, 
 note 192. 
 
 It differs from amotion {q. v.), which is 
 applicable to the removal of an officer from 
 office, leaving him his rights as a member. 
 Willcock, Corp. note 708; Angell & A. Corp. 
 237. And see "Expulsion." 
 
 DISGAVEL. In English law. To deprive 
 lands of that principal quality of gavelkind 
 tenure by which they descend equally among 
 all the sons of the tenant. 2 Wooddeson, 
 Lect. 76; 2 Bl. Comm. 85; Robinson, Gavel- 
 kind, 97, note. 
 
 DISGRACE. Ignominy; shame; dishonor. 
 No witness is required to disgrace himself. 
 13 How. St. Tr. 17, 334; 16 How. St. Tr. 161. 
 
 DISGRADING. In old English law. The 
 depriving of an order or dignity. Termes 
 de la Ley; Blount. 
 
 DISHERISON. Disinheritance; depriving 
 one of an inheritance. Obsolete. See "Dis- 
 inherison." 
 
 DISHERITOR. One who disinherits, or 
 puts another out of his freehold. Obsolete. 
 
 DISHONOR. A term applied to the non- 
 fulfillment of commercial engagements. To 
 dishonor a bill of exchange or a promissory 
 note is to refuse or neglect to pay it at ma- 
 turity. 
 
 The holder is bound to give notice to the 
 parties to such instrument of its dishonor; 
 and his laches will discharge the indorsers. 
 Chit. Bills, 256-278, 394, 395. 
 
 DISINCARCERATE. To set at liberty; to 
 free from prison. 
 
 DISINHERISON. In civil law. The act 
 of depriving a forced heir of the inheritance 
 which the law gives him. 
 
 In Louisiana, forced heirs may be deprived 
 of their legitime, or , legal portion, and of 
 the seisin granted them by law, for just 
 cause. The disinherison must be made in 
 proper form, by name and expressly, and for 
 a just cause; otherwise it is null. See Civ. 
 Code La. arts. 1609-1616. 
 
 DISINHERITANCE. The act by which a 
 person deprives his heir of an inheritance, 
 who, without such act, would inherit. 
 
 By the common law, any one may give his 
 estate to a stranger, and thereby disinherit 
 his heir apparent. Cooper, Just. Inst. 495; 
 7 East, 106. 
 
 DISINTERESTED WITNESS. One who 
 
 has no interest in the cause or matter in is- 
 sue, and who is lawfully competent to tes- 
 tify. 
 
 DISJUNCTIVE ALLEGATIONS. In plead- 
 ing. Allegations which charge a party dis- 
 junctively, so as to leave it uncertain what 
 is relied on as the accusation against him. 
 
 An indictment, information, or complaint 
 which charges the defendant with one or 
 other of two offenses, in the disjunctive, as 
 that he murdered "or" caused to be mur- 
 dered, forged "or" caused to be forged, wrote 
 
 and published "or" caused to be written and 
 published, is bad for uncertainty. 8 Mod. 
 330; 1 Salk. 342, 371; 2 Strange, 900; Cas. 
 temp. Hardw. 370; 5 Barn. & C. 251; 1 Car. 
 & K. 243; 1 Younge & J. 22. 
 
 DISJUNCTIVE TERM. One which is 
 placed between two contraries, by the af- 
 firming of one of which the other is taken 
 away. It is usually expressed by the word 
 "or." See 3 Ves. 450; 7 Ves. 454; 2 Rop. 
 Leg. 290; 1 P. Wms. 433; 2 P. Wms. 283; 
 2 Cox, Ch. 213; 2 Atk. 643; 3 Atk. 83, 85; 2 
 Ves. Sr. 67; 2 Strange, 1175; Cro. Eliz. 525; 
 Poll. 645; 1 Bing. 500; 3 Term R. 470; 
 Ayliffe, Pand. 56; 2 Miles (Pa.) 49. 
 
 In the civil law, when a legacy is given 
 to Caius "or" Titius, the word "or" is con- 
 sidered "and," and both Caius and Titius are 
 entitled to the legacy in equal parts. 6 Toul- 
 lier. Dr. Civ. note 704. 
 
 DISMISS. To remove; to send out of 
 court. Formerly used in chancery of the 
 removal of a cause out of court without any 
 further hearing. The term is now used in 
 courts of law also. 
 
 DISMORTGAGE. To redeem from mort- 
 gage. 
 
 DISORDERLY HOUSE. In criminal law. 
 A house the inmates of which behave so 
 badly as to become a nuisance to the neigh- 
 borhood. 
 
 One kept in such a way as to disturb or 
 scandalize the public generally, or the in- 
 habitants of a particular neighborhood, br 
 the passers by. 93 W. C. 608. 
 
 The term has a wide meaning, and in- 
 cludes bawdy houses, gambling houses, and 
 the like. 
 
 A place kept for general resort for pur- 
 poses injurious to the public morals or 
 safety is a "disorderly house," in the legal 
 sense, though there be no noise or disorder. 
 48 Ark. 60; 30 N. J. Law, 104; 120 Mass. 356; 
 83 N. Y. 587. 
 
 DISORDERLY PERSONS. A class of of- 
 fenders, subjects of police regulation, de- 
 scribed in the statutes which punish them. 
 See 4 Bl. Comm. 169. 
 
 DISPARAGATION (Law Pr. disparage- 
 ment). The matching an heir, etc., in mar- 
 riage, under his or her degree or condition, 
 or against the rules of decency. Kelham. 
 
 DISPARAGE (Law Lat. disparagare) . To 
 connect unequally; to match unsuitably 
 "The ward who is ward for knight's service 
 land is accounted in law disparaged, if he 
 be tendered a marriage of the burgher's 
 parentage." Bac. Arg. Low's Case, Works, 
 iv. 235. See "Disparagement." 
 
 DISPARAGEMENT. In old English law. 
 An injury by union or comparison with some 
 person or thing of inferior rank or excel- 
 lence. 
 
 Marriage without disparagement was mar- 
 riage to one of suitable rank and character. 
 
DISPARAGIUM 
 
 (287) 
 
 DISSIGNARE 
 
 2 Sharswood, Bl. Comm. 70; Co. Litt. 82b. 
 The guardian in chivalry had the right of 
 disposing of his infant ward in matrimony; 
 and provided he tendered a marriage with- 
 out disparagement or inequality, if the in- 
 fant refused, he was obliged to pay a valor 
 maritagii to the guardian. 
 
 Disparagare, to connect in an unequal mar- 
 riage. Spelman. Disparagatio, disparage- 
 ment. Used in Magna Charta (9 Hen. III.) 
 c. 6. Disparagation, disparagement. Kel- 
 ham. Disparage, to marry unequally. Used 
 of a marriage proposed by a guardian be- 
 tween those of unequal rank, and injurious 
 to the ward. 
 
 DISPARAGIUM. In old Scotch law. In- 
 equality in blood, honor, dignity, or other- 
 wise. Skene de Verb. Sign. 
 
 DISPARATA NON DEBENT JUNGI. Dis- 
 similar things ought not to be joined. Jenk. 
 Cent. Cas. 24. 
 
 DISPARK. To dissolve a park. Cro. Car. 
 59. To convert a park into ordinary ground. 
 
 DISPAUPER. In English law. To de- 
 prive a person of the privilege of suing in 
 forma pauperis. 
 
 When a person has been admitted to sue 
 in forma pauperis, and before the suit is 
 ended it appears that the party has become 
 the owner of a sufficient estate real or per- 
 sonal, or has been guilty of some wrong, he 
 may be dispaupered. 
 
 DISPENSATIO EST VULNUS, QUOD 
 vulnerat jus commune. A dispensation is a 
 wound, because it wounds a common right. 
 Dav. 69; Branch, Princ. 
 
 DISPENSATION. A relaxation of law for 
 the benefit or advantage of an individual. 
 In the United States, no power exists, ex- 
 cept in the legislature, to dispense with law; 
 and then it is not so much a dispensation 
 as a change of the law. 
 
 DISPERSONARE. To scandalize or dis- 
 parage. Blount. 
 
 DISPONE. In Scotch law. A technical 
 word essential to the conveyance of heritable 
 property, and for which no equivalent is 
 accepted, however clear may be the meaning 
 of the party. Paterson, Comp. 
 
 DISPOSING MIND. Testamentary capac- 
 ity (q. V.) 
 
 DISPOSITION. In Scotch law. A deed of 
 alienation by which a right to property is 
 conveyed. Bell, Diet. 
 
 DISPOSITIVE FACTS. Such as originate, 
 transfer, or extinguish rights, known re- 
 spectively as investitive, translative, and di- 
 vestitive facts. These terms were coined by 
 Bentham, and have not found their way into 
 general use. Holland, Jur. 131. 
 
 DISPOSSESSION. Ouster; a wrong that 
 carries with it the amotion of possession. 
 An act whereby the wrongdoer gets the ac- 
 tual occupation of the land or hereditament. 
 
 It includes abatement, intrusion, disseisin, 
 discontinuance, deforcement. 3 Sharswood, 
 Bl. Comm. 167. 
 
 DISPUTABLE PRESUMPTION. A pre- 
 sumption of law, which may be rebutted or 
 disproved. Best, Pres. § 25; Burr. Circ. Bv. 
 
 47. 
 
 DISPUTATIO FORI (Lat.) Argument in 
 court. Du Cange. 
 
 DISRATIONARE (Law Lat; Law Fr.des- 
 reigner). In old English law. To prove; to 
 deraign; to establish or make good a claim, 
 charge, or accusation. Bracton, fol. 138. 
 Spelman considers this as merely another 
 form of dirationare, and makes its prop- 
 er signification to be to disprove or re- 
 fute, from dis, priv, and ratiocinari, to prove. 
 It is, however, never employed in this sense 
 by Bracton, who uses it frequently, but only 
 in the sense first given. Bracton, fol. 138. 
 See Id. fols. 101b, 119, 372b, 373b; Pleta, 
 lib. 1, c. 31, § 6; Id. lib. 1, c. 21, § 2. 
 
 DISSASINA. In old Scotch law. Dissei- 
 sin; dispossession. Skene de Verb. Sign. 
 
 DISSEISEE. One who is wrongfully put 
 out of possession of his lands; one who is 
 disseised. 
 
 DISSEISIN. A privation of seisin; a usur- 
 pation of the right of seisin and possession, 
 and an exercise of such powers and privi- 
 leges of ownership as to keep out or dis- 
 place him to whom these rightfully belong. 
 2 Washb. Real Prop. 283. 
 
 The act of divesting the owner of his 
 seisin and possession of the land, and sub- 
 stituting in its place the ownership and pos- 
 session of the disseisor. The change in the 
 meaning of the word, and the distinction 
 between it and "deforcement," stated. 9 
 Cow. (N. Y.) 530, 552. 
 
 An actual and wrongful expulsion from a 
 freehold. Dispossession may be by right or 
 wrong. 6 Johns. (N. Y.) 197. And see 8 
 Barb. (N. Y.) 189, 194. 
 
 DISSEISINAM SATIS FACIT, QUI UTI 
 non permittit possessorem, ve! minus com- 
 mode, licet omnino non expellat. He makes 
 disseisin enough who does not permit the 
 possessor to enjoy, or makes his enjoyment 
 less commodious, although he does not expel 
 altogether. Co. Litt. 331; Bracton, lib. 4, 
 tr. 2. 
 
 DISSEISOR. One who puts another out 
 of the possession of his lands wrongfully. 
 
 DISSEISORESS (Law Lat. dissemfria^). A 
 woman that disseises another person. Litt. 
 § 678; Co. Litt. 357b. 
 
 DISSENT. A disagreement to something 
 which has been done. It is express or im- 
 plied. 
 
 DISSIGNARE. In old law. To break open 
 a seal. Whishaw. 
 
DISSIMILIUM DISSIMILIS, ETC. (288) 
 
 DISTRICT 
 
 DISSIMILIUM DISSIMILIS EST RATIO. 
 
 Of dissimilars the rule is dissimilar. Co. 
 Litt. 191. 
 
 DISSIMULATIONE TOLLITUR INJURIA. 
 
 Wrong is wiped out by reconciliation. Ersk. 
 Inst. bk. 4, tit. 4, § 108. 
 
 DISSOLUTION. 
 
 In Contracts. The dissolution of a con- 
 tract is the annulling thereof by the con- 
 tracting parties. 
 
 Of Corporations. The termination of 
 
 the corporate existence in any manner, 
 whether by expiration of the charter, decree 
 of court, act of the legislature, etc. 
 
 In Practice. The act of rendering a 
 
 legal proceeding null, or changing its char- 
 acter; as, a foreign attachment in Pennsyl- 
 vania is dissolved by entering bail to the ac- 
 tion; injunctions are dissolved by the court. 
 
 DISSUADE. In criminal law. To induce 
 a person not to do an act. 
 
 To dissuade a witness from giving evi- 
 dence against a person indicted is an indict- 
 able offense at common law. Hawk. P. G. 
 bk. 1, c. 21, § 15. The mere /attempt to 
 stifle evidence is also criminal, although the 
 persuasion should not succeed, on the gen- 
 eral principle that an incitement to commit 
 a crime is in itself criminal. 1 Russ. Crimes, 
 44; 2 Bast, 5, 21; 6 East, 464; 2 Strange, 
 904; 2 Leach, C. C. 925. 
 
 DISTINCTE ET APERTE. In old English 
 practice. Distinctly and openly. Formal 
 words in writs of error, referring to the re- 
 turn required to be made to them. Reg. 
 Grig. 17. 
 
 DISTINGUENDA SUNT TEMPORA. The 
 time is to be considered. 1 Coke, 16a; 14 N. 
 Y. 380, 393. 
 
 DISTINGUENDA SUNT TEMPORA; AL- 
 lud est facere, aliud perficere. Times must 
 be distinguished; it is one thing to do a 
 thing, another to complete it. 3 Leon. 243; 
 Branch, Princ. 
 
 DISTINGUENDA SUNT TEMPORA; DIS- 
 tingue tempera, et concordabis leges. Times 
 are to be distinguished; distinguish times, 
 and you will attune laws. 1 Coke, 24. 
 
 DISTRACTED PERSON. A term used in 
 the statutes of Illinois (Rev. Laws 111. 1833, 
 p. 332) and New Hampshire (Dig. N. H. 
 Laws 1830, p. 339) to express a state of In- 
 sanity. 
 
 D I ST R ACTIO. In civil law. The sale of 
 a pledge by a debtor; the appropriation of 
 the property of a ward by a guardian. Calv. 
 Lex. 
 
 DISTRAHERE. To withdraw; to sell. 
 Distrahere controversias, to diminish and 
 settle quarrels; distrahere matrimoniam, to 
 dissolve marriage; to divorce. Calv. Lex. 
 
 DISTRAIN. To take as a pledge property 
 of another, and keep the same until he per- 
 forms his obligation, or until the property 
 is replevied by the sheriff. It was used to 
 
 secure an appearance in court, payment of 
 rent, performance of services, etc. 3 Bl. 
 Comm. 231; Fitzh. Nat. Brev. 32 (B), (C), 
 223. See "Distress." 
 
 DISTRESS (Pr. disiraitidre, to draw away 
 from). The taking of a personal chattel out 
 of the possession of a wrongdoer into the 
 custody of the party injured, to procure sat- 
 isfaction for the wrong done. 3 Bl. Comm. 
 6. It is generally resorted to for the purpose 
 of enforcing the payment of rent, taxes, or 
 other duties, as well as .to exact compensa- 
 tion for such damages as result from the 
 trespasses of cattle. 
 
 This remedy is of great antiquity, and is 
 said by Spelman to have prevailed among 
 the Gothic nations of Europe from the break- 
 ing up of the Roman empire. The English 
 statutes since the days of Magna Charta 
 have, from time to time, extended and modi- 
 fied its features to meet the exigencies of the 
 times. 
 
 It was at one time generally in vogue 
 in the United States, but is now generally 
 abolished, the remedy of attachment taking 
 its place. 
 
 DISTRESS INFINITE. In English prac- 
 tice. A process commanding the-^ sheriff to 
 distrain a person from time to time, and 
 continually afterwards, by taking his goods 
 by way of pledge to enforce the performance 
 of something due from the party distrained 
 upon. . In this case, no distress can be im- 
 moderate, because, whatever its value may 
 be, it cannot be sold, but is to be imme- 
 diately restored on satisfaction being made. 
 3 Bl. Comm. 231. It was the means an- 
 ciently resorted to to compel an appearance. 
 See "Attachment;" "Arrest." 
 
 DISTRIBUTEE. One entitled to take a 
 share of the estate of a decedent under the 
 statute of distribution. 
 
 DISTRIBUTION. In practice. The divi- 
 sion by order of the court having authority, 
 among those entitled thereto, of the residuR 
 of the personal estate of an intestate, after 
 payment of the debts and charges. 
 
 The term sometimes denotes the division 
 of a residue of both real and personal es- 
 tate, and also the division of an estate ac- 
 cording to the terms of a will. 
 
 DISTRIBUTIVE FINDING OF THE is- 
 sue. The jury are bound to give their ver- 
 dict for that party who, upon the evidence, 
 appears to them to have succeeded in estab- 
 lishing his side of the issue. But there are 
 cases in which an issue may be found dis- 
 tributively, i. e., in part for plaintiff, and in 
 part for defendant. Thus, in an action for 
 goods sold and work done, if the defendant 
 pleaded that he never was indebted, on 
 which issue was joined, a verdict might be 
 found for the plaintiff as to the goods, and 
 for the defendant as to the work. Steph. 
 PI. (7th Ed.) 77d. 
 
 DISTRICT. A certain portion of the coun- 
 
DISTRICT ATTORNEYS, ETC. 
 
 (289) 
 
 DIVERSITE DBS COURTS 
 
 try, separated from the rest for some special 
 purposes. 
 
 The United States are divided into judicial 
 districts, in each of which is established a 
 district court, these districts being subdivi- 
 sions of the circuits (g. v.) They are also 
 divided into election districts, collection dis- 
 tricts, etc. 
 
 DISTRICT ATTORNEYS OF THE UNIT- 
 ed States. Officers appointed in each judi- 
 cial district, vyhose duty it is to prosecute, 
 in such district, all delinquents, for crimes 
 and offenses cognizable under the authority 
 of the United States, and all civil actions in 
 which the United States shall be concerned, 
 except in the supreme court, in the district 
 in which the court shall be holden. 
 
 DISTRICT PARISHES. Ecclesiastical di- 
 visions of parishes in England, for all pur- 
 poses of worship, and for the celebration of 
 marriages, christenings, churchings, and bur- 
 ials, formed at the instance of the queen's 
 commissioners for building new churches. 
 See 3 Steph. Comm. 744. 
 
 DISTRICTIO. 
 
 Cowell. 
 
 A distress; a distraint. 
 
 DISTRINGAS. A writ directed to the 
 sheriff, commanding him to distrain a per- 
 son of his goods and chattels to enforce a 
 compliance with what is required of him. 
 
 It is used to compel an appearance where 
 the party cannot be found, and in equity may 
 be availed of to compel the appearance of a 
 corporation aggregate. 4 Bouv. Inst, note 
 4191; Comyn, Dig. "Process" (D 7); Chit. 
 Prac; Sellon, Prac. 
 
 A form of execution in the actions of det- 
 inue and assize of nuisance. Brooke, Abr. 
 pi. 26; 1 Rawle (Pa.) 44. 
 
 DISTRINGAS JURATORES (Lat. that you 
 distrain jurors). A writ commanding the 
 sheriff to have the bodies of the jurors, or to 
 distrain them by their lands and goods, that 
 they may appear upon the day appointed. 3 
 Sharswood, Bl. Comm. 354. It issues at the 
 same time with the venire, though in theory 
 afterwards, founded on the supposed neg- 
 lect of the juror to attend. 3 Steph. Comm. 
 590. 
 
 DISTRINGAS NUPER VICE COMITUM 
 (Lat. that you distrain the late sheriff). A 
 writ to distrain the goods of a sheriff who 
 is out of office, to compel him to bring in 
 the body of a defendant, or to sell goods at- 
 tached under a fi. fa., which he ought to have 
 done while in office, but has failed to do. 1 
 Tidd, Prac. 313. 
 
 DISTRINGAS VICE COMITEM. A writ of 
 distringas, directed to the coroner, may be 
 issued against a sheriff if he neglects to exe- 
 cute a writ of venditioni exponas. Archb. 
 Prac. 584. 
 
 DISTRINGERE (Lat.) In feudal and old 
 English law. To distrain ; to coerce or com- 
 pel; literally, to bond fast, or strain hard. 
 Spelman; Calv. Lex. Nee villa nee homo 
 4istringatur facere pontes, nor sh9,ll a vill 
 
 nor a man be distrained to make bridges. 
 Magna Charta (9 Hen. III.) c. 15; Id. 
 (Johan.) c. 23. Gonstringere is used in this 
 sense in old writs. Spelman. 
 
 DISTURBANCE. A wrong done to an in- 
 corporeal hereditament by hindering or dis- 
 quieting the owner in the enjoyment of it. 
 Pinch, Law, 187; 3 Bl. Comm. 235; 1 Swift, 
 Dig. 522; Comyn, Dig. "Action upon the 
 Case," "Pleader" (3 1 6) ; 1 Serg. & R. (Pa.) 
 298; 41 Me. 104. The remedy for a disturb- 
 ance is an action on the case, or, in some in- 
 stances in equity, by an injunction. 
 
 Disturbance of Common. Any act done 
 
 by which the right of another to his com- 
 mon is incommoded or hindered. The rem- 
 edy is by distress (where beasts are put 
 on his common), or by action on the case, 
 provided the damages are large enough to 
 admit of his laying an action with a per 
 quod. Cro. Jac. 195; Co. Litt. 122; 3 Bl. 
 Comm. 237; 1 Saund. 546; 4 Term R. 71. 
 
 Disturbance of Franchise. Any acts 
 
 done whereby the owner of a franchise 
 has his property damnified, or the profits 
 arising thence diminished. The remedy for 
 such disturbance is a special action on the 
 case. Cro. Eliz. 558; 2 Saund. 113b; 3 Shars- 
 wood, Bl. Comm. 236; 28 N. H. 438. 
 
 Disturbance of Patronage. The hin- 
 drance or obstruction of the patron to pre- 
 sent his clerk to a benefice. 3 Bl. Comm. 
 242. The principal remedy was a writ of 
 right of advowson; and there were also writs 
 of darrein presentment and of quare impedit. 
 Coke, 2d Inst. 355; Fitzh. Nat. Brev. 31. 
 
 Disturbance of Tenure. Breaking the 
 
 connection which subsists between lord and 
 tenant. 3 Bl. Comm. 242; 2 Steph. Comm. 
 513. 
 
 Disturbance of Ways. This happens 
 
 where a person who hath a right of way 
 over another's ground by grant or prescrip- 
 tion is obstructed by inclosures or other ob- 
 stacles, or by ploughing across it, by which 
 means he cannot enjoy his right of way, or 
 at least in so commodious a manner as he 
 might have done. 3 Sharswood, Bl. Comm. 
 242; 5 Gray (Mass.) 409; 7 Md. 352; 23 Pa. 
 St. 348; 29 Pa. St. 22. 
 
 DISTURBER. If a bishop refuse or neg- 
 lect to examine or admit a patron's clerk, 
 without reason assigned or notice given, he 
 is styled a "disturber" by the law, and shall 
 not have any title to present by lapse; for 
 no man shall take advantage of his own 
 wrong. 2 Bl. Comm. 278. 
 
 DITES OUSTER (Law Fr. say over). The 
 form of awarding a respondeas ouster, in the 
 Year Books. Y. B. M. 6 Edw. III. 49. 
 
 DITTAY. In Scotch law, A technical term 
 in civil law, signifying the matter of charge 
 or ground of indictment against a person 
 accused of crime. Taking up dittay is ob- 
 taining informations and presentments of 
 crime in order to trial. Skene de Verb. 
 Sign.; Bell, Diet. 
 
 DIVERSITE DES COURTS. A treatise on 
 courts and their jurisdiction, written in 
 
DIVERSITY 
 
 (290) 
 
 DIVISION OF OPINION 
 
 French in the reign of Edward III., as is sup- 
 posed, and hy some attributed to Pitzherbert. 
 It was first printed in 1525, and again in 
 1534. Crabb, Hist. Eng. Law, 330, 483; 3 Bl. 
 Comm. 53; 3 Reeve, Hist. Eng. Law, 152; 3 
 Steph. Comm. 414. 
 
 DIVERSITY. A plea by a convict, in bar 
 of execution; of "diversity of person," i. e., 
 that he is not the same person who was at- 
 tainted. 4 Bl. Comm. 396. 
 
 DIVERSO INTUITU (Lat.) With a differ- 
 ent view, purpose, or design; in a different 
 view or point of view; by a different course 
 or process. 1 W. Bl. 89; Cas. temp. Hardw. 
 132; 9 East, 311; 4 Kent, Comm. 211, note; 
 1 Pet. (U. S.) 500; 2 Gall. (U. S.) 318; 
 Story, Bailm. § 57. See "Alio Intuitu." 
 
 DIVERSORIUM. In old English law. A 
 lodging or inn. Towns. PL 38. 
 
 DIVES. In the practice of the English 
 chancery division, "dives costs" are costs on 
 the ordinary scale, as opposed to the costs 
 formerly allowed to a successful pauper 
 suing or defending in forma pauperis, and 
 which consisted only of his costs out of 
 pocket. Daniell, Ch. Pr. 43; Cons. Ord. xl. 5. 
 
 DIVEST. See "Devest." 
 
 DIVESTITIVE FACT. One which puts an 
 end to a right or status. Thus, the right of 
 a creditor is at an end when his debt is 
 paid. Bentham divides divestitive facts into 
 destitutive, abolishing rights, and exonera- 
 tive, extinguishing duties. See "Dispositive 
 Facts." 
 
 DIVIDE ET IMPERA, CUM RADIX ET 
 vertex imperil in obedientlum consensu rata 
 sunt. Divide and govern, since the founda- 
 tion and crown of empire are established in 
 the consent of the obedient. 4 Inst. 35. 
 
 DIVIDEND. A portion of the principal or 
 profits divided among several owners of a 
 thing. 
 
 The term is usually applied to the division 
 of the profits arising out of bank or other 
 stocks, or to the division among the creditors 
 of the effects of an insolvent estate. 
 
 In another sense, according to some old 
 authorities, it signifies one part of an in- 
 denture. 
 
 DIVIDENDA. In old records. An inden- 
 ture; one counterpart of an indenture. 
 
 DIVINARE (Lat.) To divine; to conjec- 
 ture or guess; to foretell. Divinatio, a con- 
 jecturing or guessing. 
 
 DIVINATIO NON INTERPRETATIO EST, 
 quae omnino recedit a litera. It is a guess, 
 not interpretation, which altogether departs 
 from the letter. Bac. Max. reg. 3, p. 47. 
 
 DIVINE SERVICE. A species of feudal 
 tenure, by which the tenant was required to 
 say masses, to distribute such a sum in 
 alms, or the like. It differed from frank- 
 almoign in that, for breach of a duty of di- 
 vine service, the lord could destrain without 
 
 complaint to the visitor; the particular serv- 
 ice being always expressly defined and pre- 
 scribed. 2 Bl. Comm. 102. 
 
 DIVISA, or DEVISA (Law Lat. from Fr. 
 diviser, to divide). In old English law. A 
 division or partition; a division or distribu- 
 tion of goods by will; a will or testament 
 01 goods or chattels. Spelman; Cowell; 
 Glanv. lib. 12, c. 20; Id. lib. 7, c. 5. Hence 
 the modern "devise," now confined to mean 
 a will or disposition of real estate by will. 
 See "Devise." 
 
 A division or boundary between neighbor- 
 ing or adjoining lands (Law Fr. devise, q. 
 v.), such as a highway, a wall, ditch, or 
 stream, a stake or stone. Bracton, fol. 180b. 
 As to streams, see Fleta, lib. 4, c. 6, § 3. 
 
 DIVISIBILIS EST SEMPER DIVISIBILIS. 
 
 A thing divisible may be forever divided. 
 
 DIVISIBLE. That which is susceptible of 
 being divided. 
 
 A contract cannot, in general, be divided 
 in such a manner that an action may be 
 brought, or a right accrue, on a part of it. 2 
 Pa. St. 454. But some contracts are sus- 
 ceptible of division; as when a reversioner 
 sells a part of the reversion to one man. 
 and a part to another, each shall have an 
 action for his share of the rent which may 
 accrue on a contract to pay a particular rent 
 to the reversioner. 3 Whart. (Pa.) 404. See 
 "Apportionment." But when it is to do 
 several things at several times, an action 
 will lie upon every default. 15 Pick. (Mass.1 
 409. See 1 Me. 316; 6 Mass. 344. 
 
 DIVISIM. In old English 'law. Severally; 
 separately. Bracton, fol. 47. 
 
 DIVISION. In English law. A particular 
 and ascertained part of a county. In Lin- 
 colnshire, "division" means what "riding" 
 does in Yorkshire. 
 
 DIVISION OF OPINION. Disagreement 
 among those called upon to decide a matter. 
 
 When, in a company or society, the parties 
 having a right to vote are so divided that 
 there is not a plurality of the whole in 
 favor of any particular proposition, or when 
 the voters are equally divided, it is said there 
 is division of opinion. The term is especial- 
 ly applied to a disagreement among the 
 judges of a court, such that no decision can 
 be rendered upon the matter referred to 
 them. 
 
 When the judges of a court are divided 
 into three classes, each holding a different 
 opinion, that class which has the greatest 
 number shall give the judgment. For ex- 
 ample, on a habeas corpus, when a court is 
 composed of four judges, and one is for re- 
 manding the prisoner, another is for dis- 
 charging him on his own recognizance, and 
 the two others are for discharging him abso- 
 lutely, the judgment will be that he be dis- 
 charged. Bac. Abr. When a division of 
 opinion exists in the United States circuit 
 court, the cause may be certified to the su- 
 preme court for decision. Act Cong. April 
 29, 1802, § 6. 
 
DI VISUM IMPERIUM 
 
 (291) 
 
 DOCK WARRANT 
 
 DIVISUM IMPERIUM (Lat.) A divided 
 empire or jurisdiction; a jurisdiction shared 
 between two tribunals, or exercised by them 
 alternately. This classic phrase is frequent- 
 ly applied in the books to the jurisdiction 
 alternately exercised by the courts of com- 
 mon law and admiralty, between high and 
 low water mark, where the sea ebbs and 
 flows; the one having jurisdiction upon the 
 water when it is full sea, and the other upon 
 the land when it is an ebb. Finch, Law, bk. 
 2, c. 1, p. 78; 5 Coke, 107; 1 Bl. Comm. 110; 
 Molloy de Jur. Mar. 231; 1 Kent, Comm. 366. 
 It is applied, also, to the jurisdiction exer- 
 cised by courts of common law and equity 
 over the same subject. 4 Steph. Comm. 9. 
 
 DIVORCE. The dissolution or partial sus- 
 pension, by law, of the marriage relation. 
 
 The dissolution is termed "divorce from 
 the bond of matrimony," or, in the Latin 
 form of the expression, a vinculo matri- 
 monii; the suspension, divorce from bed and 
 board, n mensa et thoro. The former divorce 
 puts an end to the marriage; the latter 
 leaves it In full force. Bish. Mar. & Div. § 
 292. The term "divorce" is sometimes also 
 applied to a sentence of nullity, which es- 
 tablishes that a supposed or pretended mar- 
 riage either never existed at all, or at least 
 was voidable at the election of one or both 
 of the parties. 
 
 The more correct modern usage, however, 
 confines the signification of divorce to the 
 dissolution of a valid marriage. What has 
 been known as a divorce a mensa et thoro 
 may more properly be termed a legal sepa- 
 ration. So, also, a sentence or decree which 
 renders a marriage void ab initio, and bas- 
 tardizes the issue, should be distinguished 
 from one which is entirely prospective in 
 its operation; and for that purpose the for- 
 mer may be termed a "sentence of nullity." 
 
 DIVORTIUM DICITUR A DIVERTENDO, 
 quia vir divertitur ab uxore. Divorce is 
 called from divertendo, because a man is di- 
 verted from his wife. Co. Litt. 235. 
 
 DIXIEME (Fr.) Tenth; the tenth part. 
 Ord. Mar. liv. 1, tit. 1, art. 9. 
 
 In Old French Law. An income tax 
 
 payable to the crown. Steph. Lect. 359. 
 
 DO (Lat. I give). The ancient and aptest 
 word of feoffment and of gift. 2 Bl. Comm. 
 310, 316; Co. Litt. 9. 
 
 DO, DICO, ADDICO (Lat. I give, I say, I 
 adjudge). Three words used in the Roman 
 law to express the extent of the civil juris- 
 diction of the praetor. Do denoted that he 
 gave or granted actions, exceptions, and 
 judices; dico, that he pronounced judgment; 
 addico, that he adjudged the controverted 
 property, or the goods of the debtor, etc., to 
 the plaintiff. Kaufm. Mackeld. Civ. Law, 
 187; Id. 24, § 35, note b; Calv. Lex. 
 
 DO, LEGO (Lat. I give, I bequeath; or, I 
 give and bequeath). The formal words of 
 making a bequest or legacy, in the Roman 
 law. Titio et Seio hominem Stichum do, 
 I give and bequeath to Titius and 
 
 Selus, my man Stichus. Inst. 2. 20. 8. 30. 
 31. The expression is literally retained in 
 modern wills. According to Calvin, who . 
 quotes Spiegelius, either of these words sepa- 
 rately imports as much as both together. 
 Calv. Lex.; Tayl. Civ. Law, 240. 
 
 DO UT DES (Lat.) I give that you may 
 give. Dig. 19. 4; Id. 19. 5. 5; 2 Bl. Comm. 
 444. 
 
 DO UT FACIAS (Lat. I give that you may 
 do; I give [you] that you may do or make 
 [for me]). A formula in the civil law, un- 
 der which those contracts were classed, in 
 which one party gave or agreed to give 
 money, in consideration the other party did 
 or performed certain work. Dig. 19. 5. 5; 
 2 Bl. Comm. 444. Do tiM codicem, ut facias 
 mihi scribi disgestum, I give you a code, 
 that you may have a digest written (or 
 copied) for me. Bracton, fol. 19. 
 
 The particle ut, in this and the foregoing 
 phrase, is considered as denoting or express- 
 ing a consideration; so much, that Black- 
 stone has treated them as forms of consid- 
 eration. 2 Bl. Comm. ubi supra. Strictly, 
 however, ut denotes that the civilians called 
 modus (qualification) ; quia being the par- 
 ticle employed to denote what they called 
 causa, which is generally translated "consid- 
 eration." Bracton, fol. 18b. See "Consid- 
 eration;" "Causa." Britton calls these 
 phrases or formulae, conditions, and repeats 
 them after Bracton; but the passage in the 
 original edition is much corrupted. Britt. 
 c. 36. 
 
 DOCK. As a noun, the inclosed space oc- 
 cupied by prisoners in a criminal court; the 
 space between two wharves. 
 
 As a verb, to curtail or diminish, as to 
 dock an entail. 
 
 DOCK WARRANT. A document issued by 
 a dock company or dock owner in England, 
 stating that certain goods therein mentioned 
 are deliverable to a person therein named, 
 or to his assigns, by indorsement. Dock 
 warrants in form resemble bills of lading 
 (g. v.), but they differ from them in this, 
 that, when goods are at sea, a purchaser who 
 takes a bill of lading has done all that is 
 possible to obtain possession of them, while 
 a purchaser who takes a dock warrant can 
 at any moment lodge it with the dock com- 
 pany, and so take actual or constructive 
 possession of the goods. It therefore seems 
 that the indorsement of a dock warrant 
 does not, at common law, pass the ownership 
 in the goods, or divest the vendor's lien if 
 the goods have not been paid for, but merely 
 operates as a constructive delivery of them 
 as between the indorser and indorsee, until 
 the dock company has "attorned" to the in- 
 dorsee by agreeing to hold the goods for 
 him. Benj. Sales, 573, 674; 3 C. P. Div. 373, 
 450. See "Delivery Order." Dock warrants, 
 however, are included in the factors' acts 
 among the "documents of title," the posses- 
 sion of which gives a factor power to confer 
 a good title to the goods on persons dealing 
 with him in good faith. Benj. Sales. 668, 
 See "Factors' Acts." 
 
DOCKAGE 
 
 (292) 
 
 DOLUS DANS, ETC. 
 
 DOCKAGE. The charge for use of a dock. 
 
 DOCKET. A formal record of judicial pro- 
 ceedings; a brief writing; a small piece of 
 paper or parchment having the effect of a 
 larger. Blount. An abstract. Cowell. 
 
 DOCKET, STRIKING A. In English bank- 
 ruptcy practice. The filing of petition and 
 bond to obtain the lord chancellor's fiat, al- 
 lowing proceedings against an alleged bank- 
 rupt. Brown. 
 
 DOCTOR AND STUDENT. The title of a 
 work written by St. Germain in the reign of 
 Henry VIII., in which many principles of 
 the common law are discussed in a popular 
 manner. It is in the form of a dialogue be- 
 tween a doctor of divinity and a student in 
 law, and has always been considered a book 
 of merit and authority. 1 Kent, Comm. 504; 
 Crabb, Hist. Eng. Law, 482. 
 
 DOCTORS COMMONS. An institution near 
 St. Paul's cathedral, where the ecclesiastical 
 and admiralty courts are held. 
 
 DOCUMENTS. The deeds, agreements, 
 title papers, letters, receipts, and other writ- 
 ten instruments used to prove a fact. 
 
 In Civil Law. Evidence delivered in 
 
 the forms established by law, of whatever 
 nature such evidence may be. The term is, 
 however, applied principally to the testi- 
 mony of witnesses. Savigny, Hist. Rom. 
 Law, § 165. 
 
 DODRANS (Lat.) In Roman law. A sub- 
 division of the as, containing nine unciae; 
 the proportion of nine-twelfths, or three- 
 fourths. 2 Bl. Comm. 462, note; Tayl. Civ. 
 Law, 492. 
 
 DOE, JOHN. Originally the name of the 
 fictitious plaintiff in the action of ejectment. 
 Now used as a fictitious name to designate 
 any party whose name is unknown. 
 
 DO ED BAN A (Saxon). The actual per- 
 petrator of a homicide. 
 
 DOER. In Scotch law. An agent or at- 
 torney. I Karnes, Eq. 325. 
 
 DOG-DRAW. In forest law. Drawing after, 
 that is, pursuing, a deer with a dog. One of 
 the circumstances which constituted what 
 was called the manifest deprehension of an 
 offender against venison in a forest; that is, 
 his being caught in the act of committing 
 the offense, or taken with the mainour, as it 
 was otherwise called. Manw. For. Law, pt. 
 2, c. 8. See "Mainour." 
 
 DOGMA. In civil law. This word is used 
 in the first chapter, first section, of the sec- 
 ond Novel, and signifies an ordinance of the 
 senate. See, also, Dig. 27. 1. 6. 
 
 DOITKIN, or DOIT. A foreign coin of 
 small value, prohibited by St. 3 Hen. V. c. 1, 
 from being introduced into England. 
 
 DOLE (Law Lat. dola; Saxon, doel; from 
 (loelan. to divide or distribute). 
 
 In Old English Law. A part or por- 
 
 tion. Spelman. Dole meadow was one in 
 which several persons had a share. Cowell. 
 
 In Scotch Law. Criminal intent; evil 
 
 design. Bell, Diet. voc. "Crime." 
 
 DOLG (Saxon). A wound. Spelman. 
 
 DOLG BOTE. A recompense foi> a scar or 
 wound. Cowell. 
 
 DOLI CAPAX. Capable of mischief; hav- 
 ing knowledge of right and wrong. 4 Bl 
 Comm. 22, 23; 1 Hale, P. C. 26, 27. 
 
 DOLI INCAPAX (Lat.) Incapable of dis- 
 tinguishing good from evil. A child under 
 fourteen is, prima facie, incapax doli, but 
 may be shown to be capax doli. 3 Bl. Comm. 
 23. 
 
 DOLO. The Spanish form of dolus. 
 
 DOLOSUS VERSATUR IN GENERALI- 
 bus. A deceiver deals in generals. 2 Coke, 
 34; 2 Bulst. 226; Lofft, 782; 1 Rolle, Abr. 
 157; Wingate, Max. 636; Broom, Leg. Max. 
 (3d London Ed.) 264. 
 
 DOLUM EX INDICIIS PERSPICUIS PRO- 
 bari convenit. Fraud should be proved by 
 clear tokens. Code, 2. 21. 6; 1 Story, Cont. 
 (4th Ed.) p. 602. 
 
 DOLUS (Lat.) In civil law. A fraudulent 
 address or trick used to deceive some one; a 
 fraud. Dig. 4. 3. 1. Any subtle contrivance 
 by words or acts with a design to circum- 
 vent. 2 Kent, Comm. 560; Code, 2. 21. 
 
 Dolus differs from culpa in this, that the 
 latter proceeds from an error of the under- 
 standing, while to constitute the former 
 there must be a will or intention to do 
 wrong. Wolff. Inst. § 17. 
 
 It seems doubtful, however, whether the 
 general use of the word dolus in the civil law 
 is not rather that of very great negligence, 
 than of fraud, as used in the common law. 
 
 Such acts or omissions as operate as a de- 
 ception upon the other party, or violate the 
 just confidence reposed by him, whether 
 there be a deceitful intent {malus animus) 
 or not. Poth. du Depot, notes 23, 27;^ Story, 
 Bailm. § 20a; 2 Kent, Comm. 506, note. 
 
 DOLUS AUCTORIS NON NOCET SUC- 
 
 cessori. The fraud of a. predecessor does 
 not prejudice the successor. 
 
 DOLUS CIRCUITU NON PURGATOR. 
 
 Fraud is not purged by circuity. Bac. Max. 
 reg. 1; Noy, Max. 9, 12; Broom, Leg. Max. 
 (3d London Ed.) 210. 
 
 DOLUS DANS LOCUM CONTRACTUI. 
 
 Fraud or deceit giving occasion for the con- 
 tract. This phrase is applied to a false rep- 
 resentation, when it is such as to induce the 
 contract. The phrase is commonly used in 
 expressing the rule that a contract is not 
 voidable for misrepresentations unless the 
 representation was dans locum contractui, i. 
 e., unless it induced the misled party to en- 
 ter into the contract. Therefore, if the per- 
 son to whom the false representations were 
 made did not rely on it, but made further 
 inquiries, he could not afterwatds make 
 
DOLUS EST MACHINATIO, ETC. (293) 
 
 DOMICELLUS 
 
 use of it to avoid the contract. 6 Clark & F. 
 
 444. 
 
 DOLUS EST MACHINATIO, CUM ALIUD 
 dlsslmulat allud agit. Deceit is an artifice, 
 since it pretends one thing and does another. 
 Lane, 47. 
 
 DOLUS ET FRAUS NEMINI PATROCI- 
 nentur; patroclnari debent. Deceit and fraud 
 shall excuse or benefit no man; they them- 
 selves need to be excused. Y. B. 14 Hen. 
 VIII. 8; Story, Bq. Jur. § 395; 3 Coke, 78; 2 
 Fonbl. Eq. bk. 2, c. 6, § 3. 
 
 Dominium tion potest esse in pendenti, the 
 right of property cannot be in abeyance. 
 Halk. Max. 39. 
 
 DOLUS MALUS (Lat. fraud; deceit with 
 an evil intention). Distinguished from 
 dolus bonus, justifiable or allowable deceit. 
 Calv. Lex.; Broom, Leg. Max. 349; 1 Kaufm. 
 Mackeld. Civ. Law, 165. Misconduct. Mag- 
 na negligentia culpa est; m,agna culpa dolus 
 est. great negligence is a fault; a great fault 
 is fraud. 2 Kent, Comm. 560, note. 
 
 DOM. PROC. (domiis procrriim)- The house 
 of lords. Wharton. 
 
 DOMAIN. Dominion; territory governed; 
 possession; estate; land about the m.ansion- 
 house of a lord; the right to dispose at our 
 pleasure of what belongs to us. 
 
 A distinction has been made between 
 "property" and "domain." The former is 
 said to be that quality which is conceived to 
 be in the thing itself, considered as belong- 
 ing to such or such person, exclusively of 
 all others. By the latter is understood that 
 right which the owner has of disposing of 
 the thing. Hence, domain and property are 
 said to be correlative terms; the one is the 
 active right to dispose of, the other a passive 
 quality which follows the thing, and places 
 it at the disposition of the owner. 3 Toul- 
 lier. Dr. Civ. note 83. But this distinction is 
 too subtle for practical use. Puffiendorff, 
 Law Nat. lib. 4. c. 4, § 2. See 1 BJ. Comm. 
 105, 106; 1 Bouv. Inst, note 456; Clef des 
 Lois Rom.; Domat, Civ. Law; 1 Hilliard, 
 Real Prop. 24; 2 Hill, Abr. 237. 
 
 DOMBOC, or DOMBEC (Saxon). The name 
 of codes of laws among the Saxons. Of 
 these. King Alfred's was the most famous. 
 1 Bl. Comm. 46; 4 Bl. Comm. 411. 
 
 The Domboc of King Alfred is not to be 
 confounded with the Domesday Book of 
 William the Conqueror. 
 
 DOME (Saxon). Doom; sentence; judg- 
 ment; an oath; the homager's oath in the 
 Black Book of Hereford. Blount. 
 
 DOME BOOK. A book or code said to 
 have been compiled under the direction of 
 Alfred, for the general use of the whole 
 kingdom of England; containing, as is sup- 
 posed, the principal maxims of the common 
 law, the penalties for misdemeanors, and the 
 forms of judicial proceedings. It is said to 
 have been extant so late as the reign of Ed- 
 ward IV., but is now lost. 1 Bl. Comm. 64, 
 65. 
 
 This is stated by Blackstone on the au- 
 thority of the early English historians, but 
 Mr. Hallam considers the authority insuffi- 
 cient. 2 Hallam, Mid. Ages, 402. 
 
 DOMESDAY, or DOMESDAY BOOK (Sax- 
 on). An ancient record made in the time of 
 William the Conqueror, and now remaining 
 in the English exchequer, consisting of two 
 volumes of unequal size, containing minute 
 and accurate surveys of the lands in Eng- 
 land. It has been printed, also. 2 Shars- 
 wood, Bl. Comm. 49, 50. 
 
 A variety of ingenious accounts are given 
 of the origin of this term by the old writers. 
 The commoner opinion seems to be that it 
 was so called from the fullness and com- 
 pleteness of the survey making it a day of 
 judgment for the value, extent, and quali- 
 ties of every piece of land. See Spelman; 
 Blount; Termes de la Ley. 
 
 It was practically a careful census taken 
 and recorded in the exchequer of the king- 
 dom of England. 
 
 DOMESMEN (Saxon). An inferior kind 
 of judges; men appointed to doom (judge) 
 in matters in controversy. Cowell. Suitors 
 in a court of a manor in ancient demesne, 
 who are judges there. Blount; Whishaw; 
 Termes de la Ley. 
 
 DOMESTIC. A servant residing with a 
 family. 41 Tex. 558. 
 
 Pertaining to a domicile or family. 
 
 DOMESTIC ADMINISTRATION. See "Ad- 
 ministration" (11). 
 
 DOMESTIC ATTACHMENT. A specie? 
 of attachment against resident debtors who 
 absent or conceal themselves, as foreign at- 
 tachment (i/. c.) is against nonresidents. 20 
 Pa. St. 144; 2 Kent, Comm. 403. 
 
 DOMESTIC BILL OF EXCHANGE. A bill 
 of exchange drawn on a person residing in 
 the same state with the drawer; or dated at 
 a place in the state, and drawn on a person 
 living within the state. 25 Miss. 143. It is 
 the residence of the drawer and drawee 
 which must determine whether a bill is do- 
 mestic or foreign. Id. 
 
 DOMESTIC CORPORATIONS. Corpora- 
 tions transacting business in the state by 
 which they are created. 
 
 DOMESTICS. Those who reside in the 
 same house with the master they serve. The 
 term does not extend to workmen or labor- 
 ers employed out of doors. 5 Bin. (Pa.) 167; 
 Merlin, Repert. The act of Congress of 
 April 30, 1790 (section 25), uses the word 
 "domestic" in this sense. 
 
 DOMESTICUS. In old European law. A 
 seneschal, steward, or major domo : a judge's 
 assistant; an assessor (g. v.) Spelman. 
 
 DOMICELLA. In old English law. A 
 damsel. Pleta, lib. 1, c. 20, § 80. 
 
 DOMICELLUS (Law Lat. dim. ot Oominun) . 
 In old European law. A young lord; a 
 title anciently given to the king's natural 
 sons in France, and sometimes to the eldest 
 
DOMICILE 
 
 (294) 
 
 DOMINIUM 
 
 sons of noblemen there. Spelman; Blount. 
 Spelman says it answered to the Saxon "adel- 
 ing," "aethellng." 
 
 DOMICILE. That place where a man has 
 his true, fixed and permanent home and 
 principal establishment, and to which, when- 
 ever he is absent, he has the intention 
 of returning. Lieber, Enc. Am.; 10 Mass. 
 188; 11 La. 175; 5 Mete. (Mass.) 187; 4 
 Barb. (N. Y.) 505; 9 Ired. (N. C.) 99; 1 
 Tex. 673; 13 Me. 255; 27 Miss. 704; 1 Bosw. 
 (N. Y.) 673; 74 111. 312. 
 
 The place in which one's habitation is 
 fixed, without any present intention of re- 
 moving therefrom. Story, Confl. Laws, § 43. 
 
 It is a more extensive term than "resi- 
 dence" or "habitation," not only residence, 
 but intent to remain, being essential to domi- 
 cile (4 Hun [N. Y.] 487; 4 Humph. [Tenn.] 
 346), though they have been considered con- 
 vertible for certain purposes (17 Pick. 
 [Mass.] 291). 
 
 Domicile may be either national or domes- 
 tic. In deciding the questidn of national 
 domicile, the point to be determined will be 
 in which of two or more distinct nationali- 
 ties a man has his domicile. In deciding the 
 matter of domestic domicile, the question is 
 in which subdivision of the nation does the 
 person have his domicile. Thus, whether a 
 person is domiciled in England or Prance 
 would be a question of national domicile, 
 whether in Norfolk or Suffolk county, a 
 question of domestic domicile. The distinc- 
 tion is to be kept in mind, since the rules 
 for determining the two domiciles, though 
 frequently, are not necessarily, the same. 
 See 2 Kent, Comin. 449 ; Story, Confl. Laws, § 
 39 et seq.; Westl. Priv. Int. Law, 15; Wheat. 
 Int. Law, 123 et seq. 
 
 The Romanists and civilians seem to at- 
 tach about equal importance to the place of 
 business and of residence as fixing the place 
 of domicile. Story, Confl. Laws, § 42. This 
 may go far towards reconciling the dis- 
 crepancies of the common law and civil law 
 as to what law is to govern in regard to 
 contracts. But at common law the main 
 question in deciding where a person has his 
 domicile is to decide where he has his home, 
 and where he exercises his political rights. 
 
 Legal residence, inhabitancy, and domicile 
 are generally used as synonymous. 1 Bradf. 
 Sur. (N. Y.) 70; 1 Har. (Del.) 383; 1 Spen- 
 cer (N. J.) 328; 2 Rich. (S. C.) 489; 10 N. 
 H. 452; 3 Wash. C. C. (U. S.) 555; 15 Mees. 
 & W. 433; 23 Pick. (Mass.) 170; 5 Mete. 
 (Mass.) 298; 4 Barb. (N. Y.) 505; 7 Gray 
 (Mass.) 299. But much depends on the con- 
 nection and purpose. 1 Wend. (N. Y.) 43; 
 5 Pick. (Mass.) 231; 17 Pick. (Mass.) 231; 
 15 Me. 58. 
 
 Commercial domicile is a domicile ac- 
 quired by maintenance of a commercial es- 
 tablishment in a country, in relation to trans- 
 actions connected with such establishments. 
 1 Kent, Comm. 82; 2 Kent, Comm. 11, 12. 
 
 DOMICILIATE. To flx or establish a dom- 
 icile. 
 
 DOMIGERIUM. Power over another; also 
 danger. Bracton, lib. 4, tit. 1, c. 10. 
 
 DOM IN A. A title given to honorable wo- 
 men, who anciently, in their own right of 
 inheritance, held a barony. Cowell. 
 
 DOMINANT. That to which a servitude 
 or easement is due, or for the benefit of 
 which it exists. Distinguished from "serv- 
 ient," that from which it is due. See "Base- 
 ment." 
 
 DOMINANT TENEMENT. In civil and 
 Scotch law. A term used in the constitution 
 of servitudes, meaning the tenement or sub- 
 ject in favor of which the servitude is con- 
 stituted. Bell, Diet. 
 
 DOM IN AT lO. In old English law. Lord- 
 ship. Mem. in Scacc. H. '22 Bdw. I. 
 
 DOMINICIDE. 
 
 lord or master. 
 
 The act of killing one's 
 
 DOMINICUM (Lat. domain; domain; de- 
 mesne). A lordship; that of which one has 
 the lordship or ownership; that which re- 
 mains under the lord's immediate charge and 
 control. 
 
 In this sense it is equivalent to the Saxon 
 bordlands. Spelman; Blount. In regard to 
 lands for which the lord received services 
 and homage merely, the dominicum was in 
 the tenant. 
 
 Property; domain; anything pertaining to 
 a lord. Cowell. 
 
 In Ecclesiastical Law. A church, or 
 
 any other building consecrated to God.' Du 
 Cange. 
 
 DOMINICUM ANTIQUUM. In old English 
 law. Ancient demesne. Bracton, fol. 369b. 
 
 DOMINIUM (Lat.) Perfect and complete 
 property or ownership in a thing. 
 
 Plenum in re dominium, — plena in re po- 
 testas. This right is composed of three prin- 
 cipal elements, viz., the right to use, the right 
 to enjoy, and the right to dispose of the 
 thing, to the exclusion of every other person. 
 To use a thing, jus utendi tantum, consists in 
 employing it for the purposes for which it 
 is fit, without destroying it, and which em- 
 ployment can therefore be repeated; to en- 
 joy a thing, jus fruendi tantum, consists in 
 receiving the fruits which it yields, whether 
 natural or civil, quidquid ex re nascitur; to 
 dispose of a thing, jus ahutendi, is to destroy 
 it, or to transfer it to another. Thus, he ' 
 who has the use of a horse may ride him, or / 
 put him in the plough to cultivate his own 
 soil; but he has no right to hire the horse 
 to another, and receive the civil fruits which 
 he may produce in that way. On the other 
 hand, he who has the enjoyment of a thing 
 is entitled to receive all the profits or reve- 
 nues which may be derived from it," either 
 from natural or civil fruits. And, lastly, he 
 who has the right of disposing of a thing, 
 jus a'butendi. may sell it, or give it away, 
 etc., subject, however, to the rights of the 
 usuary or usufructuary, as the case may be. 
 
 These three elements, usus, fructus, alu- 
 sus, when united In the same person, con- 
 stitute the dominium; but they may be, and 
 frequently are, separated, so that the right 
 of disposing of a thing may "belong to Pri- 
 
DOMINIUM DIRECTUM 
 
 (29S) DOMUS TUTISSIMUM, ETC. 
 
 mus, and the rights of using and enjoying 
 to Secundiis, or the^ right of enjoying alone 
 may belong to SeounAus, and the right of 
 using to Tertius. In that case. Primus is al- 
 ways the owner of the thing, but he is the 
 naked owner, inasmuch as for a certain time 
 he is actually deprived of all the principal 
 advantages that can be derived from it. 
 Seoundus. if he has the use and enjoyment, 
 jus utendi et fruendi simul, is called the 
 "usufructuary," usus-fructuarius; if he has 
 the enjoyment only, jus fruendi tantum, he 
 is the fructuarius. And Tertius, who has 
 the right of use, jus utendi tantum, is called 
 the usuary, — usuarius. But this dismember- 
 ment of the elements of the dominium is es- 
 sentially temporary. If no shorter period 
 has been fixed for its duration, it terminates 
 with the life of the usuary, fructuary, or 
 usufructuary, for which reason the rights of 
 use and usufruct are called "personal servi- 
 tudes." Besides the separation of the ele- 
 ments of the dominium among different per- 
 sons, there may also be a jus in re, or dis- 
 memberment, so far as real estates are con- 
 cerned, in favor of other estates. Thus, a 
 right of way over my land may exist in favor 
 of your house. This right is so completely at- 
 tached to the house that it can never be sepa- 
 rated from it, except by its entire extinc- 
 tion. This class of jura in re is called "pre- 
 dial" or "real" servitudes. To constitute this 
 servitude, there must be two estates belong- 
 ing to different owners. These estates are 
 viewed in some measure as juridical persons, 
 capable of acquiring rights and incurring 
 obligations. The estate in favor of which 
 the servitude exists is the creditor estate, 
 and the estate by which the servitude is 
 due, the debtor estate. 2 Mariade, 343 et 
 seq. 
 
 DOMINIUM DIRECTUM (Lat. legal own- 
 ership. 
 
 , In the Civil Law. Ownership, as dis- 
 tinguished from enjoyment. 
 
 In the Feudal Law. The right of the 
 
 lord. 
 
 DOMINIUM DIRECTUM ET UTILE' (Lat.) 
 Full ownership and possession united in one 
 person. 
 
 DOMINIUM EMINENS. Eminent domain. 
 Tayl. Civ. Law, 463. 
 
 DOMINIUM NON POTEST ESSE IN PEN- 
 denti. Lordship c9,nnot be in suspense, i. e., 
 property cannot remain in abeyance. Halk. 
 Max. 39. 
 
 DOMINIUM PLENUM. Full ownership; 
 the union of the dominium directum with the 
 dominium utile. Tayl. Civ. Law, 478. 
 
 DOMINIUM UTILE (Lat.) The beneficial 
 ownership; the use of the property. 
 
 DOMINO VOLENTE (Lat.) With the own- 
 er's consent. 
 
 DOMINUS (Lat.) The lord or master; 
 the owner. Ainsworth. The owner or pro- 
 prietor of a thing, as distinguished from 
 him who uses it merely. Calv. Lex. A 
 
 master or principal, as distinguished from 
 an agent or attorney. Story, Ag. § 3; Fer- 
 riere. 
 
 In Civil Law. A husband; a family. 
 
 Vicat. 
 
 DOMINUS LITIS (Lat.) The master of a 
 suit; the client, as distinguished from an 
 attorney. And yet it is said, although he 
 who has appointed an attorney is properly 
 called dominus litis, the attorney himself, 
 when the cause has been tried, becomes the 
 dominus litis. Vicat. 
 
 DOMINUS NAVIS. In the civil law. The 
 owner of a vessel. Dig. 39. 4. 11. 2. 
 
 DOMINUS NON MARITABIT PUPILLUM 
 nisi semel. A lord cannot give a ward in 
 marriage but once. Co. Litt. 9. 
 
 DOMINUS REX NULLUM HABERE Po- 
 test parem, multo minus superiorem. The 
 king cannot have an equal, much less a su- 
 perior. 1 Reeve, Hist. Bng. Law, 115. 
 
 DOMITAE (Lat.) Tame; subdued; not 
 wild. 
 
 DOMO REPARANDA. A writ that lay for 
 one against his neighbor, by the anticipated 
 fall of whose house he feared a damage and 
 injury to his own. Reg. Orig. 153; Termes 
 de la Ley. 
 
 DOMUS (Lat.) In the civil and old Eng- 
 lish law. A house or dwelling; a habita- 
 tion. Inst. 4. 4. 8; Towns. Pi. 183-185. 
 
 Held synonymous with "messuage." Cro. 
 Jac. 634. 
 
 DOMUS CAPITULARIS. In old records. 
 A chapter house; the chapter house. Dyer, 
 26b. 
 
 DOMUS CONVERSORUM (Law Lat. the 
 house of the converts). An ancient house 
 or institution (Spelman calls it collegium) 
 established by Henry III. for the benefit of 
 such Jews as were converted to the Christian 
 faith. This continued to the reign of Ed- 
 ward III., who, having expelled the Jews 
 from the kingdom, converted the building 
 into a place for keeping the rolls and records 
 of the chancery. Spelman; Cowell, voc. 
 "Rolls." It is now called the "Rolls' Office 
 in Chancery Lane," though in Latin the old 
 name is sometimes retained. Id. voc. "Mas- 
 ter of the Rolls." 
 
 DOMUS DEI. The house of God; applied 
 to many hospitals and religious houses. 
 
 DOMUS PROCERUM. The house of lords; 
 abbreviated into Dom. Proc, or D. P. 
 
 DOMUS SUA CUIQUE EST TUTISSI- 
 mum refugium. Every man's house is his 
 castle. 5 Coke, 91, 92; Dig. 2. 14. 18; Broom, 
 Leg. Max. (3d London Ed.) 384; 1 Hale, P. 
 C. 481; Fost. Hom. 320; 8 Q. B. 757; 16 Q. B. 
 546, 556; 19 How. St. Tr. 1030. See "Arrest." 
 
 DOMUS TUTISSIMUM CUIQUE REFUG- 
 ium atque receptaculum. The habitation of 
 each one is an inviolable asylum for him. 
 Dig. 2. 4. 18. 
 
DONA CLANDESTINA, ETC. 
 
 (296) 
 
 BONIS, STATUTE DE 
 
 DONA CLANDESTINA SUNT SEMPER 
 suspiciosa. Clandestine gifts are always sus- 
 picious. 3 Coke; 81; Noy, Max. Oth Ed.) 
 152; 4 Barn. & C. 652; 1 Maule & S. 253; 
 Broom, Leg. Max. (3d London Ed.) 264. 
 
 DONARI VIDETUR QUOD, NULLI JURE 
 cogente conceditur. That is considered to 
 be given which is granted when no law com- 
 pels. Dig. 50. 17. 82. 
 
 DONATARIUS (Law Lat.) One to whom 
 something is given; a donee. 
 
 DONATIO (Lat. a gift). A transfer of the 
 title to property to one who receives it with- 
 out paying for it. Vicat. The act by which 
 the owner of a thing voluntarily transfers 
 the title and possession of the same from 
 himself to another person, without any con- 
 sideration. 
 
 Its literal translation, gift, has acquired 
 in real law a more limited meaning, being 
 applied to the conveyance of estates tail. 2 
 Bl. Comm. 316; Litt. § 59; West, Symb. § 
 254; 4 Cruise, Dig. 51. There are several 
 kinds of donatio, — as donatio simplex et 
 pura, simple and pure gift, without compul- 
 sion or consideration; donatio absoluta et 
 larga. an absolute gift; donatio conditionalis, 
 a conditional gift; donatio striata et coarc- 
 tura, a restricted gift, as an estate tail. 
 
 Donatio Inter Vivos. A gift between 
 
 living persons. A contract which takes 
 place by the mutual consent of the giver, 
 who divests himself of the thing given 
 in order to transmit the title of it to the 
 donee gratuitously, and the donee, who ac- 
 cepts and acquires the legal title to it. This 
 donation takes place when the given is not 
 in any immediate apprehension of death, 
 which distinguishes it from a donatio mortis 
 causa. 1 Bouv. Inst, note 712. See, also. 
 Civ. Code La. art. 1453; Inst. 2. 7. 2; Coop- 
 er, Inst, notes 474, 475; U. S. Dig. tit. "Gift." 
 
 Donatio Mortis Causa. A gift in pros- 
 pect of death. A gift made by a person in 
 sickness, who, apprehending his dissolution 
 near, delivers, or causes to be delivered, to 
 another, the possession of any personal 
 goods, to keep as his own in case of the 
 donor's decease. 2 Bl. Comm. 514. See 
 Civ. Code La. art. 1455. 
 
 The civil law defines it to be a gift under 
 apprehension of death; as when anything 
 is given upon condition that, if the donor 
 dies, the donee shall possess it absolutely, or 
 return it if the donor should survive, or 
 should repent of having made the gift, or 
 if the donee should die before the donor. 1 
 Miles (Pa.) 109-117. 
 
 It differs from a legacy, inasmuch as it 
 does not require proof in the court of pro- 
 bate (2 Strange, 777. See 1 Bligh [N. S.] 
 531), and no assent is required from the 
 executor to perfect the donee's title (2 Ves. 
 Jr. 120; 1 Sim. & S. 245). It differs from 
 a gift inter vivos because it is ambulatory 
 and revocable during the donor's life, be- 
 cause it may be made to the wife of the 
 donor, and because it is liable for his debts. 
 
 DONATIO NON PRAESUMITUR. A gift 
 is not presumed. Jenk. Cent. Cas. 109. 
 
 DONATIO PERFICITUR POSSESSIONE 
 
 accipientis. A gift is rendered complete by 
 the possession of the receiver. See 1 Bouv. 
 Inst, note 712; 2 Johns. (N. Y.) 52; 2 Leigh 
 (Va.) 337; 2 Kent, Comm. 438. 
 
 DONATIO PROPTER NUPTIAS (Lat. gift 
 on account of marriage). In Roman law. 
 A gift made by the husband as a security for 
 the marriage portion. The effect of the act 
 of giving such a gift was different according 
 to the relation of the parties at the time of 
 making the gift. Vicat. Called, also, a 
 "mutual gift." 
 
 The name was originally applied to a gift 
 made before marriage, and was then called a 
 donatio ante nuptias; but in process of time 
 it was allowed to be made after marriage 
 as well, and was then called a donatio prop- 
 ter nuptias. 
 
 DONATION. In ecclesiastical law! A 
 mode of acquiring a benefice by deed of gift 
 alone, without presentation, institution, or 
 induction. 3 Steph. Comm. ,81. 
 
 DONATIONUM ALIA PERFECTA, ALIA 
 incepta, et non perfeota; ut si donatio lecta 
 fuit et concessa, ac traditio nondum fuerit 
 subsecuta. Some gifts are perfect, others in- 
 cipient and not perfect; as, if a gift were 
 read and agreed to, but delivery had not 
 then followed. Co. Litt. 56. 
 
 DONATIVE ADVOWSON. In ecclesiastic- 
 al law. A species of advowson, where the 
 benefice is conferred on the clerk by the 
 patron's deed of donation, without presenta- 
 tion, institution, or induction. 2 Bl. Comm. 
 23; Termes de la Ley. 
 
 DONATOR (Lat. from donare: Law 
 Pr. donour). In civil and old English law. 
 A donor or giver; the party who makes a 
 donatio, or gift. Bracton, fol. 11 et seq.; 
 Fleta, lib. 3, c. 7, § 4. 
 
 Donatorius (properly, donatariun). A do- 
 nee; a person to whom a gift is made; a 
 purchaser. Bracton, fol. 13 et seq.; Fleta, 
 ubi supra. 
 
 DONATOR NUNQUAM DESINIT POSSI- 
 dere antequam donatariusincipiatpossidere. 
 
 He that gives never ceases to possess until 
 he that receives begins to possess. Dyer, 
 281; Bracton, 41b. 
 
 DONATORIUS. A donee; a person to 
 whom a gift is made; a purchaser. Brac- 
 ton, fol. 13 et seq.; Fleta, lib. 3, c. 7, § 4. 
 
 DONATORY. The person on whom the 
 king bestows his right to any forfeiture that 
 has fallen to the crown. 
 
 DONEE. He to whom a gift is made or 
 a bequest given; one who is invested with 
 a power of appointment. He is sometimes 
 called an "appointee." 4 Kent, Comm. 316; 
 4 Cruise, Dig. 51. 
 
 DONIS, STATUTE DE. The statute of 
 Westminster II. 2, namely, 13 Bdw. I. c. 1, 
 called the statute de donis conditionalibus. 
 This statute revives, in some sort, the an- 
 
DONOR 
 
 (297) 
 
 DOTAGE 
 
 clent feudal restraints which were origi- 
 nally laid on alienations. Its effect, by mak- 
 ing a limitation in tail inalienable, was to 
 defeat the former rule of construction by 
 which a limitation to one and particular 
 heirs was held to impose a condition which 
 was fulfilled by the birth of such heirs, so 
 that the fee conditional (fee tail) became a 
 fee simple. Such estates were afterwards 
 called "estates tail." See "Estates;" "Tail." 
 2 Bl. Comm. 110-113. 
 
 DONOR (from Law Fr. doiiour; Lat. do- 
 nator) . 
 
 In Old English Law. He by whom 
 
 lands were given to another; the party 
 making a donatio (q. v.) See "Donator." 
 
 In Later Law. He who gives lands or 
 
 tenements to another in tail. Litt. S 57; 
 Termes de la Ley. 
 
 In Modern Law. He who makes a gift. 
 
 See, also, "Power." 
 
 DONUM (Lat.) A gift. 
 
 The difference between donum and numus 
 is said to be that donum is more general, 
 while numus is specific. Kumus is said to 
 mean donum with a cause for the giving, 
 though not a legal consideration, as on ac- 
 count of marriage, etc. Donum is said to 
 be that which is given from no necessity of 
 law or duty, but from free will, "from the 
 absence of which, if they are not given, no 
 blame arises, but, if they are given, praise 
 is due." Vicat; Calv. Lex. 
 
 DOOM, or DOME. In Scotch practice. 
 Judgment; sentence. The judgment of a 
 court, formerly pronounced by the mouth of 
 an officer called a dempster (.(]. r.), and end- 
 ing with the words, "And this I give (or 
 pronounce) for doom." The term is still 
 retained; sentences in criminal cases end- 
 ing with the words, "Which is pronounced 
 for doom." See 2 Brown, 128. 
 
 DORMANT. Sleeping; silent; not known; 
 not acting. 
 
 Dormant Execution. One which a cred- 
 itor delivers to the sheriff, with directions 
 to levy only, and not to sell, until further 
 orders, or until a junior execution is re- 
 ceived. 
 
 Dormant Judgment. One upon which 
 
 no execution is issued until the time limited 
 for issuing execution, as of course, has run 
 out. 
 
 Dormant Partners. A dormant part- 
 ner is one whose name is not known, or 
 does not appear as partner, but who never- 
 theless is a silent partner, and partakes of 
 the profits, and thereby becomes a partner, 
 either absolutely, to all intents and pur- 
 poses, or at all events, in respect to third 
 persons. According to Mr. Justice Story, 
 dormant partners, in strictness of language, 
 mean those who are merely passive in the 
 firm, whether known or unknown, in contra- 
 distinction to those who are active and con- 
 duct the business of the firm as principals. 
 Story, Partn. § 80. 
 
 DORMIUNT ALIQUANDO LEGES, NUN- 
 quam moriuntur. The laws sometimes sleep, 
 but never die. Inst. 161. 
 
 DORSUM (Lat. the back). In dorsit reeor- 
 di, on the back of the record. 5 Coke, 44b. 
 
 DORTURE. A dormitory of a convent; a 
 place to sleep in. 
 
 DOS (Lat.) 
 
 In Roman Law. That which is receiv- 
 ed by or promised to the husband from the 
 wife, or any one else by her influence, for 
 sustaining the burdens of matrimony. There 
 are three classes of dos. Dos profectitia is 
 that which is given by the father or any 
 male relative from his property or by his 
 act. Dos adveniitia is that which is given 
 by any other person or from the property of 
 the wife herself. Dos receptitia is where 
 there is a stipulation connected with the gift 
 relating to the death of the wife. Vicat; 
 Calv. Lex.; Du Cange; 1 Washb. Real Prop. 
 147. 
 
 In English Law. The portion bestow- 
 ed upon a wife at her marriage by her hus- 
 band. 1 Reeve, Hist. Eng. Law, 100; 1 
 Washb. Real Prop. 147; 1 Cruise, Dig. 152. 
 
 Dower generally. The portion which a 
 widow has in the estate of her husband after 
 his death. Park, Dower. 
 
 This use of the word in the English law, 
 though, as Spelman shows, not strictly cor- 
 rect, has still the authority of Tacitus (de 
 Mor. Germ. 18) for its use. And if the gen- 
 eral meaning of marriage portion is given 
 to it, it is strictly as applicable to a gift 
 from the husband to the wife as to one from 
 the wife to the husband. It occurs often in 
 the phrase dus dr dote prti iioii debet, dow- 
 er should not be sought of dower. 1 Washb. 
 Real Prop. 209. 
 
 DOS DE DOTE PETI NON DEBET. Dow- 
 er ought not to be sought from dower. 4 
 Coke, 122; Co. Litt. 31; 4 Dane. Abr. 671; 1 
 Washb. Real Prop. 209. 
 
 DOS RATIONABILIS (Lat. a reasonable 
 marriage portion). A reasonable part of 
 her husband's estate, to which every widow 
 is entitled, of lands of which her husband 
 may have endowed her on the day of mar- 
 riage. Co. Litt. 336. Dower, at common 
 law. 2 Bl. Comm. 234. 
 
 DOS RATIONABILIS VEL LEGITIMA 
 est cujuslibet muiierls de quocunque tene- 
 mento tertla pars omnium terrarum et tene- 
 mentorum, quae vir suus tenuit in dominio 
 sue ut de feodo, etc. Reasonable or legiti- 
 mate dower belongs to every woman of a 
 third part of all the lands and tenements of 
 which her husband was seised in his de- 
 mesne, as of fee, etc. Co. Litt. 336. 
 
 DOT. A French word adopted in Louisi- 
 ana. The fortune, portion, or dowry which 
 a woman brings to her husband by the mar- 
 riage. 6 Mart. (La.; N. S.) 460. 
 
 DOTAGE. Dotage is that feebleness of the 
 mental faculties which proceeds from old 
 age. It is a diminution or decay of that 
 intellectual power which was once possessed. 
 It Is the slow approach of death; of that ir- 
 revocable cessation, without hurt or disease. 
 
DOTAL PROPERTY 
 
 (298) 
 
 DOUBLE VOUCHER 
 
 of all the functions -whicli once belonged to 
 the living animal. 1 Bland, Ch. (Md.) 389. 
 
 DOTAL PROPERTY. By the civil law in 
 Louisiana, by this term is understood that 
 property which the wife brings to the hus- 
 band to assist him in bearing the expenses 
 of the marriage establishment. Civ. Code La. 
 art. 2315. 
 
 DOTALITIUM. In canon and feudal law. 
 Dower. Spelman, voc. "Doarium;" Calv. 
 Lex.; 2 Bl. Comm. 129. Used as early as A. 
 D. 841. 
 
 DOTATION. In French law. The act by 
 which the founder of a hospital, or other 
 charity, endows it with property to fulfill 
 its destination. 
 
 DOTE. In Spanish law. The property and 
 effects which a woman brings to her hus- 
 band for the purpose of aiding him, with 
 the rents and revenues thereof, to support 
 the expenses of the marriage. Las Partidas, 
 4. 11. 1. "Dos," says Cajas, "est pecunia 
 niarito. nuptiarum causa, data vel promissa." 
 The dower of the wife is inalienable, except 
 in certain specified cases, for which see 
 Escriche, Die. Raz. 
 
 DOTE ASSIGNANDO. In English law. A 
 writ which lay in favor of a widow, when it 
 was found by office that the king's tenant 
 was seised of tenements in fee or fee tail 
 at the time of his death, and that he held 
 of the king in chief. 
 
 DOTE UNDE NIHIL HABET. Dower 
 
 unde nihil Tiatet (q. v.) 
 
 DOTI LEX FAVET; PROEMIUM PUDOR- 
 is est, ideo parcatur. The law favors dower ; 
 it is the reward of chastity, therefore let it 
 be preserved. Co. Litt. 31; Branch, Princ. 
 
 DOTIS ADMINISTRATIO. Admeasure- 
 ment of dower, where the widow holds more 
 than her share, etc. 
 
 DOTISSA. A dowager. 
 
 DOUBLE AVAIL OF MARRIAGE. In 
 
 Scotch law. Double the ordinary or single 
 value of a marriage. Bell, Diet. See "Du- 
 plex Valor Maritagii." 
 
 DOUBLE BOND. In Scotch law. A bond 
 with a penalty, as distingliished from a 
 single bond. 2 Karnes, Bq. 359. 
 
 DOUBLE COMPLAINT, or DOUBLE 
 quarrel. A grievance made known by a 
 clerk or other person, to the archbishop of 
 the province, against the ordinary, for de- 
 laying or refusing to do justice in some 
 cause ecclesiastical, as to give sentence, in- 
 stitute a clerk, etc. It is termed a "double 
 complaint." because it is most commonly 
 made against both the judge and him at 
 whose suit justice is denied or delayed; the 
 effect whereof is that the archbishop, taking 
 notice of the delay, directs his letters, under 
 his authentical seal, to all clerks of his 
 province, commanding them to admonish the 
 ordinary, within a certain number of days, 
 to do the justice required, or otherwise to 
 
 appear before him or his official, and there 
 allege the cause of his dejay; and to sig- 
 nify to the ordinary that if he neither per- 
 form the thing enjoined, nor appear nor 
 show cause against it, he himself, in his 
 court of audience, will forthwith proceed to 
 do the justice that is due. Cowell. 
 
 DOUBLE (or TREBLE) COSTS. In Eng- 
 land and some of the United States, ordi- 
 nary costs, and fifty per cent, thereof in 
 addition. 22 Mich. 5; 9 Wend. (N. Y.) 443. 
 In other states, twice the ordinary costs. 
 16 Pa. St. 254; 34 N. J. Law, 145. Treble 
 costs is either full costs, and seventy-five 
 per cent, additional, or three times the ordi- 
 nary costs, in different states. 
 
 DOUBLE (or TREBLE) DAMAGES. In 
 some cases it is provided by statute that a 
 party may recover double or treble dam- 
 ages. In these cases the jury find such dam- 
 ages as they think proper, and the court en- 
 hances them in the judgment. Brooke, Abr. 
 "Damages," pi. 70; 2 Inst. 416; 1 Wils. 126; 
 1 Mass. 155. The damages are actually 
 doubled or trebled, as the case may be; not 
 assessed, like double or treble costs. 
 
 DOUBLE FINE. In old English law. A 
 fine sur done grant et render was called a 
 "double fine," because it comprehended the 
 fine .iiir cognizance de droit come ceo, etc., 
 and the fine sur concessit. 2 Bl. Comm. 353. 
 
 DOUBLE INSURANCE. Is where divers 
 insurances are made upon the same inter- 
 est in the same subject against the same 
 risks in favor of the same assured, in pro- 
 portions exceeding the value. 1 Phil. Ins. 
 §§ 359, 366. 
 
 DOUBLE PLEA. The alleging, for one 
 single purpose, two or more distinct grounds 
 of defense, when one of them would be as 
 effectual in law as both or all. See "Du- 
 plicity." 
 
 DOUBLE POSSIBILITY. A possibility bas- 
 ed or dependent on another possibility. 
 Used ordinarily in respect to the creation of 
 contingent trusts and remainders. Thus, a 
 bequest to testator's unborn "child" Is valid, 
 resting on a single possibility; while one 
 to his unborn "son" is invalid, the possibil- 
 ity being double. 
 
 DOUBLE RENT. Required, by St. 11 Geo. 
 II. c. 19, as a penalty of a tenant holding 
 over after notice to quit. Wharton. 
 
 DOUBLE VOUCHER. A voucher which 
 occurs when the person first vouched to 
 warranty comes in and vouches over a third 
 person. See a precedent, 2 Bl. Comm. Ap- 
 pendix V. p. xvii. 
 
 The necessity for double voucher arises 
 when the tenant In tail is not the tenant in 
 the writ, but is tenant by warranty; that is, 
 where he is vouched, and comes in and con- 
 fesses the warranty. Generally speaking, to 
 accomplish this result a previous convey- 
 ance is necessary, by the tenant in tail, to a 
 third person, in order to make such third 
 person tenant to a writ of entry. Prest. 
 Conv. 125, 126. 
 
DOUBLE WASTE 
 
 (299) 
 
 DRAIN 
 
 DOUBLE WASTE. When a tenant bound 
 to repair suffers a house to be wasted, and 
 then unlawfully fells timber to repair it, he 
 is said to commit double waste. Co. Lltt. 53. 
 See "Waste." 
 
 DOUBT. The uncertainty which exists in 
 relation to a fact, a proposition, or other 
 thing; an equipoise of the mind arising from 
 an equality of contrary reasons. Ayliffe, 
 Pand. 121. See* "Reasonable Doubt." 
 
 DOUN, DON, or DONE (Law Pr.) A gift. 
 The thirty-fourth chapter of Britton is en- 
 titled "De Douns." 
 
 DOWABLE. Entitled to dower. 
 
 DOWAGER. A widow endowed; one who 
 has a jointure. 
 
 In England. A title or addition given to 
 
 the widows of princes, dukes, earls, and oth- 
 er noblemen, to distinguish them from the 
 wives of the heir, who have a right to bear 
 the title. 
 
 DOWAGER QUEEN. The widow of the 
 king. As such she enjoys most of the privi- 
 leges belonging to her as queen consort. It 
 is not treason to conspire her death or vio- 
 late her chastity, because the succession to 
 the crown is not thereby endangered. No 
 man, however, can marry her without a spe- 
 cial license from the sovereign, on pain of 
 forfeiting his lands or goods. 1 Bl. Comm. 
 233. 
 
 DOWER (Fr. doner, to endow). The pro- 
 vision which the law make.=i for a widow 
 out of the lands or tenements of her hus- 
 band, for her support and the nurture of her 
 children. Co. Litt. 30a; 2 Bl. Comm. 130; i 
 Kent, Comm. 35; Washb. Real Prop. 146. 
 
 The word "dower" has reference to real 
 estate only. 36 Me. 216. 
 
 It has three stages: (1) Inchoate, from 
 marriage to the death of the husband; (2) 
 consummate, from the death of the husband 
 to admeasurement; and (3) assigned from 
 the time when it is set off to the widow. 
 Stew. Hush. & Wife, §§ 262-264. 
 
 There were five species of dower in Eng- 
 land: 
 
 (1) Dower by custom, where a widow be- 
 came entitled to a specified portion of her 
 husband's lands in consequence of some local 
 or particular custom. 
 
 (2) Dower ad ostium rcdesiap. where a man 
 of full age, on coming to the church door Lo 
 be married, endowed his wife of a certain 
 portion of his lands. 
 
 (3) Dower e.c asseiisu fraty'm. which differed 
 from dower acL ostium ecclesiae only in being 
 made out of the lands of the husband's fa- 
 ther, and with his consent. 
 
 (4) Dower de la phis belle, where the widow, 
 on suing the guardian in chivalry for dower, 
 was required by him to endow herself of the 
 fairest portion of any lands she might hold 
 as guardian in socage, and thus release from 
 dower the lands of her husband held in 
 chivalry. This was abolished along with the 
 military tenures, of which it was a conse- 
 quence. 2 Bl. Comm. 132, note. 
 
 (5) Dower by common law, where the wid- 
 ow wasentitled during her life to a third part 
 of all the lands and tenements in fee simple 
 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. 
 
 Since the passage of the dower act in 
 England (3 & 4 Wm. IV. c. 105), all these 
 species of dower, except that by custom and 
 by the common law, have ceased to exist. 2 
 Sharswood, Bl. Comm. 135, note. Dower in 
 the United States, although regulated by 
 statutes differing from each other in many 
 respects, conforms substantially to that at 
 the common law. 1 Washb. Real Prop. 149. 
 
 DOWER UNDE NIHIL HABET. A writ 
 which lay for a widow to obtain an assign- 
 ment of dower. 
 
 DOWLE STONES. Stones dividing lands, 
 etc. Cowell. 
 
 DOWMENT. In old English law. Endow- 
 ment; dower. 
 
 DOWRESS. A woman entitled to dower. 
 See "Dower." 
 
 DOWRY. Formerly applied to mean that 
 which a woman brings to her husband in 
 marriage. This is now called a ."portion." 
 This word is sometimes confounded with 
 "dower." See Co. Litt. 31; Civ. Code La. 
 art. 2317; Dig. 23. 3. 76; Code, 5. 12. 20. 
 
 DOZEIN (Law Fr. twelve). A person 
 twelve years of age. St. 18 Edw. II.; Barr. 
 Obs. St. 208. 
 
 DOZEN PEERS. Twelve peers assembled 
 at the instance of the barons, in the reign 
 of Henry III., to be privy counsellors, or 
 rather conservators of the kingdom. Whar- 
 ton. 
 
 DRACO REGIS. The standard, ensign, or 
 military colors borne in war by the ancient 
 kings of England, having the figure of a 
 dragon painted thereon. 
 
 DRACONIAN LAWS. A code of laws pre- 
 pared by Draco, the celebrated lawgiver of 
 Athens. These laws were exceedingly se- 
 vere, and the term is now sometimes applied 
 to any laws of unusual harshness. 
 
 DRAFT. The common term for a bill of 
 exchange. 
 
 DRAGOMAN. An interpreter employed in 
 the east, and particularly at the Turkish 
 court. 
 
 Act Cong. Aug. 26, 1842, c. 201, § 8, de- 
 clares that it shall not be lawful for the 
 president of the United States to allow a 
 dragoman at Constantinople a salary of 
 more than two thousand five hundred dol- 
 lars. 
 
 DRAIN. To conduct water from one place 
 to another, for the purpose of drying the 
 former. 
 
 The right of draining water through an- 
 other man's land. This is an easement or 
 
DRAW 
 
 (300) 
 
 DROIT 
 
 servitude acquired by grant or prescription. 
 See 3 Kent, Comm. 436; 7 Man. & G. 354; 
 Wa'shb. Easem. Index. 
 
 DRAW. To drag, on a hurdle, to the place 
 of execution. Anciently no hurdle was al- 
 lowed, but the criminal was actually drag- 
 ged along the road to the place of execution. 
 A part of the ancient punishment of traitors 
 was the being thus drawn. 4 Sharswood, Bl. 
 ■ Comm. 92, 377. 
 
 DRAWBACK. An allowance made by the 
 government to merchants on the re-expor- 
 tation of certain imported goods liable to 
 duties, which in some cases consists of the 
 whole, in others of a part, of the duties 
 which had been paid upon the importation. 
 For the various acts of congress which regu- 
 late drawbacks, see Brightly, Dig. U. S. 
 Laws. 
 
 DRAWEE. A person to whom -^ bill of ex- 
 change is addressed, and who is requested 
 to pay the amount of money therein men- 
 tioned. See "Bill of Exchange." 
 
 DRAWER. The party who makes a bill of 
 exchange. 
 
 DRAWLATCHES. Thieves; robbers. Cow- 
 ell. 
 
 DREIT DREIT. Double right; a union of 
 the right of possession and the right of 
 property. 2 Sharswood, Bl. Comm. 199. 
 
 DRENCHES, or DRENGES (Law Lat. 
 drengi). A species of tenants mentioned in 
 Domesday Book, whom Spelman supposes to 
 have been military vassals or tenants by 
 knight service. The same author quotes an 
 old manuscript record of the family of 
 Sharburn, in Norfolk, from which it would 
 appear that the name was given to certain 
 tenants in capite, who, at the coming of 
 William the Conqueror, being put out of 
 their estates, were afterwards, upon com- 
 plaint being made to him, restored to them, 
 on their making it appear that they were 
 owners thereof, and had taken no part 
 against him either by aid or counsel in con- 
 nillo et auxiUo. Spelman. According to Lord 
 Coke, who spells the word dreuchs, they 
 were free tenants of a manor. Co. Litt. 5b. 
 
 DRENGAGE. The tenure by which the 
 drenches (q. v.) held their lands. Spel- 
 man. 
 
 DRIFT. In old English law. A driving. 
 A term applied to cattle. 
 
 DRIFTS OF THE FOREST. A view or ex- 
 amination of what cattle are in a forest, 
 chase, etc., that it may be known whether it 
 be surcharged or not, and whose the beasts 
 are, and whether they are commonable. 
 These drifts are made at certain times in 
 the year by the officers of the forest, when 
 all cattle are driven into some pound or 
 place inclosed, for the before-mentioned pur- 
 poses, and also to discover whether any cat- 
 tle of strangers be there, which ought not to 
 common. Manw. For. Law, p. 2, c. 15. 
 
 DRIFTWAY. A road or way over which 
 cattle are driven. 1 Taunt. 279; Selw. N. 
 P. 1037; Woolr. Ways, 1. The term is in 
 use in Rhode Island. 2 Hilliard, Real Prop. 
 33. 
 
 DRINCLEAN,or DRINKLEAN (Saxon). A 
 contribution of tenants, in the time of the 
 Saxons, towards a potation, or ale, provided 
 to entertain the lord, or his steward. Cow- 
 ell. See "Cervisarii." 
 
 DRIP. The right of drip is an easement 
 by which the water which falls on one house 
 is allowed to fall upon the land of another. 
 
 Unless the owner has acquired the right 
 by grant or prescription, he has no right so 
 to construct his house as to let the water 
 drip over his neighbor's land. 1 Rolle, Abr. 
 107. See 3 Kent, Comm. 436; Dig. 43. 23. 
 4. 6; 11 Adol. & E. 40. 
 
 DROFDEN, or DROFDENE. A grove or 
 woody place where cattle are kept. Cowell; 
 Blount. 
 
 DROFLAND,DRIFTLAND,orDRYFLAND. 
 
 A yearly payment made by some to their 
 landlords for driving their cattle through the 
 manor to fairs and markets. Cowell. 
 
 DROIT (Fr.) 
 
 In French Law.< Law; the whole body 
 
 of law, written and anwrij*en. 
 
 A right. No^aw exists ••without a duty. 
 Toullier, Dr. Civ. note 96; Poth. Dr. . 
 
 Droit d'accession.- That propwtv which 
 is acquired by making' a ne'w species bfli of 
 the material of another. Modus acctuirdndi 
 quo quis ex aliena materia suo notnine novam 
 siipcieiii facicns bona fide ejva spech'i domin- 
 ium connequitiir. It is a rule of the civil 
 law that, if the thing can be reduced to the 
 former matter, it belongs to the owner of 
 the matter, c. (/., a statute made of gold, but, 
 if it cannot so be reduced, it belongs to the 
 person who made it, p. fl., a statue made of 
 marble. This subject is treated of in the 
 Code Nap. arts. 565, 577; Merlin, Repert. 
 "Accession;" Malleville's Discussion, art. 565. 
 See "Accession." 
 
 Droit d'auiaine. A rule by which all the 
 property of a deceased foreigner, whether 
 movable or immovable, was confiscated to 
 the use of the state, to the exclusion of his 
 heirs, whether claiming ab intestato or under 
 a will of the deceased. 
 
 The word aubaine signifies hospes loci, 
 peregrinus advena, a stranger. It is de- 
 rived, according to some, from alibi, else- 
 where, natus, born, from which the word 
 albinus is said to be formed. Others, as 
 Cujas, derive the word directly from advena, 
 by which word aiibains or strangers are des- 
 ignated in the capitularies of Charlemagne. 
 See Du Cange; Trevoux. See "Aubaine." 
 
 Droit de bris. A right, formerly claimed 
 by the lords of the coasts of certain 
 parts of France, to shipwrecks, by which 
 not only the property, but the persons of 
 those who .were cast away, were confis- 
 cated for the prince who was lord of the 
 coast. Otherwise called droit de bris sur le 
 naufrages. The right prevailed chiefly in 
 
DROIT DROIT 
 
 (301) 
 
 DRY EXCHANGE 
 
 Bretagne, and was solemnly abrogated by 
 Henry III. as duke of Normandy, Aqultalne, 
 and Guienne, in a charter granted A. D. 
 1226,' preserved among the rolls at Bordeaux. 
 Laws of Oleron, art. 26, note; Pet. Adm. 
 Dec. Appendix. See "Bris." 
 
 Droit de garde. Right of ward; the guard- 
 ianship of the estate and person of a noble 
 vassal, to which the king, during his minor- 
 ity, was entitled. Steph. Lect. 250. 
 
 Droit de gite. The duty Incumbent on a 
 roturier, holding lands within the royal do- 
 main, of supplying board and lodging to the 
 king and to his suite while on a royal 
 progress. Steph. Lect. 351. 
 
 Droit de greffe. The right of selling vari- 
 ous offices connected with the custody of 
 judicial records or notarial acts. Steph. Lect. 
 354. A privilege of the French kings. 
 
 Droit de maitrise. A charge payable to the 
 crown by any one who, after having served 
 his apprenticeship in any commercial guild 
 or brotherhood, sought to become a master 
 workman in it on his own account. Steph. 
 Lect. 354. 
 
 Droit de prise. The duty (incumbent on a 
 roturier) of supplying to the king on credit, 
 during a certain period, such articles of 
 domestic consumption as might be required 
 for the royal household. Steph. Lect. 351. 
 
 Droit de quint. A relief payable by a noble 
 vassal to the king as his seigneur, on every 
 change in the ownership of his fief. Steph. 
 Lect. 350. ;- 
 
 In English Law. Right. Co. Lift. 158. 
 
 A person was said to have droit droit, pin- 
 ri'tnurri juris, and plurimum possessionis, 
 when he had the freehold, the fee, and the 
 property in him. Crabb, Hist. Eng. Law, 
 406. 
 
 Droit Close. The name of an ancient 
 writ directed to the lord of ancient de- 
 mesne, and which lies for those tenants in 
 ancient demesne who hold their lands and 
 tenements by charter in fee simple, in fee 
 tail, for life, or in dower. Fitzh. Nat. Brev. 
 23. 
 
 DROIT DROIT (Law Fr.; Law Lat. jus 
 dupUcatum). In old English law. A double 
 right. The right of possession, united with 
 the right of property. 2 Bl. Comm. 199; Co. 
 Lift. 266a; 1 Reeve, Hist. Eng. Law, 476; 4 
 Kent, Comm. 373. See "Dreit Droit." 
 
 DROIT ECRIT. In French law. The writ- 
 ten law. The Roman civil law, or corpus 
 juris civilis. Steph. Lect. 130. 
 
 DROIT NE DONE PLUIS QUE SOIT DE- 
 maunde. The law gives no more than is de- 
 manded. Coke, 2d Inst. 286. 
 
 DROIT NE POET PAS MORIER. 
 
 •cannot die. Jenk. Cent. Cas. 100. 
 
 Right 
 
 DROITS CIVILS. This phrase in French 
 law denotes private rights, the exercise of 
 which is independent of the status (qKnlitc) 
 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 
 I)y them in Prance. Brown. 
 
 DROITS OF ADMIRALTY. Rights claim- 
 ed by the government over the property of 
 an enemy. In England, it has been usual 
 in maritime wars for the government to 
 seize and condemn, as droits of admiralty, 
 the property of an enemy found in her ports 
 at the breaking out of hostilities. 1 C. Rob. 
 Adm. 196; 13 Ves. 71; 1 Edw. Adm. 60; 3 
 Bos. & P. 191. 
 
 DROITURAL. What belongs of right; re- 
 lating to right; as, real actions are either 
 droitural or possessory, — droitural when the 
 plaintiff seeks to recover the property. 
 Finch, Law, 257. 
 
 DROP. In English practice. When the 
 members of a court are equally divided on 
 the argument showing cause against a rule 
 nisi, no order is made, i. e., the rule is nei- 
 ther discharged nor made absolute, and the 
 rule is said to "drop." In practice, there be- 
 ing a right to appeal, it has been usual to 
 make an order in one way, the junior judge 
 withdrawing his judgment. 
 
 DROP LETTER. A letter addressed for 
 delivery in the same city or district in which 
 it is posted. 
 
 DROVE ROAD. A road for driving cattle. 
 A right of way for carriages does not in- 
 volve necessarily a right to drive cattle, or 
 an easement of drove road. 
 
 DROVE STANCE. In Scotch law. A place 
 adjoining a drove road, for resting and re- 
 freshing sheep and cattle on their journey. 
 7 Bell, App. Cas. 53, 57. 
 
 DRU. A thicket of wood in a valley. 
 Domesday Book. 
 
 DRUGGIST. One who deals in medicinal 
 substances, vegetable, animal, or mineral, 
 uncompounded. 
 
 In America, the term "druggist" is used 
 synonymously with "apothecary," although, 
 strictly speaking, a druggist is one who deals 
 in medicinal substances, vegetable, animal, 
 or mineral, before being compounded, which 
 composition and combination are really the 
 business of the apothecary. The term is 
 here used in its double sense. In England, 
 an apothecary is a subphysician, or privi- 
 leged practitioner. He is the ordinary med- 
 ical man, or family medical attendant, in 
 that country. 
 
 DRUNKENNESS. In medical jurispru- 
 dence. The condition of a man whose mind 
 is affected by the immediate use of intoxi- 
 cating drinks. 
 
 DRUNKARD. Synonymous with "habitual 
 drunkard" (q. r.) 5 Gray (Mass.) 85. 
 
 DRY CRAEFT. Witchcraft; magic. 
 
 DRY EXCHANGE. A term invented for 
 disguising and covering usury, in which 
 something was pretended to pass on both 
 sides, when in truth nothing passed on one 
 side; whence it was called "drv." St. 3 Hen. 
 VII. c. 5; Wolff. Inst. § G57. 
 
DRY MULTURES 
 
 (302) 
 
 DUKE 
 
 DRY MULTURES. In Scotch law. Corn 
 paid to the owner of a mill, whether the 
 payers grind or not. Wharton. 
 
 DRY RENT. Rent seek; a rent reserved 
 without a clause of distress. 
 
 DUARCHY. A form of government where 
 two reign jointly. 
 
 DUAS UXORES EODEM TEMPORE HA- 
 bere non potest. It is not lawful to have 
 two wives at one time. Inst. 1. 10. 6; 1 
 Sharswood, Bl. Comm. 436. 
 
 DUBITANS, or DUBITANTE. Doubting. 
 Dobbin, J., ditbitans. 1 Show. 364. 
 
 DUBITATUR, or DUBITAVIT. It is doubt- 
 ed. A word frequently used in the reports 
 to indicate that a point is considered doubt- 
 ful. Vaughan, C. J., diiMtavit. Freem. 150. 
 
 DUCAT. The name of a foreign coin. 
 
 The ducat, or sequin, was originally a 
 gold coin of the middle ages, apparently a 
 descendant from the bezant of the Greek- 
 Roman empire. For many centuries it con- 
 stituted the principal international currency, 
 being intended, or supposed, to be made of 
 pure gold, though subsequently settled at a 
 basis a little below. It js now nearly obsolete 
 in every part of the world. Its average value 
 is about $2.26 of our money. It is said they 
 appeared earliest in Venice, and that they 
 bore the following motto: Sit tiii, Ghriste, 
 datus, quem tu regis, iste Duoatus, — whence 
 the name diicat. 
 
 The silver ducat was formerly a coin of 
 Naples, weighing three hundred and forty- 
 eight grains, eight hundred and forty-two 
 thousandths fine; consequent value, in our 
 money, about eighty-one cents; but it now 
 exists only as a money of account. 
 
 DUCES TECUM (Law Lat. you bring with 
 you). In practice. A term applied to cer- 
 tain writs, where a party summoned to ap- 
 pear in court is required to bring with him 
 some piece of evidence, or other things that 
 the court would view. Cowell; Termes de la 
 Ley. See "Subpoena." 
 
 DUCES TECUM LICET LANGUIDUS. A 
 
 writ directing the sheriff to bring a person 
 whom he returned as so sick that he could 
 not be brought without endangering his 
 life. Blount; Cowell. The writ is now ob- 
 solete. See "Subpoena." 
 
 DUCHY COURT OF LANCASTER. A 
 
 court of special jurisdiction in England, 
 held before the chancellor of the duchy of 
 Lancaster, or his deputy, concerning all 
 matter of equity relating to lands holden of 
 the king in right of the duchy of Lancaster. 
 3 Bl. Comm. 78; 3 Steph. Comm. 446. The 
 proceedings in this court are the same as on 
 the equity side in the courts of exchequer 
 and chancery. Id. 
 
 DUCKING STOOL. See "Castigatory." 
 
 DUCROIRE. Guaranty; equivalent to del 
 credere (q. v.) 
 
 DUE. Just and proper. A due present- 
 
 ment and demand of payment must be made. 
 See 4 Rawle (Pa.) 307; 3 Leigh (Va.) 389; 
 3 Cranch (U. S.) 300. 
 
 What ought to be paid; what may be de- 
 manded; payable. 7 N. Y. 476. 
 
 It differs from "owing" in this, that some- 
 times what is owing is not due. A note pay- 
 able thirty days after date is owing imme- 
 diately after it is delivered to the payee, 
 but it is not due until the thirty days have 
 elapsed; but it has been held synonymous 
 with "owing." 31 Mich. 219. 
 
 It may mean either "owing" or "payable," 
 according to the context. 2 Ch. Div. 101. 
 
 D U E B I L L. An acknowledgment of a debt 
 in writing is so called. This instrument 
 differs from a promissory note in many par- 
 ticulars. It is not payable to order, nor is 
 it assignable by mere indorsement. See 
 "Promissory Note." 
 
 DUE PROCESS OF LAW. Law in its reg- 
 ular course of administration through courts 
 of justice. 3 Story, Const. 264, 661 ; 18 How. 
 (U, S.) 272; 13 N. Y. 378. 
 
 It is the equivalent to "law of the land," 
 as used in Magna Gharta. Co. Inst. 50; 18 
 How. (U. S.) 272; 11 Mich. 129. 
 
 "Whatever difficulty may, be experienced 
 in giving to these terms a definition which 
 will embrace every permissible exercise of 
 power affecting private rights, and exclude 
 such as is forbidden, there can be no doubt 
 of their nieaning as applied to judicial pro- 
 ceedings. They then mean a course of legal 
 proceedings according to those rules and 
 principles which have been established in 
 our system of jurisprudence for the protec- 
 tion and enforcement of private rights." 96 
 U. S. 733. 
 
 "Such an exertion of the powers of gov- 
 ernment as the settled maxims of law per- 
 mit and sanction, and under such safe- 
 guards for individual rights as those max- 
 ims prescribe for the class of cases to which 
 the one in question belongs." Cooley, Const. 
 Lim. § 356. 
 
 Due process of law is not any course of 
 procedure that may at any time be estab- 
 lished by the legislature (34 Ala. 216; 43 N. 
 J. Law, 203), yet it is not a denial of due 
 process of law for the legislature to make 
 changes in the common law, or in modes of 
 procedure (50 Miss. 468; 70 N. Y. 228; 160 
 U. S. 389). 
 
 Due process of law embraces only that 
 which is fundamental, and to it is necessary 
 an orderly legal proceeding, whereof the 
 party affected shall have notice, and an op- 
 portunity to appear and be heard. 169 U. S. 
 366; 96 U. S. 97. 
 
 DUELLING. The fighting of two persons 
 one against the other, at an appointed time 
 and place, upon a precedent quarrel. It dif- 
 fers from an affray in this, that the latter 
 occurs on a sudden quarrel, while the for- 
 mer is always the result of design. 
 
 DUELLUM. Trial by battle; judicial com- 
 bat. Spelman. 
 
 DUKE. The title given to those who are 
 in the highest rank of nobility in England.^ 
 
DULOCRACY 
 
 (303) 
 
 DUPLICATE 
 
 DULOCRACY. A government where serv- 
 ants and slaves have so much license and 
 privilege that they domineer. Wharton. 
 
 DULY. In legal parlance, according to 
 law. 5 Hun (N. Y.) 542, 543; 23 Barb. (N. 
 Y.) 304; 3 Edw. Ch. 239; 59 Barb. (N. Y.) 
 531, 543; 15 Minn. 479, 484. It does not re- 
 late to form merely, but includes form and 
 substance both. 114 N. Y. 518, 527. 
 
 DUM (Lat. while). A word of limitation 
 in old conveyances. Co. Litt. 235a; 10 Coke, 
 41b. 
 
 DUM BENE SE GESSERIT (Law Lat.) 
 While he conducted himself well; during 
 good behavior. 2 Bl. Comm. 252. The im- 
 plied condition on which a feud or fee was 
 originally given. Id. See "Quamdiu se Bene 
 Gesserit," 
 
 DUM FERVET OPUS. While the work 
 glows; in the heat of action. 1 Kent, Comm. 
 120. 
 
 DUM FUIT IN PRISONA (Law Lat.) In 
 English law. A writ which lay for a man 
 who had aliened lands under duress by im- 
 prisonment, to restore to him his proper es- 
 tates. Coke, 2d Inst. 482. 
 
 DUM FUIT INFRA AETATEM (Lat.) The 
 name of a writ which lies when an infant 
 has made a feoffment in fee of his lands or 
 for life, or a gift in tail. 
 
 It may be sued out by him after he' comes 
 of full age, and not before; but in the mean- 
 time he may enter, and his entry remits him 
 to his ancestor's rights. Fitzh. Nat. Brev. 
 192; Co. Litt. 247, 337. 
 
 DUM NON FUITCOMPOS MENTIS (Lat.) 
 The name of a writ which the heirs of a 
 person who was non compos mentis, and who 
 aliened his lands, might have sued out to 
 restore him to his rights. 
 
 DUM RECENS FUIT MALEFICIUM. 
 While the offense was fresh. A term em- 
 ployed in the old law of appeal of rape. 
 Bracton, fol. 147. 
 
 DUM SOLA (Lat. while single or unmar- 
 ried). A phrase applied to single women, 
 to denote that something has been done, or 
 may be done, while the woman is or was 
 unmarried. Thus, when a judgment is ren- 
 dered against a woman dum sola, and after- 
 wards she marries, the scire facias to revive 
 the judgment must be against both husband 
 and wife. 
 
 DUMB BIDDING. In sales at auction, 
 when the amount which the owner of the 
 thing sold is willing to take for the article 
 is written, and placed by the owner under a 
 candlestick, or other thing, and it is agreed 
 that no bidding shall avail unless equal to 
 that, this is called dumb bidding. Bab. 
 Auct. 44. 
 
 DUMMADO (Lat. provided that; so that). 
 A word of limitation in old conveyancing. 
 10 Coke, 41b; Co. Litt. 235a. One of the 
 
 apt words of reserving a rent. Co. Litt. 47a. 
 Dummodo solvent talem redditum, provided 
 he shall pay such a rent. Id. 235a. 
 
 DUNGEON. A cell under ground; a place 
 in a prison built under ground, dark, or 
 but indifferently lighted. In the prisons of 
 the United States there are few or no dun- 
 geons. 
 
 DUNIO. A double; a kind of base coin 
 less than a farthing. 
 
 DUNNAGE. Pieces of wood or other ma- 
 terial placed against the sides and bottom 
 of the hold of a vessel, to preserve the cargo 
 from the effect of leakage, according to its 
 nature and quality. Abb. Shipp. 227. 
 
 DUO NON POSSUNT IN SDLIDO UNAM 
 rem possldere. Two cannot possess one 
 thing each in entirety. Co. Litt. 368; 1 
 Brest. Abstr. 318; 2 Brest. Abstr. 86, 326; 
 2 Dods. Adm. 157; 2 Carth. 76; Broom, 
 Leg. Max. (3d London Ed.) 415. 
 
 DUO SUNT INSTRUMENTA AD OMNES 
 res aut conflrmandas aut impugnandas, — ra- 
 tio et aucoritas. There are two instruments 
 for, confirming or impugning everything, — 
 reason and authority. 8 Coke, 16. 
 
 DUODECEMVIRALE JUDICIUM. The 
 trial by twelve men, or by jury. Applied to 
 juries de medietate linguae. MoUoy, de Jur. 
 Mar. 448. 
 
 DUODECIMA MANUS (Lat. twelve hands). 
 The oaths of twelve men, including himself, 
 by whom the defendant was allowed to make 
 his law. 3 Sharswood, Bl. Comm. 343. 
 
 DUODENA. In old records. A jury of 
 twelve men. Cowell. 
 
 Generally, a dozen. Duodena panis, a 
 dozen of bread. Towns. PI. 170. 
 
 DUODENA MANU. Twplve witnesses to 
 purge a criminal of an offense. 
 
 DUORUM IN SOLIDUM DOMINIUM VEL 
 possessio esse non potest. Ownership or 
 possession in entirety cannot be in two of 
 the same thing. Dig. 13. 6. 5. 15; 1 Mackeld. 
 Civ. Law, 245, § 236; Bracton, 28b. 
 
 DUPLEX QUERELA (Lat.) In ecclesi- 
 astical law. A complaint in the nature of 
 an appeal from the ordinary to his next im- 
 mediate superior for delaying or refusing 
 to do justice in some ecclesiastical cause. 3 
 Bl. Comm. 247; Cowell; Jacob. ^ 
 
 DUPLEX VALOR MARITAGII (Lat. dou- 
 ble the value of a marriage). Guardians in 
 chivalry had the privilege of proposing a 
 marriage for their infant wards, provided 
 it were done without disparagement; and if 
 the wards married without the guardian's 
 consent, they were liable to forfeit double 
 the value of the marriage. Co. Litt. 82b; 2 
 Sharswood, Bl. Comm. 70. 
 
 DUPLICATE (Lat. duplex, double). The 
 double of anything. A document which is 
 
DUPLICATE WILL 
 
 (304) 
 
 DURESSOR 
 
 essentially the same as some other instru- 
 ment. 7 Man. & G. 93. 
 
 A duplicate writing has but one effect. 
 Each duplicate is complete evidence of the 
 intention of the parties. When a duplicate 
 is destroyed, for example, in the case of a 
 will, it is presumed both are intended to 
 be destroyed; but this presumption pos- 
 sesses greater or less force, owing to cir- 
 cumstances. When only one of the dupli- 
 cates is in the possession of the testator, 
 the destruction of that is a strong presump- 
 tion of an intent to revoke both; but if he 
 possessed both, and destroys but one, it is 
 weaker; when he alters one, and after- 
 wards destroys it, retaining the other entire, 
 it has been held that the intention was to re- 
 voke both. 1 P. Wms. 346 ; 13 Ves. 310. But 
 that seems to be doubted. 3 Hagg. Bcc. 548. 
 
 A duplicate differs from a mere copy in 
 having all the validity of an original. 
 
 In English Law. The certificate of 
 
 discharge given to an insolvent debtor who 
 takes the benefit of the act for the relief of 
 insolvent debtors. 
 
 DUPLICATE WILL. A term used in Eng- 
 land, where a testator executes two copies 
 of his will, one to keep himself, and the 
 other to be deposited with another person. 
 Upon application for probate of a duplicate 
 will, both copies must be deposited in the 
 registry of the court of probate. 
 
 DUPLICATIO (Lat.from duplicarc, to dou- 
 ble, or follow as the second in order). 
 
 In the Civil Law. The defendant's 
 
 answer to the plaintiff's replication; cor- 
 responding to the rejoinder of the common 
 law. Inst. 4. 14. 1; Heinec. Elem. Jur. Civ. 
 lib. 4, tit. 14, § 1284. The fourth pleading 
 in the series. 3 Bl. Comm. 310. Trans- 
 lated duplication. Halifax, Anal. bk. 3, c. 
 5, No. 7. 
 
 In Scotch Practice. Duply (g. ■».) 
 
 Bracton and Fleta call this pleading tripli- 
 catio. Bracton, fols. 57b, 400b, 428b; Fleta, 
 lib. 6, c. 36, § 10. 
 
 DUPiLJCATIONEM POSSIBILITATIS 
 lex non patitur. The law does not allow a 
 duplication of possibility. 1 Rolle, Abr. 321. 
 
 DUPLICATUM JUS (Lat. a twofold or 
 double right). Words which signify the 
 same as dreit dreit, or droit droit, and which 
 are applied to a writ of right, patent, and 
 such other writs of right^ as are of the same 
 nature, and do, as it were, flow from it as 
 the writ of right. Booth, Real Actions, 87. 
 
 DUPLICITY (Lat. duplex, twofold; dou- 
 ble). The union of more than one cause of 
 action in one court in a writ, or more than 
 one defense in one place, or more than a 
 single breach in a replication. 1 Woodb. & 
 M, (U. S.) 381. 
 
 DUPLY. In Scotch law. The defendant's 
 answer to the plaintiff's replication. The 
 same as dupUcatio. Macl. Prac. 127. 
 
 To rejoin. "It is duplyed by the panel." 
 3 How. St. Tr. 471. 
 
 DURANTE (Lat. during). A word of lim- 
 itation in old conveyances. Co. Litt. 234b. 
 Durante viduitate, during widowhood; du- 
 rante virginitate, during virginity; durante 
 vita, during life. 
 
 DURANTE ABSENTIA. See "Administra- 
 tion." 
 
 DURANTE BENE PLACITO (Lat. during 
 good pleasure). The ancient tenure of Eng- 
 lish judges was durante l>ene placiio. 1 
 Sharswood, Bl. Comm. 267, 342. 
 
 DURANTE MINORE AETATE (Lat. dur- 
 ing the minority). During his minority an 
 infant can enter into no contracts, except 
 those for his benefit. If he should be ap- 
 pointed an executor, administration of the 
 estate will be granted, durante minore aetate, 
 to another person. 2 Bouv. Inst, note 1555. 
 
 DURANTE VIDUITATE (Lat.) During 
 widowhood. 
 
 DURESS. Personal restraint, or fear of 
 personal injury or imprisonment. 2 Mete. 
 (Ky.) 445. 
 
 Deprivation of one of his freedom of will 
 and act by the unlawful acts of another. 
 
 Duress exists where one is induced by an- 
 other's unlawful act to make a contract or 
 perform some act under circumstances which 
 prevent his exercising free will. 45 Mich. 
 569. 
 
 Duress of Imprisonment. That which 
 
 exists where a man actually loses his liberty. 
 If a man be illegally deprived of his liberty 
 until he sign and seal a bond, or the like, he 
 may allege this duress, and avoid the bond. 
 2 Bay (S. C.) 211; 9 Johns. (N. Y.) 201; 10 
 Pet. (U. S.) 137. But if a man be legally 
 imprisoned, and, either to procure his dis- 
 charge, or on any other fair account, seal a 
 bond or a deed, this is not by duress of im- 
 prisonment, and he is not at liberty to avoid 
 it. Coke, 2d Inst. 482; 3 Caines (N. Y.) 
 168; 6 Mass. 511; 1 Lev. 69; 1 Hen. & M. 
 (Va.) 350; 17 Me. 338. Where the proceed- 
 ings at law are a mere pretext, the instru- 
 ment may be avoided. 1 Bl. Comm. 136. 
 
 Duress per Minas. That which is either 
 
 for fear of loss of life, or else for fear of may- 
 hem or loss of limb, must be upon a suffi- 
 cient reason. 1 Bl. Comm. 131. In this case, 
 a man may avoid his own act. Lord Coke 
 enumerates four instances in which a man 
 may avoid his own act by reason of men- 
 aces, — for fear of loss of life; of member; 
 of mayhem; of imprisonment. Coke, 2d 
 Inst. 483; 2 Rolle, Abr. 124; Bac. Abr. "Du- 
 ress," "Murder" (A); 2 Strange, 856; Fost. 
 Grim. Law, 322; 2 Ld. Raym. 1578; Savigny, 
 Dr. Rom. § 114. 
 
 Duress of Goods. Restraint of goods 
 
 under circumstances of peculiar hardship, 
 which will avoid a contract. 2 Bay (S. C.) 
 211; 9 Johns. (N. Y.) 201; 10 Pet. (U. S.) 137. 
 But see 2 Mete. (Ky.) 445; 2 Gall. (U. S.) 
 337. 
 
 DURESSOR. One who subjects another, 
 to duress; one who compels another to do a 
 thing, as by menace. Bac. Max. 90, reg. 22. 
 
DURSLEGI 
 
 (305) 
 
 DYVOUR'S HABIT 
 
 DURSLEGI, or DURSLEY. In old English 
 law. Blows without wounding or bloodshed ; 
 dry blows or beating. Spelman. 
 
 DUSTY FOOT. See "Court of Piepoudre." 
 
 DUTCH AUCTION. An auction at which 
 the auctioneer fixes a price for the articles 
 offered, which is gradually lowered until 
 accepted. See 18 Hun (N. Y.) 475. 
 
 DUUMVIRI (from duo, two, and viri, men). 
 A general appellation among the ancient 
 Romans, given to any magistrates elected in 
 pairs to fill any office, or perform any func- 
 tion. Brande. 
 
 Duumviri municipales were two annual 
 magistrates in the towns and colonies, hav- 
 ing judicial powers. Calv. Lex. 
 
 Duumviri navales were officers appointed 
 to man, equip, and refit the navy. Id. 
 
 DUX (Lat.) From ducere, to lead. 
 
 In the Roman Law. A leader or mili- 
 tary commander; the commander of an 
 army. Dig. 3. 2. 2. pr. 
 
 In Later Law. A military governor of 
 
 a province. See Code, 1. 27. 2. A military 
 officer having charge of the borders or 
 frontiers of the empire, called dux Hmitis 
 (duces limitumj. Code, 1. 49. 1. pr.; Id. 1. 
 46. 4; Id. 3. 26. 7. At this period, the word 
 began to be used as a title of honor or dig- 
 nity. 
 
 In Feudal and Old European Law. 
 
 Duke; a title of honor or order of nobility. 
 1 Bl. Comm. 397; Crabb, Hist. Bng. Law. 
 236. One who was invested by the prince, 
 with a dukedom or ducal fief (ducatus). 
 Feud. lib. 2, tit. 10. The highest order of 
 capltaiiei rci/is or crown vassals. Id. lib. 1, 
 tit. 1, pr. The origin and history of this 
 title are elaborately treated by Spelman, 
 who observes that it was originally an offi- 
 cial title, afterwards honorary, and finally 
 feudal and hereditary. Dux is used in Brac- 
 ton as descriptive of the first order of sub- 
 jects in the kingdom. Suh eis (reoihm) 
 duces, oomites, barones, etc., under them, 
 dukes, earls, barons, etc. Bracton, fol. 5b. 
 
 DWELL. To have a domicile. 5 Pick. 
 (Mass.) 379. As to one having no domicile, 
 it signifies the place where he temporarily 
 resides. L. R. 1 Exch. 133. 
 
 DWELLING HOUSE. A building inhab- 
 ited by man; a house usually occupied by 
 the person there residing, and his family; 
 the apartment, building, or cluster of build- 
 ings in which a man with his family resides. 
 1 Bish. Grim. Law, § 165. 
 
 The importance of an exact signification 
 for this word is often felt in criminal cases; 
 and yet it is very difficult to frame an exact 
 definition which will apply to all cases. It 
 is said to be equivalent to "mansion house." 
 3 Serg. & R. (Pa.) 199; 4 Strob. (S. C.) 372; 
 13 Bost. Law Rep. 157; 7 Man. & G. 122. 
 See 14 Mees. & W. 181; 4 C. B. 105; 4 Call 
 (Va.) 109. 
 
 It must be a permanent structure (1 Hale, 
 P. C. 557; 1 Russ. Crimes [Greaves Ed.] 
 798), it must be complete (20 Conn. 245), 
 and it must be inhabited at the time (2 
 East, P. C. 496; 2 Leach, C. C. 1018, note; 
 33 Me. 30; 10 Cush. [Mass.] 479; 64 Mass. 
 478; 52 N. C. 167). It is sufficient if a part 
 of the structure only be used for an abode. 
 Russ. & R. 185; 2 Taunt. 339; 1 Moody, C. 
 C. 248; 11 Mete. (Mass.) 295; 9 Tex. 42; 2 
 Bos. & P. 508; 27 Ala. (N. S.) 31. 
 
 Rooms in a tenement house are a dwell- 
 ing. 80 N. Y. 327. 
 
 A jail has been held a dwelling house. 18 
 Johns. (N. Y.) 115; 4 Call (Va.) 109. 
 
 It Includes buildings within the curtilage. 
 16 Mich. 142; 2 N. C. 118. 
 
 DYING DECLARATIONS. Declarations 
 made by one at the point of death, or be- 
 lieving himself to be. They are admissible 
 in evidence only when made by the victim 
 of a homicide (56 N. Y. 103; 35 Ohio St. 
 78) as to facts relating to the homicide to 
 which the dying person could have testi- 
 fied (30 Mich. 431; 124 Mo. 397), and under 
 a full conviction of impending death (126 
 111. 81; 48 Mich. 474). They are admissible 
 only in a prosecution for the killing of the 
 declarant. 49 Iowa, 238. 
 
 DYING WITHOUT ISSUE. Not having 
 issue living at the death of the decedent. 5 
 Paige, Ch. (N. Y.) 514. In England this is 
 the signification, by St. 7 Wm. IV., and St. 
 1 Vict. c. 26, § 29. See 2 Washb. Real Prop. 
 362 et seq. 
 
 DYSNOMY. Bad legislation; the enact- 
 ment of bad laws. 
 
 DYVOUR. In Scotch law. A bankrupt. 
 
 DYVOUR'S HABIT. In Scotch law. A 
 habit which debtors who are set free on a 
 cessio bonorum are obliged to wear, unless 
 in the summons and process of cessio it be 
 libelled, sustained, and proved that the bank- 
 ruptcy proceeds from misfortune. And 
 bankrupts are condemned to submit to the 
 habit, even where no suspicion of fraud lies 
 against them, if they have been dealers in 
 an illicit trade. Ersk. Princ. 4. 3. 13. 
 
E 
 
 (306) 
 
 EASEMENT 
 
 B 
 
 E. In Latin phrases. A preposition mean- 
 ing "from" or "out of." It is used only be- 
 fore a consonant; "ex" being used with the 
 same significance before a vowel. 
 
 E CONVERSO (Lat.) On the other hand; 
 on the contrary. 
 
 EA (Saxon). The water or river; also the 
 mouth of a river on the shore between high 
 and low water mark. 
 
 EA EST ACCIPIENDA INTERPRETATIO, 
 quae vitio caret. That interpretation is to 
 be received which is free from fault. Bac. 
 Max. reg. 3, p. 47. 
 
 EA INTENTIONE (Law Lat.) With that 
 intent. Held not to make a condition, but 
 a confidence and trust. Dyer, 138b. 
 
 EA QUAE COMMENDANDI CAUSA IN 
 venditionibus dicuntur si palam appareant 
 venditorem non obligant. Those things 
 which, by way of commendation, are stated 
 at sales, if they are openly apparent, do not 
 bind the seller. Dig. 18. 43. m. 
 
 EA QUAE DARl I M ROSSI Bl LI A SUNT, 
 vel quae In rerum natura non sunt, pro non 
 adjectis habentur. Those things which can- 
 not be given, or which are not in existence, 
 are held as not expressed. Dig. 50. 17. 135. 
 
 EA QUAE IN CURIA NOSTRA RITE 
 acta sunt debltae execution! demandari de- 
 bent. Those things which are properly trans- 
 acted in our court ought to be committed to 
 a due execution. Co. Litt. 289. 
 
 EA QUAE RARO ACCIDUNT, NON TE- 
 mere in agendisnegotiiscomputantur. Those 
 things which rarely happen are not to be 
 taken into account in the transaction of busi- 
 ness, without sufiicient reason. Dig. 50. 17. 
 64. 
 
 EADEIVl CAUSA DIVERSIS RATIONIBUS 
 coram judicibus ecclesiasticis at secularlbus 
 ventilatur. The same cause is argued upon 
 different principles before ecclesiastical and 
 secular judges. 2 Inst. 622. 
 
 EADEM EST RATIO, EADEM EST LEX. 
 The same reason, the same law. 7 Pick. 
 (Mass.) 493. 
 
 EADEM MENS PRAESUMITUR REGIS 
 quae est juris et quae esse debet, proesertim 
 in dubiis. The mind of th^ sovereign is pre- 
 sumed to be coincident with that of the law, 
 and with that which ought to be, especially 
 in ambiguous matters. Hob. 154; Broom, 
 Leg. Max. (3d London Ed.) 53. 
 
 EAGLE. A gold coin of the United States, 
 of the value of ten dollars. 
 
 EALDER,or EALDING. 
 
 An elder or chief. 
 
 In old Saxon law. 
 
 EALDERMAN (Saxon). A Saxon title of 
 honor. It was a mark of honor very widely 
 applicable, the ealdermen being of various 
 ranks. It is the same as alderman (q. v.) 
 
 EALDOR BISCOP. A chief bishop or arch- 
 bishop. 
 
 EALDORBURG (Saxon). The chief city. 
 
 EALEHUS. An ale house. 
 
 EALHORDA. The privilege of assizing 
 and selling beer. 
 
 EAR WITNESS. One who attests tothings 
 he has heard himself. 
 
 EARL. In English law. A title of nobility 
 next below a marquis, and above a viscount. 
 
 Earls were anciently called comites, be- 
 cause they were wont comitari regem, to 
 wait upon the king for counsel and advice. 
 They were also called "shiremen," because 
 each earl had the civil government of a 
 shire. After the Norman conquest they were 
 called "counts,'f whence the shires obtained 
 the names of counties. They have now noth- 
 ing to do with the government of counties, 
 which has entirely devolved on the sheriff, 
 the earl's deputy, or vice comes. 
 
 EARL MARSHAL. An officer who former- 
 ly was of great repute in England. He held 
 the court of chivalry alone as a court of 
 honor, and, in connection with the lord high 
 constable, as a court having criminal juris- 
 diction. 3 Bl. Comm. 68; 4 Bl. Comm. 467. 
 The duties of the office now are restricted to 
 the settlement of matters of form merely. 
 It would appear, from similarity of duties, 
 and from the derivation of the title, to be a 
 relic of the ancient office of alderman of all 
 England. See "Alderman." 
 
 EARLDOM. The dignity or jurisdiction 
 of an earl. The dignity only remains now, 
 as the jurisdiction has been given over to the 
 sheriff. 1 Bl. Comm. 339. 
 
 EARLES PENNY. Earnest money. 
 
 EARMARK. A mark put upon a thing 
 for the purpose of distinction. Money In a 
 bag tied and labelled Is said to have an 
 earmark. 3 Maule & S. 575. 
 
 EARNEST. The payment of a part of the 
 price of goods sold, or the delivery of part 
 of such goods, for the purpose of binding 
 the contract. , 
 
 EARNINGS. That which is gained or 
 merited by labor, service, or performance. 
 47 Wis. 113. It is a term of larger import 
 than "wages." 102 Mass. 235. See "Gross 
 Earnings." 
 
 EASEMENT. A right in the owner of one 
 parcel of land, by reason of such ownership, 
 to use the land of another for a special pur- 
 
EASEMENT 
 
 (307) 
 
 ECCHYMOSIS 
 
 pose not inconsistent with a general prop- 
 erty in the owner. 2 Washb. Real Prop. 25. 
 
 A privilege, without profit, which the own- 
 er of one adjacent tenement hath of another, 
 existing in respect of their several tene- 
 ments, by which that owner against whose 
 tenement the privilege exists is obliged to 
 suffer or not to do something on or in re- 
 gard to his own land for the advantage of 
 him in whose land the privilege exists. 
 ' Termes de la Ley; Bell, Diet. (Ed. 1838) 
 "Basements," "Servitude;" 1 Serg. & R. 
 (Pa.) 298; 3 Barn. & C. 339; 5 Barn. & C. 
 221; 3 Bing. 118; 2 McCord (S. C.) 451; 3 
 McCord (S. C.) 131, 194; 14 Mass. 49; 3 
 Pick. (Mass.) 408; 47 Md. 301. 
 
 In the civil law, the land against which 
 the privilege exists is called the "servient 
 tenement;" its proprietor, the "servient own- 
 er;" he in whose favor it exists, the "domi- 
 nant owner;" his land, the "dominant tene- 
 ment." And, as these rights are usually not 
 personal, and do not change with the per- 
 sons who may own the respective estates. 
 it is very common to personify the estates 
 as themselves owning or enjoying the ease- 
 ments. 4 Sandf. Ch. (N. Y.) 72; 3 Paige, 
 Ch. (N. Y.) 254; 16 Pick. (Mass.) 522. 
 
 Easements have these essential qualities. 
 There must be two tenements owned by sev- 
 eral proprietors, — the dominant, to which 
 the privilege is attached; the servient, upon 
 which it is imposed. White & T. Lead. Cas. 
 108; 17 Mass. 443. Easements, strictly consid- 
 ered, exist only in favor of, and are imposed 
 only on, corporeal property. 2 Washb. Real 
 Prop. 25. They confer no right to any 
 profits arising from the servient tenement. 
 4 Sandf. Ch. (N. Y.) 72; 4 Pick. (Mass.) 
 145; 5 Adol. & E. 758; 30 Eng. Law & Bq. 
 189; 3 Nev. & P. 257. They are incorporeal. 
 By the common law, they may be temporary ; 
 by the civil law, the cause must be per- 
 petual. They impose no duty on the serv- 
 ient owner, except not to change his tene- 
 ment to the prejudice or destruction of the 
 privilege. Gale, Basem. (3d Ed.) 1-18; 
 Washb. Basem. Index. 
 
 Easements are either (1) positive or (2) 
 negative, the former authorizing the com- 
 mission of acts on the servient estate, and 
 the latter merely forbidding the servient 
 owner from doing some, act to the detriment 
 of the dominant owner, as to build to the ob- 
 struction of his light. 
 
 They are also (3) appurtenant, or (4) 
 in gross, the former running with the land, 
 and the latter attached to a person. 
 
 (5) Quasi easements. "There are rights 
 mentioned in the books as qiiasi easements. 
 (1) Where there has been an easement prop- 
 er, with a dominant and servient tenement, 
 and the ownership of such tenements has 
 been unified. (2) Where the owner of land 
 has constructed a way or drain over one por- 
 tion of it for the benefit of another portion, 
 and there has never been a separate owner- 
 ship of a dominant and servient tenement. 
 This class is again subdivided into those 
 which are called 'continuous,' as a drain or 
 sewer, which are used continuously without 
 the intervention of . man, and those which 
 are called 'noneontinuous,' as a right of way. 
 
 which can only be used by the intervention 
 of man, repeated at intervals when user is 
 desired." Goddard, Basem. 84; 68 N. Y. 66. 
 
 Easements are as various as the exi- 
 gencies of domestic convenience, or the pur- 
 poses to which buildings and land may be 
 applied. 
 
 The following attach to land as incidents 
 or appurtenances, viz.: The right of pas- 
 ture on other land; of fishing in other wa- 
 ters; of taking game on other land; of way 
 over other land; of taking wood, minerals, 
 or other produce of the soil from other land; 
 of receiving air, light, or heat from or over 
 other land; of receiving or discharging water 
 over, or having support to buildings from, 
 other land (3 El., Bl. & El. 655); of going 
 on other land to clear a mill stream, or re- 
 pair its banks, or draw water from a spring 
 there, or to do some other act not involving 
 ownership; of carrying on an offensive trade 
 (2 Bing. N. C. 134; 5 Mete. [Mass.] 8); of 
 burying in a church, or a particular vault 
 (Washb. Basem.; Civ. Code N. Y. pp. 149, 
 150; 8 H. L. Cas. 362; 3 Barn. & A. 735; 11 
 Q. B. 666). 
 
 An easement is distinguished from a li- 
 cense in that it carries an interest, and from 
 a profit o prendre (q. v.) in that it is a privi- 
 lege without profit. 
 
 EAST GREENWICH. The name of a 
 royal manor in the county of Kent, England. 
 Mentioned in royal grants or patents, as de- 
 scriptive of the tenure of free socage. "To 
 be holden of us, our heirs and successors, 
 as of our manor of East Greenwich, in free 
 and common socage." 
 
 EASTER OFFERINGS, or EASTER 
 dues. In English law. Small sums of money 
 paid to the parochial clergy by the parish- 
 ioners at Easter as a compensation for per- 
 sonal tithes, or the tithe for personal labor. 
 2 & 3 Edw. IV. c. 13; 2 & 3 Vict. c. 62, § 9. 
 
 EASTER TERM. In English practice. One 
 of the four terms of the superior courts in 
 England, formerly called the movable term, 
 but now fixed, beginning on the 15th April, 
 and ending on the 8th of May, in every 
 year. St. 11 Geo. IV.; 1 Wm. IV. c. 70; 3 
 Chit. Gen. Prac. 91. 
 
 EASTERLING. A coin struck by Richard 
 II., which is supposed to have given rise to 
 the name of "sterling," as applied to English 
 money. Wharton. 
 
 EAT INDE SINE DIE. Words used on an 
 acquittal, or when a prisoner is to be dis- 
 charged, "that he may go without day;" that 
 is, that he be dismissed. Dane, Abr. Index. 
 
 EAVESDROPPERS. In criminal law. Such 
 persons as wait under walls or windows or 
 the eaves of a house, to listen to discourses, 
 and thereupon to frame mischievous tales. 
 4 qj. Comm. 167. 
 
 EBBA. In old English law. Ebb (of the 
 tide.) FA)ha et fluctus, ebb and flow of tide; 
 ebb and flood. Bracton, fols. 255, 338. 
 
 ECCHYMOSIS. In medical jurisprudence. 
 Blackness. It is an extravasation of blood 
 
ECCLESIA 
 
 (308) 
 
 EDICT 
 
 by rupture of capillary vessels, and hence it 
 follows contusion; but it may exist, as in 
 cases of scurvy and other morbid condi- 
 tions, without the latter. Ryan, Med. Jur. 
 172. 
 
 ECCLESIA (Lat. an assembly). A Chris- 
 tian assembly; a church; a place of religious 
 worship. Spelman. 
 
 ECCLESIA ECCLESIAE DECIMAS SOL- 
 vere non debet. It is not the duty of the 
 church to pay tithes to the church. Cro. 
 Eliz. 479. 
 
 ECCLESIA EST DOMUS MANSIONALIS 
 Omnipotentis Dei. The church is the mansion 
 house of the Omnipotent God. 2 Inst. 164. 
 
 ECCLESIA EST INFRA AETATEM ET 
 In custodia domini regis, qui tenetur jura et 
 haereditates ejusdem manu tenere et defen- 
 dere. The church is under age, and In the 
 custody of the king, who Is bound to uphold 
 and defend its rights and inheritances. 11 
 Coke, 49., 
 
 ECCLESIA FUNGITUR VICE IVIINORIS; 
 mellorem conditionem suam facere potest, 
 deteriorem nequaquam. The church enjoys 
 the privilege of a minor; it can make its 
 own condition better, but not worse. Co. 
 Litt. 341. 
 
 ECCLESIA MAGIS FAVENDUIVI EST 
 quam persjnae. The church is more to be 
 favored than an individual. Godb. 172. 
 
 ECCLESIA NON IVIORITUR. The church 
 does not die. 2 Inst. 3. 
 
 ECCLESIASTIC. A clergyman; one des- 
 tined to the divine ministry; as, a bishop, a 
 priest, a deacon. Domat, Civ. Law, liv. prel. 
 tit. 2, § 2, note 14. 
 
 ECCLESIASTICAL. Pertaining to the 
 church as distinguished from secular or civil. 
 
 ECCLESIASTICAL CO IVIiVI I SS I ON E RS. 
 
 Commissioners established by statute, in 
 England, principally for the purpose of pre- 
 paring schemes for the improvement of the 
 ecclesiastical system, especially as to the 
 equalization of the revenues and duties of 
 the various dioceses, and tp provide for the 
 cure of souls in parishes where assistance 
 was required. Several of such schemes have 
 been given effect to by orders in council. 
 By later acts, a fund has been vested in the 
 commissioners to enable them to make pro- 
 vision for the cure of souls in populous dis- 
 tricts, and provision is accordingly made for 
 the creation of ecclesiastical districts and 
 parishes, and the appointment of ministers 
 therein. Phillim. Bcc. Law, 2090; 2 Steph. 
 Comm. 748; St. 6 & 7 Wm. IV. c. 77; St. 13 
 & 14 Vict. c. 94; St. 29 & 30 .Vict. c. Ill, 
 etc. See "Parish." 
 
 ECCLESIASTICAL CORPORATIONS. 
 
 Such corporations as are composed of per- 
 sons who take a lively interest in the ad- 
 vancement of religion, and who are asso- 
 
 ciated and incorporated for that purpose. 
 Angell & A. Corp. § 36. 
 
 Corporations whose members are spiritual 
 persons are distinguished from lay corpora- 
 tions. 1 Bl. Comm. 470. They are general- 
 ly called "religious corporations" in the 
 United States. 2 Kent, Comm. 274; Ange'l 
 & A. Corp. § 37. 
 
 ECCLESIASTICAL COURTS. In English 
 ecclesiastical law. The generic name for 
 certain courts in England, having cognizance 
 mainly of spiritual matters. Also called 
 "Courts Christian." 
 
 The jurisdiction which they formerly ex- 
 ercised in testamentary and matrimonial 
 causes has been taken away. St. 20 & 21 
 Vict. c. 77, § 3, c. 85, § 2; 21 & 22 Vict. c. 
 95. See 3 Bl. Comm. 67. 
 
 They consist of the archdeacon's court, the 
 consistory courts, the court of arches, the 
 court of peculiars, the prerogative courts of 
 the two archbishops, the faculty court, and, 
 on appeal, the privy council. 
 
 ECCLESIASTICAL LAW. The law of the 
 church. The existence in England of a sep- 
 arate order of ecclesiastical courts, and a 
 separate system of law by them adminis- 
 tered, may Ije traced back to the time of 
 William the Conqueror, who separated the 
 civil and the ecclesiastical jurisdictions, and 
 forbade tribunals of either class from as- 
 suming cognizance of cases pertaining to the 
 other. The elements of the English eccle- 
 siastical law are the canon law, the civil 
 law, the common law of England, and the 
 statutes of the realm. The jurisdiction of 
 the ecclesiastical tribunals extended to- mat- 
 ters concerning the order of clergy and their 
 discipline, and also to such affairs of the 
 laity as "concern the health of the soul," 
 and under this latter theory it grasped also 
 cases of marriage and divorce, and testa- 
 mentary causes. But in very recent times 
 (1830-1858), these latter subjects have been 
 taken from these courts, and they are now 
 substantially confined to administering the 
 judicial authority and discipline incident to 
 a national ecclesiastical establishment. See, 
 also, "Canon Law." 
 
 ECDICUS (Graeco-Lat.) The attorney, 
 proctor, or advocate of a corporation. Epis- 
 coporum ecdici. bishops' proctors; church 
 lawyers. 1 Reeve, Hist. Eng. Law, 65. 
 
 ECHANTILLON. In French law. One of 
 the two parts or pieces of a wooden tally. 
 That in possession of the debtor is properly 
 called the "tally;" the other "echantillon." 
 Poth. Obi. pt. 4, c. 1, art. 2, § 8. 
 
 ECUIVIENICAL. General. 
 
 EDDERBRECHE. In Saxon law. The of- 
 fense of hedge breaking. 
 
 ED EST I A. Buildings. 
 
 EDICT (Lat. edictum). A law ordained by 
 the sovereign, by which he forbids or com- 
 mands something.' It extends either to the 
 whole country, or only to some particular 
 provinces. 
 
 Edicts are somewhat similar to public 
 
EDICTS OF JUSTINIAN 
 
 (309) 
 
 EFTERS 
 
 proclamations. Their difference consists in 
 this, that the former have authority and 
 form of law in themselves, whereas the lat- 
 ter are, at most, declarations of a law before 
 enacted. 
 
 Among the Romans, this word sometimes 
 signified a citation to appear iefore a judge. 
 The edicts of the emperors, also called con- 
 stitutiones principmm, were new laws which 
 they made of their own motion, either to 
 decide cases which they had foreseen, or to 
 abolish or change some ancient laws. They 
 were different from "rescripts" or "decrees," 
 which were answers given in deciding ques- 
 tions brought before them. These edicts con- 
 tributed to the formation of the Gregorian, 
 Hermogenian, Theodosian, and Justinian 
 Codes. See Dig. 1. 4. 1. 1; Inst. 1. 2. 7; 
 Code, 1. 1; Nov. 139. 
 
 EDICTS OF JUSTINIAN. Thirteen con- 
 stitutions or laws of this prince, found in 
 most editions of the Corpus Juris Cirilis, 
 after the Novels. Being confined to matters 
 of police in the provinces of the empire, they 
 are of little use. 
 
 E DICTUM (Lat.) In the Roman law. An 
 edict; a mandate, or ordinance; an ordi- 
 nance, or law, enacted by the emperor with- 
 out the senate, belonging to the class of con- 
 stitutiones principis. Inst. 1. 2. 6. An edict 
 was a mere voluntary constitution of the 
 emperor, differing from a rescript, in not 
 being returned in the way of answer, and 
 from a decree, in not being given in judg- 
 ment, and from both, in not being founded 
 upon solicitation. Tayl. Civ. Law, 233. 
 
 A general order published by the praetor, 
 on entering upon his office, containing the 
 system of rules by which he would adminis- 
 ter justice during the year of his office. Dig. 
 1. 2. 2. 10; Mackeld. Civ. Law, § 35; Tayl. 
 Civ. Law, 214; Calv. Lex. 
 
 EDICTUM PERPETUUM (Lat.) The ti- 
 tle of a compilation of all the edicts. The 
 collection is in fifty books, and was made 
 by Salvius Julianus, a jurist acting by com- 
 mand of Emperor Adrian. 
 
 Parts of this collection are cited in the 
 Digest. 
 
 EDICTUM THEODORICI. This is the first 
 collection of law that was made after the 
 downfall of the Roman power in Italy. It 
 was promulgated by Theodoric, king of the 
 Ostrogoths, at Rome in A. D. 500. It con- 
 sists of 154 chapters, in which we recognize 
 parts taken from the Code and Novellae of 
 Theodosius, from the Codioes Clrefinrianus 
 and Hermogenianus, and the Sententlae of 
 Paulus. The edict was doubtless drawn up 
 by Roman writers, but the original sources 
 are more disfigured and altered than in any 
 other compilation. This collection of law 
 was intended to apply both to the Goths and 
 the Romans, so far as its provisions went; 
 but, when it made no alteration in the Gothic 
 law, that law was still to be in force. Sa- 
 vigny. Hist. Rom. Law; Wharton. 
 
 EDITUS, or AEDITUS (Law Lat.) In old 
 English law. Put forth; published or pro- 
 
 mulgated; passed as a law. Reg. Jud. 22. 
 Contra formam statuti — editi et provisi; 
 against the form of the statute — made and 
 provided. Rast. Entr. 598, 599. 
 
 Brought forth or born, as a child. Brac- 
 ton, fol. 278. 
 
 EFFECTS. Property, or worldly sub- 
 stance. As thus used, it denotes property 
 in a more extensive sense than goods. 2 
 Sharswood, Bl. Comm. 284. It includes all 
 kinds of personalty (9 West. Ilep. 403), un- 
 less limited by context (13 Ves. 39). Wheth- 
 er or not it includes realty depends on the 
 context. In 89 N. C. 447, it was held to in- 
 clude realty. Contra, 15 Mees. & W. 450. 
 
 EFFECTUS SEQUITUR CAUSAM. The 
 
 effect follows the cause. Wingate, Max. 226. 
 
 EFFIGY. The figure or representation of 
 a person. 
 
 To make the effigy of a person with an in- 
 tent to make him the object of ridicule is a 
 libel (g. v.) Hawk. P. C. bk. 1, c. 73, § 2; 
 14 Bast, 227; 2 Chit. Crim. Law, 866. 
 
 In France an execution by effigy or in 
 effigy is adopted in the case of a criminal 
 who has fled from justice. By the public ex- 
 posure or exhibition of a picture or repre- 
 sentation of him on a scaffold, on which his 
 name and the decree condemning him are 
 written, he is deemed to undergo the punish- 
 ment to which he has been sentenced. Since 
 the adoption of the Code Civil, the practice 
 has been to affix the names, qualities, or ad- 
 dition, and the residence, of the condemned 
 person, together with an extract from the 
 sentence of condemnation, to a post set up- 
 right in the ground, instead of exhibiting 
 a portrait of him on the scaffold. 
 
 EFFLUX. Running of time ; expiration by 
 lapse of time. 
 
 EFFLUXION OF TIME. When this 
 phrase is used in leases, conveyances, and 
 other like deeds, or in agreements expressed 
 in simple writing, it indicates the conclu- 
 sion or expiration of an agreed term of 
 years specified in the deed or writing; such 
 conclusioh or expiration arising in the nat- 
 ural course of events, in contradistinction to 
 the determination of the term by the acts 
 of the parties, or by some unexpected or 
 unusual incident or other sudden event. 
 Brown. ' 
 
 EFFORCIALITER (Law Lat.) Forcibly. 
 
 EFFRACTION. 
 
 use of force. 
 
 A breach made by the 
 
 EFFRACTOR. One who breaks through; 
 one who commits a burglary. 
 
 EFFRACTORES. In old English and civil 
 law. Burglars or prison breakers. 
 
 EFFUSIO SANGUINIS (Law Lat.) In old 
 English law. The shedding of blood; the 
 mulct, fine, wite, or penalty imposed for the 
 shedding of blood. Cowell; Tomlln. See 
 "Bloodnit." 
 
 EFTERS. In Saxon law. Ways, walks, or 
 hedges. Blount. 
 
EGALITY 
 
 (310) 
 
 EJECTMENT 
 
 EGALITY. Owelty (q. v.) Co. Litt. 169a. 
 
 EGO, TALIS. I, such a one. Used in old 
 forms to indicate where the name and de- 
 scription of a party should be inserted. 
 
 EGREDIENS ET EXEUNS (Law La:t.) In 
 old pleading. Going forth and issuing out 
 of land. Towns. PI. 17. 
 
 El INCUMBIT PROBATIO QUI DIGIT, 
 non qui negat. The burden of the proof lies 
 upon him who affirms, not he who denies. 
 Dig. 22. 3. 2; Tait, Bv. 1; 1 Phil. Bv. 194; 1 
 Greenl. Ev. § 74; 3 La. 83; 2 Daniell, Gh. 
 Prac. 408; 4 Bouv. Inst, note 4411. 
 
 El NIHIL TURPE, GUI NIHIL SATIS. 
 
 Nothing is base to whom nothing is suffi- 
 cient. 4 Inst. 53. 
 
 El A, or EY. An island. So called, accord- 
 ing to Spelman, from a supposed resemblance 
 to an egg or eye. 
 
 EIGNE. A corruption of the French word 
 aine. Eldest or first-born. 
 
 It is frequently used in our old law books. 
 Bastard eigne signifies an elder bastard when 
 spoken of two children, one of whom was 
 born before the marriage of his parents, and 
 the other after. The latter is called mulier 
 puisne. Litt. § 399. 
 
 EIK. In Scotch law. An addition; as, eik 
 to a reversion, eilc to a confirmation. Bell, 
 Diet. 
 
 EINECIA. Eldership; the right or priv- 
 ilege of the first born. 
 
 EINETIUS, EINSNE, or EIGN. In English 
 law. The oldest; the first-born. Spelman. 
 
 EIRE, or EYRE. In English law. A jour- 
 ney. 
 
 Justices in eyre were itinerant judges, 
 who were sent once in seven years with a 
 general commission into divers counties, to 
 hear and determine such causes as were 
 called "pleas of the crown." See "Justices 
 in Eyre." 
 
 EIRENARCHA. A name formerly given to 
 a justice of the peace. Bac. Works, IV. 316. 
 In the Digests, the word is written "irenar- 
 eha." 
 
 EISDEM MODIS DISSOLVITUR OBLIGA- 
 tio quae nascitur ex contractu, vel quasi, 
 quibus contrahltur. An obligation which 
 arises from contract, or quasi contract. Is 
 dissolved in the same ways in which It is 
 contracted. Fleta, lib. 2, c. 60, § 19. 
 
 EISNETIA, or EINETIA (Lat.) The share 
 of the oldest son; the portion acquired by 
 primogeniture. Termes de la Ley; Co. Litt. 
 166b; Cowell. 
 
 EJECTA. A woman ravished or deflow- 
 ered, or cast forth from the virtuous. 
 Blount. 
 
 EJEGTIONE CUSTODIAE (Lat.) A writ 
 which lay for a guardian to recover the land 
 or person of his ward, or both, where he had 
 
 been deprived of the possession of them. 
 Fitzh. Nat. Brev. 139 (L) ; Co. Litt. 199. 
 
 EJEGTIONE FIRMAE (Lat. ejectment 
 from a farm). This writ lay where lands 
 or tenements were let for a term of years, 
 and afterwards the lessor, reversioner, re- 
 mainderman, or a stranger ejected or ousted 
 the lessee of his term. The plaintifE, if he 
 prevailed, recovered the term with damages. 
 This writ is the original foundation of the 
 action of ejectment. 3 Sharswood, Bl. Comm. 
 199; Fitzh. Nat. Brev. 220 (F), (G); Gib- 
 son, Eject. 3; Stearns, Real Actions, 53, 400. 
 
 EJECTMENT (Lat. e, out of, jacere, to 
 throw, cast; ejicere, to cast out, to eject). 
 In practice. A form of action by which 
 possessory titles to corporeal hereditaments 
 may be tried, and possession obtained. 
 
 A form of action which lies to regain the 
 possession of real property, with damages for 
 the unlawful detention. 
 
 In its origin, this action was an action of 
 trespass which lay for a tenant for years, 
 to recover damages against a person who 
 had ousted him of his possession without 
 right. To the judgment for damages, the 
 courts soon added a judgment for possession, 
 upon which the plaintifE became entitled to 
 a writ of possession. As the disadvantages 
 of real actions as' a means of recovering 
 lands for the benefit of the real owner from 
 the possession of one who held them without 
 title became a serious obstacle to their use, 
 this form of action was taken advantage of 
 by RoUe, C. J., to accomplish the same re- 
 sult. 
 
 In the original action, the plaintiff had 
 been obliged to prove a lea^e from the per- 
 son shown to have title, an entry under the 
 lease, and an ouster by some third person. 
 The modified action as sanctioned by Rolls 
 was brought by a fictitious person as lessee 
 against another fictitious person (the casual 
 ejector) alleged to have committed the oust- 
 er. Service was made upon the tenant in 
 possession, with a notice annexed from the 
 casual ejector to appeal and defend. If the 
 tenant failed to do this, judgment was given 
 by default, and the claimant put in posses- 
 sion. If he did appear, he was allowed to 
 defend only by entering Into the consent 
 rule, by which he confessed the fictitious 
 lease, entry, and ouster to have been made, 
 leaving only the title in question. The ten- 
 ant, by a subsequent statute, was obliged, 
 under heavy penalties, to give notice to his 
 lessor of the pendency of the action. 
 
 The action has been superseded in England 
 by a form prescribed by the common law 
 procedure act (1852, §§ 170-220), and has 
 been materially modified in many of the 
 states of the United States, though still re- 
 taining the name; but Is retained in its 
 original form in others, and in the United 
 States courts for those states In which it 
 existed when the circuit courts were organ- 
 ized. In some of the United States it has 
 never been in use. See 3 Sharswood, Bl. 
 Comm. 198-207; 1 Washb. Real Prop. (4th 
 Ed.) 433. 
 
EJECTUM 
 
 (311) 
 
 ELECTIONES FIANT, ETC. 
 
 EJECTUM. That which is thrown up by 
 the sea. 1 Pet. Adm. (U. S.) 43. 
 
 EJECTUS. In old English law. A pimp 
 or whoremonger. 
 
 EJERCITORIA. In Spanish law. The ac- 
 tion which lies against the owner of a ves- 
 sel for debts contracted by the master, or 
 contracts entered into by him, for the pur- 
 pose of repairing, rigging, and victualling 
 the same. 
 
 EJIDOS (Spanish). Commons. 15 Cal. 
 
 554.- 
 
 EJURARE. In feudal law. To abjure, re- 
 nounce, or disclaim by oath. 
 
 EJUS EST INTERPRETARI CUJUS EST 
 condere. It is his to interpret whose it is 
 to enact. Tayl. Civ. Law, 96. 
 
 EJUS EST NOLLE, QUI POTEST VELLE. 
 
 He who can will [exercise volition] has a 
 right' to refuse to will [to withhold consent]. 
 Dig. 50. 7. 3. 
 
 EJUS EST NON NOLLE QUI POTEST 
 velle. He may consent tacitly who may con- 
 sent expressly. Dig. 50. 17. 3. 
 
 EJUS EST PERICULUM CUJUS EST Do- 
 minium aut commodum. He has the risk who 
 has the right of property or advantage. 
 
 EJUS NULLA CULPA EST CUI PARERE 
 necesse sit. No guilt attaches to him who is 
 compelled to obey. Dig. 50. 17. 169. 
 
 EJUSDEM GENERIS (Lat.) Of the same 
 kind. 
 
 In the construction of laws, wills, and 
 other instruments, when certain things are 
 enumerated, and then a phrase is used 
 which might be construed to include other 
 things, it is generally confined to things 
 ejusdem generis. Thus, "clerical or other 
 defects" includes only formal defects (40 
 Barb. [N. Y.] 574), and a statute providing 
 for relief to women whose husbands fail to 
 support them "from drunkenness, profligacy, 
 or any other cause," means only causes of 
 similar nature, and does not include physical 
 incapacity. 20 Wis. 682. 
 
 ELABORARE (Law Lat.) In old Euro- 
 pean law. To gain, acquire, or purchase, as 
 by labor and industry. Elaboratus, property 
 acquired by labor. Spelman. 
 
 ELDER BRETHREN. See "Trinity Mas- 
 ters." 
 
 ELDERTITLE. That of two titles coming 
 simultaneously into conflict which is of earli- 
 er date. 
 
 ELECTA UNA VIA, NON DATUR RE- 
 cursus ad alteram. When there is concur- 
 rence of means, he who has chosen one can- 
 not have recourse to another. 10 Toullier, 
 Dr. Civ. note 170. 
 
 ELECTIO EST INTIMA [INTERNA], Li- 
 bera, et spontanea separatio unius rei ab 
 alia, sine compulsione, consistens in animo 
 et voluntate. Election is an internal, free. 
 
 and spontaneous separation of one thing 
 from another, without compulsion, consist- 
 ing in intention and will. Dyer, 281. 
 
 ELECTIO SEIVIEL FACTA, ET PLACIT- 
 um testatum, non patitur regressum. Elec- 
 tion once made, and plea witnessed, suffers 
 not a recall. Co. Lift. 146. 
 
 ELECTION. Choice; selection. The se- 
 lection of one man from among more, to 
 discharge certain duties in a state, corpora- 
 tion, or society. 
 
 The obligation imposed upon a party to 
 choose between two inconsistent or alterna- 
 tive rights or claims, in cases where there 
 is clear intention of the person from whom 
 he derives one that he should not enjoy both. 
 
 Of Officers. The choice of officers of 
 
 a public or private body by the votes of the 
 members, or a class thereof. It differs from 
 "appointment," which implies the conferring 
 of official station by one or more persons 
 having power to represent the body in that 
 regard. 25 Md. 215. 
 
 Of Rights. The right or duty of one 
 
 who, by contract or donation, is entitled to 
 two or more rights in the alternative, to 
 select that which he will accept as a sub- 
 stitute for the others. One form of this, 
 sometimes known as "equitable election," 
 arises when an instrument gives a right 
 coupled with a burden, the donee of the 
 right having an election whether to accept 
 the same omii onere, but being compelled to 
 accept thus, if at all. 
 
 Of Remedies. The choice between 
 
 two or more coexisting and inconsistent rem- 
 edies for the same wrong. 2 Story, Eq. Jur. 
 § 1078. 
 
 Between Criminal Charges. Thechoice 
 
 by a public prosecutor upon which of several 
 offenses charged in a single indictment he 
 will go to the jury. 
 
 ELECTION AUDITORS. In English law. 
 Officers annually appointed, to whom was 
 committed the duty of taking and publishing 
 the account of all expenses incurred at par- 
 liamentary elections. See 17 & 18 Vict. c. 
 102, §§ 18, 26-28. But these sections have 
 been repealed by 26 Vict. c. 29, which throws 
 the duty of preparing the accounts on the de- 
 clared agent of the candidate, and the duty 
 of publishing an abstract of it on the return- 
 ing officer. Wharton. 
 
 ELECTION JUDGES. In English law. 
 Judges of the high court, selected in pur- 
 suance of 31 & 32 Vict. c. 125, § 11, and Judi- 
 cature Act 1873, § 38, for the trial of election 
 petitions. 
 
 ELECTION PETITIONS. Petitions for in- 
 quiry into the validity of elections of mem- 
 bers of parliament, when it is alleged that 
 the return of a member is invalid for bribery, 
 or any other reason. These petitions are 
 heard by a judge of one of the common-law 
 divisions of the high court. Pari. El. Act 
 1868; Judicature Act 1873, § 38. 
 
 ELECTIONES FIANT RITE ET LIBERE 
 sine interruptione aliqua. Elections should 
 
ELECTIVE 
 
 (312) 
 
 ELONGAVIT 
 
 be made in due form, and freely, without 
 any interruption. 2 Inst. 169. 
 
 ELECTIVE. Pertaining to elections, as 
 the elective franchise. 
 
 Dependent on election, as an elective of- 
 fice. 
 
 ELECTOR. One who has the right to make 
 choice of public officers; one who has a right 
 to vote. See 10 Minn. 107; 53 Wis. 45. 
 
 ELECTORS OF PRESIDENT. Persons 
 elected by the people, whose sole duty is to 
 elect a president and vice president of the 
 United States. Const, art. 2, § 1; Const, 
 amend, art. 2. 
 
 ELEEMOSYNA REGIS (or ARATRI, or 
 carucarum). A penny which King Ethelred 
 ordered to be paid for every plow in England 
 towa,rds the support of the poor. 
 
 ELEEMOSYNAE. 
 
 church. Blount. 
 
 Possessions of the 
 
 ELEEMOSYNARIA. The place in a re- 
 ligious house where the common alms were 
 deposited, and thence by the almoner dis- 
 tributed to the poor. 
 
 In Old English. The aumerie, aumbry, 
 
 or amhry ; words still used in common speech 
 in the north of England to denote a pantry 
 or cupboard. Cowell. 
 
 The office of almoner. Cowell. 
 
 ELEEMOSYNARIUS (Uat.) An almoner. 
 There was formerly a lord almoner to the 
 kings of England, whose duties are described 
 in Pleta, lib. 2, c. 23. A chief officer who 
 received the eleemosynary rents and gifts, 
 and in due method distributed them to pious 
 and charitable uses. Cowell. 
 
 ELEEMOSYNARY CORPORATIONS. 
 
 Such private corporations as are instituted 
 for purposes of charity, their object being 
 the perpetual distribution of the bounty of 
 the founder of them /to such persons as he 
 directed. Of this kind are hospitals for the 
 relief of the impotent, indigent, sick, and 
 deaf or dumb. Angell & A. Corp. § 39; 1 
 Kyd, Corp, 26; 4 Conn. 272; 3 Bland, Ch. 
 (Md.) 407; 1 Ld. Raym. 5; 2 Term R. 346. 
 The distinction between ecclesiastical and 
 eleemosynary corporations is well illustrated 
 in the Dartmouth College Case, 4 Wheat. (U. 
 S.) 681. See, also, Angell & A. Corp. § 39; 
 1 Sharswood, Bl. Comm. 471. 
 
 ELEGANTER (Lat.) In the civil law. Ac- 
 curately; with discrimination. 3 Story (U. 
 S.) 611, 636. 
 
 ELEGIT (Lat. dirjere, to choose). A writ 
 of execution directed to 'the sheriff, com- 
 manding him to make delivery of a moiety 
 of the party's land and all his goods, beasts 
 of the plough only excepted. The sheriff, on 
 receipt of the writ, holds an inquest to as- 
 certain the value of the lands and goods he 
 has seized, and then they are delivered to 
 the plaintiff, who retains them until the 
 whole debt and damages have been paid and 
 satisfied. During that term he is called 
 
 "tenant by elegit." Co. Litt. 289. See Pow- 
 ell, Mortg. Index; Watson, Sheriffs, 206; 1 C. 
 B. (N. S.) 568. 
 
 The name was given because the plaintiff 
 has his choice to accept either this writ or 
 a fi. fa. 
 
 By statute, in England, the sheriff is now 
 to deliver the whole estate instead of the 
 half. See 3 Sharswood, Bl. Comm. 418, note. 
 The writ is still in use in the United States 
 to some extent, and with somewhat different 
 modifications in the various states adopting 
 it. 4 Kent, Comm. 431, 436; 10 Grat. (Va.) 
 580; 1 Hilliard, Abr. 555, 556. 
 
 ELEMENTS. "Damage by the elements" 
 has been held synonymous with "damage by 
 act of God." "The elements are the means 
 by which God acts." 35 Cal. 416. 
 
 ELIMINATION. Banishment; expulsion. 
 
 ELINGUATION. The punishment of cut- 
 ting out the tongue. 
 
 ELISORS. In practice. Two persons ap- 
 pointed by the court to return a jury, when 
 the sheriff and the coroner have been chal- 
 lenged as incompetent. In this case, the 
 elisors return the writ of venire directed to 
 them, with a panel of the jurors' names, and 
 their return is final, no challenge being al- 
 lowed to their array. 3 Bl. Comm. 355; 1 
 Cow. (N. Y.) 32; 3 Cow. (N. Y.) 296. 
 
 ELOGIUM (Lat.) In civil law. A will or 
 testament. 
 
 ELOIGN, or ELOIGNE. To remove to a 
 distance. See "Elongata." 
 
 ELONGATA. In practice. The return 
 made by the sheriff to a writ of replevin, 
 when the goods have been removed to places 
 unknown to him. See, for the form of this 
 return, Watson, Sheriffs, Append, c. 18, § 3, 
 p. 454; 3 BL Comm. 148. 
 
 On this return, the plaintiff is entitled to 
 a capias in withernam. See "Withernam;" 
 Watson, Sheriffs, 300, 301. The word eloigns 
 is sometimes used as synonymous with elon- 
 gata. 
 
 ELONGATUS. A return to a writ de hoinine 
 replegiando, that the man was out of the 
 sheriff's jurisdiction. 
 
 ELONGAVIT. In England, where, In a 
 proceeding by foreign attachment, the plain- 
 tiff has obtained judgment of appraisement, 
 but by reason of some act of the garnishee 
 the goods cannot be appraised (as where he 
 has removed them from the city, or has sold 
 them, etc.), the serjeant-at-mace returns that 
 the garnishee has eloignetl them, /. c, re- 
 moved them out of the jurisdiction, and on 
 this return (Called an "elongavit") judg- 
 ment is given for the plaintiff that an inquiry 
 be made of the goods eloigned. This m- 
 quiry is set down for trial, and the assess- 
 ment is made by a jury after the manner of 
 ordinary issues. Brant. For. Att. 124. The 
 proceedings on the inquiry are also some- 
 times called the "elongaiit." 
 
ELOPEMENT 
 
 (313) 
 
 EMENDATIO 
 
 ELOPEMENT. The departure of a married 
 woman from her husband, and dwelling with 
 an adulterer. Cowell; Blount; Tomlin. 
 
 ELUVIONES. Spring tides. 
 
 EMANCIPATION. An act by which a per- 
 son who was once in the power of another is 
 rendered free. 
 
 This is of importance mainly in relation 
 to the emancipation of minors from the 
 parental control. See 3 Term R. 355; 6 Term 
 R. 247; 8 Term R. 479; 3 Bast, 276; 10 East, 
 88; 11 Vt. 258, 477. See Cooper, Just. Inst. 
 441, 480; 2 Ball. (Pa.) 57, 58; Civ. Code 
 La. bk. 1, tit. 8, c. 3; Perriere, Diet, de Jur.; 
 15 Mass. 272; 8 Cow. (N. Y.) 184. 
 
 EMBARGO. A proclamation, or order of 
 state, usually issued in time of war or threat- 
 ened hostilities, prohibiting the departure of 
 ships or goods from some or all the ports of 
 such state, until further order. 2 Wheat. (U. 
 S.) 148. It is in its nature and policy a tem- 
 porary measure. 5 Johns. (N. Y.) 308. It 
 is sometimes on the citizens of the power 
 ordering it; sometimes on a foreign power as 
 a means of coercing a settlement of diffi- 
 culties that have not yet culminated In war, 
 or of preparation for impending war. The 
 former is called "civil," the latter "hostile," 
 embargo. 
 
 EMBASSAGE, or EMBASSY. The mes- 
 sage or commission given by a sovereign or 
 state to a minister, called an "ambassador," 
 empowered to treat or communicate with an- 
 other sovereign or state; also the establish- 
 ment of an ambassador. 
 
 EMBEZZLEMENT. The wrongful and 
 fraudulent appropriation of property to his 
 own use by one to whom it has been en- 
 trusted by or for the owner. 
 
 A breach of trust is the essence of the of- 
 fense. To constitute embezzlement, the per- 
 son appropriating the property must hold a 
 relation of trust towards the owner, by vir- 
 tue of which he had possession of such prop- 
 erty. 31 Cal. 108; 68 Iowa, 593; 110 Mo. 
 209. 
 
 The appropriation must be with fraudu- 
 lent intent, and by this embezzlement is dis- 
 tinguished from mere tortious conversion. 
 82 111. 425; 78 Ga. 340; 62 Mich. 276; 50 N. 
 J. Law, 475. 
 
 The oifense is a purely statutory one, and 
 by many of the statutes is denominated "lar- 
 ceny," but it is commonly known as "em- 
 bezzlement," and is distinct from larceny at 
 common law, one of the essentials of which 
 was a wrongful taking from 'the possession 
 of the owner. 
 
 EMBLEMENTS. Crops. 65 Cal. 458. The 
 growing crops of those vegetable productions 
 of the soil which are not spontaneous, but 
 require an outlay of cost and labor in one 
 part of the year, the recompense for which 
 is to arise in the shape of a crop in another 
 part of the same year. The produce of grass, 
 trees, and the like is not included. 76 Ind. 
 531. 
 
 EMBLERS DE GENTZ (LawFr.) A steal- 
 
 ing from the people. The phrase occurs in 
 the old rolls of parliament: "Whereas divers 
 murders, emhlers de gentz, and robberies are 
 committed," etc. Rot. Pari. 21 Edw. III. note 
 62. 
 
 EMBRACEOR. In criminal law. He who, 
 when a matter is on trial between party and 
 party, comes to the bar with one of the par- 
 ties, and, having received some reward so to 
 do, speaks in the case, or privily labors the 
 jury, or stands there to survey or overlook 
 them, thereby to put them in fear and doubt 
 of the matter. But persons learned in the 
 law may speak in a case for their clients. 
 Co. Lift. 369; Termes de la Ley. 
 
 EMBRACERY. In criminal law. An at- 
 tempt to corrupt or influence a jury, or any 
 way incline them to be more favorable to 
 one side than to the other, by money, prom- 
 ises, threats, or i>ersuasions, whether the 
 juror on whom such attempt is made give 
 any verdict or not, or whether the verdict 
 be true or false. Hawk. P. C. 259; Bac. Abr. 
 ".Juries" (M 3); Co. Lift. 157b, 369a; Hob. 
 294; Dyer, 84a, pi. 19; Noy, 102; 1 Strange, 
 643; 11 Mod. Ill, 118; Comyn, Dig. 601; '5 
 Cow. (N. Y.) 503. 
 
 EMBRING (or EMBER) DAYS. In eccle- 
 siastical law. Those days which the ancient 
 fathers called "quatuor tempora jejunii" are 
 of great antiquity in the church. They are 
 observed on Wednesday, Friday, and Satur- 
 day next after Quadragesima Sunday, or the 
 first Sunday in Lent, after Whitsuntide, 
 Holyrood Day, in September, and St. Lucy's 
 Day, about the middle of December. Brltt. 
 c. 53. Our almanacs call the weeks in which 
 they fall the "Ember Weeks," and they are 
 now chiefly noticed on account of the ordina- 
 tion of priests and deacons; because the 
 canon appoints the Sundays next after the 
 Ember weeks for the solemn times of ordi- 
 nation, though the bishops, if they please, 
 may ordain on any Sunday or holiday. Enc. 
 Lond. 
 
 EMENDA (Lat.) Amends; that which is 
 given in reparation or satisfaction for a 
 trespass committed, or, among the Saxons, a 
 compensation for a crime. Spelman. 
 
 EMENDALS. In English law. This an- 
 cient word Is said to be used in the accounts 
 of the inner temple, where so much in emen- 
 dals at the foot of an account signifies so 
 much in bank, in stock, for the supply of 
 emergencies. Cunningham. 
 
 EM EN DA RE (Law Lat.) In Saxon law. 
 To make amends or satisfaction for any 
 crime or tr'espass committed; emendam solv- 
 ere, to pay a flne; to be fined. Spelman. 
 Emendare se, to redeem, or ransom one's life, 
 by payment of a weregild. 
 
 To repair. Reg. Grig. 44b. 
 
 EMENDATIO (Lat.) 
 
 In Old English Law. Amendment, or 
 
 correction; the power of amending and cor- 
 recting abuses, according to certain rules and 
 measures. Cowell. 
 
 In Saxon Law. A pecuniary satisfac- 
 
EMENDATIO PANIS, ETC. 
 
 (314) 
 
 EMPLOYMENT 
 
 tion for an injury; the same as emenda (q. 
 V.J Spelman. 
 
 EMENDATIO PANIS ET CEREVISIAE. 
 
 The power of supervising and correcting the 
 weights and measures of bread and ale. 
 Cowell. 
 
 EMERGE (Lat.) To arise; to come to 
 light. 
 
 EMIGRANT. One who quits his country 
 for any lawful reason, with a design to set- 
 tle elsewhere, and who takes his family and 
 property, if he has any, with him. Vattel, 
 bk. 1, c. 19, § 224. See "Emigration." 
 
 EMIGRATION. The act of removing from 
 one place to another. 
 
 It is sometimes used in the same sense as 
 "expatriation," but there is some difference 
 in the signification. Expatriation is the act 
 of abandoning one's country; while emigra- 
 tion is, perhaps not strictly, applied to the 
 act of removing from one part of the coun- 
 try to another. See 2 Kent, Comm. 36. 
 
 EMINENT DOMAIN. The power to take 
 private property for public use, whether ex- 
 ercised by the sovereign directly, or by one 
 to whom the sovereign power has been dele- 
 gated for quasi public purposes. 
 
 The superior right of property subsisting 
 in a sovereignty, by which private property 
 may in certain cases be taken or its use 
 controlled for the public benefit, without re- 
 gard to the wishes of the owner. 
 
 The highest and most exact idea of prop- 
 erty remaining in the government, or in the 
 aggregate bbdy of the people in their sover- 
 eign capacity, giving a right to resume the 
 possession of the property in the manner 
 directed by the constitution and the laws of 
 the state whenever the public good requires 
 it. 3 Paige, Ch. (N. Y.) 73. 
 
 The term was originated by Grotius (De 
 Jure Belli, lib. 3, c. 20, VII.) 
 
 EMISSION. In medical jurisprudence. The 
 act by which any matter whatever is thrown 
 from the body; thus, it is usual to say, emis- 
 sion of urine, emission of semen, etc. 
 
 EMIT. To put out; to send forth. 
 
 The tenth section of the first article of 
 the constitution contains various prohibi- 
 tions, among which is the following: "No 
 state shall emit bills of credit." To emit 
 bills of credit is to issue paper intended to 
 circulate through the community for its or- 
 dinary purposes, as money, which paper is 
 redeemable at a future day. 4 Pet. (U. S.) 
 410, 432; 11 Pet. (U. S.) 257; Story, Const. § 
 1358. 
 
 EMMENAGOGUES. In medical jurispru- 
 dence. The name of a class of medicines 
 which are believed to have the power of 
 - favoring the discharge of the menses. They 
 are sometimes used for the criminal purpose 
 of producing abortion (g. v.) 1 Beck, Med. 
 Jur. 316; Dungl. Med. Diet; Parr, Med. 
 Diet.; 3 Paris & F. Med. Jur. 88. 
 
 EMOLUMENT. Any pecuniary advantage. 
 
 profit, or gain arising from the possession 
 of an office. It imports more than "salary" 
 or "fees," and includes any perquisite, ad- 
 vantage, profit, or gain arising from the pos- 
 session of an office. 105 Pa. St. 303. 
 
 EMOTIONAL INSANITY. The species of 
 mental aberration produced by a violent ex- 
 citement of the emotions or passions, though 
 the reasoning faculties may remain unim- 
 paired. 
 
 EMPALEMENT. In ancient law. A mode 
 of inflicting punishment by thrusting a sharp 
 pole up the fundament. Enc. Lond. 
 
 EMPANNEL. See "Impannel." 
 
 EMPARLANCE. See "Imparlance." 
 
 EMPARNOURS (Law Pr.) Undertakers 
 of suits. Kelham. 
 
 EMPEROR. This word is synonymous 
 with the Latin imperator. They are both 
 derived from the verb imperare. Literally, 
 it signifies "he who commands." 
 
 Under the Roman republic, the title "em- 
 peror" was the generic name given to the 
 commanders-in-chief in the armies. But 
 even then the application of the word was 
 restrained to the successful commander, who 
 was declared emperor by the acclamations 
 of the army, and was afterwards honored 
 with the title by a decree of the senate. 
 
 It is now used to designate some sovereign 
 prince who bears this title. Ayliffe, Pand. 
 tit. 23. 
 
 EMPHYTEOSIS. In civillaw. The name 
 of a contract by which the owner of an un- 
 cultivated piece of land granted it to anoth- 
 er, either in perpetuity, or for a long time, 
 on condition that he should improve it by 
 building, planting, or cultivating it, and 
 should pay for it an annual rent, with a 
 right to the grantee to alienate it, or trans- 
 mit it by descent to his heirs, and under a 
 condition that the grantor should never re- 
 enter as long as the rent should be paid to 
 him by the grantee or his assigns. Inst. 3. 
 25. 3; 18 Toullier, Dr. Civ. note 144. 
 
 EMPHYTEUTA. The grantee under a 
 contract of emphyteusis or emphyteosis. Vi- 
 cat; Calv. Lex.; 1 Hallam, Mid. Ages, c. 2, 
 p. 1. 
 
 EMPHYTEUTICUS. In the civil law. 
 Pounded on, growing out of, or having the 
 character of, an emphyteusis ; held under an 
 em,phyteusis. 3 Bl. Comm. 232; Calv. Lex. 
 
 EMPLAZAMIENTO. In Spanish law. The 
 citation given to a person by order of the 
 judge, and ordering him to appear before 
 his tribunal on a given day and hour. 
 
 EMPLEAD. See "Implead." 
 
 EMPLOYE. One who is employed. The 
 term is general, but is rarely applied either 
 to common laborers or to the higher officers 
 of a corporation. 66 Wis. 481; 109 N. Y. 631. 
 
 EMPLOYMENT. A business or vocation. 
 16 Ala. 411. The service of another. 72 
 Me. 455. 
 
EMPRESTIDO 
 
 (315) 
 
 ENDOWMENT 
 
 EMPRESTIDO. In Spanish law. A loan; 
 something lent to the borrower at his re- 
 quest. Las Partidas, pt. 3, tit. 18, lib. 70. 
 
 EMPTIO, or EMPTOR (Lat. emere.to buy). 
 Emptio, a buying; emptor, a buyer; emptio 
 et venditio, buying and selling. 
 
 In Roman Law. The name of a con- 
 tract of sale. Du Cange; Vicat. 
 
 EMPTIO BONORUM. In the Roman law. 
 The assignment of the estate and effects of 
 an insolvent debtor, whether during his life 
 or after his death, to a trustee for his cred- 
 itors. Justinian deprived it of all its cum- 
 brous formalities, but retained its effect, 
 which is simply or very nearly 1;hat of an 
 assignment upon bankruptcy in English law. 
 
 EMPTIO ET VENDITIO (Lat. buying and 
 selling). In Roman law. The contract of 
 sale. Sometimes it was compounded, — emp- 
 tio-venditio. 
 
 EMPTOR (Lat.) Buyer. 
 
 EMPTOR EMIT QUAM MINIMO POTEST, 
 venditor vendit quam maximo potest. The 
 buyer buys for as little as possible; the 
 vendor sells for as much as possible. 2 
 Johns. Ch. (N. Y.) 252, 256, 486. 
 
 EN AUTRE DROIT. (Fr.) In the right of 
 another. 
 
 EN BANKE (Law Fr.) In the bench. 1 
 And. 51. 
 
 EN DEMEURE (Fr.) In default. Used in 
 Louisiana. 3 Mart. (La.; N. S.) 574. 
 
 EN ESCHANGE IL COVIENT QUE LES 
 estates soient egales. In an exchange it is 
 necessary that the estates be equal. Co. Litt. 
 50; 2 Hilliard, Real Prop. 298. 
 
 EN GROS (Fr.) In gross; by wholesale. 
 Britt. c. 21. 
 
 EN JUICIO (Spanish). Judicially; in a 
 court of law; in a suit at law. White, New 
 Recop. bk. 2, tit. 8, c. 1. 
 
 EN MORT MEYNE (Law Fr.) In a dead 
 hand; in mortmain. Britt. c. 43. 
 
 EN OWEL MAIN (Law Fr.) In equal 
 hand. The word "owel" occurs also in the 
 phrase "owelty of partition." See 1 Washb. 
 Real Prop. 427. 
 
 EN VENTRE SA MERE (Fr.) In its 
 mother's womb. For certain purposes, as of 
 inheritance, etc., a child en ventre sa mere 
 is to be considered as in being. 
 
 EN VIE (Law Fr.) In life; alive. Britt. 
 c. 50. 
 
 ENABLING POWERS. A term used in 
 equity. When the donor of a power, who is 
 the owner of the estate, confers upon per- 
 sons not seised of the fee the right of cre- 
 ating interests to take effect out of it, 
 which could not be done by the donee of the 
 power unless by such authority, this is called 
 an "enabling power." 2 Bouv. Inst, note 
 
 1628; 2 Bl. Comm. 319; Co. Litt. 44a; 3 
 Steph. Comm. 139. 
 
 ENABLING STATUTE. The act of 32 
 Henry VIII. c. 28, by which tenants in tail, 
 husbands seised in right of their wives, were 
 empowered to make leases for their lives or 
 for twenty-one years, which they could not 
 do before. 2 BI. Comm. 319. 
 
 Applied generally to special acts confer- 
 ring powers not previously possessed. 
 
 ENACT. To establish by law; to perform 
 or effect; to decree. The usual formula in 
 making laws is, "Be it enacted." 
 
 ENAJENACION. In Spanish law. The 
 act by which one person transfers to anoth- 
 er a property, either gratuitously, as in the 
 case of a donation, or by an owner's title, as 
 in the case of a sale or an exchange. 
 
 ENBREVER (Law Pr.) To write down in 
 short; to abbreviate, or, in old language, im- 
 breviate; to put into a schedule. Britt. c. 1. 
 
 ENCAUSTUM. See "Incaustum." 
 ENCEINTE (Fr.) Pregnant (?. r.) 
 
 ENCHESON, ENCHESSON, ENCHASON, 
 enchison, or acheson (Law Fr.) Cause; rea- 
 son; occasion. Par quel encheson il se neya, 
 for what reason he drowned himself. Britt. 
 c 1. Par encheson de matrimoyne, in con- 
 sideration of marriage. Id. c. 34. Sans rea- 
 sonable encheson, without reasonable cause. 
 St. Westminster I. c. 6. 
 
 ENCLOSmRE. An artificial fence around 
 one's estate. See "Close." , 
 
 ENCOMIENDA. A charge or mandate con- 
 ferring certain important privileges on the 
 four military orders of Spain, to wit, those 
 of Santiago, Calatrava, Alcantara, and Mon- 
 tesa. In the legislation of the Indias, it sig- 
 nified the concession of a certain number of 
 Indians for the purpose of instructing them 
 in the Christian religion, and defending 
 their persons and property. 
 
 ENCROACHMENT. An unlawful exten- 
 sion of one's right upon the lands of another. 
 
 An alteration by the owner of an ease- 
 ment of the dominant tenement, so as to 
 impose an additional burden on the servient 
 tenement. Gale, Easm. 615. 
 
 ENDENZIE, or ENDENIZEN. To make 
 free; to enfranchise. 
 
 ENDORSE. See "Indorse.'' 
 
 ENDOWMENT (Law Fr. and Eng.) The 
 assignment or bestowment of dower to or 
 upon a woman. 2 Bl. Comm. 135. 
 
 The providing for the officiating ministers 
 of a church, by setting apart a certain por- 
 tion of lands, etc., for their maintenance, 
 etc. 2 Bl. Comm. 21; 1 Bl. Comm. 387; 3 
 Steph. Comm. 111. It has no reference to 
 building or providing a site. 35 Eng. Law 
 & Bq. 433. 
 
 The provision itself, so made (das eccle- 
 siae). Comyn, Dig. "Dismes" (B). 
 
ENDOWMENT POLICY 
 
 (316) 
 
 ENLARGE 
 
 ENDOWMENT POLICY. In insurance; a 
 policy of life insurance payable to the in- 
 sured during his lifetime, if he arrive at a 
 certain age. 
 
 ENEMY. A nation which is at war with 
 another; a citizen or a subject of such a na- 
 tion; any of the subjects or citizens of a 
 state in amity with the United States, who 
 have commenced, or have made preparations 
 for commencing, hostilities against the Unit- 
 ed States, and also the citizens or subjects 
 of a state in amity with the United States, 
 who are in the service of a state at war with 
 t)iem. See Salk. 635; Bac. Abr. "Treason" 
 CG). 
 
 "An enemy is he with whom a nation is at 
 war." Vattel, 387. "It does not embrace 
 rebels in insurrection against their own gov- 
 ernment. An enemy is always the subject 
 of a foreign power, who owes no allegiance 
 to our government." i Sawy. (U. S.) 457. 
 
 By the term "enemy" is also understood a 
 person who is desirous of doing injury to 
 another. The Latins had two terms to sig- 
 nify these two classes of persons: The first, 
 or the public enemy, they called hostis, and 
 the latter, or the private enemy, inimicus. 
 
 ENFEOFF. To make a gift of any cor- 
 poreal hereditaments to another. See "Feoff- 
 ment." 
 
 ENFRANCHISE. To make free; to incor- 
 porate a man in a society or body politic. 
 Cunningham. 
 
 ENFRANCHISEMENT. Giving freedom 
 to a person; admitting a person to the free- 
 dom of a, city. A denizen of England, or a 
 citizen of London, is said to be enfranchised. 
 So, too, a villein is enfranchised when he 
 obtains his freedom from his lord. Termes 
 de la Ley; 11 Coke, 91; Jacob. 
 
 ENFRANCHISEMENT OF COPYHOLD. 
 
 The change of the tenure by which lands are 
 held from copyhold to freehold, as by a con- 
 veyance to the copyholder, or by a release 
 of the seignorial rights. 1 Watk. Copyholds, 
 362; 1 Steph. Comm. 208; 2 Steph. Comm. 51. 
 
 ENGAGEMENT. In French law. A con- 
 tract; the obligations arising from a quasi 
 contract. 
 
 The terms "obligation" and "engagement" 
 are said' to be synonymous (17 Toullier, 
 Dr. Civ. note 1), but the Code seems specially 
 to apply the term "engagement" to those ob- 
 ligations which the law imposes on a man 
 without the intervention of any contract, 
 either on the part of the obligor or the 
 obligee. Article 1370. 
 
 ENGLESHIRE, or ANGLESCHERIA. A 
 law was made by Canute, for the preserva- 
 tion of his Danes, that, when a man was 
 killed, the hundred or town should be liable 
 to be amerced, unless it could be proved 
 that the person killed was an Englishman. 
 This proof was called englesMre. It con- 
 sisted, generally, of the testimony of two 
 males on the part of the father of him who 
 had been killed, and two females on the 
 
 part of his mother. 1 Hale, P. C. 447; 4 
 Bl. Comm. 195; Spelman. 
 
 ENGLISH INFORMATION. In English 
 law. A proceeding in the court of exchequer 
 in matters of revenue. See 28 & 29 Vict. c. 
 104. 
 
 ENGROSS (Fr. gros). To copy the rude 
 draught of an instrument in a fair, large 
 hand; to write out, in a large, fair hand, 
 on parchment. The term is applied to stat- 
 utes, which, after being read and acted on 
 a sufficient number of times, are ordered to 
 be engrossed. Anciently, also, used of the 
 process of making the indenture of a fine. 
 5 Coke, 39b. 
 
 In Criminal Law. To buy up such large 
 
 quantities of an article as to obtain a mo- 
 nopoly of it for the purpose of selling at an 
 unreasonable price. The tendency of mod- 
 ern English law is very decidedly to restrict 
 the application of the law against engross- 
 ing, and it is very doubtful if it applies at 
 all except to obtaining a monopoly of pro- 
 visions. 1 East, 143. Merely buying for the 
 purpose of selling again Is not necessarily 
 engrossing. 14 East, 406; 15 East, 511. See 
 4 Sharswood, Bl. Comm. 159, note, for the 
 law upon this subject. 
 
 ENGROSSER. One who engrosses or 
 writes on parchment in a large, fair hand; 
 one who purchases large quantities of any 
 commodity in order to have the command 
 of the market, and to sell them again at high 
 prices. 
 
 ENGROSSING. The offense committed by 
 an engrosser; writing on parchment in a 
 large, fair hand. See "Engross." 
 
 ENITIA PARS (Law Lat.) The partof the 
 eldest. Co. Litt. 166; Bac. Abr. "Copar- 
 ceners" (C). 
 
 When partition is voluntarily made among 
 coparceners in England, the eldest has the 
 first choice, or primer election (q. r.), and 
 the part which she takes is called enitia pars. 
 This right is purely personal, and descends. 
 It is also said that even her assignee shall 
 enjoy it; but this has been doubted. The 
 word enitia is said to be derived from the 
 old French eisne, the eldest. Bac. Abr. "Co- 
 parceners (C); Keilw. la, 49a; 2 And. 21; 
 Cro. Eliz. 18. 
 
 ENJOIN. To command; to require; as, 
 private individuals are not only permitted, 
 but enjoined, by law, to arrest an offender 
 when present at the time a felony is com- 
 mitted, or a dangerous wound given, on pain 
 of fine and imprisonment if the wrongdoer 
 escape through their negligence. 1 Hale, P. 
 C. 587; 1 East, P. C. 298, 304; Hawk. P. C. 
 hk. 2, c. 12, § 13; Ryan & M. 93. 
 
 To command or order a defendant in equi- 
 ty to do or not to do a particular thing by 
 writ of injunction. See "Injunction." 
 
 ENLARGE. To extend; as, to enlarge a 
 rule to plead is to extend the time during 
 which a defendant may plead. To enlarge 
 means, also, to set at liberty; as, the prison- 
 er was enlarged on giving bail. 
 
ENLARGER L'ESTATE 
 
 (317) 
 
 ENTRY 
 
 ENLARGER L'ESTATE. A species of re- 
 lease which inures by way of enlarging an 
 estate, and consists of a conveyance of the 
 ulterior interest to the particular tenant; as 
 if there be tenant for life or years, remainder 
 to another in fee, and he in remainder re- 
 leases all his right to the particular tenant 
 and his heirs, this gives him the estate in 
 fee. 1 Steph. Comm. 518. 
 
 ENLARGING. Extending, or making more 
 comprehensive; as, an enlarging statute, 
 which is one extending the common law. 
 
 ENLARGING STATUTE. See "Statute." 
 
 ENLISTMENT. The act of making a con- 
 tract to serve the government in a subordi- 
 nate capacity, either in the army or navy. 
 The contract so made is also called an "en- 
 listment." See, as to the power of infants 
 to enlist, 4 Bin. (Pa.) 487; 5 Bin. (Pa.) 423; 
 6 Bin. (Pa.) 255; 1 Serg. & R. (Pa.) 87; 11 
 Serg. & R. (Pa.) 93. 
 
 ENORMIA (Lat.) Wrongs. It occurs in 
 the old Latin forms of pleading, where, after 
 a specific allegation of the wrongs done by 
 the defendant, the plaintiff alleges generally 
 that the defendant did alia enormia (other 
 wrongs), to the damage, etc. 2 Greenl. Bv. 
 § 278; 1 Chit. PI. 397. See "Alia Enormia." 
 
 ENPLEET. An old form of "implead." 
 
 ENQUETE. In canon law. An examina- 
 tion of witnesses in the presence of a judge 
 authorized to sit for this purpose, taken in 
 writing, to be used as evidence in the trial 
 of a cause. The day of hearing must he 
 specified in a notice to the opposite party. 9 
 Low. (U. S.) 392. It may be opened, in 
 some cases, before the trial. 10 Low. (U. S.) 
 19. 
 
 ENROLL. To register; to enter on the 
 rolls of chancery, or other courts; to make 
 a record. 
 
 ENROLLMENT. In English law. The reg- 
 istering or entering on the rolls of chan- 
 cery, king's bench, common pleas, or excheq- 
 uer, or by the clerk of the peace in the rec- 
 ords of the quarter sessions, of any lawful 
 act, as, a recognizance, a deed of bargain 
 and sale, and the like. Jacob. 
 
 ENS LEGIS (Law Lat.) A legal entity; 
 an artificial person created by law as a cor- 
 poration. 
 
 ENSCHEDULE. To insert in a list, ac- 
 count, or writing. 
 
 ENSEAL. To seal. 
 
 ENSERVER (Law Fr.) To make subject 
 to a service or servitude. Britt. c. 54. 
 
 ENTAIL. A fee abridged or limited to 
 the Issue, or certain classes of issue, instead 
 of descending to all the heirs. 1 Washh, 
 Real Prop. 66; Cowell; 2 Sharswood, Bl. 
 Comm. 112, note. 
 
 To restrict the inheritance of lands to a 
 particular class of issue. 1 Washb. Real 
 
 Prop. 66; 2 Sharswood, Bl. Comm. J13. See 
 "Estates;" "Tail." 
 
 ENTAILED MONEY. That which is given 
 to be used or invested in acquiring an "es- 
 tate tail." 3 & 4 Wm. IV. c. 74, §§ 70-72. 
 
 ENTENCION. In old English law. The 
 plaintiff's declaration. 
 
 ENTENDMENT. The old form of intend- 
 ment (g. v.), derived directly from the 
 French, and used by Cowell to denote the 
 true meaning or signification of a word or 
 sentence; that is, the understanding or con- 
 struction of law. 
 
 ENTER. To go upon lands for the purpose 
 of taking possession; to take possession. In 
 a strict use of terms, "entry" and "taking 
 possession" would seem to be distinct parts 
 of the same act; but, practically, "entry" is 
 now merged in "taking possession." 1 
 Washb. Real Prop. 10, 32; Stearns, Real Ac- 
 tions, 2. 
 
 To cause to be put down upon the record. 
 An attorney is said to enter his appearance, 
 or the party himself may enter an appear- 
 ance. 74 Ind. 59. 
 
 To enter judgment is to formally enroll 
 it or repose the evidence of it in the record 
 or permanent memorial of the acts of ihe 
 court. 
 
 ENTERCEUR (Law Fr.) A party chal- 
 lenging (claiming) goods; hewho has placed 
 them in the hands of a third person. Kel- 
 ham. 
 
 ENTIRE CONTRACT. See "Contract. " 
 
 ENTIRE TENANCY. A sole possession 
 by one. Wharton. 
 
 E NT 1 R ETY. This word denotes the whole, 
 in contradistinction to moiety, which de- 
 notes the half part. A husband and wife, 
 when jointly seised of land, are seised by 
 entireties, and not pur mie, as joint tenants 
 are. Jacob; 2 Kent, Comm. 132; 4 Kent, 
 Comm. 362; 3 Pa. St. 350, 367. 
 
 ENTITLE. In its usual sense, to entitle 
 is to give a right or title; therefore a person 
 is said to be entitled to property when he has 
 a right to it. L. R. 20 Eq. 534. 
 
 In Ecclesiastical Law. To entitle is 
 
 to give a title or ordination as a minister. 
 Gibs. Code, 141, note. 
 
 In Practice. To prefix to a document 
 
 the title of the cause to which it relates. 
 
 ENTREBAT (Law Fr.) An intruder or in- 
 terloper. Britt. c. 114. 
 
 ENTREGA. In Spanish law. Delivery. 
 
 ENTREPOT. A warehouse; a magazine 
 where goods are deposited which are to be 
 again removed. 
 
 ENTRY. The act of setting down the par- 
 ticulars of a sale, or other transaction, in a 
 merchant's or tradesman's account books. 
 Such entries are, in general, prima facie evi- 
 
ENTRY AD COMMUNEM LEGEM (318) ENUMERATIO INFIRMAT, ETC. 
 
 dence of the sale and delivery, and of work 
 done; but unless the entry be the original 
 one, it is not evidence. 
 
 The submitting to the inspection of officers 
 appointed by law, who have the collection of 
 the customs, goods imported into the United 
 States, together with a statement or descrip- 
 tion of such goods, and the original invoices 
 of the same, for the purpose of estimating 
 the duties to be paid thereon. 
 
 Act March 2, 1799, § 36 (1 Story, U. S. 
 Laws, 606), and Act March 1, 1823 (3 Story, 
 U. S. Laws, 1881), regulate the manner of 
 making entries of goods. 
 
 In Criminal Law. The act of enter- 
 ing a dwelling house, or other building, in 
 order to commit a crime. See "Burglary." 
 
 Upon Real Estate. The act of going 
 
 upon the lands of another, or lands claimed 
 as one's own, with intent to take possession. 
 1 Ala. 674. 
 
 ENTRY AD COMMUNEM LEGEM. In 
 English law. A writ which lay In favor of 
 the reversioner, when the tenant for term of 
 life, tenant for term of another's life, tenant 
 by the' curtesy, or tenant in dower, had 
 aliened and died. Tomlins. 
 
 ENTRY AD TERMINUM QUI PRAE- 
 teriit. The writ of entry ad terminum qui 
 praeterilt lies where a man leases land to 
 another for a term of years, and the tenant 
 holds over his term. And "if lands be leased 
 to a man for the term of another's life, and 
 he for whose life the lands are leased dies, 
 and the lessee holds over, then the lessor 
 shall have this writ. Termes de la Ley. 
 
 ENTRY FOR MARRIAGE IN SPEECH. A 
 
 writ of entry causa matrimonii praeloquuti 
 lies where lands or tenements are given to 
 a man upon condition that he shall take 
 the donor to be his wife within a certain 
 time, and he does not espouse her within 
 the said term, or espouses another woman, 
 or makes himself priest. Termes de la Ley. 
 
 ENTRY IN CASU CONSIMILI. A writ of 
 entry in casii consimili lies where a tenant 
 for life or by the curtesy aliens in fee. 
 Termes de la Ley. 
 
 ENTRY IN THE CASE PROVIDED. A 
 
 writ of entry in casu proviso lies if a tenant 
 in dower alien in fee, or for life, or for an- 
 other's life. Termes de la Ley. 
 
 ENTRY ON THE ROLL. In former times, 
 the parties to an action, personally or by 
 their counsel, used to appear in open court, 
 and make their mutual statements viva voce, 
 instead of, as at the present day, delivering 
 their mutual pleadings, until they arrived at 
 the issue or precise point in dispute between 
 them. During the progress of this oral 
 statement, a minute of the various proceed- 
 ings was made on parchment by an officer, of 
 the court appointed for that purpose. The 
 parchment then became the record; in other 
 words, the official history of the suit. Long 
 after the practice of oral pleading had fallen 
 into disuse, it continued necessary to enter 
 the proceedings in like manner upon the 
 parchment roll, and this was called "entry 
 
 on the roll," or making up the "issue roll." 
 But by a rule of H. T. 4 Wm. IV., the prac- 
 tice of making up the issue roll was abol- 
 ished, and it was only necessary to make up 
 the issue in the form prescribed for the 
 purpose by a rule of H. T. 1853, and to de- 
 liver the same to the court and to the op- 
 posite party. The issue which was delivered 
 to the court was called the "nisi prius rec- 
 ord;" and that was regarded as the official 
 history of the suit, in like manner as the 
 issue roll formerly was. , Under the present 
 practice, the issue roll or nisi prius record 
 consists of the papers delivered to the court, 
 to facilitate the trial of the action, these 
 papers consisting^ of the pleadings simply, 
 with the notice of trial. Brown. 
 
 ENTRY WITHOUT ASSENT OF THE 
 chapter. A writ of entry sine assensu capituli 
 lies where an abbot, prior, or such as has 
 covent or common seal, aliens lands of the 
 church without the assent of the chapter, 
 and then dies. Termes de la Ley. 
 
 ENTRY, WRIT OF. In old practice. A 
 real action brought to recover the possession 
 of lands from one who wrongfully withholds 
 possession thereof. 
 
 In general, the writ of entry is the uni- 
 versal remedy to recovery possession when 
 wrongfully withheld from the owner. 3 Bl. 
 Comm. 183. 
 
 Such writs were said to be in the quilms, 
 where the suit was brought against the party 
 who committed the wrong; in the per, where 
 the tenant against whom the action was 
 brought was either heir or grantee of the 
 original wrongdoer; in the per and cui. 
 where there had been two descents, two 
 alienations, or a descent and an alienation; 
 in the post, where the wrong was removed 
 beyond the degrees mentioned. 
 
 The above designations are derived from 
 significant Latin words in the Respective 
 forms adapted to the cases given. 
 
 The writ was of many varieties, also, ac- 
 cording to the character of the title of the 
 claimant and the circumstances of the depri- 
 vation of possession. Booth enumerates and 
 discusses twelve of these, of which some are 
 sur disseisin, sur intrusion, ad communem 
 legem, ad terminum qui preterit, cui in vita, 
 cui ante divortium, etc. Either of these 
 might, of course, be brought in any of the 
 four degrees, as the circumstances of the 
 case required. The use of writs of entry 
 has been long since abolished in England; 
 but they are still in use in a modified form 
 in some of the United States, as the common 
 means of recovering possession of realty 
 against a wrongful occupant. 2 Pick. 
 (Mass.) 473; 7 Pick. (Mass.) 36; 10 Pick. 
 (Mass.) 359; 5 N. H. 450; 6 N. H. 555. See 
 Stearns, Real Actions; Booth, Real Actions; 
 Reg. Brev. 229; Rast. Entr. 279b; Co. Litt. 
 238b. 
 
 Though the action was formerly a pos- 
 sessory one, it seems that title may be now 
 tried therein. 141 Mass. 93. 
 
 ENUMERATIO INFIRMAT REGULAM IN 
 casibus non enumeratis. Enumeration dis- 
 
ENUMERATIO UNIUS, ETC. 
 
 (319) 
 
 EQUITABLE ASSETS 
 
 affirms the rule in oases not enumerated. 
 Bac. Aph. 17. 
 
 ENUMERATIO UNIUS EST EXCLUSIO 
 alterius. Specification of one thing is an ex- 
 clusion of the rest. 4 Johns. Ch. (N. Y.) 
 106, 113. 
 
 ENURE. To take or have effect; to serve 
 to the use, benefit, or advantage of a person. 
 The word is often written "inure." A re- 
 lease to the tenant for life enures to him in 
 reversion; that is, it has the same effect for 
 iim as for the tenant for life. A discharge 
 of the principal enures to the benefit of the 
 surety. 
 
 ENVOY. In international law. A minis- 
 ter of the second rank, on whom his sover- 
 eign or government has conferred a degree 
 of dignity and respectability which, with- 
 out being on a level with au ambassador, 
 immediately follows, and, among ministers, 
 yields the pre-eminence to him alone. 
 
 Envoys are either ordinary or extraordi- 
 nary. By custom, the latter is held in great- 
 er consideration. Vattel, liv. 4, c. 6, § 72. 
 
 EO INSTANTE (Lat.) At that instant. 
 
 EO INTUITU (Lat.) With that view or 
 intent. Hale, Anal. § 2. 
 
 EO LOCI (Lat.) In civil law. In that 
 place (eo loco) ; there. Dig. 5. 1. 19. 2. 
 In that state or condition. Calv. Lex. 
 
 EO NOMINE (Lat.) Under or by that 
 name. 
 
 EODEM LIGAMINE QUO LIGATUM EST 
 dissolvitur. A bond is released by the same 
 formalities with which it is contracted. Co. 
 Litt. 212b; Broom, Leg. Max. 891. 
 
 EODEM MODO QUO QUID CONSTITUI- 
 -tur, eodem modo destruitur. In the same 
 "way in which anything is constituted, in 
 that way is it destroyed. 6 Coke, 53. 
 
 EODEM MODO QUO ORITUR, EODEM 
 modo dissolvltur. It is discharged in the 
 same way In which it arises. Bacon, Abr. 
 "'Release;" Cro. Eliz. 697; 2 Wm. Saund. 48, 
 note 1; 11 Wend. (N. Y.) 28, 30; 24 Wend. 
 (N. Y.) 294, 298. 
 
 EOTH (Saxon). Oath. 
 
 EORLE (Saxon). An earl. Blount; 1 Bl. 
 ■Comm. 398. 
 
 EPIMENIA. Expenses or gifts. Blount. 
 
 EPIQUEYA. In Spanish law. The benig- 
 nant and prudent interpretation of the law 
 according to the circumstances of the time, 
 place, and person. This word is derived 
 from the Greek, and is synonymous with the 
 word "equity." See Murillo, notes 67, 68. 
 
 EPISCOPACY. In ecclesiastical law. A 
 form of government by diocesan bishops; 
 the office or condition of a bishop. 
 
 EPISCOPALIA (Law Lat.) In ecclesiastic- 
 al law. Synodals, or payments due the 
 liishop. 
 
 EPISCOPUS (Law Lat.) In civil law. A 
 superintendent ; an inspector. Those in each 
 municipality who had the charge and over- 
 sight of the bread and other provisions 
 which served the citizens for their daily 
 food, were so called. Vicat; Du Cange. 
 
 A bishop. These bishops, or eiiincopt, were 
 held to be the successors of the apostles, and 
 have various titles at different times in his- 
 tory, and according to their different duties. 
 It was applied generally to those who had 
 authority, or were of peculiar sanctity. Aft- 
 er the fall of the Roman empire, they came 
 to have very considerable judicial powers. 
 Du Cange; Vicat; Calv. Lex. 
 
 EPISCOPUS ALTERIUS MANDATO 
 quam regis non tenetur obtemperare. A 
 bishop need not obey any mandate save the 
 king's. Co. Litt. 134. 
 
 EPISCOPUS PUERORUM. It was an old 
 custom that, upon certain feasts, some lay 
 person should plait his hair, and put on the 
 garments of a bishop, and in them pretend 
 to exercise episcopal jurisdiction, and do 
 several ludicrous actions, for which reason 
 he was called "bishop of the boys;" and 
 this custom obtained in England long after 
 several constitutions were made to abolish 
 it. Blount. Such an officer is mentioned in 
 the statutes of some of the cathedrals of the 
 old foundation in England. Wharton. 
 
 EPISTOLA. A letter or epistle. Calv. 
 Lex. An instrument in writing for the con- 
 veyance of lands, or the assurance of con- 
 tracts. Spelman. 
 
 EPISTOLAE (Lat.) In civil law. Re- 
 scripts; opinions given by the emperors in 
 cases submitted to them for decision. 
 
 Answers of the emperors to petitions. 
 
 The answers of counsellors (.juris con- 
 sulta), as Ulpian and others, to questions of 
 law proposed to them, were also called epis- 
 tolae. 
 
 Opinions written out. The term originally 
 signified the same as literae. Vicat. 
 
 EPOCH, or EPOCHA. The time at which 
 a computation is begun; the time whence 
 dates are numbered. Enc. Lond. 
 
 EQUALITY. Likeness in possessing the 
 same rights, and being liable to the same 
 duties. See 1 Toullier, Dr. Civ. notes 170, 
 193. 
 
 EQUES. A knight. Used chiefly in her- 
 aldry; miles, being the technical legal term. 
 4 Inst. 5. 
 
 EQUILOCUS. An equal. It Is mentioned 
 in Simeon Dunelm, A. D. 882. Jacob. 
 
 EQUITABLE ASSETS. Such assets as are 
 chargeable with the payment of debts or leg- 
 acies in equity, and which do not fall under 
 the description of "legal assets." 
 
 Those portions of the property which, by 
 the ordinary rules of law, are exempt from 
 debts, but which the testator has volun- 
 tarily charged as assets, or which, being 
 nonexistent at law, have been created in 
 equity. Adams, Eq. 254 et seq. 
 
EQUITABLE ASSIGNMENT 
 
 (320) 
 
 EQUITY 
 
 EQUITABLE ASSIGNMENT. An assign- 
 ment giving to the assignee a right enforcea- 
 ble only in equity. The term is now com- 
 monly applied to constructive assignments, 
 though such are now generally enforceable at 
 law. In this sense it is "such an appropria- 
 tion of the subject-matter as to confer a com- 
 plete and present right on the person in- 
 tended to be provided for, even where the 
 circumstances do not admit of its present 
 exercise." 14 Wall. (U. S.) 69. 
 
 An order on a particular fund (120 U. S. 
 511; 78 Iowa, 426; 3 Me. 436), or an order 
 by a creditor to pay the debt to a third 
 person (7 Cal. 258; 18 Mass. 461; 18 Mont. 
 335), are examples of such assignments. 
 
 EQUITABLE CONSTRUCTION,. A liberal 
 construction, designed to reach the equities 
 of the particular case. 
 
 EQUITABLE CONVERSION. See "Con- 
 version." 
 
 EQUITABLE DEFENSE. A defense avail- 
 able only in equity, e. g., duress in defense 
 to a contract. In all states where codifica- 
 tion prevails, the distinction between legal 
 and equitable defenses is abolished. 
 
 EQUITABLE ELECTION. See "Election." 
 
 EQUITABLE ESTATE. A right or inter- 
 est in land, which, not having the proper- 
 ties of a legal estate, but being merely a 
 right of which courts of equity will take no- 
 tice, requires the aid of sucli court to make 
 it available. 
 
 These estates consist of uses, trusts, and 
 powers (g. v.) See 2 Bouv. Inst, note 1884. 
 They possess, in some respects, the qualities 
 of legal estates at modern law. 1 Pet. (U. 
 S.) 508; 13 Pick. (Mass.) 154; 5 Watts 
 (Pa.) 113; 1 Johns. Ch. (N. Y.) 508; 2 
 Vern. 536; 1 Brown, 499; Williams, Real 
 Prop. 134-136; 1 Spence, Eq. Jur. 501; 1 
 Washb. Real Prop. 130, 161. 
 
 EQUITABLE MORTGAGE. A lien upon 
 real estate of such a character that it is rec- 
 ognized in equity as a security for the pay- 
 ment of money, and is treated as a mort- 
 gage. 
 
 A transaction to which equity attaches the 
 character of a mortgage, without regard to 
 the intention of the parties. For example, 
 a deposit of title deeds as security (Story, 
 Eq. Jur. § 1020; 5 Wheat. [U. S.] 277), or 
 the giving of an absolute- deed as security 
 (96 U. S. 332; 113 Mass. 149; 46 N. Y. 605). 
 
 A mortgage upon a purely equitable inter- 
 est in lands. 
 
 ' EQUITABLE WASTE. Such acts to the 
 detriment of the remainder or reversion as 
 are within the legal rights of the tenant, but 
 are not such as a prudent man would do in 
 respect to his own property, though not nec- 
 essarily done with evil motive. Equity will 
 restrain such depredation, though no action 
 at law would lie. ' 2 Story, Eq. Jur. § 915 ; 29 
 L. J. Ch. 598; 25 N. H. 361. 
 
 EQUITASSEQUITUR LEGEM. Equityfol- 
 
 lows the law. 1 Story, Eq. Jjir. 4; 5 Barb. 
 (N. Y.) 277, 282. 
 
 EQUITATURA. In old English law. Need- 
 ful equipments for riding or traveling. 
 
 EQUITY. A branch of remedial justice 
 by and through which relief is afforded to 
 suitors in the courts of equity. 
 
 In the broad sense in which this term is 
 sometimes used, it signifies natural justice. 
 
 In a more limited application, it denotes 
 equal justice between contending parties. 
 This is its moral signification, in reference 
 to the rights of parties having conflicting 
 claims; but applied to courts and their ju- 
 risdiction and prqceedings, it has a more 
 restrained and limited signification. 
 
 One division of courts is into courts of 
 law and courts of equity; and equity, in this 
 relation and application, is a branch of reme- 
 dial justice by and through which relief is 
 afforded to suitors in the courts of equity. 
 
 The difference between the remedial jus- 
 tice of the courts of common law and that 
 of the courts of equity is marked and ma- 
 terial. That administered by the courts of 
 law is limited by the principles of the com- 
 mon law (which are to a great extent posi- 
 tive and inflexible), and especially by the 
 nature and character of the process and 
 pleadings, and of the judgments which those 
 courts can render; because the pleadings 
 cannot fully present all the matters in con- 
 troversy, nor can the judgments be adapted 
 to the special exigencies which may exist 
 in particular cases. It is not uncommon, 
 also, for cases to fail in those courts, from 
 the fact that too few or too many persons 
 have been joined as parties, or because the 
 pleadings have not been framed with suffi- 
 cient technical precision. 
 
 The remedial process of the courts of 
 equity, on the other hand, admits, and, gen- 
 erally, requires, that all persons having an 
 interest shall be made parties, and makes 
 a large allowance for amendments by sum- 
 moning and discharging parties after the 
 commencement of the suit. The pleadings 
 are usually framed so as to present to the 
 consideration of the court the whole case, 
 with its possible legal rights, and all its 
 equities, — ^that is, all the grounds upon 
 which the suitor is or is not entitled to 
 relief upon the principles of equity. And 
 its final remedial process may be so varied 
 as to meet the requirements of these equi- 
 ties, in cases where the jurisdiction of the 
 courts of equity exists, by "commanding 
 what is right, and prohibiting what is 
 wrong." In other words, its final process 
 is varied so as .to enable the courts to do 
 that equitable justice between the parties 
 which the case demands, either by command- 
 ing what is to be done, or prohibiting what 
 is threatened to be done. 
 
 The principles upon which, and the modes 
 and forms by and through which, justice 
 is administered in the United States, are 
 derived to a great extent from those which 
 were in existence in England at the time 
 of the settlement of this country, and it is 
 therefore important to a correct understand- 
 
EQUITY 
 
 (321) 
 
 EQUITY 
 
 ing of the nature and character of our own 
 jurisprudence, not only to trace it back to 
 its introduction here on the early settle- 
 ment of the colonies, but also to trace the 
 English jurisprudence from its earliest In- 
 ception as the administrattion of law found- 
 ed on principles, down to that period. It 
 is in this way that we are enabled to ex- 
 plain many things in our own practice which 
 would otherwise be entirely obscure. This 
 is particularly true of the principles which 
 regulate the jurisdiction and practice of the 
 courts of equity, and of the principles of 
 ■ equity as they are now applied and admin- 
 istered in the courts of law which at the 
 present day have equitable jurisdiction con- 
 ferred upon them by statutes passed for that 
 purpose. And for the purpose of a com- 
 petent understanding of the course of deci- 
 sions in the courts of equity in England, it 
 is necessary to refer to the origin of the 
 equitable jurisdiction there, and to trace 
 its history, inquiring upon what principles 
 it was originally founded, and how it has 
 been enlarged and sustained. 
 
 The study of equity jurisprudence, there- 
 fore, comprises an inquiry into the origin 
 and history of the courts of equity; the 
 distinctive principles upon which jurisdic- 
 tion in equity is founded; the nature, char- 
 acter, and extent of the jurisdiction itself; 
 its peculiar remedies; the rules and maxims 
 which regulate its administration; its reme- 
 dial process and proceedings, and modes 
 of defense; and its rules of evidence and 
 practice. 
 
 Origin and History. The courts of 
 
 equity may be said to have their origin as 
 far back as the aula or curia regis, the great 
 court in which the king administered jus- 
 tice in person, assisted by his counsellors. 
 Of the officers of this court, the chancellor 
 was one of great trust and confidence, next 
 to the king himself, but his duties do not 
 distinctly appear at the present day. On 
 the dissolution of that court, he exercised 
 separate duties. 
 
 On the introduction of seals, he had the 
 keeping of the king's seal, which he affixed 
 to charters and deeds; and he had some 
 authority in relation to the king's grants,^ 
 perhaps annulling those which were alleged 
 to have been procured by misrepresentation, 
 or to have been issued unadvisedly. 
 
 As writs came into use. It was made his 
 duty to frame and issue them from his 
 court, which as early as the reign of Henry 
 li. was known as the "chancery." And it is 
 said that he exercised at this period a sort 
 of equitable jurisdiction by which he miti- 
 gated the rigor of the common law, — to 
 what extent it is impossible to determine. 
 He Is spoke'n of as one who "annuls unjust 
 laws, and executes the rightful commands 
 of the pious prince, and puts an end to 
 what is injurious to the people or to morals," 
 which would form a very ample jurisdic- 
 tion; but it seems probable that this was 
 according to the authority or direction of 
 the Mng, &iven from time to time in rela- 
 tion to particular cases. He was a prin- 
 cipal member of the king's council, after 
 
 the Conquest, in which, among other things, 
 all applications . for the special exercise of 
 the prerogative in regard to matters of 
 judicial cognizance were discussed and de- 
 cided upon. In connection with the council, 
 he exercised a separate authority in cases 
 in which the council directed the suitors 
 to proceed in chancery. The court of chan- 
 cery is said to have sprung from this coun- 
 cil; but it may be said that it had its 
 origin in the prerogative of the king, by 
 which he undertook to administer justice, 
 on petitions to himself, without regard to 
 the jurisdiction of the ordinary courts, 
 whicli he did through orders to his chan- 
 cellor. The great council, or parliament, 
 also sent matters relating to the king's 
 grants, etc., to the chancery; and it seems 
 that the chancellor, although an ecclesiastic, 
 was the principal actor as regards the judi- 
 cial business which the select or king's 
 council, as well as the great council, had 
 to advise upon or transact. In the reign of 
 Edward I., the power and authority of the 
 chancellor were extended by the statute 
 of Westminster II. 
 
 In the time of Edward III., proceedings in 
 chancery were commenced by petition or 
 bill, the adverse party was summoned, the 
 parties were examined, and chancery ap- 
 pears as a distinct court for giving relief 
 in cases which required extraordinary rem- 
 edies, the king having, "by a writ, referred 
 all such matters as were of grace to be 
 dispatched by the chancellor or by the 
 keeper of the privy seal." 
 
 It may be considered as fully established, 
 as a separate and permanent jurisdiction, 
 from the 17th of Richard II. 
 
 In the time of Edward IV., the chancery 
 had come to be regarded as one of the four 
 principal courts of the kingdom. From this 
 time, its jurisdiction and the progress of 
 its jurisdiction become of more importance 
 to us. 
 
 It is the tendency of any system of legal 
 principles, when reduced to a practical ap- 
 plication, to fail of effecting such justice 
 between party and party as the special cir- 
 cumstances of a case may require, by rea- 
 son of the minuteness and inflexibility of 
 its rules, and the inability of the judges 
 to adapt its remedies to the necessities of 
 the controversy under consideration. This 
 was the case with the Roman law, and, to 
 remedy this, edicts, were issued from time 
 to time, which enabled the consuls and 
 praetors to correct "the scrupulosity and 
 mischievous subtlety of the law," and from 
 these edicts a code of equitable jurispru- 
 dence was compiled. 
 
 So the principles and rules of the com- 
 mon law, as they were reduced to practice, 
 became in their application the means of 
 injustice in cases where special equitable 
 circumstances existed, of which the judge 
 could not take cognizance because of the 
 precise nature of its titles and rights, the 
 inflexible character of its principles, and the 
 technicality of its pleadings and practice. 
 And, in a manner somewhat analogous to the 
 Roman mode of modification, in order to 
 
EQUITY 
 
 (322) 
 
 EQUITY 
 
 remedy such hardships, the prerogative of 
 the king, or the authority of the great coun- 
 cil, was exercised in ancient times to pro- 
 cure a more equitable measure of justice 
 in the particular case, which was accom- 
 plished through the court of chancery. 
 
 This was followed by the "Invention" of 
 the writ of subpoena, by means of which the 
 chancery assumed, upon a complaint made 
 directly to that court, to require the attend- 
 ance of the adverse party, to answer to such 
 matters as should be objected against him. 
 Notwithstanding the complaints of the com- 
 mons, from time to time, that the course of 
 proceeding in chancery "was not according 
 to the course of the common law, but the 
 practice of the holy church," the king sus- 
 tained the authority of the chancellor, the 
 right to issue the writ was recognized and 
 regulated by statute, and other statutes were 
 passed conferring jurisdiction where it had 
 not been taken before. In this way, with- 
 out any compilation of a code, a system of 
 equitable jurisprudence was established in 
 the court of chancery, enlarging from time 
 to time; the decisions of the court furnish- 
 ing an exposition of its principles, and of 
 their application. It is said that the juris- 
 diction was greatly enlarged under the ad- 
 ministration of Cardinal Wolsey, in the time 
 of Henry VIII. A controversy took place 
 between Chancellor "Bllesmere and Lord 
 Coke, C. J., of the king's bench, in the time 
 of James I., respecting the right of the 
 chancellor to interfere with the judgments 
 of the courts of law. The king sustained the 
 chancellor, and from that time the jurisdic- 
 tion then claimed has been maintained. 
 
 It is from the study of these decisions, 
 and the commentaries upon theni, that we 
 are enabled to determine, with a greater or 
 less degree of certainty, the time when and 
 the grounds upon which jurisdiction was 
 granted or was taken in particular classes 
 of cases, and the principles upon which it 
 was administered. And it Is occasionally of 
 importance to attend to this; because we 
 shall see that, chancery having once ob- 
 tained jurisdiction, that jurisdiction con- 
 tinues until expressly taken away, notwith- 
 standing the intervention of such changes 
 as, if they had been made earlier, would 
 have rendered the exercise of jurisdiction by 
 that court incompatible with the principles 
 upon which it is founded. 
 
 A brief sketch of some of the principal 
 points in the origin and history of the court 
 of chancery may serve to show that much 
 of its jurisdiction exists independent of any 
 statute, and is founded upon an assumption 
 of a power to do equity, having its first 
 inception in the prerogative of the king, and 
 his commands to do justice in individual 
 cases, extending itself, through the action 
 of the chancellor, to the issue of a writ of 
 summons to appear in his court without 
 any special authority for that purpose, and, 
 upon the return of the subpoena, to the re- 
 ception of a complaint, to a requirement 
 upon the party summoned to make answer 
 to that complaint, and then to a hearing 
 and decree, or judgment, upon the merits 
 
 of the matters in controversy, according to 
 the rules of equity and good conscience. 
 
 It appears as a noticeable fact that the 
 jurisdiction of the chancery proceeded orig- 
 inally from, and was sustained by, succes- 
 sive kings of England against the repeated 
 remonstrances of the commons, who were 
 for adhering to the common law ; though not, 
 perhaps, approving of all its rigors, as 
 equity had been to some extent acknowl- 
 edged as a rule of decision in the common- 
 law courts. 
 
 This opposition of the commons may have 
 been owing in part to the fact that the 
 chancellor was in those days usually an ec- 
 clesiastic, and to the existing antipathy 
 among the masses of the people to almost 
 everything Roman. 
 
 The master of the rolls, who for a long 
 period was a judicial officer of the court of 
 chancery, second only to the chancellor, was 
 originally a clerk or keeper of the rolls 
 or records, but seems to have acquired his 
 judicial authority from being at times di- 
 rected by the king to take cognizance of 
 and determine matters submitted to him. 
 
 Distinctive Principles. It is quite ap- 
 parent that some principles other than those 
 of the common law must ' regulate the ex- 
 ercise of such a jurisdiction. That law could 
 not mitigate its rigor upon its own prin- 
 ciples. And as, down to the time of Ed- 
 ward III., and, with few exceptions, to the 
 21st of Henry VIII., the chancellors were 
 ecclesiastics, much more familiar with the 
 principles of the Roman law than with those 
 of the common law, it was but a matter of 
 course that there should be a larger adop- 
 tion of the principles of that law, and the 
 study of it is of some importance in this 
 connection. Still, that law cannot be said 
 to be of authority, even in equity proceed- 
 ings. The commons were jealous of its in- 
 troduction. "In the reign of Richard II., the 
 barons protested that they would never suf- 
 fer the kingdom to be governed by the 
 Roman law, and the judges prohibited it 
 from being any longer cited in the common- 
 law tribunals." 
 
 This opposition of the barons and of the 
 common-law judges furnished very sufficient 
 reasons why the chancellors should not pro- 
 fess to adopt that law as the rule of deci- 
 sion. In addition to this, it was not fitted, 
 in many respects, to the state of things ex- 
 isting in England ; and so the chancellors 
 were of necessity compelled to act upon 
 equitable principles as expounded by them- 
 selves. In later times, the common-law 
 judges in that country have resorted to the 
 Roman law for principles of decision to a 
 much greater extent than they have given 
 credit to it. 
 
 Since the time of Henry VIII., the chan- 
 cery bench has been occupied by some of 
 the ablest lawyers which England has pro-, 
 duced, and they have given to the proceed- 
 ings and practice in equity definite rules 
 and forms, which leave little to the per- 
 sonal discretion of the chancellor in deter- 
 mining what equity and good conscience 
 require. The discretion of the chancellor 
 
EQUITY 
 
 (323) 
 
 EQUITY 
 
 is a judicial discretion, to be exercised ac- 
 cording to tlie principles and practice of 
 the court. 
 
 The avowed principle upon which the ju- 
 risdiction was at first exercised was the 
 administration of justice according to hon- 
 esty, equity, and conscience, which last, it 
 is said, was unknown to the common law 
 as a principle of decision. 
 
 In the 15th of Richard II., two petitions, 
 addressed to the king and the lords of par- 
 liament, were sent to the chancery to be 
 heard, with the direction, "Let there be 
 done, by the authority of parliament, that 
 which right and reason and good faith and 
 good conscience demand in the case." 
 
 These may be said to be the general prin- 
 ciples upon which equity is administered at 
 the present day. 
 
 The distinctive principles of the courts 
 of equity are shown, also, by the classes of 
 cases in which they exercise jurisdiction 
 and give relief; allowing it to be sought and 
 administered through process and proceed- 
 ings of less formality and technicality than 
 are required in proceedings at law. This, 
 however, has its limitations, some of its 
 rules of pleading in defense being quite tech- 
 nical. And it is another peculiar feature 
 that the relief is administered by a decree 
 or process adapted to the exigencies of the 
 particular case. 
 
 Jurisdiction. It is difficult to reduce 
 
 a jurisdiction so extensive, and of such di- 
 verse component parts, to a rigid and pre- 
 cise classification; but an approach to it 
 may be made. The general nature of the 
 jurisdiction has already been indicated. It 
 exists — 
 
 First, for the purpose of compelling a dis- 
 covery from the defendant, respecting the 
 truth of the matters alleged against him, 
 by an appeal to his conscience to speak the 
 truth. The discovery is enforced by re- 
 quiring an answer to the allegations in the 
 plaintiff's complaint, in order that the plain- 
 tiff may use the matters disclosed in the an- 
 swer as admissions of the defendant, and 
 thus evidence for the plaintiff, either in 
 connection with and in aid of other evidence 
 offered by the plaintiff, or to supply the 
 want of other evidence on his part; or it 
 may be to avoid the expense to which the 
 plaintiff must be put in procuring other 
 evidence to sustain his cas^. 
 
 When the plaintiff's complaint, otherwise 
 called a "bill," prays for relief in the same 
 suit, the statements of the defendant in 
 his answer are considered by the court in 
 forming a judgment upon the whole case. 
 
 To a certain extent, the statements of the 
 defendant in answer to the bill are evi- 
 dence for himself also. 
 
 The discovery which may be required is 
 not only of facts within the knowledge of 
 the defendant, but may also be of deeds 
 and other writings in his possession. 
 
 The right to discovery Is not, however, an 
 unlimited one; as, for instance, the defend- 
 ant is not bound to make a discovery which 
 would subject him to punishment, nor, ordi- 
 narily, to discover the title upon which he 
 
 relies in his defense; nor is the plaintiff 
 entitled to require the production of all 
 papers which he may desire to look into. 
 The limits of the right deserve careful con- 
 sideration. The discovery, when had, may 
 be the foundation of equitable relief in the 
 same suit, in which case it may be connect- 
 ed with all the classes of cases in which re- 
 lief is sought; or it may be for the purpose 
 of being used in some other court, in which 
 case the jurisdiction is designated as an 
 "assistant jurisdiction." 
 
 Second, where the courts of law do not, 
 or did not, recognize any right, and there- 
 fore could give no remedy, but where the 
 courts of equity recognize equitable rights, 
 and, of course, give equitable relief. This 
 has been denominated the "exclusive juris- 
 diction." In this class are trusts, charities, 
 forfeited and imperfect mortgages, penalties 
 and forfeitures, imperfect consideration. 
 
 Uses and trusts have been supposed to 
 have had their origin in the restrictions laid 
 by parliament upon conveyances in mort- 
 main, — that is, to the church for charitable, 
 or rather for ecclesiastical, purposes. 
 
 It may well be that the doctrine of equi- 
 table titles and estates, unknown to the 
 common law, but which could be enforced 
 in chancery, had its origin in conveyances 
 to individuals for the use of the church in 
 order to avoid the operation of these re- 
 strictions; the conscience of the feoffee be- 
 ing bound to permit the church to have 
 the use according to the design and intent 
 of the feoffment. But conveyances in trust 
 for the use of the church were not by any 
 means the only cases in which it was de- 
 sirable to convey the legal title to one for 
 the use of another. In many instances, such 
 a conveyance offered a convenient mode of 
 making provision for those who, from any 
 circumstances, were unable to manage prop- 
 erty advantageously for themselves, or to 
 whom it was not desirable to give the con- 
 trol of it; and the propriety in all such 
 cases of some protection to the beneficiary 
 is quite apparent. The court of chancery, 
 by recognizing that he had an interest of 
 an equitable character which could be pro- 
 tected and enforced against the holder of 
 the legal title, exercised a jurisdiction to 
 give relief in cases which the courts of com- 
 mon law could not reach consistently with 
 their principles and modes of procedure. 
 
 Mortgages, which were originally estates 
 conveyed upon condition, redeemable if the 
 condition was performed at the day, but 
 absolute on nonperformance, the right to 
 redeem being thereby forfeited, owe their 
 origin to the court of chancery, which, act- 
 ing at first, perhaps, in some case where 
 the nonperformance was by mistake or acci- 
 dent, soon recognized an equitable right of 
 redemption after the day, as a general rule, 
 in order to relieve against the forfeiture. 
 This became known as an "equity of re- 
 demption," — a designation in use at the pres- 
 ent day, although there has long been a 
 legal right of redemption in such cases. 
 
 Relief against penalties and forfeitures 
 
EQUITY 
 
 (324) 
 
 EQUITY 
 
 also was formerly obtained only through the 
 ; aid of the court of chancery. 
 
 In most of the cases which fall under 
 this head, courts of law now exercise a 
 concurrent jurisdiction. 
 
 Third, where the courts of equity ad- 
 minister equitable relief for the infraction 
 of legal rights, in cases in which the courts 
 of law, recognizing the right, give a remedy 
 according to their principles, modes, and 
 forms, but the remedy is deemed by equity 
 inadequate to the requirements of the case. 
 This is sometimes called the "concurrent 
 jurisdiction." This class embraces fraud, 
 mistake, accident, administration, legacies, 
 contribution, and cases where justice and 
 conscience require the cancellation or refor- 
 mation of instruments, or the rescission or 
 the specific performance of contracts. 
 
 The courts of law relieve against fraud, 
 mistake, and accident where a remedy can 
 be had according to their modeS and forms; 
 but there are many cases in which the legal 
 remedy is inadequate for the purposes of 
 justice. 
 
 The modes of investigation, and the pe- 
 culiar remedies of the courts of equity, are 
 often of the greatest importance in this 
 class of cases. 
 
 Transfers to defeat or delay creditors, 
 and purchasers with notice of an outstand- 
 ing title, come under the head of fraud. 
 
 It has been said that there is a less amount 
 of evidence required to prove fraud, in 
 equity, than there is at law, but the sound- 
 ness of that position may well be doubted. 
 
 The court does not relieve in all cases 
 of accident and mistake. 
 
 In many cases, the circumstances are such 
 as to require the cancellation or reforma- 
 tion of written instruments, or the specific 
 performance of contracts, instead of dam- 
 ages for the breach of them. 
 
 Fourth, where the court of equity admin- 
 isters a remedy because the relations of 
 the parties are such that there are impedi- 
 ments to a legal remedy. Partnership fur- 
 nishes a marked instance. Joint tenancy 
 and marshaling of assets may be included. 
 
 Prom the nature of a partnership, there 
 are impediments to suits ■ at law between 
 the several partners and the partnership in 
 relation to matters involved in the partner- 
 ship; and impediments of a somewhat sim- 
 ilar character exist in other cases. 
 
 Fifth, where the forms of proceeding in 
 the courts of law are not deemed adequate 
 to the due investigation of the particulars 
 and details of the case. This class includes 
 account, partition, dower, ascertainment of 
 boundaries. 
 
 Sixth, where, from a relation of trust and 
 confidence, or from consanguinity, the par- 
 ties do not stand on equal groijnd In their 
 dealings with each other; as, the relations 
 of parent and child, guardian and ward, 
 attorney and client, principal and agent, ex- 
 ecutor and administrator, legatees and dis- 
 tributees, trustee and cestui que trust, etc. 
 
 Seventh, where the court grant relief from 
 considerations of public policy, because of 
 the mischief which would result if the court 
 
 did not interfere. Marriage brokage agree- 
 ments, contracts in restraint of trade, buy- 
 ing and selling public oflices, agreements 
 founded on corrupt considerations, usury, 
 gaming, and contracts with expectant heirs, 
 are of this class. 
 
 Cases of this and the preceding class are 
 sometimes considered under the head of 
 "constructive fraud." 
 
 Eighth, where a party, from incapacity to 
 take care of his rights, is under the special 
 care of the court of equity, as infants, 
 idiots, and lunatics. 
 
 This is a branch of jurisdiction of very 
 ancient date, and of a special character, said 
 to be founded in the prerogative of the 
 king. 
 
 In this country the court does not, in 
 general, assume the guardianship, but ex- 
 ercises an extensive jurisdiction over guard- 
 ians, and may hold a stranger interfering 
 with the property of an infant accountable 
 as if he were guardian. 
 
 Ninth, where the court recognizes an ob- 
 ligation on the part of a husband to make 
 provision for the support of his wife, or to 
 make a settlement upon her, out of the prop- 
 erty which comes to her by inheritance, or 
 otherwise. 
 
 This jurisdiction is not founded upon 
 either trust or fraud, but is derived orig- 
 inally from the maxim that he who asks 
 equity should do equity. 
 
 Tenth, where the equitable relief appro- 
 priate to the case consists in restraining 
 the commission or continuance of some act 
 of the defendant, administered by means 
 of a writ of injunction. 
 
 Eleventh, the court aids in the procura- 
 tion or preservation of evidence of the rights 
 of a party, to be used, if necessary, in some 
 subsequent proceeding, the court administer- 
 ing no final relief. 
 
 Peculiar Remedies, and the Manner of 
 
 Administering Tliem. Under this head are, 
 specific performance of contracts; re-execu- 
 tion, reformation, rescission, and cancella- 
 tion of contracts or Instruments; restraint 
 by injunction; bills quia timet; bills of peace; 
 protection of a party liable at law, but who 
 has no interest, by bill of interpleader; elec- 
 tion 4)etween two inconsistent legal rights; 
 conversion; priorities; tacking; marshaling 
 of securities; application of purchase money. 
 
 In recent periods, the principles of the 
 court of chancery have in many instances 
 been acted on and recognized by the courts 
 of law (as, for instance, in relation to mort- 
 gages, contribution, etc.) so far as the rules 
 of the courts of law admitted of their in- 
 troduction. 
 
 In some states, the entire jurisdiction has, 
 by statute, been conferred upon the courts 
 of law, who exercise it as a separate and 
 distinct branch of their authority, upon the 
 principles and according to the modes and 
 forms previously adopted in chancery. 
 
 In a few, the jurisdictions of the courts 
 of law and of equity have been amalgamated, 
 and an entire system has been substituted, 
 administered more according to the prin- 
 
EQUITY 
 
 (325) 
 
 EQUITY OF A STATUTE 
 
 clples and modes and forms of equity than 
 the principles and forms ol the common law. 
 
 Rules and Maxims. In the adminis- 
 tration of the jurisdiction, there are certain 
 rules and maxims which are of special sig- 
 nificance. 
 
 First, equity having once had jurisdiction 
 of a subject matter because there is no 
 remedy at law, or because the remedy is 
 inadequate, does not lose the jurisdiction 
 merely because the courts of law afterwards 
 give the same or a similar relief. 
 
 Second, equity follows the law. This is 
 true as a general maxim. Equity follows 
 the law, except in relation to those matters 
 which give a title to equitable relief be- 
 cause the rules of law would operate to 
 sanction fraud or injustice In the particular 
 case. 
 
 Third, when there is equal equity, the law 
 must prevail. The ground upon which the 
 suitor comes into the court of equity is that 
 he is entitled to relief there. But if his 
 adversary has an equally equitable case, the 
 complainant has no title to relief. 
 
 Fourth, equality is equity. Applied to 
 cases of contribution, apportionment of mon- 
 eys due among those liable or benefited by 
 the payment, abatement of claims on ac- 
 count of deficiency of the means of pay- 
 ment, etc. 
 
 Fifth, he who seeks equity must do equity. 
 A party cannot claim the interposition of the 
 court for relief unless he will do what it is 
 equitable should be done by him as a con- 
 dition precedent to that relief. 
 
 Sixth, equity considers that as done which 
 ought to have been done. A maxim of much 
 more limited application than might at first 
 be supposed from the broad terms in which 
 it is expressed. In favor of parties who 
 would have had a benefit from something 
 contracted to be done, and who have an eq- 
 uitable right to have the case considered as 
 if it had been done, equity applies this max- 
 im. Illustration: When there is an agree- 
 ment for a sale of land, and the vendor dies, 
 the land may be treated as money, and the 
 proceeds of the sale, when completed, go to 
 the distributees of personal estate, instead 
 of to the heir. If the vendee dies before the 
 completion of the purchase, the purchase 
 money may be treated as land for the ben- 
 efit of the heir. 
 
 Remedial Process and Defense. A 
 
 suit in equity is ordinarily instituted by a 
 complaint or petition, called a "bill;" and the 
 defendant is served with a writ of summons, 
 requiring him to appear and answer, called a 
 "subpoena." 
 
 The forms of proceedings in equity are 
 such as to bring the rights of all persons in- 
 terested before the court; and, as a general 
 rule, all persons interested should be made 
 parties to the bill, either as plaintiffs or de- 
 fendants. 
 
 There may be amendments of the bill; or 
 a supplemental bill, which is sometimes nec- 
 essary when the case is beyond the stage for 
 amendment. 
 
 In case the suit fails by the death of the 
 party, there is a bill of revivor, and, after 
 
 the cause is disposed of, there may be a bill 
 of review. 
 
 The defense is made by demurrer, plea, or 
 answer. If the defendant has no interest, he 
 may disclaim. Discovery may be obtained 
 from the plaintiff, and further matter may be 
 Introduced, by means of a cross bill, brought 
 by the defendant against the plaintiff, in or- 
 der that it may be considered at the same 
 time. 
 
 If the plaintiff elects, he may file a repli- 
 cation to the defendant's answer. 
 
 The final process is directed by the de- 
 cree, which, being a special judgment, can 
 provide relief according to the nature of the 
 case. This Is sometimes by a perpetual in- 
 junction. . 
 
 There may be a bill to execute or to im- 
 peach a decree. 
 
 Evidence and Practice. The rules of 
 
 evidence, except as to the effect of the an- 
 swer and the taking of the testimony, are, 
 in general, similar to the rules of evidence 
 in cases at law; but to this there are ex- 
 ceptions. 
 
 The answer, if made on oath, is evidence 
 for the defendant, so far as it is responsive 
 to the calls of the bill for discovery, and 
 as such it prevails, unless it is overcome 
 by something more than what is equivalent 
 to the testimony of one witness. If with- 
 out oath, it is a mere pleading, and the al- 
 legations stand for proof. 
 
 If the answer is incomplete or improper, 
 the plaintiff may except to it, and it must 
 be so amended as to be made sufficient and 
 proper. 
 
 The case may be heard on the bill and 
 answer, if the plaintiff so elects, and sets 
 the case down for a hearing in that mode. 
 
 If the plaintiff desires to controvert any 
 of the statements in the answer, he files a 
 replication by which he denies the truth of 
 the allegations in the answer, and testi- 
 mony is taken. 
 
 The testimony, according to the former 
 practice in chancery. Is taken upon inter- 
 rogatories filed in the clerk's office, and 
 propounded by the examiner, without the 
 presence of the parties; but this practice 
 has been very extensively modified. 
 
 If any of the testimony is improper, there 
 is a motion to suppress it. 
 
 The case may be referred to a master to 
 state the accounts between the parties, or 
 to make such other report as the case may 
 require; and there may be an examination 
 of the parties in the master's office. Excep- 
 tions may be taken to his report. 
 
 The hearing of the case is before the 
 equity judge, who may make interlocutory 
 orders or decrees, and who pronounces the 
 final decree or judgment. There may be a 
 rehearing, if sufficient cause is shown. 
 
 At the present day, in England and in 
 several of the United States, the proceed- 
 ings are very much simplified. 
 
 EQUITY EVIDENCE. See "Evidence." 
 
 EQUITY OF A STATUTE. Where a class 
 of cases is not within the words of a statute, 
 but it is patent that it would have been 
 
EQUITY OF REDEMPTION 
 
 (326) 
 
 ERROR JURIS NOCET 
 
 included had it been within the mind of the 
 legislature, it is included by construction, be- 
 cause it is said to be "within the equity of 
 the statute." 
 
 EQUITY OF REDEMPTION. A right 
 which the mortgagee of an estate has of re- 
 deeming it after it has been forfeited at law 
 by the nonpayment, at the time appointed, of 
 the money secured by the mortgage to be 
 paid, by paying the amount of the debt, in- 
 terest, and costs. 
 
 The phrase "equity of redemption" is in- 
 discriminately, though often incorrectly, ap- 
 plied to the right of the mortgagor to regain 
 his estate, both before and after breach of 
 condition. In North Carolina, by statute, 
 the former is called a "legal right of redemp- 
 tion," and the latter the "equity of redemp- 
 tion," thereby keeping a just distinction be- 
 tween these estates. 1 Rev. St. N. C. 266; 4 
 McCord (S. C.) 340. The interest is recog- 
 nized at law for many purposes. As a sub- 
 sisting estate, although the mortgagor, in 
 order to enforce his right, is obliged to re- 
 sort to an equitable proceeding, adminis- 
 tered generally in courts of equity, but in 
 some states by courts of law (11 Serg. & R. 
 [Pa.] 223), or in some states may pay the 
 debt, and have an action at law (18 Johns. 
 [N. Y.] 7, 110; 1 Halst. [N. J.] 466; 2 Har. 
 &McH. [Md.] 9). 
 
 EQUITY TO A SETTLEMENT. The right 
 of a wife, In an action by her husband to re- 
 duce to his possession an equitable estate 
 falling to her, to have the court inquire in- 
 to the circumstances of the marriage, the 
 marriage settlement, and the relation of the 
 parties, and require part of the estate in 
 controversy to be settled on her. Haynes, 
 Eq. 114; White & T. Lead. Cas. 381. 
 
 EQUIVALENT. Of the same value. Some- 
 times a condition must be literally accom- 
 plished in forma speciflca; but some may be 
 fulfilled by an equivalent, -per aequipolens, 
 when such appears to be the intention of 
 the parties. Rolle, Abr. 451; 1 Bouv. Inst, 
 note 760. 
 
 In Patent Law. As applied to machines, 
 
 a device which performs the same result as 
 another, in substantially the same way. 58 
 Fed. 281. As applied to the chemical action 
 of floods, it means "equally good." 7 Wall. 
 (U. S.) 330. 
 
 EQUIVOCAL. Having a double sense. 
 
 In the construction of contracts, it is a 
 general rule that, when an expression may 
 be taken in two senses, that shall be pre- 
 ferred which gives it effect. See "Construc- 
 tion;" "Interpretation;" Dig. 22. 1. 4. 45. 1; 
 Id. 80. 50. 17. 67. 
 
 EQUULEUS (Lat.) A kind of rack for ex- 
 torting confessions. Enc. Lond. 
 
 ERASTIANS. The followers of Erastus. 
 The sect obtained much influence in Eng- 
 land, particularly among common lawyers in 
 the time of Selden. They held that offenses 
 against religion and morality should be pun- 
 ished by the civil power, and not by the 
 
 censures of the church, or by excommunica- 
 tion. Wharton. 
 
 ERASURE. The obliteration of a writing, 
 or part thereof. It will render it void or not 
 under the same circumstances as an inter- 
 lineation. See 5 Pet. (U. S.) 560; 11 Coke, 
 88; 4 Cruise, Dig. 368; 13 Viner, Abr. ,41; 
 Fitzg. 207; 5 Bing. 183; 3 Car. & P. 5^; 2 
 Wend. (N. Y.) 555; 11 Conn. 531; 5 Mart. 
 (La.) 190; 2 La. 291; 3 La. 56; 4 La. 270. 
 
 ERCISCUNDUS (Lat. erciscere). For di- 
 viding. Familiae eriscundae actio, an action 
 for dividing a way, goods, or any matter of 
 inheritance. Vicat; Calv. Lex. 
 
 EREGIMUS (Lat. we have erected). A 
 word proper to be used in the creation of a 
 new office by the sovereign. Bac. Abr. "Of- 
 fices" (E). 
 
 ERGO (Lat.) Therefore. 
 
 ERGO LAB I. In civil law. Undertakers of 
 work; contractors. Code, 4. 59. 
 
 ERIACH. In the Brehon law. A pecun- 
 iary satisfaction or recompense, correspond- 
 ing in some degree with the weregild of the 
 Saxon law, which a party guilty of murder 
 was condemned to pay to the wife or child 
 or friends of the deceased. 4 Bl. Comm. 
 313. The same, probably, with enach, in old 
 Scotch law. Skene de Verb. Sign. voc. 
 "Enach." 
 
 EROSION. The gradual eating away of 
 the soil by the operation of currents or tides. 
 100 N. Y. 433. It is distinguished from sub- 
 mergence (g. v.), and opposed to alluvion 
 
 (q. V.) 
 
 EROTIC MANIA. In medical jurispru- 
 dence. A name given to a morbid activity 
 of the sexual propensity. It is a disease or 
 morbid affection of the mind, which fills it 
 with a crowd of voluptuous images, and hur- 
 ries its victim to acts of the grossest licen- 
 tiousness, in the absence of any lesion of 
 the intellectual powers. See "Mania." 
 
 Distinct from "nymphomania" {q. v.) 
 
 ERRANT (Lat. errare, to wander). Wan- 
 dering. Justices in eyre were formerly said 
 to be errant (itinerant). Cowell. 
 
 ERRATICUM (Law Lat.) In old law. A 
 waif or stray. Cowell. 
 
 ERRONICE (Lat.) Erroneously; through 
 mistake. Yelv. 83. 
 
 ERROR. See "Mistake." 
 
 ERROR FUCATUS NUDA VERITATE IN 
 multis est probabilior, et saepenumero ra- 
 tionlbus vincit veritatem error. Error art- 
 fully colored is in many things more prob- 
 able than naked truth, and frequently error 
 conquers truth and argumentation. 2 Coke, 
 73. 
 
 ERROR JURIS NOCET. Error of law is 
 
ERROR NOMINIS, ETC. 
 
 (327) 
 
 ESCHEAT WRIT OF 
 
 injurious. See 4 Bouv. Inst, note 3828; 1 
 Story, Bq. Jur. § 139, note. 
 
 ERROR NOMINIS NUNQUAM NOCET, SI 
 de identitate rei constat. Mistake in the 
 name never injures, if there is no doubt as 
 to the identity of the thing. 1 Duer, Ins. 
 
 171. 
 
 ERROR QUI NON RESISTITUR, APPRO- 
 batur. An error not resisted is approved. 
 Doctor & Stud. c. 70. 
 
 ERROR SCRIBENTIS NOCERE NON 
 debit. An error made by a clerk ought not 
 to injure; a clerical error may be corrected. 
 1 Jenk. Cent. Gas. 324. 
 
 ERROR, WRIT OF. See "Writ of Error." 
 
 ERRORES AD SUA PRINCIPIA REF- 
 erre, est refellere. To refer errors to their 
 origin is to refute them. 3 Inst. 15. 
 
 ERRORS EXCEPTED. A phrase append- 
 ed to an account stated, in order to excuse 
 slight mistakes or oversights. Often vsrritten 
 "E. & 0. E.," meaning errors and omissions 
 excepted. 
 
 ERTHMIOTUM. In old English law. A 
 meeting of the neighborhood to compromise 
 differences among themselves; a court held 
 on the boundary of two lands. 
 
 ERUBESCIT LEX FILIOS CASTIGARE 
 parentes. The law blushes when children 
 correct their parents. 8 Coke, 116. 
 
 ESBRANCATURA. Cutting off branches 
 or boughs in forests, etc. Hov. Ann. 784. 
 
 ESCALDARE. To scald. It is said that to 
 scald hogs was one of the ancient tenures in 
 serjeanty. 
 
 ESCAMBIO. In old English law. A writ 
 granting power to an English merchant to 
 draw a bill of exchange on another who is 
 in a foreign country. Reg. Grig. 194. 
 
 ESCAMBIUM. Exchange (?. v.) 
 
 ESCAPE. The deliverance of a person, 
 who Is lawfully imprisoned, out of prison, 
 before such a person is entitled to such deliv- 
 erance by law. 5 Mass. 310. ' 
 
 When one who is arrested gains his lib- 
 erty before he is delivered in due course of 
 law. 107 N. C. 858. 
 
 Departure of a prisoner from custody be- 
 fore he is discharged by due process of law. 
 
 Escape takes place without force; prison 
 breach, with violence; rescue, through the 
 intervention of third parties. 
 
 Actual Escapes. Those which take 
 
 place when the prisoner in fact gets out of 
 prison, and unlawfully regains his liberty. 
 
 Constructive Escapes. These take 
 
 place when the prisoner obtains more lib- 
 erty than the law allows, although he still 
 remains in confinement. Bac. Abr. "Es- 
 cape" (B); Plowd. 17; 5 Mass. 310; 2 Ma- 
 son (U. S.) 486. This distinction obtains 
 only as to arrest in civil actions. 
 
 Negligent Escape. This takes place 
 
 when the prisoner goes at large, unlawfully, 
 either because the building or prison in 
 which he is confined is too weak to hold 
 him, or because the keeper, by carelessness, 
 lets him go out of prison. 
 
 Voluntary Escape. This takes place 
 
 when the prisoner has given to him volun- 
 tarily any liberty not authorized by law.' 5 
 Mass. 310; 2 N. Chip. (Vt.) 11; 25 N. H. 
 458. 
 
 ESCAPE WARRANT. A warrant issued in , 
 England against a person who, being charged 
 in custody in the king's bench or Fleet pris- 
 on, in execution or mesne process, escapes 
 and goes at large. Jacob. 
 
 ESCAPIO QUIETUS. Delivered from that 
 punishment which, by the laws of the for- 
 est, lay upon those whose beasts were found 
 upon forbidden land. Jacob. 
 
 ESCAPIUM (Law Lat.) An escape. Reg. 
 Grig. 312. 
 
 That which comes by chance or accident. 
 Cowell. 
 
 ESCEPPA. A measure of com. Cowell. 
 
 ESCHAETAE VULGO DICUNTUR QUAE 
 decidentibus lis quae de rege tenent,cunn non 
 existit ratione sanguinis haeres, ad fiscum 
 reiabuntur. Those things are commonly call- 
 ed "escheats" which revert to the exchequer 
 from a failure of issue in those who hold 
 of the king, when- there does not exist any 
 heir by consanguinity. Co. Litt. 13. 
 
 ESCHEAT (Fr. cscheoir, to happen). 
 
 Under the Feudal System. An obstruc- 
 tion of the course of descent, and a conse- 
 quent determination of the tenure by some 
 unforeseen contingency, in which case the 
 land naturally reverts back to the original 
 grantor or lord of the fee. 2 Bl. Comm. 
 244. 
 
 Escheat grows out of the doctrine of ten- 
 ure, which is the foundation of the feudal 
 system, whereby a man was not an owner of 
 land, but only of a demesne estate therein, 
 based on allegiance to a superior lord. 
 
 Escheat is to be distinguished from "for- 
 feiture." Forfeiture of land for crime was 
 part of the Saxon system, and was not a 
 consequence of any lordship paramount. It 
 was not superseded by the introduction of 
 the Norman tenures from which escheat re- 
 sulted. "Escheat therefore operates in sub- 
 ordination to this more ancient and superior 
 law of forfeiture." 2 Bl. Comm. 251. 
 
 The principal grounds of escheat were 
 death intestate, without heirs, alienage, ille- 
 gitimacy, and attainder. 2 Bl. Comm. 246; 
 4 Kent, Comm. 424. Gnly the first two are 
 generally in force in the United States, the 
 third being generally abolished by statute, 
 and the fourth by Const. U. S. art. 1, § 9, 
 subd. 3. See 9 Mass. 363. 
 
 In Modern Law. The reversion of land 
 
 to the state by reason of failure of heirs or 
 of the owner's incapacity to hold. 
 
 ESCHEAT, WRIT OF. A writ which an- 
 ciently lay for a lord, to recover possession 
 of lands that had escheated to him. Reg. 
 
ESCHEATOR 
 
 (328) 
 
 ESSOIN 
 
 Orig. 164b; Fitzh. Nat. Brev. 143; Termes 
 de la Ley; 2 Bl. Comm. 245; 3 Bl. Comm. 
 194. Now abolished. 1 Staph. Comm. 401, 
 •note. 
 
 ESCHEATOR. The name of an officer 
 whose duties are generally to ascertain what 
 escheats have taken place, and to prosecute 
 the claim of the sovereign for the purpose of 
 recovering the escheated property. 10 Viner, 
 Abr. 158; Co. Litt. 13b; Tomlins; Termes de 
 la Ley. His office was to be retained but 
 one year, and no one person could hold the of- 
 fice more than once in three years. Termes 
 de la Ley. 
 
 ESCHECCUM. A jury or inquisition. Matt. 
 Par. 
 
 ESC HI PA RE. To build or equip. Du 
 Cange. 
 
 ESCRIBANO. In Spanish law. The pub- 
 lic officer who is lawfully authorized to re- 
 duce to writing and verify by. his signature 
 all judicial acts and proceedings, as well as 
 all acts and contracts entered into between 
 private individuals. 
 
 ESCRITURA. In Spanish law. A written 
 instrument. Every deed that is made by the 
 hand of a public escribano, or notary of a 
 corporation or council (concejo), or sealed 
 with the seal of the king or other authorized 
 persons. White, New Recop. bk. 3, tit. 7, 
 c. 5. 
 
 ESCROW. The delivery of a deed or oth- 
 er instrument (31, 111. 538), actually exe- 
 cuted and ready for delivery (42 Wis. 440), 
 to a stranger to the instrument (13 Ohio St. 
 254), to be by him delivered to the person 
 for whose benefit it is made, on the perform- 
 ance of a condition, or the happening of a 
 contingency (90 Ala. 294), or to be redeliv- 
 ered to the depositor on failure thereof (24 
 Neb. 86). 
 
 ESCROWL. In old English law. An es- 
 crow; a scroll. "And deliver the deed to a 
 stranger, as an escrowl." Perk. c. 1, § 9; Id. 
 c. 2, §§ 137, 138. 
 
 ESCUAGE. In old English law. Service 
 of the shield. Tenants who hold their land 
 by escuage hold by knight's service. 1 
 Thomas, Co. Litt. 272; Litt. § 95, 86b. 
 
 ESKIPPAMENTUM. Tackle or furniture ; 
 outfit. Certain towns in England were bound 
 to furnish certain ships at their own ex- 
 pense, and with double skippage or tackle. 
 The modern word "outfit" would seem to 
 render the passage quite as satisfactorily, 
 though the conjecture of Cowell has the ad- 
 vantage of antiquity. 
 
 ESKIPPER, or ESKIPPARE. To ship. 
 Kelham; Rast. Entr. 409. 
 
 ESKIPPESON. Shippage, or passage by 
 sea. Spelled, also, "skippeson." Cowell. 
 
 ESLrSORS. See "Elisors." 
 
 ESNE. In old law. A hireling of servile 
 condition. 
 
 ESNECY. Eldetship. In the English law, 
 this word signifies the right which the eld- 
 est coparcener of lands has to choose one of 
 the parts of the estate after it has been di- 
 vided. 
 
 ESPERA. The period fixed by a compe- 
 tent judge within which a party is to do cer- 
 tain acts, as, e. g., to effect certain pay- 
 ments, present documents, etc.; and more es- 
 pecially the privilege granted by law to 
 debtors, allowing them certain time for the 
 payment of their indebtedness. 
 
 ESPERONS. Spurs. 7 Coke, 13. 
 
 ESPLEES. The products which the land 
 or ground yields; as, the hay of the mead- 
 ows, the herbage of the pasture, corn or 
 other produce of the arable, rents and serv- 
 ices. Termes de la Ley. See 11 Serg. & R. 
 (Pa.) 275; Dane, Abr. Index. 
 
 ESPOUSALS. A mutual promise between 
 a man and a woman to marry each other at 
 some other time. It differs from a mar- 
 riage, because then the contract is completed. 
 Wood, Inst. 57. 
 
 ESPURIO (Spanish). A spurious child; 
 one begotten on a woman who has promis- 
 cuous intercourse with many men. White, 
 New Recop. bk. 1, tit. 5, c. 2, § 1. 
 
 ESQUIRE. A title! applied by courtesy to 
 officers of almost every description, to mem- 
 bers of the bar, and others. No one is en- 
 titlefi to it by law, and therefore it confers 
 no distinction in law. 
 
 In England, it is a title next above that 
 of a gentleman, and below that of a knight. 
 Camden reckons up four kinds of esquires 
 particularly regarded by the heralds: The 
 eldest sons of knights, and their eldest sons 
 in perpetual succession; the eldest sons of 
 the younger sons of peers, and their eldest 
 sons in like perpetual succession; esquires 
 created by the king's letters patent, or other 
 investiture, and their eldest sons; esquires 
 by virtue of their office, as justices of the 
 peace, and others who bear any office of trust 
 under the crown. 
 
 ESSARTER (Law Pr.) To cut down woods ; 
 to clear land of trees and underwood; prop- 
 erly to thin woods by cutting trees, etc., at 
 intervals. Spelman. Commonly written "as- 
 sart" ((/. r.) 
 
 ESSARTUM. 
 land. 
 
 Assarted or cleared wood- 
 
 ESSENCE OF THE CONTRACT. A stip- 
 ulation is said to be "of the essence of the 
 contract" when a strict compliance with its 
 terms is essential to due performance. 
 
 ESSENDI QUIETAM DE THEOLONIA 
 
 (Lat. of being quit of toll). A writ which 
 lay anciently for the citizens or burgesses 
 of a town which was entitled to exemption 
 from toll, in case toll was demanded of 
 them. Fitzh. Nat. Brev. 226 (I)! 
 
 ESSOIN, or ESSOIGN. In old English law. 
 An excuse for not appearing in court at the 
 
ESSOIN DAY 
 
 (329) 
 
 ESTATES 
 
 return of the process; presentation of such 
 «xcuse. Spelman; 1 Sellon, Prac. 4; Comyn, 
 Dig. "Exoine" (B 1). Essoin Is not now al 
 lowed at all in personal actions. 2 Term R. 
 16; 16 East. 7 (a) ; 3 Sharswood, Bl. Comni. 
 ,278, note. 
 
 ESSOIN DAY. Formerly, the first day in 
 the term was essoin day; now practically 
 abolished. Dowl. 448; 3 Sharswood, Bl. 
 Comm. 278, note. 
 
 ESSOIN DE MALO VILLAE. When the 
 defendant is in court the first day, but gone 
 without pleading, and being afterwards sur- 
 prised hy sickness, etc., cannot attend, he 
 may send two essoiners, who openly protest 
 in court that he Is detained by sickness in 
 such a village, that he cannot come wo lu- 
 crari and pro perdere; and this will be ad- 
 mitted, for it lieth on the plaintiff to prove 
 whether the essoin is true or not. Jacob. 
 
 ESSOIN ROLL. The roll containing the 
 essoins and the day of adjournment. Ros- 
 coe. Real Actions, 162 et seq. 
 
 ESSOINIATOR, or ESSOINEOUR. An es- 
 soiner. One who was sent to present an ex- 
 cuse for another. 1 Reeve, Hist. Eng. Law, 
 116, 118. 
 
 EST ALIQUID QUOD NON OPERTET, 
 etiam si licet; quicquid vero non licet certe 
 non oportet. There are some things which 
 are not proper, though lawful; but certainly 
 those things are not proper which are not 
 lawful. Hob. 159. 
 
 EST ASCAVOIR (Lat.) It is to be under- 
 stood or known; "it is to wit." Litt. §§ 9, 
 45, 46, 57, 59. A very common expression 
 in Littleton, especially at the commence- 
 ment of a section; and, according to Lord 
 Coke, "it ever teacheth us some rule of lav^, 
 or general or sure leading point." Co. Litt. 
 16. It seems to be derived from the scien- 
 dum est (q. V.) of the civil law. 
 
 EST AUTEM JUS PUBLICUM ET PRI- 
 vatum, quod ex naturalibus praeceptis aut 
 gentium, aut civllibus est collectum; et quod 
 in jure scripto jus appeilatur, id in lege An- 
 gliae rectum esse dicitur. Public and private 
 law is that which is collected from natural 
 precepts, on the one hand of nations, on the 
 other of citizens; and that which in the 
 civil law is called jiix. that in the law of 
 England is said to be right. Co. Litt. 558. 
 
 EST AUTEM VIS LEGEM SIMULANS. 
 Violence may also put on the mask of law. 
 
 EST BONI JUDICIS AMPLIARE JURIS- 
 dictionem. It is the part of a good judge to 
 extend the jurisdiction. Gilb. 14. 
 
 EST IPSORUM LEGISLATORUM TAN- 
 quam viva vox; rebus et non verbis legem 
 imponimus. The utterance of legislators 
 themselves is like the living voice; we im- 
 pose law upon things, not upon words. 10 
 Coke, 101. 
 
 EST QUIDDAM PERFECTIUS IN REBUS 
 Ileitis. There is something more perfect in 
 things allowed. Hob. 159. 
 
 ESTABLISH. This word occurs frequent- 
 ly in the constitution of the United States, 
 a,nd it is there used in different meanings: 
 (1) To settle firmly, to fl.x unaKerably; as. 
 to establish justice, which is the avowed ob- 
 ject of the constitution. (2) To make or 
 form; as, to establish a uniform rule oif nat- 
 uralization, and uniform laws on the subject 
 of bankruptcies, — which evidently does not 
 mean that these laws shall be unalterably 
 established as justice. (3) To found, to cre- 
 ate, to regulate; as, congress shall have pow- 
 er to establish post roads and post offices. 
 (4) To found, recognize, confirm, or admit; 
 as, congress shall make no law respecting 
 an establishment of religion. (5) To cre- 
 ate, to ratify, or confirm; as, "We, the peo- 
 ple, etc., do ordain and establish this con- 
 stitution." 1 Story, Const. § 454. 
 
 ESTABLISHMENT, or ESTABLISSE- 
 ment. An ordinance or statute. Especially 
 used of those ordinances or statutes passed 
 in the reign of Edw. I. 2 Inst. 156; Britt. 
 c. 21. 
 
 Bsiablissement is also used to denote the 
 settlement of dower by the husband upon 
 his wife. Britt. c. 102. 
 
 ESTABLISHMENT OF DOWER. The as- 
 surance of dower made by the husband, or 
 his friends, before or at the time of the 
 marriage. Britt. cc. 102, 103. 
 
 ESTADAL. In Spanish law. In Spanish 
 America this was a measure of land of six- 
 teen square varas, or yards. 2 White, New 
 Recop. 139. 
 
 ESTADIA. In Spanish law. The time for 
 which the party who has chartered a ves- 
 sel, or is bound to receive the cargo, has to 
 pay demurrage on account of his delay in 
 the execution of the contract. Called, also, 
 liobrestadiu. 
 
 ESTATE BY ELEGIT. See "Elegit." 
 
 ESTATE BY STATUTE MERCHANT. An 
 
 estate whereby the creditor, under the cus- 
 tom of London, retained the possession of all 
 his debtor's lands until his debts were paid. 
 1 Greenl. Cruise, Dig. 515. See "Statute 
 Merchant." 
 
 ESTATE IN VADIO. An estate in pledge. 
 
 ESTATE TAIL, QUASI. When a tenant 
 for life grants his estate to a man and his 
 heirs, as these words, though apt and proper 
 to create an estate tail, cannot do so, because 
 the grantor, being only tenant for life, can- 
 not grant in perpetvum, therefore they are 
 said to create an estate tail quasi, or im- 
 proper. Brown. 
 
 ESTATE UPON CONDITION. See "Con- 
 dition." 
 
 ESTATES. The quantum and duration of 
 proprietary rights in lands, tenements, and 
 hereditaments; the theory of the common 
 law being that the tenant or owner is en- 
 titled to an estate in the land rather than 
 to the land itself. This doctrine of estates 
 was not found in the Roman law, or the 
 
ESTATES 
 
 (330) 
 
 ESTATES 
 
 systems derived therefrom, and apparently 
 owes its place in our law to the prevalence 
 in England of the feudal system of tenures, 
 by which the tenant was regarded as hav- 
 ing interest short of absolute ownership, 
 the landlord having a possibility of a re- 
 version to him by the termination of the 
 tenant's interest. Tiffany, Real Prop. § 17. 
 
 The various estates, classified with refer- 
 ence to their quantum or duration, may be 
 tabulated as follows: 
 I. Freehold estates. 
 
 A. Estates of inheritance. 
 
 (1) Pee simple. 
 
 (2) Pee tall. 
 
 B. Estates not of Inheritance (life es- 
 
 tates). 
 
 (1) Conventional life estates. 
 
 (a) Estates for life of the 
 
 tenant. 
 
 (b) Estates pur autre vie. 
 
 (2) Legal life estates. 
 
 (a) Tenancy in tail after pos- 
 
 sibilityof issue extinct. 
 
 (b) Dower. 
 
 (c) Curtesy. 
 
 (d) Estate during coverture. 
 II. Estates less than freehold (leasehold es- 
 tates, chattels real). 
 
 A. Estates for years. 
 
 B. Tenancy at will. 
 
 C. Tenancy from year to year. 
 
 D. Tenancy by sufferance. 
 
 Estates classified according as they give 
 rights of present or future enjoyment are: 
 I. Present estates. 
 II. Puture estates. 
 
 A. Reversions. 
 
 B. Remainders. 
 
 C. Contingent uses. 
 
 D. Springing uses. 
 
 E. Shifting uses. 
 
 F. Executory devises. 
 
 Classified according as they are owned by 
 one or more persons, and accoijding to the 
 nature of the rights of several owners, they 
 are: 
 I. Estates in severalty. 
 II. Joint estates. 
 
 A. Joint tenancy. 
 
 B. Tenancy in common. 
 
 C. Tenancy in coparcenary. 
 
 D. Tenancy in entirety. 
 
 Freehold. An estate of freehold is 
 
 one which is to endure for an uncertain 
 period, which must, or at least may, last 
 during the life of some person. 
 
 Estate of Inheritance. An estate of 
 
 inheritance is any estate which may de- 
 scend to heirs. 1 Washb. Real Prop. 51. 
 All freehold estates are estates of inher- 
 itance except estates for life. Crabb, Real 
 Prop. § 945. 
 
 Estates In Fee Simple. An estate in 
 
 fee simple is that which a man has where 
 lands are given to him and to his heirs ab- 
 solutely, without any end or limit put to 
 his estate. 2 Bl. Comm. 106; 1 Washb. Real 
 Prop. 51. 
 
 The word "simple" does not add any sig- 
 nificance, but is used to mark fully the dis- 
 
 tinction between an unqualified fee and any 
 class of conditional estates. 
 
 Estate in Fee Tail. An estate in fee 
 
 tail or estate tail is an estate of inheritance 
 which, if left to itself, will, after the death 
 of the first owner, descend to his lawful is- 
 sue as long as his posterity endures in a 
 regular order of descent from one to an- 
 other, and will terminate on the failure of 
 such posterity. It derives its existence from 
 the statute de donis (q. v.) 
 
 Estate for Life. An estate for life is 
 
 a freehold interest which cannot extend be- 
 yond the life or lives of some particular 
 person or persons, but which may possibly 
 endure for the period of such life or lives. 
 The estate is generally for the tenant's own 
 life, but made for the life of another person 
 or persons, in which case it is called an es- 
 tate pitr autre vie. 
 
 Tenancy in Tail after Possibility of 
 
 Issue Extinct. Tenancy in tail after possi- 
 bility of issue extinct is where, upon the 
 death of the appointed wife of a donee in 
 special tail, or of one of two donees in 
 special tail without issue living, the donee 
 or survivor of the two donees takes for his 
 life, possibility of issue being extinct. 
 
 Dower. An estate in dower is an es- 
 tate which a widow has for her life in some 
 portion of the lands and tenements of which 
 her husband was seised at any time during 
 coverture, and which her issue might have 
 inherited if she had had any. 1 Washb. Real 
 Prop. 149; 2 Bl. Comm. 129; 4 Kent, Comm, 
 41. See "Dower." 
 
 Curtesy. An estate by curtesy is that 
 
 estate to which a husband is entitled upon 
 the death of his wife in the lands or tene- 
 ments of which she was seised in fee in 
 possession during their coverture, provided 
 they have had lawful issue born alive, and 
 possibly capable of inheriting her estate. 1 
 Washb. Real Prop. 128; Co. Lift. 30a; 2 
 Bl. Comm. 126. See "Curtesy." 
 
 Estate during Coverture. An estate 
 
 during coverture is that right or interest 
 which a husband or wife has during cover- 
 ture in the lands and tenements of his or 
 her spouse. 
 
 -Estate for Years. An estate for years 
 
 is an interest in lands by virtue of a con- 
 tract for the possession of them for a defi- 
 nite and limited period of time. 2 Bl. Comm. 
 140. See "Tenancy." 
 
 Tenancy at Will. An estate at will is 
 
 an estate in lands which the tenant has, by 
 entry made thereon under a demise, to hold 
 during the joint wills of the parties to the 
 same. 2 Bl. Comm. 145. See "Tenancy." 
 
 Tenancy from Year to Year. A ten- 
 ancy from year to year is an interest in 
 lands for a term of one year certain, con- 
 tinuing for successive years, unless due no- 
 tide be given to determine it at the end of 
 the first or any subsequent year. See "Ten- 
 ancy." 
 
 Tenancy by Sufferance. An estate at 
 
 sufferance is the interest of a tenant who 
 has come rightfully into the possession of 
 
ESTATES OF THE REALM 
 
 (331) 
 
 ESTRAY 
 
 lands by permission of tlie owner, and con- 
 tinues to occupy the same after the period 
 for which he is entitled to hold by such 
 permission. 1 Washb. Real Prop. 392. See 
 "Tenancy." 
 
 Estate in Possession. An estate in 
 
 possession is an estate where the tenant is 
 in actual possession of the premises, or in 
 receipt of the rents and other advances 
 arising therefrom. 2 Bl. Comm. 163. 
 
 Estate in Expectancy. An estate in 
 
 expectancy is one giving a present or vested 
 contingent right of future enjoyment. See 
 "Expectancy." 
 
 Reversion. An estate in reversion is 
 
 the residue of an estate left in the grantor 
 to commence in possession after the deter- 
 mination of some particular estate granted 
 out by him. 2 Bl. Comm. 175. See "Rever- 
 sion." 
 
 Remainders. An estate in remainder 
 
 is an estate limited to take effect in pos- 
 session or in enjoyment, or in both, subject 
 to a term of years or contingent interest to 
 intervene, which intermediate interest is 
 created by the same instrument out of the 
 same subject of property. 2 Pearne, Cont. 
 Rem. § 159. See "Remainder." 
 
 Springing, Shifting, and Contingent 
 
 Uses. See "Uses." 
 
 Executory Devises. See "Devise." 
 
 Estate in Severalty. An estate in sev- 
 eralty is one held by a person in his own 
 right, without any other person being joined 
 or connected with him in point of Interest 
 during his estate. 2 Bl. Comm. 179. 
 
 Joint Estate. A joint estate is one in 
 
 which two or more persons are joined in 
 interest. 
 
 Joint Tenancy. An estate of joint ten- 
 ancy is that which subsists where several 
 persons have any subject of property joint- 
 ly between them in equal shares by pur- 
 chase. 1 Bl. Comm. 180; Williams, Real 
 Prop. 112. There must be unity of time, ti- 
 tle, interest, and possession. See "Joint 
 Tenants." 
 
 Tenancy in Common. An estate in 
 
 common one held in joint possession by 
 two or more persons at the same time by 
 several and distinct titles. This estate has 
 the single unity of possession. 2 Bl. Comm. 
 191; 4 Kent, Comm. 366. See "Tenants in 
 Common." 
 
 Estate in Coparcenary. An estate 
 
 which several persons hold as one heir, 
 whether male or female. This estate has 
 unity of time, title, and possession, but the 
 _ Interests of the coparceners may be un- 
 equal. 2 Bl. Comm. 188; 4 Kent, Comm. 
 366. 
 
 Tenancy in Entirety. The estate aris- 
 ing on a conveyance to a man and his wife 
 jointly. They are seised, not of moieties, 
 but of entireties. 16 Mass. 480; 14 N. Y. 
 430. 
 
 ESTATES OF THE REALIVl. The lords 
 spiritual, the lords temporal, and the com- 
 mons of Great Britain. 1 Bl. Comm. 153. 
 gnTnptimes called the "three estates." 
 
 ESTER IN JUDGMENT. To appear before 
 a tribunal either as plaintiff or defendant. 
 
 ESTOPPEL. The preclusion of a person 
 from asserting a fact by previous conduct, 
 inconsistent therewith, on his own part, or 
 the part of those under whom he claims, or 
 by a solemn establishment, which he cannot 
 be allowed to call in question. 
 
 A preclusion; in law, which prevents a 
 man from alleging or denying a fact, in con- 
 sequence of his own previous act, allega- 
 tion, or denial of a contrary tenor. Steph. 
 PI. 239. 
 
 "Estoppe Cometh of the French word es- 
 toupe, from whence the English word 
 'stopped,' and it is called an 'estoppel' or 
 'conclusion' because a man's own act or ac- 
 ceptance stoppeth his mouth to allege or 
 plead the truth." Co. Litt. 352a. 
 
 Estoppel is either by record, by deed, or 
 by facts in iKiia. 
 
 (1) Estoppel by record is the preclusion 
 of one to deny that which either appears 
 by the roll of a legislature, or has been ad- 
 judicated by a court of competent jurisdic- 
 tion. See "Former Adjudication." 
 
 (2) Estoppel by deed is the preclusion of 
 one to deny that which he has asserted by an 
 agreement or conveyance under seal. See 7 
 Conn. 214; 13 Pick. (Mass.) 670; 62 111. 344; 
 18 Johns. (N. Y.) 492. 
 
 (3) Estoppel by facts in pais, commonly 
 called "estoppel in pais," is the preclusion of 
 one to deny that which, by his conduct, he 
 may have induced another to believe and act 
 on to his prejudice. 129 111. 657; 60 Minn. 
 531; 22 N. J. Law, 619; 46 Ohio St. 255. 
 
 In the early common law, estoppel in pais 
 was practically unrecognized (27 Conn. 282), 
 the present doctrine being of equitable cre- 
 ation. 
 
 ESTOVERIA SUNT ARDENDI, ARUNDI, 
 construendi, et claudendi. Estovers are for 
 burning, ploughing, building, and Inclosing. 
 13 Coke, 68. 
 
 ESTOVERIIS HABENDIS. A writ which 
 anciently lay for a wife, judicially separated 
 from her husband, to recover her alimony or 
 estovers. 
 
 ESTOVERS (estouviers, necessaries; from 
 estoffer, to furnish). The right or privilege 
 which a tenant has to furnish himself with 
 so much wood from the demised premises as 
 may be sufficient or necessary for his fuel, 
 fences, and other agricultural operations. 2 
 Bl. Comm. 35; Woodf. Landl. & Ten. 232; 
 10 Wend. (N. Y.) 639. 
 
 ESTRAY. An animal of value, not wild, 
 found wandering from its owner; cattle 
 whose owner is unknown. 2 Kent, Comm. 
 359. 
 
 It is essential (1) that the animal should 
 be by its nature tame or reclaimable (1 Bl. 
 Comm. 298); (2) that it should be an ani- 
 mal upon which the law sets a value (Id.) ; 
 (3) that it should not only be away from 
 the owner, but running at large (36 N. J. 
 Law, 235). The manner in which the ani- 
 
ESTREAT 
 
 (332) 
 
 ET INDE PETIT JUDICIUM 
 
 mal escaped from the owner lias been said 
 to be immaterial. 70 Iowa, 509. But see 63 
 111. 88. 
 
 ESTREAT. A true copy or note of some 
 original writing or record, and especially of 
 fines and amercements imposed by a court, 
 extracted from the record, and certified to a 
 proper officer or officers, authorized and re- 
 quired to collect them. Fitzh. Nat. Brev. 57, 
 76. A forfeited recognizance taken out from 
 among the other records for the purpose of 
 being sent up to the exchequer, that the par- 
 ties might be sued thereon, was said to be 
 estreated. 4 Bl. Comm. 253. 
 
 EST R EC I AT US. Straightened, as applied 
 to roads. Cowell. 
 
 ESTREPE. To strip; to commit waste. 
 
 ESTREPEMENT. A common-law writ for 
 the prevention of waste. 
 
 The writ lay at common law to prevent a 
 party in possession from committing waste 
 on an estate the title to which was disputed, 
 after judgment obtained in any real action, 
 and before possession was delivered by the 
 sheriff. But, as waste might be committed 
 in some cases pending the suit, the statute 
 of Gloucester gave another writ of estrepe- 
 mgnt pendente placito, commanding the sher- 
 iff firmly to inhibit the tenant "ne faciat 
 vastum vel strepementum pendente placito 
 dicto indiscusso." By virtue of either of 
 these writs, the sheriff may resist those who 
 commit waste, or offer to do so; and he 
 might use sufficient force for the purpose. 
 3 Bl. Comm. 225, 226. 
 
 This writ is sometimes directed to the 
 sheriff and the party in possession of the 
 lands, in order to make him amenable to 
 the court as for a contempt in case of his 
 disobedience to the injunction of the writ. 
 At common law, the process proper to bring 
 the tenant into court is a venire facias, and 
 thereon an attachment. Upon the defend- 
 ant's coming in, the plaintiff declares against 
 him. The defendant usually pleads "that he 
 has done no waste contrary to the prohibi- 
 tion of the writ." The issue on this plea is 
 tried by a jury, and, in case they find against 
 the defendant, they assess damages which 
 the plaintiff recovers. But, as this verdict 
 convicts the defendant of a contempt, the 
 court proceed against him for that cause as 
 in other cases. 2 Inst. 329; East. Bntr. 317; 
 Moore, 100; 1 Bos. & P. 121; 2 Lilly, Reg.; 
 5 Coke, 119; Reg. Brev. 76, 77. 
 
 In Pennsylvania, by legisla;tive enactment, 
 the remedy by estrepement is extended for 
 the benefit of any owner of lands leased for 
 years or at will, at any time during the con- 
 tinuance or after the expiration of such de- 
 mise, and due notice given to the tenant to 
 leave the same, agreeably to law; or for any 
 purchaser at sheriff or coroner's sale of 
 lands, etc., after he has been declared the 
 highest bidder by the sheriff or coroner; 
 or for any mortgagee or judgment creditor, 
 after the lands bound by such judgment or 
 mortgage shall have been condemned by in- 
 quisition, or which may be subject to be 
 sold by a writ of venditioni exponas or le- 
 
 vari facias. See 10 Viner, Abr. 497; Woodf. 
 Landl. & Ten. 447; Archb. Civ. PI. 17; 7 
 Comyn, Dig. 659. 
 
 ET (Lat.) And. 
 
 ET ADJOURNATUR (or ADJORNATUR) 
 
 (Law Lat. and it is adjourned). A phrase 
 used in the old reports, where the argument 
 of a cause was adjourned to another day, or 
 where a second argument was had. Y. B. 
 T. 3 Edw. III. 37; 1 Keb. 692, 754, 773; 
 Keilw. 65; Hardr. 68; Cro. Eliz. 180; T. 
 Raym. 55. See "Adjournatur." 
 
 ET AL. Abbreviation of et alius, or alium, 
 and another. Et als., abbreviation of et 
 alios, and others. 
 
 Abbreviations used in entitling causes 
 where there are two or more parties. 
 
 ET ALII E CONTRA (Lat. and others on 
 the other side). A phrase constantly used 
 in the Year Books, in describing a joinder 
 in issue. Y. B. P. 1 Edw. II. Prist; et alii 
 e contra, et sic ad patriam, ready; and oth- 
 ers, e contra, and so to the country. Y. B. T. 
 3 Edw. III. 4. 
 
 ET DE CEO SE METTENT EN LE PAYS 
 
 (Law Fr.) And of this they put themselves 
 upon the country. Pet. Assaver, § 64. 
 
 ET DE HOC PONIT SE SUPERPATRIAM 
 
 (Lat. and of this he puts himself upon 
 the country). The Latin form of concluding 
 a traverse. See 3 Bl. Comm. 313. 
 
 ET El LEGITUR IN HAEC VERBA (Law 
 Lat. and it is read to him in these words). 
 Words formerly used in entering the prayer 
 of oyer on record. 
 
 ET HABEAS IB! TUNC HOCBREVE (Law 
 
 Lat. and have you then there this writ). A 
 clause in old writs, expressive of the com- 
 mand to return to them. Reg. Jud. 1; 
 Fleta, lib. 2, c. 64, § 19; Towns. PI. 166. 
 Literally translated in the modern forms. 
 
 ET HABUIT (Lat. and he had it). A com- 
 mon phrase in the Year Books, expressive of 
 the allowance of an application or demand 
 by a party. Parn. demanda la view. Et ha- 
 tiuit, etc. Y. B. M. 6 Edw. III. 49. 
 
 ET HOC PARATUS EST VERIFICARE 
 
 (Lat. and this he is prepared to verify). 
 The Latin form of concluding a plea in con- 
 fession and avoidance; that is, where the 
 defendant has confessed all that the plain- 
 tiff has set forth, and has pleaded new mat- 
 ter in avoidance. 1 Salk. 2. 
 
 ET HOC PETIT QUOD INQUIRATUR 
 per patriam (Lat. and this he prays may be 
 inquired into by his country). The conclu- 
 sion of a plea tendering an issue to the 
 country. 1 Salk. 3. 
 
 ET INDE PETIT JUDICIUM (Lat. and 
 thereupon [or thereof] he prays judgment). 
 A clause at the end of pleadings, praying the 
 judgment of the court in favor of the party 
 pleading. It occurs as early as the time of 
 Bracton, and is literally translated in the 
 
ET INDE PRODUCIT, ETC. 
 
 (333) 
 
 EVICTION 
 
 modern forms. Braoton, fol. 57b; Crabb, 
 Hist. Eng. Law, 217. 
 
 ET INDE PRODUCIT SECTAM (Lat. and 
 thereupon he brings suit). The Latin con- 
 clusion of a declaration, except against at- 
 torneys and Other officers of the court. 3 
 Sharswood, Bl. Comm. 295. 
 
 ET MODO AD HUNC DIEM (Lat. and now 
 at this day). The Latin form of the com- 
 mencement of the record on appearance of 
 the parties. 
 
 ET NON (Lat. and not). These words are 
 sometimes employed in pleading to convey 
 a pointed denial. They have the same ef- 
 fect as "without this," absque hoc. 
 
 ET SEQ. (Lat. et sequent id, and following). 
 Ordinarily used with a reference to the first 
 of several consecutive pages or chapters de- 
 sired to be' cited, as "page 246 et seq." 
 
 ET SIC (Law Lat. and so). The com- 
 mencement of a formula, as, et sic nil deiet, 
 et sic non est factum, formerly used as a 
 special conclusion to a plea in bar, in order 
 to render it positive, and to avoid the fault 
 of argumentativeness. Archb. Civ. PI. 224; 
 Mansel, Demurrer, 75. 
 
 ET SIC AD JUDICIUM. And so to judg- 
 ment. Y. B. T. 1 Bdw. II. 10. 
 
 ET SIC AD PATRIAM (Law Lat. and so to 
 the country). A common phrase in the 
 Year Books, in recording an issue to the 
 country. U ne dona pas, prist, etc., et alii e 
 contra; et sic ad patriam. Y. B. M. 3 Edw. 
 III. 29. 
 
 ET SIC FECIT (Lat.) And he did so. Y. 
 B. P. 9 Hen. VI. 17. 
 
 ET SIC PENDET (Lat. and so it hangs). 
 A term used in the old reports to signify 
 that a point was left undetermined. T. 
 Raym. 168. Et sic pendet placitum, and so 
 the plea hangs. Y. B. T. 1 Edw. II. 8. 
 
 ET SIC ULTERIUS (Lat.) And so on; 
 and so further; and so forth. Pleta, lib. 2, 
 c 50, § 27. 
 
 ET UX (Lat.) Abbreviation for et uxor, — 
 "and wife." 
 
 ETCAETERA (Lat. and others; and other 
 things). The abbreviation etc. was former- 
 ly much used in pleading to avoid the incon- 
 veniences attendant upon making full and 
 half defense. See "Defense." It is not gen- 
 erally to be used in solemn instruments. 
 See « Serg. & R. (Pa.) 427. 
 
 ENGLETERRE. England. 
 
 EUM QUI NOCENTEM INFAMAT, NON 
 est aequum et bonum ob earn rem condem- 
 nari; dellcta enim nocentium nota esse opor- 
 tet et expedit. It is not just and proper that 
 he who speaks ill of a bad man should be 
 condemned on that account; for it is fitting 
 and expedient that the crimes of bad men 
 should be known. Dig. 47. 10. 17; 1 Bl. 
 Comm. 125. 
 
 EUNdOMORANDOETREDEUNDO(Lat.) 
 
 This Latin phrase signifies going, remain- 
 ing, and returning. It is employed in cases 
 where a person, either as a party, a witness, 
 or one acting in some other capacity, as 
 an elector, is privileged from arrest, in or- 
 der to give him the freedom necessary to 
 the performance of his respective obliga- 
 tions, to signify that he is protected from 
 arrest eundo morando et redeundo. See 3 
 Bouv. Inst, note 3380. 
 
 EUNOMY. Equal laws and a well-adjust- 
 ed constitution of government. 
 
 EUNUCH. A male whose organs of gen- 
 eration have been so far removed or disor- 
 ganized that he is rendered incapable of 
 reproducing his species. Domat, Civ. Law, 
 liv. prel. tit. 2, § 1, note 10. 
 
 EUS LEGIS. A legal entity; a creature 
 of law. Applied to corporations. 
 
 EVASIO (Lat.) In old practice. Escape; 
 an escape from prison or custody. Reg. 
 Orig. 312; Fleta, lib. 1, c. 26, § 4. 
 
 EVASION (Lat. eradere, to avoid). A sub- 
 tle device to set aside the truth or escape 
 the punishment of the law; as, if a man 
 should tempt another to strike him first, 
 in order that he might have an opportunity 
 of returning the blow with impunity. He 
 is, nevertheless, punishable, because he be- 
 comes himself the aggressor in such a case. 
 It is not a technical term. Hawk. P. C. c. 
 31, §§ 24, 25; Bac. Abr. "Fraud" (A). 
 
 EVENTUS EST QUI EX CAUSA SEQUI- 
 tur; et dicitur eventus quia ex causis evenit. 
 
 An event is that which follows from the 
 cause, and is called an "event" because it 
 eventuates from causes. 9 Coke, 81. 
 
 EVENTUS VARIOS RES NOVA SEMPER 
 habet. A new matter always produces vari- 
 ous events. Co. Litt. 379. 
 
 EVICTION. Depriving a person of the 
 possession of his lands or tenements. Tech- 
 nically, the dispossession must be by judg- 
 ment of law; if otherwise, it is an ouster 
 (32 Iowa, 71), but in modern usage it is 
 commonly applied to dispossession in any 
 manner (44 N. Y. 382; 39 Cal. 360; 98 N. C. 
 239). 
 
 Eviction may be total or partial. 
 
 (1) Total eviction takes place when the pos- 
 sessor is wholly deprived of his rights in the 
 premises. 
 
 (2) Partial eviction takes place when the 
 possessor is deprived of only a portion of 
 them; as, if a third person comes in and 
 ejects him from the possession of half his 
 land, or establishes a right to some ease- 
 ment over it, by a title which is prior to 
 that under which he holds. 
 
 It may be actual or constructive. 
 
 (3) Actual eviction is where one Is, either 
 by force or by process of law, actually put 
 out of possession. 
 
 (4) Constructive eviction is such acts of 
 wrongful interference as seriously Impair 
 
EVIDENCE 
 
 (334) 
 
 EVIDENCE 
 
 the enjoyment of the premises. 132 Mass. 
 367; 20 N. Y. 281. 
 
 Thus, the erection by the landlord, on the 
 demised premises, of a permanent structure, 
 which rendered two rooms in the demised 
 house unfit for use, is a constructive evic- 
 tion. 106 Mass. 201. 
 
 EVIDENCE. That which tends to prove or 
 disprove any matter in question, or to in- 
 fluence the belief respecting it. Belief is 
 produced by the consideration of something 
 presented to the mind. The matter thus pre- 
 sented, in whatever shape it may come, and 
 through whatever material organ it is de- 
 rived, is evidence. Prof. Parker, Lectures 
 on Medical Jurisprudence, in Dartmouth 
 College, N. H. 
 
 The word "evidence," in legal acceptation, 
 includes all the means by which any alleged 
 matter of fact, the truth of which is sub- 
 mitted to investigation, is established or dis- 
 proved. 1 Greenl. Bv. c. 1, § 1. 
 
 That which is legally submitted to a jury, 
 to enable them to decide upon the questions 
 in dispute, or issues, as pointed out by the 
 pleadings, and distinguished from all com- 
 ment and argument, is termed "evidence." 
 1 Starkie, Bv. pt. 1, § 3. 
 
 "Any matter of fact the effect, tendency, 
 or design of which is to produce in the mind 
 a persuasion affirmative or disafHrmative of 
 the existence of some other matter of fact." 
 Best, Ev. § 11. 
 
 "Evidence" is to be distinguished from 
 "proof." Evidence is not proof, but the 
 medium of proof. Proof is the effect or re- 
 sult of evidence. 1 Greenl. Bv. § 1. "Proof 
 is the perfection of evidence. Without evi- 
 dence there can be no proof, though there 
 may be evidence which does not amount to 
 proof." Wills, Circ. Ev. 2. 
 
 It is also to be distinguished from "tes- 
 timony," which excludes documentary evi- 
 dence. Testimony embraces only the dec- 
 laration of witnesses made under oath. "Tes- 
 timony is but one of the several instru- 
 mepts of evidence, and cannot be considered 
 the equivalent thereof, for evidence em- 
 braces not only testimony, but private writ- 
 ings and public documents." Thomp. Trials, 
 § 2784; 3 Wyo. 388; 7 Ind. 94; 76 Hun (N. 
 Y.) 427. 
 
 Evidence may be classified with reference 
 to its instruments, its nature, its legal char- 
 acter, its effect, its object. 
 
 (1) The instruments of evidence, in the 
 legal acceptation of the term, are: 
 
 (a) Judicial notice or recognition, being 
 notice taken by the court, without the in- 
 troduction of proof by the parties of matters, 
 such as the territorial extent of their juris- 
 diction, local divisions of their own coun- 
 tries, seats of courts, etc. If the judge needs 
 information on subjects, he will seek it from 
 such sources as he deems authentic. See 1 
 Greenl. Ev. c. 2. 
 
 (b) Documentary evidence, including pub- 
 lic records. The registers of official transac- 
 tions made by officers appointed for the pur- 
 pose; as, the public statutes, the judgments 
 and proceedings of courts, etc. Judicial 
 writings, such as inquisitions, depositions. 
 
 etc. Public documents having a semi-official 
 character, as, the statute books published 
 under the authority of the government, doc- 
 uments printed by the authority of con- 
 gress, etc. Private writings, as, deeds, con- 
 tracts, wills. 
 
 (c) Parol evidence, being the testimony 
 of witnesses. 
 
 (d) Real evidence, being that which is ad- 
 dressed to the senses of the court without 
 the intervention of testimony, as by the 
 production in court of an object. 
 
 (2) In its nature, evidence is direct or 
 indirect. 
 
 (a) Direct evidence is that means of proof 
 which tends to show the existence of a fact 
 in question, without the intervention of the 
 proof of any other fact. 
 
 It is that evidence which, if believed, es- 
 tablishes the truth of a fact in issue, and 
 does not arise from any presumption. Evi- 
 dence is direct and positive when the very 
 facts in dispute are communicated by those 
 who have the actual knowledge of them by 
 means of their senses. 1 Phil. Ev. 116; 1 
 Starkie, Ev. 19; Burrill, Circ.Ev. 4; 1 Greenl. 
 Ev. § 13. 
 
 (b) Indirect evidence is that which is ap- 
 plied to the principal fact indirectly by the 
 proof of circumstances from which the prin- 
 cipal fact is Inferred. Indirect evidence is 
 commonly known as "circumstantial evi- 
 dence." See "Circumstantial Evidence." 
 
 Evidence has also been divided into real 
 or demonstrative evidence, and moral evi- 
 dence, the latter including all evidence 
 which is not demonstrative. Brad. Ev. § 15; 
 Gamb. Moral Ev. 121. 
 
 (3) With regard to its legal character, evi- 
 dence is either primary or secondary. 
 
 (a) Primary, sometimes called "best," 
 evidence is that which most certainly ex- 
 hibits the true state of facts to which it 
 relates. The rule is one of quality of evi- 
 dence, not of quantity (17 Md. 67), and is 
 not based on mere credibility, but on the 
 degree of proximity of the proof to the 
 principal fact to be proved. See "Best Evi- 
 dence." 
 
 (b) Secondary evidence is any evidence 
 suggesting in its nature that there is more 
 direct evidence of the' same fact. Hearsay 
 evidence is a type of secondary evidence. 
 See "Hearsay Evidence." 
 
 (4) As to its effect, evidence is either 
 prima facie or conclusive. 
 
 (a) Prima facie evidence is that evidence 
 which is sufficient proof respecting the mat- 
 ter in question until it is contradicted, but 
 which may be contradicted or controlled. 
 
 Satisfactory evidence is that which pro- 
 duces the degree of certainty required in the 
 case in hand. 1 Greenl. Ev. § 6; 70 Mo. 248. 
 
 (b) ConcUisive evidence is that which es- 
 tablishes the fact, and is not subject to con- 
 tradiction. 
 
 (5) As to its object, evidence is either 
 substantive evidence, or evidence to credi- 
 bility. 
 
 (a) Substantive evidence is that addressed 
 directly to the point in controversy. 
 
 (b) Evidence to credibility is that which 
 
EVIDENCE, CIRCUMSTANTIAL (335) 
 
 EX DIRECTO 
 
 neither proves nor disproves the principal 
 fact, but merely impeaches or sustains wit- 
 nesses by whom the principal fact has been 
 proved or disproved. 
 
 Among the kinds of substantive evidence 
 are "cumulative evidence," which is further 
 evidence of the same kind to the same 
 point, and "corroborative evidence," which 
 is further evidence of a different kind to the 
 same point. Underh. Bv. § 2. 
 
 EVIDENCE, CIRCUMSTANTIAL. See 
 
 "Circumstantial Evidence." 
 
 EVIDENCE, CONCLUSIVE. See "Conclu- 
 sive Evidence." 
 
 EVIDENCE, DIRECT. See "Evidence." 
 
 EVIDENCE, EXTRINSIC. External evi- 
 dence, or that which is not contained in the 
 body of a writing. 
 
 EVIDENCE OF DEBT. A written instru- 
 ment given as an acknowledgment of an in- 
 debtedness, or as security therefor, and 
 showing on its face the existence of the debt. 
 
 EVIDENCE OF TITLE. A deed or other 
 document establishing the title to property, 
 especially real estate; guilms jus praediorum 
 firmatur. Spelman. 
 
 EVIDENTIARY. Having the quality of 
 evidence; constituting evidence; evidencing. 
 A term introduced by Bentham, and, from 
 its convenience, adopted by other writers. 
 Burrill. Circ. Ev. 3, and note. 
 
 EVOCATION. In French law. The act by 
 which a judge is deprived of the cognizance 
 of a suit over which he had jurisdiction, for 
 the purpose of conferring on other judges 
 the power of deciding it. It is like the pro- 
 cess by writ of certiorari. 
 
 EWAGE. A toll paid for water passage. 
 Cowell. The same as aguagium. 
 
 EWBRICE. Adultery; spouse breach; 
 marriage breach. Cowell; Tomlin. 
 
 EX (Lat.) Prom; of; out of; by, or with; 
 on; upon; according to; at or In. 
 
 EX ABUNDANT! CAUTELA (Lat.) Out 
 of abundant caution. "The practice has 
 arisen abundanti cautela," 8 East, 326; 
 Lord Ellenborough, 4 Maule & S. 544. 
 
 EX ADVERSO (Lat.) On the other side. 
 2 Show. 461. Applied to counsel. 
 
 EX AEQUITATE (Lat.) According to equi- 
 ty; in equity. Fleta, lib. 3, c. 10, § 3. 
 
 EX AEQUO ET BONO (Lat.) In justice 
 and good dealing. 1 Story, Eq. Jur. § 965. 
 
 EX ALTERA PARTE (Lat.) Of the other 
 part. y. B. H. 6 Edw. II. 191. 
 
 EX ANTECEDENTIBUS ET CONSE- 
 quentibus fit optima interpretatio. The best 
 interpretation is made from antecedents and 
 consequents. 2 Pars. Cont. 12, note (r) ; 
 Broom, Leg. Max. (3d London Ed.) 513; 2 
 
 Inst. 317; 2 Sharswood, Bl. Gomm. 379; 1 
 Bulst. 101; 15 East, 541. 
 
 EX ARBITRIO JUDICIS (Lat.) At, in, or 
 upon the discretion of the judge. 4 Bl. 
 Comm. 394. A term of the civil law. Inst. 
 4. 6. 31. 
 
 EX ASSENSU CURIAE (Law Lat.) With 
 the consent of the court. "Ex assensu totius 
 curiae, Crew, J., gave judgment." Latch. 
 139. 
 
 EX ASSENSU PATRIS (Lat.) By or with 
 the father's consent. Litt. § 40; 2 Bl. 
 Comm. 133. See Cro. Jac. 415, 587. 
 
 EX ASSENSU SUO (Law Lat. with his 
 assent). Formal words in judgments for 
 damages by default. Comb. 220. 
 
 EX BONIS (Lat. of the goods or proper- 
 ty). A term of the civil law; distinguished 
 from in bonis, as being descriptive of or 
 applicable to property not in actual posses- 
 sion. Calv. Lex. 
 
 EX CAUSA (Law Lat.) By title. 
 
 EX CERTA SCIENTIA (Lat. of certain or 
 sure knowledge). Formal words anciently 
 used In letters patent, implying that the king 
 had full knowledge and understanding of the 
 matter. 1 Coke, 40b. 
 
 EX COLORE. Under color of. 
 
 EX COMITATE (Lat.) Out of comity or 
 courtesy; by courtesy. 2 Kent, Comm. 457. 
 
 EX COMMODATO (Lat. from or out of 
 loan). A term applied in the old law of 
 England to a right of action arising out of 
 a loan icommodatvm). Glanv. lib. 10, c. 
 13; 1 Reeve, Hist. Eng. Law, 166. 
 
 EX COMPARATIONE SCRIPTORUM 
 
 (Law Lat.) By a comparison of writings or 
 handwritings; a term in the law of evidence. 
 Best, Pres. 218. 
 
 EX CONCESSIS (Lat.) From things or 
 premises granted. 
 
 EX CONSULTO (Lat.) With deliberation. 
 
 EX CONTINENTI (Lat.) ' Immediately; 
 without any interval or delay; incontinently. 
 A term of the civil law. Calv. Lex. 
 
 EX CONTRACTU. See "Action." 
 
 EX CURIA. Out of court. 
 
 EX DEBITO JUSTITIAE (Lat.) As a debt 
 of justice; as a matter of legal right. 3 Bl. 
 Comm. 48. 
 
 EX DEFECTU SANGUINIS (Law Lat.) 
 From failure of blood; for want of issue. 
 Hale, Anal. § 29. 
 
 EX DELICTO. See "Action." 
 
 EX DEMISSIONE (Law Lat.) From, or 
 on the demise. Usually abbreviated ex dem. 
 
 EX DIRECTO (Law Lat.) Directly; im- 
 mediately. Story, Bills,- § 199. 
 
EX DIUTURNITATE, ETC. 
 
 (33B) 
 
 EX NECESSITATE REI 
 
 EX DIUTURNITATE TEMPORIS, OMNIA 
 praesumuntur solemniter esse acta. From 
 length of time, all things are presumed to 
 have been done in due form. Co. Litt. 6; 1 
 Greenl. Ev. § 20; Best, Ev. § 43. 
 
 EX DOLO MALO (Lat.) Out of fraud or 
 deceit. When a cause of action arises from 
 fraud or deceit, it cannot be supported, ex 
 dolo malo non oritur actio. 
 
 EX DOLO MALO NON ORITUR ACTIO. A 
 
 right of action cannot arise out of fraud. 
 Broom, Leg. Max. 349; Cowp. 343; 2 C. B. 
 501, 512, 515; 5 Scott, N. R. 558; 10 Mass. 
 276. 
 
 EX DONATIONIBUS AUTEM FEODA 
 mllitaria vel magnum serjeantium non con- 
 tinentibus oritur nobis quoddam nomen gen- 
 erale, quod est socagium. From grants not 
 containing military fees or grand serjeanty, 
 a kind of general name is used by us, which 
 is "socage." Co. Litt. 86. 
 
 EX EMPTO (Lat. out of purchase; found- 
 ed on purchase). A term of the civil law, 
 adopted by Bracton. Inst. 4. 6. 28; Bracton, 
 fol. 102. 
 
 EX FACIE (Law Lat.) On the face. 2 
 Steph. Comm. 158. 
 
 EX FACTO (Lat.) From, by, or in conse- 
 quence of an act or thing done. Bracton, 
 fol. 172. Applied generally to an act done in 
 violation of law or right. A title is said to 
 originate ex facto when it commences In an 
 unlawful act. Id. Bracton uses it in the 
 same sense with de facto (q. v.) Id. 
 
 EX FACTO JUS ORITUR. The law arises 
 out of the fact. 2 Inst. 479; 2 Sharswood, 
 Bl. Comm. 329; Broom, Leg. Max. (3d Lon- 
 don Ed.) 99. 
 
 EX FICTIONE JURIS. Out of or by fiction 
 of law. Bracton, fol. 53. 
 
 EX FREQUENTI DELICTO AUGETUR 
 poena. Punishment increases with increas- 
 ing crime. 2 Inst. 479. 
 
 EX GRATIA (Lat. of favor; of grace). 
 Words used formerly at the beginning of 
 royal grants, to indicate that they were not 
 made in consequence of any claim of legal 
 right. 
 
 EX GRAVI QUERELA (Law Lat. from or 
 on the grievous complaint). In old English 
 practice. The name of a writ (so called 
 from its initial words) which lay for a per- 
 son to whom any lands or tenements in fee 
 were devised by will, within any city, town, 
 or borough wherein lands were devisable by 
 custom, and the heir of the devisor entered 
 and detained them from him. Reg. Orig. 
 244b; Fitzh. Nat. Brev. 198 (L) et seq.; 3 
 Reeve, Hist. Bng. Law, 49. Abolished by St. 
 3 & 4 Wm. IV. c. 27, § 36. 
 
 EX HYPOTHESI. Upon the hypothesis. 
 
 EX INDU STRIA (Lat.) Intentionally; 
 from fixed purpose. 
 
 EX INTEGRO. Anew; afresh. Bracton, 
 fol. 293. 
 
 EX JUSTA CAUSA (Lat.) Prom a just 
 or lawful cause; by a just or legal title. 
 
 EX LEGE. By law; by operation of law. 
 
 EX LEGIBUS (Lat. according to the laws). 
 A phrase of the civil law, which means ac- 
 cording to the intent or spirit of the law, as 
 well as according to the words or letter. Dig. 
 50. 16. 6. See Calv. Lex. 
 
 EX LICENTIA REGIS (Law Lat.) By the 
 king's license. 1 Bl. Comm. 168, note. 
 
 EX LOCATO (Lat. from or out of lease or 
 letting). A term of the civil law, applied to 
 actions or rights of action arising out of the 
 contract of locatum. Inst. 4. 6. 28. Adopted 
 at an early period in the law of England. 
 Bracton, fol. 102; 1 Reeve, Hist. Eng. Law, 
 168. 
 
 EX MALEFICIO (Lat.) On account of 
 misconduct; by virtue of or out of an illegal 
 act. Used in the civil law generally, and 
 sometimes in the common law. Browne, St. 
 Frauds, 110, note; Broom, Leg. Max. 351. 
 
 EX MALEFICIO NON ORITUR CQN- 
 
 tractus. A contract cannot arise out of an 
 act radically wrong and illegal. Broom, Leg. 
 Max. (3d London Ed.) 660; 1 Term R. 734; 
 3 Term R. 422; 1 H. Bl. 324; 5 El. & Bl. 999, 
 1015. 
 
 EX MALIS MORIBUS BONAE LEGES 
 natae sunt. Good laws arise from evil man- 
 ners. 2 Inst. 161. 
 
 EX MERO MOTU (Lat.) Mere motion of" 
 a party's own free will. Generally applied 
 to action by a court of its own motion. Sua 
 motu and sua sponto are used as synonyms. 
 
 EX MORA (Lat.) From the delay; from 
 the default. 
 
 EX MORE (Lat.) According to custom. 
 
 EX MULTITUDINE SIGNORUM.COLLIG- 
 itur identitas vera. From the great number 
 of signs, true identity is ascertained. Bac. 
 Max. reg. 25; Broom, Leg. Max. (3d London 
 Ed.) 569. 
 
 EX MUTUO (Lat. from or out of loan). In 
 the old law of England, a debt was said to 
 arise ex mutiio when one lent another any- 
 thing which consisted in number, weight, or 
 measure. 1 Reeve, Hist. Eng. Law; 159; 
 Bracton, fol. 99. 
 
 EX NECESSITATE (Lat.) Of necesflity. 
 3 Rep. Ch. 123. 
 
 EX NECESSITATE LEGIS (Lat.) From 
 the necessity of law. 
 
 EX NECESSITATE REI (Lat. from the 
 necessity of the thing). Many acts may be 
 done ex necessitate rei which would not be 
 justifiable without it; and sometimes prop- 
 erty is protected ex necessitate rei which, 
 under other circumstances, would not be so. 
 
EX NIHILO NIHIL FIT 
 
 (337) ' 
 
 EX POST FACTO LAW 
 
 EX NIHILO NIHIL FIT. From nothing 
 nothing comes. 13 Wend. (N. Y.) 178, 221; 
 18 Wend. (N. Y.) 257, 301. 
 
 EX NUDO PACTO NON ORITUR ACTIO. 
 
 No action arises on a contract without a con- 
 sideration. Noy, Max. 24; 3 Burrows, 1670; 
 2 Sharswood, Bl. Comm. 445; Chit. Cont. 
 (10th Am. Ed.) 25; 1 Story, Cont.'§ 525. See 
 "Nudum Pactum." 
 
 EX OFFICIO (Lat. by virtue of his office). 
 Many powers are granted and exercised by 
 public officers which are not expressly dele- 
 gated, or an office may be an incident to 
 another, and filled by the incumbent there- 
 of. Thus, the mayor may be ex offlcio a 
 member of the city board of control. A judge, 
 for example, may be ex officio a conservator 
 of the peace and a justice of the peace. 
 
 EX OFFICIO INFORMATIONS. Proceed- 
 ings filed in the English queen's bench di- 
 vision by the attorney general, at the di- 
 rect and proper instance of the crown, in 
 cases of such enormous misdemeanors as 
 peculiarly tend to disturb or endanger the 
 government, or to molest or affront the sov- 
 ereign in discharging the royal functions. 
 The information is tried by a jury of the 
 county where the offense arose, and for 
 that purpose, unless the case be of such im- 
 portance as to be tried at bar, it is sent 
 down by writ of nisi prius into that county, 
 and tried either by a common or special 
 jury, like a civil action. 4 Steph. Comm. 
 (7th Ed.) 374; Wharton. 
 
 EX OFFICIO OATH (Lat.) An oath taken 
 by offending priests. Abolished by 13 Car. 
 II. St. 1, c. 12. 
 
 EX PACTO ILLICITO NON ORITUR AC- 
 tio. Prom an illicit contract no action arises. 
 Broom, Leg. Max. (3d- London Ed.) 666; 7 
 Clark & F. 729. 
 
 EX PARTE (Lat. of the one part.) Many 
 things may be done ex parte, when the oppo- 
 site party has had notice. An affidavit or 
 deposition is said to be taken ex parte when 
 only one of the parties attends to taking the 
 same. 
 
 Many proceedings commenced by an ex 
 parte application, as for writ of habeas cor- 
 pus, are so entitled, as Ex parte Hartman, 9 
 Abb. Pr. (N. S.) 124. 
 
 EX PARTE MATERNA (Lat.) On the 
 mother's side. 
 
 EX PARTE PATERNA (Lat.) On the 
 father's side. 
 
 EX PARTE TALIS (Law Lat.) In old Eng- 
 lish practice. The name of a writ which 
 lay for a bailiff or receiver, who, having 
 auditors assigned to hear his account, could 
 not obtain of them reasonable allowance, but 
 was cast into prison by them. Cowell; Fitzh. 
 Nat. Brev. 129 (P). 
 
 EX PAUCIS DICTI& INTENDERE PLURI- 
 ma possis. You can imply many things from 
 few expressions. Litt. § 384. 
 
 EX POST FACTO (Lat. after the act). An 
 estate granted may be made good or avoided 
 by matter ex post facto, when an election is 
 given to the party to accept or not to ac- 
 cept. 1 Coke, 146. 
 
 EX POST FACTO LAW. A statute which 
 would render an act punishable in a manner 
 in which it was not punishable when it was 
 committed. 6 Cranch (U. S.) 138; 1 Kent, 
 Comm. 408. A law made to punish acts 
 committed before the existence of such law, 
 and which had not been declared crimes by 
 preceding laws. Dec. Rights Mass. pt. 1, 
 § 24; Dec. Rights Md. art. 15. 
 
 "One which, in its operation, makes that 
 criminal or penal which was not so at the 
 time the action was performed, or which in- 
 creases the punishment, or, in short, which, 
 in relation to the offense or its consequences, 
 alters the situation of the party to his dis- 
 advantage." 2 Wash. C. C. (U. S.) 366. 
 
 Laws under the following circumstances 
 are to be considered ex post facto laws, with- 
 in Const, art. 1, § 10: (1) Every law that 
 makes an act done before the passing of the 
 law, and which was innocent when done, 
 criminal, and punishes such action. (2) Ev- 
 ery law that aggravates a crime, or makes it 
 greater than it was when committed. (3) 
 Every law that changes the punishment, and 
 inflicts a greater punishment than the law 
 annexed to the crime when committe<J, 
 though it would be otherwise of a law mit- 
 igating the punishment. 3 Story, Const. 
 212. (4) Every law that alters the legal 
 rules of evidence, and receives less or dif-, 
 ferent testimony than the law required at 
 the time of the commission of the offense, in 
 order to convict the offender, though it might 
 be otherwise of a law merely modifying the 
 remedy or mode of procedure. 3 Dall. (U. S.) 
 386; 16 Ga. 102. (5) A fifth class has been 
 suggested to cover some exceptional cases, 
 viz., laws that, in relation to the offense or 
 its consequences, alter the situation of the 
 party to his disadvantage. 7 Am. & Eng. 
 Enc. Law, 528. As, for example, where, 
 after a crime was committed, the law was 
 so changed that a conviction of a lower de- 
 gree was no longer a bar, on a new trial 
 being granted, to a conviction of a higher 
 degree. 107 U. S. 221. 
 
 A law mitigating the punishment of previ- 
 ously committed crimes is not ex post facto, 
 within the meaning of the constitution. 12 
 Allen (Mass.) 421. Nor is a statute which 
 regulates only mode of procedure. 110 U. S. 
 574; 137 U. S. 483. 
 
 There is a distinction between ex post facto 
 laws and retrospective laws. Every ex post 
 facto law must necessarily be retrospective, 
 but every retrospective law is not an ex 
 post facto law; the former only are prohib- 
 ited. 
 
 It is fully settled that the term ex post 
 facto, as used in the constitution, is to be 
 taken in a limited sense as referring to crim- 
 inal or penal statutes alone, and that the 
 policy, the reason, and the humanity of the 
 prohibition against passing ex post factor 
 laws do not extend to civil cases, to cases; 
 that merely affect the private propei^ty of 
 
EX PRAECOGITATA MALICIA 
 
 (338) 
 
 EXACTOR REGIS 
 
 citizens. Some of the most necessary acts 
 of legislation are, on the contrary, founded 
 upon the principle that private rights must 
 yield to public exigencies. 8 Wheat. (U. S.) 
 89; 17 How. (U. S.) 463; 6 Cranch (tJ. S.) 
 87; 8 Pet. (U. S.) 88; 11 Pet. (U. S.) 421. 
 See 1 Cranch (U. S.) 109; 9 Cranch (U. S.) 
 374; 1 Gall. (U. S.) 105; 2 Pet. (U. S.) 380, 
 523, 627; 3 Story, Const. 212; Serg. Const. 
 Law, 356: 2 Pick. (Mass.) 172; 11 Pick. 
 (Mass.) 28; 9 Mass. 363; 2 Root (Conn.) 
 350; 5 T. B. Mon. (Ky.) 133; 1 J. J. Marsh. 
 (Ky.) 563; 3 N. H. 475; 7 Johns. (N. Y.) 
 488; 6 Bin. (Pa.) 271; 2 Pet. (U. S.) 681. 
 See "Retrospective Law." 
 
 EX PRAECOGITATA MALICIA (Law 
 Lat.) Of malice aforethought. Reg. Orig. 
 102. 
 
 EX PROCEDENTIBUS ET CONSE- 
 quentibus optitna firinterpretatio. The best 
 interpretation is made from things preced- 
 ing and following, i. e., the context. 1 Rolle, 
 Ahr. 375. 
 
 EX PROPRIO MOTU (Lat.) Of his own 
 accord. 
 
 EX PROPRIO VIGORE (Lat.) By its own 
 force. 2 Kent, Comm. 457. 
 
 EX PROVISIONE HOMINIS (Law Lat.) 
 By the provision of man; by the limitation 
 o^'the party, as distinguished from the dis- 
 position of the law. 11 Coke, 80b. 
 
 EX PROVISIONE MARITl (Lat.) Prom 
 the provision of the husband. 
 
 EX QUASI CONTRACTU (Lat.) From 
 qiiasi contract. Fleta, lib. 2, c. 60. 
 
 EX RELATIONE (Lat. at the information 
 of; by the relation). A bill in equity, for 
 example, may in many cases be brought for 
 an injunction to restrain a public nuisance 
 ex relatione (by information of) the parties 
 Immediately interested in or affected by the 
 nuisance. 18 Ves. 217; 2 Johns. Ch. (N. 
 Y.) 382; 6 Johns. Ch. (N. Y.) 439; 13 How. 
 (U. S.) 518; 12 Pet. (U. S.) 91. 
 
 EX RIGORE JURIS (Law Lat.) Accord- 
 ing to the rigor or strictness of law; in 
 strictness of law. Fleta, lib. 3, c. 10, § 3. 
 
 EX SCRIPTIS OLIM VISIS (Law Lat. 
 from writings formerly seen). A term used 
 as descriptive of that kind of proof of hand- 
 writing where the witness has seen letters 
 or documents professing to be the handwrit- 
 ing of a I party, and has afterwards had cor- 
 respondence or communication with such 
 party, so as to induce a reasonable presump- 
 tion that the letters or documents were ac- 
 tually his handwriting. 5 Adol. & B. 703, 
 730; Best, Pres. 219. 
 
 EX STATUTO (Law Lat.) According to 
 the statute. Fleta, lib. 5, c. 11, § 1. 
 
 EX STIPULATU ACTIO (Lat.) In the 
 civil law. An action of stipulation. An ac- 
 tion given to recover marriage portions. 
 Inst. 4. 6. 29. 
 
 EX TEMPORE (Lat.) From the time; 
 without premeditation. 
 
 EX TESTAMENTO (Lat.) Prom, by, or 
 under a will. Inst. 2. 9. 7; Code, 6. 30. 19. 
 
 EX TOTA MATERIA EMERGAT RESO- 
 lutio. The construction or explanation should 
 arise out of the whole subject matter. Win- 
 gate, Max. 238. 
 
 EX TURPI CAUSA NON ORITUR ACTIO. 
 
 No action arises out of an immoral consid- 
 eration. Selw. N. P. 63; 2 Pet. (U. S.) 539. 
 
 EX UNA PARTE (Lat.) Of one part or 
 side; on one side. 
 
 EX UNO DISCES OMNES. Prom one 
 thing you can discern all. 
 
 EX UTRISQUE PARENTIBUS CONJUNC- 
 
 ti (Lat.) Related on the side of both par- 
 ents; of the whole blood. Hale, Hist. Com. 
 Law, c. 11. 
 
 EX VI TERMINI (Lat.) By force of the 
 
 term. 
 
 EX VISCERIBUS (Lat. from the bowels). 
 Prom the vital part; the very essence of the 
 thing. 10 Coke, 24b; 2 Mete. (Mass.) 213. 
 Ex visceribus verborum, from the mere 
 words, and nothing else. 10 Johns. (N. Y.) 
 494; 1 Story, Eq. Jur. § 980. 
 
 EX VISITATIONS DEI (Lat. by or from 
 the visitation of God). This phrase is fre- 
 quently employed in inquisitions by the cor- 
 oner, where it signifies that the death of 
 the deceased was a natural one. 
 
 EX VISU SCRIPTIONIS (Lat. from sight 
 of the writing; from having seen a person 
 write). A term employed to describe one 
 of the modes of piroof of handwriting. Best. 
 Pres. 218. 
 
 EX VOLUNTATE. Voluntarily. 
 
 EXACTION. A willful wrong done by an 
 officer, or by one who, under color of his of- 
 fice, takes more fee or pay for his services 
 than the law allows. 
 
 Between "extortion" and "exaction" there 
 is this difference, that in the former case the 
 officer extorts more than his due, when 
 something is due to him; in the latter, he 
 exacts what is not his due, when there is 
 nothing due to him. Co. Litt. 368. 
 
 EXACTOR. In old English and civil law. 
 A collector. Exactor regis, collector for the 
 king. A collector of taxes or revenue. Vi- 
 cat; Spelman. The term "exaction" early 
 came to mean the wrong done by an officer, 
 or one pretending to have authority, in de- 
 manding or taking any reward or fee for 
 that matter, cause, or thing which the law 
 allows not. Termes de la Ley. 
 
 EXACTOR REGIS. The king's exacfor, 
 wht) co'jlected the taxes arid other moneys 
 due to the treasury. In the counties, this 
 office was performed by the sheriff; in the 
 seaports and cities by the publicails. Spel- 
 
EXALTARE 
 
 (339) 
 
 EXCEPTIO EJUS, ETC. 
 
 EXALTARE (Law Lat.) In old English 
 law. To raise or elevate. Exaltare stag- 
 num, to raise a pool. Reg. Orig. 199; Fitzh. 
 Nat. Brev. 184 (O). To raise the water in 
 a pond by damming, so as to overflow an- 
 other's land. Bracton, fol. 232; Pleta, lib. i, 
 c. 1, §■ 19. 
 
 EXAM EN (Law Lat.) A trial. Examen 
 computi, the balance of an account. Towns. 
 PI. 223. 
 
 EXAMINATION. Interrogation; investiga- 
 tion. The interrogation of a person who is 
 desirous of performing some act or claim- 
 ing some privilege under the law, to ascer- 
 tain if all the requirements of law have 
 been complied with, conducted before an of- 
 ficer having authority for that purpose. 
 
 The interrogation of a party before a com- 
 petent officer concerning some fact involved 
 in a judicial proceeding. 
 
 In Practice. The interrogation of a 
 
 witness at the trial, or on the taking, of his 
 deposition. 
 
 In Criminal Law. The investigation by 
 
 an authorized magistrate of the grounds of 
 accusation against a person arrested for 
 crime, with a view of securing his appear- 
 ance for trial before the proper court, should 
 the evidence be sufficient to warrant it. 
 
 EXAMINED COPY. A phrase applied to 
 designate a paper which is a copy of a rec- 
 ord, public book, or register, and which 
 has been compared with the original. 1 
 Campb. 469. 
 
 EXAMINERS. Persons appointed by law 
 to examine into any matter of fact, to de- 
 termine the advisability of action by public 
 authorities pursuant to law. Thus, in many 
 states there are examiners in law and med- 
 ical examiners, to determine the qualifica- 
 tions of applicants for license to practice 
 those professions; examiners of banks, 
 charged with inspection to determine the 
 solvency of banking institutions, etc. 
 
 EXAMINERS IN CHANCERY. Officers 
 who examine, upon oath, witnesses produced 
 on either side, upon such interrogatories as 
 the parties to any suit exhibit for that pur- 
 pose. Cowell. 
 
 The examiner is to administer an oath to 
 the party, and then repeat the interrogato- 
 ries, one at a time, writing down ' the an- 
 swer himself. 2 Daniell, Ch. Prac. 1062. An- 
 ciently, the examiner was one of the 3udge.s 
 of the court; hence an examination before 
 the examiner is said to be an examination in 
 court. 1 Daniell, Ch. Prac. 1053. 
 
 EXANNUAL ROLL. A roll containing the 
 illeviable fines and desperate debts, which 
 was read yearly to the sheriff, in the ancient 
 way of delivering the sheriff's accounts, to 
 see what might be gotten. Hs-le, Sheriffs, 67; 
 Cowell. 
 
 EXCAMB. In Scotch law. To exchange. 
 Excambion, exchange. The words are evi- 
 dently derived from the Latin excambium. 
 Bell, Diet. See "Exchange." 
 
 EXCAMB I ATOR. An exchanger of lands; 
 a broker. Obsolete. 
 
 EXCAMBIUM (Lat.) In English law. Ex- 
 change; a recompense. 1 Reeve, Hist. Bng. 
 Law, 442. 
 
 EXCEPTANT. An exceptor; apartyenter- 
 ing an exception to any proceeding. 
 
 EXCEPTIO. 
 
 In Roman Law. An exception. In a 
 
 general sense, a judicial allegation opposed 
 by a defendant to the plaintiff's action. 
 Calv. Lex., citing Hotoman. 
 
 A stop or stay to an action opposed by the 
 defendant. Cowell; Halifax, AnaL bk. 3, c. 5. 
 
 Answering to the "defense" or "plea" of 
 the common law. 
 
 In a stricter sense, an equitable "excep- 
 tion" to the general rule of law; the exclu- 
 sion of an action that lay in strict law, on 
 grounds of equity. Helnec. Elem. Jur. Civ. 
 lib. 4, tit. 13, § 1277. A kind of limitation 
 of an action, by which it was shown that 
 the action, though otherwise just, did not lie 
 in the particular case. Calv. Lex. A spe- 
 cies of defense allowed in cases where, 
 though the action as brought by the plaintiff 
 was in itself just, yet it was unjust as 
 against the particular party sued. Inst. 4. 
 13. pr. 
 
 A mode of defense to an action, consisting 
 of facts which, though they do not ipso jure 
 destroy the right of action, served to protect 
 the defendant on equitable grounds. 1 Mack- 
 eld. Civ. Law, p. 207, § 204; Id. p. 209, § 206, 
 and note. 
 
 In Modern Civil Law. Any objection 
 
 of a defendant by which he alleges a new 
 fact in order to defend himself against the 
 action, as distinguished from a simple de- 
 nial. 1 Mackeld. Civ. Law, p. 207, § 204. 
 
 Answering to the plea of confession and 
 avoidance in the common law. 
 
 In the Early Common Law. The first 
 
 pleading in an action on the part of the de- 
 fendant; an answer. Bracton, fol. 399b. 
 
 In the Canon Law. The second plead- 
 ing in an action. Corv. Jus. Canon, lib. iii. 
 tit. 32. 
 
 In Old Practice. An exception taken 
 
 at the trial. Fleta, lib. 6, c. 55, § 8. 
 
 In Old Conveyancing. An exception in 
 
 a deed or other instrument. 9 Coke, 53. 
 
 EXCEPTIO DILATORIA (Lat.) In the 
 civil law. A dilatory exception; called, also, 
 "temporalis" (temporary) ; one which de- 
 feated the action for a time (quae ad tempus 
 nocet), and created delay {et temporis dila- 
 tionem tribuit) ; such as an agreement not 
 to sue within a certain time, as five years. 
 Inst. 4. 13. 10. See Dig. 44. 1. 3. 
 
 EXCEPTIO DOLI MALI (Lat.) In the 
 civil law. An exception or plea of fraud. 
 Inst. 4. 13. 1. 9; Dig. 44. 4; Bracton, fol. 
 100b. 
 
 EXCEPTIO EJUS REI CUJUS PETITUR 
 dissolutio nulla est. A plea of that matter 
 the dissolutiop of which is the object of the 
 action is of no effect. Jenk. Cent. Cas. 37. 
 
EXCEPTIO FALSI, ETC. 
 
 (340) 
 
 EXCEPTION 
 
 EXCEPTIO FALSI OMNIUM ULTIMA. A 
 false plea Is the basest of all things. 
 
 EXCEPTIO FIRMAT REGULAM IN CASI- 
 bus non exceptis. The exception affirms the 
 rule in cases not excepted. Bac. Aph. 17. 
 
 EXCEPTIO FIRMAT REGULAM IN CON- 
 trarlum. The exception affirms the rule to 
 be the other way. Bac. Aph. 17. 
 
 EXCEPTIO IN FACTUM (Lat.) In the 
 civil law. An exception on the fact; an ex- 
 ception or plea founded on the peculiar cir- 
 cumstances of the case. Inst. 4. 13. 1; Calv. 
 Lex. 
 
 EXCEPTIO JURISJURANDI (Lat.) In the 
 civil law. An exception of oath; an excep- 
 tion or plea that the matter had been sworn 
 to. Inst. 4. 13. 4. This kind of exception 
 was allowed where a debtor, at the instance 
 of his creditor (creditore deferente), had 
 sworn that nothing was due the latter, and 
 had notwithstanding been sued by him. Id. 
 
 EXCEPTIO METUS (Lat.) In the civil 
 law. An exception or plea of fear or compul- 
 sion. Inst. 4. 13. 1. 9; Bracton, fol. 100b. 
 Answering to the modern plea of duress. 
 
 EXCEPTIO NULLA EST VERSUS Ac- 
 tionem quae exceptlonem perimit. There can 
 be no plea against an action which entirely 
 destroys the plea. Jenk. Cent. Cas. 106. 
 
 EXCEPTIO PACTI CONVENTI (Lat.) In 
 the civil law. An exception of compact; an 
 exception or plea that the plaintiff had 
 agreed not to sue. Inst. 4. 13. 3. 
 
 EXCEPTIO PECUNIAE NON NUMERA- 
 tae (Lat.) An exception or plea of money 
 not paid; a defense which might be set up 
 by a party who was sued on a promise to re- 
 pay money which he had never received. 
 Inst. 4. 13. 2. 
 
 EXCEPTIO PEREMPTORIA (Lat.) 
 
 In Civil Law. A peremptory exception; 
 
 called also "perpetua" (perpetual) ; one 
 which forever des^roved the subject matter 
 or ground of the action (quae semper rem 
 do qva agitiir perimit) ; such as the excep- 
 tio doli mali, the exceptio metus, etc. Inst. 
 4. 13. 9. See Dig. 44. 1. 3. 
 
 In Common Law. A peremptory plea; 
 
 a plea in bar. Bracton, fols. 240, 399b. 
 
 EXCEPTIO PROBAT REGULAM DE RE- 
 bus non exceptis. An exception proves the 
 rule concerning things not excepted. 11 
 Coke, 41. 
 
 EXCEPTIO QUAE FIRMAT LEGEM, EX- 
 ponit legem. An exception which confirms 
 the law expounds the law. 2 Bulst. 189. 
 
 EXCEPTIO QUOQUE REGULAM. DECLA- 
 rat. The exception also declares the rule. 
 Bac. Aph. 17. 
 
 EXCEPTIO REI JUDICATAE (Lat.) In 
 the civil law. An exception or plea of mat- 
 ter adjudged; a plea that the subject matter 
 of the action had been determined in a previ- 
 ous action. Inst. 4. 13. 5; Dig. 44. 2. 
 
 This term is adopted by Bracton, and is 
 constantly used in modern law to denote a 
 defense founded upon a previous adjudica- 
 tion of the same matter. Bracton, fols. 
 100b, 177; 2 Kent, Comm. 120. A plea of a 
 former recovery or judgment. 
 
 EXCEPTIO REI VENDITAE ET TRADl- 
 
 tae. An exception or plea that the article 
 claimed in an action was sold or delivered 
 to the defendant. 1 Mackeld. Civ. Law, 315. 
 
 EXCEPTIO SEMPER ULTIMA PONEN- 
 da est. An exception is always to be put 
 last. 9 Coke, 53. 
 
 EXCEPTIO TEMPORIS (Lat.) In the civil 
 law. An exception or plea analogous to that 
 of the statute of limitations in our law; viz., 
 that the time prescribed by law for bringing 
 such ^.ctions has expired. Mackeld. Civ. 
 Law, § 213. Answering to the modem plea 
 of the statute of limitations. 
 
 EXCEPTION (Lat. exclpere; ex, out of, 
 caper e, to take). 
 
 In Contracts. A clause in a deed by 
 
 which the lessor excepts something out of 
 that which he granted before by the deed. 
 
 The exclusion of something from the ef- 
 fect or operation of the deed or contract 
 which would otherwise be included. 
 
 An exception differs from a reservation, — 
 the former being always of part of the thing 
 granted, the latter of a thing not in esse, 
 but newly created or reserved; the exception 
 is of the whole of the part excepted; the res- 
 ervation may be of a right or interest in the 
 particular part affected by the reservation. 
 See 5 R. I. 419; 41 Me. 177; 42 Me. 9; 42 Minn. 
 401; 142 N. Y. 561; 131 111. 490. An excep- 
 tion differs, also, from an explanation, which, 
 by the use of a videlicet, proviso, etc., is al- 
 lowed only to explain doubtful clauses pre- 
 cedent, or to separate and distribute gen- 
 erals into particulars. 3 Pick. (Mass.) 272. 
 It differs also from a proviso, in that an 
 exception is absolute, while a proviso is con- 
 ditional. 53 Barb. (N. Y.) 522. 
 
 To make a. valid exception, these things 
 must concur: First, the exception must be 
 by apt words, as, "saving and excepting," etc. 
 See 30 Vt. 242; 5 R. I. 419; 41 Me. 177. 
 Second, it must be of part of the thing previ- 
 ously described, and not of some other 
 thing. Third, it must be of part of the thing 
 only, and not of all, the greater part, or the 
 effect of the thing granted. 11 Md. 339; 23 
 Vt. 395; 10 Mo. 426. An exception, there- 
 fore, in a lease which extends to the whole 
 thing demised is void. Fourth, it must be 
 of such thing as is severable from the de- 
 mised premises, and not of an inseparable 
 incident. 33 Pa. St. 251. Fifth, it must be 
 of such a thing as he that excepts may have, 
 and which properly belongs to him. Sixth, 
 it must be of a particular thing out of a 
 general, and not of a particular thing out 
 of a particular, thing. Seventh, it must be 
 particularly described and set forth. A lease 
 of a tract of land except one acre would be 
 void, because that acre was not particularly 
 described. Woodf. Landl. & Ten. 10; Co. 
 Lltt. 47a; 12 Me. 337; Wright (Ohio) 711; 
 
EXCEPTION TO BAIL 
 
 (341) 
 
 EXCISE 
 
 3 Johns. (N. Y.) 375; 5 N. Y. 33; 8 Conn. 
 369; 6 Pick. (Mass.) 499; 6 N. H. 421; 4 
 Strobh. (S. C.) 208; 2 Tayl. (N. C.) 173. 
 Exceptions against common right and gen- 
 eral rules are construed as strictly as pos- 
 sible. 1 Bart. Conv. 68; 5 Jones CN. C.) 63. 
 
 In Equity Practice. The allegation of 
 
 a party, in writing, that some pleading or 
 proceeding in a cause is insufficient. 
 
 In Civil Law. A plea. Merlin, Re- 
 pert. 
 
 Declinatory exceptions are such dilatory 
 exceptions as merely decline the jurisdiction 
 of the judge before whom the action is 
 brought. Code Proc. La. 334. 
 
 Dilatory exceptions are such as do not 
 tend to defeat the action, but only to retard 
 its progress. 
 
 Peremptory exceptions are those which 
 tend to the dismissal of the action. 
 
 In Practice. The word "exceptions" 
 
 has been given divers meanings in different 
 jurisdictions. The most common is an ob- 
 jection formerly taken to a ruling made at 
 the trial. 
 
 "Exception" is sometimes used for "bill of 
 exceptions." 
 
 In Texas, an exception is a demurrer to a 
 pleading; the term as so used being prob- 
 ably a relic of the civil law. See 85 Tex. 
 575. 
 
 EXCEPTION TO BAIL. An objection to 
 the special bail put in by the defendant to 
 an action at law made by the plaintiff, on 
 grounds of the insufficiency of the bail. 1 
 Tidd, Prac. 255. 
 
 EXCEPTIS EXCIPIENDIS (Lat.) With all 
 necessary exceptions. 
 
 EXCEPTOR. In old English law. A party 
 who entered an exception or plea. 
 
 EXCERPTA, or EXCERPTS. Extracts. 
 
 EXCESS. In pleading. A replication to 
 the plea mollitcr numiin impofiuit, that de- 
 fendant used more force than was neces- 
 sary. « 
 
 EXCESSIVUM IN JURE REPROBATUR; 
 excessus in re qualibet jure reprobatur conn- 
 muni. Excess in law is reprehended; excess 
 in anything is reprehended at common law. 
 Co. Litt. 44. 
 
 EXETER (or EXON) DOMESDAY. The 
 name given to a record preserved among the 
 muniments and charters belonging to the 
 dean and chapter of Exeter cathedral, which 
 contains a description of the western parts 
 of the kingdom, comprising the counties of 
 Wilts, Dorset, Somerset, Devon, and Corn- 
 wall. The Exeter Domesday was published, 
 with several other surveys, nearly contem- 
 porary, by order of the commissioners of 
 the public records, under the direction of 
 Sir Henry Ellis, in a volume supplementary 
 to the Great Domesday, folio, London, 1816. 
 Wharton. 
 
 EXCHANGE. 
 
 In Commercial Law. A negotiation by 
 
 which one person transfers to another funds 
 
 which he has in a certain place, either at a 
 price agreed upon, or which is fixed by com- 
 mercial usage. 
 
 This transfer is made by means of an in- 
 strument which represents such funds, and 
 is well known by the name of a "bill of ex- 
 change." The price above the par value of 
 the funds so transferred is called the "premi- 
 um" of exchange, and if under that value the 
 difference is called the "discount;" either 
 being called the "rate" of exchange. 
 
 The rate of exchange, the difference in 
 value of the same amount of money in dif- 
 ferent places, is sometimes known as "ex- 
 change." 
 
 Of Property. An exchange of chattels 
 
 is a transfer thereof for other chattels. This 
 is commonly called "barter." Exchange of 
 real estate is a mutual grant of equal interests 
 in land, the one in consideration of the oth- 
 er. 2 Bl. Comm. 323; Litt. 62; Shep. Touch. 
 289 ; Watk. Conv. It is said that exchange in 
 the United States does not differ from bar- 
 gain and sale. 2 Bouv. Inst, note 2055. 
 
 At Common Law. Five circumstances 
 
 are necessary to an exchange: That the es- 
 tates given be equal; that the word excam- 
 bium, or exchange, be used, which cannot be 
 supplied by any other word, or described by 
 circumlocution; that there be an execution 
 by entry or claim in the life of the parties; 
 that, if it be of things which lie in grant, 
 it be by deed; that, if the lands He in sev- 
 eral counties, or if the thing lie in grant, 
 though they be in one county, it be by deed 
 indented. In practice this mode of convey- 
 ancing is nearly obsolete. 
 
 See Cruise, Dig. tit. 32; Comyn, Dig.; Co. 
 Litt. 51; 1 Washb. Real Prop. 159; Hardin 
 (Ky.) 593; 1 N. H. 65; 3 Har. & J. (Md.) 
 361; 3 Wils. 489; Watk. Conv. bk. 2, c. 5; 3 
 Wood, Conv. 243. 
 
 EXCHANGE, BILL OF. See "Bill of Ex- 
 change." 
 
 EXCHEQUER (Law Lat. scaccarmm ; Nor- 
 man Fr. eschegvier). In English law. A de- 
 partment of the government which has the 
 management of the collection of the king's 
 revenue. 
 
 The name is said to be derived from the 
 chequered cloth which covered the table on 
 which some of the king's accounts were 
 made up, and the amounts indicated by 
 counters. 
 
 It consists of two divisions, one for the 
 receipt of revenue, the other for adminis- 
 tering justice. 4 Inst. 103-116; 3 Bl. Comm. 
 44, 45. See "Court of Exchequer;" "Court of 
 Exchequer Chamber." 
 
 EXCHEQUER BILLS. Bills of credit is- 
 sued by authority of parliament. 
 
 They constitute the medium of transac- 
 tion of business between the %ank of Eng- 
 land and the government. The exchequer 
 bills contain a guarantee from government 
 which secures the holders against loss by 
 fluctuation. Wharton. 
 
 EXCHEQUER, COURT OF. See "Court of 
 
 Exchequer." 
 
 EXCISE. An inland Imposition, paid some- 
 
EXCLUSA 
 
 (342) 
 
 EXCUSE 
 
 times upon the consumption of the com- 
 modity, sometimes on the manufacturer, 
 sometimes upon the retail sale. 1 Bl. Comm. 
 318; Story, Const. § 950; 7 Wall. (U. S.) 
 445. 
 
 EXCLUSA, or EXCLUSAGIUM. In old 
 
 English law. A sluice to carry off water; 
 the payment to the lord for the benefit of 
 such a sluice. Cowell; Reg. Orig. 96. 
 
 A place in a stream made narrow for the 
 purpose of fishing. Spelman. 
 
 EXCLUSIVE (Lat. ex, out, claudere, to 
 shut). Shutting out; debarring from par- 
 ticipation. Shut; out; not included. 
 
 An exclusive right or privilege, as a copy- 
 right or patent, is one which may be exer- 
 cised and enjoyed only by the person author- 
 ized, while all others are forbidden to in- 
 terfere. 
 
 A special grant of power is not exclusive 
 merely because no one else* happens to pos- 
 sess it, so long as there is nothing to pre- 
 vent its granting to another. "An act does 
 not grant an exclusive privilege or franchise 
 unless it shuts out or excludes others from 
 enjoying a similar privilege or franchise." 
 98 N. Y, 139. 
 
 EXCOMMENGEMENT (Lat.) Excominu- 
 nication. Britt. c. 49. 
 
 EXCOMMUNICATION. In ecclesiastical 
 law. An ecclesiastical sentence pronounced 
 by a spiritual judge against a Christian 
 man, by which he is excluded from the body 
 of the church, and disabled to bring any 
 action or sue any person in the common-law 
 courts. Bac. Abr.; Co. Litt. 133, 134. 
 
 In early times it was the most frequent 
 and most severe method of executing eccle- 
 siastical censure, although proper to be used, 
 said Justinian (Nov. 123), only upon grave 
 occasions. The effect of it was to remove 
 the excommunicated person not only from 
 the sacred rites, but from the society of 
 men. In a certain sense it interdicted the 
 use of fire and water, like the punishment 
 spoken of by Caesar (lib. 6, de Belli Gall.) 
 as inflicted by the Druids. Innocent IV. 
 called it the nerve of ecclesiastical discipline. 
 On repentance, the excommunicated person 
 was absolved and received again to com- 
 munion. These are said to be the powers 
 of binding and loosing, — the keys of the 
 kingdom of heaven. This kind of punish- 
 ment seems to have been adopted from the 
 Roman usage of interdicting the use of fire 
 and water. Pr. Duaren de Sacris Bccles. 
 Ministeriis, lib. 1, c. 3. See Ridley, Civ. & 
 Ecc. Law, 245, 246, 249. 
 
 EXCOMMUNICATO CAPIENDO (Lat. for 
 taking an excommunicated person). In ec- 
 clesiastical law. A writ issuing out of chan- 
 cery, founded on a bishop's certificate that 
 the defendant had been excommunicated, re- 
 turnable to the king's bench. 4 Bl. Comm. 
 415; Bac. Abr. "Excommunication" (E). See 
 St. 3 Bdw. I. c. 15; 9 Bdw. II. c. 12; 2 & 3 
 Edw. VI. c. 13; 5 & 6 Edw. VI. c. 4; 5 Eliz. 
 c. 23; 1 Hen. V. c. 5; Cro. Eliz. 224, 680; Cro. 
 
 Car. 421; Cro. Jac. 567; 1 Vent. 146; 1 Salk. 
 293-295. 
 
 EXCOMMUNICATO INTERDICTUR OM- 
 nis actus legitimus, ita quod agere non po- 
 test, nee aKquem convenire, licet Ipse ab aliis 
 possit conveniri. Every legal act is forbid- 
 den an excommunicated person, so tjiat he 
 cannot act, nor sue any person, but he may 
 be sued by others. Co. Litt. 133. 
 
 EXCULPATION.LETTERSOF. In Scotch 
 
 law. A warrant granted at the suit of a 
 prisoner for citing witnesses in his own 
 defense. 
 
 EXCUSABLE HOMICIDE. Homicidecom- 
 
 mitted under circumstances which consti- 
 tute, not a justification, but merely an ex- 
 cuse. 
 
 It is of two sorts: 
 
 (1) Per infortunium, or by misadventure, 
 where a person unfortunately kills another 
 in doing a lawful act, without any intent to 
 hurt, and without criminal negligence. 
 
 (2) 8e defendo, or in self-defense, upon a 
 sudden affray, where a person, after becom- 
 ing engaged in a sudden affray, kills his an- 
 tagonist to save himself from reasonably 
 apparent danger of death or great bodily 
 harm. 4 Bl. Comm. 182. 
 
 The latter sort was distinguished from 
 justifiable homicide in self-defense by the 
 fact that the perpetrator was deemed in 
 some fault in being engaged in an affray. 
 This distinction is now generally abolished. 
 
 Excusable homicide was anciently pun- 
 ished by forfeiture of goods (4 Bl. Comm. 
 182), but is not now punished. See "Justi- 
 fiable Homicide." 
 
 EXCUSAT AUT EXTENUAT DELICTUM 
 in capitalibus, quod non operatur idem in 
 civilibus. That excuses or extenuates a 
 wrong in capital causes which does not 
 have effect in civil suits. Bac. Max. reg. 7; 
 Broom, Leg. Max. (3d London Ed.) 291. 
 
 EXCUSATIO (Lat.) In civil law. Excuse; 
 a caflse for exemption from a duty, such as 
 absence, insufficient age, etc. Vicat, and ref- 
 erences there given. 
 
 EXCUSATOR (Lat.) 
 
 In English Law. An excuser. 
 
 In Old German Law. A defendant; he 
 
 who utterly denies the plaintiff's claim. Du 
 Cange. 
 
 EXCUSATOR GUIS QUOD CLAMEUM 
 non opposuerit, ut si toto tempore litlgii fuit 
 ultra mare quacunque occasione. He is ex- 
 cused who does not bring his claim, if, dur- 
 ing the whole period in which it ought to 
 have been brought, he has been beyond sea 
 for any reason. Co. Litt. 260. 
 
 EXCUSE. In a broad sense, a reason al- 
 leged for the doing or not doing a thing. 
 
 In a stricter sense, it does not include jus- 
 tification, but implies that, though the act 
 complained of was improperly done, facts by 
 way of mitigation relieve the doer from legal 
 liability. In this sense, an excuse Is facts 
 mitigating the act, or depriving it of legal 
 
EXCUSS 
 
 (343) 
 
 EXECUTION PAREE 
 
 ciilpabjllty. Compare, for example, "Bxcusa- 
 \ bie Hpmicide" and "Justifiable Homicide." 
 
 EXCUSS. To seize and detain by law. 
 
 EXCUSSIO (Lat.) In civil law. Exhaust- 
 ing the principal debtor before proceeding 
 against the surety. Discussion is used in 
 the same sense in Scotch law. Vicat, "Bx- 
 cusionis Beneflcium." 
 
 EXECUTE. To complete; to make; to 
 perform; to do; to follow out. 
 
 The term is frequently used in law; as, to 
 execute a deed, which means to make a deed, 
 including, especially, signing, sealing, and 
 delivery. To execute a contract is to per- 
 form the contract. To execute a use is to 
 merge or unite the equitable estate of the 
 cestui que use in the legal estate, under the 
 statute of uses. To execute a writ is to do 
 the act commanded in the writ. To execute 
 a criminal is to put him to death according 
 to law, in pursuance of his sentence. 
 
 EXECUTED. Done; completed; effectuat- 
 ed; performed; fully disclosed; vested; giv- 
 ing present right of enjoyment. The term is 
 used of a variety of subjects. 
 
 EXECUTED CONSIDERATION. See"Con- 
 sideration." 
 
 EXECUTED CONTRACT. See "Contract." 
 
 EXECUTED ESTATE. An estate whereby 
 a present interest passes to and resides in 
 the tenant, not dependent upon any subse- 
 quent circumstances or contingency. They 
 are more commonly called "estates in pos- 
 session." 2 Sharswood, Bl. Comm. 162. 
 
 An estate where there is vested in the 
 grantee a present and immediate right of 
 present or future enjoyment. An estate 
 which confers a present right of present en- 
 joyment. 
 
 When the right of enjoyment in possession 
 is to arise at a future period, only the es- 
 tate is executed; that is, it is merely vested 
 in point of interest. Where the right of im- 
 mediate enjoyment is annexed to the estate, 
 then, only, is the estate vested in possession. 
 1 Prest. Est. 62; Fearne, Cont. Rem. 392. 
 
 "Executed" is synonymous with "vested." 
 1 Washb. Real Prop. 11. 
 
 EXECUTED FINE., The fine sur cognizance 
 de droit, come ceo que il ad de son done; 
 or a fine upon acknowledgment of the right 
 of the cognizee, as that which he has of 
 the gift of the cognizor. Abolished by 3 & 4 
 Wm. IV. c. 74. 
 
 EXECUTED REMAINDER. One giving a 
 present interest, though the enjoyment may 
 be future. Fearne, Cont. Rem. 31; 2 Bl. 
 Comm. 168. See "Remainder." 
 
 EXECUTED TRUST. A trust of which the 
 scheme has in the outset been completely 
 declared. Adams, Eq. 151. One in which 
 the devise or trust is directly and wholly de- 
 clared by the testator or settler, so as to at- 
 tach on the lands immediately under the 
 deed or will itself. 1 Greenl. Cruise, Dig. 
 385; IJac. & W. 570. 
 
 EXECUTED USE. A use with which the 
 possession and legal title have been united 
 by statute. 1 Steph. Comm. 339; 2 Shars- 
 wood, Bl. Comm. 335, note; 7 Term R. 342; 
 12 Ves. 89; 4 Mod. 380; Comb. 312. 
 
 EXECUTED WRIT. A writ the command 
 in which has been obeyed by the person to 
 whom it was directed. 
 
 EXECUTIO (Lat.) The doing or follow- 
 ing up of a thing; the doing a thing com- 
 pletely or thoroughly; management or ad- 
 ministration. 
 
 In Old Practice. Execution; the final 
 
 process in an action. 
 
 EXECUTIO BONORUM (Lat.) In old Eng- 
 lish law. Management or administration of 
 goods. Ad ecclesiam et ad amicos pertinebit 
 executio ionorum, the execution of the 
 goods shall belong to the church and to the 
 friends of the deceased. Bracton, fol. 60b. 
 
 EXECUTIO EST EXECUTIO JURIS SE- 
 
 cundum Judicium. An execution is the ex- 
 ecution of the law according to the judg- 
 ment. 3 Inst. 212. 
 
 EXECUTIO EST FINIS ET FRUCTUS 
 
 1 eg is. An execution is the end and the fruit 
 of the law. Co. Litt. 289. 
 
 EXECUTIO JURIS NON HABET INJURI- 
 
 am. The execution of law does no injury. 
 
 2 Rolle, Abr. 301. 
 
 EXECUTION. The accomplishment of a 
 thing; the completion of an act or instru- 
 ment; the fulfillment of an undertaking. 
 Thus, a contract is executed when the act to 
 be done is performed; a deed is executed 
 when It is signed, sealed, and delivered. 
 
 In Criminal Law. Putting a convict to 
 
 death, agreeably to law, in pursuance of his 
 sentence. This is to be performed by the 
 sheriff or his deputy. See 4 Sharswood, Bl. 
 Comm. 403. 
 
 In Practice. Putting the sentence of 
 
 the law in force. 3 Bl. Comm. 412. The act 
 of carrying into effect the final judgment or 
 decree of a court. 
 
 The writ which directs and authorizes the 
 officer to carry into effect such judgment. 
 
 Final execution is one which authorizes 
 the money due on a judgment to be made out 
 of the property of the defendant. 
 
 Execution quousque is such as tends to an 
 end, but is not absolutely final; as, for ex- 
 ample, a capias ad satisfaciendum, by virtue 
 of which the body of the defendant is taken, 
 to the intent that the plaintiff shall be satis- 
 'fied his debt, etc., the imprisonment not be- 
 ing absolute, but until he shall satisfy the 
 same. 6 Coke, 87. See "Facias." 
 
 EXECUTION PAREE. In French law. A 
 right founded on an act passed before a 
 notary, by which the creditor may immedi- 
 ately, without citation or summons, seize 
 and cause to be sold the property of his 
 debtor, out of the proceeds of which to re- 
 ceive his payment. It imports a confession 
 of judgment, and is not unlike a warrant of 
 attorney. Code Proc. La. art. 732; 6 Toullier, 
 note 208; 7 Toullier, Dr. Civ. 99. 
 
EXECUTIONER 
 
 (344) 
 
 EXECUTORY PROCESS 
 
 EXECUTIONER. The name given to him 
 who puts criminals to death, according to 
 their sentence; a hangman. 
 
 In the United States, executions are so 
 rare that there are no executioners b:^ pro- 
 fession. It is the duty of the sheriff or 
 marshal to perform this office, or to procure 
 a deputy to do it for him. 
 
 EXECUTIVE. That power in the govern- 
 ment which causes the laws to be executed 
 and obeyed. 
 
 The officer in whom the executive power is 
 vested. 
 
 The constitution of the United States di- 
 rects that "the executive power shall be 
 vested in a president of the United States of 
 America." Article 2, § 1. See Story, Const, 
 bk. 3, c. 36. 
 
 EXECUTOR. One to whom another man 
 commits by his last will the execution of 
 that will and testament. 2 Bl. Comm. 503. 
 
 A person to whom a testator by his will 
 commits the execution, or putting in force, 
 of that instrument and its codicils. Ponbl. 
 Rights & "Wrongs, 307. 
 
 Lord Hardwicke, in 3 Atk. 301, says: "The 
 proper term in the civil law, as to goods, is 
 haeres testamentarius ; and 'executor' is a 
 barbarous term, unknown to that law." And 
 again: "What we call 'executor and residu- 
 ary legatee' is, in the civil law, 'universal 
 heir.' " Id. 300. 
 
 The word "executor," taken in its broad- 
 est sense, has three acceptations: (1) Ex- 
 ecutor a lege constitutus, he is the ordinary 
 of the diocese. (2) Executor ab episcopo 
 constitutus, or executor dativus, and that is 
 he who is called an administrator to an in- 
 testate. (3) Executor a testator constitutus, 
 or executor testamentarius, and that is he 
 who is usually meant when the term "execu- 
 tor" is used. 1 Wms. Bx'rs, 185. 
 
 -General Executor. One who is ap- 
 
 pointed to administer the whole estate, with- 
 out any limit of time or place or of the sub- 
 ject matter. 
 
 Special Executor. One who is ap- 
 pointed or constituted to administer either 
 a part of the estate, or the whole for a lim- 
 ited time, or only in a particular place. 
 
 Instituted Executor. One who is ap- 
 pointed by the testator without any condi- 
 tion, and who has the first right of acting 
 when there are substituted executors. 
 
 Substituted Executor. A person ap- 
 pointed executor if another person who has 
 been appointed refuses to act. 
 
 An example will show the difference be- 
 tween an instituted and a substituted ex- 
 ecutor. Suppose a man makes his son his 
 'executor, but, if he will not act, he appoints 
 his brother, and, if neither will act, his 
 cousin. Here the son is the instituted exec- 
 utor in the first degree, the brother is said 
 to be substituted in the second degree, the 
 cousin in the third degree, and so on. See 
 Swinb. Wills, pt. 4, § 19, pi. 1. 
 
 Rigfitful Executor. One lawfully ap- 
 pointed by the testator, by his will. Deriv- 
 ing his authority from the will, he may do 
 most acts before he obtains letters testa- 
 
 mentary; but he must be possessed of them 
 before he can declare in an action brought 
 by him as such. 1 P. Wms. 768; Wms. 
 Ex'rs, 173. 
 
 Executor de Son Tort. One who, with- 
 out lawful authority, undertakes to act as 
 executor of a person deceased. 
 
 Executor to the Tenor. A person who 
 
 is not directly appointed by the will an ex- 
 ecutor, but who is charged with the duties 
 which appertain to one; as, "I appoint A. 
 B. to discharge all lawful demands against 
 my will." 3 Phillim. Bcc. Law, 116; 1 Bcc. 
 374; Swinb. Wills, 247; Wentw. Bx'rs, pt. 4, 
 § 4, p. 230. 
 
 EXECUTOR LUCRATUS (Lat.) An exec- 
 utor who has assets of his testator, who in 
 his lifetime made himself liable by a wrong- 
 ful interference with the property of an- 
 other. 6 Jur. (N. S.) 543. 
 
 EXECUTORY. Executive; pertaining to 
 the execution of official duty. Cent. Diet. 
 
 To be executed in the future; of such a 
 nature as to take effect on a future contin- 
 gency. 
 
 EXECUTORY CONSIDERATION. See 
 
 "Consideration." 
 
 EXECUTORY CONTRACT. See "Con- 
 tract." 
 
 EXECUTORY DEVISE. A limitation by 
 will of a future estate in lands or chattels. 
 38 Pa. St. 294. 
 
 A devise of an estate to t>ke effect upon 
 some contingency subsequent to the tes- 
 tator's death. 
 
 As to chattels, it is more properly called 
 an "executory bequest." 
 
 It differs from a remainder, in that it 
 needs no particular estate to supiwrt it. 
 See 6 Wall. (U. S.) 475. 
 
 EXECUTORY ESTATES. Interests which 
 depend for their enjoyment upon some sub- 
 sequent event or contingency. Such estate 
 may be an executory devise, or an execu- 
 tory remainder, which is the same as a con- 
 tingent remainder, because no present in- 
 terest passes. 
 
 EXECUTORY FINES. These are the fines 
 
 stir cognizance de droit tantum; sur conces- 
 sit; and sur done, grant et render. Abol- 
 ished by 3 & 4 Wm. IV. c. 74. 
 
 EXECUTORY INTERESTS. Include all 
 future estates and interests in land or per- 
 sonalty, other than reversions and remain- 
 ders. Rapalje & L. 
 
 EXECUTORY LIIVIITATION. Any limita- 
 tion of a future estate, whether it be made 
 by deed, or by way of executory devise 
 
 (q. V.) 
 
 EXECUTORY PROCESS (l^&t. via exeouto- 
 via) . In Louisiana. A process which can be 
 resorted to in two cases, namely: (1) When 
 the right of the creditor arises from an act 
 importing confession of judgment, and which 
 contains a privilege or mortgage in his fa- 
 
EXECUTORY TRUSTS 
 
 (345) 
 
 EXFESTUCARE 
 
 vor. (2) When the creditor demands the 
 execution of a judgment which has been ren- 
 dered by a tribunal different from that with- 
 in whose jurisdiction the execution is 
 sought. Code Prac. art. 732. 
 
 EXECUTORY TRUSTS. A trust is called 
 ■"executory" when some further act is requi- 
 site to be done by the author of the trust or 
 his trustees to give it its full effect. See 
 "Trust." 
 
 EXECUTORY USES. Springing uses which 
 confer a legal title answering to an execu- 
 tory devise. See "Use." 
 
 EXECUTRESSv A female executor. Hardr. 
 165, 473. See "Executrix." 
 
 EXECUTRIX. A woman who has been ap- 
 pointed by will to execute such will or tes- 
 tament. See "Executor." 
 
 EXECUTRY. In Scotch law. The mov- 
 able estate of a person dying, which goes to 
 his nearest of kin. So called, as falling un- 
 der the distribution of an executor. Bell, 
 Diet. 
 
 EXEGENCE, or EXIGENCY. Probably a 
 corruption of exigents. Demand; need; 
 want. Thus, exigency of a writ, the com- 
 mand of the writ; exigency of a bond, that 
 which the bond requires. 
 
 EXEMPLARY DAMAGES. See "Dam- 
 ages." 
 
 EXEMPLI GRATIA. For example. Abbre- 
 viated "ex. gr." or "e. g." 
 
 EXEMPLIFICATION. A perfect copy of a 
 record or oflSce book lawfully kept, so far 
 as relates to the matter in question. 3 
 Bouv. Inst, note 3107. See, generally, 1 
 Starkie, Ev. 151; 1 Phil. Ev. 307; 7 Cranch 
 (U. S.) 481; 9 Cranch (U. S.) 122; 3 Wheat. 
 (U. S.) 234; 10 Wheat. (U. S.) 469; 2 
 Yeates (Pa.) 532; 1 Hayw. (N. C.) 359; 1 
 Johns. Cas. (N. Y.) 238. 
 
 A certified copy of a record or recorded 
 instrument. 
 
 EXEMPLUM (Lat.) In civil law. Acopy; 
 a written authorized copy. Used also in the 
 modern sense of "example:" A6, exemplum 
 constituti singulares non trahi, exceptional 
 things must not be taken for examples. Calv. 
 Lex.; Vicat; Co. Litt. 24a. 
 
 EXEMPTION. Immunity; freedom from 
 any charge, duty, burden, or liability. Gen- 
 erally used for exemption from process, 
 which is a right given by law to a debtor 
 to retain certain property free from execu- 
 tion, attachment, or other process. 
 
 The property exempt from execution. 
 
 EXEMPTS. Persons who are not bound 
 by law, but excused from the performance 
 of duties imposed upon others. 
 
 EXENNIUM, or EXHENIUM. A gift; a- 
 New Year's gift. Cowell. 
 
 EXEQUATUR (Lat.) 
 
 In French Law. A Latin word which 
 
 was, in the ancient practice, placed at the 
 bottom of a judgment emanating from an- 
 other tribunal, and was a permission and 
 authority to the officer to execute it within 
 the jurisdiction of the judge who put it be- 
 low the judgment. 
 
 We have something of the same kind in 
 our practice. When a warrant for the ar- 
 rest of a criminal is issued by a justice of 
 the peace of one county, and he flies into aij- 
 other, a justice of the latter county may 
 indorse the warrant, and then the minis- 
 terial officer may execute it in such county. 
 This is called "backing" a warrant. 
 
 In International Law. A declaration 
 
 made by the executive of a government near 
 to which a consul has been nominated and 
 appointed, after such nomination and ap- 
 pointment has been notified, addressed to 
 the people, in which is recited the appoint- 
 ment of the foreign state, and that the ex- 
 ecutive, having approved of the consul as 
 such, commands all the citizens to receive, 
 countenance, and, as there may be occasion, 
 favorably assist the consul in the exercise 
 of his place, giving and allowing him all the 
 privileges, immunities, and advantages there- 
 to belonging. 3 Chit. Com. Law, 56; 3 Maule 
 & S. 290; 5 Pardessus, note 1445. 
 
 EXERCITALIS (Lat.) A soldier; avassal. 
 Spelman. 
 
 EXERCITOR MARIS (Lat.) In civil law. 
 One who fits out and equips a vessel, wheth- 
 er he be the absolute or qualified owner, or 
 even a mere agent. Emerig. Mar. Loans, c. 
 1, § 1. We call him exercitor to whom all 
 the returns come. Dig. 14. 1. 1. 15; Id. 14. 
 1. 7; 3 Kent, Comm. 161; Molloy de Jur. 
 Mar. 243. 
 
 The managing owner, or ship's husband. 
 These are the terms in use in English and 
 American laws, to denote the same as exer- 
 citor marix. See "Managing Owner of Ship;" 
 "Ship's Husband." 
 
 EXERCITOR NAVIS. The temporary own- 
 er or charterer of a ship. 
 
 EXERCITORIA ACTIO. See "Actio." 
 
 EXERCITORIAL POWER. The trust giv- 
 en to a ship master. 
 
 EXERCITUAL. A heriot paid only in arms, 
 horses, or military accoutrements. 
 
 EXERCITUS. 
 
 In Old European Law. An army; an 
 
 armed force; a collection of thirty-five men 
 and upwards. Laws Inae, apud Spelman. 
 
 A gathering of forty-two armed men. 
 Laws .Boior. tit. 3, c. 8. 
 
 A meeting of four men. Laws Longobard, 
 lib. 1. tit. 17, c. 1. Spelman. 
 
 In Roman Law. See Grotius de Jure 
 
 Belli, lib. 2, c. 16, § 3. 
 
 EXFESTUCARE (Lat.) To abdicate; to 
 resign by passing over a staff. Du Cange. 
 To deprive oneself of the possession of 
 lands, honors, or dignities, which was for- 
 merly accomplished by the delivery of a 
 
EXFREDIARE 
 
 (346) 
 
 EXONERATION 
 
 , staff or rpd. Said to be the origin of the 
 custom of "surrender" as practised in Eng- 
 land formerly in courts baron. Spelman. 
 See, also, Vicat; Calv. Lex. 
 
 EXFREDIARE. In old English. To break 
 the peace; to commit open violence. Cow- 
 ell. 
 
 feXHAEREDATlO (Lat.) A disinheriting ; 
 the act by which a forced heir is deprived 
 of his legitimate or legal portion; a disher- 
 ison. Occurring in the phrase, in Latin 
 pleadings, ad exjiaeredationem, to the disher- 
 ison, in case of abatement. 
 
 EXHAERES (Lat.) In civil law. Jne dis- 
 inherited. Vicat; Du Cange. 
 
 EXHEREDATE. In Scotch law. To dis- 
 inherit;' to exclude from inheriting. 1 
 Karnes, Eq. 247. 
 
 EXHIBERE (Lat.) To present a thing cor- 
 poreally, so that it may be handled. Vicat. 
 To appear personally to conduct the defense 
 of an action at law. 
 
 EXHIBIT. As a verb, to produce a thing 
 publicly, so that it may be taken possession 
 of and seized. Dig. 10. 4. 2. 
 
 To file of record. Thus, it is the prac- 
 tice in England in personal actions, when an 
 officer or prisoner of the king's bench is de- 
 fendant, to proceed against such defendant 
 in the court in which he is an officer, by ex- 
 hibiting, that is, filing, a bill against him. 
 Steph. PI. 52, note (1) ; 2 Sellon, Prac. 74. 
 
 To administer; to cause a thing to be tak- 
 en by a patient. Chit. Med. Jur. 9. 
 
 As a noun, a supplemental paper referred 
 to in the principal instrument, identified in 
 some particular manner, as by a capital let- 
 ter, and generally attached to the principal 
 instrument. 1 Strange, 674; 2 P. Wms. 410; 
 Gresl. Eg. Ev. 98. 
 
 A paper referred to in and filed with the 
 bill, answer, or petition in a suit In equity. 
 
 EXHIBITANT. A complainant in articles 
 of the peace. 12 Adol. & E. 599. 
 
 EXHIBITIO BILLAE (Law Lat.) In old 
 practice. A phrase formerly used in plead- 
 ing, and generally equivalent to "the com- 
 mencement of the suit;" the suit (where the 
 proceedings were by bill) being anciently 
 commenced by the exhibition of such a bill 
 to the court. 
 
 EXHIBITION. In Scotch law. An action 
 for compelling the production of writings. 
 See "Discovery." 
 
 EXIGENCY OF A BOND.' That upon 
 which it is conditioned. 
 
 EXIGENDARY. In English law. An offi- 
 cer who makes out exigents. 
 
 EXIGENT, EXIGI FACIAS. In practice. 
 A writ issued in the course of proceedings 
 to outlawry, deriving its name and applica- 
 tion from the mandatory words found there- 
 in, signifying, "that you cause to be exacted 
 or required;" and it is that proceeding in 
 
 an outlawry which, with the writ of procla- 
 mation, issued at the same time, immediately 
 precedes the writ of capias utlagatum. 2 
 Va. Gas. 244. 
 
 EXIGENTER. An officer who made out 
 exigents and proclamations. Cowell. The 
 office is now abolished. Holthouse. 
 
 EXIGI FACIAS (Law I^at.) Another nam^ 
 of the writ of exigent; being the two em- 
 phatic words of that writ. Reg. Jud. 2. 
 
 EXIGIBLE. Demandable; that which may 
 be exacted. 
 
 EXILE. Banishment; a person banished. 
 
 EXILiUM (Lat.) In old English law. Ex- 
 ile; setting free or wrongly ejecting bond- 
 tenants. Waste is called exilium when bond- 
 men (servi) are set free or driven wrongful- 
 ly from their tenements. Co. Litt. 536. De- 
 struction; waste. Du Cange. Any species 
 of waste which drove away the inhabitants 
 into exile, or had a tendency to do so. Bac. 
 Abr. "Waste" (A) ; 1 Reeve, Hist. Eng Law, 
 386. 
 
 EXILIUM EST PATRIAE PRIVATIO, NA- 
 
 talis soli mutatio, legum nativarum amissio. 
 Exile is a privation of country, a change of 
 natal soil, a loss of native laws. 7 Coke, 20. 
 
 EXISTIMATIO (Lat.) The reputation of 
 a Roman citizen; the decision of arbiters. 
 Vicat; 1 Mackeld. Civ. Law, § 123. 
 
 EXIT (Lat.) It issues. Used in old rec- 
 ords to indicate the granting of an applica- 
 tion for a writ. 
 
 EXIT WOUND. The wound made in com- 
 ing out by a weapon which has passed 
 through the body, or any part of it. 2 Beck, 
 Med. Jur. 119. 
 
 EXITUS (Lat.) An export duty; issue, 
 child or offspring; rent or profits of land. 
 
 In Pleading. The issue or the end, ter- 
 mination or conclusion, of the pleadings. So 
 called because an issue brings the pleadings 
 to a close. 3 Bl. Comm. 314. 
 
 EXLEGALITAS. In old English law. Out- 
 lawry. Laws Edw. Conf. c. 38; Spelman. 
 
 EXLEGARE. To outlaw. 
 
 EXLEGATUS, or EXLEX. An outlaw. 
 
 EXOINE. In French law. An act or in- 
 strument in writing which contains the rea- 
 sons why a party in a civil suit, or a person 
 accused, who has been summoned, agreeably 
 to the requisitions of a decree, does not ap- 
 pear. Poth. Proc. Cr. § 3, art. 3. 
 
 EXONERATION. 
 
 (1) The taking off a burden or duty; the 
 shifting of a burden from one person or one 
 piece of property to another. Thus, it is a 
 general rule in the distribution of an intes- 
 tate's estate that the debts which he himself 
 contracted, and for which he mortgaged his 
 
EXONERATUR 
 
 (347) 
 
 EXPILATOR 
 
 land as security, shall be paid out of the 
 personal estate, in exoneration of the real. 
 
 (2) The right of one secondarily liable, 
 who has paid the debt, to recourse in equity 
 against the principal for reimbursement. 
 Pom. Bq. Jur. p. 467, § 1416. 
 
 EXONERATUR (Lat.) In practice. A 
 short note entered on a bail piece, that the 
 bail is exonerated or discharged in conse- 
 quence of having fulfilled the condition of 
 his obligation, made by order of the court or 
 of a judge upon a proper cause being shown. 
 See "Recognizance." 
 
 EXPATRIATION. The voluntary act of 
 abandoning one's country, and becoming the 
 citizen or subject of another. 
 
 At common law, it is probable that a citi- 
 zen of the United States had no right to ex- 
 patriate himself. 2 Dall. (U. S.) 1; 7 Wheat. 
 (U. S.) 283. But see 2 Paine (U. S.) 652. 
 But Act Cong. July 27, 1868, declares that 
 expatriation is a natural and inherent right. 
 The effectiveness of this statute has been 
 doubted. 56 Fed. 556. 
 
 Expatriation can only be accomplished by 
 a removal from the country, and the acquire- 
 ment of a domicile elsewhere. 56 Fed. 556; 
 8 Cranch (U. S.) 253; 7 Wheat. (U. S.) 283. 
 
 EXPECTANCY. Contingency as to posses- 
 sion. See "Estates." 
 
 EXPECTANT. Contingent as to enjoy- 
 ment. See "Estates." 
 
 EXPECTANT HEIR. An expectant heir, 
 in the language of equity, is a person who, 
 having a reversionary right or hope of suc- 
 cession to property, but little or no prop- 
 erty immediately available, is exposed to 
 the temptation of selling or mortgaging his 
 right or expectation on unreasonable terms 
 (e. g., for much below its value, or at a 
 usurious rate of interest), and is therefore 
 considered as entitled to the protection of 
 the court against the enforcement of such 
 "catching bargains," as they are called. 
 
 EXPECTATION OF LIFE. In the doctrine 
 of life annuities, it is the share or number 
 of years of life which a person of a given 
 age may, upon an equality of chance, expect 
 to enjoy. Wharton. 
 
 EXPEDIMENT. The whole of a person's 
 goods and chattels, bag and baggage. 
 
 EXPEDIT REPUBLICAE NE SUA RE 
 quis male utatur. It is for the interest of 
 the state that a man should not use his own 
 property improperly. Inst. 1. 8. 2; Broom, 
 Leg. Max. (3d London Ed.) 328. 
 
 EXPEDIT REIPUBLICAE UT SIT FINIS 
 
 litlum. It is for the advantage of the state 
 that there be an end of suits; it is for the 
 public good that actions be brought to a 
 close. Co. Litt. 303b. 
 
 EXPEDITATE. In forest law. To cut out 
 the ball of a dog's fore feet, for the preser- 
 vation of the royal game. Manw. For. Law, 
 c. 16. 
 
 To cut the foot or root of a tree, so as to 
 cause it to fall. Fleta, lib. 2, c. 41, § 32. 
 
 EXPEDITATION. A cutting off the claws 
 or ball of the fore feet of mastiffs, to prevent 
 their running after deer. Cart, de For. c. 
 17; Spelman; Cowell; 2 Bl. Comm. 393, 417. 
 
 EXPEDITIO. An expedition ; an irregular 
 kind of army. Spelman. 
 
 EXPEDITIO BREVIS (Lat.) In old prac- 
 tice. The service of a writ. Towns. PI. 43. 
 
 EXPENDITORS. Paymasters; those who 
 expend or disburse certain taxes; especially 
 the sworn officer who supervised the repairs 
 of the banks of the canals in Romney Marsh. 
 Cowell. 
 
 EXPENSAE LITIS (Lat.) Expenses of the 
 suit; the costs, which are generally allowed 
 to the successful party. 
 
 EXPERIENTIA PER VARIOS ACTUS 
 legem facit. Magistra rerum experientia. 
 
 Experience by various acts makes laws. Ex- 
 perience is the mistress of things. Co. Litt. 
 60; Branch. Princ. 
 
 EXPERTS (from Lat. experti, skilled by 
 experience). Persons selected by the court 
 or parties in a cause, on account of their 
 knowledge or skill, to examine, estimate, 
 and ascertain things, and make a report of 
 their opinions. Merlin, Repert. Witnesses 
 who are admitted to testify from a peculiar 
 knowledge of some art or science, a knowl- 
 edge of which is requisite or of value in set- 
 tling the point at issue. 
 
 One who has made a subject a matter of 
 study, practice, and observation, and has par- 
 ticular special knowledge on the subject. 41 
 N. H. 546. 
 
 Persons professionally acquainted with the 
 science or practice in question. Strickl. Bv. 
 408. Persons conversant with the subject 
 matter on questions of science, skill, trade, 
 and others of like kind. Best, Ev. § 346. 
 
 A person skilled either by study (15 S. C. 
 408) or experience (12 Hun [N. Y.] 276) in 
 respect to some matter on which a course 
 of special study or experience is necessary 
 to the formation of an opinion (Rog. Exp. 
 Test. § 7), and who is accordingly admitted 
 to testify to his opinion in relation thereto. 
 
 EXPILARE (Lat.) In the civil law. To 
 spoil; to rob or plunder. Applied to inherit- 
 ances. Dig. 47. 19; Code, 9. 32. 
 
 EXPILATION. In civil law. The crime 
 of abstracting the goods of a succession. 
 
 This is said not to be a theft, because the 
 property no longer belongs to the deceased, 
 nor to the heir before he has taken posses- 
 sion. In the common law, the grant of let- 
 ters testamentary, or letters of administra- 
 tion, relates back to the time of the death 
 of the testator or intestate, so that the prop- 
 erty of the estate is vested in the executor 
 or administrator from that period. 
 
 EXPILATOR (Lat.) In the civil law. A 
 robber; a spoiler or plunderer. Expilatores 
 sunt atrociores fures. Dig. 47. 18. 1. 1. 
 
EXPIRATION 
 
 (348) 
 
 EXPROPRIATION 
 
 EXPIRATION. Cessation; end; as, the ex- 
 piration of a lease, of a contract or statute. 
 It ordinarily implies termination by the run- 
 ning of an expres^ limitation as to time, hut 
 has been used to signify termination in any 
 manner. Plowd. 198a, 
 
 EXPIRY OF THE LEGAL. In Scotch law. 
 The expiration of the term within which the 
 subject of an adjudication may be redeemed 
 on payment of the debt adjudged for. Bell, 
 Diet.; 3 Jur. Styles (3d Ed.) 1107. 
 
 EXPLEES. The profits of an estate. See 
 "Esplees," 
 
 EXPLETIA, or EXPLECIA (Lat. from ex- 
 plere, to complete or make perfect). Es- 
 plees or profit of land. Bracton, fols. 40, 
 44b. 
 
 EXPLICATIO (Lat.) In civil law. The 
 fourth pleading. Equivalent to the surre- 
 joinder of the common law. Calv. Lex. 
 
 EXPORTATION. The act of sending goods 
 out of the country. It ordinarily implies a 
 sending for commercial purposes. 5 Harr. 
 (Del.) 50L 
 
 EXPOSE. A French word, sometimes ap- 
 plied to a written document containing the 
 reasons or motives for doing a thing. The 
 word occurs in diplomacy. 
 
 To place in an unprotected situation. 
 
 To exhibit. "Exposure for sale" implies 
 an exhibition in a public place, not a private 
 sale. 13 Wend. (N. Y.) 429. 
 
 EXPOSITIO (Lat.) Explanation; exposi- 
 tion; interpretation. 
 
 EXPOSITIO, QUAE EX VISCERIBUS 
 causae nascitur, est aptisslma et fortissima 
 in lege. That exposition which springs from 
 the vitals of a cause is the fittest and most 
 powerful in law. 10 Coke, 24. 
 
 EXPOSITION DE PART. In French law. 
 The abandonment of a child, unable to take 
 care of itself, either in a public or private 
 place. 
 
 If the child thus exposed should be killed 
 in consequence of such exposure, as, if it 
 should be devoured by animals, the person 
 ^o exposing it would be guilty of murder. 
 Rose. Or. Ev. 591. 
 
 EXPOSURE OF PERSON. See "Indecen- 
 cy." 
 
 EXPRESS. Stated or declared, as opposed 
 to implied. That which is made known, and 
 not left to implication. 
 
 EXPRESS ABROGATION. A direct re- 
 peal in terms by a subsequent law referring 
 to that which is abrogated. 
 
 EXPRESS ASSUMPSIT. A direct under- 
 taking. See "Assumpsit." 
 
 EXPRESS COLOR. See "Color." 
 
 EXPRESS CONSIDERATION. See "Con- 
 sideration." 
 
 EXPRESS CONTRACT. See "Contract." 
 
 EXPRESS MALICE. Actual malice or 
 malice in fact, existing .when one actually 
 contemplates the injury or wrong which he 
 inflicts. 1 Clark & Marshall, Crimes, p. 144. 
 See "Malice." ' > 
 
 EXPRESS TRUST. See "Trust." 
 
 EXPRESS WARRANTY. See "Warranty." 
 
 EXPRESSA NOCENT; NON EXPRESSA 
 non nocent. Things expressed may be prej- 
 udicial; things not expressed are not Calv. 
 Lex.; Dig. 50. 17. 19. 5. 
 
 EXPRESSA NON PROSUNT QUAE NON 
 expressa proderunt. Things expressed may 
 be prejudicial, which, not expressed, will 
 profit. 4 Coke, 73. 
 
 EXPRESSIO EORUM QUAE TACITE IN- 
 sunt nihil operatur. The expression of those 
 things which are tacitly implied operates 
 nothing. 2 Pars. Cont. 28; 4 Coke, 73; 5 
 Coke, 11; Hob. 170; 3 Atk. 138; 11 Mees. & 
 W. 569; 7 Exch. 2^ 
 
 EXPRESSIO UNIUS EST EXCLUSIO AL- 
 terius. The expression of one thing is the 
 exclusion of another. Co. Litt. 210; Broom, 
 Leg. Max. (3d London Ed.) 596; 2 Pars. 
 Cont. 28; 3 Bing. N. C. 85; 8 Scott, N. R. 
 1013, 1917; 5 Term R. 21; 6 Term R. 320; 
 12 Mees. & W. 761; 15 Mees. & W. 110; 16 
 Mees. & W. 244; 2 Curt. (U. S.) 365; 6 Mass. 
 84; 11 Cush. (Mass.) 328. 
 
 EXPRESSUM FACIT CESSARE TACI- 
 
 tum. That which is expressed puts an end 
 to (renders ineffective) that which is im- 
 plied. Smith, Cont. (2d Ed.) 390; 5 Bing. 
 N. C. 185; 6 Barn. & C. 609; 2 Cromp. & M. 
 459; 2 El. & BL 856; 7 Mass. 106; 24 Me. 374; 
 6 N. H. 481; 1 Doug. (Mich.) 330; 4 Wash. 
 C. C. (U. S.) 185. 
 
 EXPRESSUM SERVITIUM REGAT VEL 
 declaret taciturn. Let service expressed rule, 
 or declare what is silent. 
 
 EXPROMISSIO (Lat.) In civil law. The 
 species of novation by which a creditor ac- 
 cepts a new debtor, who becomes bound in- 
 stead of the old, the latter being released. 
 1 Bouv. Inst, note 802. See "Novation." 
 
 EXPROMISSOR. In civil law. The per- 
 son who alone becomes bound for the debt 
 of another, whether the latter were obligated 
 or not. He differs from a surety, who is 
 bound together with his principal. Dig. 12. 
 4. 4; Id. 16. 1. 13; Id. 24. 3. 64. 4; Id. 38. 1. 
 37. 8. 
 
 EXPROMITTERE (Lat.) In civil law. To 
 undertake for another, with the view of be- 
 coming liable in his place. Calv. Lex. 
 
 EXPROPRIATION. Compulsorily depriv- 
 ing a person of a right of property belong- 
 ing to him in return for a compensation. 
 The term has been introduced from its use 
 in foreign countries to denote a compulsory 
 purchase of land, etc., for the purposes of a 
 
EXPULSION 
 
 (349) 
 
 EXTINCTO SUBJECTO, ETC. 
 
 railway, canal, or the like. "Expropriation 
 pour cause d'utilUe publlqiie." Id.; 1 App. 
 Cas. 384. 
 
 EXPULSION (Lat. expellere, to drive out). 
 The act of depriving a member of a body 
 politic or corporate, or of a society, of his 
 right of membership therein, by the vote of 
 such body or society, for some violation of 
 his duties as such, or for some offense 
 which renders him unworthy of longer re- 
 maining a member of the same. 
 
 It is sometimes loosely used in the sense 
 of "eject." 
 
 The term is ordinarily applied only to vol- 
 untary associations and public bodies, "dis- 
 franchisement" (g. V.) being the appropriate 
 term tor expulsion of a member of a corpora- 
 tion. 
 
 EXPURGATION. The act of purging or 
 cleansing. 
 
 EXPURGATOR. One who corrects by ex- 
 purglng. 
 
 EXQUAESTOR. In Roman law. One who 
 had filled the oflBce of quaestor. A title giv- 
 en to Tribonian. Inst, proem. § 3. Used 
 only in the ablative case (exqxbaestore) . 
 
 EXROGARE (Lat. ex, from, and rogare, to 
 pass a law). In Roman law. To take some- 
 thing from an old law by a new law. Tayl. 
 Civ. Law, 155. The same as derogare. See 
 "Abrogation." 
 
 EXTENDI FACIAS (Lat. you cause to be 
 extended). In English practice. The name 
 of a writ of execution, derived from its two 
 emphatic words; more commonly called an 
 "extent." 2 Tidd, Prae. 1043; 4 Steph. 
 Comm. 43. 
 
 EXTENSION. An enlargement, ordinarily, 
 to time to do any act. This term is applied 
 among merchants to signify an agreement 
 made between a debtor and his creditors, by 
 which the latter, in order to enable the for- 
 mer, embarrassed in his circumstances, to 
 retrieve his standing, agree to wait for a 
 definite length of time, after their several 
 claims become due and payable, before they 
 will demand payment. 
 
 Among the French, a similar agreement is 
 known by the name of attermoiement. Mer- 
 lin Repert. mot "Attermoiement." 
 
 EXTENSORES (Law Lat.) In old English 
 law. Extenders or appraisers; the name of 
 certain officers appointed to appraise and di- 
 vide or apportion lands. It was their duty 
 to make a survey, schedule, or inventory of 
 the lands, to lay them out under certain 
 heads, and then to ascertain the value of 
 each, as preparatory to the division or parti- 
 tion. Bracton, fols. 72b, 75; Britt. c. 71; 
 Pleta, lib. 5, c. 9, § 5; Barr. Obs. St. 103, 
 note. 
 
 EXTENT. A writ, issuing from the ex- 
 chequer, by which the body, goods, and lands 
 of the debtor may all be taken at once to 
 satisfy the judgment. 
 
 It is so called because the sheriff is to 
 
 cause the lands to be appraised at their full 
 extended value before he delivers them to 
 the plaintiff.' Fitzh. Nat. Brev. 131. The 
 writ originally lay to enforce judgments in, 
 case of recognizances or debts acknowledged 
 on statutes merchant or staple (see St. 13 
 Edw. I. "de Mercatoribus;" 27 Edw. III. c. 
 9), and, by 33 Hen. VIII. c. 39, was extended 
 to debts due the crown. The term is some- 
 times used in the various states of the Unit- 
 ed States to denote writs which give the 
 creditor possession of the debtor's lands for 
 a limited time till the debt be paid. 16 
 Mass. 186. 
 
 Extent in Aid. An extent issued at the 
 
 suit or instance of a crown debtor against a 
 person indebted to himself. This writ was 
 much abused, owing to some peculiar privi- 
 leges possessed by crown debtors, and its use 
 was regulated by St. 57 Geo. III. c. 117. See 
 3 Sharswood, Bl. Comm. 419. 
 
 Extent In Chief. An extent issued to 
 
 take a debtor's lands into the possession of 
 the crown. See 2 & 3 Vict. c. 11; 5 & S 
 Vict. c. 86, § 8. 
 
 EXTENTA MANERII (Law Lat.) The 
 title of a statute passed 4 Edw. I. St. 1; 
 being a sort of direction for making a sur- 
 vey or terrier of a manor, and all its ap- 
 pendages. 2 Reeve, Hist. Eng. Law, 140. 
 Mr. Barrlngton observes that it is most cer- 
 tainly no act of parliament, in any sense of 
 the word, but is merely a set of instructions 
 to the king's extender, with regard to what 
 he shall inquire into, and upon what heads 
 and particulars he is to make his report. 
 Barr. Obs. St. 103. 
 
 EXTENUATING CIRCUIVISTANCES. 
 
 Facts palliating or mitigating a crime. 
 Sometimes applied to torts for which ex- 
 emplary damages may be recovered. 
 
 EXTENUATION. That which renders a 
 crime or tort less heinous than it would be 
 without it. It is opposed to "aggravation." 
 
 EXTERRITORIALITY (Fr.) This term 
 {exterritorialite) is used by French jurists 
 to signify the immunity of certain persons, 
 who, although in the state, are not amenable 
 to its laws. Foreign sovereigns, ambassa- 
 dors, ministers plenipotentiary, and minis- 
 ters from a foreign power are of this class. 
 Foelix, Droit Int. Prive, liv. 2, tit. 2, c. 2, § 
 4. See "Ambassador;" "Conflict of Laws;" 
 "Minister;" "Privilege." 
 
 EXTERUS (Lat.) A foreigner or alien; 
 one born abroad. The opposite of civis. 
 Bac. Works, IV. 345. 
 
 EXTERUS NON HABET TERRAS. An 
 
 alien holds no lands. Tray. Lat. Max. 203. 
 
 EXTINCT (Lat. extinguere, to destroy or 
 put out). Extinguished. A rent \8 said to 
 be extinguished when it is destroyed and 
 put out. Co. Litt. 147b. See "Extinguish- 
 ment." 
 
 EXTINCTO SUBJECTO, TOLLITUR AD- 
 
 junctum. When the substance is gone, the 
 adjuncts disappear. 16 Johns. (N. Y.) 438, 
 492. 
 
EXTINGUISHMENT 
 
 (3S0) 
 
 EXTRA LEGEM 
 
 EXTINGUISHMENT. The destruction of 
 a right or contract; the act by which a con- 
 tract is made void; the annihilation of a col- 
 lateral thing or subject in the subject itself 
 out of which it is derived. Prest. Merg. 9. 
 For the distinction between an extinguish- 
 ment and passing a right, see 2 Sharswood, 
 BI. Comm. 325, note. 
 
 An extinguishment may be by matter of 
 fact and by matter of law. It is by matter 
 of fact either express, as when one receives 
 satisfaction and full payment of a debt, and 
 the creditor releases the debtor (11 Johns. 
 [N. Y.] 513), or implied, as when a person 
 hath a yearly rent out of lands, and becomes 
 owner, either by descent or purchase, of the 
 estate subject to the payment of the rent, 
 and the latter is extinguished (,3 Stew. 
 [Ala.] 60) ; but the person must have as 
 high an estate in the land as in the rent, 
 or the rent will not be extinct (Co. Lift. 
 ' 147b). 
 
 There are numerous cases where the claim 
 is extinguished by operation of law. For 
 example, where two persons are jointly but 
 not severally liable for a simple contract 
 debt, a judgment obtained against one is at 
 common law an extinguishment of the claim 
 on the other debtor. 1 Pet. C. C. (U. S.) 
 301; 2 Johns. (N. Y.) 213. 
 
 See, generally, Bouv. Inst. Index; Co. Litt. 
 147b; 1 Rolle, Abr. 933; 7 Viner, Abr. 367; 
 11 Viner, Abr. 461; 18 Viner, Abr. 493-515; 
 3 Nels. Abr. 818; Bac. Abr.; 5 Whart. (Pa.) 
 541; 2 Root (Conn.) 492; 3 Conn. 62; 6 Conn. 
 373; 1 Ohio, 187; 11 Johns. (N. Y.) 513; 1 
 Halst. (N. J.) 190; 4 N. H. 251; 31 Pa. St. 
 475. 
 
 EXTINGUISHMENT OF A DEBT. De- 
 struction of a debt. This may be by the 
 creditor's accepting a higher security. 
 Plowd. 84; 1 Salk. 304; 1 Md. 492; 5 Md. 389; 
 24 Ala. (N. S.) 439. A judgment recovered 
 extinguishes the original debt. 13 Mass. 
 148; 1 Pick. (Mass.) 118; Hill & D. (N. Y.) 
 392. A debt evidenced by a note may be 
 extinguished by a surrender of the note. 10 
 Cush. (Mass.) 169; 29 Pa. St. 50; 3 Ind. 
 337. As to the efiect of payment in extin- 
 guishing a debt, see "Payment." See, gen- 
 erally, 35 N. H. 421; 29 Vt. 488; 6 Fla. 25; 
 20 Ga. 403; 12 Barb. (N. Y.) 128. 
 
 EXTINGUISHMENT OF COMMON. Loss 
 of the right to have common. This may 
 happen from various causes, — by the owner 
 of the common right becoming owner of the 
 fee; by severance from the land; by release; 
 by approvement. 2 Billiard, Real Prop. 75; 
 2 Steph. Comm. 41; 1 Crabb, Real Prop. § 
 341 et seq.; Co. Litt. 280; Burton, Real Prop. 
 437; 1 Bac. Abr. 628; Cro. Bliz. 594. 
 
 EXTINGUISHMENTOFCOPYHOLD. This 
 takes place by a union of the copyhold and 
 freehold estates in the same person; also by 
 any act of the tenant showing an Intention 
 not to hold any longer of his lord. Hutt. 
 81; Cro. Eliz. 21; Williams, Real Prop. 287 
 et seq.; Watk. Copyholds, Index. 
 
 EXTINGUISHMENT OF RENT. A de- 
 struction of the rent by a union of the title 
 
 to the lands and the rent in the same person. 
 Termes de la Ley; Cowell; 3 Sharswood, 
 Bl. Comm. 325, note. 
 
 EXTINGUISHMENT OF WAYS. Destruc- 
 tion of a right of way, effected usually by a 
 purchase of the close over which it lies by 
 the owner of the right of way. 2 Washb. 
 Real Prop. Index. 
 
 EXTIRPATION. In English law. A spe- 
 cies of destruction or waste, analogous to 
 estrepement. See "Bstrepement." 
 
 EXTIRPATION E. A judicial writ, either 
 before or after judgment, that lay against a 
 person who, when a verdict was found 
 against him for land, etc., maliciously over- 
 threw any house, or extirpated any trees 
 upon it. Reg. Jud. 13, 56. 
 
 EXTOCARE (Lat.) in old records. To 
 grub woodland, and reduce it to arable or 
 meadow; "to stock up," as it is rendered in 
 Cowell. 5 Mon. Angl. 71. 
 
 EXTORSIVELY. A technical word used 
 in indictments for extortion. 
 
 When a person is charged with extorsively 
 taking, the very import of the word shows 
 that he is not acquiring possession of his 
 own. 4 Cox, C. C. 387. In North Carolina 
 the crime may be charged without using this 
 word. 1 Hayw. (N. C.) 406. 
 
 EXTORTIO EST CRIMEN QUANDOQUIS 
 colore officii extorquet quod non est debltunn, 
 vel supra debitum, vel ante tempus quod 
 est debitum. Extortion is a crime when, by 
 color of office, any person extorts that which 
 is not due, or more than is due, or before 
 the time when it is due. 10 Coke, 102. 
 
 EXTORTION. The unlawful taking by 
 any officer, by color of his office, of any 
 money or thing of value that is not due to 
 him, or more than is due, or before it is 
 due. 4 Bl. Comm. 141; 1 Hawk. P. C. c. 68, 
 § 1; 1 Russ. Crimes, *144; 7 Pick. (Mass.) 
 279; 3 Ind. 93; 107 N. C. 921. 
 
 In a large sense, the term includes any 
 injury under color of right; but it is gener- 
 ally and constantly used in the more limited 
 technical sense above given; while "oppres- 
 sion" is used to signify injuries other than 
 the extortion of things of value committed 
 under color of office. 
 
 EXTRA (Lat. without; out of; beyond). 
 Its opposite is in or infra. Calv. Lex. 
 
 EXTRA FEODUM (Lat.) Out of his fee; 
 out of the seigniory, or not holden of him 
 that claims it. Co. Litt. lb; Reg. Orig. 97b. 
 
 EXTRA JUS (Lat.) Beyond the law; more 
 than the law requires. In jure, vel extra jus. 
 Bracton, fol. 169b. 
 
 EXTRA LEGEM. Out of the law; out of 
 the protection of the law. . Co. Litt. 130. 
 
 Outlaws (utlagati) are said to be extra 
 legem positi, put out of the law. Fleta, lib. 
 1, c. 28, § 14. 
 
EXTRA LEGEM, ETC. 
 
 (3S1) 
 
 EXTREMIS 
 
 EXTRA LEGEM POSITUS EST CI VI Li- 
 ter mortuus. One out of the pale o£ the law 
 [an outlaw] is civilly dead. Co. Litt. 130. 
 
 EXTRA PRAESENTIAM MARITI (Lat.) 
 Out of the presence of her husband. 
 
 EXTRA QUATUOR MARI (Lat. beyond 
 four seas). Out of the realm. 1 Bl. Comm. 
 157. 
 
 EXTRA REGNUM (Lat.) Out of the 
 realm. 7 Coke, 16a; 2 Kent, Comm. 42, note. 
 
 EXTRA TERRITORIUM. 
 
 tory (of a state or county). 
 407. 
 
 Outside terri- 
 2 Kent, Comm. 
 
 EXTRA TERRITORIUM JUS DICENTI 
 nan paretur impune. One who exercises ju- 
 risdiction out of his territory cannot be 
 obeyed with impunity. 10 Coke, 77; Dig. 2. 
 1, 30: Story, Confl. Laws, § 539. 
 
 EXTRA VIAM. Out of the way. When, in 
 an action of trespass, the defendant pleads a 
 right of way, the defendant may reply extra 
 viam, that the trespass was committed be- 
 yond the way, or make a new assignment. 
 16 East, 343, 349. 
 
 EXTRA VIRES. Beyond powers. See 
 ■'Ultra Vires." 
 
 EXTRACT. A part of a writing. In gen- 
 eral, an extract is not evidence, because the 
 whole of the writing may explain the part 
 extracted, so as to give it a different sense; 
 but sometimes extracts from public books 
 are evidence, as extracts from the registers 
 of births, marriages, and burials, kept ac- 
 cording to law, when the whole of the mat- 
 ter has been extracted which relates to the 
 cause or matter in issue. 
 
 EXTRACTA CURIAE. The issues or prof- 
 its of holding a court, arising from the cus- 
 tomary dues, fees, and amercements. Cow- 
 ell. 
 
 EXTRADITION (Lat. ex, from, iraditio, 
 landing over). The surrender by one sover- 
 eign state to another, on its demand, of per- 
 sons charged with the commission of crime 
 within its jurisdiction, that they may be 
 dealt with according to its laws. 
 
 International Extradition. The sur- 
 render of persons charged with crime by one 
 ioreign state to another, on its demand, pur- 
 suant to treaty stipulations between them. 
 
 Interstate Extradition. The surrender 
 
 of persons by one federal state to another, 
 on its demand, pursuant to their federal con- 
 stitution and laws. Persons subject to ex- 
 tradition, see "Fugitive from Justice." • 
 
 EXTRADOTAL PROPERTY. In Louisi- 
 iana this term is used to designate that 
 -property which forms no part of the dowry 
 of a woman, and which is also called "para- 
 phernal property." Civ. Code La. art. 2315. 
 
 EXTRAHURA. In old English law. An es- 
 Iray. Spelman. 
 
 EXTRAJUDICIAL. That which does not 
 
 belong to the judge or his jurisdiction, not- 
 \sHthstanding which he takes cognizance of 
 it. Extrajudicial judgments and acts are 
 absolutely void. See "Coram non Judlce;" 
 Merlin, Repert. "Exces de Pouvoir." 
 
 EXTRAJUDICIUM. Extrajudicial; out of 
 the proper cause. Judgments rendered or 
 acts done by a court which has no jurisdic- 
 tion of the subject, or where it has no juris- 
 diction, are said to be "extrajudicial." 
 
 EXTRANEUS. 
 
 In Old Englisli Law. One foreign 
 
 born; a foreigner. 7 Rep. 16. 
 
 In Roman Law. An heir not bom in 
 
 the family of the testator; those of a foreign 
 state. The same as alienus. Vicat; Du 
 Cange. 
 
 EXTRANEUS EST SUBDITUS QUI EX- 
 tra terram, i. e., potestatem regis natus est. 
 
 A foreigner is a subject who is born out of 
 the territory, i. e., government of the king. 
 7 Coke, 16. 
 
 EXTRAORDINARY, CARE. The utmost 
 possible diligence. It is that required of 
 common carriers of passengers, and in a few 
 other relations, and has been defined to be 
 the doing of all that is possible to human 
 sagacity and foresight under the circum- 
 stances. 85 Me. 34; 68 Mo. 340. 
 
 EXTRAORDINARY REMEDIES. The 
 
 writs of mandamus, habeas corpus, quo war- 
 ranto, and other special writs, not ancillary 
 to an ordinary action, are sometimes so. 
 called. 
 
 EXTRAPAROCHIAL (Lat.) Out of a par- 
 ish: not within the bounds or limits of any 
 parish. 1 Bl. Comm. 113, 284. 
 
 EXTRATERRITORIALITY. That quality 
 of laws which makes them operate beyond 
 the territory of the power enacting them, 
 upon certain persons or certain rights. See 
 Wheaton, Int. Law (6th Ed.) 121 et seq. 
 
 EXTRAVAGANTES. In canon law. The 
 name given to the constitutions of the popes 
 posterior to the Clementines. 
 
 They are thus called, quasi vagantes extra 
 corpus juris, to express that they were out of 
 the canonical law, which at first contained 
 only the decrees of Gratian. Afterwards the 
 Decretals of Gregory IX., the Sexte of Boni- 
 face VIII., the Clementines, and at last the 
 Bxtravagantes, were added to it. There are 
 the Extravagantes of John XXII. and the 
 common Extravagantes. The first contain 
 twenty epistles, decretals, or constitutions 
 of that pope, divided under fifteen titles, 
 without any subdivision into books. The 
 others are epistles, decretals, or constitutions 
 of the popes who occupied the holy see either 
 before or after John XXII. They are di- 
 vided into books, like the decretals. 
 
 EXTREMIS (Lat.) When a person is sick 
 beyond the hope of recovery, and near death, 
 he is said to be in extremis. 
 
 A will made in this condition, if made 
 without undue influence, by a person of 
 
EXTREMIS PROBATIS, ETC. 
 
 (352) 
 
 EYRER 
 
 sound mind, is valid. As to the effect of 
 declarations of persons in extremis, see "Dy- 
 ing Declarations;" "Declaration." 
 
 EXTREMIS PROBATIS, PRAESUMUN- 
 tur media. Extremes being proved. Inter- 
 mediate things are presumed. Tray. Lat. 
 Max. 207. 
 
 EXTUMAE(LawLat.) In old records. Rel- 
 iques. Cowell. 
 
 EXUERE PATRIAM (Lat) To throw off 
 or renounce one's country or native alle- 
 giance; to expatriate one's self. Phillim. 
 Dom. 18. 
 
 EXULARE (Lat.) In old English law. To 
 
 exile or banish. Nullus liber homo, exuletur, 
 nisi, etc., no freeman shall be exiled, unless, 
 etc. Magna Charta, c. 29; 2 Inst. 47. 
 
 EY. A watery place ; water. Co. Litt. 6. 
 
 EYE-WITNESS. One who saw the act or 
 fact to which he testifies. When an eye-wit- 
 ness testifies, and is a man of intelligence 
 and integrity, much reliance must be placed 
 on his testimony, for he has the meats of 
 making known the truth. 
 
 EYOTT. A small island arising in a river. 
 Fleta, lib. 3, c. 2, s. b; Bracton, lib. 2, c. 2. 
 See "Island." 
 
 EYRE. See "Eire." 
 
 EYRER. To go about. See "Eire." 
 
(353) 
 
 FACT 
 
 F 
 
 F. The sixth letter of the alphabet. A 
 fighter or maker of frays, if he had no ears, 
 was to be branded in the cheek with this let- 
 ter. Cowell. Those who had been guilty of 
 falsity were to be so marked. 2 Reeve, Hist. 
 Bng. Law, 392. 
 
 F. O. B. Free on board. A mercantile 
 term used in contracts of sale where the 
 seller agrees to put the goods on board cars 
 at a specified place, but freight is paid by 
 the buyer. 
 
 FABRIC LANDS. In English law. Lands 
 given for the repair, rebuilding, or mainte- 
 nance of cathedrals or other churches. 
 
 It was the custom, says Cowell, for almost 
 every one to give by will more or less to 
 the fabric of the cathedral or parish church 
 where he lived. These lands so given were 
 called "fabric lands," because given ad fabri- 
 cam ecclesiae reparandam, for repairing the 
 fabric of the church. Called by the Saxons 
 "timber lands." Cowell; Spelman. 
 
 FABRICA. In old English law. The mak- 
 ing or coining of money. Mem. in Scacc. H. 
 12 Edw. I. 
 
 FABRICARE (Lat.) To make. Used of 
 an unlawful making, as counterfeiting coiu 
 (1 Salk. 342), and also of a lawful coining. 
 
 FAB U LA. In old European law. A con- 
 tract or formal agreement; but particularly 
 used in the Lombardic and Visigothic laws 
 to denote a marriage contract or a will. 
 Spelman. 
 
 FAC SIMILE PROBATE. In England, 
 where the construction of a will may be af- 
 fected by the appearance of the original pa- 
 per, the court will order the probate to pass 
 in fac simile, as it may possibly help to 
 show the meaning of the testator. 1 Wil- 
 liams, Ex'rs (7th Ed.) 331, 386, 566. 
 
 FACE. The face of an instrument is that 
 which it shows without extrinsic explana- 
 tion. 
 
 FACERE (Lat.) In civil law. To do; to 
 make. A word of very comprehensive sig- 
 nification. Dig. 50. 16. 218. See Calv. Lex. 
 "Brissonius." An important word formerly 
 in the language of writs and contracts, and 
 the general language of the law. 
 
 Facere defaltam, to make default. Brac- 
 ton, fols. 238, 334b, 360b, 363. 
 
 Facere duelUim, to make the duel; to en- 
 gage in the combat, or make or do battle, 
 as the phrase still is. Bracton, fol. 141b. 
 
 Facere finem, to make or pay a fine. Id. 
 fol. 154. 
 
 Facere legem, to make one's law. Id. fols. 
 156b, 334b, 335b, 410. 
 
 Facere sacramentum, to make oath. Id. 
 fols. 50b, 185b. See "Make." 
 
 FACIAS (Lat. facere, to make, to do). That 
 you cause. Occurring in the phrases scire 
 facias, that you cause to know, and fieri 
 facias, that you cause to be made, etc. Used 
 also in the phrases do ut facias, I give 
 that you may do, and facio ut facias, I do 
 that you may do, two of the four divisions 
 of considerations made by Blackstone (2 
 Comm. 444). 
 
 FACIENDO (Law Lat. from facere; Law 
 Fr. fesauiit). Doing, making, or paying; 
 one of the apt words of reserving a rent, 
 used in ancient deeds. Co. Litt. 47a. Ap- 
 plied usually to those services which con- 
 sisted of acts done (factiones) . Faciendo 
 inde talia servitia, doing therefor such serv- 
 ices. Bracton, fol. 35b; Fleta, lib. 3, c. 14, 
 § 17. 
 
 FACIES (Lat.) The face, outward appear- 
 ance or color of a thing; the inspection or 
 view of a thing. Prima fades, the first face 
 or appearance. Prima facie, on the first 
 view or color, — at first blush, as the modern 
 phrase is. Bracton, fols. 29, 280. See "Col- 
 or." 
 
 FACILE. In Scotch law. Easily persuad- 
 ed; easily imposed upon. Bell, Diet. 
 
 FACILITY. In Scotch law. Pliancy of dis- 
 position. Bell, Diet. 
 
 FACINUS QUOS INQUINAT AEQUAT. 
 
 Guilt makes equal those whom it stains. 
 
 FACIO UT DES (Lat. I do that you may 
 give). A species of contract which occurs 
 when a man agrees to perform anything for 
 a price either specifically mentioned, or left 
 to the determination of the law to set a value 
 on it; as when a servant hires himself to 
 his master for certain wages, or an agreed 
 sum of money. 2 Bl. Comm. 445. 
 
 FACIO UT FACIAS (Lat. I do that you 
 may do). A species of contract in the civil 
 law which occurs when I agree with a man 
 to do his work for him if he will do mine 
 for me; or if two persons agree to marry 
 together, or to do any other positive acts 
 on both sides; or it may be to forbear on 
 one side in consideration of something done 
 on the other. 2 Bl. Comm. 444. 
 
 FACT (Lat. factum). An action; a thing 
 done; a circumstance. 
 
 "Fact" is much used in modern times in 
 distinction from "law." Thus, in every case 
 to be tried there are facts to he shown to 
 exist to which the law is to be applied. If 
 law is, as it is said to be, a rule of action, the 
 fact is the action shown to have been done, 
 and which should have been done in accord- 
 
FACTA 
 
 (354) 
 
 FACTUM UNIUS, ETC. 
 
 ance with the rule. Fact, in this sense, 
 means a thing done or existing. 
 
 Material facts are those which are essen- 
 tial to the right of action or defense. 
 
 Immaterial facts are those which are not 
 essential to the right of action or defense. 
 
 Material facts must be shown to exist; 
 immaterial facts need not. The existence 
 of facts is generally determined by the jury; 
 but there are many facts of which a court 
 takes cognizance. See "Judge;" "Jury;" 
 "Cognizance." As to pleading material facts, 
 see Gould, PI. c. 3, § 28. And see 3 Bouv. 
 Inst, note 3150. 
 
 FACTA. In old English law. Deeds. 
 Facta armurum, deeds or feats of arms; that 
 is, jousts or tournaments. Cowell. 
 
 Facts. Facta et casus, facts and cases. 
 Bracton, fol. lb. 
 
 FACTA SUNT POTENTIORA VERBIS. 
 
 Facts are more powerful than words. 
 
 FACTA TENENT MULTA QUAE FIERI 
 prohibentur. Deeds contain many things 
 which are prohibited to be done. 12 Coke, 
 124. 
 
 FACTIO TESTAMENTI (Lat.) In civil 
 law. The power of making a will, including 
 r|ght and capacity. Also the power of re- 
 ceiving under a will. Vicat. 
 
 FACTO. In fact; by an act; by the act 
 or fact. Ipso facto, by the act itself; by the 
 mere effect of a fact, without anything su- 
 peradded, or any proceeding upon it to give 
 it effect. 3 Kent, Comm. 55, 58. 
 
 FACTOR. An agent employed to sell goods 
 or merchandise consigned or delivered to 
 him, by or for his principal, for a compen- 
 sation, commonly called "factorage" or "com- 
 mission." Paley, Ag. 13;- 1 Livermore, Ag. 
 68; Story, Ag. § 33; Comyn, Dig. "Mer- 
 chant" (B) ; Malynes, Lex. Merc. 81 ; Beawes, 
 Lex. Merc. 44; 3 Chit. Com. Law, 193; 2 
 Kent, Comm. (3d Ed.) 622, note (d); 1 
 Bell, Comm. 385, §§ 408, 409; 2 Barn. & Aid. 
 143.- 
 
 A domestic factor is one who resides in 
 the same country with his principal. 
 
 A foreign factor is one who resides in a 
 different country from his principal. 1 Term 
 R. 112; 4 Maule & S. 576. 
 
 A "factor" differs from a "broker" in that 
 he is intrusted with the possession and 
 management of the goods to be sold, while 
 a broker has only an agency to sell, or pos- 
 session of documents. Story, Ag. § 33. 
 
 In Maritime Law. A factor was an- 
 ciently an agent who accompanied the ship, 
 the cargo being consigned for sale, and he 
 being empowered to purchase a return car- 
 go out of the proceeds. Such an agent Is 
 usually called a "supercargo." Beawes, Lex 
 Merc. 44, 47. 
 
 FACTO RS' ACTS. A name given to certain 
 English statutes, of which 40 & 41 Vict. c. 39, 
 is the latest, validating pledges by factors 
 to bona flde pledgees. 
 
 FACTORAGE. The wages or allowances 
 
 paid to a factor for his services. It is more 
 usual to call this "commissions." 1 Bouv. 
 Inst, note 1013; 2 Bouv. Inst, note 1288., 
 
 FACTORIZING PROCESS. A process for 
 attaching effects of the debtor in the hands 
 of a third party^ It is substantially the 
 same process known as the garnishee pro- 
 cess, trustee process, process by foreign at- 
 tachment. Drake, Attachm. § 451. 
 
 FACTORY. In Scotch law. A contract 
 which partakes of a mandate, and locatio ad 
 operandum, and which is in the English and 
 American law books discussed under the 
 title of "Principal and Agent." 1 Bell, 
 Comm. 259. 
 
 FACTUM. A man's own act and deed; a 
 culpable or criminal act; an act not founded 
 in law; a deed; a written instrument under 
 seal. Called, also, charta. Spelman; 2 Bl. 
 Comm. 295. 
 
 The difference between factum and charia 
 originally would seem to have been that fac- 
 tum, denoted the thing done, and charta the 
 evidence thereof. Co. Litt. 9b. When a man 
 denies by his plea that he made a deed on 
 which he is sued, he pleads non est factum, 
 he did not make it. 
 
 In wills, factum seems to retain an active 
 signification, and to denote a making. See 
 11 How. (U. S.) 358. 
 
 A fact. Factum probandum, the fact to be 
 proved. 1 Greenl. Ev. § 13. 
 
 A portion of land granted to a farmer; 
 otherwise called a hide, iovata, etc. Spel- 
 man. 
 
 In French Law. A memoir which con- 
 tains, concisely set down, the fact on which 
 a contest has happened, the means on which 
 a party founds his pretensions, with the 
 refutation of the means of the adverse par- 
 ty. See Vicat. 
 
 FACTUM A JUDICE QUOD AD EJUS OF- 
 
 ficlum non special, non ralum est. An act 
 of a judge which does not pertain to his of- 
 fice is of no force. 10 Coke, 76; Dig. 50. 17. 
 170; Broom, Leg. Max. (3d London Ed.) 89. 
 
 FACTUM CUIQUE SUUM, NON ADVER- 
 sario, nocere debet. A man's actions should 
 injure himself, not his adversary. Dig. 50. 
 17. 155. 
 
 FACTUM INFECTUM FIERI NEQUIT 
 
 What is done cannot be undone. 1 Kames, 
 Bq. 96, 259. 
 
 FACTUM NEGANTIS NULLA PROBATIO. 
 
 No. proof is incumbent on him who denies a 
 fact. 
 
 FACTUM NON DICITUR QUOD NON 
 perseverat. That is not said to be done which 
 does not last. 5 Coke, 96; Shep. .Touch. 
 (Prest. Ed.). 391. 
 
 FACTUM PROBANDUM. The fact to be 
 proved. 
 
 FACTUM PROBANS. An evidentiary fact. 
 
 FACTUM UNIUS ALTERI NOCERE NON 
 debet. The deed of one should not hurt an- 
 other. Co. Litt. 152. 
 
FACULTAS PROBATIONUM, ETC. (3S5) 
 
 PAINT PLEADER 
 
 FACULTAS PROBATIONUM NON EST 
 angustanda. The right of offering proof is 
 not to be narrowed. 4 Inst. 279. 
 
 FACULTIES OF HUSBAND. His ability 
 by earnings, or out of accumulated resources, 
 to pay alimony which may be awarded to a 
 wife suing for divorce. It should be al- 
 leged as a foundation for an allowance of 
 alimony or support. Not in common use. 
 
 FACULTY. 
 
 In Canon Law. A license; an author- 
 ity. For example, the ordinary, having the 
 disposal of all seats in the nave of a church, 
 may grant this power, which, when it is 
 delegated, is called a "faculty," to another. 
 
 Faculties are of two kinds: .First, when 
 the grant is to a man and his heirs in 
 gross; second, when it is to a person and 
 his heirs as appurtenant to a house which he 
 holds in the parish. 1 Term R. 429, 432; 12 
 Coke, 106. 
 
 In Scotch Law. Ability or power. The 
 
 term "faculty" is more properly applied to a 
 power founded on the consent of the party 
 from whom it springs, and not founded on 
 property. Karnes, Eq. 504. 
 
 In American Colleges. The faculty is 
 
 the body of instructors. 
 
 FACULTY OF ADVOCATES. The college 
 or society of advocates in Scotland. 
 
 FADERFIUM. A marriage gift coming 
 from the father or brother of the bride. 
 
 FAEDER FEOH. The portion brought by 
 a wife to her husband, and which reverted 
 to a widow, in case the heir of her deceased 
 husband refused his consent to her second 
 marriage; i. e., it reverted to her family in 
 case she returned to them. Anc. Inst. Bng. 
 
 FAESTING MEN. Approved men who were 
 strong armed. Subsequently the word seems 
 to have been used in the sense of "rich," 
 and hence it probably passed into its later 
 and common meaning of pledges or bonds- 
 men, which, by Saxon custom, were bound 
 to answer for each other's good behavior. 
 Cowell; Du Cange. 
 
 fAGGOT. a badge worn in popish times 
 by persons who had recanted and abjured 
 what was then adjudged to be heresy, as an 
 emblem of what they had merited. Cowell. 
 
 FAGGOT VOTES. A faggot vote is where 
 a man is formally possessed of a right to 
 vote for members of parliament, without 
 possessing the substance which the vote 
 should represent; as if he is enabled to buy 
 a property, and at the same moment mort- 
 gage it to its full value for the mere sake of 
 the vote. Such a vote is called a "faggot 
 vote." Wharton. 
 
 FA I DA. In Saxon law. Great and open 
 hostility which arose on account of some 
 murder committed. The term was applied 
 only to that deadly enmity in deference to 
 which, among the Germans and other north- 
 ern nations, if murder was committed, pun- 
 ishment might be demanded from any one of 
 
 kin to the murderer by any one of the kin 
 of the murdered man. Du Gauge; Spelman. 
 FA L LITE (Fr.) Bankruptcy; failure; the 
 condition of a merchant who ceases to pay 
 his debts. 3 Masse, Dr. Comm. 171; Guyot, 
 Rep. Univ. 
 
 FAILURE OF CONSIDERATION. Failure 
 of a party to a contract, whether by fault 
 or necessity, to perform that which he has 
 obligated himself to do. 
 
 To constitute failure of consideration, 
 there must be failure to perform that which 
 was promised; subsequent depreciation of 
 the thing promised (86 N. C. 498), though 
 due to inherent defects (78 111. 578), not be- 
 ing a legal failure of consideration. 
 
 It is a phase of want of consideration, the 
 contract being invalid for absence of con- 
 sideration after the consideration has failed. 
 But in another sense, want of consideration 
 implies that there never was a considera- 
 tion, while failure of cofisideration implies 
 the existence of mutual promises at the mak- 
 ing of the contract, and the subsequent 
 breach of one party. 
 
 Failure of consideration differs from non- 
 performance or breach only as to the point 
 of view; the same acts constituting a failure 
 of consideration in respect to the effect to 
 release the other party from his obligation, 
 and a breach In respect to the effect to ren- 
 der the nonperforming party liable in dam- 
 ages. 
 
 FAILURE OF ISSUE. A want of issue to 
 take an estate limited over by an executory 
 devise. 
 
 Failure of issue is definite or indefinite. 
 When the precise time for the failure of is- 
 sue is fixed by the will, as in the case of a 
 devise to Peter, but, if he dies Without issue 
 living at the time of his death, then to an- 
 other, this is a failure of issue definite. An 
 indefinite failure of issue is the very con- 
 verse or opposite of "this, and it signifies a 
 general failure of issue, whenever it may 
 happen, without fixing any time, or a cer- 
 tain or definite period, within which it must 
 happen. 2 Bouv. Inst, note 1849. See "Dy- 
 ing Without Issue." 
 
 FAILURE OF RECORD. The neglect to 
 produce the record after having pleaded it. 
 When a defendant pleads a matter, and of- 
 fers to prove it by the record, and then 
 pleads nvl tie! record, a day is given to the 
 defendant to bring in the record. If he 
 fails to do so, he is said to fail, and, there 
 being a failure of record, the plaintiff is en- 
 titled to judgment. Termes de la Ley. See 
 the form of entering it, 1 Wm. Saund. 92, 
 note 3. 
 
 FAINT (or FEIGNED) ACTION. In old 
 
 English practice. An action was so called 
 where the party bringing it had no title to 
 recover, although the words of the writ were 
 true. A false action was properly where the 
 words of the writ were false. Litt. § 689; 
 Co. Litt. 361. 
 
 FAINT PLEADER. A false, fraudulent, 
 or coUusory manner of pleading, to the de- 
 ception of a third person. 
 
FAIR 
 
 (356) 
 
 FALDFEY 
 
 FAIR. A public mart or place of buying 
 and selling. 1 Bl. Comm. 274. A greater 
 species of market, recurring at more distant 
 intervals. 
 
 A fair is usually attended by a greater 
 concourse of people than a market, for the 
 amusement of whom various exhibitions are 
 gotten up. McCulloch; Wharton. 
 
 A solemn or greater sort of market, grant- 
 ed to any town by privilege, for the more 
 speedy and commodious provision of such 
 things as the subject needeth, or the utter- 
 ance of such things as we abound in above 
 our own uses and occasions. Cowell; Cun- 
 ningham. A privileged market. 
 
 A fair is a franchise which is obtained by 
 a grant from the crown. 2 Inst. 220; 3 Mod. 
 123; 3 Lev. 222; 1 Ld. Raym. 341; 2 Saund. 
 172; 1 Rolle, Abr. 106; Tomlins; Cunning- 
 ham. 
 
 In the "United Stages, fairs, in the ancient 
 sense, are almost unknown. They are recog- 
 nized in Alabama (Aik. Dig. 409, note), and 
 in North Carolina, where they are regulated 
 by statute (1 Rev. St. N. C. 282). 
 
 FAIR-PLAY MEN. A local irregular tri- 
 bunal which existed in Pennsylvania about 
 the year 1769. 
 
 About the year 1769 there was a tract of 
 country in Pennsylvania situate between Ly- 
 coming creek and Pine creek, in which the 
 proprietaries prohibited the making of sur- 
 veys, as it was doubtful whether it had or 
 had not been ceded by the Indians. Al- 
 though settlements were forbidden, yet ad- 
 venturers settled themselves there. Being 
 without the pale of ordinary authorities, the 
 inhabitants annually elected a tribunal, in 
 rotation, of three of their number, whom 
 they denominated "fair-play men," who had 
 authority to decide all disputes as to bound- 
 aries. Their decisions were final, and en- 
 forced by the whole community en masse. 
 Their decisions are said to have been just 
 and equitable. 2 Smith, Pa. Laws, 195; Ser- 
 geant, Land Laws Pa. 77. 
 
 FAIR PLEADER. The name of a writ 
 given by the statute of Marlebridge, 52 Hen. 
 ^ III. c. 11. See "Beaupleader." 
 
 ' FAIT. Anything done; a deed lawfully 
 executed. Comyn, Dig. Femme de fait, a 
 wife de facto. 
 
 FAIT ENROLLE. A deed enrolled, as a 
 bargain and sale of freeholds. 1 Keb. 568. 
 
 FA I TOURS. Idle persons; idle livers; 
 vagabonds. Termes de la Ley; Cowell: 
 Blount; Cunningham. 
 
 FALCARE (Lat.) To cut or mow down. 
 Falcare praia, to cut or mow down grass in 
 meadows hayed (laid in for hay) was a cus- 
 tomary service for the lord by his inferior 
 tenants. Kennett. 
 
 Falcator, the tenant performing the serv- 
 ice. 
 
 Falcaiura, a day's mowing; falcatura una, 
 once mowing the grass. 
 
 Falcatio, a mowing. 
 
 FaJcata, that which was mowed. Ken- 
 nett; Cowell; Jacob. 
 
 FALCIDIA. In Spanish law. The fourth 
 portion of an inheritance, which legally be- 
 longs to the heir, and for the protection of 
 which he has the right to reduce the legacies 
 to thrfee fourth parts of the succession, in 
 order to protect his interest. 
 
 FALCIDIAN LAW. In Roman law. A 
 statute or law restricting the right of dis- 
 posing of property by will, enacted by the 
 people during the reign of Augustus, on the 
 proposition of Falcidius, who was a tribune, 
 in the year of Rome 714. 
 
 Its principal provision gave power to fa- 
 thers of families to bequeath three-fourths 
 of their property, but deprived them of the 
 power to give away the other fourth, which 
 was to descend to the heir. Inst. 2. 22. This 
 fourth was termed the "Palcidian portion." 
 
 A similar principle has been adopted in 
 Louisiana, where donations inter vivos or 
 mortis causa cannot exceed two-thirds of the 
 property of the disposer, if he leaves at his 
 decease a legitimate child; one-half, if he 
 leaves two children; and one-third, if he 
 leaves three or a greater number. Civ. Code, 
 art. 1480. 
 
 A similar principle prevailed in England 
 in earlier times, and it was not until after 
 the Restoration that the power of a father 
 to dispose of all his property by will be- 
 came fully established. 2 Bl. Comm. 11. 
 As to the early history of testamentry law, 
 see Maine, Anc. Law. 
 
 At the present day, by the common law, 
 the power of the father to give all his prop- 
 erty is unqualiOed. He may bequeath it to 
 his children equally, to one in preference to 
 another, or to a stranger in exclusion of all, 
 except that his widow has a right of dower 
 in his real property. In some of the states, 
 the statutes authorizing bequests and de- 
 vises to charitable corporations limit the 
 amount which a testator may give, to a cer- 
 tain fraction of his estate. 
 
 FALCIDIAN PORTION. That portion of 
 a testator's estate which, by the Palcidian 
 law, was required to be left to the heir, 
 amounting to at ^least one-fourth. Civ. Code 
 La. art. 1608; 1 White, New Recop. 106. 
 
 FALDA (Spanish). The slope or skirt of 
 a hill. 2 Wall. (IJ. S.) 673. 
 
 In Old English Law. A sheep fold; 
 
 the liberty of faldage, or setting up in a 
 field a movable pen for sheep. 
 
 FALDAE CURSUS. A sheep walk. 2 
 Vent. 139. 
 
 FALDAGE. The privilege -which ancient- 
 ly several lords reserved to themselves of 
 setting up folds for sheep in any fields with- 
 in their manors, the better to manure them, 
 and this not only with their own, but their 
 tenants', sheep. Called, variously, secta fal- 
 dare, fold-course, free-fold, faldagii. Cun- 
 ningham; Cowell; Spelman. 
 
 FALDATA. In old English law. A flock 
 or fold of sheep. Cowell. 
 
 FALDFEY. A compensation paid by some 
 
FALDISDORY 
 
 (367) 
 
 FALSE PRETENSES 
 
 customary tenants that they might have lib- 
 erty to fold their own sheep on their own 
 land. Cunningham; Cowell; Blount. 
 
 FALDISDORY. The bishop's seat or 
 throne within the chancel. 
 
 FALDSOCA (Saxon). The liberty or priv- 
 ilege of foldage. 
 
 FALDSTOOL, or FOLDSTOOL. A place 
 at the south side of the altar at which the 
 sovereign kneels at his coronation. 
 
 FALDWORTH. A person of age that he 
 may be reckoned of some decennary. Du 
 Fresne. 
 
 FALERAE. In old English law. The tackle 
 and furniture of a cart or wain. Blount. 
 
 FALESIA. In old English law. A hill, or 
 down by the seaside. Co. Litt. 5b; Domes- 
 day Book. 
 
 FALK LAND. See "Polcland." 
 
 FALL. In Scotch law. To lose. To fall 
 from a right is to lose or forfeit it. 1 
 Kames, Eq. 228. 
 
 FALL OF LAND. In English law. A 
 quantity of land six ells square, superficial 
 measure. 
 
 FALLO. In Spanish law. The final de- 
 cree or judgment given in a lawsuit. 
 
 FALSA DEMONSTRATIO (Lat.) In the 
 civil law. False designation; erroneous de- 
 scription of a person or thing in a written 
 instrument. Inst. 2. 20. 30. 
 
 FALSA DEMONSTRATIO NON NOCET. 
 
 A false description does not vitiate. 6 Term 
 R. 676. See 2 Story (U. S.) 291; 1 Greenl. 
 Ev. § 301; Broom, Leg. Max. (3d London 
 Ed.) 562; 2 Pars. Cont. 62, note, 69, note, 
 72, note, 76, note; 4 C. B. 328; 11 C. B. 208; 
 14 C. B. 133. 
 
 FALSA DEMONSTRATIONE LEGATUM 
 non perimi. A legacy is not destroyed by 
 an incorrect description. 3 Bradf. Sur. (N. 
 Y.) 144, 149. 
 
 FALSA M ON ETA. In civil law. False or 
 counterfeit money. Code, 9. 24. 
 
 FALSA ORTHOGRAPHIA, SIVE FALSA 
 grammatiba, non vitiat concessionem. False 
 spelling or false grammar does not vitiate 
 a grant. 9 Coke, 48; Shep. Touch. 55. 
 
 FALSA RE. To counterfeit. Bracton, fol. 
 276b. 
 
 FALSARIUS, or FOLSONARIUS. A coun- 
 terfeiter. Towns. PI. 260; Hov. Frauds, 424. 
 
 FALSE ACTION. See "Feigned Action." 
 
 FALSE CHARACTER. Personating the 
 master or mistress of a servant, or any rep- 
 resentative of such master or mistress, and 
 giving a false character to the servant, is 
 an offense punishable in England with a fine 
 of £20. St. 32 Geo. III. c. 56. 
 
 FALSE IMPRISONMENT. Any unlawful 
 restraint of a man's liberty, whether In a 
 place made use of for imprisonment gener- 
 ally, or in one used only on the particular 
 occasion, or by words and an array of force, 
 without bolts or bars, in any locality what- 
 ever. 2 Bish. Crim. Law, § 669; 8 N. H. 
 550; 9 N. H. 491; 7 Humph. (Tenn.) 43; 12 
 Ark. 43; 7 Q. B. 742; 5 Vt. 588; 3 Blackf. 
 (Ind.) 46; 9 Johns. (N. Y.) 117; 1 A. K. 
 Marsh. (Ky.) 345. 
 
 The characteristic of false imprisonment 
 is the unlawfulness of the detention. If the 
 person is detained under valid process, 
 though it be erroneously or maliciously is- 
 sued, it is not false imprisonment. 58 Wis. 
 276; 17 Kan. 436. 
 
 FALSE JUDGMENT (Law Lat. falsum ju- 
 dicmm; breve de falso judicio). In English 
 law. A writ which lies to the courts at 
 Westminster to reverse the judgment of 
 some inferior court not of record. 3 Bl. 
 Comm. 34, 406; Fitzh. Nat. Brev. 18; Finch, 
 Law, bk. 4, c. 47. 
 
 FALSE LATIN. In old practice. Ungram- 
 matical Latin. Before the statute directing 
 law proceedings to be in English, if a Latin 
 word was significant, though not true or 
 good Latin, yet an indictment, declaration, 
 or fine should not be impeached or quashed 
 on account of it, as where the word proefato 
 was used for proefatoe, and the like. But 
 if the word was not Latin, nor allowed by 
 the law as vocabulum artis (a word or term 
 of art), but was insensible there, if it were 
 in a material point, as if murdredum was 
 used for murdrum, in an indictment, or 
 hurgariter for iurglariter, it made the whole 
 vicious and insufficient. 5 Coke, 121b. See 
 4 Mod. 159; 5 Mod. 281; 11 Mod. 399. 
 
 FALSE NEWS. Spreading false news, 
 whereby discord may grow between the sov- 
 ereign of England and his people, or the 
 great men of the realm, or which may pro- 
 duce other mischiefs, still seems to be a 
 misdemeanor, under St. 3 Edw. I. c. 34. 
 Steph. Dig. Crim. Law, § 95. 
 
 FALSE PERSONATION. See "Persona- 
 tion." 
 
 FALSE PRETENSES. In criminal law. 
 False representations and statements, made 
 with a fraudulent design to obtain "money, 
 goods, wares, and merchandise," with intent 
 to cheat. 2 Bouv. Inst, note 2308. 
 
 Such a fraudulent representation of a past 
 or existing fact by one who knows it not to 
 be true as is adapted to induce the person 
 to whom it is made to part with something 
 of value. 2 Bish. Crim. Law, § 415. 
 
 The offense is distinguished from "larce- 
 ny" by the intent with which the injured per- 
 son parts with his property. In larceny, 
 the property is taken against the owner's 
 will, while by false pretenses he is induced 
 tP voluntarily part with it. 77 N. Y. 114. 
 
 At common law it was not criminal to ob- 
 tain property by false representation with- 
 out false weights, measures, or tokens, but 
 this is generally changed by statutei To 
 
FALSE RETURN 
 
 (358) 
 
 FAMA, QUAE, ETC. 
 
 constitute the offense of obtaining property 
 by false pretenses: 
 
 (1) There must be an actual representa- 
 tion. 
 
 (2) The representation must be of a fact, 
 not a prediction of future events, a promise, 
 an expression of opinion, or mere dealer's 
 talk. 
 
 (3) The pretense must be false at the time 
 the property is obtained. 
 
 (4) It must be reasonably calculated to 
 deceive, when considered with reference to 
 the capacity of the person to whom it is 
 made. 
 
 (5) It must be made (a) with knowledge 
 that it is false; (b) with intent to defraud; 
 (c) with intent to deprive the owner of his 
 property. 
 
 (6) It must deceive the party to whom it 
 is made; that is, it must be relied on. 
 
 (7) Negligence of the person defrauded 
 is no defense. 
 
 (8) The property must be actually ob- 
 tained. 
 
 (9) The person to whom the pretense was 
 made must be defrauded. 
 
 (10) The thing obtained must be within 
 the terms of the statutes. 2 Clark & Mar- 
 shall, Crimesi 818. 
 
 FALSE RETURN. A return made by the 
 sheriff, or other ministerial officer, to a 
 writ, in which is stated a fact contrary to 
 the truth, and injurious to one of the par- 
 ties, or some one having an interest In it. 
 
 FALSE SWEARING. In English law. A 
 misdemeanor consisting of making a will- 
 fully false oath, but not in a judicial pro- 
 ceeding, by which circumstance it is distin- 
 guished from perjury. 
 
 FALSE TOKEN. A false document or 
 sign of the existence of a fact, — in general 
 used for the purpose of fraud. See 2 Star- 
 kie, Ev. 563. 
 
 It must be something real and visible. 58 
 Ga. 409. 
 
 FALSEDAD. In Spanish law. Falsity; 
 an altei;ation of the truth. Las Partidas, pt. 
 3, tit. 26, lib. 1. 
 
 Deception: fraud. Id. pt. 3, tit. 32, lib. 21. 
 
 FALSEHOOD. Any untrue assertion or 
 proposition; a willful act or declaration con- 
 trary to the truth. 
 
 It does not always and necessarily imply 
 a lie or willful untruth, but is generally 
 used in the second sense here given. It is 
 committed either by the willful act of the 
 party, or by dissimulation, or by words. It 
 is willful, for example, when the owner of 
 a thing sells it twice, by different contracts, 
 to different individuals, unknown to them; 
 for in this the seller must willfully declare 
 the thing is his own when he knows that 
 it is not so. It is committed by dissimu- 
 lation when a creditor, having an under- 
 standing with his former debtor, sells the 
 land of the latter although he has been paid 
 the debt which was due to him. Falsehood by 
 word is committed when a witness swears to 
 
 what he knows not to be true. See Rose. 
 Crim. Bv. 362. 
 
 FALSI CRIMEN. Fraudulent subornation 
 or concealment, with design to darken or 
 hide the truth, and make things appear 
 otherwise than they are. It is committed 
 (1) by words, as when a witness swears 
 falsely; (2) by writing, as when a person, 
 antedates a contract; (3) by deed, as selling' 
 by false weights and measures. Wharton. 
 See "Crimen Falsi." 
 
 FALSIFY. 
 
 In Chancery Practice. To prove that 
 
 an item in an account before the court as 
 complete, which is inserted to the debit of 
 the person falsifying, should have been omit- 
 ted. 
 
 When a bill to open an account has been 
 filed, the plaintiff is sometimes allowed to 
 surcharge and falsify such account; and if 
 anything has been inserted that is a wrong 
 charge, he is at liberty to show it, and that 
 is a falsification. 2 Ves. Jr. 5,65; 11 Wheat. 
 (U. S.) 237. See "Surcharge." 
 
 In Criminal Law. To alter or make 
 
 false. The alteration or making false a rec- 
 ord is punishable at common law by statute 
 in the states, and, if of records of the United 
 States courts, by act of congress of April 
 30, 1790. 1 Story, U. S. Laws, 86. 
 
 A fraudulent falsification of accouitts is 
 generally criminal. 140 Mass. 279; 18 Hun 
 (N. Y.) 393. 
 
 In Practice. To prove a thing to be 
 
 false. Co. Litt. 104b. 
 
 FALSING. In Scotch law. Making or 
 proving false. Bell, Diet. 
 
 FALSING OF DOOMS. In Scotch law. 
 Prostesting against a sentence, and taking 
 an appeal to a higher tribunal. Bell, Diet. 
 
 An action to set aside a decree. Skene de 
 Verb. Sign. 
 
 FALSO RETORNO BREVIUM (Law Lat.) 
 In old English law. The name of a writ 
 which might have been sued out against a 
 sheriff for falsely returning writs. Cun- 
 ningham. 
 
 FALSONARIUS. A forger; a counterfeit- 
 er. See "Falsarius." Hov. Frauds, 424. 
 
 FALSUM (Lat.) In civil law. A fraudu- 
 lent imitation, perversion, or suppression of 
 truth, such as an imitation of another's 
 handwriting, or an instrument or writing 
 belonging to him; a cutting out of a part of 
 a writing. 
 
 FALSUS IN UNO,FALSUS IN OMNIBUS. 
 
 False in one thing, false in everything. 1 
 Sumn. (U. S.) 356; 7 Wheat. (U. S.) 338; 
 3 Wis. 645; 2 Jones (N. C.) 257. 
 
 FAMA, FIDES, ET OCULUS NON PATI- 
 untur ludum. Fame, plighted faith, and eye- 
 sight do not endure deceit. 3 Bulst. 226. 
 
 FAMA, QUAE SUSPICIONEM INDUCIT, 
 oriri debet apud bones et graves, non qui- 
 dem malevolos et maledicos, sed providas 
 
FAMACIDE , 
 
 (3S9) 
 
 FAMILY MEETINGS 
 
 et fide dignas personas, non semel sed sae- 
 pius, quia clamor minuit et defamatio mani- 
 festat. Report, which induces suspicion, 
 ought to arise from good and grave men; 
 not, Indeed, from malevolent and malicious 
 men, but from cautious and credible per- 
 sons; not only once, but frequently; for 
 clamor diminishes, and defamation mani- 
 fests. 2 Inst. 52. 
 
 FAMACIDE. A slanderer. 
 
 FAMILIA (Lat.) 
 
 in Roman Law. A family. 
 
 This word had four different acceptations 
 in the Roman law. In the first and most 
 restricted sense it designated the pater-fa- 
 ■milias, — his wife, his children, and other 
 descendants subject to his paternal power. 
 In the second and more enlarged sense it 
 comprehended all the agnates, — that is to 
 say, all the different families who would all 
 be subject to the paternal authority of a 
 common chief if he were still living. Here 
 it has the same meaning as agnatio. In a 
 third acceptation it comprises the slaves and 
 those who are in mancipio of the chief, al- 
 though considered only as things, and with- 
 out any tie of relationship. And, lastly, it 
 signifies the whole fortune or patrimony of 
 the chief. See "Pater-Familias;" 1 Ortolan, 
 28. 
 
 In Old English Law. A household; all 
 
 the servants belonging to one master. Du 
 Cange; Cowell. A sufficient quantity of land 
 to maintain one family. The same quantity 
 of land Is called sometimes mansa (a 
 manse), faniilia, carucata. Du Cange; Cun- 
 ningham; Cowell; Creasy, Church Hist. 
 
 FAMILIAE EIVIPTOR. In Roman law. An 
 intermediate person who purchased the ag- 
 gregate inheritance when sold per aes et 
 libram, in the process of making a will un- 
 der the Twelve Tables. This purchaser was 
 merely a man of straw, transmitting the in- 
 heritance to the haeres proper. Brown. 
 
 FAMILIAE ERCISCUNDAE (Lat.) In 
 civil law. An action which lay for any of 
 the coheirs for the division of what fell to 
 them by inheritance. Stair, Inst. lib. 1, tit. 
 7, § 15. 
 
 FAMILIARES REGIS. Persons of the 
 king's household. The ancient title of the 
 "six clerks" of chancery in England. Crabb, 
 Com. Law, 184; 2 Reeve, Hist. Eng. Law, 
 249, 251. Familier de la chauncery. Kel- 
 ham. 
 
 FAMILY. Father, mother, and children. 
 All the individuals who live under the au- 
 thority of another, including the servants 
 of the family. All the relations who de- 
 scend from a common ancestor, or who 
 spting from a common root. Code La. art. 
 3522, No. 16; 9 Ves. 323. 
 ' As used in homestead and exemption laws, 
 it generally Includes all persons resident 
 under a roof whom the head of the family 
 is under legal or moral duty to support. 
 Thomp. Homest. & Ex. § 44. 
 
 In other connections it has been given a 
 
 wider significance, having been held to In- 
 clude servants, but not boarders (53 111. 
 263), or even permanent boarders, but not 
 visitors (13 Mass. 520). 
 
 In the construction of wills, the word 
 "family," when applied to personal proper- 
 ty, is synonymous with "kindred," or "rela- 
 tions," meaning next of kin, as applied to 
 personalty (9 Ves. 323), and heirs at law, 
 as applied to realty (17 Ves. 255). It may 
 nevertheless by confined to particular rela- 
 tions by the context of the will, or may be 
 enlarged by it, so that the expression may 
 in some cases mean children, or next of 
 kin, and in others may even include rela- 
 tions by marriage. 1 Rop. Leg. 115; 1 Ho v. 
 Supp. to Ves. 365, notes 6, 7; 2 Ves. Jr. 110; 
 4 Ves. 708; 5 Ves. 156; 17 Ves. 255; 3 East, 
 172; 5 Maule & S. 126. See "Legatee;" Dig. 
 50. 16. 195. 2. 
 
 FAMILY ARRANGEMENTS. An agree- 
 ment made between a father and his son, or 
 children, or between brothers, to dispose of 
 property in a different manner to that which 
 would otherwise take place. 
 
 In these cases, frequently, the mere rela- 
 tion of the parties will give effect to bar- 
 gains otherwise without adequate considera- 
 tion. 1 Chit. Prac. 67; 1 Turn. & R. 13. 
 
 FAMILY BIBLE. A Bible containing a 
 record of the births, marriages, and deaths 
 of the members of a family. 
 
 FAMILY MEETINGS, or FAMILY COUN- 
 cils. In Louisiana. Meetings of at least five 
 relations, or, in default of relations of mi- 
 nors or other persons on whose interest they 
 are called upon to deliberate, then of the 
 friends of such minors or other persons. 
 
 The appointment of the members of the 
 family meeting is made by the judge. The 
 relations or friends must be selected from 
 among those domiciliated in the parish in 
 which the meeting is held. The relations are 
 selected according to their proximity, begin- 
 ning with the nearest. The relation is pre- 
 ferred to the connection in the same degree: 
 and among relations of the same degree the 
 eldest is preferred. The under tutor must 
 also be present. 6 Mart. (La.; N. S.) 455. 
 
 The family meeting is held before a jus- 
 tice of the peace, or notary public, appointed 
 by the judge for the purpose. It is called 
 for a fixed day and hour, by citations deliv- 
 ered at least three days before the day ap- 
 pointed for that purpose. 
 
 The members of the family meeting, be- 
 fore commencing their deliberations, take an 
 oath before the officer before whom the meet- 
 ing is held, to give their advice according to 
 the best of their knowledge touching the in- 
 terests of the person respecting whom they 
 are called upon to deliberate. The officer 
 before whom the family meeting is held 
 must make a particular pincex rcrhiil of the 
 deliberations, cause the members of the fam- 
 ily meeting to sign it, if they know how to 
 sign, and must sign it himself, and deliver 
 a copy to the parties that they may have it 
 homologated. Civ. Code La. arts. 305-311; 
 Civ. Code, bk. 1, tit. 10, c. 2, § 4. See 31 
 La. Ann. 31; 14 La. Ann. 251; 10 La. 328. 
 
FAMOSUS LIBJELLUS 
 
 (360) 
 
 PAST BILL OF EXEMPTIONS 
 
 FAMOSUS LIBELLUS (Lat.) Among the 
 civilians, these words signified that species 
 of injuria which corresponds nearly to libel 
 or slander. 
 
 FANATICS. In old English law. Per- 
 sons pretending to be inspired, and being a 
 general name for Quakers, Anabaptists, and 
 all other sectaries, and factious dissenters 
 from the Church of England. St. 13 Car. II. 
 c. 6; Jacob. 
 
 FANEGA. In Spanish law. A measure of 
 land, which is not the same in every prov- 
 ince. Dice, de la Acad.; 2 White, Coll. 49. 
 In Spanish America, the fanega consisted of 
 six thousand four hundred square varas, or 
 yards. 2 White, Coll. 138. 
 
 FARANDMAN. In Scotch law. A mer- 
 chant stranger (jjerefliriMMs meroator) . Skene 
 de Verb. Sign. Spelman gives the word 
 faramannus, from the law of the Burgundi- 
 ans (tit. 54, § 2), and derives it from Saxon 
 faran, or foeran, to travel. 
 
 FARDEL. The fourth part of a yardland. 
 Spelman. According to others, the eighth 
 part. Noy, Compl. Lawy. 57; Cowell. See 
 Cunningham. 
 
 FARDELLA. In old English law. A bundle 
 or pack; a fardel. PI eta, lib. 1, c. 22, § 10. 
 
 FARDINGDEAL. In old English law. The 
 fourth part of an acre of land. Cowell. But 
 Spelman considers it the same as fardel (q. 
 
 V.) 
 
 FARE. A voyage or passage; the money 
 paid for a voyage or passage. The latter is 
 the modern signification. 1 Bouv. Inst, note 
 1036. 
 
 FARINAGIUM. A mill. L. Salic, tit. 32, 
 § 3: Spelman. 
 
 FARLEU, or FARLEY. Money paid by 
 tenants in lieu of a heriot. It was often ap- 
 plied to the best chattel, as distinguished 
 from heriot, the best beast. Cowell. 
 
 FARLINGARII. Whoremongers and adul- 
 terers. 
 
 FARM. 
 
 In Old English Law. A certain amount 
 
 of provision reserved as the rent of a mes- 
 suage. Spelman. 
 
 Rent generally which is reserved on a 
 lease. When it was to be paid in money, it 
 was called hlnnclic fii-me. ■ Spelman; 2 Bl. 
 Comm. 42. 
 
 A term; a lease of lands; a leasehold In- 
 terest. 2 Sharswood, Bl. Comm. 17; 1 Reeve. 
 Hist. Eng. Law, 301, note; 6 Term R. 532; 
 2 Chit. PI. 879, note (e). The land itself, 
 let to farm or rent. 2 Bl. Comm. 368. 
 
 It is usually the chief messuage in a vil- 
 lage or town whereto belongs great demesne 
 of all sort. Cowell; Cunningham; Termes 
 de la Ley. 
 
 A large tract or portion of land taken by 
 a lease under a yearly rent payable by the 
 tenant. Tomllns. 
 
 From this latter sense is derived its com- 
 mon modern signification of a large tract 
 used for cultivation or other purposes, as 
 raising stock, whether hired or owned by 
 the occupant, including a messuage with 
 outbuildings, gardens, orchard, yard, etc. 
 Plowd. 195; Touch. 93. 
 
 In Modern Law. A tract of land used 
 
 wholly or in part for agricultural purposes. 
 18 Pick. (Mass.) 553; 2 Bin. (Pa.) 238; 
 47 How. Pr. (N. Y.) 446. 
 
 FARM LET. Technical words in a lease 
 creating a term for wears. Co. Lift. 45b; 2 
 Mod. 250; 1 Washb. Real Prop. Index, 
 "Lease." 
 
 FARM OUT. To rent for a certain term. 
 The collection of the revenue among the Ro- 
 mans was farmed out. 
 
 FARMER. The lessee of a farm. It is 
 said that every lessee for life or years, al- 
 though it be but of a small house and land, 
 is called "farmer." This word implies no 
 mystery, except it be that of husbandman. 
 Cunningham; Cowell; 3 Sharswood, Bl. 
 Comm. 318. 
 
 In common parlance, and as a term of 
 description in a deed, "farmer" means one 
 who cultivates a farm, whether he owns it 
 or not. There may also be a farmer of the 
 revenue, or of other personal property, as 
 well as lands. Plowd. 195; Cunningham. 
 
 FARRAGO LIBELLI (Lat.) An ill-com- 
 posed book containing a collection of miscel- 
 laneous subjects not properly associated nor 
 scientifically arranged. Wharton. 
 
 FARRIER. One who takes upon himself 
 the public employment of shoeing horses. 
 
 Like an innkeeper, a common carrier, and 
 other persons who assume a public employ- 
 ment, a farrier is bound to serve the public 
 as far as his employment goes, and an ac- 
 tion lies against him for refusing, when a 
 horse is brought to him at a reasonable time 
 for such purjpose, if he refuses (Oliph. Hors- 
 es, 131), and he is liable for the unskillful- 
 ness of himself or servant in performing 
 such work (1 Bl. Comm. 431), but not for 
 the malicious act of the servant in purposely 
 driving a nail into the foot of the horse 
 with the intention of laming him (2 Salk. 
 440). 
 
 FA RT H I N G. An English coin ; the fourth 
 part of a penny. 
 
 FARVAND. Standing by itself, this word 
 signifies "passage by sea or water." In 
 charter parties, it means voyage or passage 
 by water. 18 C. B. 880. 
 
 FARYNDON INN. The ancient appella- 
 tion of Serjeants' Inn. See "Inns of Court." 
 
 FAS (Lat.) Right; justice; the divine law. 
 3 Bl. Comm. 2; Calv. Lex. 
 
 FASIUS. A faggot of wood. 
 
 FAST BILL OF EXCEPTIONS. In Geor- 
 gia, a bill of exceptions authorized in cer- 
 
FAST ESTATE 
 
 (361) 
 
 FAUX 
 
 tain cases, in which the time for taking 
 each step is much shorter than that pre- 
 scribed in other cases, and a speedy review 
 of the cases is made possible. See 66 Ga. 
 353. 
 
 FAST ESTATE. Real property; a term 
 sometimes used in wills. 6 Johns. (N. Y.) 
 185; 9 N. Y. 502. 
 
 FASTERMANNES. Securities; bondsmen. 
 Spelman. • 
 
 FASTI. In Roman law. Lawful. Dies fas- 
 ti, lawful days; days on which justice could 
 lawfully be administered by the praetor. 
 See "Dies Fasti." 
 
 FATETUR FACINUS QUI JUDICIUM 
 fugit. He who flees judgment confesses his 
 guilt. 3 Inst. 14; 5 Coke, 109b. But see 
 Best, Pres. § 248. 
 
 FATHER. He by whom a child is begot- 
 ten. 
 
 FATHOM. A measure of length, equal to 
 six feet. 
 
 The word is probably derived from the 
 Teutonic word "fad," which signifies the 
 thread or yarn drawn out in spinning to 
 the length of the arm, before it is run upon 
 the spindle. Webster; Minsheu. 
 
 FATUA MULIER. A whore. Du Fresne. 
 
 FATUITAS. In old English law. Idiocy. 
 Reg. Orig. 266. 
 
 FATUM (Lat.) Fate; a superhuman pow- 
 er; an event or cause of loss, beyond human 
 foresight or means of prevention. 
 
 FATUOUS PERSON. One entirely desti- 
 tute of reason; is qui omnino desipit. Ersk. 
 Inst. bk. 1, tit. 7, § 48. 
 
 FATUUS. An idiot or fool. Bracton, fol. 
 420b. 
 
 Foolish; absurd; indiscreet; or ill consid- 
 ered. Fatuum judicium, a foolish judgment 
 or verdict. Bracton, fol. 289. Applied to 
 the verdict of a jury which, though false, 
 was not criminally so, or did not amount to 
 perjury. Id. 
 
 FATUUS, APUD JURISCONSULTOS 
 nostros, accipitur pro non compos mentis; et 
 fatuus dicitur, qui omnino desipit. Fatuous, 
 among our jurisconsults, is understood for 
 a man not of right mind; and he is called 
 "fatuus" who is altogether foolish. 4 Coke, 
 128. ■ 
 
 FATUUS PRAESUMITUR QUI IN PRO- 
 prio nomine errat. A man is presumed to 
 be simple who makes a mistake in his own 
 name. Code, 6. 24. 14; 5 Johns. Ch. (N. Y.) 
 148, 161. 
 
 FAUBOURG. A district or part of a town 
 adjoining the principal city; as a faubourg 
 of New Orleans. 18 La. 286. 
 
 FAUCES TERRAE (Lat. jaws of the land). 
 Projecting headlands or promontories, in- 
 
 cluding arms of the sea. Such arms of the 
 sea are said to be inclosed within the fauces 
 terrae, in contradistinction to the open sea. 
 1 Kent, Comm. 367. Where these fauces ap- 
 proach so near that a man standing on one 
 shore can discern what another man is do- 
 ing on the other shore, the water inclosed 
 is infra corpus comiLatum, within the body 
 of the county. Andr. 231; 4 Inst. 140; 2 
 East, P. C. 804; 5 Wheat. (U. S.) 106; 5 
 Mason (U. S.) 290; 1 Story (U. S.) 259. 
 
 FAULT. An improper act or omission, 
 which arises from ignorance, carelessness, 
 or negligence. The act or omission must 
 not have been meditated, and must have 
 caused some injury to another. Lee. Elm. § 
 783. See "Dolus;" "Negligence;" 1 Miles 
 (Pa.) 40. 
 
 Gross fault or neglect consists in not ob- 
 serving that care towards others which a 
 man the least attentive usually takes of his 
 own affairs. Such fault may, in some cases, 
 afford a presumption of fraud, and in very 
 gross cases it approaches so near as to be 
 almost undistinguishable from it, especially 
 when the facts seem hardly consistent with 
 an honest intention. But there may be a 
 gross fault without fraud. 2 Strange, 1099: 
 Story, Bailm. §§ 18-22; Toullier, Dr. Civ. lib. 
 3, tit. 3, § 231. 
 
 Ordinary faults consist in the omission of 
 that care which mankind generally pay to 
 their own concerns; that is, the want of or- 
 dinary diligence. 
 
 A slight fault consists in the want of 
 that care which very attentive persons take 
 of their own affairs. This fault assimilates 
 itself to, and in some cases is scarcely dis- 
 tinguishable from, mere accident or want of 
 foresight. 
 
 This division has been adopted by common 
 lawyers from the civil law. Although the 
 civilians generally agree in this division, 
 yet they are not without a difference of 
 opinion. See Pothier, Observation generale 
 sur le precedent Traite, et sur les suivants, 
 printed at the end of his Traite des Obliga- 
 tions, where he cites Accurse, Alciat, Cujas, 
 Duaren, D'Avezan, Vinnius, and Heineccius 
 in support of this division. On the other 
 side the reader is referred to Thomasius, 
 tom. 2, Dissertationem, page 1006; Le Brun, 
 cited by Jones, Bailm. 27; and Toullier, Dr. 
 Civ. liv. 3, tit. 3, § 231. 
 
 In Maritime Law. "Fault" is the tech- 
 nical term for negligence, particularly that 
 contributing to a collision of vessels. 
 
 In the Law of Sale. Defects, of any 
 
 kind. 29 N. H. 343; 12 Ired. (N. C.) 49. 
 
 FAUTOR. in Spanish law. Accomplice; 
 the person who aids or assists another in 
 the commission of a crime. 
 
 FAUX. In French law. A falsification or 
 fraudulent alteration or suppression of a 
 thing by words, by writings, or by acts with- 
 out either. Biret, Vocab. 
 
 Toullier says (tom. 9, note 188) : "Faux 
 may be understood in three ways: In its 
 must extended sense, it is the alteration of 
 truth, with or without intention ; it is nearly 
 
FAVOR 
 
 (362) 
 
 FEE 
 
 synonymous with lying; in a less extended 
 sense, it is the alteration of truth, accom- 
 panied with fraud, mutatio veritatis cum 
 dolo facta; and lastly, in a narrow, or rather 
 the legal, sense of the word, when it is a 
 question to know if the faux be a crime, it 
 is the fraudulent alteration of the truth in 
 those cases ascertained and punished by the 
 law." See "Crimen Falsi." 
 
 FAVOR. Bias; partiality; lenity; preju- 
 dice. 
 
 The grand jury are sworn to inquire into 
 all offenses which have been committed, and 
 into all violations of law, without fear, fa- 
 vor, or affection. See "Grand Jury." When 
 a juror is influenced by bias or prejudice, so 
 that there is not sufficient ground for a 
 principal challenge, he may nevertheless be 
 challenged for favor. See "Challenge:" 
 Bac. Abr. "Juries" (E) ; Dig. 50. 17. 156. 4; 
 7 Pet. (U. S.) 160. 
 
 FAVORABILIA IN LEGE SUNT FISCUS, 
 dos, vita, libertas. The treasury, dower, life, 
 and liberty are things favored In law. Jenk. 
 Cent. Cas. 94. 
 
 FAVORABILIORES REI POTIUS QUAM 
 actores habentur. Defendants are rather to 
 be favored than plaintiffs. Dig. 50. 17. 125. 
 See 8 Wheat. (U. S.) 195, 196; Broom, Leg. 
 Max. (3d London Ed.) 639. 
 
 FAVORABILIORES SUNT EXECUTIO- 
 nes aliis processibus quibuscunque. Execu- 
 cutions are preferred to all other processes 
 whatever. Co. Litt. 287. 
 
 FAVORES AMPLIANDI SUNT; ODIA RE- 
 strlngenda. Favorable Inclinations are to be 
 enlarged; animosities restrained. Jenk. Cent. 
 Cas. 186. 
 
 FEAL. Faithful. Britt. fol. 1. 
 
 FEAL AND DIVOT. A right in Scotland, 
 similar to the right of turbary in England, 
 for fuel, etc. Wharton. 
 
 FEALTY. That fidelity which every man 
 who holds lands of another owes to him of 
 whom he holds. 
 
 Under the feudal system, every owner of 
 lands held them of some superior lord, from 
 whom or from whose ancestors the tenant 
 had received them. By this connection the 
 lord became bound to protect the tenant in 
 the enjoyment of the land granted to him; 
 and, on the other hand, the tenant was 
 bound to be faithful to his lord, and to de- 
 fend him against all his enemies. This ob- 
 ligation was called fidelitas, or fealty. 1 Bl. 
 Comm. 263; 2 Bl. Comm. 86; Co. Litt. 67b; 
 2 Bouv. Inst, note 1566. 
 
 This fealty was of two sorts, — that which 
 is general, and is due from every subject 
 to his prince; the other special, and required 
 of such only as in respect of their fee are 
 tied by this oath to their landlords. 1 Bl. 
 Comm. 367; Cowell. 
 
 The oath or obligation of fealty was one 
 of the essential requisites of the feudal re- 
 lation. 2 Sharswood, Bl. Comm. 45, 86; Litt. 
 
 §§ 117, 131; Wright, Ten. 35; Termes de la 
 Ley; 1 Washb. Real Prop. 19. Fealty was 
 due alike from freeholders and tenants for 
 years as an incident to their estates, to be 
 paid to the reversioner. Co. Litt. 67b. Ten- 
 ants at will did not have fealty. 2 Flintoff, 
 Real Prop. 222; Burton, Real Prop. 395, 
 note; 1 Washb. Real Prop. 371. 
 
 It has now fallen into disuse, and la no 
 longer exacted. 3 Kent, Comm. 510; Wright, 
 Ten. 35, 55; Cowell. ♦ 
 
 FEAR. In criminal law. Dread; conscious- 
 ness of approaching danger. 
 
 To constitute rape, the fear must be of 
 death or great bodily harm. 39 Fla. 155; 46 
 Conn. 263; 139 Ind. 531. 
 
 Fear is an element of several crimes, and 
 the nature and extent thereof varies with 
 the crime. Thus, to constitute robbery, 
 where the taking was by putting in fear, 
 the fear may be of injury to the person (2 
 East, P. C. 712), of injury to property (2 
 East, P. C. 731), or of injury to character 
 or reputation (12 Ga. 319). See "Putting in 
 Fear." 
 
 FEASANCE. A doing; the doing of an act. 
 
 A making; the making of an indenture, 
 release, or obligation. Litt. § 371; Dyer, 
 (Fr. Ed.) 56b. The making of a statute. 
 Keilw. lb. 
 
 FEASANT. Doing or making. 
 
 FEASOR (Lat.) Doer; maker. Feasors del 
 estatute, makers of the statute. Dyer, 3b. 
 
 FEASTS. Certain established periods in 
 the Christian church. Formerly the days of 
 the feasts of saints were used to indicate 
 the dates of instruments and memorable 
 events. 8 TouUier, Dr. Civ. note 81. These 
 are yet used in England. There they have 
 Easter term, Hilary term, etc. 
 
 FECIAL LAW. The law relating to dec- 
 larations of war and treaties of peace among 
 the Romans. So called from the feciales (q. 
 v.), who were charged with its execution. 1 
 Kent, Comm. 6. See "Jus Fecials." 
 
 FECIALES. Amongst the ancient Ro- 
 mans, that order of priests who discharged 
 the duties of ambassadors. Subsequently 
 their duties appear to have related more par- 
 ticularly to the declaring war and peace. 
 Calv. Lex. 
 
 FEDERAL. A term commonly used to ex- 
 press a league or compact between two or 
 more states. 
 
 In the United States, the central govern- 
 ment of the Union is federal. The constitu- 
 tion was adopted "to form a more perfect 
 union" among the states, for the purpose of 
 self-protection, and for the promotion of 
 their mutual happiness. 
 
 FEE. A reward or wages given to one for 
 the execution of his office, or for professional 
 services, as those of a counsellor or physi- 
 cian. Cowell. 
 
 Fees differ from costs in this, that the 
 former are, as above mentioned, a recom- 
 
FEE 
 
 (363) 
 
 FELAGUS 
 
 pense to the officer fo,r his services; and the 
 latter, an indemnlflcatlon to the party for 
 money laid out and expended In his suit. 
 11 Serg. & R. (Pa.) 248; 9 Wheat. (U. S.) 
 262. See 4 Bin. (Pa.) 267. 
 
 That which Is held of some superior on 
 condition of rendering him services. 
 
 A fee is defined by Spelman (Feuds, c. 1) 
 as the right which the tenant or vassal has 
 to the use of lands, while the absolute prop- 
 erty remained in a superior. But this early 
 and strict meaning of the word speedily 
 passed Into its modern signification of an 
 estate of inheritance. 2 Bl. Comm. 106; 
 Cowell; Termes de la Ley; 1 Washb. Real 
 Prop. 51; Co. Lltt. lb; 1 Prest. Est. 420: 
 3 Kent, Comm. 514. The term may be used 
 of other property as well as lands. Old Nat. 
 Brev. 41. 
 
 The term is generally used to denote as 
 well the land Itself so held as the estate in 
 the land, which seems to be its stricter 
 meaning. Wright, Ten. 19, 49; Cowell. The 
 word "fee" is explained to signify that the 
 land or other subject of property belongs to 
 its owner, and is transmissible, in the case 
 of an individual, to those whom the law 
 appoints to succeed him, under the appella- 
 tion of "heirs;" and, in the case of corporate 
 bodies, to those who are to take on them- 
 selves the corporate function, and, from the 
 manner in which the body is to be continued, 
 are denominated "successors." 1 Co. Lltt. 
 271b; Wright, Ten. 147, 150; 2 Bl. Comm. 
 104, 106; Bouv. Inst. Index. Sometimes used 
 for "fee simple." 
 
 , The compass or circuit of a manor or 
 lordship. Cowell. 
 
 Fee Simple. An estate belonging to a 
 
 man and his heirs absolutely. An estate of 
 inheritance. Co. Litt. lb; 2 Bl. Comm. 106. 
 The word "simple" adds no meaning to the 
 word "fee," standing by Itself. But it ex- 
 cludes all qualification or restriction as to 
 the persons who may inherit it as heirs, 
 thus distinguishing it from a fee tall, as 
 well as from an estate which, though in- 
 heritable. Is subject to conditions or collat- 
 eral determination. 1 Washb. Real Prop. 51 ; 
 Wright, Ten. 146; 1 Prest. Est. 420; Litt. § 1. 
 
 It is the largest possible estate which a 
 man can have, being an absolute estate in 
 perpetuity. It is where lands are given to 
 a man and to his heirs absolutely, without 
 any end or limitation put to the estate. 
 Plowd. 557; Atk. Conv. 183; 2 Sharswood, 
 Bl. Comm. 106. 
 
 Fee Tail. One limited to particular 
 
 classes of heirs. An Inheritable estate which 
 can descend to certain classes of heirs only. 
 It is necessary that they should be heirs "of 
 the body" of the ancestor. It corresponds 
 with the feudum talliatum of the feudal law. 
 The estate itself is said to have been derived 
 from the Roman system of restricting es- 
 tates. 1 Spence, Eq. Jur. 21; 1 Washb. Real 
 Prop. 66; 2 Bl. Comm. 112, note. See, also, 
 2 Inst. 333; White & T. Lead. Cas. 607; 4 
 Kent, Comm. 14 et seq. 
 
 Determinable Fee. One which is liable 
 
 to be determined, but which may continue 
 forever. 1 Plowd. 557; Shep. Touch. 97; 
 
 2 Bl. Comm. 109; Cro. Jac. 593; 10 Viner, 
 Abr. 133; Pearne, Cont. Rem. 187; 3 Atk. 
 74; Ambl. 204; 9 Mod. 28. See "Determina- 
 ble Fee." 
 
 Qualified Fee. An interest given to a 
 
 man and certain of his heirs at the time of 
 its limitation. Lltt. § 254; Co. Lltt. 27a, 
 220; 1 Prest. Est. 449. See "Qualified Fee." 
 
 Conditional Fee. This includes one 
 
 that is either to commence or determine on 
 some condition. 10 Coke, 95b; Prest. Est. 
 476; Fearne, Cont. Rem. 9. See "Condi- 
 tion." 
 
 FEE EXPECTANT. An estate where 
 lands are given to a man and his wife, and 
 the heirs of their bodies. 
 
 FEE FARM. Land held of another in fee; 
 that Is, in perpetuity by the tenant and his 
 heirs at a yearly rent, without fealty, hom- 
 age, or other services than such as are 
 specially comprised in the feoffment. Cow- 
 ell. Fealty, however, was incident to a hold- 
 ing in fee farm, according to some authors. 
 Spelman; Termes de la Ley. 
 
 Land held at a perpetual rent. 2 Shars- 
 wood, Bl. Comm. 43. 
 
 FEE-FARM RENT. The rent reserved on 
 granting a fee farm. It might be one-fourth 
 the value of the land, according to Cowell; 
 one-third, according to other authors. Spel- 
 man; Termes de la Ley. 
 
 FEGANGI (from Saxon feft, money or goods, 
 and gangs, to go). In old European law. A 
 thief caught in the act of going off with tlie 
 thing stolen. LL. Longobard, lib. 1, tit. 25, 
 1, 2; .Spelman. 
 
 FEHMGERICHTE. An irregular tribunal 
 which existed and flourished in Westphalia 
 during the thirteenth and fourteenth centu- 
 ries. 
 
 From, the close of the fourteenth century 
 its importance rapidly diminished, and it 
 was finally suppressed by Jerome Bonaparte 
 In 1811. 
 
 FEIGNED ACTION. In practice. An ac- 
 tion brought on a pretended right, when the 
 plaintiff has no true cause of action, for some 
 illegal purpose. In a feigned action, the 
 words of the writ are true. It differs from 
 "false action," in which case the words of 
 the writ are false. Co. Litt. 361, § 689. 
 
 FEIGNED ISSUE. In practice. An issue 
 brought by consent of the parties, or by the 
 direction of a court of equity, or of such 
 courts as possess equitable powers, to deter- 
 mine before a jury some disputed matter of 
 fact which the court has not the power or is 
 unwilling to decide. 3 Bl. Comm. 452; Bouv. 
 Inst. Index. 
 
 FELAGUS (Lat.) One bound for another 
 by oath; a sworn brother. Du Cange. A 
 friend bound in the decennary for the good 
 behavior of another. One who took the place 
 of the deceased. Thus, if a person was mur- 
 dered, the recompense due from the murder- 
 er went to the father or mother of the de- 
 ceased; if he had none, to the lord; If he 
 
FELE 
 
 (364) 
 
 PENCE MONTH 
 
 had none, to his felagus, or sworn hrother. 
 Cunningham; Cowell; Du Cange. 
 
 FELE. See "Peal." 
 
 FELIX QUI POTUIT RERUM COGNOS- 
 cere causas. Happy is he who has been able 
 to understand the causes of things. Co. Litt. 
 231. 
 
 FELLOW HEIR. A coheir; a partner of 
 the same inheritance. 
 
 FELLOW SERVANTS. Certain servants 
 of a common master, for injuries to one of 
 whom by the negligence of another the mas- 
 ter was not liable if he had exercised due 
 care in the selection of the servants, and 
 the providing of safe appliances. 
 
 The doctrine is an exception to the rule of 
 respondeat superior, and rests upon the rea- 
 son that coservants are better able to guard 
 against each other's negligence than the 
 master is to protect them. The earliest Eng- 
 lish case is found in 3 Mees. & W. 1. Earli- 
 est American cases are found in 1 McMull. 
 (S. C.) 385, and 4 Mete. (Mass.) 49. 
 
 The question of who are fellow servants 
 has given rise to a diversity of rules in dif- 
 ferent jurisdictions, making a general defi- 
 nition impossible. 
 
 FELO DE SE (Lat.) In criminal law. A 
 felon of himself; a self-murderer. See "Sui- 
 cide." 
 
 FELON. One convicted and sentenced for 
 a felony (g. v.) 
 
 FELONIA (Lat.) Pelony; the act or of- 
 fense by which a vassal forfeited his fee. 
 Spelman; Calv. Lex. Per feloniam, with a 
 criminal intention. Co. Litt. 391. 
 
 Felonice was formerly used also in the 
 sense of "feloniously." Cunningham. 
 
 FELONIA, EX VI TERMINI, SIGNIFICAT 
 quodlibet capitale crimen felleo animo per- 
 petratum. Pelony, by force of the term, 
 signifies some capital crime perpetrated with 
 a malignant mind. Co. Litt. 391. 
 
 FELONIA IMPLICATUR IN QUOLIBET 
 proditione. Pelony is implied in every trea- 
 son. 3 Inst. 15. 
 
 FELONIOUS HOMICIDE. The killing of 
 a human creature, of any age or sex, with- 
 out justification or excuse. It may include 
 killing one's self, as well as any other per- 
 son. 4 Sharswood, Bl. Comm. 188. See 
 "Homicide." 
 
 FELONIOUSLY. In pleading. This is a 
 technical word which must be introduced in- 
 to every indictment for a felony, charging 
 the offense to have been committed feloni- 
 ously. No other word nor any circumlocu- 
 tion will supply its place. Comyn, Dig. "In- 
 dictment" (G 6); Bac. Abr. "Indictment" 
 (Gl); 2 Hale, P. C. 172, 184; Hawk. P. C. 
 bk. 2, c. 25, § 55; Cro. Car. 37; "Williams, 
 Just. "Indictment" (4); Cro. Eliz. 193; 5 
 Coke, 121; 1 Chit. Crim. Law, 242; 1 Ben- 
 nett & H. Lead. Crim. Cas. 154. 
 
 FELONY. 
 
 At Common Law. An offense which 
 
 occasions a total forfeiture of either lands or 
 goods, or both, to which capital or other 
 punishment may be superadded, according 
 to the degree of guilt. 4 Bl. Comm. 94, 95; 
 1 Russ. Crimes, 42; 1 Chit. Prac. 14; Co. 
 Litt. 391; 1 Hawk. P. C. c. 37; 5 Wheat. (U. 
 S.) 153, 159. 
 
 The common-law felonies were murder, 
 manslaughter, rape, sodomy, robbery, lar- 
 ceny, arson, burglary, and perhaps mayhem. 
 1 Clark & Marshall, Crimes, 12; 2 Bish. New 
 Crim. Law, § 1008. 
 
 In American Law. The word has no 
 
 clearly defined meaning, but includes of- 
 fenses of a considerable gravity. 1 Park. Cr. 
 R. (N. Y.) 39; 4 Ohio St. 542. 
 
 In the absence of a statute defining felo- 
 nies, it is generally held that no statutory 
 crime is a felony unless it is so declared by 
 the statute creating it. 66 Fed. 290; 7 Mass. 
 245. In other jurisdictions it is enacted that 
 all offenses punishable by death or by con- 
 finement in the penitentiary are felonies. 
 See 99 N. Y. 210; 35 Wis. 308; 10 Mich. 169; 
 89 Va. 570; 48 Me. 218. 
 
 FEME, or FEMME. A woman. 
 
 FEME COVERT. A married woman. 
 
 FEME SOLE. An unmarried woman; in- 
 cludes widows and divorced women. 
 
 FEME SOLE TRADER. In English law. 
 A married woman, who, by the custom of 
 London, trades on her own account, inde- 
 pendently of her husband; so called because, 
 with respect to her trading, she is the same 
 as a feme sole. Jacob; Cro. Car. 68. 
 
 The term is applied also to women desert- 
 ed by their husbands, who do business as 
 femes sole. 1 Pet. (U. S.) 105. 
 
 FEMICIDE. The killing of a woman. 
 Wharton. 
 
 FEMININE. Of or belonging to females. 
 
 When the feminine is used, it is generally 
 confined to females; as, if a man bequeathed 
 all his mares to his son, his horses would 
 not pass. See 3 Brev. (N. C.) 9. 
 
 FENATIO, or FEONATIO. In forest law. 
 The fawning of deer; the fawning season. 
 Spelman. 
 
 FENCE. A structure or erection between 
 two contiguous estates, so as to divide them, 
 or on the same estate, so as to divide one 
 part from another. 
 
 In Scotch Law. To hedge in or pro- 
 tect by certain forms. To fence a court, to 
 open in due form. Pitc. Crim. Law, pt. 1, p. 
 75. 
 
 FENCE MONTH. A month in which it is 
 forbidden to hunt in the forest. It begins 
 fifteen days before midsummer, and ends fif- 
 teen days after. Manw. For. Laws, c. 23. 
 There were also fence months for fish. 
 Called, also, "defence month," because the 
 deer are then defended from "scare or harm." 
 Cowell; Spelman; Cunningham. 
 
FENERATION 
 
 (365) 
 
 FEORME 
 
 FENERATION. Usury; the gain of inter- 
 est; the practice of increasing money by 
 lending. 
 
 > FENGELD (Saxon). A tribute exacted for 
 repelling enemies. Spelman. 
 
 FEOD. Said to be compounded of the two 
 Saxon words feoh (stipend) and odh (prop- 
 erty) ; by others, to be composed of feuh 
 (stipend) and hod (condition). 2 Bl. Comm. 
 45; Spelman. See "Fee." 
 
 FEODAL. Belonging to a fee or feud; 
 feudal. More commonly used by the old 
 writers than "feudal." 
 
 FEODAL ACTIONS. Real actions. SShars- 
 wood, Bl. Comm. 117. 
 
 FEODALITY. Fealty. 
 
 FEODARY. An ofiicer in the court of 
 wards, appointed by the master of that 
 court, by virtue of St. 32 Hen. VIII. c. 46, to 
 be present with the escheator at the find- 
 ing offices, and to give in evidence for the 
 king as to value and tenure. He was also to 
 survey and receive rents of the ward lands, 
 and assign dower to the king's widows. The 
 office was abolished by St. 12 Car. II. c. 24; 
 Kennett; Cowell. 
 
 FEODATORY, or FEUDATORY. The ten- 
 ant who held his estate by feudal service. 
 Termes de la Ley. 
 
 FEOOI Fl RM A (Law Lat.) Fee farm (q.v.) 
 
 FEODI FIRMARIUS. The lessee of a fee 
 farm. 
 
 FEODUM. The form in use by the old 
 English law writers instead of feudum, and 
 having the same meaning. Feudum is used 
 generally by the more modern writers and 
 by the feudal law writers. Litt. § 1; Spel- 
 man. There were various classes of feoda. 
 
 Feodum militaris or militare, a knight's 
 fee; feodum improprium, an improper or de- 
 rivative feud; feodum proprium, a pure or 
 proper fee; feodum simplex, a fee simple; 
 feodum talliatum, a fee tail. 2 Bl. Comm. 
 58, 62; Litt. §§ 1, 13; Spelman. 
 
 FEODUM ANTIQUUM. An inherited feud, 
 as distinguished from feodum novum, a feud 
 acquired by the tenant. 
 
 FEODUM EST QUOD QUIS TENET EX 
 
 . quacunque causa, sive sit tenementum sive 
 
 redditus. A fee is that which any one holds 
 
 from whatever cause, whether tenement or 
 
 rent. Co. Litt. 1. 
 
 FEODUM NOBILE. A fief for which the 
 tenant did guard and owed homage. Spel- 
 man. 
 
 FEODUM NOVUM. See "Feodum Antiq- 
 uum." 
 
 FEODUM SIMPLEX QUIA FEODUM 
 idem est quod haereditas, et simplex idem 
 est quod legitimum vel purum; et sic feodum 
 simplex idem est quod haereditas legitima 
 
 vel haereditas pura. A fee simple, so called 
 because fee is the same as inheritance, and 
 simple is the same as lawful or pure; and 
 thus fee simple is the same as a lawful inher- 
 itance, or pure inheritance. Litt. § 1. 
 
 FEODUM TALLIATUM, i. e., HAEREDI- 
 tas in quandam certitudinem limitata. Fee 
 
 tail, i. e., an inheritance limited in a defi- 
 nite descent. Litt. § 13. 
 
 FEOFFAMENTUM. 
 
 Comm. 310. 
 
 A feoffment. 2 Bl. 
 
 FEOFFARE. To bestow a fee. 1 Reeve, 
 Hist. Eng. Law, 91. 
 
 FEOFFATOR. In old English law. A 
 feoffier; one who gives or bestows a fee; one 
 who makes a feoffment. Bracton, fols. 12b, 
 81. 
 
 FEOFFEE. He to whom a fee is conveyed. 
 Litt. § 1; 2 Bl. Comm. 20. 
 
 FEOFFEE TO USES. A person to whom 
 land was conveyed for the use of a third 
 party. One holding the same position with 
 reference to a use that a trustee does to a 
 trust. 1 Greenl. Cruise, Dig. 333. He an- 
 swers to the haeres fiduciarius of the Ro- 
 man law. 
 
 FEOFFMENT. A gift of any corporeal 
 hereditaments to another. It operates by 
 transmutation of possession, and it is essen- 
 tial to its completion that the seisin be 
 passed. Watk. Conv. 183. 
 
 The conveyance of a corporeal heredita- 
 ment either by investiture or by livery of 
 seisin. 1 Sullivan, Lect. 143; 1 Washb. Real 
 Prop. 33. 
 
 The instrument or deed by which such 
 hereditament is conveyed. 
 
 This was one of the earliest modes of con- 
 veyance used in the common law. It signi- 
 fied originally the grant of a fee or feud; 
 but it came in time to signify the grant of 
 a free inheritance in fee, respect being had 
 rather to the perpetuity of the estate grant- 
 ed than to the feudal tenure. 1 Reeve, Hist. 
 Eng. Law, 90. The feoffment was likewise 
 accompanied by livery of seisin. 1 Washb. 
 Real Prop. 33. The conveyance by feoffment 
 with livery of seisin has become infrequent, 
 if not obsolete, in 'England, and in this coun- 
 try has not been used in practice. Cruise. 
 Dig. tit. 32, c. 4, § 3; Shep. Touch, e. 9; 
 2 Bl. Comm. 20; Co. Litt. 9; 4 Kent, Comm. 
 467; Comyn, Dig.; 12 Viner, Ahr. 167; Bac. 
 Abr.; Dane, Abr. c. 104; 1 Washb. Real 
 Prop. 33; 8 Cranch (U. S.) 229. 
 
 FEOFFOR. He who makes a feoffment. 2 
 Bl. Comm. 20; Litt. § 1. 
 
 FEOH (Saxon). A reward; wages; a fee. 
 The word was in common use in these sens- 
 es. Spelman, Feuds. 
 
 FEORME, or FEARME (Saxon; Law Lat. 
 flrma). Food, provisions. Spelman, voc. 
 "Flrma." An entertainment or feast. Id. 
 
FERAE BESTIAE 
 
 (366) 
 
 FEUDAL LAW 
 
 Herod gegeafwode mycle feorme, Herod made 
 a great feast. Sax. Evang. St. Marc. vl. 21. 
 
 Rent paid in provisions. Spelman, ubi su- 
 pra; Cowell, voc. "Perme;" 2 Bl. Comm. 318. 
 
 A manor. Spelman, ubi supra. Hence, the 
 Law Latin firma, and English ferm, farm 
 (Q- V.) 
 
 FERAE BESTIAE. Wild beasts. 
 
 FERAE NATURAE (Lat. of a wild n9,ture; 
 untamed). A term used to designate ani- 
 mals not usually tamed, or not regarded as 
 reclaimed, so as to become the subjects of 
 property. 2 Bl. Comm. 390. 
 
 FERDFARE. A summons to serve in the 
 army. 
 
 FERIA (Lat.) In old English law. A 
 week day; a holiday; a day on which pro- 
 cess may not be served; a fair; a ferry. Du 
 Cange; Spelman; Cowell; 4 Reeve, Hist. 
 Eng. Law, 17. 
 
 FERIAE (Lat.) In civil law. Holidays. 
 Numerous festivals were called by this name 
 in the early Roman empire. In the'' later 
 Roman empire the single days occurring at 
 intervals of a week apart, commencing with 
 the seventh day of the ecclesiastical year, 
 were so called. Du Cange. 
 
 FERIAL DAYS. Originally and properly, 
 days free from labor and pleading. In St. 
 27 Hen. VI. c. 5, working days. Cowell. 
 
 FERITA. A wound. 
 
 FERME (Saxon). A farm; a rent; a 
 lease; a house or land, or both, taken by in- 
 denture or lease. Plowd. 195; Vicat; Cow- 
 ell. See "Farm." 
 
 FERMERjOr FERMOR. A lessee ; a farm- 
 er; one who holds a term, whether of lands 
 or an incorporeal right, such as customs or 
 revenue. 
 
 FERMORY. A place in monasteries where 
 the poor were fed. Spelman. 
 
 FERRI (Lat.) In the civil law. To be 
 borne (on the person). Distinguished from 
 portari, to be carried (on an animal). Dig. 
 50. 16. 235.' 
 
 FERRIAGE. 
 
 transportation 
 across a ferry. 
 
 The toll or price paid for the 
 of persons and property 
 
 FERRY. A liberty to have a boat upon 
 a river for the transportation of men, horses, 
 and carriages, with their contents, for a rea- 
 sonable toll. 42 Me. 9; 3 Zab. (N. J.) 206; 
 Woolr. Ways, 217. The term is also used to 
 designate the place where such liberty is 
 exercised. 4 Mart. (La.; N. S.) 426; 30 
 Barb. (N. Y.) 311. 
 
 FERRYMAN. One employed in taking 
 persons across a river or other stream, in 
 boats or other contrivances, at a ferry. 3 
 Ala. 160; 8 Dana (Ky.) 158. 
 
 FESTINATIO JUSTITIAE EST NOVERCA 
 infortunii. The hurrying of justice is the 
 stepmother of misfortune. Hob. 97. 
 
 FESTING MAN. A bondsman; a surety; 
 a pledge; a frank pledge. It was one privi- 
 lege of monasteries that they should be free 
 from festing men, which Cowell explains to 
 mean not to be bound for any man's forth- 
 coming who should transgress the law. Cow- 
 ell. 
 
 FESTING PENNY. Earnest given to serv- 
 ants when hired or retained. The same as 
 "arles penny." Cowell. 
 
 FESTINUM REMEDIUM (Lat. a speedy 
 remedy). A term applied to those cases 
 where the remedy for the redress of an in- 
 jury is given without any unnecessary delay. 
 Bac. Abr. "Assise" (A) . The action of dower 
 is festinum remedium, and so is that of as- 
 sise. 
 
 FETTERS. A sort of Iron put on the leg 
 of a malefactor or a person accused of crime. 
 
 FEU. In Scotch law. A holding or ten- 
 ure where the vassal in place of military 
 service makes his return in grain or money. 
 Distinguished from "wardholding," which is 
 the military tenure of the country. Bell, 
 Diet. ; Ersk. Inst. lib. 2, tit. 3, § 7. 
 
 FEU ANNUALS. In Scotch law. The red- 
 dendo, or annual return from the vassal to 
 a superior in a feu holding. Wharton. 
 
 FEU ET LIEU (Pr.) In old French and 
 Canadian law. Hearth and home. A term 
 importing actual settlement upon land by a 
 tenant. 
 
 FEU HOLDING. ■ A holding by tenure of 
 rendering grain or money in place of mili- 
 tarj- service. Bell, Diet. 
 
 FEUAR. In Scotch law. The tenant of a 
 feu; a feu vassal. Bell, Diet. 
 
 FEUD. Land held of a superior on con- 
 dition of rendering him services. 2 Bl. 
 Comm. 106. 
 
 A hereditary right to use lands, rendering 
 services therefor to the lord, while the prop- 
 erty in the land itself remains in the lord. 
 Spelman, Feuds, c. 1. 
 
 The same as feod, fief, and fee. 1 Sulli- 
 van, Lect. 128; 1 Spence, Eq. Jur. 34; Dalr. 
 Feud. Prop. 99; 1 Washb. Real Prop. 18. 
 
 In Scotland and the north of England, a 
 combination of all the kin to revenge the 
 death of any of the blood upon the slayer 
 and all his race. Termes de la Ley; Whi- 
 shaw. 
 
 FEUDA. Fees. 
 
 FEUDAL ACTIONS. 
 
 Comm. 117. 
 
 Real actions. 3 Bl. 
 
 FEUDAL LAW, or FEODAL LAW. A sys- 
 tem of tenures of real property which prer 
 vailed in the countries of western Europe 
 during the middle ages, arising from the 
 
FEUDAL LAW 
 
 (367) 
 
 FEUDAL LAW 
 
 peculiar political condition of those coun- 
 tries, and radically affecting the law of per- 
 sonal rights and of movable property. 
 
 Although the feudal system has never ob- 
 tained in this country, ■ and is long since 
 extinct throughout the greater part of Eu- 
 rope, some understanding of the theory of 
 the system is essential to an accurate knov^l- 
 edge of the English constitution, and of the 
 doctrines of the common law in respect to 
 real property. The feudal tenure was a 
 right to lands on the condition of perform- 
 ing services and rendering allegiance to a 
 superior lord. It had its origin in the mili- 
 tary immigrations of the Northmen, who 
 overran the falling Roman empire. Many 
 writers have sought to trace the beginning 
 of the system in earlier periods, and re- 
 semblances more or less distinct have been 
 found in the tenures prevailing in the Ro- 
 man republic and empire, in Turkey, in 
 Hindostan, in ancient Tuscany, as well as 
 in the system of Celtic clanship. 1 Hallam, 
 Mid. Ages; Stuart, Soc. in Europe; Robert- 
 son, Hist. Charles V.; Pink. Diss.; Montesq. 
 Bsp. des Lois, liv. 30, c. 2; Meyer, des Inst. 
 Judiciaires, tom. 1, p. 4. 
 
 But the origin of the feudal system is so 
 obvious in the circumstances under which it 
 arose that perhaps there is no other connec- 
 tion between it and these earlier systems 
 than that all are the outgrowth of political 
 conditions somewhat similar. It has been 
 said that the system is nothing more than 
 the natural fruit of conquest; but the fact 
 that the conquest was by immigrants, and 
 that the conquerors made the acquired coun- 
 try their permanent abode, is an important 
 element in the case, and in so far as other 
 conquests have fallen short of this, the mili- 
 tary tenures resulting have fallen short of 
 the feudal system. The military chieftains 
 of the northern nations allotted the lands 
 of the countries they occupied among them- 
 selves and their followers, with a view at 
 once to strengthen their own power and as- 
 cendency, and to provide for their followers. 
 
 Some lands were allotted to individuals 
 as their own proper estates, and these were 
 termed "allodial;" but, for the most part, 
 those lands which were not retained by the 
 chieftain he assigned to his comites, or 
 knights, to be held by his permission, in 
 return for which they assured him of their 
 allegiance, and undertook for him military 
 service. 
 
 It resulted that there was a general dis- 
 memberment of the political power into 
 many petty nations and petty sovereignties. 
 The violence and disorders of the times ren- 
 dered it necessary both for the strong to 
 seek followers, and for the weak to seek a 
 protecting allegiance; and this operated on 
 the one hand to lead the vassals to divide 
 again among their immediate retainers the 
 lands which they had received from the 
 paramount lord, upon similar terms, and by 
 this subinfeudation the number of fiefs was 
 largely increased; and the same circum- 
 stances operated on the other hand to absorb 
 the allodial estates by inducing allodial pro- 
 prietors to surrender their lands to some 
 neighboring chieftain, and receive them 
 
 again from him under feudal tenure. Every 
 one who held lands upon a feudal tenure was 
 bound, when called upon by his benefactor 
 or immediate lord, to defend him, and such 
 lord was, in turn, subordinate to his su- 
 perior, and bound to defend him, and so on 
 upwards to the paramount lord or king, who 
 in theory of the law was the ultimate owner 
 of all the lands of the realm. The services 
 which the vassals were bound to render to 
 their lords were chiefly military; but many 
 other benefits were required, such as the 
 power of the lord or the good will of the 
 tenant would sanction. 
 
 This system came to its height upon the 
 continent in the empire of Charlemagne and 
 his successors. It was completely estab- 
 lished in England in the time of William 
 the Norman and William Rufus, his son; 
 and the system thus established may be said 
 to be the fouiidation of the English law of 
 real property, and the position of the landed 
 aristocracy, and of the civil constitution of 
 the realm. And when we reflect that in the 
 middle ages real property had a relative im- 
 portance far beyond that of movable prop- 
 erty, it is not surprising that the system 
 should have left its traces for a long time 
 upon the law of personal relations and per- 
 sonal property. The feudal tenures were 
 originally temporary, at the will of the lord, 
 or from year to year; afterwards they came 
 more commonly to be held for the life of the 
 vassal; and gradually they acquired an in- 
 heritable quality, the lord recognizing the 
 heir of the vassal as the vassal's successor 
 in his service. 
 
 The chief incidents of the tenure by mili- 
 tary service were: 
 
 (1) Aids. A pecuniary tribute required 
 by the lord in an emergency, e. g., a ransom 
 for his person if taken prisoner, or money 
 to make his son a knight, or to marry his 
 daughter. 
 
 (2) Relief. The consideration which the 
 lord demanded upon the death of a vassal 
 for allowing the vassal's heir to succeed to 
 the possession; and connected with this may 
 be mentioned primer seisin, which was the 
 compensation that the lord demanded for 
 having entered upon the land, and protected 
 the possession until the heir appeared to 
 claim it. 
 
 (3) Fines upon alienation. A considera- 
 tion exacted by the lord for giving his con- 
 sent that the vassal should transfer the es- 
 tate to another, who should stand in his 
 place in respect to the services owed. 
 
 (4) Escheat. Where, on the death of the 
 vassal, there was no heir, the land reverted 
 to the lord; also, where the vassal was 
 guilty of treason ; for the guilt of the vassal 
 was deemed to taint the blood, and the lord 
 would no longer recognize him or his heirs. 
 
 (.5) Wardship and marriage. Where the 
 heir was a minor, the lord, as a condition of 
 permitting the estate to descend to one who 
 could not render military service, assumed 
 the guardianship of the heir, and, as such, 
 exercised custody both of his person and of 
 the property, without accounting for the 
 profits, until the heir, if a male, was twenty- 
 one and could undertake the military serv- 
 
FEUDAL TENURES 
 
 (368) 
 
 FEUDUM PROPRIUM 
 
 ices, or, it a female, until she was of a 
 marriageable age, when, on her marriage, 
 her husband might render the services. The 
 lord claimed, in virtue of his guardianship, 
 to make a suitable match for his ward, and 
 if wards refused to comply they were 
 mulcted in damages. 
 
 Feudal tenures were abolished in England 
 by St. 12 Car. II. c. 24; but the principles 
 of the system still remain at the foundation 
 of the English and American law of real 
 property. Although in many of the states 
 of the United States all lands are held to be 
 allodial, it iS' the theory of the law that the 
 ultimate right of property is in the state; 
 and in most of the states escheat is regu- 
 lated by statute. "The principles of the 
 feudal system are so interwoven with every 
 part of our jurisprudence," says Tilghman, 
 C. J., "that to attempt to eradicate them 
 would be to destroy the whole." 3 Serg. & 
 R. (Pa.) 447; 9 Serg. & R. (Pa.) 333. 
 "Though our property is allodial," says Gib- 
 son, C. J., "yet feudal tenures may be said 
 to exist among us in tlieir consequences 
 and the qualities which they originally im- 
 parted to estates; as, for instance, in pre- 
 cluding every limitation founded on an abey- 
 ance of the fee." 3 Watts (Pa.) 71; 1 
 Whart. (Pa.) 337: 7 Serg. & R. (Pa.) 188: 
 13 Pa. St. 35. 
 
 Many of these incidents are rapidly dis- 
 appearing, however, by legislative changes 
 of the law. 
 
 The principles of the feudal law will be 
 found in Litt. Ten.; Wright, Ten.; 2 Bl. 
 Comm. c. 5; Dalr. Feud. Prop.; Sullivan, 
 Lect.; Book of Fiefs; Spelman, Feuds; 
 Cruise, Dig.; Le Grand Coutumier; the Salic 
 Laws; the Capitularies; Les Establissements 
 de St. Louis; Assise de Jerusalem; Poth. des 
 Fiefs; Merlin, Repert; Dalloz, Diet.; Guizot, 
 Hist, de Prance, Essai 5. 
 
 The principal original collection of the 
 feudal law of continental Europe is a digest 
 of the twelfth century, — feudorum consuetu- 
 dines, — which is the foundation of many of 
 the subsequent compilations. The American 
 student will perhaps find no more convenient 
 source of information than 2 Sharswood, Bl. 
 Comm. 43, and Greenl. Cruise, Dig. Introd. 
 
 FEUDAL TENURES. The tenures of land 
 under the feudal system. 
 
 FEUDALISM. The feudal system. v 
 
 FEUDALIZE. To reduce to a feudal ten- 
 ure; to conform to feudalism. Webster. 
 
 FEUDARY. A feud; a feudal tenant. 
 FEUDATORY. See "Feodatory." 
 
 FEUDBOTE. A recompense for engaging 
 in a feud, and the damages consequent, it 
 having been the custom in ancient times for 
 all the kindred to engage in their kinsman's 
 quarrel. Jacob. 
 
 FEUDE, or DEADLY FEUDE. A German 
 word, signifying implacable hatred, not to 
 be satisfied but with the death of the enemy. 
 Such was that among the people in Scotland 
 and in the northern parts of England, which 
 
 was a combination of all the kindred to re- 
 venge the death of any of the blood upon the 
 slayer and all his race. Termes de la Ley. 
 
 FEUDIST. A writer oil feuds, as Cuja- 
 cius, Spelman, etc. 
 
 FEU DO. In Spanish law. Feud or fee. 
 White, New Recop. bk. 2, tit. 2, c. 2. 
 
 FEUDUM. A feud, flef, or fee. A right 
 of using and enjoying forever the lands of 
 another, which the lord grants on condition 
 that the tenant shall render fealty, military 
 duty, and other services. Spelman. It is 
 not properly the land, but a right in the 
 land. This form of the word is used by the 
 feudal writers. The earlier English writers 
 generally prefer the form feodum, but the 
 meaning is the same. 
 
 FEUDUM ANTIQUUM. A fee descended 
 from the tenant's ancestors. ,2 Bl. Comm. 
 212. One which had been possessed by the 
 relations of the tenant for four generations. 
 Spelman. 
 
 FEUDUM APERTUM. A fee which the 
 lord might enter upon and resume either 
 through failure of issue of the tenant, or 
 any crime or legal cause on his part. Spel- 
 man; 2 Bl. Comm. 245. 
 
 FEUDUM FRANCUM. A free feud. One 
 which was noble and free from talliage and 
 other subsidies to which the plebeia feuda 
 (vulgar feuds) were subject. Spelmjin. 
 
 FEUDUM HAUBERTICUM. A fee held on 
 the military service of appearing fully armed 
 at the han and arriere ban. Spelman. 
 
 FEUDUM IMPROPRIUM. A derivative 
 fee. 
 
 FEUDUM INDIVIDUUM. A fee which 
 could descend to the eldest son alone. 2 
 Bl. Comm. 215. 
 
 FEUDUM LIGIUM. A liege fee. One 
 where the tenant owed fealty to his lord 
 against all other persons. Spelman; 1 Bl. 
 Comm. 367. 
 
 FEUDUM MATERNUM. A fee descending 
 from the mother's side. 2 Bl. Comm. 212. 
 
 FEUDUM NOBILE. A fee for which the 
 tenant did guard and owed fealty and hom- 
 age. Spelman. 
 
 FEUDUM NOVUM. One which began 
 with the person of the feudatory, and did 
 not come to him by descent. 
 
 FEUDUM NOVUM UT ANTIQUUM. A 
 
 new fee held with the qualities and inci- 
 dents of an ancient one. 2 Bl. Comm. 212. 
 
 FEUDUM PATERNUM. A fee which the 
 paternal ancestors had held for four genera- 
 tions. Calv. Lex.; Spelman. One descend- 
 ible to heirs on the paternal side only. 2 Bl. 
 Comm. 223. One which might be held by 
 males only. Du Cange. 
 
 FEUDUM PROPRIUM. A genuine origi- 
 
FEUDUM TALLIATUM 
 
 (369) 
 
 FIDE JUSSOR 
 
 nal feud or fee, of a military nature, in the 
 hands of a military person. 2 Sharswood, 
 Bl. Comm. 57. 
 
 FEUDUM TALLIATUM. A restricted fee; 
 one limited to descend to certain classes of 
 .heirs. 2 Bl. Comm. 112, note; 1 Washb. 
 Real Prop. 66; Spelman. See, generally, Le 
 Grand Coutumier; Spelman, Feuds; Du 
 Cange; Calv. Lex.; Dalr. Feud. Prop.; Poth. 
 des Fiefs; Merlin, Repert. "Feodalite." 
 
 Fl. FA. An abbreviation for fieri facias 
 (Q. V.) 
 
 FIANCER (Law Fr.) To pledge one's 
 faith. Kelham. 
 
 FIANZA (Spanish). Surety; the contract 
 by which one person engages to pay the debt 
 or fulfill the obligations of another if the 
 latter should fail to do so. 
 
 FIAR. In Scotch law. One whose prop- 
 erty is charged with a life rent. 
 
 FIAR PRICES. The value of grain in the 
 different counties of Scotland, fixed yearly 
 by the respective sheriffs, in the month of 
 February, with the assistance of juries. 
 These regulate the prices of grain stipulated 
 to be sold at the flar prices, or when no price 
 has been stipulated. Ersk. Inst. 1. 4. 6; 
 Wharton. 
 
 FIAT. An order of a judge or of an offi- 
 cer whose authority, to be signified by his 
 signature, is necessary to authenticate the 
 particular acts. A short order or warrant 
 of the judge, commanding that something 
 shall be done. See 1 Tidd, Prac. 100, 108. 
 
 FIAT IN BANKRUPTCY. An order of the 
 lord chancellor that a commission of bank- 
 ruptcy shall issue. 1 Deac. Bankr. 106. 
 
 Fiats were abolished by 12 & 13 Vict. c. 116. 
 
 FIAT JUSTITIA. Let justice be done. 
 Words formerly written by the king at the 
 top of a petition for a warrant to bring a 
 writ of error in parliament, signifying his 
 assent. Jacob; Dyer, 375; Staund. Prerog. 
 22. 
 
 FIAT JUSTITIA RUAT COELUM. Let 
 justice be done, though the heavens should 
 fall. Branch, Princ. 161. 
 
 FIAT PROUT FIERI CONSUERIT; NIL 
 
 temere novandum. Let it be done as former- 
 ly; let no innovation be made rashly. Jenk. 
 Cent. Cas. 116; Branch, Princ. 
 
 FICTIO CEDIT VERITATI. FICTIO JU- 
 ris non est, ubi Veritas. Fiction yields to 
 truth. Where truth is, fiction of law does 
 not exist. 
 
 FICTIO EST CONTRA VERITATEM, SED 
 pro verltate habetur. Fiction is against the 
 truth, but it is to be esteemed truth. 
 
 FICTIO LEGIS INIQUE OPERATUR AL- 
 ieni damnum vel injuriam. Fiction of law 
 is wrongful If it works loss or injury to 
 
 any one. 2 Coke, 35; 3 Coke, 36; Broom, 
 Leg. Max. (3d London Ed.) 122. 
 
 FICTIO LEGIS NEMINEM LAEDIT. Afic- 
 tion of law injures no one. 2 Rolle, Abr. 
 502; 3 Bl. Comm. 43; 17 Johns. (N. Y.) 348. 
 
 FICTION. The legal assumption that 
 something which is or may be false is true. 
 
 It diifers from a presumption in that a 
 fiction is an assumption as true of something 
 admittedly false; while a presumption is an 
 attempt to arrive at the truth by inference. 
 
 FICTITIOUS ACTION. A suit brought on 
 pretense of a controversy, when no such 
 controversy in truth exists. Such actions 
 have usually been brought on a pretended 
 wager, for the purpose of obtaining the 
 opinion of the court on a point of law. 
 Courts of justice were constituted for the 
 purpose of deciding really existing questions 
 of right between parties; and they are not 
 bound to answer impertinent questions 
 which persons think proper to ask them in 
 the form of an action on a wager. 12 East, 
 248. Such an attempt has been held to be a 
 contempt of court; and Lord Hardwicke in 
 such a case committed the parties and their 
 attorneys. Lee temp. Hardw. 237. See, also. 
 Comb. 425; 1 Coke, 83; 6 Cranch (U. S.) 147, 
 148. See, also, "Feigned Action." 
 
 FICTITIOUS PARTY. Where a suit is 
 brought in the name of one who is not in 
 being, or of one who is ignorant of the suit, 
 and has not authorized it, it is said to be 
 brought in the name of a fictitious plaintiff. 
 To bring such a suit is deemed a contempt 
 of court. 4 Bl. Comm. 133. 
 
 FICTITIOUS PAYEE. When a contract, 
 such as negotiable paper, is drawn in favor 
 of a fictitious person, and has been indorsed 
 in such name, it is deemed payable to bearer 
 as against all parties who are privy to the 
 transaction, and a holder in good faith may 
 recover on it against them. 2 H. Bl. 178, 
 288; 3 Term R. 174, 182, 481; 1 Camp. 130; 
 19 Ves. 311. And see 10 Barn. & C. 468; 2 
 Sandf. (N. Y.) 38; 2 Duer (N. Y.) 121. 
 
 FIDE JUBERE. In the civil law. To or- 
 der a thing upon one's faith; to pledge one's 
 self; to become surety for another. Fide 
 jiihes? Fide jiiheo: Do you pledge your- 
 self? I do pledge myself. Inst. 3. 16. 1. 
 One of the forms of stipulation. Dig. 46. 1> 
 8. pr.; Inst. 3. 21. 7. 
 
 FIDE JUSSIO. An act by which any one 
 binds himself as an additional security for 
 another. This giving security does not de- 
 stroy the liability of the principal, but adds 
 to the security of the surety. Vicat; Hali- 
 fax, Anal. bk. 2, c. 16, note 10. 
 
 FIDE JUSSOR. In civil law. One who 
 becomes security for the debt of another, 
 promising to pay it in case the principal 
 does not do so. 
 
 He differs from a co-obligor in this, that 
 the latter is equally bound to a debtor with 
 his principal, while the former is not liable 
 till the principal has failed to fulfill his en,- 
 
FIDE PROMISSOR 
 
 (370) 
 
 FIELD REEVE 
 
 gagement. Dig. 12. 4. 4; Id. 16. 1. 13; Id. 
 24. 3. 64; Id. 38. 1. 37; Id. 50. 17. 110; Id. 6. 
 14. 20; Hall, Prac. 33; Dunl. Adm. Prae. 
 300; Gierke, Prax. tits. 63-65. ■ 
 
 The obligation of the fide jussor was an 
 accessory contract; for, if the principal obli- 
 gation was not previously contracted, his en- 
 gagement then took the name of '"mandate." 
 Lee. Elm. § 872; Code Nap. 2012. 
 
 FIDE PROMISSOR. See "Fide Jussor." 
 
 FIDEI COMMISSARIUS (Law Lat.) In 
 civil law. One who has a beneficial interest 
 in an estate which, for a time, is committed 
 to the faith or trust of another. This term 
 has nearly the same meaning as cestui que 
 trust has in the common law. 1 Greenl. 
 Cruise, Dig. 295; Story, Bq. Jur. § 966; Bouv. 
 Inst. Index. 
 
 Fidei commissary and fide commissary, 
 anglicized forms of this term, have been 
 proposed to take the place of the phrase 
 cestui que trust, but do not seem to have met 
 with any favor. 
 
 According to Du Cange, the term was 
 sometimes used to denote the executor of a 
 will. 
 
 FIDEI COMMISSUM (Law Lat.) In civil 
 law. A trust. A devise was made to some 
 person (haeres fiduciarius) , and a request 
 annexed that he should give the property to 
 some one who was incapable of taking di- 
 rectly under the will. Inst. 2. 23. 1; 1 
 Greenl. Cruise, Dig. 295; 15 How. (U. S.) 
 357. A gift which a man makes to another 
 through the agency of a third person, who 
 is requested to perform the will of the giver. 
 
 The rights of the beneficiary were merely 
 rights in curtesy, to be obtained by entreaty 
 or request. Under Augustus, however, a 
 system was commenced, which was com- 
 pleted by Justinian, for enforcing such 
 trusts. The trustee .or executor was called 
 haeres fiduciarius, and sometimes fide jussor. 
 The beneficial heir was called liaeres fidei 
 commissarius. 
 
 The uses of the common law are said to 
 have been borrowed from the Roman fidei 
 commissa. 1 Greenl. Cruise, 295; Bac. Read. 
 Uses, 19; 1 Madd. 446; Story, Bq. Jur. § 966. 
 The fidei commissa are supposed to have 
 been the origin of the common-law system 
 of entails. 1 Spence, Eq. Jur. 21; 1 Washb. 
 Real Prop. 60. This has been doubted by 
 others. See 1 Bouv. Inst, note 1708. 
 
 FIDELIS. Faithful; trustworthy. 
 
 FIDELITAS. Fealty; fidelity. 
 
 FIDELITAS. DE NULLO TENEMENTO, 
 quod tenetur ad terminum fit homagll; fit 
 tamen inde fidelitatis sacramentum. Fealty. 
 For no tenement which is held for a term is 
 there the oath of homage, but there is the 
 oath of fealty. Co. Lift. 67b. 
 
 FIDEM MENTIRI. When a tenant does 
 not keep that fealty which he has sworn to 
 the lord. Leg. Hen. I. c. 53. 
 
 FIDES EST OBLIGATIO CONSCIENTIAE 
 alicujus ad intentionem alterius. A trust is 
 
 an obligation of conscience of one to the will 
 of another. 
 
 FIDES SERVANDA. Good faith must be 
 observed. 1 Mete. (Mass.) 551; 3 Barb. (N. 
 Y.) 323, 330; 23 Barb. (N. Y.) 521, 524. 
 
 FIDES SERVANDA EST; 8IMPLICITAS 
 juris gentium praevaleat. Good faith is to 
 be preserved; the simplicity of the law of 
 nations should prevail. Story, Bills, § 15. 
 
 FIDUCIA (Lat.) In civil law. A contract 
 by which we sell a thing to some one — that 
 is, transmit to him the property of the thing, 
 with the solemn forms of emancipation — on 
 condition that he will sell it back to us. 
 This species of contract took place in the 
 emancipation of children, in testaments, and 
 in pledges. Poth. ad Pand. 
 
 FIDUCIARIUS TUTOR. In Roman law. 
 The elder brother of an emancipated pupil- 
 lus, whose father had died leaving him still 
 under fourteen years of age. 
 
 FIDUCIARY. This term is borrowed from 
 the civil law. The Roman laws called a fidu- 
 ciary heir the person who was instituted 
 heir, and who was charged to deliver the 
 succession to a person designated by the tes- 
 tament. Merlin, Repert. But Poth. ad Pand, 
 vol. 22, says that fiduciarius haeres properly 
 signifies the person to whom a testator has 
 sold his inheritance under the condition that 
 he should sell it to another. Fiduciary may 
 be defined "in trust," "in confidence." 
 
 A generic term embracing all persons act- 
 ing in a fiduciary capacity. 
 
 FIDUCIARY CONTRACT. An agreement 
 by which a person delivers a thing to an- 
 other on the condition that he will restore it 
 to him. The following formula was em 
 ployed: Ut inter bonos agere oportet, ne 
 propter te fidemque tuam frauda. Cicero de 
 Offic. lib. 3, c. 13; Lee. Dr. Civ. §§ 237, 238. 
 See 2 How. (U. S.) 202, 208; 6 Watts & S. 
 (Pa.) 18; 7 Watts (Pa.) 415. 
 
 FIEF. A fee, feed, or t'eud. 
 
 FIEF D'HAUBERK. A fee held on the 
 military tenure of appearing fully armed on 
 the ban and arriere-ban. Feudum hauber- 
 ticum.r Spelman; Calv. Lex.; Du Cange. A 
 knight's fee. 2 Bl. Comm. 62. 
 
 FIEF TENANT. The holder of a fief or 
 fee. 
 
 FIEL. In Spanish law. An officer who 
 keeps possession of a thing deposited under 
 authority of law. Las Partidas, pt. 3, tit. 9, 
 lib. 1. 
 
 FIELD REEVE. An officer elected, in 
 England, by the owners of a regulated pas- 
 ture, to keep in order the fences, ditches, etc., 
 on the land, to regulate the times during 
 which animals are to be admitted to the 
 pasture, and generally to maintain and man- 
 age the pasture, subject. to the instructions 
 of the owners. General Inclosure Act 1845, 
 § 118. 
 
FIELDAD 
 
 (371) 
 
 FILIUS 
 
 FIELDAD. In Spanish law. Sequestra- 
 tion. This is allowed in six cases by the 
 Spanish law where the title to property Is 
 in dispute. Las Partidas, pt. 3, tit. 3, lib. 1. 
 
 FIERDING COURTS. Ancient Gothic 
 courts "in the lowest instance." So called 
 because four were instituted within every 
 superior district or hundred. Their juris- 
 diction was limited within forty shillings, or 
 three marks. 3 Steph. Comm. 393; 3 Bl. 
 Comm. 34; Stiernh. de Jur. Goth. lib. 1, c. 2. 
 
 FIERI FACIAS (Lat. that you cause to be 
 made). In practice. A writ directing the 
 sheriff to cause to be made of the goods and 
 chattels of the judgment debtor the sum or 
 debt recovered. 
 
 It receives its name from the Latin words 
 in the writ, used when legal proceedings 
 were conducted in Latin {quod, fieri facias 
 de tonis et catallis, that you cause to be 
 made of the goods and chattels). It is the 
 form of execution in common use where the 
 judgment debtor has personal property. 
 
 FIERI FACIAS DE BONIS TESTATORIS. 
 
 The writ issued on an ordinary judgment 
 against an executor when sued for a debt 
 due by his testator. If the sheriff returns 
 to this writ nulla bona, and a devastavit (q. 
 v.), the plaintiff may sue out a fieri facias de 
 Tyonis propriis, under which the goods of the 
 executor himself are seized. 1 Wm. Saund. 
 246; Smith, Action (11th Ed.) 368. 
 
 FIERI FECI (Law Lat.) In practice. The 
 return which the sheriff or other proper ofift- 
 cer makes to certain writs, signifying, "I 
 have caused to be made." 
 
 When the officer has made this return, a 
 rule may be obtained upon him after the re- 
 turn day, to pay the money into court, and, 
 if he withholds payment, an action of debt 
 may be had on the return, or axsuinpfiit for 
 money had and received may be sustained 
 against him. 3 Johns. (N. Y.) 183. 
 
 FIERI NON DEBET, SED FACTUM VA- 
 let. It ought not to be done, but done, it 
 is valid. 5 Coke, 39; 1 Strange, 526; 19 
 Johns. (N. Y.) 84, 92; 12 Johns. (N. Y.) 11, 
 "376. 
 
 FIFTEENTHS. A temporary aid, consist- 
 ing of a fifteenth part of the personal prop- 
 erty in every township, borough, and city in 
 the kingdom. The valuation of the kingdom 
 ■was fixed, and a record made in the ex- 
 chequer of the amount (twenty-nine thou- 
 sand pounds). This valuation was not in- 
 creased as the property in the kingdom in- 
 creased in value; whence the name came, in 
 time, to be a great misnomer. 2 Inst. 77; 4 
 Inst. 34; 2 Sharswood, Bl. Comm. 309; Cow- 
 ell. 
 
 FIGHTNITE, or FIGHTWITE (Saxon). A 
 mulct or fine for making a quarrel to the 
 disturbance of the peace. Called also by 
 Cowell forisfacttira puf/nac The amount was 
 one hundred and twenty shillings. Cowell. 
 
 FILACER. An officer of the common 
 pleas, whose duty it was to file the writs on 
 
 which he made process. There were four- 
 teen of them, and it was their duty to make 
 out all original process. Cowell; Blount. 
 The office is now abolished. 
 
 FILARE. In old English practice. To file. 
 Towns. PI. 67. 
 
 FILE. Athread, string, or wire upon which 
 writs and other exhibits in courts and offices 
 are fastened or filed for the more safe keep- 
 ing and ready turning to the same. Spel- 
 man; Cowell; Tomlins. Papers put together • 
 and tied in bundles. A paper is said also to 
 be filed when it is delivered to the proper 
 officer, and by him received to be kept on 
 file. 13 Viner, Abr. 211; 1 Litt. 113; 1 
 Hawk. P. C. 7, 207. 
 
 FILEINJAID (Brit.) A name given to vil- 
 leins in the laws of Hoel Dda. Barr. Obs. 
 S,-.. 302. 
 
 FILIATE. To declare whose child a bas- 
 tard is. 2 W. Bl. 1017. 
 
 FILIATIO NON POTEST PROBARI. Fili- 
 ation cannot be proved. Co. Litt. 126a. But 
 see 7 & 8 Vict. c. 101. 
 
 FILIATION. In civil law. The descent 
 of son or daughter, with regard to his or her 
 father, mother, and their ancestors. 
 
 Nature always points out the mother by 
 evident signs, and, whether married or not, 
 she is always certain, — mater semper certa 
 est, etiamsi vulgo conceperit. There is not 
 the same certainty with regard to the father, 
 and the relation may not know; or may feign 
 ignorance as to the paternity. The law has 
 therefore established a legal presumption to 
 serve as a foundation for paternity and filia- 
 tion. 
 
 When the mother is or has been married,, 
 her husband is presumed to be the father of 
 the children born during the coverture, or 
 within a competent time afterwards, wheth- 
 er they were conceived during the coverture 
 or not, — pater is est quern nuptiae dernon- 
 strani. 
 
 In the Common Law. The establish- 
 ment of the paternity of a bastard. 
 
 FILICETUM. In old English law. A ferny 
 or bracky ground ; a place where fern grows. 
 Co. Litt. 4b; Shep. Touch. 95. 
 
 FILIOLUS. In old records. A godson. 
 Spelman. 
 
 FILIUS (Lat.) A son; a child. 
 
 As distinguished from heir, flUus is a term 
 of nature, haeres a term of law. 1 Powell, 
 Dev. 311. In, the civil law the term was 
 used to denote a child generally. Calv. Lex.; 
 Vicat. Its use in the phrase nuUius filiu's 
 would seem to indicate a use in the sense of 
 legitimate son, a bastard being the legiti- 
 mate son of nobody; though the word is 
 usually rendered ,a son, whether legitimate 
 or illegitimate. Vicat. 
 
 Filhnn eiini definiiiins qui e.r liro et uxorc 
 eiiif! iifixcitnr, we define him to be a son 
 who is born of a man and his wife. Dig. 
 1. 6. 6. Prricxiimitnr quia rxsr frUnx co quod 
 
FILIUS EST, ETC. 
 
 (372) 
 
 FINAL 
 
 nascitur ex uxore, one is presumed to be an- 
 other's child because he is born of his wife. 
 Bracton, fols. 6, 88. An alien may have a 
 son, but no alien can have an heir. Id. See 
 "Haeres." 
 
 A distinction was sometimes made, in the 
 civil law, between filii and liheri; the latter 
 word including grandchildren {nepotes), the 
 former not. Inst. 1. 14. 5. But according 
 to Paulus and Julianus, they were of equally 
 extensive import. Dig. 50. 16. 84; Id. 50. 16. 
 201. 
 
 FILIUS EST NOMEN NATURAE, SED 
 haeres nomen juris. Son is a name of na- 
 ture, but heir a name of law. 1 Sid. 193; 1 
 Powell, Dev. 311. 
 
 FILIUS FAMILIAS (Lat.) A son who is 
 under the control and power of his father. 
 Story, Confl. Laws, § 61; Vicat. 
 
 FILIUS IN UTERO MATRIS EST PARS 
 viscerum matris. A son in the mother's 
 womb is part of the mother's vitals. 7 Coke, 
 8. 
 
 FILIUS MULIERATUS (Lat.) The first 
 legitimate son born to a woman who has had 
 a bastard son by her husband before her 
 marriage. Called, also, mulier, and muUer 
 puisne. 2 Bl. Comm. 248. 
 
 FILIUS NULLIUS (Lat. son of nobody). 
 A bastard. Called, also, flUus popuU, son of 
 the people. 1 Bl. Comm. 459; 6 Coke, 65a. 
 
 FILIUS POPULI (Lat.) A son of the peo- 
 ple; a bastard. 
 
 FILUM (Lat; Law Fr. fil, file, q. t.) In 
 old practice. A thread, string, or wire used 
 for passing through and connecting papers 
 together; a file. Otherwise called filacium 
 (Fr. filacer, q. r.) Spelman, voc. "Filacium." 
 
 A thread or line passing through a stream 
 or road. See "Filum Aquae;" "Filum Viae." 
 The English word "thread" has in ordinary 
 speech this sense of running through; as in 
 the expression "thread of a discourse or ar- 
 gument;" "to thread one's way," etc. 
 
 A line or mark, as the edge or border of a 
 thing. Filum foivxtae, the edge of the for- 
 est. Manw. For. Laws, 371; 1 Crabb, Real 
 Prop. 485. "To the very last filum of the 
 plaintiff's lands." 5 Taunt. 133, arg. "Up 
 to the extreme filum of the plaintiff's prop- 
 erty." Id. 134, arg. 
 
 FILUM AQUAE (Lat. a thread of water). 
 This may mean either the middle line or the 
 outer line. AUum filum denotes high-water 
 mark. Blount. Filum is, however, used al- 
 most universally in connection with aquae to 
 denote the middle line of the stream. Me- 
 dium filum is sometimes used with no addi- 
 tional meaning. See 4 Pick. (Mass.) 468; 
 24 Pick. (Mass.) 344; 3 Gaines (N. Y.) 319; 
 6 Cow. (N. Y.) 579; 5 Wend. (N. Y.) 423; 
 26 Wend. (N. Y.) 404; 20 Johns. (N. Y.) 91; 
 4 Hill (N. Y.) 369; 4 Mason (XJ. S.) 397; 2 
 N. H. 369; 1 Halst. (N. J.) 1; 2 Conn. 481; 
 3 Rand. (Va.) 33; 8 Me. 253; 1 Ired. (N. C.) 
 535; Angell, Watercourses, § 11; 3 Dane, 
 Abr. 4; Jacob; 2 Washb. Real Prop. 445. See 
 "Ad Medium Filum Aquae." 
 
 FILUM FORESTAE (Lat.) The border 
 of the forest. 2 Sharswood, Bl. Comm. 419; 
 4 Inst. 303; Manw. For. Law, "Purlieu." 
 
 FILUM VIAE (Lat.) The middle line of the 
 way. 2 Smith, Lead. Cas. 98. 
 
 FIN. An end, or limit; a limitation, or pe- 
 riod of limitation. 
 
 Fin de non recevoir, a legal bar to the 
 maintenance of a claim. Ord. Mar. liv. 1," 
 tit. 12; Poth. Obi. p. 3, c. 8, art. 1. 
 
 FIN DE NON RECEVOIR. In French law. 
 An exception or plea founded on law, which, 
 without entering into the merits of the ac- 
 tion, shows that the plaintiff has no right 
 to bring it, either because the time during 
 which it ought to have been brought has 
 elapsed, which is called "prescription," or 
 that there has been a compromise, accord 
 and satisfaction, or any other cause which 
 has destroyed the right of action which once 
 subsisted. Poth. Proc. Civ. pt. 1, c. 2, § 2, 
 art. 2; Story, Confi. Laws, § 580. 
 
 FINAL. In practice. As applied to hear- 
 ings, orders, decisions, etc., that which ter- 
 minates the action, as distinguished from 
 "interlocutory." 
 
 Final Decree. A decree which finally 
 
 disposes of the whole question, so that noth- 
 ing further is left for the court to adjudicate 
 upon. See 2 Daniell, Ch. Pr. (Perkins Ed.) 
 1199, note. 
 
 A decree which terminates all litigation 
 on the same right. 1 Kent, Comm. 316. 
 
 A decree which disposes ultimately of the 
 suit. Adams, Eq. 375. After such decree 
 has been pronounced, the cause is at an end, 
 and no further hearing can be had. Id. 388. 
 
 A decree which puts an end to the proceed- 
 ings of the parties in that court. 44 Ala. 
 478; 95 N. C. 271. 
 
 A decree which so fixes the rights of the 
 parties that it can be carried into effect with- 
 out further inquiry thereon. 
 
 Final Judgment. A judgment which 
 
 puts an end to the action by declaring that 
 the plaintiff has either entitled himself, or 
 has not, to recover the remedy he sues for. 
 3 Bl. Comm. 398. A judgment which de- 
 termines a particular cause, and terminates 
 all litigation on the same right. 1 Kent, 
 Comm. 316. A judgment which cannot be 
 appealed frofti, but is perfectly conclusive as 
 to the matter adjudicated upon. 24 Pick. 
 (Mass.) 300; 2 Pet. (TJ. S.) 294; 6 How. (U. 
 S!) 201, 209. 
 
 A determination of the rights of the par- 
 ties to the particular suit, though not of all 
 their rights with reference to the subject 
 matter of the suit, is final. 1 Cal. 134. 
 
 To constitute a final judgment, the case 
 must be finally disposed of as to all parties. 
 52 U. S. 22; 11 Or. 72; 1 Mo. App. 365. 
 
 Final Process. Writs of execution; 
 
 process issued for the execution of a final 
 judgment. So called to distinguish them 
 from "mesne process," which includes all 
 process issuing before judgment rendered. 
 
 Final Sentence. That pronounced on 
 
 the conclusion of the case, as distinguished 
 from the interlocutory sentences rendered 
 during its progress. 
 
FINALIS CONCORDIA 
 
 (373) 
 
 FINE SUR CONCESSIT 
 
 FINALIS CONCORDIA (Lat.) A decisive 
 agreement; a fine; a final agreement. 
 
 A final agreement entered by the parties by 
 permission of court in a suit actually brought 
 for lands. Subsequently the bringing suit, 
 entry of agreement, etc., became merely for- 
 mal, but its entry upon record gave a firm 
 title to the plaintiff. 1 Washb. Real Prop. 
 70; 1 Spence, Bq. Jur. 143; 2 Plintoff, Real 
 Prop. 673'; White & T. Lead. Gas. 689. 
 
 Finis est amicahiKs compositio et flnalis 
 concorAia ex consensu et concordia domini 
 regis vel justiciariim, a fine is an amicable 
 settlement and decisive agreement by con- 
 sent and agreement of our lord the king or 
 his justices. Glanv. lib. 8, c. 1. 
 
 Talis concordia finalis dicitur eo quod 
 finem imposuit negotio. adeo tit neutra pars 
 Htigantium ah eo de cetero poterit recidere, 
 such concord is called final because it puts 
 an end to the business, so that neither of 
 the litigants can afterwards recede from it. 
 Glanv. lib. 9, c. 3; Cunningham. 
 
 FINANCES. The public revenue or re- 
 sources of a government or state; the in- 
 come or means of an individual or corpora- 
 tion. It is somewhat like the fiscus of the 
 Romans. The word is generally used in the 
 plural. 
 
 Money resources generally. The state of 
 the finances of an individual or corporation, 
 being his condition in a monetary point of 
 view. The cash he has on hand, and that 
 which he expects to receive, as compared 
 with the engagements he has made to pay. 
 
 FINANCIER, or FINANCIAN. One who 
 manages the finances or public revenue; per- 
 sons skilled in matters appertaining to the 
 judicious management of money affairs. 
 
 FINDER. One who lawfully comes to the 
 possession of another's personal property, 
 which was then lost. 
 
 FINDING. The result of the deliberations 
 of a jury or a court. 1 Day (Conn.) 238; 2 
 Day (Conn.) 12. 
 
 The "findings of fact" of a judge, on which 
 his decision is based. 
 
 FINE. In conveyancing. An amicable 
 composition or agreement of a suit, either 
 actual or fictitious, by leave of the court, by 
 which the lands in question become, or are 
 acknowledged to be, the right of one of the 
 parties. Co. Litt. 120; 2 Bl. Coram. 349; 
 Bac. Abr. "Fines and Recoveries." 
 
 A fine is so called because it puts an end 
 not only to the suit thus commenced, but 
 also to' all other suits and controversies con- 
 cerning the same matter. Such concords, 
 says Doddridge (Eng. Lawy. 84, 85), have 
 been in use in the civil law, and are called 
 transactions, whereof they say thus: Trans- 
 actiones sunt de eis quae in controversia 
 sunt, a lite tutura aut pendente ad certam 
 compositionem reducuntur, dando aliquid 
 vel accipiendo. Or, shorter, thus: Transac- 
 tio est de re dubia et lite ancipite ne dum 
 ad finem ducta, non gratuita pactio. It is 
 commonly defined an assurance by matter of 
 record, and is founded upon a supposed pre- 
 
 viously existing right, and upon a writ re- 
 quiring the party to perform his covenant; 
 although a fine may be levied upon any writ 
 by which lands may be demanded, charged, 
 or bound. It has also been defined an ac- 
 knowledgment on record of a previous gift 
 or feoffment, and prima facie carries a fee, 
 although it may be limited to an estate for 
 life or in fee tail. Brest. Conv. 200, 202, 
 268, 269; 2 Bl. Comm. 348, 349. 
 
 In Criminal Law. Pecuniary punish- 
 ment imposed by a lawful tribunal upon a 
 person convicted of crime or misdemeanor. 
 1 Bish. Crim. Law, § 940; 4 Steph. Comm. 
 444. See "Amercement." 
 
 In Feudal Law. Money exacted by the 
 
 superior lord upon any change in the tenure, 
 as upon alienation, endowment, etc. 2 Bl. 
 Comm. 71, 135. 
 
 FINE AND RECOVERY ACT. St. 3 & 4 
 
 Wm. IV. c. 74. This act abolished fines and 
 recoveries. 2 Sharswood, Bl. Comm. 364, 
 note; 1 Steph. Comm. 514. 
 
 FINE ANNULLANDO LEVATO DE TEN- 
 ennento quod fuit de antique dominico. An 
 abolished writ for disannulling a fine levied 
 of lands in ancient demesne, to the prejudice 
 of the lord. Reg. Grig. 15. 
 
 FINE FOR ALIENATION. A sum of mon- 
 ey which a tenant by knight's service, or a 
 tenant in capite by socage tenure, paid to his 
 lord for permission to alienate his right in 
 the estate he held to another, and by that 
 means to substitute a new tenant for him- 
 self. 2 Bl. Comm. 71, 89. These fines are 
 now abolished. In Prance, a similar demand 
 from the tenant, i^ade by the lord when the 
 former alienated his estate, was called lods 
 et vente. This imposition was abolished, 
 with nearly every other feudal right, by the 
 French Revolution. 
 
 FINE FOR ENDOWIVIENT. An old Eng- 
 lish law, grounded on the feudal exactions 
 that a woman could not be endowed without 
 a fine paid to the lord of the tenement. 
 Abolished by Henry I., and afterwards by 
 Magna Charfa (chapter 7). 2 Bl. Comm. 135. 
 
 FINE FORCE. An absolute necessity or 
 inevitable constraint. Old Nat. Brev. 78; 
 Plowd. 94; 6 Coke, 11; Cowell. 
 
 FINE SUR COGNIZANCE DE DROIT 
 
 come ceo que il ad de son done. A fine upon 
 acknowledgment of the right of the cognizee 
 as that which he hath of the gift of the cog- 
 nizor. By this the deforciant acknowledges 
 in court a former feoffment or gift in pos- 
 session to have been made by him to the 
 plaintiff. 2 Bl. Comm. 352; Cunningham; 
 Shep. Touch, c. 2; Comyn, Dig. "Pine." 
 
 FINE SUR COGNIZANCE DE DROIT 
 
 tantum. A fine upon acknowledgment of 
 the right merely. Generally used to pass a 
 reversionary interest which is in the cog- 
 nizor. 2 Bl. Comm. 351; Jacob; Comyn, 
 Dig. 
 
 FINE SUR CONCESSIT. A fine granted 
 where the cognizor, in order to make an 
 
FINE SUR DONE, ETC. 
 
 (374) 
 
 FIRMA 
 
 end of disputes, though he acknowledges no 
 precedent right. Vet grants to the cognizee 
 an estate de novo, usually for life or years, 
 by way of a supposed composition. 2 Bl. 
 Comm. 353; Shep. Touch, c. 2. 
 
 FINE SUR DONE GRANT ET RENDER. 
 
 A double fine, comprehending the fine sur 
 cognizance de droit come ceo, and the fine 
 sur concessit. It may be used to convey 
 particular limitations of estates, and to per- 
 sons who are strangers or not named in the 
 writ of covenant; whereas the fine sur cog- 
 nizance de droit come ceo, etc., conveys noth- 
 ing but an absolute estate, either of inher- 
 itance, or at least freehold. Salk. 340. In 
 this last species of fines, the cognizee, after 
 the right is acknowledged to be in him, 
 grants back again, or renders to the cognizor, 
 or perhaps to a stranger, some other estate 
 in the premises. 2 Bl. Comm. 353; Viner, 
 Abr. "Pine;" Comyn, Dig. "Pine;" 1 Washb. 
 Real Prop. 33. 
 
 FINEM FACERE (Lat.) To make or pay 
 a fine. Bracton, 106; Skene de Verb. Sign. 
 
 FINES LE ROY. In old English law. A 
 sum of money which any one is to pay the 
 king for any contempt or offense; which 
 fine any one that commits any trespass, or 
 is convict that he falsely denies his own 
 deed, or did anything in contempt of the 
 law, shall pay to the king. Termes de la 
 Ley; Cunningham. 
 
 FINIRE. In old English law. To fine, or 
 pay a fine. Rog. Hov., cited in Cowell. To 
 end or finish a matter. 
 
 FINIS EST AMICABILIS COMPOSITIO 
 et finalis concordia ex consensu et Concor- 
 dia domini regis vel justicarium. A fine is 
 an amicable settlement and decisive agree- 
 ment by consent and agreement of our lord, 
 the king, or his justices. Glanv. lib. 8, c. 1. 
 
 FINIS FINEIVl LITIBUS IMPONIT. A fine 
 puts an end to litigation. 3 Inst. 78. 
 
 FINIS REI ATTENDENDUS EST. The 
 
 end of a thing is to be attended to. 3 Inst. 51. 
 
 FINIS UNIUS DIEI EST PRINCIPIUIVI 
 alterius. The end of one day is the begin- 
 ning of another. 2 Bulst. 305. 
 
 FINITIO. In old records. An ending or 
 finishing; death, as the end of life (quia 
 rita finitur morte). Cowell; Holthouse. 
 
 FINIUM REGUNDORUM ACTIO. In civil 
 law. An action for regulating boundaries. 1 
 Mackeld. Civ. Law, § 271. 
 
 FINORS. Refiners of gold and silver. 
 
 FIRDFARE (Saxon). See "Pirdnite." 
 
 FIRDIRINGA (Saxon). A preparation to 
 go into the army. Leg. Hen. 1. 
 
 FIRDNITE, or FIRDWITE (Saxon). A 
 mulct or penalty imposed on military ten- 
 ants for their default in not appearing in 
 arms, or coming to an expedition; a penalty 
 
 imposed for murder committed in the army. 
 Cowell. 
 
 FIRDSOCNE (Saxon). Exemption from 
 military service. Spelman. 
 
 FIRE AND SWORD. Letters of fire and 
 sword were the ancient means for dispos- 
 sessing a tenant who retained possession con- 
 trary to the order of the judge and diligence 
 of the law. They were directed to the 
 sheriff, and ordered him to call theo assist- 
 ance of the county to dispossess the tenant. 
 Bell, Diet.; Ersk. Inst. lib. 4, tit. 3, § 17. 
 
 FIRE INSURANCE. A contract of insur- 
 ance by which the insurer agrees to indem- 
 nify the insured for injury by fire to goods 
 named in the contract. See "Insurance." 
 
 FIRE ORDEAL. See "Ordeal." 
 
 FIRE POLICY. A policy of fire insurance. 
 See "Pire Insurance." 
 
 FIREBARE. A beacon or high tower by 
 the seaside, wherein are continual lights, 
 either to direct sailors in the night, or to 
 give warning of the approach of an enemy. 
 Cowell. 
 
 FIREBOTE. An allowance of wood or es- 
 toves to maintain competent firing for the 
 tenant. A sufficient allowance of wood to 
 burn in a house. 1 Washb. Real Prop. 99. 
 Tenant for life or years is entitled to it. 2 
 Bl. Comm. 35. Cutting more than is needed 
 for present use is waste. 3 Dane, Abr. 238; 
 8 Pick. (Mass.) 312-315; Cro. Eliz. 593; 7 
 Bing. 640. The rules in England and in 
 this country are different in relation to the 
 kind of trees which the tenant may cut 
 11 Mete. (Mass.) 504; 7 Pick. (Mass.) 152; 
 7 Johns. (N. Y.) 227; 6 Barb. (N. Y.) 9; 2 
 Zab. (N. J.) 521; 2 Ohio St. 180; 13 Pa. St. 
 438; 3 Leon. 16. 
 
 FIRKIN. A measure of capacity, equal to 
 nine gallons. The word "firkin" is also 
 used to designate a weight, used for butter 
 and cheese, of fifty-six pounds avoirdupois. 
 
 FIRLOT. A Scotch measure of capacity, 
 containing two gallons and a pint. Spel- 
 man. 
 
 FIRIVI. The persons composing a partner- 
 ship, taken collectively. 
 
 The name or title under which the mem- 
 bers of a partnership transact business. 
 
 The word is used as synonymous with 
 "partnership." The words "house," "con- 
 cern," and "company" are also used in the 
 same sense. This name is, in point of law, 
 conventional, and applicable only to the per- 
 sons who, on each particular occasion when 
 the name is used, are members of the firm. 
 A firm is usually described, in legal pro- 
 ceedings, as certain persons trading or car- 
 rying on business under and using the name, 
 style, and firm of, etc. See 9 Q. B. 361; 9 
 Mees. & W. 347; 1 Chit. Bailm. 49. 
 
 FIRIVI A (Law Lat.) A farm or rent re- 
 served on letting lands, anciently frequently 
 
FIRMA FEODI 
 
 (375) 
 
 FISH ROYAL 
 
 reserved in provisions. Spelman; Cunning- 
 ham. 
 
 A banquet; supper; provisions for the ta- 
 ble. Du Cange. 
 
 A tribute or custom paid towards enter- 
 taining the king for one night. Domes- 
 day Book; Cowell. 
 
 A rent reserved to be paid In money, called 
 then alia firma, white rents, money rents. 
 Spelman. 
 
 A lease; a letting. Ad firmam tradidi. I 
 have farm let. Spelman. 
 
 A messuage with the house, garden, or 
 lands, etc., connected therewith. Co. Litt. 
 5a; Shep. Touch. 93. See "Farm." 
 
 FIRMA FEODI (Law Lat.) Fee farm. See 
 "Feodi Firma." 
 
 FIRMAN. A passport granted by the great 
 mogul to captains of foreign vessels to trade 
 within the territories over which he has 
 Jurisdiction; a permit. 
 
 FIRMARATIO. The right of a tenant to 
 bis lands and tenements. Cowell. 
 
 FIRMARIUM. In old records. A place in 
 monasteries, and elsewhere, where the poor 
 were received and supplied with food. Spel- 
 man. Hence the word "infirmary." 
 
 FIRMARIUS (Law Lat.) A fermor; a les- 
 see of a term. Firmarii comprehend all such 
 as hold by lease for life or lives or for year, 
 by deed or without deed. 2 Inst. 144, 145; 
 1 Washb. Real Prop. 107; 8 Pick. (Mass.) 
 332-315; 7 Adol. & E. 637. 
 
 FIRMATIO. 
 Cowell. 
 
 In forest law. Doe season. 
 
 FIRME. In old records. A farm. 
 
 FIRMIOR ET POTENTIOR EST OPERA- 
 tio legis quam dispositio hominis. The op- 
 eration of law is firmer and more powerful 
 than the will of man. Co. Litt. 102. 
 
 FIRMITAS. In old English law. An as- 
 surance of some privilege, by deed or char- 
 ter. 
 
 FIRMURA. In old English law. Liberty 
 to scour and repair a mill dam, and carry 
 away the soil, etc. Blount. 
 
 FIRST CLASS MISDEMEANANT. In Eng- 
 lish law, one convicted of misdemeanor who 
 is designated by the judge to be treated with 
 special favor. Such designation is in the 
 discretion of the judge. 28 & 29 Vict. c. 126, 
 § 67. 
 
 FIRST FRUITS. The first year's whole 
 profits of the spiritual preferments. There 
 were three valuations (valor l)eneflciuin) at 
 different times, according to which these 
 first fruits were estimated, made in 1253, 
 1288, and 1318. A final valuation was made 
 by 26 Hen. VIII. c. 3. 
 
 They now form a perpetual fund, called 
 "Queen Anne's Bounty," the income of which 
 is used for the augmentation of poor livings. 
 1 Sharswood, Bl. Comm. 284, and notes; 2 
 Burn, Ecc. Law, 260. 
 
 FIRST IMPRESSION. First examination; 
 first presentation to a court for examination 
 or decision. A cause which presents a new 
 question for the first time, and for which, 
 consequently, there is no precedent, is said 
 to be a case of the first impression. 
 
 FIRST PURCHASER. In th,e English law 
 of descent, the first purchaser was he who 
 first acquired an estate in a family which 
 still owns it. A purchase of this kind sig- 
 nifies any mode of acquiring an estate, ex- 
 cept by descent. 2 Bl. Comm. 220. 
 
 FISC. In civil law. The treasury of a 
 prince; the public treasury. 1 Low. (U. S.I 
 361. 
 
 Hence, to confiscate a thing is to appro- 
 priate it to the fisc. Paillet, Dr. Pub. 21, 
 note, says that flscus, in the Roman law, sig- 
 nified the treasure of the prince, and aerari- 
 um the treasure of the state. But this dis- 
 tinction was not observed in France. 
 
 FISCAL. Belonging to the fisc, or public 
 treasury. 
 
 FISCAL JUDGE (Law Lat. Judex flscaUs). 
 An ofiicer named in the laws of the barba- 
 rous nations of Europe; the same with the 
 ijni/ii), graf, fjrctf, or yrecw. Spelman, voc. 
 "Grafio." Called flscla, because charged with 
 the collection of public moneys, either di- 
 rectly, or by the imposition of fines. Id. In 
 the Ripaurlan law, he is said to be the same 
 with the comes or count. L. Ripaur. tit. 35; 
 Montesq. Esp. des Lois, liv. 30, c. 18. 
 
 FISCUS. 
 
 In Roman Law. The treasury of the 
 
 prince or emperor, as distinguished from 
 "aerarmm," which was the treasury of the 
 state. Spelman; Plin. Pand. 36; Tacit, vi. 
 2; Calv. Lex. 
 
 The treasury or property of the state, as 
 distinguished from the private property of 
 the sovereign. Dig. 49. 14; 1 Mackeld. Civ. 
 Law, 149, § 144. 
 
 In English Law. The king's treasury, 
 
 as the repository of forfeited property. 
 Bracton, fol. 150. 
 
 The treasury of a noble, or of any private 
 person. Spelman. 
 
 The use of the word in the sense of a 
 treasury is derived from its primary mean- 
 ing, a wicker basket or hamper in which 
 money was kept by the Romans. Burrill. 
 
 FISH. An animal which inhabits the wa- 
 ter, breathes by means of gills, swims by the 
 aid of fins, and is oviparous. 
 
 Fishes in rivers and in the sea are con- 
 sidered as animals ferae naturae; conse- 
 quently, no one has any property in them 
 until they have been captured, and, like oth- 
 er wild animals, if, having been taken, they 
 escape and regain their liberty, the captor 
 loses his property in them. 
 
 FISH ROYAL. A whale, porpoise, or stur- 
 geon thrown ashore on the coast of England 
 belonged to the king as a branch of his pre- 
 rogative. Hence these fish are termed "roy- 
 al fish." Hale, de Jur. Mar. pt. 1, c. 7; 1 
 Sharswood, Bl. Comm. 290; Plowd. 305; 
 Bracton, lib. 3, c. 3. 
 
FISHERY 
 
 (376) 
 
 FLAG, DUTY OF THE 
 
 FISHERY. A place prepared for catching 
 flsh with nets or hoolis. This is commonly 
 applied to the place of drawing a seine or 
 net. 1 Whart. (Pa.) 131, 132. 
 
 A right or liberty of taking fish; a spe- 
 cies of incorporeal hereditament, anciently 
 termed "piscary," of which there are sev- 
 eral kinds. 2 Bl. Comm. 34, 39; 3 Kent, 
 Comm. 409-418; Angell, Watercourses, § 61 
 et seq.; Angell, Tide Waters, p. 124, c. 5. 
 
 A common of fishery is not an exclusive 
 right, but one enjoyed in common with cer- 
 tain other persons. 3 Kent, Comm. 329. 
 
 A free fishery is said to be a franchise in 
 the hands of a subject, existing by grant or 
 prescription, distinct from an ownership in 
 the soil. It is an exclusive right, and applies 
 to a public navigable river, without any 
 right in the soil. 3 Kent, Comm. 329. 
 
 A several fishery is one by which the par- 
 ty claiming it has the right of fishing, in- 
 dependently of all others, so that no person 
 can have a coextensive right with him in the 
 object claimed; but a partial and independ- 
 ent right in another, or a limited liberty, 
 does not derogate from the right of the own- 
 er. 5 Burrows, 2814. 
 
 A distinction has been made between a com- 
 mon fishery (commune piscarium), which 
 may mean for all mankind, as in the sea, 
 and a common of fishery (communium, pisca- 
 riae), which is a right, in common with cer- 
 tain other persons, in a particular stream. 
 8 Taunt. 183. Mr. Angell seems to think 
 that "common of fishery" and "free fishery" 
 are convertible terms. Angell, Watercourses, 
 c. 6, §§ 3, 4. 
 
 Mr. Woolrych says that sometimes a free 
 fishery is confounded with a several, some- 
 times it is said to be synonymous with com- 
 mon, and again it is treated as distinct from 
 either. Woolr. Waters, 97. 
 
 A several fishery, as its name imports, is 
 an exclusive property. This, however, is not 
 to be understood as depriving the territorial 
 owner of his right to a several fishery when 
 he grants to another person permission to 
 fish; for he would continue to be the several 
 proprietor, although he should suffer a stran- 
 ger to hold a coextensive right with him- 
 self. Woolr. Waters, 96. 
 
 These distinctions in relation to several, 
 free, and common of fishery are not strongly 
 marked, and the lines are sometimes scarce- 
 ly perceptible. "Instead of going into the 
 black-letter books to learn what was a fish- 
 ery, and a free fishery, and a several fish- 
 ery," says Huston, J., "I am disposed to re- 
 gard our own acts, even though differing 
 from old feudal law." 1 Whart. (Pa.) 132. 
 
 FISH GARTH. A dam or wear in a river 
 for taking fish. Cowell. 
 
 FISK. In Scotch law. The revenue of the 
 crown. Generally used of the personal es- 
 tate of a rebel, which has been forfeited to 
 the crown. Bell, Diet. 
 
 FISTUCA, or FESTUCA (Lat.) The rod 
 which was transferred, in one of the an- 
 cient methods of feoffment, to denote a trans- 
 fer of the property in land. Called, other- 
 wise, taculum, virga, fustis. Spelman. 
 
 FISTULA. In the civil law. A pipe for 
 conveying water. Dig. 8. 2. 18. 
 
 FIVE-MILE ACT. An act of parliament, 
 passed in 1665, against nonconformists, 
 whereby ministers of that body were prohib- 
 ited from coming within five miles of any 
 corporate town or place where they had 
 preached or lectured. Brown. 
 
 FIXING BAIL. In practice. Rendering ab- 
 solute the liability of special bail. 
 
 The bail are fixed upon the issue of a ca. 
 sa. (capias ad satisfaciendum) against the 
 defendant (2 Nott & McC. [S.- C] 569; 16 
 Johns. [N. Y.] 117; 3 Har. [N. J.] 9; 11 Tex. 
 15), and a return of mora est thereto by the 
 sheriff (4 Day [Conn.] 1; 2 Bailey [S. C] 
 492; 3 Rich. [S. C] 145; 1 Vt. 276; 7 Leigh 
 [Va.] 371), made on the return day (2 Mete. 
 [Mass.] 590; 1 Rich. [S. C] 421), unless the 
 defendant be surrendered within the time al- 
 lowed ex gratia by the practice of the court 
 (3 Conn. 316; 9 Serg. & R. [Pa.] 24; 2 Johns. 
 [N. Y.] 101; 9 Johns. [N. Y.] 84; 1 Dev. [N. 
 C] 91; 11 Gill & J. [Md.] 92; 2 Hill [N. Y.] 
 216; 8 Cal. 552; 17 Ga. 88). 
 
 In New Hampshire (1 N. H. 472) and 
 Massachusetts (2 Mass. 485) bail are not 
 fixed till judgment on a sci. fa. is obtained 
 against them, except by the death of the de- 
 fendant after a return of non est to an exe- 
 cution against him. 
 
 The death of the defendant after a return 
 of non est by the sheriff prevents a sur- 
 render and fixes the bail inevitably. 5 Bin. 
 (Pa.) 332; 4 Johns. (N. Y.) 407; 3 McCord 
 (S. 0.) 49; 4 Pick. (Mass.) 120; 4 N. H. 29; ■ 
 12 Wheat. (U. S.) 604. See 1 Overt. (Tenn.) 
 224; 1 Ohio, 35; 2 Ga. 331. 
 
 In Georgia and North Carolina, bail are 
 not fixed till judgment is obtained against 
 them. 3 Dev. (N. C.) 155; 2 Ga. 331. 
 
 FIXTURES. The word "fixtures" is used 
 with three distinct meanings: 
 
 (1) Chattels affixed to the realty, without 
 regard to the right to remove them. 
 
 (2) An article which was a chattel, but 
 which, by being permanently annexed to the 
 soil, becomes a part of the realty, and can- 
 not be removed without the consent of the 
 owner of the freehold. 40 N. Y. 287. 
 
 (3) Personal chattels affixed to real es- 
 tate, which may be severed and removed by 
 the party who has affixed them, or by his 
 personal representative, against the will of 
 the owner of the freehold. 8 Iowa, 544; 
 Tayl. Landl. & Ten. § 544, note 1. 
 
 FLACO. A place covered with standing 
 water. 
 
 FLAG. A symbol of nationality carried by 
 soldiers, ships, etc., and used in many places 
 where such a symbol is necessary or proper. 
 
 For the law upon the subject of national- 
 ity of a cargo as determined by the flag, see 
 5 East, 398; 9 East, 283; 3 Bos. & P. 201; 1 
 C. Rob. Adm. 1; 5 C. Rob. Adm. 16; 1 Dods. 
 Adm. 81, 131; 9 Cranch (U. S.) 388; 2 Pars. 
 Mar. Law, 114, 118, note, 129. 
 
 FLAG, DUTY OF THE. Saluting the Brit- 
 
FLAGELLAT 
 
 (37?) 
 
 FLORENTINE PANDECTS 
 
 ish flag, by striking the flag, and lowering 
 the topsails of a vessel, exacted as a tribute 
 to the sovereignty of England over the Brit- 
 ish seas. 
 
 FLAGELLAT. Whipped; scourged. An en- 
 try on old Scotch records. 1 Pitc. Grim. Tr. 
 pt. 1, p. 7. 
 
 FLAGRANS. Burning; raging; in actual 
 perpetration. Flagrans iellum, a war actu- 
 ally going on. Flagrans crimen, a crime in 
 the act of perpetration, or just perpetrated. 
 
 FLAGRANS CRIMEN. In Roman law. A 
 term denoting that a crime is being or has 
 , just been committed. For example, when a 
 crime has just been committed, and the cor- 
 pus delictum is publicly exposed, or if a mob 
 take place, or if a house be feloniously 
 burned, these are severally flagrans crimen. 
 The term used in France is flagrant delit. 
 The Code of Criminal Instruction gives the 
 following concise definition of it (article 
 41) : "Le delit qui se commet actuellement 
 on qui vient de se commettre, est un flagrant 
 delit." 
 
 FLAGRANT NECESSITY. A case of ur- 
 gency rendering lawful an otherwise illegal 
 act, as an assault to remove a man from im- 
 pending danger. 
 
 FLAGRANTE BELLO. During an actual 
 state of war. 
 
 FLAGRANTI DELICTO (Lat.) In the very 
 act of committing the crime. 4 Bl. Comm. 
 307. 
 
 FLAVIANUM JUS (Lat.) A treatise on 
 civil law, which takes its name from Its au- 
 thor, Cneius Flavins. It contains forms of 
 actions. Vicat. 
 
 FLECTA. A feathered or fleet arrow. 
 Cowell. 
 
 FLEDWITE. A discharge or freedom from 
 amercements where one having been an out- 
 lawed fugitive Cometh to the place of our 
 lord of his own accord. Termes de la Ley. 
 
 The liberty to hold court and take up the 
 amercements for beating and striking. Cow- 
 ell. 
 
 The fine set on a fugitive as the price of 
 obtaining the king's freedom. Spelman. 
 
 FLEE FROM JUSTICE. See "Fugitive 
 from Justice." 
 
 FLEE TO THE WALL. A figurative ex- 
 pression used in the criminal law to express 
 the duty of one assailed by violence to re- 
 treat as far as he safely may before making 
 violent resistance. It probably originated 
 from the language of Blackstone, who says: 
 "The party assaulted must flee as far as he 
 conveniently can, either by reason of some 
 wall, ditch, or other impediment, or as far 
 as the fierceness of the assault will permit 
 him." 4 Bl. Comm. 185. 
 
 FLEET. A place of running water where 
 the tide or float comes up. 
 A prison in London, so called from a river 
 
 or ditch which was formerly there, on the 
 side of which it stood. 
 
 FLEM. In Saxon and old English law. A 
 fugitive bondman or villein. Spelman. 
 
 The privilege of having the goods and fines 
 of fugitives. Id. 
 
 FLEMENE FRIT, FLEMENES FRINTHE, 
 or flymena frynthe. The reception or re- 
 lief of a fugitive or outlaw. Jacob. 
 
 FLEMESWITE. The possession of the 
 goods of fugitives. Pleta, lib. 1, c. 147. 
 
 FLET. House; home. Cowell. 
 
 FLETA. The title of an ancient law book, 
 supposed to have been written by a judge 
 while confined in the Fleet prison. 
 
 It is written in Latin, and is divided into 
 six books. The author lived in the reigns of 
 Edward II. and Edward III. See liber 2, c. 
 66, § Itevi quod nullus ; liber 1, c. 20, § Qui 
 coeperunt; 10 Coke, pref. Edward II. was 
 crowned A. D. 1306. Edward III. was crown- 
 ed 1326, and reigned till A. D. 1377. During 
 this period the English law was greatly im- 
 proved, and the lawyers and judges were 
 very learned. Hale, Hist. Com. Law, 173. 
 Blackstone (4 Comm. 427) says of this work 
 "that it was for the most part law until the 
 alteration of tenures took place." The same 
 remark he applies to Britton and Hingham. 
 
 FLICHWITE. In Saxon law. A fine on 
 account of brawls and quarrels. Spelman. 
 
 FLIGHT. In criminal law. The evading 
 the course of justice by a man's voluntarily 
 withdrawing himself. 4 Bl. Comm. 387. See 
 "Fugitive from Justice." 
 
 FLOAT. A certificate authorizing the par- 
 ty possessing it to enter a certain amount of 
 land. 20 How. (U. S.) 504. See 2 Washb. 
 Real Prop. 
 
 FLOATABLE. A stream capable of float- 
 ing logs, etc., is said to be floatable. 2 
 Mich. 519. 
 
 FLOATING DEBT. Those claims against 
 a municipality for the payment of which 
 there is no money in the corporate treasury 
 specifically designated, nor any taxation or 
 other means to pay particularly provided. 71 
 N. Y. 371-374. 
 
 FLODEMARK. High-tide mark. Blount. 
 The mark which the sea at flowing water 
 and highest tide makes upon the shore. 
 And. 189; Cunningham. 
 
 FLORENTINE PANDECTS. A copy of the 
 Pandects discovered accidentally about the 
 year 1137, at Amalphi, a town in Italy, near 
 Salerno. From Amalphi, the copy found its 
 way to Pisa, and, Pisa having submitted to 
 the Florentines in 1406, the copy was re- 
 moved in great triumph to Florence. By di- 
 rection of the magistrates of the town, it 
 was immediately bound in a superb manner, 
 and deposited in a costly chest. Formerly, 
 these Pandects were shown only by torch 
 light, in the presence of two magistrates. 
 
FLORIN 
 
 (378) 
 
 FOLC LAND 
 
 and two Cistercian monks, with their heads 
 uncovered. They have been successively col- 
 lated by Politian, Bolognini, and Antonius 
 Augustinus. An exact copy of them was pub- 
 lished in 1553 by Franciscus Taurellus. For 
 its accuracy and beauty, this edition ranks 
 high among the ornaments of the press. 
 Brenchman, who collated the manuscript 
 about 1710, refers it to the sixth century. 
 Butler, Hor. Jur. 90, 91. 
 
 FLORIN. A coin, originally made at Flor- 
 ence. Called, also, "gulder." 
 
 FLOTAGES. Things which float by acci- 
 dent on the sea or great rivers. Blount. 
 
 The commissions of water bailiffs. Cun- 
 ningham. 
 
 FLOTSAM, or FLOTSAN. A name for the 
 goods which float upon the sea when cast 
 overboard for the safety of the ship, or 
 when a ship is sunk. Distinguished from 
 "jetsam" and "ligan." Bracton, lib. 2, c. 5; 
 5 Coke, 106; Comyn, Dig. "Wreck" (A); 
 Bac. Abr. "Court of Admiralty" (B); 1 Bl. 
 Gomm. 292. 
 
 FLOUD MARKE. Flodemark {g. r.) 
 
 FLU MEN (Law Lat.) In civil law. The 
 name of a servitude which consists in the 
 right of turning the rain water, gathered in 
 a spout, on another's land. Ersk. Inst. bk. 
 2, tit. 9, note 9; Vicat. See "Stillicidium." 
 
 FLUMINA ET PORTUS PUBLICA SUNT; 
 ideoque jus piscandi omnibus commune est. 
 Rivers and ports are public; therefore the 
 right of fishing there is common to all. Dav. 
 Ir. K. B. 55; Branch, Princ. 
 
 FLU VI US (Lat.) In old English law. A 
 river. Fluvii regales, royal streams. Public 
 rivers for public passage (Pr. haut stremes 
 le roy). So called, not in reference to the 
 propriety of the river, but to the public use; 
 all things of public safety and convenience 
 being, in a special manner, under the king's 
 care, supervision, and protection. Hale, de 
 Jur. Mar. par. 1, c. 2. 
 
 Flood or flood tide. Fleta. lib. 6, c. 8, § 2. 
 
 FLUX US. In old English law. Flow. 
 Per fluxum et refluxum maris, by the flow 
 and reflow of the sea. Dal. pi. 10. 
 
 FLYMA (Saxon). A fugitive or outlaw. 
 Spelman. 
 
 FLYMAN FRYMTH. In old English law. 
 The offense of harboring a fugitive, the pen- 
 alty attached to which was one of the rights 
 of the crown. Anc. Inst. Eng. 
 
 FOCAGE. House bote; fire bote. Cowell. 
 
 FOCALE (Law Lat.) In old English law. 
 Firewood; the right of taking wood for the 
 fire; fire Isote. Cunningham. 
 
 FODERUM (Law Lat.) Food for horses 
 or other cattle. Cowell. 
 
 In Feudal Law. Fodder and supplies 
 
 provided as a part of the king's prerogative 
 
 for use in his wars or other expeditions. 
 Cowell. 
 
 FODINA. A mine. Co. Litt. 6a. 
 
 FOEDUS (Lat.) A league; a compact. 
 
 FOEMINA VIRO CO-OPE RTA. A feme 
 covert. 
 
 FOEMINAE AB OMNIBUS OFFICIIS CI- 
 vllibus vel publicis remotae sunt. Woinen 
 are excluded from all civil and public char- 
 ges or offices. Dig. 50. 17. 2; 1 Exch. 645; 6 
 Mees. & W. 216. 
 
 FOEMINAE NON SUNT CAPACES DE 
 publicis officiis. Women are not admissible 
 to public offices (Jenk. Cent. Gas. 237); but 
 a woman may be elected to the office of sex- 
 ton (7 Mod. 263; Strange, 1114), or gov- 
 ernor of a workhouse, and act by deputy (2 
 Ld. Raym. 1014), or an overseer (2 Term R. 
 395). See "Women." 
 
 FOENERATION. The act of putting out 
 money at interest. 
 
 FOENUS NAUTICUS (Lat.) The name 
 given to marine interest. The amount of 
 such interest is not limited by law, because 
 the lender runs so great a risk of losing his 
 principal. Ersk. Inst. bk. 4, tit. 4, note 7S. 
 See "Marine Interest." 
 
 FOETICIDE. In medical jurisprudence. 
 The act of criminal abortion. 1 Beck, Med. 
 Jur. 288; Guy, Med. Jur. 133. 
 
 FOETURA (Law Lat.) In civil law. The 
 produce of animals, and the fruit of other 
 property, which are acquired to the owner 
 of such animals and property by virtue of 
 his right. Bowyer, Mod. Civ. Law. c. 14, p. 
 81 
 
 FOETUS (Lat.) In medical jurisprudence. 
 An unborn child; an infant in ventre ta 
 mere. 
 
 FOGAGIUM. In old English law. Pogage 
 or fog; a kind of rank grass of late growth, 
 and not eaten in summer. Spelman; Cow- 
 ell. Distinguished from "hay." 
 
 FOI. In French feudal law. Faith; feaily. 
 Guyot, Inst. Feud. c. 2. 
 
 FOINESUN. In old English law. The 
 fawning or fawning time of deer. Spelman. 
 
 FOIRFAULT. In old Scotch law. To for- 
 feit. 1 How. St. Tr. 927. 
 
 FOIRTHOCHT. In old Scotch law. Pore- 
 thought; premeditated. 1 Pitc. Grim. Tr. pt. 
 1, p. 90. 
 
 FOITERERS. Vagrants. 
 
 FOLC LAND (Saxon). Land of the people 
 Spelman. Said by Blackstone to be land 
 held by no assurance in writing, but to have 
 been distributed amongst the common people 
 at the pleasure of the lord, and resumable at 
 his discretion. 2 Bl. Comm. 90; Cowell. 
 
 It was probably, however, land which be- 
 longed to the community, and which, being 
 
FOLC MOTE 
 
 (379) 
 
 FORBARRER 
 
 parcelled out for a term to people of all con- 
 ditions, reverted again to the commons at the 
 expiration of the term. 1 Spence, Bq. Jur. 
 8; Wharton. 
 
 FOLC MOTE, FOLK MOTE, or FOLC GE- 
 mote (Saxon, from folc, people, and mote, or 
 gemote, meeting). In Saxon law. A meet- 
 ing of the people; a general assembly of the 
 people, to consider and order matters of the 
 commonwealth. Somner; Spelman, voc. "Ge- 
 motum." Any popular or public meeting of 
 all the folk or people of a place or district. 
 Brande. See "Gemot." 
 
 The term was used to denote a court or 
 judicial tribunal among the Saxons, which 
 possessed substantially the powers after- 
 wards exercised by the couiity courts and 
 sheriff's tourn. These powers embraced the 
 settlement of small claims, taking the oath 
 of allegiance, preserving the laws, and mak- 
 ing the necessary arrangements for the pres- 
 ervation of safety, peace, and the public 
 weal. It appears that complaints were to be 
 made before the folk gemote held in London 
 annually, of any mismanagement by the 
 mayor and aldermen of that city. It was 
 called, also, a "burg gemote" when held in 
 a burgh, and "shire gemote" when held for 
 a county. See Manw. For. Laws; Spelman; 
 De Brady; Cunningham. 
 
 A county court; an assembly of the people 
 or freeholders of a county (conventus oomi- 
 tatus). Otherwise called the "shire mote." 
 Spelman. 
 
 A city court; an assembly of the inhab- 
 itants of a city or borough {conventus civi- 
 tatis sea burgi). Otherwise called the "burg 
 mote." Spelman. The folc mote or city court 
 of I^ondon is mentioned in ancient records. 
 Id.; Crabb, Hist. Eng. Law, 141. The term 
 seems to have been generally applied to all 
 courts that were adapted to the convenience 
 of the people within any district. Id. 26. 
 See Cowell. 
 
 FOLC RIGHT. The common right of all 
 the people. 1 Bl. Comm. 65, 67. 
 
 FOLD-COURSE. In English law. Land 
 used as a sheep walk. 
 
 Land to which the sole right of folding 
 the cattle of others is appurtenant. Some- 
 times it means merely such right of folding. 
 The right of folding on another's land, which 
 is called "common foldage." Co. Litt. 6a, 
 note 1; W. Jones, 375; Cro. Car. 432; 2 Vent. 
 139. 
 
 FOLDAGE. A privilege possessed in some 
 places by the lord of a manor, which con- 
 sists in the right of having his tenant's 
 sheep to feed on his fields, so as to manure 
 the land. 
 
 The name of "foldage" is also given in 
 parts of Norfolk to the customary fee paid 
 to the lord for exemption at certain times 
 from this duty. Elton, Commons, 45, 46. 
 
 FOLGARII. Menial servants; followers. 
 Bracton. 
 
 FOLGERE. In old English law. A free- 
 man, who has no house or dwelling of his 
 
 own, but is the follower or retainer of an- 
 other (heorthfoest) , for whom he performs 
 certain predial services. Anc. Inst. Eng. 
 
 FOLGOTH. Official dignity. 
 
 FOLIO. A leaf. The references to the 
 writings of the older law authors are usually 
 made by citing the folio, as It was the an- 
 cient custom to number the folio instead of 
 the page, as is done in modern books. 
 
 A certain number of words specified by 
 statute as a folio. Wharton. Originating, 
 undoubtedly, in some estimate of the num- 
 ber of words which a folio ought to con- 
 tain. 
 
 FONSADERA. In Spanish law. Any 
 tribute or loan granted to the king for the 
 purpose of enabling him to defray the ex- 
 penses of a war. 
 
 FONTANA. A fountain or spring. Brac- 
 ton, fol. 233. 
 
 FOOT. A measure of length, containing 
 one-third of a yard, or twelve inches. Fig- 
 uratively, it signifies the conclusion, the 
 end ; as, the foot of the fine, the foot of the 
 account. 
 
 FOOT OF THE FINE. The fifth part of 
 the conclusion of a fine. It includes the 
 whole matter, reciting the names of the par- 
 ties, day, year, and place, and before whom 
 It was acknowledged or levied. 2 Bl. Comm. 
 351. 
 
 FOOTGELD. An amercement for not cut- 
 ting out the ball or cutting off the claws of 
 a dog's feet (expeditating him). To be quit 
 of footgeld is to have the privilege of keep- 
 ing dogs in the forest unlawed without pun- 
 ishment or control. Manw. For. Laws, pt. 
 1, p. 86; Cromp. Jur. 197; Termes de la Ley; 
 Cunningham. 
 
 FOR. In French law. A tribunal. Lefor 
 interieur, the interior forum; the tribunal of 
 conscience. Poth. Obi. pt. 1, c. 1, 5 1, art. 
 3, § 4. 
 
 FOR A TURN. See "Gambling Contract." 
 
 FOR THAT, or FOR THAT WHEREAS. 
 
 Words used in introduction in a declaration. 
 "For that whereas" introduces recitals, "For 
 that," positive allegations. Hammond, N. P. 
 
 9. 
 
 FORANEUS. One from without; a for- 
 eigner; a stranger. Calv. Lex. 
 
 FORATHE. One who can take oath for 
 another who is accused of one of the lesser 
 crimes. Manw. For. Laws, p. 3; Cowell. 
 
 FORBALCA. In old records. A torebalk; 
 a balk (that is, an unplowed piece of land) 
 lying forward or next the highway. Cowell. 
 
 FORBANER. To deprive forever; to shut 
 out. 9 Rich. II. c. 2; 6 Hen. VI. c. 4; 
 Cowell. 
 
 FORBARRER (Law Fr.) To bar out; 
 prevent or preclude; to estop. Cowell. 
 
 to 
 
FORBATUDUS 
 
 (380) 
 
 FOREHAND RENT 
 
 FORBATUDUS. In old English law. The 
 aggressor slain in combat. Jacob. 
 
 FORBEARANCE. A delay in enforcing 
 rights; the act by which a creditor waits for 
 the payment of a debt due him by the debter 
 after it has become due. It is sufficient con- 
 sideration to support annKiiipsit. 
 
 FORCE. Restraining power; validity; bind- 
 ing effect. 
 
 A law may be said to be in force when it 
 is not repealed, or, more loosely, when it 
 can be carried into practical effect. An 
 agreement is in force when the. parties to it 
 may be compelled to act, or are acting, un- 
 der its terms and stipulations. 
 
 Strength applied; active power; power put 
 in motion. 
 
 Actual force is where strength is actually 
 applied, or the means of applying it are at 
 hand. 
 
 The display of power to injure sufficient 
 to put in bodily fear is force. 5 Blatchf. 
 (U. S.) 18; 2 Whart. Grim. Law, 1698. 
 
 Implied force is that which is implied by 
 law from the commission of an unlawful 
 act. Every trespass guare clausum fregit is 
 committed with implied force. 1 Salk. 643 : 
 Co. Litt. 57b, 161b, 162a; 1 Saund. 81, 140, 
 note 4; 5 Term R. 361; 8 Term R. 78, 358; 
 Bac. Abr. "Trespass;" 3 Wils. 18; Fitzh. Nat. 
 Brev. 890; 6 East, 387; 5 Bos. & P. 365, 454. 
 
 Mere nonfeasance cannot be considered as 
 force, generally. 2 Saund. 47; Co. Litt. 161; 
 Bouv. Inst. Index. 
 
 FORCE AND ARMS. A phrase used in 
 declarations of trespass and in indictments, 
 but now necessary in declarations, to denote 
 that the act complained of was done with 
 violence. 2 Chit. PI. 846, 850. 
 
 FORCED HEIRS. In Louisiana. Those 
 persons whom the testator or donor cannot 
 deprive of the portion of his estate reserved 
 for them by law, except in cases where he 
 has a just cause to disinherit them. Civ. 
 Code Ija. art 1482. As to the portion of the 
 estate they are entitled to, see "Legitim." 
 As to the causes for which forced heirs may 
 be deprived of this right, see "Disinherison." 
 
 FORCED SALE. A sale under process of 
 law, and against the consent of the owner. 
 It does not embrace a sale under a power in 
 a mortgage. 15 Fla. 336. 
 
 FORCHEAPUM. Pre-emption. Blount. 
 
 FORCIBLE ENTRY OR DETAINER. A 
 
 forcible entry or detainer consists in vio- 
 lently taking or keeping possession of lands 
 or tenements, by means of threats, force, or 
 arms, and without authority of law. Comyn, 
 Dig.; Gabbett, Grim. Law; 52 Barb. (N. Y.) 
 198; 4 Cush. (Mass.) 141. 
 
 Though generally referred to in the con- 
 junctive, forcible entry and forcible detainer 
 are distinct acts. 31 Cal. 122. 
 
 To authorize either a criminal prosecution 
 or an action of forcible entry and detainer 
 at common law, both entry and detainer 
 must be forcible (93 Ind. 211) ; but a forcible 
 
 entry will relate back to the entry, if that 
 was unlawful, though peaceable; otherwise, 
 if the entry was lawful (45 Cal. 597). 
 
 In Modern Usage. The possessory ac- 
 tion of forcible entry and detainer has been 
 extended by statute to certain cases of con- 
 structive force, as where a tenant holds over 
 fifter his term. 
 
 FOR DA. In old records. A ford or shal- 
 low, made by damming or penning up the 
 water. Cowell. 
 
 FORDAL (Saxon). A butt or headband; a 
 piece. 
 
 FORDANNO. In old European law. He 
 who first assaulted another. Spelman. 
 
 FORDIKA. In old records. Grass or herb- 
 age growing on the edge or bank of dykes or 
 ditches. Cowell. 
 
 FORE (Saxon). Before. (Fr.) Out. Kel- 
 ham. 
 
 FORECLOSURE. To shut out; to bar. 
 Used of the process of destroying an equity 
 of redemption. 1 Washb. Real Prop. 589; 
 Daniell, Ch. Pr. 1204; Coote, Mortg. 511; 9 
 Cow. (N. Y.) 382. 
 
 A proceeding in chancery by which the 
 mortgagor's right of redemption of the mort- 
 gaged premises is barred or closed forever. 
 
 In the more comprehensive sense which 
 modern usage requires, any proceeding by 
 which mortgaged property is applied to the 
 payment of the mortgage debt, and the 
 equity of the mortgagor therein barred. 
 
 As so defined, foreclosure is divided into: 
 
 (1) Strict foreclosure, being foreclosure 
 by a proceeding in chancery, by which the 
 equity of redemption is barred within a 
 certain time, and the title of the mortgagee 
 becomes absolute. 
 
 (2) By entry, by the act of the mort- 
 gagee taking > possession either by his own 
 peaceable act, or under writ of entry. 
 
 (3) By sale, being by an action for the 
 judicial sale of the mortgaged property, and 
 the application of the proceeds to the pay- 
 ment of the mortgage debt. Sometimes 
 called "foreclosure by action." 
 
 (4) By advertisement, being a sale under 
 a power of sale in the mortgage, notice 
 thereof being given by advertisement. 
 Sometimes called "foreclosure under power 
 of sale." 
 
 The two first-named varieties are prac- 
 tically unused in the United States, though 
 they exist in a few states. 
 
 FOREFAULT. In Scotch law. To for- 
 feit; to lose. 
 
 FO REG I FT. A premium for a lease. 
 
 FOREGOERS. Royal purveyors. 26 Bdw. 
 III. c. 5. 
 
 FOREHAND RENT. In English law. A 
 species of rent which is a premium given by 
 the tenant at the time of taking the lease, 
 as on the renewal of leases by ecclesiastical 
 corporations, which is considered in the na- 
 
FOREIGN 
 
 (381) 
 
 FOREIGN 
 
 ture of an improved rent. 1 Term R. 486; 3 
 Term R. 461; 3 Atk. 473; Crabb, Real Prop. 
 § 155. 
 
 FOREIGN. That which belongs to an- 
 other country; that which is strange. 1 Pet. 
 (U. S.) 343. 
 
 Every nation is foreign to all the rest; 
 and the several states of the American 
 Union are foreign to each other with respect 
 to their municipal laws. 2 Wash. C. C. (U. 
 S.) 282; 4 Conn. 517; 6 Conn. 480; 2 Wend. 
 (N. Y.) 411; 1 Dall. (Pa.) 458, 463; 6 Bin. 
 (Pa.) 321; 12 Serg. & R. (Pa.) 203; 2 Hill 
 (S. C.) 319; 1 D. Chip. (Vt.) 303; 7 T. B. 
 Mon. (Ky.) 585; 5 Leigh (Va.) 471; 3 Pick. 
 (Mass.) 293. And in respect to the distinc- 
 tion between foreign and inland bills of ex- 
 change. 112 U. S. 696; 41 Me. 302; 102 
 Mass. 141; 49 N. Y. 269. 
 
 But the reciprocal relations between the 
 national government and the several states 
 composing the United States are not con- 
 sidered as foreign, but domestic. 5 Pet. (U. 
 S.) 398; 6 Pet. (U. S.) 317; 9 Pet. (U. S.) 
 607; 4 Cranch (U. S.) 384; 4 Gill & J. (Md.) 
 1, 63. 
 
 Foreign Administrator. An adminis- 
 trator appointed in a state other than that 
 in which the decedent resided. Lee, Admn. 
 
 Foreign Answer. An answer not tri- 
 able in the county where it is made. St. 15 
 Hen. VI. c. 5; Blount. 
 
 Foreign Appose'r. An officer in the 
 
 exchequer who examines the sheriff's es- 
 treats, comparing them with the records, 
 and apposeth (interrogates) the sheriff what 
 he says to each particular sum therein. 4 
 Inst. 107; Blount; Cowell, "Foreigne." The 
 word is written "opposer," "opposeth,"' by 
 Lord Coke; and this signification corre- 
 sponds very well to the meaning given by 
 Blount, of examiner (interrogator) of the 
 sheriff's accounts. 
 
 Foreign Assignment. An assignment 
 
 made in a foreign country, or in another 
 state. 2 Kent, Comm. 405 et seq. 
 
 Foreign Attachment. A process by 
 
 virtue of which the property of an absent 
 debtor Is seized for the purpose of compelling 
 an appearance, and, in default of that, to 
 pay the claim of the plaintiff. See "Attach- 
 ment." 
 
 Foreign Bill of Exchange. A bill of 
 
 exchange drawn in one state or country, 
 and payable in another. N. Y. Neg. Inst. 
 Law, i 213. 
 
 Foreign Coins. Coins issued by the 
 
 authority of a foreign government. 
 
 There were several acts of congress passed 
 which rendered certain foreign gold and sil- 
 ver coins a legal tender in payment of debts 
 upon certain prescribed conditions as to fine- 
 ness and weight. In making a report in 
 1854 on this subject, the late director of the 
 mint, Mr. Snowdon, suggested that there 
 was no propriety or necessity for legalizing 
 the circulation of the coins of other coun- 
 tries, and that in no other nation, except 
 in the case of some colonies, was this mix- 
 ture of currencies admitted by law, either 
 on the score of courtesy or convenience; and 
 he recommended that if the laws which le- 
 
 galize foreign coins should be repealed, it 
 would be proper to require an annual assay 
 report upon the weight and fineness of such 
 foreign coins as frequently reach our shores, 
 with a view to settle and determine their 
 marketable value. Ex. Doc. No. 68, 33d 
 Cong., 1st Sess. This suggestion was subse- 
 quently repeated, and finally led to the 
 passage of the act of February 21, 1857 (11 
 U. S. Stat, at Large, 163), the third section 
 of which is as follows: "That all former 
 acts authorizing the currency of foreign gold 
 or silver coins, and declaring the same a 
 legal tender in payment for debts, are re- 
 pealed; but it shall be the duty of the di- 
 rector of the mint to cause assays to be made 
 from time to time of such foreign coins as 
 may be known to our commerce, to deter- 
 mine their average weight, fineness, and 
 value, and to embrace in his annual report a 
 statement of the results thereof." 
 
 Foreign Commerce. Commerce or 
 
 trade between the United States and foreign 
 countries. 
 
 Foreign Corporation. A corporation 
 
 created by or under the laws of another 
 state, government, or country. 2 Rev. St. N. 
 Y. p. 375, § 15. 
 
 Foreign County. Another county. It 
 
 may be in the same kingdom, it will still be 
 foreign. See Blount, "Foreign." 
 
 Foreign Creditor. One who resides 
 
 in a different state or country from the 
 debtor. 
 
 Foreign Divorce. A divorce granted 
 
 in a state or country other than that in 
 which one of the parties is domiciled. 
 
 A divorce granted in a state or country 
 other than that in which its validity is called 
 in question. 
 
 Foreign Domicile. A domicile gained 
 
 in a foreign country. 
 
 Foreign Enlistment Act. St. 59 Geo. 
 
 III. c. 69. for preventing British citizens 
 from enlisting as sailors or soldiers in the 
 service of a foreign power. Wharton; 4 
 Steph. Comm. 226. 
 
 Foreign Exchange. Exchange between 
 
 foreign states or countries. 
 
 Foreign Judgment. The judgment of 
 
 merchant shipping act of 1854 (17 & 18 
 Vict. c. 104), § 2, any ship employed in trad- 
 ing, going between some place or places in 
 the United Kingdom and some place or 
 places situate beyond the following limits, 
 that is to say: The coasts of the United 
 Kingdom, the islands of Guernsey, Jersey, 
 Sark, Alderney, and Man, and the continent 
 of Europe, between the river Elbe and Brest, 
 inclusive. Home-trade ship includes every 
 ship employed in trading and going between 
 places within the last-mentioned limits. Ra- 
 palje & L. 
 
 Foreign Judgment. The judgment of 
 
 a foreign tribunal. 
 
 The various states of the United States are 
 in this respect considered as foreign to each 
 other. In Louisiana it has been decided that 
 a judgment rendered by a Spanish tribunal 
 under the former government of that state 
 is not a foreign judgment. 4 Mart. (La.) 
 301, 310. 
 
 Foreign Jury. A jury obtained from 
 
FOREIGNER 
 
 (382) 
 
 FORESTALL 
 
 a county other than that in which issue was 
 joined. 
 
 Foreign Laws. The laws of a foreign 
 
 country. 
 
 Foreign Matter. Matter which must 
 
 be tried in another county. Blount. Mat- 
 ter done or to be tried in another county. 
 Cowell. 
 
 Foreign Plea. See "Plea." 
 
 Foreign Port. A port or place which 
 
 is wholly without the United States. 19 
 Johns. (N. Y.) 375; 2 Gall. (U. S.) 4, 7; 1 
 Brock. (U. S.) 235. A port without the ju- 
 risdiction of the court. 1 Dods. Adm. 201; 
 4 C. Rob. Adm. 1; 1 W. Rob. Adm. 29; 6 
 Exch. 886; 1 Blatchf. & H. (U. S.) 66, 71. 
 Practically, the definition has become, for 
 most purposes of maritime law, a port at 
 such distance as to make communication 
 with the owners of the ship very inconven- 
 ient or almost impossible. See 1 Pars. Mar. 
 Law, 512, note. 
 
 Foreign Service. In feudal law. That 
 
 whereby a mesne lord held of another, with- 
 out 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. Kltch. Cts. 299. Foreign service seems 
 also to be used for knight's service, or es- 
 cuage uncertain. Jacob. 
 
 Foreign Vessel. A vessel owned by 
 
 residents in, or sailing under the flag of, a 
 foreign nation. 
 
 Foreign Voyage. A voyage whose ter- 
 mination is within a foreign country. 3 
 Kent, Comm. 177, note. The length of the 
 voyage has no effect in determining its char- 
 acter, but only the place of destination. 1 
 Story (U. S.) 1; 3 Sumn. {U. S.) 342; 2 Bost. 
 Law Rep. 146; 2 Wall. C. C. (U. S.) 264; 1 
 Pars. Mar. Law, 31. 
 
 FOREIGNER. One who is not a citizen. 
 Cowell, 
 
 In the Old English Law. It seems to 
 
 have been used of every one not an inhab- 
 itant of a city, at least with reference to that 
 city. 1 H. Bl. 213. See, also, Cowell, "For- 
 eigne." 
 
 In the United States. Any one who 
 
 was born in some other country than the 
 United States, and who owes allegiance to 
 some foreign state or country. 1 Pet. (U. S.) 
 343, 349. An alien. See "Alien;" "Citizen." 
 
 FOREIN. An old form of "foreign" (9. 
 V. ) Blount. 
 
 FOREJUDGE. To deprive a man of the 
 thing in question by sentence of court. 
 
 Among foreign writers, says Blount, fore- 
 judge is to banish, to expel. In this latter 
 sense, the word is also used in English law 
 of an attorney who has been expelled from 
 court for misconduct. Cowell; Cunning- 
 ham. 
 
 FOREJUDGER. In English practice. A 
 judgment by which a man is deprived or put 
 out of a thing; a judgment of expulsion or 
 banishment. See "Forejudge." 
 
 FOREMAN. The presiding member of a 
 grand or petit jury. 
 
 FORENSIC. Belonging to courts of jus- 
 tice. 
 
 FORENSIC MEDICINE. Medical jurispru- 
 dence. "That science which teaches the ap- 
 plication of every branch of medical knowl- 
 edge to the purposes of the law; hence its 
 limits are, on the one hand, the requirements 
 of the law, and, on the other, the whole 
 range of medicine. Anatomy, physiology, 
 medicine, surgery, chemistry, physics, and 
 botany lend their aid as necessity arises; 
 and in some cases all these branches of 
 science are required to enable a court of law 
 to arrive at a proper conclusion on a con- 
 tested question affecting life or property." 
 Tayl. Med. Jur. 1. 
 
 FORENSIS. Forensic; belonging to court 
 Forensis homo, a man engaged in causes. A 
 pleader; an advocate. Vicat; Calv. Lex. 
 
 FORESAID. Used in Scotch law as 
 "aforesaid" is in English, and sometimes, in 
 a plural form, "foresaids." 2 How. St. Tr. 
 715. "Foresaidis" occurs in old Scotch rec- 
 ords. "The Loirdis assesouris forsaidis." 1 
 Pitc. Crim. Tr. pt. 1, p. 107. 
 
 FORESCHOKE. Farsaken; Cowell. 
 
 FORESHORE. That part of the land ad- 
 jacent to the sea which is alternately cov- 
 ered and left dry by the ordinary flow of the 
 tides, i. e., by the medium line between the 
 greatest and least range of tide, — spring 
 tides and neap tides. In England it forms 
 part of the adjoining county. 
 
 FOREST. A certain territory of wooded 
 ground and fruitful pastures, privileged for 
 wild beasts and fowls of forest, chase, and 
 warren, to rest and abide in the safe protec- 
 tion of the prince for his princely delight 
 and pleasure, having a peculiar court and 
 officers. Manw. For. Laws, c. 1, No. 1; 
 Termes de la Ley; 1 Bl. Comm. 289. 
 
 A royal hunting ground which lost its pe- 
 culiar character with the extinction of Its 
 courts, 01- when the franchise passed Into the 
 hands of a subject. Spelman; Cowell; 
 Manw. For. Laws, c. 1; 2 Bl. Comm. 83. 
 
 FOREST COURTS. In English law. 
 Courts instituted for the government of the 
 king's forests in different parts of the king- 
 dom, and for the punishment of all injuries 
 done to the king's deer or venison, to the 
 vert or greensward, and to the covert in 
 which the deer were lodged. They com- 
 prised the courts of attachments, of regard, 
 of swein mote, and of justice seat; but 
 since the revolution of 1688, these courts, it 
 is said, have gone into absolute desuetude. 
 3 Steph. Comm. 439-441; 3 Bl. Comm. 71-74. 
 But see 8 Q. B. 981. 
 
 FORESTAGIUM. A tribute payable to the 
 king's foresters. Cowell. 
 
 FORESTALL. To Intercept or obstruct a 
 passenger on the king's highway. Cowell; 
 Blount. To beset the way of a tenant so 
 aF to prevent his coming on the premises. 3 
 Bl. Comm. 170. To Intercept a deer on his 
 
FORESTALLER 
 
 (383) 
 
 FORFEITURE 
 
 ■way to the forest before he can regain it. 
 Cowell. 
 
 To commit the crime of forestalling the 
 market. 
 
 FORESTALLER. One who commits the 
 offense of forestalling. Used, also, to denote 
 the crime itself, namely, the obstruction of 
 the highway, or hindering a tenant from 
 coming to his land. 3 BL Comm. 170. 
 
 FORESTALLING. Obstructing the way; 
 intercepting a person on the highway. 
 
 FORESTALLING THE MARKET. Buy- 
 ing victuals on their way to the market be- 
 fore they reach it, with the intent to sell 
 again at a higher price. Cowell; Blount; 4 
 Bl. Comm. 158. Every device or practice, by 
 act, conspiracy, words, or news, to enhance 
 the price of victuals or other provisions. 3 
 Inst. 19t); Bac. Abr. ; 1 Russ. Crimes, 169; 4 
 Bl. Comm. 158; Hawk. P. C. bk. 1, c. 80, § 1. 
 See 13 Viner, Abr. 430; 1 East, 132; 14 East, 
 406; 15 East, 511; 3 Maule & S. 67; Dane, 
 Abr. Index. 
 
 FORESTARIUS. A forester; an officer 
 who takes care of the woods and forests. 
 De forestario apponendo, a writ which lay 
 to appoint a forester to prevent further 
 commission of waste when a tenant in dower 
 had committed waste. Bracton, 316; Du 
 Cange. 
 
 FORESTER. A sworn officer of the for- 
 est, appointed by the king's letters patent to 
 walk the forest, watching both the vert and 
 the venison, attaching and presenting all 
 trespassers against them within their own 
 bailiwick or walk. These letters patent 
 were generally granted during good behav- 
 ior; but sometimes they held the office in 
 fee. Blount; Cowell. 
 
 FORETHOUGHT FELONY. In Scotch 
 law. Murder committed in consequence of 
 a previous design. Ersk. bk. 4, tit. 4, c. 50: 
 Bell, Diet. 
 
 FORFANG. A taking beforehand; a tak- 
 ing provisions from any one in fairs or mar- 
 kets before the king's purveyors are served 
 with necessaries for his majesty. Blount; 
 Cowell. 
 
 FORFEIT. To lose as the penalty of 
 some misdeed or negligence. The word in- 
 cludes not merely the idea of losing, but also 
 of having the property transferred to an- 
 other without the consent of the owner and 
 wrongdoer. 
 
 This is the essential meaning of the word, 
 whether it be that an offender is to forfeit 
 a sum of money, or an estate is to be for- 
 feited to a former owner for a breach of 
 condition, or to the king for some crime. 
 Cowell says that forfeiture is general and 
 confiscation a particular forfeiture to the 
 king's exchequer. The modern distinction, 
 however, seems to refer rather to a differ- 
 ence between forfeiture as relating to acts 
 of the owner, and confiscation as relating to 
 acts of the government. 1 Story (U. S.) 
 
 134; 13 Pet. (U. S.) 157; 11 Johns. (N. Y.) 
 293. Confiscation is more generally used of 
 an appropriation of an enemy's property; 
 forfeiture, of the taking possession of prop- 
 erty to which the owner, who may be a 
 citizen, has lost title through violation of 
 law. See 1 Kent, Comm. 67; 1 Story (U. 
 S.) 134. 
 
 FORFEITURE. A punishment annexed by 
 law to some illegal act or negligence in the 
 owner of lands, tenements, or hereditaments, 
 whereby he loses all his interest therein, and 
 they become vested in the party injured as a 
 recompense for the wrong which he alone, 
 or the public together with himself, hath 
 sustained. 2 Bl. Comm. 267. A sum of 
 money to be paid by way of penalty for a 
 crime. 21 Ala. (N. S.) 672; 10 Grat. (Va.) 
 700. See "Confiscate." 
 
 Forfeiture by alienation. By the English 
 law, estates less than a fee may be forfeited 
 to the party entitled to the residuary inter- 
 est by a breach of duty in the owner of the 
 particular estate. 2 Bl. Comm. 274. 
 
 In this country, such forfeitures are al- 
 most unknown, and the more just principle 
 prevails that the conveyance by the tenant 
 operates only on the interest which he pos- 
 sessed, and does not affect the remainder- 
 man or reversioner. 4 Kent, Comm. 81, 82. 
 424; 3 Dall. (Pa.) 486; 5 Ohio, 30; 1 Pick. 
 (Mass.) 318; 1 Rice (S. C.) 459; 2 Rawle 
 (Pa.) 168; 1 Wash. (Va.) 381; 11 Conn. 553; 
 22 N. H. 500; 21 Me. 372. See, also, Stearns. 
 Real Actions, 11; 4 Kent, Comnr. 84; 2 
 Sharswood, Bl. Comm. 121, note; Williams, 
 Real Prop. 25; 5 Dane, Abr. 6-8; 1 Washb. 
 Real Prop. 92, 197. 
 
 Forfeiture for crimes. Under the consti- 
 tution and laws of the United States (Const, 
 art. 3, § 3; Act April 30, 1790, § 24 [1 Story, 
 U. S. Laws, 88]), forfeiture for crimes is 
 nearly abolished, and when it occurs, the 
 I state recovers only the title which the owner 
 j had. 4 Mason (U. S.) 174. See, also, Dalr. 
 ! Feud. Prop. c. 4, pp. 145-154; Fost. Crim. 
 Law. 95; 1 WaShb. Real Prop. 92. 
 
 Forfeiture by nonperformance of condi- 
 tions. An estate may be forfeited by a 
 breach or nonperformance of a condition an- 
 nexed to the estate, either expressed in the 
 deed at its original creation, or implied by 
 law, from a principle of natural reason. 2 
 Bl. Comm. 281; Litt. § 361; 1 Prest. Est. 478; 
 White & T. Lead. Cas. 794, 795; 5 Pick. 
 (Mass.) 528; 2 N. H. 120; 5 Serg. & R. (Pa.) 
 375; 32 Me. 394; 18 Conn. 535; 12 Serg. & 
 R. (Pa.) 190. Such forfeiture may be 
 waived by acts of the person entitled to take 
 advantage of the breach. 1 Conn. 79; 1 
 Johns. Cas. (N. Y.) 126; Walk. Am. Law, 
 299; 1 Washb. Real Prop. 454. 
 
 Forfeiture by waste. Waste is a cause of 
 forfeiture. 2 Bl. Comm. 283; 2 Inst. 299; 
 1 Washb. Real Prop. 118. 
 
 See, generally, 2 Bl. Comm. c. 18; 4 Bl. 
 Comm. 382; Bouv. Inst. Index; 2 Kent, 
 Comm. 318; 4 Kent, Comm. 422; 10 Viner, 
 Abr. 371, 394; 13 Viner, Abr. 436; Bac. Abr. 
 "Forfeiture ; " Comyn, Dig.: Dane, Abr.: T 
 Brown, Civ. Law, 252; Considerations on the 
 Law of Forfeiture for High Treason (Lon- 
 
FORFEITURE OP A BOND 
 
 (384) 
 
 FORISJURARE 
 
 don Ed. 1746); 1 Washb. Real Prop. 91, 93, 
 
 118, 197. 
 
 FORFEITURE OF A BOND. A failure to 
 perform the condition on which the ohligee 
 was to be excused from the penalty in the 
 bond. Courts of equity and of law in mod- 
 ern practice will relieve from the forfeiture 
 of a bond; and, upon proper cause shown, 
 criminal courts will, in general, relieve from 
 the forfeiture of a recognizance to appear. 
 See 3 Yeates (Pa.) 93; 2 Wash. C. C. (U. 
 S.) 442; 2 Blackf. (Ind.) 104, 200; 1 111. 
 257. 
 
 FORFEITURE OF MARRIAGE. A penalty 
 incurred by a ward in chivalry when he or 
 she married contrary to the wishes of his or 
 her guardian in chivalry. 2 Bl. Comm. 70. 
 
 FORFEITURES ABOLITION ACT. An- 
 other name for the English act of 1870, 
 abolishing forfeitures on conviction of fel- 
 ony. 
 
 FORGAVE L. A small rent reserved in 
 money; a quit rent. 
 
 FORGERY. The false making, with in- 
 tent to defraud, of any writing which, if 
 genuine, might apparently be of legal effica- 
 cy, or the foundation of a legal liability. 2 
 Bish. New Crim. Law, § 533. 
 
 Bishop (2 New Crim. Law, § 533) has col- 
 lected seven definitions of forgery, and just- 
 ly remarks that the books abound in defini- 
 tions. Coke says the term is "taken meta- 
 phorically from the smith, who beateth up- 
 on his anvil, and forgeth what fashion and 
 shape he will." 3 Inst. 169. 
 
 The elements are (]) a false making (46 
 N. H. 266; 28 Minn. 52), but this may con- 
 sist of a material alteration (64 Wis. 432) 
 
 (2) of an instrument apparently capable of 
 defrauding (20 Iowa, 541, 118 Mass. 685) 
 
 (3) with intent to defraud (51 Vt. 105, 15 
 M&ss. 526). 
 
 FORHERDA. In old records. A herdland, 
 headland, or foreland. Cowell. 
 
 FORINSECUM MANERIUM. That part of 
 a manor which lies without the town, and is 
 not included within the liberties of it. 
 Par. Ant. 351. 
 
 FORINSECUM SERVITIUM (Lat.) The 
 payment of extraordinary aid. Kennett. 
 
 FORINSIC (Lat. forinsecus). Outward; on 
 the outside; without; foreign; belonging to 
 another manor. Silio forinsecus, the out- 
 ward ridge or furrow. Servitium forinse- 
 cum, the payment of aid, scutage, and other 
 extraordinary military services. Forinse- 
 cum manerium, the manor, or that part of it 
 which lies outside the bars or town, and is 
 not included within the liberties of it. Cow- 
 ell; Blount; Cunningham; Jacob, "Foreign 
 Se^'vice;" 1 Reeve, Hist. Bng. Law, 273. 
 
 FOR IS. Abroad; out of doors; on the out- 
 side of a place; without; extrinsic. 
 
 FORISBANITUS, or FORBANNITUS. Ban- 
 ished; outlawed. Spelman. 
 
 FORIS DISPUTATIONES. In civil law. 
 Arguments in court; disputations or argu- 
 ments before a court. 1 Kent, Comm. 530; 
 Vicat, "Disputatio." 
 
 FORISFACERE (Lat.) To forfeit; to lose 
 on account of crime. It may be applied not 
 only to estates, but to a variety of other 
 things. In precisely the popular sense of the 
 word "forfeit." Spelman; Du Cange. 
 
 To confiscate. Du Cange; Spelman. 
 
 To commit an offense; to do a wrong; to 
 do something beyond or outside of {foris) 
 what is right (extra rationem). Du Cange. 
 To do a thing against or without law. Co. 
 Litt. 59a. 
 
 To disclaim. Du Cange. 
 
 FORISFACTUM (Lat.) Forfeited. Bma 
 forisfacta, forfeited goods. 1 Bl. Comm. 299. 
 A crime. Du Cange; Spelman. 
 
 FORISFACTURA (Lat.) A crime or of- 
 fense through which property is forfeited. 
 Leg. Edw. Conf. e. 32. 
 
 A fine or punishment in money. 
 
 Forfeiture; the loss of property or life in 
 consequence of crime. Spelman. 
 
 Forisfactura plena. A forfeiture of all a 
 man's property; things which were forfeited. 
 Du Cange; Spelman. 
 
 FORISFACTUS (Lat.) A criminal. One 
 who has forfeited his life by commission of 
 a capital offense. Spelman; Leg. Rep. c. 77; 
 Du Cange. 8i quispiam forisfactus popos- 
 cerit refjis- mincricnrdiam, etc., if any crim- 
 inal shall have asked pardon of the king, 
 etc. Leg. Edw. Conf. c. 18. 
 
 Forisfactus servus. A slave who has been 
 a free man, but has forfeited his freedom by 
 crime. Leg. Athelstan, c. 3; Du Cange. 
 
 FORISFAMILIATED, or FORISFAMILI- 
 atus. In old English law. Portioned off. A 
 son was forisfamiliated when he had a por- 
 tion of his father's estate assigned to him 
 during his father's life, in lieu of his share 
 of the inheritance, when it was done at his 
 request, and he assented to the assignment. 
 The word etymologically denotes put out of 
 the family, emancipated. 
 
 One who Is no longer an heir of the parent. 
 Du Cange; Spelman; Cowell. Similar in 
 some degree to the modern practice of ad- 
 vancement. 
 
 FORISJUDICATIO (Lat.) In old English 
 law. Forejudger; a forejudgment; a judg- 
 ment of court whereby a man is put out of 
 possession of a thing. Co. Litt. 100b; Cun- 
 ningham. 
 
 FORISJUDICATUS (Lat.) Forejudged; 
 sent from court; banished; deprived of a 
 thing by judgment of court. Bracton, 250b; ^ 
 Co. Litt. 100b; Du Cange. 
 
 FORISJURARE (Lat.) To forswear; to 
 abjure; to abandon. 
 
 Forisjunire parentilam. To remove one's 
 self from parental authority. The person 
 
FORJUDGE 
 
 (385) 
 
 FORMER ADJUDICATION 
 
 who did this lost his rights as heir. Du 
 Cange; Leg. Hen. I. c. 88. 
 
 Provinciam forisjurare. To forswear the 
 country. Spelman; Leg. Edw. Conf. c. 6. 
 
 FORJUDGE. See "Forejudge." 
 
 FORJURER (Law Fr.) In old English 
 law. To forswear; to ahjure. Forjurer 
 royalme, to abjure the realm. Britt. cc. 1, 
 16. 
 
 FORLER LAND. Land in the diocese oi' 
 Hereford, which had a peculiar custom at- 
 tached to it, but which has been long since 
 disused, although the name is retained. 
 Butl. Surv. 56. 
 
 FORM. In practice. The model of an in- 
 strument or legal proceeding, containing the 
 substance and the principal terms, to be used 
 in accordance with the laws. 
 
 The legal order or method of legal pro- 
 ceedings or construction of legal instru- 
 ments. 
 
 FORMS OF ACTION. The various classes 
 of personal actions at common law, as as- 
 sumpsit, trespass, case, detinue, trover, etc. 
 (g. V.) The forms of action are now abol- 
 ished in England by the judicature acts of 
 1873 and 1875, and in most of the United 
 States. 
 
 FORMA DAT ESSE. Form gives being. 
 Lord Henley, C, 2 Eden, 99. 
 
 FORMA LEGALIS FORMA ESSENTIAL- 
 is. Legal form is essential form. 10 Coke, 
 100; 9 C. B. 493; 2 Hopk. 319. 
 
 FORMA NON OBSERVATA, INFERTUR 
 adnullatio actus. When form is not observ- 
 ed, a nullity of the act is inferred. 12 
 Coke, 7. 
 
 FORMA PAUPERIS. See "In Forma Pau- 
 peris." 
 
 FORMALITIES. In England, robes worn 
 by the magistrates of a city or corporation, 
 etc., on solemn occasions. Bnc. Lond. 
 
 FORMALITY. The conditions which must 
 be observed in making contracts, and the 
 words which the law gives to be used in or- 
 der to render them valid. It also signifies 
 the conditions which the law requires to 
 make regular proceedings. 
 
 FORM ATA. Canonical letters. 
 
 FORMATA BREVIA. Formed writs; writs 
 of form. See "Brevia Formata." 
 
 FORMED ACTION. An action for which 
 a form of words is provided, which must be 
 exactly followed. 10 Mod. 140. 
 
 FORMEDON. An ancient writ provided 
 by St. Westminster II. (13 Edw. I.) c. 1, 
 for him who hath right to lands or tene- 
 ments by virtue of a gift in tail. Stearns, 
 Real Actions, 322. 
 
 It is a writ in the nature of a writ of right, 
 and is the highest remedy which a tenant 
 in tail can have. Co. Lift. 316. 
 
 This writ lay for those interested in an 
 estate tail who were liable to be defeated 
 of their right by a discontinuance of the 
 estate tail, who were not entitled to a writ 
 of right absolute, since none but those who 
 claimed in fee simple were entitled to this. 
 Fitzh. Nat. Brev. 255. It is called "forme- 
 don" because the plaintiff in it claimed per 
 formam doni. 
 
 The writ was abolished in England by St. 
 3 & 4 Wm. IV. c. 27. 
 
 Formedon in the Descender. A writ of 
 
 formedon which lies where a gift is made 
 in tail, and the tenant in tail aliens the 
 lands, or is disseised of them and dies, for 
 the heir in tail to recover them, against 
 the actual tenant of the freehold. Fitzh. 
 Nat. Brev. 211; Lift. § 595. 
 
 If the demandant claims the inheritance 
 as an estate tail which ought to come to him 
 by descent from some ancestor to whom it 
 was first given, his remedy is by a writ of 
 formedon in the descender. Stearns, Real 
 Actions, 322. 
 
 It must have been brought within twenty 
 years from the death of the ancestor who 
 was disseised. 21 Jac. I. c. 16; 3 Brod. & 
 B. 217; 6 East, 83; 4 Term R. 300; 2 Shars- 
 wood, Bl. Comm. 193, note. 
 
 Formedon in the Remainder. A writ of 
 
 formedon which lies where lands are given 
 to one for life or in tail, with remainder to 
 another in fee or in tail, and he who hath 
 the particular estate dies without issue, and 
 a stranger intrudes upon him in remainder, 
 and keeps him out of possession. Fitzh. Nat. 
 Brev. 211; Stearns, Real Actions, 323; Litt. 
 § 597; 3 Bl. Comm. 293. 
 
 Formedon in the Reverter. A writ of 
 
 formedon which lies where there is a gift 
 in tail, and afterwards, by the death of the 
 donee or his heirs without issue of his body, 
 the reversion falls in upon the donor, his 
 heirs or assigns. 
 
 In this case, the demandant must suggest 
 the gift, his own right as derived from the 
 donor, and the failure of heirs of the donee. 
 3 Sharswood, Bl. Comm. 293; Stearns, Real 
 Actions, 323; B'itzh. Nat. Brev. 212; Litt. § 
 597. 
 
 FORMER ADJUDICATION. A previous 
 determination of the matter in litigation by 
 a competent court between the same par- 
 ties. To constitute a former adjudication 
 wbich will bar subsequent litigation, it is 
 essential 
 
 (1) That the judgment be final and upon 
 the merits. 115 111. 29; 103 Mass. 280; 78 
 Mich. 234; 74 N. Y. 449; 82 N. Y. 55; 94 U. 
 S. 351. Thus, a mere nonsuit (48 Me. 353) 
 or dismissal because the action is prema- 
 ture (35 N. Y. 279) is not a bar to a sub- 
 sequent action. 
 
 (2) The court must have had jurisdiction 
 of the parties and the subject matter (93 U. 
 S. 277; 132 111. 213), but it may be a for- 
 eign court (26 N. Y. 146). 
 
 (3) The same issues must have been in- 
 volved (25 N. Y. 613), but the issues in- 
 clude every point which is either expressly 
 in issue, or which must have been decided 
 to support the judgment (24 Wis. 124. See 
 
FORMER RECOVERY 
 
 (386) 
 
 FORSWEAR 
 
 2 Smith's Lead. Cas. 663, and note) ; and 
 the adjudication is conclusive not only as 
 to what was actually litigated, but as to all 
 that might have been litigated under the 
 pleadings and issues made (70 111. 385; 102 
 N. Y. 452). 
 
 (4) As respects adjudications in personam, 
 the adjudication must have Been between 
 the same parties or their privies (24 How. 
 [U. S.] 241), and in the same capacity (58 
 N. Y. 463), but their position as plaintiff and 
 defendant need not be the same if they 
 be adversary parties (86 N. Y. 390; 61 Iowa, 
 290). 
 
 Privies of a party are bound to the same 
 extent as the party himself. See "Privy." 
 69 111. 457; 68 Iowa, 145. 
 
 Lessor and lessee (46 Mo. 444), bailor and 
 bailee (12 N. Y. 343), assignor and assignee 
 (17 Mass. 365), mortgagor and mortgagee 
 (105 N. Y. 39), ancestor and heir (61 Ala. 
 472), are ordinarily privies, but husband and 
 wife (110 N. Y. 394), or guardian and ward 
 (27 Pa.' St. 226), are not. 
 
 A judgment in rem, is conclusive as to the 
 property in question and the title thereto 
 without issues or parties. 23 Wall. (U. S.) 
 463. 
 
 FORMER RECOVERY. A recovery in a 
 former action. See "Former Adjudication." 
 
 FORMIDO PERICULl (Lat.) Fear of dan- 
 ger. 1 Kent, Comm. 23; Huber de Jur. Civ. 
 lib. 3, c. 7, § 4. 
 
 FORMULA. In common-law practice, a 
 set form of words used in judicial proceed- 
 ings. 
 
 In Civil Law. An action. Calv. Lex. 
 
 FORMULAE. In Roman law. When the 
 legis actiones were proved to be inconven- 
 ient, a mode of procedure called "per formu- 
 las" (i. e., by means of formulae) was grad- 
 ually introduced, and eventual>y the legis ac- 
 tiones were abolished by the Lex Aebutia, 
 B. C. 164, excepting in a very few exceptional 
 matters. The formulae were four in num- 
 ber, namely: (1) The Demonsfroiio, where- 
 in the plaintiff stated, i. e., showed, the facts 
 out of which his claim arose; (2) the Inten- 
 tio, where he made his claim against the 
 defendant; (3) the Adjudicatio, wherein the 
 judex was directed to assign or adjudicate 
 the property, or any portion or portions 
 thereof, according to the rights of the par- 
 ties; and (4) the Gondemnatio, in which the 
 judex was authorized and directed to con- 
 demn or to acquit according as the facts 
 were or were not proved. These formulae 
 were obtained from the magistrate (in jure), 
 and were thereafter proceeded with before 
 the judex (i«./it(Zioio). Brown. 
 
 FORMULARIES. A collection of the 
 forms of proceedings among the Franks and 
 other early European nations. Co. Lltt. But- 
 ler's note 77. 
 
 FORNAGIUM. The fee taken by a lord of 
 his tenant, who was bound to bake in the 
 lord's common oven (in furno domini), or 
 for a commission to use his own. 
 
 FORNICATION. In criminal law. Unlaw- 
 ful carnal knowledge by an unmarried per- 
 son of another, whether the latter be mar- 
 ried or unmarried. 
 
 Fornication is distinguished from "adul- 
 tery" by the fact that the guilty person is 
 not married. Four cases of unlawful inter- 
 course may arise: Where both parties are 
 married; where the man only is married; 
 where the woman only is married; where 
 neither is married. In the first case, such 
 intercourse must be adultery; in the second 
 case the crime is fornication only on the 
 part of the woman, but adultery on the part 
 of the man; in the third case it is adultery 
 in the woman, and fornication (by statute, 
 in some states, adultery) in the man; in the 
 last case it is fornication only in both par- 
 ties. 
 
 In some states it is indictable by statute. 
 6 Vt. 311; 2 Tayl. (N. C.) 165; 2 Grat. (Va.) 
 555. 
 
 FORNO. In Spanish law. An oven. Las 
 Partidas, pt. 3, tit. 32. lib. 18. 
 
 FORO. In Spanish law. The place where 
 tribunals hear and determine causes, — exer- 
 cendarum litium locus. This word, accord- 
 ing to Varro, is derived from ferendo, and 
 is so called because all lawsuits have refer- 
 ence to things that are vendible, which pre- 
 supposes the administration of justice to 
 take place in the markets. 
 
 FOROS. In Spanish law. Emphyteutic 
 rents. Schmidt, Civ. Law, 309. 
 
 FORPRISE. An exception; reservation; 
 excepted; reserved. Anciently, a term oif 
 frequent use in leases and conveyances. 
 Cowell; Blount. 
 
 In another sense, the word is taken for 
 any exaction. Cunningham. 
 
 FORSPEAKER. An attorney or advo- 
 cate; one who speaks for another. Blount. 
 
 FORSTAL. An intercepting or stopping 
 in the highway. See "Forestall." 
 
 FORSTELLARIUS EST PAUPERUM DE- 
 pressor, et totius communitatis at patriae 
 publicus inimicus. A forestaller is an op- 
 pressor of the poor, and a public enemy to 
 the whole community and the country. 3 
 Inst 196. 
 
 FORSWEAR. In criminal law. To swear 
 to a falsehood. 
 
 This word has not the same meaning as 
 "perjury." It does not, ex vi termini, sig- 
 nify a false swearing before an officer or 
 court having authority to administer an 
 oath, on an issue. A man may be forsworn 
 by making a false oath before an incompe- 
 tent tribunal, as well as before a lawful 
 court. Hence, to say that a man is forsworn 
 will or will not be slander, as the circum- 
 stances show that the oath was or was not 
 taken before a lawful authority. Heard, 
 Libel & S. §§ 16, 34; Cro. Car. 378; Lutw. 
 292; 1 Rolle, Abr. 39, pi. 7; Bac. Abr. "Slan- 
 der" (B 3); Cro. Ellz. 609; 1 Johns. (N. Y.) 
 505; 2 Johns. (N. Y.) 10; 13 Johns. (N. Y.) 
 48, 80; 12 Mass. 496; 1 Hayw. (N. C.) 116. 
 
FORTHCOMING 
 
 (387) 
 
 FORUM 
 
 FORTHCOMING. In Scotch law. The ac- 
 tion by which an arrestment (attachment) 
 of goods is made available to the creditor or 
 holder. 
 
 The arrestee and common debtor are called 
 up before the Judge, to hear sentence given 
 ordering the debt to be paid or the arrested 
 goods to be given up to the creditor arrest- 
 ing. Bell, Diet. 
 
 FORTHCOMING BOND. A bond given for 
 the security of the sheriff, conditioned to 
 produce the property levied on when re- 
 quired. 2 Wash. (Va.) 189; 11 Grat. (Va.) 
 522. 
 
 FORTHWITH. As soon as, by reasona- 
 ble exertion, confined to the object, it may 
 be accomplished. This is the import of the 
 term. It varies, of course, with every par- 
 ticular case. 4 Tyrwh. 837; Style, Pr. Reg. 
 452, 453. 
 
 In a rule of court it has been construed 
 to mean twenty-four hours. 2 Edw. Ch. (N. 
 Y.) 328. But no such construction has been 
 given to the term when used in a statute. 
 "Without delay" is a reasonable meaning in 
 a statute. 39 How. Prac. (N. Y.) 392, af- 
 firming 11 Abb. Prac. (N. Y.) 473; 20 How. 
 Prac. (N. Y.) 222. 
 
 FORT I A (Lat.) A word of art, signifying 
 the furnishing a weapon of force to do the 
 fact, and by force whereof the fact was com- 
 mitted, and he that furnished it was not 
 present when the act was done. 2 Inst. 182. 
 
 The general meaning of the word is an 
 unlawful force. Spelman; Du Gauge. 
 
 FORTIA FRISCA. Fresh force («. v.) 
 
 FORTILITY. A fortified place; a castle; 
 a bulwark. Co'well. 
 
 FORTIOR (Lat.) Stronger. A term ap- 
 plied, in the law of evidence, to that species 
 of presumption, arising from facts shown in 
 evidence, which is strong enough to shift the 
 burden of proof to the opposite party. Bur- 
 rill, Circ. Bv. 64, 66. 
 
 FORTIOR EST CUSTODIA LEGIS QUAM 
 homlnis. The custody of the law is strong- 
 er than that of man. 2 Rolle, 325. 
 
 -FORTIOR ET POTENTIOR EST DISPOSI- 
 
 tio legis quam hominis. The disposition of 
 the law is stronger and more powerful than 
 that of man. Co. Litt. 234; Broom, Leg. 
 Max. (3d London Ed.) 622; 10 Q. B. 944; 
 18 Q. B. 87; 10 C. B. 561; 3 H. L. Cas. 
 507; 13 Mees. & W. 285, 306; 8 Johns. (N. 
 Y.) 401. 
 
 FORTIORI. See "A Fortiori." 
 
 FORTIS. Strong. Fortis et sana, strong 
 and sound; staunch and strong; as a vessel. 
 Towns. PI. 227. 
 
 FORTLETT. A place or port of some 
 strength; a little fort. Old Nat. Brev. 45. 
 
 FORTUIT. Accidental. 
 
 FORTUITOUS COLLISION. An accident- 
 al collision. 
 
 FORTUITOUS EVENT. In civil law. That 
 which happens by a cause which cannot be 
 resisted. Code La. art. 2522, No. 7. 
 
 That which neither of the parties has oc- 
 casioned or could prevent. Lois des Bat. pt. 
 2, c. 2. An unforeseen event which cannot 
 be prevented. Diet, de Jur. "Cas Fortuit." 
 
 There is a difference between a fortuitous 
 event, or inevitable accident, and irresistible 
 force. By the former, commonly called the 
 "act of God," is meant any accident produced 
 by physical causes which are irresistible; 
 such as a loss by lightning or storms, by 
 the perils of the seas, by Inundations and 
 earthquakes, or by sudden death or illness. 
 By the latter is meant such an interposition 
 of human agency as is, from its nature and 
 power, absolutely uncontrollable. Of this 
 nature are losses occasioned by the inroads 
 of a hostile army, or by public enemies. 
 Story, Bailm. § 25; Lois des Bat. pt. 2, c. 2, 
 § 1. 
 
 Fortuitous events are fortunate or unfor- 
 tunate. The accident of finding a treasure 
 is a fortuitous event of the first class. Lois 
 des Bat. pt. 2, c. 2, § 2. 
 
 Involuntary obligations may arise in con- 
 .sequence of fortuitous events. For example, 
 when, to save a vessel from shipwreck, it is 
 necessary to throw goods overboard, the loss 
 must be borne in common. There arises, in 
 this case, between the owners of the vessel 
 and of the goods remaining on board, an ob- 
 ligation to bear proportionably the loss 
 which has been sustained. Lois des Bat. pt. 
 2, c. 2, § 2. 
 
 See, in general. Dig. 50. 17. 23; Id. 16. 3. 
 1; Id. 19. 2. 11; Id. 44. 7. 1; Id. 18. 6. 10; 
 Id. 13. 6. 18; Id. 26. 7. 50. 
 
 FORTUNAM FACIUNT JUDICEM. They 
 make fortune the judge. Co. Litt. 167. Spo- 
 ken of the process of making partition 
 among coparceners by drawing lots for the 
 several purparts. 
 
 FORUM. 
 
 At Common Law. A place; a place 
 
 of jurisdiction; the place where a remedy is 
 sought; jurisdiction; a court of justice. 
 
 Forum conscientiae. The conscience. 
 
 Forym. contciitiofudii. A court. 3 Bl. Comm. 
 211. 
 
 Forum contractus. The courts of the place 
 of making a contract. 2 Kent, Comm. 463. 
 
 Forum domesticum. A domestic court. 1 
 W. Bl. 82. 
 
 Forum domicilii.. The cour'^ of the place 
 of domicile. 2 Kent, Comm. 46"?. 
 
 Forum ecclcsiasticiim. An ecclesiastical 
 court. 
 
 Forum rei gestae. The court of the place 
 of transaction. 2 Kent, Comm. 463. 
 
 Forunt rci sitae. The court of the place 
 where the thing is situated. 
 
 Forum sreulare. A secular court. 
 
 Forum liqcantiae rei. The court or juris- 
 diction of the county to which defendant 
 owes allegiance. 
 
 Forum repinm. The king's court. St. 
 Westminster II. c. 43. 
 
 Forum rei, or Rei sitae (Law I^at.) The 
 forum or court of the thing (res, rei) ; 
 
FORUM 
 
 (388) 
 
 FORUM 
 
 the court of the place where a thing claimed 
 is; the i tribunal where the property Is. 
 Story, Confl. Laws, § 325k. The place where 
 a thing in controversy is situated, consid- 
 ered as a place of jurisdiction and remedy. 
 
 2 Kent, Comm. 463. 
 
 In Roman Law. The paved open space 
 
 In cities, particularly in Rome, where were 
 held the solemn business assemblies of the 
 people, the markets, the exchange (whence 
 cedere foro, to retire from 'change, equiva- 
 lent to "to become bankrupt"), and wtere 
 the magistrates sat to transact the busi- 
 ness of their office. It came afterwards to 
 mean any place where causes were tried, 
 locus exercendarum litium. Isidor. lib. 18, 
 Grig. A court of justice. 
 
 The obligation and the right of a person 
 to have his case decided by a particular 
 court. 
 
 It is often synonymous with that signifi- 
 cation of judicium which corresponds to our 
 word "court" (q. v.) in the sense of juris- 
 diction; e. g., foro interdicere (1. 1, § 13, 
 D. 1. 12; C. 9, § 4; D. 48. 19) ; fori praescrip- 
 tio (1. 7, pr. D. 2, 8; 1. 1, C. 3, 24); forum 
 rei accusator xequit/ur (1. 5, pr. C. 3, 13). In 
 this sense, the forum of a person means 
 both the obligation and the right of that 
 person to have his cause decided by a par- 
 ticular court. 5 Gluck, Band. 237. What 
 court should have cognizance of the cause 
 depends, in general, upon the person of the 
 defendant, or upon the person of some one 
 connected with the defendant. 
 
 By modern writers upon the Roman law, 
 jurisdiction dependent on the person of the 
 defendant is distinguished as (1) that of 
 common right, forum commune, and (2) that 
 of special privilege, forum privilegiatum. 
 
 (1) Forum commune. The jurisdiction of 
 common right was either general, forum 
 generate, or special, forum spccialr. 
 
 (a) Forum generalc. General jurisdiction 
 was of two kinds, the forum, originis, which 
 was that of the birthplace of the party, and 
 the forum domicilii, that of his domicile. 
 The forum originis was either commune or 
 proprium. The former was that legal status 
 which all free-born subjects of the empire, 
 wherever residing, had at Rome when they 
 were found there, and had not the jus re- 
 rocandi domum (i. r., the right of one ab- 
 sent from his domicile of transferring to the 
 forum, domicilii a suit instituted against 
 him in the place of his temporary sojourn). 
 L. 2, §§ 3, 4, 5, D. 5, 1; 1. 28, § 4, D. 4, 6; 
 
 3 Gluck, Pand. 188. The forum- originis pro- 
 prium, or forum originis speciale, was the 
 court of that place of which at the time of 
 the party's birth his father was a citizen, 
 though that might possibly be neither his 
 own birthplace, nor the actual domicile of 
 his father. 
 
 Forum domicilii. The place of the domi- 
 cile exercised the greatest influence over the 
 rights of the party. As to what constitutes 
 domicile, see "Domicile." In general, one 
 was subject to the laws and courts of his 
 domicile alone, unless specially privileged. 
 K 29, D. 50, 1. 
 
 (b) Forum speciale. Particular jurisdic- 
 
 tion. These were very numerous. The more 
 important are: Forum continentiae causa- 
 rum. Sometimes two or more actions or dis- 
 puted questions are so connected that they 
 cannot advantageously be tried separately, 
 although in strictness they belong to differ- 
 ent jurisdictions. In such cases the piodern 
 civil law permits them to be determined in 
 a single court, although such court would be 
 incompetent in regard to a portion of them 
 taken singly. Forum contractus, the court 
 having cognizance of the action on a con 
 tract. 
 
 Forum delicti, forum deprehensionis. The 
 jurisdiction of the person of a criminal, and 
 may be the court of the place where the of- 
 fense was committed, or that of the place 
 where the criminal was arrested. 
 
 Forum arresti. A jurisdiction unknown to 
 the Roman law, but of frequent occurrence 
 in the modern civil law. It is that over 
 persons or things detained by a judicial or- 
 der, and corresponds in some degree to the 
 "attachment" of our practice. 
 
 Forum gestae administrationis. The juris- 
 diction over the accounts and administra- 
 tion of guardians, agents,' and all persons 
 appointed to manage the affairs of third par- 
 ties. The court which appointed such ad- 
 ministrator, or wherein the cause was pend- 
 ing in which Such appointment was made, 
 or within whose territorial limits the busi- 
 ness of the administration was transacted, 
 had exclusive jurisdiction over all suits aris- 
 ing out of his acts, or brought for the pur- 
 pose of compelling him to account, or 
 brought by him to recover compensation for 
 his outlays. L. 1, C. 3, 21; 6 Gluck, Pand. 
 § 521. 
 
 (2) Forum privilegiatum. Privileged ju- 
 risdictions. In general, the privileged jurisr 
 diction of a person held the same rank as 
 the forum domicilii, and, like that, did not 
 supplant the particular jurisdictions above 
 named save in certain exceptional cases. The 
 privilege was general In its nature, and ap- 
 plied to all cases not specially excepted, but 
 it only arose when the person possessing it 
 was sued by another; for he could not as- 
 sert It when he was the plaintiff, the rule 
 being, actor sequitur forum rei, the plaintiff 
 must resort to the jurisdiction of the de- 
 fendant. It was in general limited to per- 
 sonal actions; all real actions brought 
 against the defendant in the character of 
 possessor of the thing in dispute followed 
 the forum speciale. The privilege embraced 
 the wife of the privileged person and his 
 children so long as they were under his 
 potestas. And, lastly, when a forum privi- 
 legiatum purely personal conflicted with the 
 forum, speciale. the former must yield. 6 
 Gluck, Pand. 339-341. 
 
 Privileged persons were: 
 
 (a) Personae miseraMles, who were per- 
 sons under the special protection of the law 
 on account of some incapacity of age, sex, 
 mind, or condition. These were entitled, 
 whether as plaintiffs or defendants, to carry 
 their causes directly before the emperor, 
 and, passing over the inferior courts, to de- 
 mand a hearing before his supreme tribunal, 
 
FORWARDING MERCHANT 
 
 (389) 
 
 FOUR SEAS 
 
 whenever they had valid grounds for doubt- 
 ing the impartiality or fearing the procras- 
 tination of the inferior courts, or for dread- 
 ing the influence of a powerful adversary. 
 6 Gluck, Pand. § 522. 
 
 (b) Plerici, the clergy. The privilege of 
 clerical persons to be impleaded only in the 
 episcopal courts commenced under the Chris- 
 tian emperors. 
 
 (c) Academici. In the modern civil law, 
 the officers and students of the universities 
 are privileged to be sued before the univer- 
 sity courts. This species of privilege was 
 unknown to the Roman law. See 6 Gluck, 
 Pand. § 524. 
 
 (d) Milites. Soldiers had special military 
 courts as well in civil as criminal cases. 
 
 There are many classes of persons who are 
 privileged in respect to jurisdiction under 
 the modern civil law who were not so privi- 
 leged by the Roman law. Such are officers 
 of the court of the sovereign, including min- 
 isters of state and councillors, ambassadors, 
 noblemen, etc. These do not require ex- 
 tended notice. 
 
 Jurisdiction ex persona alterius. A person 
 might be entitled to be sued in a particular 
 court on grounds depending upon the person 
 of another. Such were (1) the wife, who, if 
 the marriage had been legally contracted, 
 acquired the forum of her husband (1. 65, D. 
 5, 1; 1. ult. D. 50, 1; 1. 19, D. 2, 1), and re- 
 tained it until her second marriage (1. 22, § 
 1, D. 50, 1), or change of domicile. Section 
 93, Voet. Com. ad Pand. D. 5, 1. (2) Serv- 
 ants, who possessed the jurisdiction of their 
 master as regarded the forum domicilii, and 
 also the forum privilegiatum, so far at least 
 as the privilege was that of the class to 
 which such master belonged, and was not 
 purely personal. Gluck, Pand. § 510b. (3) 
 The haeres, who in many cases retained the 
 jurisdiction of his testator. When sued in 
 the character of heir in respect to causes of 
 action upon which suit had been commenced 
 before the testator's death, he must submit 
 to the forum which had acquired cognizance 
 of the suit. LI. 30, 34, D. 5, 1. 
 
 FORWARDING MERCHANT. A person 
 who receives and forwards goods, taking 
 upon himself the expenses of transportation, 
 for which he receives a compensation from 
 the owners, but who has no concern in the 
 vessels or wagons by which they are trans- 
 ported, and no interest in the freight. 
 
 Such a one is not deemed a common car- 
 rier, but a mere warehouseman or agent. 12 
 Johns. (N. Y.) 232; 7 Cow. (N. Y.) 497. He 
 is required to use only ordinary diligence 
 in sending the property by responsible per- 
 sons. 2 Cow. (N. Y.) 593. See Story, Bailm. 
 
 FOSSA (Lat.) In English law. A ditch 
 full of water, where formerly women who 
 had committed a felony were drowned; the 
 grave. Cowell. 
 
 FOSSAGIUM. The duty levied on the in- 
 habitants for repairing the moat or ditch 
 around a fortified town. 
 
 FOSSATORIUM OPERATIO (Lat.) The 
 
 service of laboring done by the inhabitants 
 and adjoining tenants, for repair and main- 
 tenance of the ditches round a city or town. 
 A contribution in lieu of such work, called 
 fossagium, was sometimes paid. Kennett; 
 Cowell. 
 
 FOSSATU M (Law Lat. from fossa, q. v.) In 
 old English law. A dyke; a bank of earth 
 thrown up out of a ditch. Glanv. lib. 13, c. 
 34; Bracton, fol. 115; Pleta, lib. 1, c. 24. § 
 8; St. Westminster II. c. 46. 
 
 A ditch or trench. The same with fossa. 
 Spelman; Reg. Orig. 92b, 198b, 199. 
 
 A moat or fosse around an encampment or 
 fortified place. Spelman. 
 
 A canal or cut from a river. Cowell; Cart. 
 20 Hen. III. 
 
 A place fenced with a ditch. Cowell. 
 
 FOSSE WAY, or FOSSE. One of the 
 
 four ancient Roman ways through England. 
 Spelman, voc. "Ikenlld Street." 
 
 FOSSELLUM. A small ditch. Cowell. 
 
 FOSTERLAND. Land given, assigned, or 
 allotted to the finding of food or victuals for 
 any person or persons; as in monasteries 
 for the monks, etc. Cowell; Blount. 
 
 FOSTERLEAN. The remuneration fixed 
 for the rearing of a foster child; also the 
 jointure of a wife. Jacob. 
 
 FOUNDATION. The establishment of a 
 charity; that upon which a charity is found- 
 ed, and by which it is supported. 
 
 This word, in the English law, is taken in 
 two senses, — fundatio incipiens, and fundatio 
 perficiens. As to its political capacity, an 
 act of incorporation is metaphorically called 
 its foundation; but as to its dotation, the 
 first gift of revenues is called the founda- 
 tion. 10 Coke, 23a. 
 
 FOUNDER. One who endows an institu- 
 tion; one who makes a gift of revenues to a 
 corporation. 10 Coke, 33; 1 Sharswood, Bl. 
 Comm. 481. 
 
 . In England, the king is said to be the 
 founder of all civil corporations; and where 
 there Is an act of incorporation, he is called 
 the "general founder," and he who endows 
 is called the "perflcient founder." 1 Shars- 
 wood, Bl. Comm. 481. 
 
 FOUNDEROSUS. Out of repair. Cro. Car. 
 366. 
 
 FOUNDLING. A new-born child abandon- 
 ed by its parents, who are unknown. The 
 settlement of such a child is in the place 
 where found. 
 
 FOUR CORNERS. A metaphorical ex- 
 pression indicating the whole face or con- 
 tents of an instrument, taken as an entirety. 
 
 FOUR SEAS. The seas surrounding Eng- 
 land. These were divided into the western, 
 including the Scotch and Irish; the north- 
 ern, or North Sea; the eastern, being the 
 German Ocean; the southern, being the Brit- 
 
FOURCHEE 
 
 (390) 
 
 FRANK FERME 
 
 ish Channel. Selden, Mare Clausum, lib. 2, 
 c. 1. 
 
 "Within the four seas" means within the 
 jurisdiction of England. 4 Coke, 125; 2 
 Inst. 253. See "Beyond Sea." 
 
 FOURCHER (Pr. to fork). In English 
 law. A method of delaying an action for- 
 merly practised by defendants. 
 
 When an action was brought against two, 
 who, being jointly concerned, were not bound 
 to answer till both appeared, and they agreed 
 not to appear both in one day, the appear- 
 ance of one excused the other's default, who 
 had a day given him to appear with the 
 other. The defaulter, on the day appointed, 
 appeared; but the first then made default. 
 In this manner they forked each other, and 
 practised this for delay. See 2 Inst. 250; 
 Booth, Real Actions, 16. 
 
 FOURCHING. The act of delaying legal 
 proceedings. Termes de la Ley. 
 
 FOWLS OF WARREN. Such fowls as are 
 preserved under the game laws in war- 
 rens. According to Manwood, these are part- 
 ridges and. pheasants. According to Lord 
 Coke, they are either campestres, as part- 
 ridges, rails, and quails, sylvestres, as wood- 
 cocks and pheasants, or aquatiles, as mal- 
 lards and herons. Co. Litt. 233. 
 
 FOX'S ACT. St. 52 Geo. IIL c. 60, which 
 secured to juries, upon the trial of indict- 
 ments or informations for libel, the right 
 of pronouncing a general verdict of guilty 
 or not guilty upon the whole matter in issue, 
 and no longer bound them to find a verdict 
 of guilty on proof of the publication of the 
 paper charged to be a libel, and of the sense 
 ascribed to it in the indictment. 
 
 FOY (Law Fr.) Faith; fidelity. Britt. 
 29; Oath. Britt. 70. 
 
 FRACTIO (Lat. from frangere, to break). 
 A breaking; a breach. Fractio fedei, a 
 breach of promise or of trust. 1 Rep. Ch. 
 Append. 8. 
 
 FRACTION OF A DAY. A portion of a 
 day; the dividing a day. Generally, the law 
 does not allow the fraction of a day. 2 
 Sharswood, Bl. Comm. 141. 
 
 The day may be divided, however, to show 
 which of two acts was actually done first. 3 
 Burrows, 1434; 4 Kent, Comm. 95, note; 11 
 H. L. Cas. 411. 
 
 FRACTIONEM DIEI NON RECIPET LEX. 
 
 The law does not regard a fraction of a day. 
 Lofft, 572. But see "Day." 
 
 FRACTITIUM. Arable land. Mon. Angl. 
 
 FRACTURA NAVIUM. Wreck of shipping 
 at sea. 
 
 FRAIS DE JUSTICE. Costs incurred in- 
 cidentally to the action. See 1 Tropl. Dr. 
 Civ. 122, 135, note; 4 Low. (U. S.) 77. 
 
 FRANC. A French coin, of the value of 
 about eighteen cents. 
 
 FRANC ALEU. In French law. An ab- 
 solutely free inheritance; allodial lands. 
 Generally, however, the word denotes an 
 inheritance free from seignorial rights, 
 though held subject to the sovereign. Du- 
 moulin, "Cout. de Par." § 1; Guyot, Rep. 
 Univ.; 3 Kent, Comm. 498, note; 8 Low. (U. 
 S.) 95. 
 
 FRANCHILANUS. A freeman. Blount. 
 
 FRANCHISE. A special privilege con- 
 ferred by government on individuals, and 
 which does not belong to the citizens of the 
 country generally by common right. Angel 1 
 & A. Corp. § 4. 
 
 A particular privilege conferred by grant 
 from government, and vested in individuals. 
 3 Kent, Comm. 458. 
 
 A branch of the king's prerogative sub- 
 sisting in the hands of a subject. Finch, 
 Law, lib. 2, c. 14; 2 Sharswood, BI. Comm. 
 37. 
 
 In a popular sense, the word seems to be 
 synonymous with "right" or "privilege;" as, 
 the elective franchise. And it is commonly 
 applied to those powers exercised by virtue 
 of a grant of privilege. 
 
 "To be a corporation is a franchise. The 
 various powers conferred on corporations 
 are franchises. The execution of a policy of 
 insurance by an insurance company, and the 
 issuance of a bank note by an incorporated 
 bank, are franchises." 15 Johns. (N. Y.) 
 387. 
 
 "The term [franchise] must be always con- 
 sidered in connection with the corporation 
 or property to which it is supposed to ap- 
 pertain." 93 TJ. S. 223. 
 
 FRANCIGENA. A designation formerly 
 given to aliens in England. 
 
 FRANCUS. Free; a freeman; a Frank. 
 Spelman. 
 
 Francus Bancus. Free bench (q. v.) 
 
 Francus Homo. A free man. 
 
 Francus Pleglus. In old English law. 
 
 A frank pledge, or free pledge. Spelman. 
 
 Francus Tenens. In old English law. 
 
 A frank or free tenant; a freeholder. 
 
 FRANK. In old English law. Free. 
 
 FRANK BANK. In old English law. Free 
 bench. Litt. § 166; Co. Litt. 110b. See 
 under "Francvis." 
 
 FRANK CHASE. Free chase. The liber- 
 ty or franchise of having a chase. 
 
 FRANK FEE. Lands not held in ancient 
 demesne. Called "lands pleadable at com- 
 mon law." Reg. Orig. 12, 14; Fitzh. Nat. 
 Brev. 161 ; Termes de la Ley. 
 
 That which a man holds to himself and 
 his heirs, and not by such service as is re- 
 quired In ancient demesne, according to the 
 custom of the manor. The opposite of copy- 
 hold. Cowell. A fine had in the king's 
 court might convert demesne lands into 
 frank fee. 2 Bl. Comm. 368. 
 
 FRANK FERME. Lands or tenements 
 where the nature of the fee is changed by 
 
FRANK FOLD 
 
 (391) 
 
 P^RATERNAL INSURANCE 
 
 feoffment from knight's service to yearly 
 service, and whence no homage but such as 
 is contained in the feoffment may be de- 
 manded. Britt. c. 66, n. 3; Cowell; 2 Bl. 
 Comm. 80. 
 
 FRANK FOLD. In old English law. Free 
 fold; a privilege for the lord to have all the 
 sheep of his tenants and the inhabitants 
 within his seigniory, in his fold, in his de- 
 mesnes, to manure his land. Keilw. 198; 
 Y. B. H. 1 Edw. III. 4. 
 
 FRANK LAW (Law Pr. fraunclie ley; Law 
 Lat. libera lex, lex terrae). In old English 
 law. The liberty of being sworn in courts, 
 as a juror or witness; one of the ancient 
 privileges of a freeman, or free and lawful 
 man (liher et legalis homo). Otherwise 
 called the law of the land (lex trrriii;), or 
 simply law ( lex) . The nature of this privi- 
 lege may be understood from Bracton's de- 
 scription of the consequences of losing it, 
 among which the principal one was that the 
 parties incurred perpetual infamy, so that 
 they were never afterwards to be admitted 
 to oath, because they were not deemed to be 
 oathworthy (that is, not worthy of making 
 oath), nor allowed to give testimony. Per- 
 petuam infamiam incurrant, et legem terrae 
 amittant. et ita quod nunquam postea ad 
 sacramentum admittantur, quia de coetero 
 non erunt otJiesworth, nee ad testimonium 
 recipientur. Bracton, fol. 292b. This was 
 one of the punishments of jurors who had 
 been convicted of perjury. Id. 
 
 This term has been very generally defined 
 "the privilege of the law's protection," and 
 "the benefit of the free and common law of 
 the land." Holthouse; Wharton. But that 
 it had a more particular and determinate 
 meaning is clear both from the testimony 
 of the ancient writers, and from the pe- 
 culiar signification of the word "law," which, 
 from a very early period, denoted an oath, 
 or the taking or making of an oath; as in 
 the common expressions "wager of law," 
 and "making law." A lawful man (legalis 
 homo) was one who was competent to be 
 sworn as a juror or witness; and the word 
 "lawful" is used in this sense in jury pro- 
 cess to this day. 3 Bl. Comm. 340, 341, 352. 
 
 FRANK MARRIAGE. A species of estate 
 tail where the donee had married one of kin 
 (as daughter or cousin) to the donor, and 
 held the estate subject to the implied con- 
 dition that the estate was to descend to the 
 issue of such marriage. On birth of issue, 
 as in other cases of estate tail before the 
 statute De Bonis, the birth of issue was re- 
 garded as a condition performed, and the 
 estate thereupon became alienable by the 
 donee. 1 Cruise, Dig. 71; 1 Washb. Real 
 Prop. 67. 
 
 The estate is said to be in frank marriage 
 because given in consideration of marriage, 
 and free from services for three generations 
 of descendants. Blount; Cowell. See, also, 
 2 Sharswood, Bl. Comm. 115; 1 Steph. Comm. 
 232. 
 
 FRANK PLEDGE. A pledge or surety for 
 freemen. Termes de la Ley. 
 
 The bond or pledge which the inhabitants 
 of a tithing entered into for each one of 
 their number that he should be forthcoming 
 to answer every violation of law. Each boy, 
 on reaching the age of fourteen, was obliged 
 to find some such pledge, or be committed to 
 prison. Blount; Cowell. 
 
 FRANK TENANT. A freeholder. Litt. § 
 91. 
 
 FRANK TENEMENT. In English law. A 
 free tenement, freeholding, or freehold. 2 
 Bl. Comm. 61, 62, 104; 1 Steph. Comm. 217; 
 Bracton, fol. 207. Used to denote both the 
 tenure and the estate. 
 
 FRANKALMOIGNE. A species of ancient 
 tenure, still extant in England, whereby a 
 religious corporation, aggregate or sole, holds 
 its lands of the donor, in consideration of 
 the religious services it performs. 
 
 In the United States, religious corpora- 
 tions hold land by the same tenure with 
 which all other corporations and individuals 
 hold; and the only approach to a tenancy in 
 frankalmoigne may be found in the exemp- 
 tion from taxation which is enjoyed by 
 churches in common with charitable and 
 scientific institutions. 
 
 FRANKING PRIVILEGE. The privilege of 
 sending certain matter through the public 
 mails without payment therefor. 
 
 It is enjoyed by various officers of the fed- 
 eral government, theoretically for the public 
 good. See Brightly, Dig. U. S. Laws. 
 
 FRANKLEYN, FRANCLING, or FRANK- 
 lin. A freeman; a freeholder; a gentleman. 
 Blount; Cowell. 
 
 FRASSETUM (Law Lat.) In old English 
 law. A wood, or ground that is woody. Co. 
 Litt. 4b; Shep. Touch. 95. Blount considers 
 it a corruption of fraxinetum, a wood where 
 ashes grow. 
 
 FRATER (Lat.) Brother. 
 
 Frater Consangulneus. Abrother born 
 
 from the same father, though the mother 
 may be different. 
 
 Frater Nutricius. A bastard brother. 
 
 Frater Uternius. A brother who has 
 
 the same mother, but not the same father. 
 
 Blount; Vicat; 2 Bl. Comm. 232. See 
 "Brother." 
 
 FRATER FRATRI UTERINO NON SUC- 
 cedet in haereditate paterna. A brother shall 
 not succeed an uterine brother in the pa- 
 ternal inheritance. Fort, de Laud. Leg. 
 Ang. by Amos, p. 15 ; 2 Sharswood, Bl. Comm. 
 This maxim is now superseded in England 
 by 3 & 4 Wm. IV. c. 106, § 9. Broom, Leg. 
 Max. (3d London Ed.) 471; 2 Sharswood, 
 Bl. Comm. 232. 
 
 FRATERNAL INSURANCE. A form of 
 mutual life, and perhaps, also, health and 
 accident, insurance. Its distinguishing char- 
 acteristics seem to be (a) that it is written 
 on members of a fraternal or beneficial so- 
 ciety only, and (b) that the organization 
 itself is the insurer. The premiums are 
 
FRATEENIA 
 
 (392) 
 
 FRAUDS, STATUTE OF 
 
 usually paid by way of assessment or month- 
 ly dues, rather than by annual premium, 
 and may or may not involve the creation of 
 a reserve fund. 
 
 F RAT E R N I A. A fraternity or brotherhood. 
 
 F RAT R I AGE. A younger brother's inher- 
 itance. 
 
 FRATRICIDE. The killing of a brother or 
 sister. 
 One who has killed his brother or sister. 
 
 FRAUD. The unlawful obtaining of an- 
 other's property by design, but without 
 criminal intent, and with the assent of the 
 owner obtained by artifice or misrepresenta- 
 tion. 
 
 Any cunning deception or artifice used to 
 circumvent, cheat, or deceive another. Story, 
 Eq. Jur. § 186. 
 
 Fraud is sometimes used as a term synony- 
 mous with "covin," "collusion," and "deceit," 
 but improperly so. Covin is a secret con- 
 trivance between two or more persons to de- 
 fraud and prejudice another of his rights. 
 Collusion is an agreement between two or 
 more persons to defraud another under the 
 forms of law, or to accomplish an illegal 
 purpose. Deceit is a fraudulent contrivance 
 by words or acts to deceive a third person, 
 who, relying thereupon, without careless- 
 ness or neglect of his own, sustains damage 
 thereby. Co. Litt. 357b; Bac. Abr. 
 
 Actual or positive fraud includes cases of 
 the intentional and successful employment 
 of any cunning, deception, or artifice, used 
 to circumvent, cheat, or deceive another. 1 
 Story, Eq. Jur. § 186. 
 
 Legal or constructive fraud includes such 
 contracts or acts as, though not originating 
 in any actual evil design or contrivance to 
 perpetrate a fraud, yet by their tendency to 
 deceive or mislead others, or to violate pri- 
 vate or public confidence, are prohibited by 
 law. Thus, for instance, contracts against 
 some general public policy or fixed artificial 
 policy of the law; cases arising from some 
 peculiar confidential or fiduciary relation be- 
 tween the parties, where advantage is taken 
 of that relation by the person in whom the 
 trust or confidence is reposed, or by third 
 persons; agreements and other acts of par- 
 ties which operate virtually to delay, de- 
 fraud, and deceive creditors; purchases of 
 property, with full notice of the legal or 
 equitable title of other persons to the same 
 property (the purchaser becoming, by con- 
 struction, particeps criminis with the fraud- 
 ulent grantor) ; and voluntary conveyances 
 of real estate, as affecting the title of subse- 
 quent purchasers. 1 Story, Eq. Jur. c. 7. 
 
 In the Civil Law. According to the 
 
 civilians, positive fraud consists in doing 
 one's self, or causing another to do, such 
 things ,as induce the opposite party into 
 error, or retain him there. The intention 
 to deceive, which is the characteristic of 
 fraud, is here present; the definition of "con- 
 structive fraud" being the same as at com- 
 mon law. Fraud was also divided into that 
 which has induced the contract, dolus dans 
 causum contractui, and incidental or acci- 
 
 dental fraud. The former is that which has 
 been the cause or determining motive of the 
 contract, that without which the party de- 
 frauded would not have contracted, when the 
 artifices practised by one of the parties have 
 been such that it is evident that without 
 them the other would not have contracted. 
 Incidental or accidental fraud is that by 
 which a person, otherwise determined to 
 contract, is deceived on some accessories or 
 incidents of the contract, — for example, as 
 to the quality of the object of the contract, 
 or its price, — so that he has made a bad bar- 
 gain. Accidental fraud does not, according 
 to the civilians, avoid the contract, but sim- 
 ply subjects the party to damages. It is 
 otherwise where the fraud has been the de- 
 t.ermining cause of the contract, qui causam 
 dedit contractui. In that case, the contract 
 is void. Toullier, Dr. Civ. liv. 3, tit. 3, c. 2, 
 note, § 5, note 86 et seq. See, also, 1 Mall. 
 Anal, de la Disc, du Code Civ. pp. 15, 16; 
 Bouv. Inst. Index. 
 
 In Equity. It is sometimes inaccurate- 
 ly said that such and such transactions 
 amount to fraud in equity, though not in 
 law; according to the popular notion that 
 the law allows or overlooks certain kinds of 
 fraud which the more conscientious rules of 
 equity condemn and punish. But, properly 
 speaking, fraud in all its shapes is as odious 
 In law as in equity. The difference is that, 
 as the law courts are constituted, and as it 
 has been found in centuries of experience 
 that it is convenient they should be consti- 
 tuted, they cannot deal with fraud otherwise 
 than to punish it by the infiiction of dam- 
 ages. All those manifold varieties of fraud 
 against which specific relief, of a preventive 
 or remedial sort, is required for the purjKJSes 
 of substantial justice, are the subjects of 
 equity and not of law jurisdiction. 
 
 The following classification of frauds as a 
 head of equity jurisdiction is given by Lord 
 Hardwicke (2 Ves. Jr. 155) : (1) Fraud, or 
 dolus mains, may be actual, arising from 
 facts and circumstances of imposition. (2) 
 It may be apparent from the intrinsic nature 
 and subject of the bargain itself, such as no 
 man in his senses and not under delusion 
 would make, on the one hand, and no honest 
 or fair man would accept, on the other. (3) 
 It may be inferred from the circumstances 
 and condition of the parties; for it is as 
 much against conscience to take advantage 
 of a man's weakness or necessity as of his 
 ignorance. (4) It may be collected from 
 the nature and circumstances of the transac- 
 tion, as being an imposition on third per- 
 sons. 
 
 In Criminal Law. Without the express 
 
 provision of any statute, all deceitful prac- 
 tices in defrauding or endeavoring to de- 
 fraud another of his known right, by means 
 of some artful device, contrary to the plain 
 rules of common honesty, are condemned by 
 the common law, and punishable according 
 to the heinousness of the offense. Co. Litt. 
 3b; Dyer, 295; Hawk. P. C. c. 71. 
 
 FRAUDS, STATUTE OF. The name com- 
 monly given to St. 29 Car. II. c. 3, entitled, 
 "An Act for the Prevention of Frauds and 
 
FRAUDULENT CONVEYANCE (393) 
 
 FREE BENCH 
 
 Perjuries;" and to statutes of the various 
 states patterned tliereon, and substantially 
 to the same effect. 
 
 These statutes differ in detail, but gen- 
 erally provide that no action shall be brought 
 on certain classes of contract unless some 
 memorandum thereof be in virriting, and 
 signed by the party to be charged. 
 
 FRAUDULENT CONVEYANCE. A con- 
 veyance, the object, _ tendency, or effect of 
 which is to defraud another, or the intent of 
 which is to avoid some duty or debt due by 
 or incumbent on the party making it. 2 
 Kent, Comm. 440; 4 Kent, Comm. 462. 
 
 There must be: (a) A creditor to be de- 
 frauded; but subsequent creditors are en- 
 titled to impeach a conveyance for fraud. 
 118 Mass. 527. (b) A conveyance by the 
 debtor; but the form of the conveyance is 
 immaterial. 89 Ind. 117. (c) Of property 
 of value, out of which the creditor could 
 have made a portion of his claim. 46 Mich. 
 243; 52 Vt. 45; 67 Me. 183. (d) With intent 
 to hinder, delay, or defraud (88 N. Y. 669) ; 
 but the fraud may arise from the nature and 
 necessary result of the transaction, without 
 regard to the actual intention of the parties 
 (108 111. 502). 
 
 Statute of Fraudulent Conveyances. 
 
 Fraudulent conveyances received early at- 
 tention; and the statutes of 13 Eliz. c. 5, and 
 27 Eliz. c. 4, made perpetual by 29 Eliz. c. 18, 
 declared all conveyances made with intent 
 to defraud creditors, etc., to be void. This 
 statute, on which all subsequent legislation 
 has been patterned, defined a fraudulent con- 
 veyance as "a conveyance, the object, ten- 
 dency, or effect of which is to avoid some 
 duty or debt due by or incumbent upon the 
 party making the conveyance." By a liberal 
 construction, it has become the settled Eng- 
 lish law that a voluntary conveyance shall 
 be deemed fraudulent against a subsequent 
 purchaser, even with notice. 9 East, 59; 2 
 Sharswood, Bl. Comm. 296; Roberts, Fraud. 
 Conv. 2, 3. 
 
 Voluntary conveyances are not so con- 
 strued in the United States, however, where 
 the subsequent purchaser has notice, espe- 
 cially if there be a good consideration. 2 
 Gray (Mass.) 447. 
 
 These statutes have been generally adopted 
 in the United States as the foundation of 
 all the state statutes upon this subject. 1 
 Story, Eq. Jur. 353; 4 Kent, Comm. 462, 463. 
 
 FRAUDULENT PREFERENCES. See 
 "Preferences." 
 
 FRAUNC,FRAUNCHE,orFRAUNKE. See 
 "Frank." 
 
 FRAUNCHISE. A franchise. 
 
 FRAUS (Lat. fraud). More commonly 
 called, in the civil law, "dolus" and "dolus 
 mains" (q. v.) A distinction, however, was 
 sometimes made between "fraus" and "do- 
 lus;" the former being held to be of the most 
 extensive import. Calv. Lex. 
 
 FRAUS EST CELARE FRAUDEM. It is 
 a fraud to conceal a fraud. 1 Vern. 270. 
 
 FRAUS EST ODIOSA, ET NON PRAE- 
 
 sumenda. Fraud is odious, and not to be 
 presumed. Cro. Car. 550. 
 
 FRAUS ET DOLUS NEMINI PATROCI- 
 anari debent. Fraud and deceit should ex- 
 cuse no man. 3 Coke, 78. 
 
 FBAUS ET JUS NUNQUAM COHABIT- 
 ant. Fraud and justice never dwell together. 
 Wingate, Max. 680. 
 
 FRAUS LATET IN GENERALJBUS. Fraud 
 lies hid in general expressions. 
 
 FRAUS LEGIS. (Lat). In civil law. Fraud 
 of law; fraud upon law. See "In Fraudem 
 Legis." 
 
 FRAUS MERETUR FRAUDEM. Fraud de- 
 serves fraud. Plowd. 110; Branch, Princ. 
 This is very poor law. 
 
 FRAXINETUM. In old English law. A 
 wood of ashes; a place where ashes grow. 
 Co. Litt. 4b; Shep. Touch. 95. 
 
 FRAY. See "Affray." 
 
 F RECTUM. In old English law. Freight. 
 Blount. 
 
 FREDNITE. A liberty to hold courts and 
 take up the fines for beating and wounding. 
 Cowell ; Cunningham. 
 
 To be free from fines. 
 
 FREDSTOLE, or FRIDSTOLE. Sanctu- 
 aries; seats' of peace. 
 
 FREDUM. A fine paid for obtaining par- 
 don when the peace had been broken. Spel- 
 man; Blount. A sum paid the magistrate 
 for protection against the right of revenge. 
 1 Robertson, Hist. Charles V., Append, note 
 xxiii. 
 
 FREE. Not bound to servitude; at liberty 
 to act as one pleases. This word is put in 
 opposition to slave. Const. U. S. art. 1, § 2. 
 Used in distinction from being bound as an 
 apprentice. 
 
 The Declaration of Independence asserts 
 that all men are born free; and in this sense 
 the term is usually supposed to mean all 
 mankind, though this seems to be doubted in 
 19 How. (U. S.) 393. 
 
 Certain; as, free services. These were 
 also more honorable. 
 
 Confined to the person possessing, instead 
 of being held in common ; as, free fishery. 
 
 FREE ALMS. Tenure by indefinite spir- 
 itual services; frankalmoigne (q. v.) 
 
 FREE BENCH. Copyhold lands which the 
 wife has for dower after the decease of her 
 husband. Kitch. Cts. 102; Bracton, lib. 4, tr. 
 6, c. 13, No. 2; Fitzh. Nat. Brev. 150; Plowd. 
 411. 
 
 Dower in copyhold lands. 2 Bl. Comm. 
 129. The quantity varies in different sec- 
 tions of England. Co. Litt. 110b. Incon- 
 tinency was a cause of forfeiture, except on 
 the performance of a ridiculous ceremony. 
 Cowell; Blount. ;; .v 
 
FREE BORD 
 
 (394) 
 
 FRENCHMAN 
 
 FREE BORD. An allowance of land out- 
 side the fence, which may be claimed by the 
 owner. An allowance, in some places, two 
 and a half feet w'ide outside the boundary or 
 inclosure. Blount; Cowell. 
 
 FREE-BOROUGH MEN. Such great men 
 as did not engage, like the frank-pledge men, 
 for their decennier. Jacob. 
 
 FREE CHAPEL. A chapel founded by the 
 king, and exempted from the jurisdiction of 
 the ordinary. It may be one founded or en- 
 dowed by a private person under a grant 
 from the king. Cowell; Termes de la Ley. 
 
 FREE COURSE. Having the wind from a 
 favorable quarter. To prevent collision of 
 vessels, it is the duty of the vessel having 
 the wind free to give way to a vessel beat- 
 ing up to windward and tacking. 3 Hagg. 
 Adm. 215. At sea, such vessel meeting an- 
 other close hauled must give way, if neces 
 sary to prevent the danger of collision. 3 
 Car. & P. 528. See 9 Car. & P. 528; 2 W. 
 Rob. Adm. 225; 2 Dods. Adm. 87. 
 
 FREE FISHERY. A franchise which gives 
 an exclusive right of Ashing in a public navi- 
 gable river, without any ownership on the 
 soil. 3 Kent, Comm. 329; 2 Sharswood, Bl. 
 Coram. 39; 1 Salk. 637; Woolr. Waters, 97. 
 Free fishery is the same as common of fish- 
 ery. Co. Litt. Hargrave's notes, 122; 2 
 Sharswood, Bl. Comm. 39; 7 Pick. (Mass.) 
 79; Angell, Watercourses, c. 6, §§ 3, 4. See 
 "Fishery." 
 
 FREE ON BOARD. Abbreviated f. o. b. In 
 the law of sales, a sale free on board Is 
 one in which the seller agrees to put the 
 goods on board cars or ship at a particular 
 place, at his own expense. 
 
 FREE SERVICES. Such as it was not un- 
 becoming the character of a soldier or free- 
 man to perform; as, to serve under his lord 
 in the wars, to pay a sum of money, and the 
 like. 2 Bl. Comm. 62; 1 Washb. Real Prop. 
 25. I 
 
 FREE SHIPS. Neutral ships. "Free ships 
 make free goods" is a phrase often used in 
 treaties to denote that the goods on board 
 neutral ships shall be free from confiscation, 
 even though belonging to an enemy. Wheat. 
 Int. Law, 507 et seq.; 1 Kent, Comm. 126. 
 See 3 Phillim. Int. Law (3d Ed.) 238 et seq., 
 for a full discussion of the subject. 
 
 FREE SOCAGE. Tenure in free socage is 
 a tenure by certain and honorable services 
 which yet are not military. 1 Spence, Eq. 
 Jur. 52; Dalr. Feud. Prop. c. 2, § 1; 1 Washb. 
 Real Prop. 25. Called, also, "free and com- 
 mon socage." See "Socage." 
 
 FREE SOCMEN. In old English law. Ten- 
 ants in free socage. Clanv. lib. 3, c. 7; 2 Bl. 
 Comm. 79. 
 
 FREE (or FRANK) TENURE. Freehold 
 tenure. The opposite of the ancient villein- 
 age or modern copyhold. 2 Bl. Comm. 89, 90. 
 
 FREE WARREN. A franchise for the pre- 
 serving and custody of beasts and fowls of 
 warren. 2 Sharswood, Bl. Comm. 39, 417; 
 Co. Litt. 233. This franchise gave the gran- 
 tee sole right of killing, so far as his war- 
 ren extended, on condition of excluding other 
 persons. 2 Sharswood, Bl. Comm. 39. 
 
 FREEDMAN. In Roman law. A person 
 who had been released from a state of servi 
 tude. See "Libertine." 
 
 FREEHOLD. See "Estates." 
 
 FREEHOLD IN LAW. A freehold which 
 has descended to a man, upon which he may 
 enter at pleasure, but which he has not en- 
 tered on. Termes de la Ley. 
 
 FREEHOLD LAND SOCIETIES. Socle- 
 ties in England designed for the purpose of 
 enabling mechanics, artisans, and other 
 working men to purchase, at the least pos- 
 sible price, a piece of freehold land of a suf- 
 ficient yearly value to entitle the owner to 
 the elective franchise for the county in 
 which the land is situated. Wharton. 
 
 FREEHOLDER. The owner of a freehold 
 estate. Such a man must have been ancient- 
 ly a freeman; and the gift to any man by 
 his lord of an estate to him and his heirs 
 made the tenant a freeman, if he had not 
 been so before. See 1 Washb. Real Prop. 29, 
 45, et seq. 
 
 FREEMAN. One who is not a slave; one 
 born free, or made so. 
 
 In Old English Law. A freeholder, as 
 
 distinguished from a villein. 
 
 An inhabitant of a city. St. 1 Hen. VI. c. 
 11; 3 Steph. Comm. 196, 197; Cunningham. 
 
 FREEMAN'S ROLL. A list of persons ad- 
 mitted as burgesses or freemen for the pur- 
 poses of the rights reserved by the municipal 
 corporation act (5 & 6 Wm. IV. c. 76). Dis- 
 tinguished from the burgess roll. 3 Steph. 
 Comm. 197. The term was used, in early 
 colonial history, of some of the American 
 colonies. 
 
 FREIGHT. The amount due a carrier for 
 the transportation of goods or live stock. 
 Angell, Carr. § 391. Sometimes applied In a 
 loose sense to the goods carried. 
 
 In Maritime Law. The sum agreed on 
 
 for the hire of a ship, entirely or in part, for 
 the carriage of goods from one port to an- 
 other. 13 East, 300. All rewards or com- 
 pensation paid for the use of ships. 1 Pet. 
 Adm. 206; 2 Boul. P. Dr. Com. tit. 8, § 1; 2 
 Bos. & P. 321; 4 Dall. (Pa.) 459; 2 Johns. 
 (N. Y.) 346; 3 Johns. (N. Y.) 335; 3 Pardes- 
 sus, note 705. 
 
 FREIGHTER. He to whom a ship or ves- 
 sel has been hired, and who loads her under 
 his contract; he who loads a general ship. 
 3 Kent, Comm. 173; 3 Pardessus, note 704. 
 
 FRENCHMAN. In early times, in English 
 law, this term was applied to every stranger 
 or "outlandish" man. Bracton, lib. 3, tr. 2, 
 c. 15. 
 
FRENDLESS MAN 
 
 (395) 
 
 FRILINGI 
 
 FRENDLESS MAN, or FRENDLESMAN 
 (Saxon). The ancient name of an outlaw 
 (utlauglie) in England. So called, according 
 to Bracton, because he forfeited his friends 
 (quod forisfacit amicos) ; all persons being 
 forbidden to give him food or shelter, or to 
 have any communication with him, Brac- 
 ton, fol. 128b. 
 
 FRENDNITE, or FRENDWITE. A fine ex- 
 acted from him who harbored an outlawed 
 friend. Cowell; Cunningham. A quittance 
 for forfang (exemption from the penalty of 
 taking provisions before the king's purvey- 
 ors had taken enough for the king's neces- 
 sities). Cowell. 
 
 FRENETICUS. In old English law. A 
 madman, or person in a frenzy. Fleta, lib. 
 1, c. 36. 
 
 FREOBORGH. Afree suretyor free pledge. 
 Spelman. See "Prank Pledge." 
 
 FREQUENT. To visit often; to resort to 
 often or habitually. Webster, quoted in 109 
 Ind. 176. 
 
 FREQUENTIA ACTUS MULTUM OPE- 
 ratur. The frequency of an act effects much. 
 4 Coke, 78; Wingate, Max. 192. 
 
 FRESCA. In old records. Fresh water, or 
 rain and land flood. Cowell. 
 
 FRESH DISSEISIN. Such disseisin as a 
 man may seek to defeat of himself, and by 
 his own power, without the help of the king 
 or judges. There was no limit set to the 
 time within which this might be done. It is 
 set In one case at a disseisin committed 
 within fifteen days. Bracton, lib. 4, c. 5. In 
 another case it was held a fresh disseisin 
 when committed within a year. Britt. cc. 
 43, 44; Cowell. 
 
 FRESH FINE. A fine levied within a year. 
 St. Westminster II. (13 Edw. I.) c. 45; Cow- 
 ell. 
 
 FRESH FORCE. Force done within forty 
 days. Fitzh. Nat. Brev. 7; Old Nat. Brev. 4. 
 The heir or reversioner in a case of disseisin 
 by fresh force was allowed a remedy in 
 chancery by bill before the mayor. Cowell. 
 
 FRESH PURSUIT. An immediate pursuit 
 of an escaping criminal. The phrase does 
 not imply instant pursuit, but pursuit with- 
 out unreasonable delay. See 27 Cal. 574; 70 
 Miss. 253. 
 
 FRESH SUIT (Law Lat. irrciis iusvmitio). 
 In English law. Immediate or speedy pur- 
 suit or prosecution. The pursuit of an of- 
 fender or felon as a thief immediately or as 
 soon as possible after the robbery, including 
 the prosecution of such pursuit until the ap- 
 prehension and conviction of the offender. 
 The object of this was to enable the party to 
 recover his goods, which otherwise would be- 
 long to the king. Britt. c. 15. 
 
 The early and speedy prosecution of a suit. 
 St. Gloc. c. 9. 
 
 FRET (Fr.) In French marine law. Freight. 
 Ord. Mar. liv. 3, tit. 3. 
 
 FRETER (Fr.) In French marine law. To 
 freight a ship; to let It. Bmerig. Ins. c. 11, 
 §3. 
 
 FRETEUR (Fr.) In French marine law. 
 Freighter; the owner of a ship, who lets it 
 to the merchant. Emerig. Ins. c. 11, § 3. 
 
 FRETTUM. In old English law. Freight 
 money. Cowell. 
 
 FRETUM. A strait. 
 
 Fretum Britannicum, the strait between 
 Dover and Calais. Otherwise called Fretum 
 Oalliciiiii. Cowell. 
 
 FRIARS. An order of religious persons 
 of whom there were four principal branches, 
 from whom the rest descend, viz.: (1) Fran- 
 ciscans, or Grey Friars; (2) Augustines; 
 (3) Dominicans, or Black Friars; (4) Car- 
 melites, or White Friars. Wharton. 
 
 FRIBUSCULUM. In civil law. A slight 
 dissension between husband and wife, which 
 produced a momentary separation, without 
 any intention to dissolve the marriage, in 
 which it differed from a divorce. Poth. 
 Pand. lib. 50, § 106; Vicat. This amounted 
 to a separation in our law. See "Separa- 
 tion." 
 
 FRIDBORG, or FRITHBORG. Frank 
 pledge. Cowell. Security for the peace. 
 Spelman. 
 
 FRIDHBURGUS (Saxon). A kind of frank 
 pledge, whereby the principal men were 
 bound for themselves and servants. Fleta, 
 lib. 1, c. 47.- Cowell says it is the same as 
 frank pledge. 
 
 FRIEND OF THE COURT. See "Amicus 
 Curiae." 
 
 FRIENDLY SOCIETIES. In England. Mu- 
 tual benefit societies, supported by subscrip- 
 tion of the members, the benefits being of 
 various kinds, — the periodical division of as- 
 sets, sick or funeral benefits, relief of wid- 
 ows and orphans, etc. 
 
 Regulated by "Friendly Society Act" of 
 1875. 
 
 FRIENDLY SUIT. A suit brought by a 
 creditor in chancery against an executor or 
 administrator, being really a suit by the 
 executor or administrator, in the name of a 
 creditor, against himself, in order to compel 
 the creditors to take an equal distribution of 
 the assets. 2 Williams, Ex'rs, 1915. 
 
 Also any suit instituted by agreement be- 
 tween the parties to obtain the opinion of 
 the court upon some doubtful question in 
 which they are interested, such as actions 
 for construction of wills, partition suits, etc. 
 
 FRIGIDITY. Impotence. 
 
 FRILINGI. Persons of free descent, or free- 
 men born; the middle class of persons among 
 the Saxons. Spelman. > 
 
FRISCUS 
 
 (396) 
 
 FRUSTRA AGIT, ETC. 
 
 FRISCUS (Law Lat; f rom Fr. frescfte) . In 
 old English law. Recent or new. Frisca 
 fortia, fresi. force. Force recently commit- 
 ted, vis napera vt receiiter iUata. Spelman; 
 Reg. Orig. 108a. 
 
 Fresh, as distinguished from salt. Mari- 
 cus , frisnis, fresh marsh. Spelman. Aqua 
 frisoa, fresh water. Reg. Orig. 97. 
 
 Uncultivated, as ground. Terra jacens 
 frisca et ad warect', land lying fresh and fal- 
 low. Towns. PI. 69. 
 
 FRITH BORG. Frank pledge. Cowell. 
 
 FRITH BOTE. A satisfaction or fine for a 
 breach of the peace. 
 
 FRITHBREACH. The breaking of the 
 peace. Cowell. 
 
 FRITH GAR. The year of jubilee, or of 
 meeting for peace and friendship. Jacob. 
 
 FRITH GILDA. Guildhall; a company or 
 fraternity for the maintenance of peace and 
 security; also a fine for breach of the peace. 
 Jacob. 
 
 FRITH MAN. A member of a company or 
 fraternity. Blount. 
 
 FRITHSOCUE. Surety of defense; juris- 
 diction of the peace; the franchise of pre- 
 serving the peace. Cowell; Spelman. 
 
 FRITHSPLOT. A spot or plot of land, en- 
 circling some stone, tree, or well, considered 
 sacred, and therefore afEording sanctuary to 
 criminals. Wharton. 
 
 FRIVOLOUS. See "Pleading." 
 
 FRODMORTEL, or FREOMORTEL. An 
 immunity for committing manslaughter. 
 Mon. Angl. tit. 1, p. 173. 
 
 FRUCTUARIUS(Lat.) One entitled to the 
 use of profits, fruits, and yearly increase of 
 a thing; a lessee; a termor. Bracton, 241; 
 Vicat. 
 
 Sometimes, as applied to a slave, he of 
 whom any one has the usufruct. Vicat. 
 
 FRUCTUS (Lat.) The right of using the 
 increase or fruits; equivalent to usufruct. 
 
 That which results or springs from a 
 thing; as, rents, interest, freight from a 
 ship, etc. 
 
 All the natural return, increase, or addi- 
 tions which is added by nature or by the 
 skill of man, including all the organic prod- 
 ucts of things. Vicat; 1 Mackeld. Civ. Law, 
 § 154. 
 
 They were divided according to their 
 nature into: 
 
 Fructus Civiles. Civil fruits. All rev- 
 enues and recompenses which, though not 
 fruits, properly speaking, are recognized as 
 such by the law. 1 Kauffm. Mackeld. Civ. 
 Law, § 154; Calv. Lex.; Vicat. 
 
 Fructus Naturales. Those products 
 
 which are produced by the powers of nature 
 alone; as, wool, metals, milk. 1 Kauffm. 
 Mackeld. Civ. Law, § 154; Calv. Lex. 
 
 Fructus Industriales. Those products 
 
 which are obtained by the labor and culti- 
 
 vation of the occupant; as, corn. 1 Kauffm. 
 Mackeld. Civ. Law, § 154, note. Emblements 
 are such in the common law. 2 Steph. 
 Comm. 258; Vicat. 
 
 According to their situation with respect 
 to their source they were divided into: 
 
 Fructus Pendentes. The fruits united 
 
 with the thing which pi:oduces them. These 
 form a part of the principal thing. 1 
 Kauffm. Mackeld. Civ. Law, § 154. 
 
 Fructus Separati. Separate fruits ; the 
 
 fruits of a thing when they are separated 
 from it. Dig. 7. 4. 13; 1 Mackeld. Civ. Law, 
 p. 156, § 154. 
 
 FRUCTUS AUGEAT HAEREDITATEM. 
 Fruits enhance an inheritance. 
 
 FRUCTUS PENDENTES PARS FUNDI 
 
 videntur. Hanging fruits make part of the 
 land.. Dig. 6. 1. 44; 2 Bouv. Inst, note 1578. 
 See "Larceny." 
 
 FRUCTUS PERCEPTOS VILLAE NON 
 esse constat. Gathered fruits do not make a 
 part of the farm. Dig. 19. 1. 17. 1; 2 Bouv. 
 Inst, note 1578. 
 
 FRUGES (Lat.) Anything produced from 
 vines, underwood, chalk pits, stone quarries. 
 Dig. 50. 16. 77. 
 
 Grains and leguminous .vegetables. In a 
 more restricted sense, any esculent growing 
 in pods. Vicat; Calv. Lex. 
 
 FRUIT. The produce of a tree or plant 
 which contains the seed, or is used for food. 
 
 FRUIT FALLEN. The produce of any pos- 
 session detached therefrom, and capable of 
 being enjoyed by itself. Thus, a next pre- 
 sentation, when a vacancy has occurred, is a 
 fruit fallen from the advowson. ■Wharton. 
 
 FRUITS OF CRIME. In the law of evi- 
 dence. Material objects acquired by means 
 and in consequence of the commission of 
 crime, and sometimes constituting the sub- 
 ject matter of the crime. Burrill, Circ. Ev. 
 445; 3 Benth. Jud. Ev. 31. 
 
 FRUMENTA QUAE SATA SUNT SOLO 
 cedere Intelliguntur. Grain which is sown is 
 understood to form a part of the soil. Inst. 
 2. 1. 32. 
 
 FRUMENTUM. In the civil law. Grain; 
 that which grows in an ear (arista). Dig. 
 50. 16. 77. 
 
 FRUMGYLD. The first payment made to 
 the kindred of a slain person in recompense 
 for his murder. Blount; Termes de la Ley; 
 Leg. Edmundi, cap. ult. 
 
 FRUMSTOLL (Saxon). A chief seat, or 
 mansion house. Cowell. 
 
 FRUSCA TERRA. In old records. Uncul- 
 tivated and desert ground. 2 Mon. Angl. 
 327; Cowell. 
 
 FRUSSURA. A breaking; plowing. Frm- 
 sura domorum, housebreaking. Cowell. 
 
 FRUSTRA AGIT QUI JUDICIUM PROSE- 
 qui nequit cum effectu. He in vain sues who 
 
FRUSTRA EXPECTATUR, ETC. (397) 
 
 FUERO 
 
 cannot prosecute his judgment with effect. 
 Fleta, lib. 6, c. 37, § 9. 
 
 FRUSTRA EXPECTATUR EVENTUS CU- 
 jus effectus nullus sequitur. An event is 
 vainly expected from which no effect fol- 
 lows. 
 
 FRUSTRA FERUNTUR LEGES NISI SUB- 
 ditls et obedientibus. I^aws are made to no 
 purpose unless for those who are subject and 
 obedient. 7 Coke, 13. 
 
 FRUSTRA FIT PER PLURA.QUOD FIERI 
 potest per pauciora. That is done vainly by 
 many things, which might be accomplished 
 by fewer. Jenk. Cent. Cas. 68; Wingate, 
 Max. 177. 
 
 FRUSTRA LEGIS AUXILIUM QUAERIT 
 qui in legem committit. Vainly does he who 
 offends against the law seek the help of the 
 law. 2 Hale, P. C. 386; Broom, Leg. Max. 
 (3d London Ed.) 255. 
 
 FRUSTRA PETIS QUOD STATIM AL- 
 teri reddere cogeris. Vainly you ask that 
 which you will immediately be compelled to 
 restore to another. Jenk. Cent. Cas. 256; 
 Broom, Leg. Max. (3d London Ed.) 310. 
 
 FRUSTRA PROBATUR QUOD PROBA- 
 tum non relevat. It Is vain to prove that 
 which, if proved, would not aid the matter in 
 question. Broom, Leg. Max. (3d London 
 Ed.) 255. 
 
 FRUSTRA [VANA] EST POTENTIA 
 
 quae nunquam venit in actum. That power 
 is to no purpose which never comes into act, 
 or which is never exercised. 2 Coke, 51. 
 
 FRUSTRUM TERRAE (Law Lat.) In old 
 English law. A piece or fragment of land; 
 a piece of land left over after the measure- 
 ment of a field (residuum guiddam proeter 
 campum, mensuratum) . Spelman. 
 
 A large piece of land lying by itself, and 
 unconnected with any field, town, or manor. 
 Domesday Book. Spelman thinks it should 
 be frustum. Co. Litt. 5b. 
 
 FRUTECTUM. In old records. A place 
 overgrown with shrubs and bushes. Spel- 
 man; Blount. 
 
 FRUTOS. In Spanish law. Fruits; prod- 
 ucts; produce; grains; profits. White, New 
 Recop. bk. 1, tit. 7, c. 5, § 2. 
 
 FRYTHE (Saxon). In old English law. A 
 plain between woods. Co. Litt. 5b; Domes- 
 day Book. 
 
 An arm of the sea, or a strait between 
 two lands (from Lat. fretum, a strait). 
 Cowell. 
 
 FUAGE, or FOCAGE. Hearth money; a 
 tax laid upon each fireplace or hearth. 1 
 Bl. Comm. 324 J Spelman. An Imposition of 
 a shilling for every hearth, levied by Edward 
 III. (the Black Prince) in the dukedom of 
 Aquitaine. 
 
 FUER (Law Fr.; from Lat. fugere). In old 
 
 English law. To fly or fiee; to chase or 
 drive. Kelham; Law Fr. Diet. 
 
 Flight. Fuer en fait, fiight in fact, was 
 when a man did apparently and corporally 
 flee. Tf'uer en ley, flight in law, was when, 
 being called in the county court, he failed 
 to appear; for this was "flight," in interpre- 
 tation of law. Staund. P. C. lib. 3, c. 22; 
 Cowell. 
 
 FUERO. In Spanish law. Compilations or 
 general codes of law. 
 
 The usages and customs which, in the 
 course of time, had acquired the force of un- 
 written law. 
 
 Letters of privilege and exemption from 
 payment of certain taxes, etc. 
 
 Charters granted to cities or towns on con- 
 dition of their paying certain dues to the 
 owner of the land of which they had en- 
 joyment. 
 
 Acts of donation granted by some lord or 
 proprietor in favor of individuals, churches, 
 or monasteries. 
 
 Ordinances passed by magistrates in rela- 
 tion to the dues, fines, etc., payable by the 
 members of a community. 
 
 Letters emanating from the king or some 
 superior lord, containing the ordinances and 
 laws for the government of cities and towns, 
 etc. 
 
 This term has many and very various 
 meanings, as is shown above, and is some- 
 times used in other significations besides 
 those here given. See, also, Schmidt, Civ. 
 Law, 64; Escriche, Die. Raz. 
 
 Fuero de Castilla. In Spanish law. 
 
 The body of laws and customs which for- 
 merly governed the Castilians. 
 
 Fuero de Correos y Caminos. In 
 
 Spanish law. A special tribunal taking cog- 
 nizance of all matters relating to the post- 
 ofilce and roads. 
 
 Fuero de Guerra. In Spanish law. A 
 
 special tribunal taking cognizance of all mat- 
 ters in relation to persons serving in the 
 army. 
 
 Fuero de Marina. In Spanish law. A 
 
 special tribunal taking cognizance of all 
 matters relating to the navy, and to the per- 
 sons employed therein. Spelled, also, Juris- 
 dicoion de Marina. 
 
 Fuero Juzgo. In Spanish law. The 
 
 code of laws established by the Visigoths for 
 the government of Spain, many of whose 
 provisions are still in force. See the analy- 
 sis of this work in Schmidt's Civ. Law, 30. 
 
 Fuero iVIunicipal. In Spanish law. 
 
 The body of laws granted to a city or town 
 for its government and the administration 
 of justice. 
 
 Fuero Real. In Spanish law. A code 
 
 of laws promulgated by Alonzo el Sabio In 
 1255, and intended as an introduction to the 
 larger and more comprehensive code called 
 Las Siete Partidas, published eight years aft- 
 erwards. For an analysis of this code, see 
 Schmidt, Civ. Law, 67. 
 
 Fuero Viejo. The title of a compila- 
 tion of Spanish law, published about A. D. 
 992. Schmidt, Civ. Law, Introd. 65. 
 
FUGA CATALLORUM 
 
 (398) 
 
 FUNDUS 
 
 FUGA CATALLORUM. In old English 
 law. A drove of cattle. Blount. 
 
 FUGACIA. In old English law. A chase. 
 Spelman; Blount. 
 
 FUGAM FECIT (Lat. he fled). In old Eng- 
 lish law. A phrase in an inquisition, sig- 
 nifying that a person fled for treason or fel- 
 ony. The effect of this is to make the party 
 forfeit his goods absolutely, and the profits 
 of his lands, until he has been pardoned or 
 acquitted. 
 
 FUGATOR. A driver. Fiigatores carruca- 
 rnm, drivers of wagons. Fleta, lib. 2, c. 78. 
 
 FUGITATE. In Scotch practice. To out- 
 law, by the sentence of a court; to outlaw for 
 nonappearance in a criminal case. 2 Alls. 
 Grim. Pr. 350. I 
 
 FUGITATION. In Scotch law. Outlawry. 
 
 FUGITIVE FROM JUSTICE. One who, [ 
 having committed a crime, flees from the ju- 1 
 risdiction within which it was committed, i 
 without waiting to abide the consequences 
 of such crime. 
 
 All that is necessary is that the person 
 shall be found in a state other than that in 
 which he committed the crime; it being im- 
 material whether he left the latter state 
 with intent to escape punishment. 106 Mass. 
 227; 116 U. S. 80. 
 
 FUGITIVE OFFENDER. In English law. 
 One who, being accused of having commit- 
 ted a crime in one part of the British em- 
 pire, has left there, and gone to another 
 part thereof. See "Fugitive from Justice." 
 
 FUGITIVE SLAVE. One who, held in 
 bondage, flees from his master's power. 
 
 FUGITIVUS. , In the civil law. A fugitive; 
 a runaway slave. Dig. 11. 4; Code, 6. 1. See 
 the various definitions of this word in Dig. 
 21. 1. 17. 
 
 FULL. Complete; exhaustive; detailed. 
 
 FULL AGE. The age of twenty-one, by 
 common law, of both males and females, and 
 of twenty-five by the civil law. Litt. § 259; 
 1 Sharswood, Bl. Comm. 463; Vicat. Full 
 age is completed on the day preceding the 
 anniversary of birth. Salk. 44, 625; 1 Ld. 
 Raym. 480; 2 Ld. Raym. 1096; 2 Kent, 
 Comm. 263; 3 Har. (Del.) 557; 4 Dana (Ky.) 
 597. See "Age." 
 
 FULL BLOOD. A term of relation, denot- 
 ing descent from the same couple. Brothers 
 and sisters of full blood are those who are 
 born of the same father and mother, or, as 
 Justinian calls them, "ex utrogue parente 
 ccnjuncU." Nov. 118, cc. 2, 3; Mackeld. Civ. 
 Law, § 145. The more usual term in mod- 
 ern law is "whole blood" (<?. v.) 
 
 FULL COURT. In practice. A term ap- 
 plied to a court sitting in banc, and imply- 
 ing, strictly, the presence of all the judges. 
 3 Chit. Gen. Prac. 2. The term "full bench" 
 
 is frequently used. 
 
 FULL LIFE. Life in fact and in law. See 
 "In Full Life." 
 
 FULL PROOF. See "Plena Probatio." 
 
 FULLUM AQUAE. A stream of water, 
 such as comes from a mill. Blount. 
 
 FUMAGE. In old English law. The same 
 as fuage, or smoke farthings. 1 Bl. Comm. 
 324. See "Fuage." 
 
 FUNCTION. The occupation of an office. 
 By the performance of its duties, the ofilcer 
 is said to fill his function. Dig. 32. 65. 1. 
 
 FUNCTIONARY. One who is in office or 
 in some public employment. 
 
 FUNCTUS OFFICIO (Lat.) Aterm applied 
 to something which once has had life and 
 power, but which has become of no virtue 
 whatsoever. 
 
 For example, a warrant of attorney on 
 which a judgment has been entered is func- 
 tus officio, and a second judgment cannot 
 be entered by virtue of its authority. When 
 arbitrators cannot agree, and choose an um- 
 pire, they are said to be funcH officio. Wat- 
 son, Arb. 94. If a bill of exchange be sent 
 to the drawee, and he passes it to the credit 
 of the holder, it is functuft officio, and cannot 
 be further negotiated. 5 Pick. (Mass.) 85. 
 When an agent has completed the business 
 with which he was intrusted, his agency is 
 funcUis officios^ 2 Bouv. Inst, note 1382. 
 
 FUNDAMENTAL. This word is applied 
 to those laws which are the foundation of 
 society. Those laws by which the exercise 
 of power is restrained and regulated are 
 fundamental. The constitution of the United 
 States is the fundamental law of the land. 
 See Wolff. Inst. § 984. 
 
 FUNDAMUS. We found. One of the words 
 by which a corporation may be created in 
 England. 1 Bl. Comm. 473; 3 Steph. Comm. 
 173. 
 
 FUNDATIO (Lat.) A founding. 
 
 FUNDED DEBT. A public debt for the 
 payment of which money has been specific- 
 ally appropriated. 
 
 FUNDI PATRIMONIALES. 
 
 heritance. 
 
 Lands of in- 
 
 FUNDING A DEBT. The pledging of a 
 specific fund to keep down the interest, and 
 ultimately discharge the principal. When 
 the extinguishment of the debt is contem- 
 plated, it is called a "sinking fund." 
 
 FUNDITORES. Pioneers. Jacob. 
 
 FUNDS. In its most restricted sense, cash 
 on hand. In a wider sense it includes com- 
 mercial paper (3 B. Mon. [Ky.] 8); in a 
 still more extended sense, property of every 
 kind, when such property is contemplated as 
 something to be used or applied in the pay- 
 ment of debts (69 Iowa, 278). 
 
 FUNDUS (Lat. land). A portion of terri- 
 tory belonging to a person; a farm; lands, 
 
FUNERAL EXPENSES 
 
 (399) 
 
 FURNITURE OF A SHIP 
 
 including houses. 4 Coke, 87; Co. Litt. 5a; 
 3 Sharswood, Bl. Comm. 209. 
 
 FUNERAL EXPENSES. Money expended 
 in procuring the interment of a corpse. 
 
 The nature and extent of the allowance 
 for funeral expense varies with the solvency 
 of the estate, and the discretion of the sur- 
 rogate, so that it is impossible to define the 
 scope of the terms. 3 Redf. Wills, 243. 
 
 "Funeral expenses have been held to in- 
 clude carriage hire to convey the family and 
 friends to the place of interment (44 Miss. 
 124), suitable gravestones (30 Conn. 209), 
 monuments (77 Pa. St. 49), burial plots (5 
 Redf. Sur. [N. Y.] 484), and vaults (14 Serg. 
 & R. [Pa.] 64) ; also mourning apparel to 
 enable the widow and children to attend de- 
 cently at the funeral." 1 Ashm. (Pa.) 316; 
 2 Woerner, Admn. 761. 
 
 FUNGIBLE. A term applicable to things 
 that are consumed by the use, as wine, oil, 
 etc., the loan of which is subject to certain 
 rules, and governed by the contract called 
 mutuum. See Schmidt, Civ. Law, 145; Story, 
 Bailm.; 1 Bouv. Inst, notes 987, 1098. 
 
 FUR (Lat. a thief). One who stole with- 
 out using force, as distinguished from a rob- 
 ber. See "Purtum." 
 
 FUR MANIFESTUS (Lat.) In the civil 
 law. A manifest thief; a thief who is taken 
 in the very act of stealing, or in the place 
 where the theft was committed. Inst. 4. 1. 
 3; Dig. 47. 2. 3. 
 
 FURANDI ANIMUS. See "Animus." 
 
 FURCA. A fork; a gallows or gibbet. 
 Bracton, fol. 56. 
 
 FURCA ET FLAGELLUM (Lat. gallows 
 and whip). The meanest of servile tenures, 
 where the bondman was at the disposal of 
 the lord for life and limb. Cowell. 
 
 FURCA ET FOSSA (Lat. gallows and pit). 
 A jurisdiction of punishing felons, — the men 
 by hanging, the women by drowning. Skene 
 de Verb. Sign.; Spelman; Cowell. 
 
 FURIGELDUM. Mulct paid for theft. Ja- 
 eob. 
 
 FURIOSI NULLA VOLUNTAS EST. A 
 
 madman has no will. Dig. 50. 17. 5; Id. 1. 
 18. 13. 1; Broom, Leg. Max. (3d London Ed.) 
 282. 
 
 FURIOSITY. In Scotch law. Madness, as 
 distinguished from fatuity or idiocy. 
 
 FURIOSUS (Lat.) An insane man; a mad- 
 man; a lunatic. 
 
 In general, such a man can make no con- 
 tract, because he has no capacity or will: 
 Fur.iosus nullum negotium genere potest, 
 quia non intelligit quod agit. Inst. 3. 20. 8. 
 Indeed, he is considered so incapable of ex- 
 '«rcising a will that the law treats him as 
 if he were absent: Furiosi nulla voluntas 
 est.\Furiosus absentis loco est. Dig. 1. ult. 
 
 40. 124. 1. See "Insanity;" "Non Compos 
 Mentis." 
 
 FURIOSUS ABSENTIS LOCO EST. A 
 madman is considered as absent. Dig. 50. 
 17. 24. 1. 
 
 FURIOSUS NULLUM NEGOTIUM CON- 
 trahere (gerere) potest (quia non intelligit 
 quod agit). A lunatic cannot make a con- 
 tract. Dig. 50. 17. 5; 1 Story, Cont. (4th 
 Ed.) p. 76. 
 
 FURIOSUS SOLO FURORE PUNITUR. A 
 madman is punished by his madness alone. 
 Co. Litt. 247; Broom, Leg. Max. (3d London 
 Ed.) 14; 4 Sharswood, Bl. Comm. 24, 25. 
 
 FURIOSUS STIPULARI NON POTEST 
 nee aliquod negotium agere, qui non intelligit 
 quid agit. An insane person who knows not 
 what he does cannot make a bargain, nor 
 transact any business. 4 Coke, 126. 
 
 FURLINGUS (Lat.) A furlong, or a fur- 
 row- one-eighth part of a mile long. Co. Litt. 
 5b. 
 
 FURLONG. A measure of length, being 
 forty poles, or one-eighth of a mile. 
 
 FURLOUGH. A permission given in the 
 army and navy to an officer or private to ab- 
 sent himself for a limited time. 
 
 FURNACE (from fnrniis, an oven). A sum 
 of money paid to the lord by the tenants, 
 who were bound by their tenure to bake at 
 the lord's oven, for the privilege of baking 
 elsewhere. The word is also used to signify 
 the gain or profit taken and received for 
 baking. 
 
 FURNITURE. Personal chattels in the use 
 of a family. By the term "household furni- 
 ture" in a will, all personal chattels will 
 pass which may contribute to the use or con- 
 venience of the householder, or the orna- 
 ment of the house; as, plate, linen, china 
 (both useful and ornamental), and pictures. 
 Ambl. 610; 1 Johns. Ch. (N. Y.) 329, 388; 
 1 Sim. & S. 189; 3 Russ. 301; 2 Williams-, 
 Ex'rs, 752; 1 Rop. Leg. 203, 204; 3 Ves. 312, 
 313. 
 
 "It rthe word "furniture"] is very general 
 both in meaning and application, and its 
 meaning changes so as to take the color of, 
 or to be in accord with, the subject to which 
 it Is applied." The articles spoken of as 
 furniture of different places, as of a house, a 
 ship, or a store, "differ in kind according to 
 the purposes which they are intended to sub- 
 serve; yet, being put and employed in the 
 several places as the equipment thereof for 
 ornament, or to promote comfort or to facili- 
 tate the business therein done, and being 
 kept or intended to be kept for those or 
 some of those purposes, they pertain to such 
 places, and constitute the furniture thereof." 
 63 Ala. 401. 
 
 FURNITURE OF A SHIP. This term in- 
 cludes everything with which a ship requires 
 to be furnished or equipped to make her 
 seaworthy. It comprehends all articles fur- 
 
FURNIVAL'S INN 
 
 (400) 
 
 FYHTWITE 
 
 nished by ship chandlers, which are almost 
 innumerable. 1 Wall. Jr. (U. S.) 369. 
 
 FURNIVAL'S INN. Formerly an inn of 
 chancery. See "Inns of Chancery." 
 
 FUROR CONTRAHI MATRIMONIUM 
 non sinit, quia consensu opus est. Insanity 
 prevents marriage from being contracted, 
 because consent is needed. 1 Ves. & B. 140; 
 1 Bl. Comm. 439; 4 Johns. Ch. (N. Y.) 343, 
 345. 
 
 FURST AND FONDUNG (Saxon). Time 
 to advise or take counsel. Laws Hen. I. c. 
 46; Whishaw. 
 
 FURTHER ADVANCE. A second or sub- 
 sequent loan of money to a mortgagor by 
 a mortgagee, either upon the same security 
 as the original loan was advanced upon, or 
 an additional security. Equity considers the 
 arrears of interest on a mortgage security 
 converted into principal, by agreement be- 
 tween the parties, as a further advance. 
 Wharton. 
 
 FURTHER ASSURANCE. This phrase is 
 frequently used in covenants when a cove- 
 nantor has granted an estate, and it is sup- 
 posed some further conveyance may be re- 
 quired. He then enters into a covenant for 
 further assurance, that is, to make any oth- 
 er conveyance which may be lawfully re- 
 quired. 
 
 FURTHER DIRECTIONS. When a mas- 
 ter ordinary in chancery made a report in 
 pursuance of a decree or decretal order, the 
 cause was again set down before the judge 
 who made the decree or order, to be proceed- 
 ed with. Where a master made a separate 
 report, or one not in pursuance of a decree 
 or decretal order, a petition for consequen- 
 tial directions had to be presented, since the 
 cause could not be set down for further di- 
 rections under such circumstances. See 2 
 Danlell, Ch. Pr. (5th Ed.) 1233, note; Ra- 
 palje & L. 
 
 FURTHER HEARING. In practice. Hear- 
 ing at another time. 
 
 FURTHER MAINTENANCE OF ACTION, 
 
 „plea to. A plea of matter arising since the 
 commencement of the suit. 
 
 FURTUM (Lat. theft). The fraudulent ap- 
 propriation to one's self of the property of 
 another, with an intention to commit theft, 
 without the consent of the owner. Fleta, 
 lib. 1, c. 36; Bracton, 150; 3 Inst. 107. 
 
 The thing which has been stolen. Brac- 
 ton, 151. 
 
 FURTUM CONCEPTUM (Lat.) The theft 
 which wa^ disclosed where, upon searching 
 any one in the presence of witnesses in due 
 form, the thing stolen is found. "Detected 
 theft" is, perhaps, the nearest concise trans- 
 lation of the phrase, though not quite exact. 
 Vicat. 
 
 FURTUM EST CONTRECTATIO REI 
 alienae fraudulenta, cum animo furandi, In- 
 vito illo domino cujus res ilia fuerat. Theft 
 
 is the fraudulent handling of another's prop- 
 erty, with an intention of stealing, against 
 the will of the proprietor, whose property It 
 was. 3 Inst. 107. 
 
 FURTUM GRAVE (Lat. aggravated theft). 
 Formerly, there were three classes of this 
 theft: First, by landed men; second, by a 
 trustee or one holding property under a 
 trust; third, theft of the majora animalia, 
 larger animals. Including children. 1 Bouv. 
 Civ. Law, 352, note; Bell, Diet. 
 
 FURTUM MANIFESTUM (Lat. open theft). 
 Theft where a thief is caught with the prop- 
 erty in his possession. Bracton, 150b. 
 
 FURTUM NON EST UBI INITIUM HA- 
 bet detentionis per dominum rei. It is not 
 theft where the commencement of the deten- 
 tion arises through the owner of the thing. 
 3 Inst. 107. 
 
 FURTUM OBLATUM (Lat.) The theft 
 committed when stolen property is offered 
 any one and found upon him; the crime of 
 receiving stolen property. Calv. Lex.; Vi- 
 cat. 
 
 FUSTIGATIO. In old English law. A beat- 
 ing with sticks or clubs; one of the ancient 
 kinds of punishment of malefactors. Brac- 
 ton, fol. 104b, lib. 3, tr. 1, c. 6. 
 
 FUSTIS. In old English law. A staff, 
 used in making livery of seisin. Bracton, 
 fol. 40. 
 
 A baton, club, or cudgel. Spelman. 
 
 FUTURE DEBT. In Scotch law. A debt 
 which is created, but which will not become 
 due till a future day. 1 Bell, Comm. (5th 
 Ed.) 315. 
 
 FUTURE ESTATE. An estate which is to 
 commence in possession in the future {in 
 futuro). It includes remainders, reversions, 
 and estates limited to commence in futuro 
 without a particular estate to support them, 
 which last are not good at common law, ex- 
 cept in the case of terms for years. See 2 
 Sharswood, Bl. Comm. 165. In New York 
 law it has been defined as "an estate limited 
 to commence in possession at a future day, 
 either without the intervention of a pre- 
 cedent estate, or on the determination by 
 lapse of time, or otherwise, of a precedent 
 estate created at the same time," thus ex- 
 cluding reversions, which cannot be said to 
 be created at the same time, because they 
 are a remnant of the original estate remain- 
 ing in the grantor. 11 Rev. St. N. Y. (3d 
 Ed.) 9, § 10. 
 
 FUTURES. See "Gambling Contract." 
 
 FUTURI (Lat. those who are to be). Part 
 of the commencement of old deeds. "Sciant 
 praesentes et fiituri, guoi ego, talis, dedi et 
 cniicrs.ii," etc.. let all .men now living and 
 to come know that I, A. B., have, etc. Brac- 
 ton, 34b. 
 
 FUZ, or FUST. A wood or forest. 
 
 FYHTWITE. One of the fines incurred 
 for homicide. 
 
FYLE 
 
 (401) 
 
 FYRDWITE 
 
 FYLE, or FFYLE (Scotch). In old Scotch 
 practice. To declare or find guilty; liter- 
 ally, to defile; to make or declare foul; as 
 clenge was to acquit, literally to clean or 
 cleanse. "Swa that he quha, of his con- 
 science, can nocht clenge, he of neccessitie 
 mon fyle." 1 Pitc. Crim. Tr. pt. 1, p. 314. 
 "The assyise in ane voce ffylis the said R. 
 W." 2 Pitc. Crim. Tr. 73. 
 
 FYLIT. In old Scotch practice. Fyled; 
 found guilty. See "Fyle." 
 
 FYNDERINGA (Saxon). An offense or 
 trespass for which the fine or compensation 
 was reserved to the king's pleasure. Leg. 
 
 Hen. I. c. 10. Its nature is not known. Spel- 
 man reads fynderinga, and Interprets it 
 "treasure t^ove;" but Cowell reads fyrderin- 
 ga, and interprets it a joining of the king's 
 fird or host, a neglect to do which was pun- 
 ished by a fine called "flrdnite." See Cowell; 
 Spelman. Du Cange agrees with Cowell. 
 
 FYRD. The military array or land force 
 of the whole country. Contribution to the 
 fyrd was one of the imposts forming the tri- 
 noda necessitas. Wharton. 
 
 FYRDWITE. The fine incurred by neg- 
 lecting to join the fyrd; one of the rights of 
 the crown. Anc. Inst. Eng. 
 
G 
 
 (402) 
 
 GAMBLING CONTRACT 
 
 G 
 
 G. In Law French. Frequently used at 
 the beginning of words to express the Eng- 
 lish "W.;" as "gage" for "wage," "gainage" 
 for "wainage," aM the like. 
 
 GABEL, GAFOL, or GAVEL. A tax, im- 
 position, or duty. This word is said to have 
 the same signification that gabelle fornierly 
 had in Prance. Cunningham. But this 
 seems to be an error; for gabelle signified in 
 that country, previous to its revolution, a 
 duty upon salt. Merlin, Repert. Lord Coke 
 says that gabel or gavel, gablum, gabellum, 
 gabelletum, galhelletum, and gavillettum sig- 
 nify a rent, duty, or service yielded or done 
 to the king or any other lord. Co. Litt. 
 142a. 
 
 GAB ELLA. In old European law. A tax 
 or duty on merchandise or personalty. Spel- 
 man; Cowell. 
 
 A tax on salt in Prance. Spelman; Brande. 
 
 GABLUM, GABULUM, or GABULA. The 
 gable end of a building. Kennett, Par. Ant. 
 p. 201; Cowell. 
 
 A tax. Du Cange. 
 
 GABULUS DENARIORUM. Rent paid in 
 money. Seld. Tit. Hon. §21. 
 
 GAFOLGILD.orGAFFOLDGILD. The pay- 
 ment of rent or income. 
 
 Gafolgild, payment of such rent, etc. Ga- 
 folland was land liable to tribute or tax 
 (Cowell) ; or land rented (Saxon Diet.) See 
 Tayl. Hist. Gavelkind, pp. 26, 27, 1021; Anc. 
 Inst. Bng. 
 
 GAGE, or GAGER (Law Lat. vadium). Per- 
 sonal property placed by a debtor in posses- 
 sion of his creditor as a security for the 
 payment of his debt; a pledge or pawn (q. 
 V.) Glanv. lib. 10, c. 6; Britt. c. 27. 
 
 To pledge; to wage. "Webster. 
 
 Oager is used both as noun and verb; e. g., 
 gager del ley, wager of law. Jacob. Gager 
 ley, to wage law. Britt. c. 27. Gager deliv- 
 erance, to put in sureties to deliver cattle 
 distrained. Termes de la Ley; Kitch. Cts. 
 fol. 145; Fitzh. Nat. Brev. fols. 67, 74. 
 
 A mortgage is a dead gage or pledge; for, 
 whatsoever profit it yields, it redeems not 
 itself, unless the whole amount secured is 
 paid at the appointed time. Cowell. 
 
 GAGE, ESTATES IN. Estates held in se- 
 curity, of which mortgages are the most com- 
 mon example. 
 
 GAGER DE DELIVERANCE. When he 
 who has distrained, being sued, has not de- 
 livered the cattle distrained, then he shall 
 not only avow the distress, but gager deliver- 
 ance, i. e., put in surety or pledge that he 
 will deliver them. Fitzh. Nat. Brev. 
 
 GAGER DEL LEY. Wager of law. 
 
 GAIN. Profits. 
 
 A mutual insurance company is an asso- 
 ciation for the purpose of "gain;" the reduc- 
 tion of a loss being a gain. 51 L. J. Ch. Div. 
 344. 
 
 GAI N AGE. Wainage, or the draught oxen, 
 horses, wain, plough, and furniture for car- 
 rying on the work of tillage. Also, the land 
 tilled itself, or the profit arising from it. 
 Old Nat. Brev. fol. 117. 
 
 Gainor, the sokeman that hath such land 
 in occupation. Old Nat. Brev. fol. -12. 
 
 GAINERY. Tillage, or the profit of tillage. 
 Blount. 
 
 GAJUM (from gagium). In old European 
 law. A thick wood. Spelman. 
 
 GALE. In English law. The right to open 
 and work a mine within the hundred of St. 
 Briavels, or a stone quarry within the open 
 lands of the forest of Dean, in Gloucester- 
 shire. The peculiar laws and customs of this 
 district are regulated by St. 1 & 2 Vict. c. 
 43. 
 
 GALEA. A galley. Spelman. 
 
 GALENES. In old Scotch law. A kind of 
 compensation for slaughter. Bell, Diet. 
 
 GALLI HALPENS, or GALLI HALF- 
 pence. A kind of coin which, with suskins 
 and doitkins, was forbidden by St. 3 Hen. V. 
 c. 1; 4 Bl. Comm. 99; 3 Reeve, Hist. Eng. 
 Law, 261. 
 
 GALLOWS. An erection on which to hang 
 criminals condemned to death. 
 
 GAMACTA (Law Lat.) In old European 
 law. A stroke or blow. L. Boior, tit. 2, c. 4; 
 Spelman. 
 
 GAMALIS (Law Lat.) In old European 
 law. A child born in lawful wedlock; also 
 one born to betrothed, but unmarried, par- 
 ents. Spelman. 
 
 GAMBLING. See "Gaming." 
 
 GAMBLING CONTRACT. One in which 
 the parties in effect stipulate that they shall 
 gain or lose upon the happening of an un- 
 certain event in which they have no inter- 
 est except that arising from the possibility 
 of such gain or loss. 153 Pa. St. 247. 
 
 Gambling contracts may be by bet or 
 wager {g. v.), which is their simplest form; 
 by lottery (g. v.) ; or they may be disguised 
 in the form of a legitimate transaction, the 
 ordinary form being by dealing in futures (g. 
 v., infra) . The validity of such contracts de- 
 pends on whether the intention of the par- 
 ties at the inception is to deliver the goods 
 bargained for, or to settle on the basis of 
 difference in price (155 111, 617; 53 N. T. 
 
GAMBLING CONTRACT 
 
 (403) 
 
 GAMBLING CONTRACT 
 
 318; 59 Wis. 197). The course of specula- 
 tive dealing has given rise to a number of 
 technical terms, some of which are here 
 defined. 
 
 "Bulls and Bears." See infra, this title, 
 "Long;" "Short." 
 
 "Corner." An artificial scarcity created 
 by holding property off the market for the 
 extortion of abnormally high prices. Where 
 the .purchases of any party or parties ex- 
 ceed the amount of contract grain in regu- 
 lar warehouses on the last delivery day of 
 the month for which such purchases have 
 been made, the grain so bought is said to 
 be cornered. 
 
 "Cover." The buying in of grain or stocks 
 to fill short contracts is called "covering." 
 
 "Covering shorts." Buying in property to 
 fill contracts (usually for future delivery) 
 previously made. 
 
 "Delivery." When stock is brought to tlie 
 buyer in exact accordance with the rules of 
 the stock exchange it is called a "good de- 
 livery." When there are irregularities, the 
 shares being of unacceptable issues, or the 
 rules of the exchange being contravened in 
 some particular, the delivery is pronounced 
 "bad," and the buyer can appeal to the 
 board. Also when warehouse receipts for 
 grain are delivered in fulfillment of con- 
 tracts. 
 
 "For a turn." Said of a speculative in- 
 vestment for a small profit or loss. A quick 
 play. A "flyer." See infra, this title, "Scalp- 
 ing." 
 
 "Futures." Buyers of cash products pro- 
 tect themselves against possible loss by sell- 
 ing an agreed amount for future delivery in 
 some general market. Such contracts are 
 called "futures" because they do not termi- 
 nate until some designated month in the fu- 
 ture. These transactions pass from hand to 
 hand, and may be turned over hundreds and 
 thousands of times in an active market be- 
 fore maturity, and this is called "dealing in 
 futures." Nearly all speculative operations 
 are In futures. 
 
 "Hedge." The operation called "hedging" 
 by speculators is practically the same as 
 "straddling," though the terms are not 
 synonymous. Tr9,ders hedge to avert a loss, 
 and straddle for a profit. See infra, this 
 title, "Straddle." 
 
 "Holding the market." Buying sufficient 
 stock or commodities to keep the price from 
 declining. 
 
 "In sight." Said of stocks of grain, cot- 
 ton, coffee, or other merchandise available 
 for immediate use. Grain stored in private 
 warehouses, or held by producers, is not 
 usually included in the supply "in sight." 
 
 "Insiders." Those who own a controlling 
 interest or an important interest in the 
 stocks of a concern, and who are therefore 
 Influential in directing its affairs. 
 
 "Investment buying." This phrase is gen- 
 erally used in contradistinction to buying 
 for speculation, or for a quick turn in the 
 market. It is understood to mean buying 
 to hold for a considerable time. 
 
 "Long." One who has property bought in 
 anticipation of a rise in price. Hence, for a 
 trader to be "long" of stocks or grain pre- 
 
 "bull.' 
 
 Also used ad- 
 
 supposes him to be a 
 jectively. 
 
 "Long interest." The aggregate amount 
 of investment holdings in any speculative 
 market. 
 
 "Long market." A market that is over- 
 bought, the volume of open contracts to 
 buy property for future delivery being in 
 dangerous excess of the probable demand. 
 
 "Margin." Money or collaterals deposited 
 with a broker to protect contracts, usually 
 for future delivery. 
 
 "Option." Property bought or sold at the 
 call or demand of the buyer or seller, as 
 may be specified; a conditional contract. 
 
 "Outsiders." The general trading public. 
 The investors in stock or grain who base 
 their judgment largely on the general situa- 
 tion. 
 
 "Pegged." Said of a market that refuses 
 either to advance or to decline, because 
 brokers have been supplied with selling or 
 buying orders in excess of the demand. 
 
 "Privileges." "Puts" and "calls." A "put" 
 is the privilege or option, which a person 
 purchases, of "putting," i. e., delivering prop- 
 erty or contracts for property to the seller 
 of such privilege, at a named price, within 
 a stipulated time, — one or more days, weeks, 
 or months. "Puts" are good (from the buy- 
 er's standpoint) when the market declines 
 below the "put" price within the time cov- 
 ered by the privilege contract. The buyer 
 can then buy the property at the cheaper 
 figure, and "put" it to the person who sold 
 him the risk, his profit being the difference 
 between the "put" price and the quotation 
 at which the property is bought with which 
 to make the delivery. A "call" is the re- 
 verse of a "put," the purchaser of a "call" 
 acquiring the right to "call" upon the seller 
 of the privilege for property, or contracts 
 for property, at a named price, within a 
 stipulated time. "Calls" are good when the 
 market advances above the call price, and 
 the buyer of such privilege is enabled to 
 sell at a profit the property "called" from, 
 the seller of the privilege. Trading in priv- 
 ileges is illegal in some states, notably in 
 Illinois. 
 
 "Pyramiding." Enlarging one's operations 
 by the use of profits which one has made. 
 "Scalper." One who trades in options 
 continually, and, by reading the temper of 
 the market at the moment, tries to get a 
 profit out of the minor fluctuations. 
 
 "Scalping." Buying and selling on small 
 fluctuations of the market. Taking a small 
 profi^. or a small loss. 
 
 "Short," or "Short interest." The seller of 
 a property which he does not possess 'and 
 will not deliver until he has afterwards 
 bought the same is called a "short." He is, 
 by necessity, a "bear." The aggregate 
 amount of such shortage by these sellers is 
 called the "short interest." 
 
 "Short market." A market that is over- 
 sold; the volume of open contracts to de- 
 liver property being in dangerous excess 
 of available supply. 
 
 "Short selling." The process of selling 
 property for future delivery, in the expecta- 
 tion of being able to obtain the property 
 
GAMBLING DEVICE 
 
 (404) 
 
 GANANCIAS 
 
 •SZl 
 
 cheaper before the maturity of contract, or 
 of being able to close out the contract at a 
 profit without the actual delivery of the 
 property. 
 
 "Split." A transaction, one-half at one 
 quotation and one-half at another. For in- 
 stance, the quotation 53-%-% means that 
 one-half of the quantity traded in was at 
 53% and the other half at 53%. This quo- 
 tation is just half-way between 53% and 
 53%. Only an even number of thousand 
 bushels can be traded in on a split, as, for 
 instance, 2,000, 6,000, 10,000, etc. 
 
 "Spread." A "spread" is a double priv- 
 ilege entitling the holder to deliver to, or 
 to demand from, the signer a certain amount 
 of stock on the terms specified. Differences 
 in prices, as between May and July wheat, 
 or between the put and call price, or between 
 the price of the same option in different 
 cities. 
 
 "Squeezed." Said of "short sellers," who, 
 by reason of having oversold the market, 
 are forced to pay an artificially high price 
 for property with which to fill contracts. 
 
 "Stop order." An operator may give his 
 broker orders to close out his deals when 
 the market goes against him, and when quo- 
 tations reach a certain point, and in that 
 case he is said to have given a "stop or- 
 der." When a declining market is filled 
 with "stop orders" to sell, the bears may 
 make extraordinary efforts to force quota- 
 tions down to a point which reaches the 
 "stop orders," and which will thus throw 
 on the market more securities or commodi- 
 ties. In the same way, on an advancing mar- 
 ket, the bulls may endeavor to raise quota- 
 tions to a point that will reach stop orders 
 of short sellers, and force their brokers to 
 become buyers. 
 
 "Straddle." A trader who is "long" of 
 one option and "short" of another option 
 has "straddled" the market. Example: A. 
 buys corn for May delivery, and sells an 
 equal amount for December delivery, in the 
 expectation that the former will advance and 
 the latter decline. It is also called a "strad- 
 dle" when a trader buys property for future 
 delivery in one market, and sells in another. 
 
 "Wash trades." Pretended trading. Trades 
 made on an open market by parties between 
 whom there is a tacit or private under- 
 standing that they shall be void. Done with 
 a view to influence prices, and considered 
 a reprehensible practice. 
 
 GAMBLING DEVICE, or GAMING DE- 
 vice. Any appliance or contrivance used for 
 the purpose of gambling. 
 
 The game played, the intangible result of 
 the device, is to be distinguished from the 
 device. Thus, the game of poker is not a 
 "gambling device." 2 Orig. 238. 
 
 GAMBLING POLICY. A policy of life in- 
 surance issued to one as beneficiary who has 
 no interest in the life of the Insured. 
 
 GAME. Birds and beasts of a wild nature, 
 obtained by fowling and hunting. Bac. Abr. 
 See 11 Mete. (Mass.). 79, 
 
 GAME LAWS. Laws regulating the kill- 
 ing or taking of birds and beasts, as game. 
 
 The English game laws are founded on the 
 idea of restricting the right of taking gama 
 to certain privileged classes, generally land- 
 holders. In 1831, the law was so modified as 
 to enable any one to obtain a certificate or 
 license to kill game, on payment of a fee. 
 The laws relating to game in the United 
 States are generally, if not universally, 
 framed with reference to protecting the an- 
 imals from indiscriminate and unreasonable 
 havoc, leaving all persons free to take game, 
 Under certain restrictions as to the season 
 of the year and the means of capture. The 
 details of these regulations must be sought 
 in the statutes of the several states. 60 N 
 Y. 10; 97 111. 320. 
 
 GAMING. A contract between two or more 
 persons, by which they agree to play by cer- 
 tain rules at cards, dice, or other contriv- 
 ance, and that one may be the loser, and 
 another the winner. 
 
 To stake money on a chance. Whart. 
 Crim. Law, § 1465. 
 
 Any sport or play carried on between two 
 persons, depending on skill, chance, or the 
 transpiring of an unknown future event, on 
 the result of which some valuable thing is 
 to be, without consideration, transferred 
 from one to the other, "feish. St. Crimes, § 
 861. 
 
 The statutes against gaming are generally 
 confined to games Into which an element of 
 chance enters. Thus, tenpins (8 Ired. [N. 
 C] 271), foot ball (1 Mod. 136), and wrest- 
 ling (2 Car. & P. 376) have been held not to 
 be gaming. 
 
 "Gaming" is synonymous with "gam- 
 bling." Bish. St. Crimes, § 858. 
 
 It is to be distinguished from "bet" or 
 "wager," which may be laid upon games, or 
 things not games. 9 Ind. 14. 
 
 GAMINGHOUSES. Houses kept for the 
 purpose of permitting persons to gamble for 
 money or other valuable thing. They are 
 nuisances in the eye of the law, being detri- 
 mental to the public, as they promote cheat- 
 ing and other corrupt practices. 1 Russ. 
 Crimes, 299; Rose. Crim. Ev. 663; 3 Denio 
 (N. Y.) 101. 
 
 A house, ofiice, room, or other place kept 
 for the purpose of betting between persons 
 resorting thereto. Steph. Crim. Law, art. 
 182. 
 
 GANANCIAL. In Spanish law. Property 
 held in community. 
 
 The property of which it is formed be- 
 longs In common to the two consorts, and, on 
 the dissolution of the marriage, is divisible 
 between them in equal shares. It is confined 
 to their future acquisitions durante' el mat- 
 rimonio, and the frutos or rents and profits 
 of the other property. 1 Burge, Confi. Laws, 
 418, 419; Aso & M. Inst. bk. 1, tit. 7, c. 5, § 1. 
 
 GANANCIAS (Spanish). In Spanish law. 
 Gains or profits resulting from the employ- 
 ment of property held by husband and wife 
 
 All sorts of birds and beasts that are ob- in common. White, New Recop. bk. 1, tit. 7, 
 
 jects of the chase. Wharton. 
 
 Ic. 5. 
 
GANG WEEK 
 
 (405) 
 
 GARNISHEE 
 
 GANG WEEK. The time when the bounds 
 of the parish are lustrated or gone over by 
 the parish officers, — rogation week. Enc. 
 Lond.; Rapalje & L. 
 
 GANGIATORI. Officers in ancient times, 
 whose business it was to examine weights 
 and measures. Skene de Verb. Sign. 
 
 GANTELOPE. A military punishment, in 
 which the criminal running between the 
 ranks receives a lash from each man. Enc. 
 Lond. This was called "running the gaunt- 
 lett," the word itself being pronounced 
 "gauntlett." 
 
 GAOL. This word, sometimeswritten"jail," 
 is said to be derived from the Spanish jaula, 
 a cage (derived from oaula) ; in French, 
 geole, gaol. 1 Man. & G. 222, note (a). A 
 prison or building designated by law or used 
 by the sheriff for the confinement or deten- 
 tion of those whose persons are judicially 
 ordered to be kept in custody. See 6 Johns. 
 (N. Y.) 22; 14 Viner, Abr. 9; Bac. Abr.; 
 Dane, Abr. Index; 4 Comyn, Dig. 619. See 
 "Jail." 
 
 GAOL DELIVERY. In English law. To 
 insure the trial, within a certain time, of all 
 prisoners, a patent, in the nature of a let- 
 ter, is issued from the king to certain per- 
 sons, appointing them his justices, and au- 
 thorizing them to deliver his gaols. See 
 "General Gaol Delivery." 
 
 GAOL LIBERTIES, or GAOL LIMITS. A 
 
 space marked out by limits, which is consid- 
 ered as a part of the prison, and within 
 which prisoners are allowed to go at large 
 on giving security to return. Owing to the 
 rigor of the law which allowed capias, or at- 
 tachment of the person, as the first process 
 against a debtor, statutes were from time to 
 time passed enlarging the gaol liberties, in 
 order to mitigate the hardships of imprison- 
 ment. Thus, the whole city of Boston was 
 held the "gaol liberties" of its county gaol. 
 And so with a large part of New York City. 
 Act March 13, 1830 (3 Rev. St. N. Y. 1829, 
 App. 116). The prisoner, while within the 
 limits, is considered as within the walls of 
 the prison. 6 Johns. (N. Y.) 121. 
 
 GAOLER. The keeper of a gaol or prison; 
 one who has the legal custody of the place 
 where prisoners are kept. It is his duty to 
 keep the prisoners in safe custody, and for 
 this purpose he may use all necessary force. 
 1 Hale, P. C. 601. But any oppression of a 
 prisoner under a pretended necessity will be 
 punished; for the prisoner, whether he be a 
 debtor or a criminal, is entitled to the pro- 
 tection of the laws from oppression. 
 
 GARANDIA, or GARANTIA (Law Lat.) A 
 warranty. Spelman. 
 
 GARATHINX (Lomb.) In old Lombardic 
 law. A gift; a free or absolute gift; a gift 
 of the whole of a thing. Spelman. 
 
 GARAUNTOR. A warrantor or vouchee, 
 who is obliged by his warranty (garauntie) 
 
 to warrant (.garaunter) the title of the war- 
 rantee (garaunte) , that is, to defend him in 
 his seisin, and if he do not defend, and the 
 tenant be ousted, to give him land of equal 
 value. Britt. c. 75. 
 
 GARBA (Law Lat.) In old English law. 
 A bundle or sheaf. Applied to bundles of 
 grain (Bracton, fol. 209), sheaves of arrows 
 (Skene de Verb. Sign.), etc. 
 
 GARBALLO DECIMAE (Law Lat. from 
 garba, a sheaf). In Scotch law. Tithes of 
 corn; such as wheat, barley, oats, pease, etc. 
 Also called parsonage tithes (decimae recto- 
 riae). Ersk. Inst. bk. 11, tit. 10, § 13. 
 
 GARBLE. In old English statutes. To sort 
 or cull out the good from the bad in spices, 
 drugs, etc. Cowell; Blount. 
 
 GARBLER OF SPICES. An ancient offi- 
 cer in the city of London, who might enter 
 into any shop, warehouse, etc., to view and 
 search drugs and spices, and garble and 
 make clean the same, or see that it be done. 
 St. 6 Anne, c. 16. 
 
 GARD. A ward of a city. 
 
 GARDE. Custody; ward; care or keeping. 
 
 GARDEIN. A guardian. Britt. c. 35, 81. 
 Used as an English word in Co. Litt. 38b. 
 
 GARDEN. A piece of ground appropriated 
 to raising plants and flowers. 
 
 A garden is a parcel of a house, and passes 
 with it. 2 Coke, 32; Plowd. 171; Co. Litt. 
 5b, 56a, 56b. But see F. Moore, 24; Bac. 
 Abr. "Grants" (I). 
 
 GARDIANUS (Law Lat.) In old English 
 law. A guardian, defender, or protector. In 
 feudal law, gardio. Spelman. 
 
 A warden. Gardianus ecclesiae, a church- 
 warden. Oardianus Quingue Portuum, war- 
 den of the Cinque Ports. Spelman. 
 
 GARDINUM (Law Lat.) In old English 
 law. A garden. Reg. Grig, lb, 2; Fleta, lib. 
 4, c. 19, § 8. 
 
 GARENE (Law Fr.) A warren; a privi- 
 leged place for keeping animals. Britt. c. 
 19. 
 
 GARNISH. 
 
 In English Law. Money paid by a pris- 
 oner to his fellow prisoners on his entrance 
 into prison. 
 
 To warn. To garnish the heir is to warn 
 the heir. Obsolete. 
 
 In Practice. To attach by process of 
 
 garnishment. 
 
 GARNISHEE. In practice. A person who 
 has money or property in his possession be- 
 longing to a defendant, which money or 
 property lias been attached in his hands, and 
 who has had notice of such attachment. He 
 is so called because he has had warning or 
 notice of the attachment. 
 
 Sometimes incorrectly used as a verb in 
 place of "garnish." 
 
GARNISHMENT 
 
 (406) 
 
 GAVELLER 
 
 GARNISHMENT. 
 
 In Old Practice. A warning to any one 
 
 for his appearance, in a cause in whicti he is 
 not a party, for the information of the court 
 and explaining a cause. For example, in the 
 practice , of Pennsylvania, when an attach- 
 ment issues against a debtor, in order to 
 secure to the plaintiff a claim due by a third 
 person to such debtor, notice is given to such 
 third person, which notice is a garnishment, 
 and he is called the "garnishee." 
 
 In Modern Practice. A writ or process 
 
 by which money owing to a defendant is at- 
 tached in the hands of the creditor, and the 
 creditor is required to appear at a designated 
 time, and disclose the nature and extent of 
 the indebtedness. 
 
 In some states this process is called "trus- 
 tee process," in Connecticut "factorizing pro- 
 cess," and in New York the term "garnish- 
 ment" is not used, it being classed as an at- 
 tachment. 
 
 GARNISTURA. In old English law. Gar- 
 niture; whatever is necessary for the forti- 
 fication of a city or camp, or for the orna- 
 ment of a thing. 8 Rymer, 328; Du Gauge; 
 Co well; Blount. 
 
 GARSUMNE. In old English law. An 
 amerciament or fine. Cowell. See "Gres- 
 sume;" "Grossome;" "Gersume." 
 
 GARTER. See "Knights of the Garter." 
 
 GARTH. In English law. A yard ; a little 
 close or homestead in the north of England. 
 Cowell; Blount. 
 
 A dam or wear in a river, for the catching 
 of fish. Id. 
 
 GARYTOUR. In old Scotch law. Warder. 
 1 Pitc. Crim. Tr. pt. 1, p. 8. 
 
 GASTALDUS. A steward or bailiff. Spel- 
 man. Also applied to higher officers, as a 
 governor of a city. 
 
 In the book of feuds it seems to have been 
 used in the sense of "warden." 
 
 GASTINE (Law Fr.) Waste or uncultivat- 
 ed ground. Britt. c. 57. 
 
 GATE (Saxon, geat). At the end of names 
 of places, signifies way or path. Cunning- 
 ham. 
 
 In the words "beast gate" and "cattle 
 gate," it means a right of pasture. These 
 rights are local to Suffolk and Yorkshire, re- 
 spectively. They are considered as corpo- 
 real hereditaments, for which ejectment will 
 lie (2 Strange, 1084; 1 Term R. 137), and 
 are entirely distinct from right of common. 
 The right is sometimes connected with the 
 duty of repairing the gates of the pasture, 
 and perhaps the name comes from this. 
 
 GAUDIES. Double commons. 
 A term used in the English universities. 
 Wharton. 
 
 GAUGEATOR (Law Lat.) In old English 
 law. A ganger or gager. Cowell. 
 
 GAUGE R. An officer appointed to exam- 
 ine all tuns, pipes, hogsheads, barrels, and 
 tierces of wine, oil, and other liquids, and to 
 give them a mark of allowance, as contain- 
 ing lawful measure. 
 
 GAUGETUM (LawLat.) A gauge or gaug- 
 ing. Blount. 
 
 .GAVEL. In old English law. Tribute; 
 toll; custom; yearly revenue, of which there 
 were formerly various kinds. Jacob; Tayl. 
 Hist. Gavelkind, 26, 102. See "Gabel." 
 
 GAVELBRED. In English law. Rent re- 
 served in bread, corn, or provision; rent pay- 
 able in kind. Cowell. 
 
 GAVELCESTER. A certain measure of 
 rent ale. Cowell. 
 
 GAVELET. A customary process, where- 
 by the lord of lands in gavelkind might seize 
 the land in the nature of a distress, to be 
 returned to the tenant in case he paid the 
 rent. Crabb, Hist. Eng. Law, 203. 
 
 GAVELGELD (Saxon, gavel, rent, geld, pay- 
 ment). That which yields annual profit or 
 toll; the tribute or toll itself. 3 Mon. Angl. 
 155; Cowell; Du Cange, "Gavelgida." 
 
 GAVELHERTE. A customary service of 
 ploughing. Du Cange. 
 
 GAVELING MEN. Tenants who paid a re- 
 served rent, besides some customary duties 
 to be done by them. Cowell. 
 
 GAVELKIND. The tenure by which almost 
 all lands in England were held prior to the 
 Conquest, and which is still preserved in 
 Kent. 
 
 All the sons of a tenant of gavelkind lands 
 take equally, or their heirs male and female 
 by representation. The wife of such tenant 
 is dowable of one-half the lands. The hus- 
 band of such tenant has curtesy, whether 
 issue be born or not, but only of one-half 
 while without issue. Such lands do not es- 
 cheat, except for treason or want of heirs. 
 The heir of such lands may sell at fifteen 
 years old, but must himself give livery. The 
 rule as to division among brothers in de- 
 fault of sons is the same as among the sons. 
 
 Lord Coke derives gavelkind from "gave 
 all kinde;" for this custom gave to all the 
 sons alike (1 Co. Lift. 140a) ; Lambard, from 
 gavel, rent, — that is, land of the kind that 
 pays rent or customary husbandry work, in 
 distinction from lands held by knight serv- 
 ice (Perambulations of Kent, 1656, p. 585). 
 
 GAVELLER. An officer of the English 
 crown having the general management of the 
 mines, pits, and quarries in the forest of Dean 
 and hundred of St. Briavels, subject, in some 
 respects, to the control of the commissioners 
 of woods and forests. He grants gales to 
 free miners in their proper ordesr, accepts 
 surrenders of gales, and keeps the registers 
 required by the acts. There is a deputy gav- 
 eller, who appears to exercise most of the 
 gaveller's functions. See "Gale." Rapalje 
 & L. 
 
GAVE LM AN 
 
 (407) 
 
 GENERAL 
 
 GAVELMAN. A tenant who Is liable to 
 tribute. Sotnn. Gavelkind, p. 33; Blount. 
 Gavellngmen were tenants who paid a re- 
 served rent, besides customary service. Cow- 
 ell. 
 
 GAVELMED. A customary service of mow- 
 ing meadow land or cutting grass (consue- 
 tudo falcandi). Somn. Gavelkind, Append.; 
 Blount. 
 
 GAVELREP. In old English law. Bedreap 
 or bidreap; the duty of reaping at the bid 
 or command of the lord. Somn. Gavelkind, 
 19, 21: Cowell. 
 
 GAVELWERK, or GAVELWEEK. A cus- 
 tomary service, either manuopera, by the per- 
 son of the tenant, or carropera, by his carts 
 or carriages. Phill. Purv.; Blount; Somn. 
 Gavelkind, 24; Du Cange. 
 
 GAZETTE. The official newspaper of the 
 English government. It is published twice 
 each week, and contains all the acts of state 
 and proclamations, and also dissolutions of 
 partnership and notices of proceedings in 
 bankruptcy. Rapalje & L. 
 
 GEBOCCED (Saxon). Prom "hoc," a writ- 
 ing conveyed. 
 
 GEBOCIAN (from Saxon boc) . To convey 
 hoc land; the grantor being said to gebocian 
 the grantee of the land. 1 Reeve, Hist. Eng. 
 Law, 10. But the better opinion would seem 
 to be that boc land was not transferable ex- 
 cept by descent. See Du Cange. 
 
 GEBURSCIP, or GEBURSCRIPT. Neigh- 
 borhood or adjoining district. Cowell. 
 
 GEBURUS. In old English law. A coun- 
 try neighbor; an inhabitant of the same ge- 
 burscip or village. Cowell. 
 
 GELD (from Saxon gildan; Law Lat. gel- 
 dum). A payment; tax; tribute. Laws Hen. 
 I. c. 2; Charta Bdredi Regis apud Ingulfum, 
 c. 81; Mon. Angl. tit. 1, pp. 52, 211, 379; Id. 
 tit. 2, pp. 161-163; Du Cange; Blount. 
 
 The compensation for a crime. 
 
 We find ffeld added to the word denoting 
 the offense, or the thing injured or destroyed, 
 and the compound taking the meaning of 
 compensation for that offense, or the value 
 of that thing. Capitulare 3, Anno 813, cc. 
 23, 25; Carl. Magn. So, wergeld, the com- 
 pensation for killing a man, or his value; 
 orfgeld, the value of cattle; angeld, the value 
 of a single thing; octogeld, the value eight 
 times over, etc. Du Cange, "Geldum." 
 
 GELDABILIS (Law Lat.) In old English 
 law. Taxable; geldable. 
 
 GELDABLE (LawPr.) Liable to pay ffeZd; 
 liable to be taxed. Kelham. 
 
 GEMMA (Lat.) In the civil law. A gem; 
 a precious stone. Gems were distinguished 
 by their transparency; such as emeralds, 
 chrysolites, amethysts. Dig. 34. 2. 19. 17. 
 
 GEMOT, or GEMOTE (Saxon, from gemct- 
 tand, to meet or assemble; Law Lat. gemo- 
 
 turn). An assembly; a mote or moot, meet- 
 ing, or public assembly. 
 
 There were various kinds; as, the witena- 
 gemot, or meeting of the wise men; the folc- 
 gemot, or general assembly of the people; 
 the shiregemot, or county court; the iurg- 
 gemot, or borough court; the hundredgemot, 
 or hundred court; the haligemot, or court 
 baron; the halmote, a convention of citizens 
 in their public hall; the holymote, or holy 
 court; the sweingemote, or forest court; the 
 wardmote, or ward court. Cunningham. 
 
 GENEALOGY. The summary history or 
 table of a house or family, showing how the 
 persons there named are connected together. 
 
 GENEARCH. The head of a family. Ra- 
 palje & L. 
 
 GENE ATH (Saxon). In Saxon law. A vil- 
 lein, or agricultural tenant {villanus villi- 
 cus) ; a hind or farmer (firmarius rusticus). 
 Spelman. 
 
 GENER (Lat.) A son-in-law. 
 
 GENERAL. Principal; universal; common 
 to all, or to the greatest number. 
 
 General Acceptance. Of a bill of ex- 
 change. An absolute acceptance precisely 
 in conformity to the .tenor of the bill. 3 
 Bush (Ky.) 626. 
 
 General Agent. 
 
 One 
 
 authorized to 
 transact all his principal's business, or all 
 his business of a particular class. 94 Ala. 
 346; 41 Ind. 438. 
 
 A "general agent" is so called in distinc- 
 tion from a "special agent," whose authority 
 is for a particular purpose, and confined to 
 a particular act (49 N. Y. 555), and "uni- 
 versal agent," who is authorized to do any 
 and every act which the principal might do. 
 Story, Ag. § 21. 
 
 General Appearance. See "Appear- 
 ance." 
 
 General Assembly. A name given in 
 
 some of the states to the senate and house of 
 representatives, which compose the legisla- 
 tive body. 
 
 General Assignment. An assignment 
 
 of all the assignor's property; or one for the 
 benefit of all his creditors. 
 
 General Average. See "Average.'' 
 
 General Charge. The instructions giv- 
 en by the court of its own motion, usu- 
 ally on the general aspects of the case, as 
 distinguished from those given on the re- 
 quest of a party. 
 
 General Covenant. One which relates 
 
 to lands generally, and places the cove- 
 nantee in the position of a specialty creditor. 
 Brown. 
 
 General Custom. One which obtains 
 
 through a whole country, as distinguished 
 from those peculiar to localities. 
 
 General Damages. See "Damages." 
 
 General Demurrer. A demurrer not 
 
 indicating the precise ground of objection. 
 One going to substance. See "Demurrer." 
 
 General Deposit. See "Deposit." 
 
GENERAL 
 
 (408) 
 
 GENERAL 
 
 General Election. 
 
 (1) An election of ofiBcers throughout a 
 state. 17 Mo. 511. 
 
 (2) An election of ofiBcers for the full 
 term, as distinguished from an election to 
 fill a vacancy. 52 Cal. 154. 
 
 (3) An election at a time appointed by 
 law, as distinguished from one called spe- 
 cially. 
 
 General Executor. One having gen- 
 eral charge of the estate of his testator, as 
 distinguished from a special executor ap- 
 pointed for a particular purpose or a limited 
 time. 
 
 General Gaol Delivery. In English 
 
 law. One of the four commissions issued to 
 judges holding the assizes, which empowers 
 them to try and deliverance make of every 
 prisoner who shall be in the gaol when the 
 judges arrive at the circuit town, whether 
 an indictment has been preferred at any pre- 
 vious assize or not. 
 
 It was anciently the course to issue special 
 writs of gaol delivery for each prisoner, 
 which were called writs de bono et malo; 
 but, these being found inconvenient and op- 
 pressive, a general commission for all the 
 prisoners has long been established in their 
 stead. 4 Steph. Comm. 333, 334; 2 Hawk. P. 
 C. 14, 28. 
 
 Under this authority, the gaol must be 
 cleared and delivered of all prisoners in it, 
 whenever or before whomever indicted, or 
 for whatever crime. Such deliverance takes 
 place when the person is either acquitted, 
 convicted, or sentenced to punishment. Brac- 
 ton, 110. 
 
 General Guardian. One who has full 
 
 general charge of the subject of guardian- 
 ship. 
 
 Generallmparlance. In pleading. One 
 
 granted upon a prayer in which the de- 
 fendant reserves to himself no exceptions. 
 See "Imparlance." 
 
 General Issue. In pleading. A plea 
 
 which denies or traverses at once the whole 
 indictment or declaration, without offering 
 any special matter to evade it. 
 
 It is called the general issue because, by 
 importing an absolute and general denial of 
 what is alleged in the indictment or declara- 
 tion, it amounts at once to an issue. 2 Bl. 
 Comm. 305. In the early manner of plead- 
 ing, the general issue was seldom used ex- 
 cept where" the party meant wholly to deny 
 the charges alleged against him. When he 
 intended to excuse or palliate the charge, a 
 special plea was used to set forth the par- 
 ticular facts. 
 
 But now, since special pleading is gener- 
 ally abolished, the same result is secured bv 
 requiring the defendant to file notice of spe- 
 cial matters of defense which he intends to 
 set up on the trial, or obliging him to use 
 a form of answer adapted to the plaintiff's 
 declaration, the method varying in different 
 systems of pleading. 
 
 In criminal cases, the general issue is, not 
 guilty. In civil cases, the general issues are 
 almost as various as the forms of action: In 
 assumpsit, th« general issue is non assump- 
 sit; in debt, nil debet; in detinue, non deti- 
 
 net; in trespass, non cul. (not guilty) ; in re- 
 plevin, non cepit, etc. 
 
 Where the forms of action are abolished, 
 the term is, in strictness, incorrect, but it 
 is commonly applied to the general denial. 
 
 General Jurisdiction. Jurisdiction ap- 
 plying to all subjects within the object of 
 its general organization, and to all parties 
 who can be reached by its process. 37 Miss. 
 48. 
 
 A jurisdiction which is not, within the lim- 
 its of the judicial power of the sovereignty 
 creating it, limited as to nature of subject 
 matter, amount in controversy, or character 
 of parties. 
 
 It is the nature of the jurisdiction, not its 
 territorial extent, which determines whether 
 a court is of limited or general jurisdiction. 
 11 Wis. 50. 
 
 General Land Office. A bureau in 
 
 the United States government which has the 
 charge of matters relating to the public 
 lands. 
 
 It was established by the act of- April 25, 
 1812 (2 Story, U. S. Laws, 1238). Another 
 act was passed March 24, 1824 (3 Story, U. S. 
 Laws, 1938), which authorized the employ- 
 ment of additional oflftcers. And it was re- 
 organized by an act entitled, "An act to re- 
 organize the general land office," approved 
 July 4, 1836. It was originally a bureau of 
 the treasury department, but was transferred 
 in 1859 to the department of the interior. 
 
 General Legacy. A pecuniary legacy, 
 
 payable generally out of the assets of the tes- 
 tator. 2 Bl. Comm. 512. 
 
 General Lien. Aright to detain a chat- 
 tel, etc., until payment be made, not only of 
 any debt due in respect of the particular 
 chattel, but of any balance that may be due 
 on general account in the same line of busi- 
 ness. 2 Steph. Comm. 132. 
 
 General Meeting. A meeting of the 
 
 largest class of persons concerned in a mat- 
 ter. Applied to meetings of stockholders, 
 members, etc. 
 
 General Occupant. The man who 
 
 could first enter upon lands held pur autre 
 vie, after the death of the tenant for life, 
 living the cestui que vie. At common law 
 he held the lands by right for the remainder 
 of the term; but this is now altered by stat- 
 ute, in England, the term going to the ex- 
 ecutors if not devised. 29 Car. II. c. 3; 14 
 Geo. II. c. 20; 2 Sharswood, Bl. Comm. 258. 
 This has been followed by some states (1 
 Code Md. 666, § 220, art. 93) ; in some states 
 the term goes to heirs, if undevised (Gen. 
 St. Mass. c. 91, § 1). 
 
 General Owner. The person having 
 
 the permanent or residuary title, as distin- 
 guished from a mere special or possessory 
 right. 
 
 General Partnership. One whose busi- 
 ness Includes all transactions of a par- 
 ticular class, as distinguished from special 
 partnerships formed for a particular transac- 
 tion. See 1 Cliff. (U. S.) 32. 
 
 General Retainer. A fee paid to re- 
 tain the services of an attorney generally, 
 and not in a particular case. "It binds the 
 person retained not to take a fee from anoth- 
 
GENERAL 
 
 (409) 
 
 GENERALIS CLAUSULA, ETC. 
 
 er against his retainer, but to do nothing 
 except what he is asked to do, and for this 
 he is to be distinctly paid." 6 R. L 206. 
 
 General Sessions. In England, a court 
 
 of record, held by two or more justices 
 of the peace, for the execution of the au- 
 thority given them by the commission of 
 the peace and certain statutes. General ses- 
 sions held at certain times in the four quar- 
 ters of the year pursuant to St. 2 Hen. V. 
 are properly called "quarter sessions" (q. 
 v.), but intermediate general sessions may 
 also be held. Pritch. Quar. Sess.; Rapalje 
 & L. 
 
 In the United States, a court of general 
 criminal jurisdiction in some states. 
 
 General Ship. One which is employed 
 
 by the charterer or owner on a particular 
 voyage, and is hired by a number of persons, 
 unconnected with each other, to convey their 
 respective goods to the place of destination. 
 A ship advertised for general receipt of 
 goods to be carried on a particular voyage. 
 The advertisement should state the name of 
 the ship and master, the general character 
 of the ship, the time of sailing, and the pro- 
 posed voyage. See 1 Pars. Mar. Law, 130 
 Abb. Shipp. (7th London Ed.) 123. 
 
 The shippers in a general ship generally 
 contract with the master; but in law the 
 owners and the master are separately bound 
 to the- performance of the contract, it being 
 considered as made with the owners, as well 
 as with the master. Abb. Shipp. (7th Lon- 
 don Ed.) 319. 
 
 General Special Imparlance. In plead- 
 ing. One in which the defendant reserves 
 to himself "all advantages and exceptions 
 whatsoever." 2 Chit. PI. 408. See "Impar- 
 lance." 
 
 ' General Statute, or General Law. As 
 
 opposed to "private," one relating to mat- 
 ters of public concern. 
 
 As opposed to "local," one operative 
 throughout the jurisdiction of the legislative 
 body. 
 
 As opposed to "special," one which affects 
 equally all persons or things of the same 
 class. 
 
 General Tail. An estate tail where 
 
 one parent only is sjyecifled, whence the issue 
 must be derived, as to A. and the heirs of 
 his body. Rapalje & L. 
 
 General Tenancy. "Such tenancies 
 
 only as are not fixed and made certain in 
 point of duration by the agreement of the 
 parties." 22 Ind. 122. 
 
 General Term. 
 
 ( 1 ) A term held pursuant to law, as dis- 
 tinguished from one specially called. 
 
 ( 2 ) A term for the trial of cases, as dis- 
 tinguished from one for the hearing of mo- 
 tions. 
 
 (3) A sitting of the trial judges in banc, 
 for appellate purposes. 
 
 General Traverse. See "Traverse." 
 
 General Usage. One which prevails 
 
 generally throughout the country. See "Gen- 
 eral Custom," supra, this title. 
 
 General Verdict. One finding gener- 
 ally for one of the parties, as distinguished 
 from a special verdict finding the facts. 
 
 "A finding by the jury in the terms of the 
 issue referred to them." 2 Tidd, Pr. 869. 
 
 General Warrant. A process which 
 
 used to issue from the state secretary's of- 
 fice, to take up (without naming any person 
 in particular) the author, printer, and pub- 
 lisher of such obscene and seditious libels as 
 were particularly specified in it. It was de- 
 clared illegal and void for uncertainty by a 
 vote of the house of commons. Com. Jour. 
 22d April, 1766; Wharton. 
 
 A writ of assistance. The issuing of these 
 was one of the causes of the American Re- 
 public. They were a species of general war- 
 rant, being directed to "all and singular jus- 
 tices, sheriffs, constables, and all other offi- 
 cers and subjects," empowering them to en- 
 ter and search any house for uncustomed 
 goods, and to command all to assist them. 
 These writs were perpetual, there being no 
 return to them. They were not executed, 
 owing to the eloquent argument of Otis be- 
 fore the supreme court of Massachusetts 
 against their legality. See Tudor, Life of 
 Otis, 66. 
 
 General Warranty. A covenant 
 
 whereby the grantor warrants and agrees to 
 defend the title to the premises conveyed 
 against all persons whatsoever, as distin- 
 guished from a "special warranty" against 
 persons "by or from" the grantor. 
 
 GENERALE DICTUM GENERALITER 
 est interpretandum. A general expression is 
 to be construed generally. 8 Coke, 116; 1 
 Eden, 96. 
 
 GENERALE NIHIL CERTUM IMPLICAT. 
 A general expression implies nothing cer- 
 tain. 2 Coke, 34; Wingate, Max. 164. 
 
 GENERALE TANTUM VALET IN GEN- 
 eralibus,quantum singulare in singulis. What 
 is general prevails, or is worth as much, 
 among things general, as what is particular 
 among things particular. 11 Coke, 59. 
 
 GENERALIAPRAECEDUNT; SPECIALIA 
 
 sequuntur. Things general precede; things 
 special follow. Reg. Brev.; Branch, Princ. 
 
 GENERALIA SPECIALIBUS NON DERO- 
 gant. Things general do not derogate from 
 things special. Jenk. Cent. Cas. 120. 
 
 GENERALIA SUNT PRAEPONENDA 
 singularibus. General things are to be put 
 before particular things. 
 
 GENERALIA VERBA SUNT GENERALI- 
 ter intelligenda. General words are under- 
 stood in a general sense. 3 Inst. 76; Broom, 
 Leg. Max. (3d London Ed.) 577. 
 
 GENERALIBUS SPECIALIA DEROGANT. 
 
 Things special take from things general. 
 Halk. Max. 51. 
 
 GENERALIS CLAUSULA NON PORRIGI- 
 
 tur ad ea quae antea specialiter sunt com- 
 prehensa. A general clause does not extend 
 to those things which are previously pro- 
 vided for specially. 8 Coke, 154. 
 
GENERALIS REGULA, ETC. 
 
 (410) 
 
 GERSUME 
 
 GENERALIS REGULA GENERALITER 
 est intelligenda. A genei-al rule Is to be un- 
 derstood generally. 6 Qoke, 65. 
 
 GENEROSA (Law Lat.) Gentlewoman. 
 Cowell; 2 Inst. 668. 
 
 GENEROSI FILIUS. The son of a gentle- 
 man. Generally abbreviated "gen. fil." 
 
 GENEROSUS. Gentleman; a gentleman. 
 Spelman. \ 
 
 GENICULUM. A degree of consanguinity. 
 Spelman. 
 
 GENS (Lat.) In Roman law. A union of 
 families, who Ijore the same name, who were 
 of an ingenuous birth (ingenui), none of 
 whose ancestors had been a slave, and who 
 had suffered no capitis diminutio. 
 
 Gentiles sunt, qui inter se eodem nomine 
 sunt; qui ah ingenuis oriundi sunt; quorum 
 majorum nemo servitutem servivit; qui co- 
 pite nan sunt deminuti. This definition is 
 given by Cicero (Topic 6), after Scaevola, 
 the pontifex. But, notwithstanding this high 
 authority, the question as to the organiza- 
 tion of the gens is involved in great ob- 
 scurity and doubt. The definition of Festus 
 is still more vague and unsatisfactory. He 
 says: "Gentilis dicitur et ex eodem genere 
 ortus, et is, qui simili nomine appellatur, ut 
 ait Gincius: Gentiles miM sunt, qui meo 
 nomine appellaniur." Gens and genus are 
 convertible terms; and Cicero defines the 
 latter word: "Genus autem est quod sui 
 similes communione quadam, specie autem, 
 differentes, duas aut plures complectitur 
 partes." De Oratore, 1, 42. The genus is 
 that which comprehends two or more par- 
 ticulars, similar to one another by having 
 something in common, but differing in spe- 
 cies. Prom this it may fairly be concluded 
 that the gens or race comprises several fami- 
 lies, always of ingenuous birth, resembling 
 each other by their origin, general name, — 
 nomen, — and common sacrifices or sacred 
 rites, — sacra gentilitia (sui similes com- 
 munione quadam), — but differing from each 
 other by a particular name, — cognQmen and 
 agnatio (specie autem differentes). 
 
 GENTES (Law Lat.) People. Contra om- 
 nes gentes, against all people. Bracton, fol. 
 37b. Words used in the clause of warranty 
 in old deeds. 
 
 GENTILES. In Roman law. The members 
 of a gens or common tribe. 
 
 GENTLEMAN. In English law. A person 
 of superior birth. 
 
 According to Sir Edward Coke, he is one 
 who bears coat armor, the grant of which 
 adds gentility to a man's family. The eldest 
 son had no exclusive claim to the degree; 
 for, according to Littleton, "every son is as 
 great a gentleman as the eldest." 2 Inst. 
 667. Sir Thomas Smith, quoted by Black- 
 stone (1 Comm. 406), says: "As for gentle- 
 men, they are made good cheap in this king- 
 dom; for whosoever studies the laws of the 
 realm, who studies in the universities, who 
 
 professeth liberal sciences, and, to be short, 
 who can live idly and without manual labor, 
 and will bear the port, charge, and counte- 
 nance of a gentleman, shall be called master, 
 and be taken for a gentleman." In the 
 United States, this word is unknown to the 
 law; but in many places it is applied by 
 courtesy to all men. See Poth. Proc. Cr. § 
 1, Append. § 3. 
 
 "It originally signified a man of gentle 
 birth, but the use of the term has become 
 changed, and it is often applied to denote 
 persons of all ranks, from the upper down 
 to the lowest verge of the middle class." 1 
 C. P. Div. 61. Thus, a coal agent out of em- 
 ployment (3 Hurl. & N. 798), or a medical 
 student who had been in no business for 
 several months (3 Hurl. & N. 382), is prop- 
 erly described as a "gent." 
 
 GENTLEWOMAN. An addition formerly 
 appropriate in England to the state or de- 
 gree of a woinan. 2 Inst. 667. 
 
 GENUINE. Not spurious or counterfeit. 
 Used in relation to a written instrument, it 
 does not cover either the authority (149 N. 
 Y. 182) or the capacity (37 N. Y. 487) of the 
 maker. 
 
 GERECHTSBODE (Belg.) In old New 
 York law. A court messenger or constable. 
 O'Callaghan, New Neth. 322. 
 
 GEREFA. Reeve (g. v.) 
 
 GERENS. Bearing. Gerens datum, bearing 
 date. 1 Ld. Raym. 336; Hob. 19. 
 
 GERMAN. Whole or entire, as respects 
 genealogy or descent; thus, "brother ger- 
 man" denotes one who is brother both by 
 the father's and mother's side; "cousins ger- 
 man," those in the first and nearest degree, 
 i. e., children of brothers or sisters. Tech. 
 Diet; 4 Man. & G. 56. 
 
 GERMANUS (Lat.) Descended of the same 
 stock, or from the same couple of ancestors; 
 of the whole or full blood. Mackeld. Civ. 
 Law; § 145. 
 
 GERONTOCOMI. In civil law. Officers ap- 
 pointed to manage hospitals for poor old 
 persons. Clef des Loii Rom. "Administra- 
 teurs." 
 
 GERONTOCOMIUM. In the civil law. An 
 institution or hospital for taking care of the 
 old. Calv. Lex. Their managers are called 
 "gerontocomi." 
 
 GERSUMARIUS. In old English. Pine- 
 able, or liable to be mulcted, fined, or amerc- 
 ed at the discretion of the lord. Cowell. 
 
 GERSUME (Saxon). In old English law. 
 Expense; reward; compensation; wealth; 
 especially, the consideration or fine of a 
 contract; e. g., et pro hae concessione dedit 
 noMs praedictus Jordanus 100 sol. sterling 
 de gersume. Old charter, cited Somn. Gavel- 
 kind, 177; Tabul. Reg. Ch. 377; 3 Mon. 
 Angl. 126, 920. It is also used for a fine or 
 compensation for an offense. 2 Mon. Angl. 
 973. 
 
GEST 
 
 (411) 
 
 GIRTH AND SANCTUARY 
 
 GEST, GUST, or GESTE. 
 
 A guest. 
 
 In Saxon law. 
 
 GESTATION. See "Period of Gestation." 
 
 GESTIO (Lat.) In civil law. The doing or 
 management of a thing. Negotiorum gestio, 
 the doing voluntarily without authority busi- 
 ness of another. De neg. gest. Oester nego- 
 tiorum, one who so interferes with business 
 of another without authority. Gestio pro 
 haerede, behavior as heir; such conduct 
 on the part of the heir as indicates ac- 
 ceptance of the inheritance, and makes 
 him liable for ancestor's debts universally, 
 e. g., an entry upon, or assigning, or letting 
 any of the heritable property, releasing any 
 of the debtors of the estate, or meddling 
 with the title deeds or heirship movables, 
 etc. Ersk. Inst. 3. 8. 82 et seq.; Stair, Inst. 
 3. 6. 1. 
 
 GESTIO PRO HAEREDE. Behavior as 
 heir. That conduct by which an heir ren- 
 ders himself liable for his ancestor's debts, 
 as by taking possession of title deeds, re- 
 ceiving rents, etc. Bell, Diet. 
 
 GESTOR. In civil law. One who acts for 
 another, or transacts another's business. 
 Calv. Lex. 
 
 GESTUM (Lat.) In Roman law. A thing 
 done; a transaction. Strictly, a thing done 
 without words, and so distinguished from 
 actum. A distinction was sometimes made 
 between "gestum" and "factuTn." Gains, 
 however, in the Digest (50. 16. 58) pro- 
 nounces this to be subtile. 
 
 GEVILLOURIS. In old Scotch law. Gaol- 
 ers. 1 Pitc. Crim. Tr. pt. 2, p. 234. 
 
 GEWINEDA. In Saxon law. The ancient 
 convention of the people to decide a cause. 
 Laws Aethel. c. 1. 
 
 GEWITNESSA (Saxon). In Saxon and old 
 English law. The giving of evidence. Laws 
 Aethel. c. 2. 
 
 GEWRITE. In Saxon law. Deeds or char- 
 ters; writings. 1 Reeve, Hist. Eng. Law, 
 10. 
 
 GIFT. A voluntary conveyance; that is, a 
 conveyance not founded on the consideration 
 of money or blood. 
 
 The word denotes rather the motive of the 
 conveyance, so that a feoffment or grant 
 may be called a gift when gratuitous. A 
 gift is of the- same nature as a settlement, — 
 neither denotes a form of assurance, but the 
 nature of the transaction. Watk. Conv. 
 (Preston Ed.) 199. The operative words of 
 this conveyance are do, or dedi, — I give, or I 
 have given. The maker of this instrument 
 Is called the donor, and he to whom it is 
 made, the donee. 2 Bl. Comm. 316; Litt. 59; 
 Shep. Touch, c. 11. 
 
 Gifts inter vivos are gifts made from one 
 or more persons, without any prospect of 
 immediate death, to one or more others. 
 Gifts causa mortis are gifts made in pros- 
 pect of death, and on the implied condition 
 
 that it shall be of no effect if the donor shall 
 recover. 49 N. Y. 17. See "Donatio." 
 
 GIFT ENTERPRISE. A scheme whereby 
 gifts or premiums are distributed among the 
 patrons of a business establishment, either 
 the value of the premium, or the persons 
 who shall receive the same, being determined 
 by chance. See 165 Mass. 146; 73 Md. 529: 
 56 N. Y. 424; 48 Minn. 555. 
 
 GIFTAAQUAE. A stream of water. Blount. 
 
 GIFTOMAN. In Swedish law. He who 
 has a right to dispose of a woman in mar- 
 riage. 
 
 This right is vested in the father, if liv- 
 ing; if dead, in the mother. They may 
 nominate a person in their place; but for 
 want of such nomination the brothers ger- 
 man, and for want of them the consanguine 
 brothers, and in default of the latter the 
 uterine brothers, have the right; but they 
 are bound to consult the paternal or ma- 
 ternal grandfather. Swed. Code, "Mar- 
 riage," c. 1. 
 
 GILD. See "Guild." 
 
 GILD HALL. See "Guildhall." 
 
 GILDA MERCATORIA (Law Lat.) A mer- 
 cantile meeting. 
 
 If the king once grants to a set of men 
 to have gildam m.ercatoriam, a mercantile 
 meeting or assembly, this is alone sufficient 
 to incorporate and establish them forever. 
 1 Sharswood, Bl. Comm. 473, 474. A com- 
 pany of merchants incorporated. St. Wm. 
 Reg. Scot. c. 35; Leg. Burg. Scot. c. 99; Du 
 Cange; Spelman; 8 Coke, 125a; 2 Ld. Raym. 
 1134. 
 
 GILDABLE. See "Geldable." 
 
 GILDO. In Saxon law. Member of a gild 
 or decennary. Oftener spelled "congildo." 
 Du Cange; Spelman, "Geldum." 
 
 GILL. A measure of capacity, equal to 
 one-fourth of a pint. 
 
 G I LOUR (Law Pr.) A cheat or deceiver. 
 Applied in Brltton to those who sold false 
 or spurious things for good, as pewter for 
 silver, or laten for gold. Britt. c. 15. 
 
 GIRANTEM, or GIRANTE. In common 
 law. An Italian word, which signifies the 
 drawer. It is derived from girare. to draw, 
 in the same manner as the English verb to 
 murder is transformed into murdrare in our 
 old Indictments. Hall, Mar. Loans, 183, note. 
 
 GIRTH. A girth, or yard, is a measure of 
 length. The word is of Saxon origin, taken 
 from the circumference of the human body. 
 Girth is contracted from girdeth, and signi- 
 fies as much as girdle. 
 
 GIRTH AND SANCTUARY. In Scotch law. 
 A refuge or place of safety given to those 
 who had slain a man in heat of passion 
 (cJiaude melle), and unpremeditatedly. 
 Abolished at the Reformation. 1 Hume, 
 Hist. Eng. 235; 1 Ross, Lect. 331. 
 
GISEMENT 
 
 (412) 
 
 GLOSS 
 
 GISEMENT. Agistment; cattle taken in 
 to graze at a certain price; also the money 
 received for grazing cattle. Rapalje & L. 
 
 GISER (LawPr.) In old English law. To 
 lie. 
 
 Giser et mason, to lie or lodge at a house. 
 St. Westminster I. c. 1. 
 
 GISETAKER. 
 
 ment." 
 
 An agister. See "Gise- 
 
 GISIL, or GISLE. A pledge or hostage. 
 
 GIST (sometimes, also, spelled git). 
 
 In Pleading. The essential ground or 
 
 object of the action in point of law, without 
 which there would be no cause of action. 
 Gould, PI. c. 4, § 12; 19 Vt. 102. In stating 
 the substance or gist of the action, every- 
 thing must be averred which is necessary to 
 be proved at the trial. The moving cause of 
 the plaintiff's bringing the action, and the 
 matter for which he recovers the principal 
 satisfaction, is frequently entirely collateral 
 to the gist of the action. Thus, where a 
 father sues the defendant for a trespass for 
 the seduction of his daughter, the gist of the 
 action is the trespass and the loss of his 
 daughter's services; but the collateral cause 
 Is the injury done to his feelings, for which 
 the principal damages are given. 1 Viner, 
 Abr. 598; 2 Phil. Ev. 1, note; Bac. Abr. 
 "Pleas" (B); Doct. Plac. 85. See "Dam- 
 ages." 
 
 GIVE. A term used in deeds of convey- 
 ance. At common law, it implied a cove- 
 nant. 2 Hilliard, Real Prop. 366. So in 
 Kentucky. 1 Pirtle, Dig. 211. In Maryland 
 and Alabama it is doubtful. 7 Gill & J. 
 (Md.) 311; 2 Ala. (N. S.) 555. In Ohio, in 
 conveyance of freehold, it implies warranty 
 for the grantor's life. 2 Hilliard, Real Prop. 
 366. In Maine it implies a covenant. 5 Me. 
 227; 23 Me. 219. In New York it does not, 
 by statute. See 14 Wend. 38. It does not 
 imply covenant in North Carolina, 1 Murph. 
 343. Nor in England, by St. 8 & 9 Vict. c. 
 106, § 4. 
 
 GIVER. He who makes a gift. By his gift, 
 the giver always Impliedly agrees with the 
 donee that he will not revoke the gift. 
 
 GIVING IN PAYMENT. In Louisiana. A 
 term which signifies that a debtor, instead 
 of paying a debt he owes in money, satisfies 
 his creditor by giving in payment a movable 
 or immovable. See "Dation en Paiement." 
 
 GIVING RINGS. A ceremony by gift of 
 finger rings by a barrister on being made a 
 serjeant-at-law. 
 
 GIVING TIME. An agreement by which a 
 creditor gives his debtor a delay or time in 
 paying his debt beyond that contained in the 
 original agreement. When other persons are 
 responsible to him, either as drawer, in- 
 dorser, or surety, if such time be given with- 
 out the consent of the latter, it discharges 
 them from responsibility to him. 
 
 GLADIUS (Lat.) In old Latin authors, and 
 
 in the Norman laws, this word was used to 
 signify supreme jurisdiction, — jus gladii. 
 
 GLANS (Lat.) In the civil law. Acorns or 
 nuts of the oak or other trees. Brlssonius. 
 In a larger sense, all fruits of trees. Dig. 
 43. 28. 
 
 GLAVEA. A hand dart. Cowell. 
 
 GLEANING. The act of gathering such 
 grain in a field where it grew as may have 
 been left by the reapers after the sheaves 
 were gathered. 
 
 There is a custom in England, it is said, 
 by which the poor are allowed to enter and 
 glean upon another's land after harvest, 
 without being guilty of a trespass. 3 Bl. 
 Comm. 212. But it has been decided that 
 the community are not entitled to claim this 
 privilege as a right. 1 H. Bl. 51. In the 
 United States, it is believed, no such right 
 exists. It seems to have existed in some 
 parts of France. Merlin, Repert. "Glanage." 
 As to whether gleaning would or would not 
 amount to larceny, see Woodf. Landl. & Ten. 
 242; 2 Russ. Crimes, 99. The Jewish law 
 may be found in the 19th chapter of Leviti- 
 cus, verses 9 and 10. See Ruth li. 2, 3; Isaiah^ 
 xvii. 6. 
 
 GLEBA. 
 
 In the Civil Law. A turf, sod, or 
 
 clod of earth; the soil or ground; cultivated 
 land in general. 
 
 In Old English Law. Church land 
 
 {solum et dos ecclesiae). Spelman. See 
 "Glebe." 
 
 GLEBAE ASCRIPTITII. See "Adscriptiti." 
 
 GLEBARIAE. Turf or peat. Cowell. 
 
 GLEBE. 
 
 In Ecclesiastical Law. The land which 
 
 belongs to a church. It is the dowry of the 
 church. Oleia est terra qua consistit dos 
 ecclesiae. 9 Cranch (U. S.) 329. 
 
 In Civil Law. The soil of an inherit- 
 ance. There were serfs of the glebe, called 
 gleiae addicti. Code, 11. 47. 7. 21; Nov. 54, 
 c. 1. 
 
 GLOMERELLS. Commissioners appointed 
 to determine differences between scholars in 
 a school or university and the townsmen of 
 the place. Jacob. 
 
 GLOS (Lat.) In civil law. A husband's 
 sister. Dig. 38. 10. 4. 6. 
 
 GLOSS CLat. glossa) . Interpretation; com- 
 ment; explanation; remark intended to illus- 
 trate a subject, — especially the text of an 
 author. See Webster. 
 
 In Civil Law. Olossae, or glossemata, 
 
 were words which needed explanation. Calv. 
 Lex. The explanations of such words. Id. 
 Especially used of the short comments or ex- 
 planations of the text of the Roman law, 
 made during the twelfth century by the 
 teachers at the schools of Bologna, etc., who 
 were hence called glossators, of which gloss- 
 es Accursius made a compilation which pos- 
 sesses great authority, called Olossa Ordi- 
 
GLOSSA VIPERINA, ETC. 
 
 (413) 
 
 GOOD ABEARING 
 
 naria. These glosses were at first written 
 between the lines of the text iglossae in- 
 terlineares), afterwards, on the margin, 
 close by and partly under the text (glossae 
 marginales) . Gush. Introd. Rom. Law, 130- 
 132. 
 
 GLOSSA VIPERINA EST QUAE CORRO- 
 dit viscera textus. That is a viperine gloss 
 which eats out the vitals of the text. 10 
 Coke, 70; 2 Bulst. 79. 
 
 GLOSSATOR. A commentator or anno- 
 tator of the Roman law. One of the authors 
 of the Gloss. 
 
 GLOUCESTER, STATUTE OF. An Eng- 
 lish statute, passed 6 Edw. I., A. D. 1278. 
 So called because it was passed at Gloucester. 
 There were other statutes made at Glouces- 
 ter which do not bear this name. See St. 2 
 Rich. II. 
 
 GLOVE SILVER. Extraordinary rewards 
 formerly given to officers of courts, etc.; 
 money formerly given by the sheriff of a 
 county in which no offenders are left for 
 execution to the clerk of assize and judges' 
 officers. Jacob. 
 
 GLOVES. It was an ancient custom on a 
 maiden assize, when there was no offender 
 to be tried, for the sheriff to present the 
 judge with a pair of white gloves. It is an 
 immemorial custom to remove the glove 
 from the right hand on taking oath. Whar- 
 ton. 
 
 GLYN. A hollow between two mountains; 
 a valley or glen. Co. Litt. 5b. 
 
 GO TO PROTEST. A term of the com- 
 mercial law, indicating the dishonor of com- 
 mercial paper by nonpayment or nonaccept- 
 ance, whereby it becomes subject to protest 
 ((?. V.) 
 
 GO WITHOUT DAY. Words used to de- 
 note that a party is dismissed the court. He 
 is said to go without day, because there is 
 no day appointed for him to appear again. 
 
 GOAT, or GOTE (Law Lat. gota; German, 
 gote). A canal or sluice for the passage of 
 water. Charter of Roger, Duke de Basing- 
 ham, anno 1220, in Tabularis S. Bertini; Du 
 Cange. 
 
 A ditch, sluice, or gutter. Cowell; St. 23 
 Hen. VIII. c. 5. An engine for draining wa- 
 ters out of the land into the sea, erected and 
 built with doors and percuUesses of timber, 
 stone, or brick, — invented first in Lower Ger- 
 many. Callis, Sew. 66. 
 
 GOD AND MY COUNTRY. When a pris- 
 oner is arraigned, he is asked, "How will you 
 be tried?" He answers, "By God and my 
 country." This practice arose when the pris- 
 oner had the right to choose the mode of 
 trial, namely, by ordeal or by jury, and then 
 he elected by God or by his country, that is, 
 by jury. It is probable that originally It 
 was "By God or my country;" for the ques- 
 tion asked supposes an option In the pris- 
 oner, and the answer is meant to assert his 
 
 innocence by declining neither sort of trial. 
 1 Chit. Crim. Law, 416; Barr. Obs. St. 73, 
 note. 
 
 GOD BOTE. In ecclesiastical law. An ec- 
 clesiastical or church fine imposed upon an 
 offender for crimes and offenses committed 
 against God. 
 
 GOD'S PENNYl In old English law. Mon- 
 ey given to bind a bargain; earnest-money. 
 So called because such money was anciently 
 given to God, — that is, to the church and the 
 poor. See "Denarius Dei." 
 
 GOGING STOLE. An old form of "cuck- 
 ing stool" (q. r.) Cowell. 
 
 GOING CONCERN. A business establish- 
 ment which continues to transact its ordi- 
 nary business, though it may be embar- 
 rassed, or even insolvent. 30 Fed. 865. 
 
 GOING THROUGH THE BAR. The act of 
 
 the chief of an English common-law court 
 in demanding of every member of the bar, 
 in order of seniority, if he has anything to 
 move. This was done at th« sitting of the 
 court each day in term, except special paper 
 days, crown paper days in the queen's bench, 
 and revenue paper days in the exchequer. 
 On the last day of term this order is re- 
 versed, the first and second time round. In 
 the exchequer the postman and tubman are 
 first called on. Wharton. 
 
 GOING TO THE COUNTRY. When a par- 
 ty, under the common-law system of plead- 
 ing, finished his pleading by the words, 
 "and of this he puts himself upon the 
 country," this was called "going to the coun- 
 try." It was the essential termination to a 
 pleading which took issue upon a material 
 fact in the preceding pleading. Rapalje & L. 
 
 GOING WITNESS. One who is going out 
 of the jurisdiction of the court, although 
 only into a state or country under the gen- 
 eral sovereignty; as, for example, if he is 
 going from one to another of the United 
 States, or, in Great Britain, from England to 
 Scotland. 2 Dickens, 454. 
 
 GOLDA. A mine. Blount. A sink or pas- 
 sage for water. Cowell. 
 
 GOLDSMITH'S NOTES. In English law. 
 Banker's notes. So called because the trac^es 
 of banker and goldsmith were originally 
 joined. Chit. Bills, 423. 
 
 GOOD. Reasonable; suitable; sufficient; 
 valid; meeting all legal requirements. See 
 10 Gray (Mass.) 302; 36 Mo. App. 192. 
 
 AsApplied to Commercial Paper. Gen- 
 uine; collectible. 4 Mete. (Mass.) 48; IN. 
 J. Law, 99. 
 
 As Applied to Persons. Of a debtor, 
 
 solvent (21 Mo. App. 372) ; of a person in a 
 representative or official capacity (1 Blackf. 
 [Ind.] 396). 
 
 As Applied to Property Sold. Reason- 
 ably sound and suitable. See 1 Idaho, 41. 
 
 GOOD ABEARING. See "Abearance." 
 
GOOD AND LAWFUL MEN 
 
 (414) 
 
 GOODTITLE 
 
 GOOD AND LAWFUL MEN. Those quali- 
 fied to serve on juries; that is, those of full 
 age, citizens, not infamous or non compos 
 mentis; and they must be resident in the 
 county where the venue is laid. Bac. Abr. 
 "Juries" (A); Cro. Eliz. 654; 3 Inst. 30; 2 
 RoUe, 82; Cam. & N. (N. C.) 38. 
 
 GOOD BEHAVIOR. Conduct authorized by 
 law. Surety of good behavior might at 
 common law be demanded from any person 
 justly suspected, upon sufficient grounds, of 
 intending to commit a crime or misdemean- 
 or. Surety for good behavior is somewhat 
 similar to surety of the peace, but the recog- 
 nizance is more easily forfeited, and it ought 
 to be demanded with greater caution. 1 
 Bin. (Pa.) 98, note; 2 Yeates (Pa.) 437; 1.4 
 Viner, Abr. 21; Dane, Abr, Index. As to 
 what is a breach of good behavigr, see 2 
 Mart (La.; N. S.) 683; Hawk. P. C. bk. 1, c. 
 61, § 6; 1 Chit. Prac. 676. 
 
 GOOD CONSIDERATION. See "Consid- 
 eration." 
 
 GOOD COUNTRY. In Scotch law. Good 
 men of the country. A name given to a 
 jury. 
 
 GOOD FAITH. Honesty; absence of fraud, 
 collusion, or deceit. 91 Wis. 464. See "Bona 
 Fide Purchaser." 
 
 GOOD TITLE. A perfect title, free and 
 clear from any legal exception or charge 
 thereon. 23 Barb. (N. Y.) 370. 
 
 GOOD WILL. The benefit which arises 
 from the establishment of particular trades 
 or occupations. The advantage or benefit 
 which is acquired by an establishment, be- 
 yond the mere value of the capital, stocks, 
 funds, or property employed therein, in con- 
 sequence of the general public patronage and 
 encouragement which it receives from con- 
 stant or habitual customers, on account of 
 its local position, or common celebrity, or 
 reputation for skill or affluence or punctual- 
 ity, or from other accidental circumstances 
 or necessities, or even from ancient partiali- 
 ties or prejudices. Story, Partn. § 99. See 
 17 Ves. 336; 1 Hoff. Ch. (N. Y.) 68; 16 Am. 
 Jur. 87. 
 
 It includes only that estimation and repute 
 which is peculiar to the particular establish- 
 ment. It is that species of connection in 
 trade whigh induces customers to deal with a 
 particular firm. 
 
 GOODS. 
 
 In Contracts. The term "goods" is not 
 
 so wide as "chattels," for it applies to in- 
 animate objects, and does not include ani- 
 mals or chattels real, as a lease for years 
 of house or land, which "chattels" does in- 
 clude. Co. Litt. 118 ; 1 Russ. 376. 
 
 Goods will not include fixtures. 2 Mass. 
 495; 4 J. B. Moore, 73. In a more limited 
 sense, "goods" is used for articles of mer- 
 chandise. 2 Sharswood, Bl. Comm. 389. It 
 has been held in Massachusetts that promis- 
 sory notes were within the term "goods" In 
 the statute of frauds (3 Mete. [Mass.] 365; 
 but see 24 N. H. 484; 4 Dud. [S. C] 28); 
 
 so stock or shares of an incorporated com- 
 pany (20 Pick. [Mass.] 9; 3 Har. & J. [Md.] 
 38; 15 Conn. 400); so, in some cases, bank 
 notes and coin (2 Story [U. S.] 52; 5 Mason 
 [XJ. S.] 537). See "Chattel." 
 
 In Wills. In wills, goods is nomen gen- 
 
 eralissimum, and, if there is nothing to limit 
 it, will comprehend all the personal estate of 
 the testator, as stocks, bonds, notes, money, 
 plate, furniture, etc. 1 Atk. 180-182; 2 Atk. 
 62; IP. Wms. 267; 1 Brown, Ch. 128; 4 
 Russ. 370; Williams, Ex'rs, 1014; 1 Rop. 
 Leg. 250. But in general it will be limited 
 by the context of the will. See 2 Belt, Supp. 
 Ves. 287; 1 Chit Prac. 89, 90; 1 Ves. Jr. 63; 
 3 Ves. 212; Hammond, Parties, 182; 1 Yeates 
 (Pa.) 101; 2 Dall. (Pa.) 142; Ayliffe, Pand. 
 296; Weskett, Ins. 260; Sugd. Vend. 493, 
 497; and the articles "Biens;" "Chattel;" 
 "Furniture." 
 
 GOODS AND CHATTELS. 
 
 In Contracts. A term which includes 
 
 not only personal property in possession, but 
 choses in action and chattels real, as a 
 lease for years of house or land, or emble- 
 ments. 12 Coke, 1; 1 Atk. 182; Co. Litt. 
 118; 1 Russ. 376. 
 
 In Criminal Law. Choses in action, as 
 
 bank notes, mortgage deeds, and money, do 
 not fall within the technical definition of 
 "goods and chattels." And if described in 
 an Indictment as "goods and chattels," these 
 words may be rejected as surplusage. 4 
 Gray (Mass.) 416; 3 Cox, C. C. 460; 1 Den. G. 
 C. 450; 1 Dears. & B. C. C. 426; 2 Zab. (N. 
 J.) 207; 1 Leach, C. C. 241 (4th Ed. 468). 
 See 5 Mason (U. S.) 537. 
 
 In Wilis. If unrestrained, these words 
 
 will pass all personal property. Williams, 
 Ex'rs, 1014 et seq.. Am. notes. See Add. 
 Cont. 31, 201, 912, 914. 
 
 GOODS BARGAINEDANDSOLD. Aphrase 
 used to designate the action of assumpsit 
 brought on a contract of sale, where the pur- 
 chaser has not accepted delivery of the 
 goods. 
 
 GOODS SOLD AND DELIVERED. Aphrase 
 used to indicate the action of assumpsit 
 brought when the sale and delivery of goods 
 furnish the cause. 
 
 GOODS, WARES, AND IVIERCHANDISE. 
 
 A phrase used in the statute of frauds, cov- 
 ering, generally, all classes of personal prop- 
 erty. Fixtures do not come within it. 1 
 Cromp., M. & R. 275; 3 Tyrwh. 959; 1 
 Tyrwh, & G. 4. Growing crops of potatoes, 
 corn, turnips, and other annual crops, are 
 within it. 8 Dowl. & R. 314; 10 Barn. & C. 
 446 ; 4 Mees. & W. 347. Per contra, 2 Taunt. 
 38. See Add. Cont. 31, 32; 2 Dana (Ky.) 
 206; 2 Rawle (Pa.) 161; 5 Barn. & C. 829; 
 10 Adol. & B. 753. See, generally, 118 Mass. 
 285; 20 Mich. 357. Promissory notes and 
 shares in an incorporated company, and, in 
 some cases, money and bank notes, have been 
 held within it. See 2 Pars. Cont. 330-332. 
 
 GOODTITLE. Sometimes used as the 
 name of the fictitious tenant in ejectment, 
 as "Doe" or "Jackson" is more usually em- 
 ployed. 
 
GOVERNMENT 
 
 (415) 
 
 GOVERNMENT 
 
 GOVERNMENT (Lat. gubernaculum, a rud- 
 der. The Romans compared the state to a 
 vessel, and applied the term gubernator, 
 helmsman, to the leader or actual ruler of a 
 state. From the Latin, this word has passed 
 into most of the modern European lan- 
 guages). That institution or aggregate of 
 institutions by which a -state makes, and car- 
 ries out those rules of action which are 
 necessary to enable 'men to live in a social 
 state, or which are imposed upon the people 
 forming a state. 
 
 We understand, in modern political science, 
 by "state," in its widest sense, an inde- 
 pendent society, acknowledging no supe- 
 rior, and by the term "government," that in- 
 stitution or aggregate of institutions by 
 which that society makes and carries out 
 those rules of action which are necessary to 
 enable men to live in a social state, or which 
 are imposed upon the people forming that 
 society by those who possess the power or 
 authority of prescribing them. Government 
 Is the aggregate of authorities which rule a 
 society. By "administration," again, we un- 
 derstand in modern times, and especially 
 in more or less free countries, the aggregate 
 of those persons in whose hands the reins 
 of government are for the time being,— the 
 chief ministers or heads of departments. 
 But the terms "state," "government," and 
 "administration" are not always used in 
 their strictness. The government of a state 
 being its most prominent feature, which is 
 most readily perceived, "government" has 
 frequently been used for "state;" and the 
 publicists of the last century almost always 
 used the term "government," or "form of 
 government," when they discussed the dif- 
 ferent political societies or states. On the 
 other hand, "government" is often used, to 
 this day, for "administration," in the sense 
 in which it has been explained. 
 
 They are never actually created by agree- 
 ment or compact. Even where portions of 
 government are formed by agreement, as, for 
 instance, when a certain family is called to 
 rule over a country, the contracting parties 
 must previously be conscious of having au- 
 thority to do so. As society originates with 
 the family, so does authority or govern- 
 ment. Nowhere do men exist without au- 
 thority among them, even though it were 
 but In its mere incipiency. Men are forced 
 into this state of things by the fundamental 
 law that with them, and with them alone of 
 all mammals, the period of dependence of 
 the young upon Its parents outlasts by many 
 years the period of lactation, so that, dur- 
 ing this period of post-lactational depend- 
 ence, time and opportunity are given for the 
 development of affection and the habit of 
 obedience on the one hand, and of affection 
 and authority on the other, as well as of mu- 
 tual dependence'. The family is a society, 
 and expands into clusters of families, into 
 tribes and larger societies, collecting into 
 communities, always carrying the habit and 
 necessity of authority and mutual support 
 along with them. As men advance, the 
 great and pervading law of mutual depend- 
 ence shows Itself more and more clearly, 
 and acts more and more Intensely. Man is 
 
 eminently a social being, not only as to an in- 
 stinctive love of aggregation, not only as to 
 material necessity and security, but also as 
 to mental and affectlonal development, and 
 not only as to a given number of existing 
 beings, or what we will call as to "extent," 
 but also as to "descent" of generation after 
 generation, or, as we may call it, "transmis- 
 sion." Society, and its government along 
 with it, are continuous. Government exists 
 and continues among men, and laws have 
 authority for generations which neither 
 made them, nor had any direct representa- 
 tion in making them, because the necessity 
 of government — necessary according to the 
 nature of social man and to his wants — is 
 a continuous necessity. But the family is 
 not only the institution from which once, at 
 a distant period, society, authority, and 
 government arose. The family increases in 
 Importance, distinctness, and intensity of 
 action as man advances, and continues to 
 develop authority, obedience, affection, and 
 social adhesiveness, and thus acts with 
 reference to the state as the feeder acts with 
 reference to the canal. The state originates 
 daily anew in the family. 
 
 Although man is an eminently social be- 
 ing, he is also Individual, morally, intel- 
 lectually, and physically; and, while his in- 
 dividuality will endure even beyond this life, 
 he is necessitated, by his physical condition, 
 to appropriate and to produce, and thus to 
 Imprint his Individuality upon the material 
 world around, to create property. But man 
 is not only an appropriating and producing, 
 he Is also an exchanging, being. He al- 
 ways exchanges and always intercommuni- 
 cates. This constant intertwining of man's 
 Individualism and socialism creates mutual 
 claims of protection, rights, the necessity of 
 rules, of laws, — in one word, as individuals 
 and as natural members of society, men pro- 
 duce and require government. No society, 
 no cluster of men, no individuals banded to- 
 gether even for a temporary purpose, can 
 exist without some sort of government In- 
 stantly springing up. Government Is nat- 
 ural to man, and characteristic. No animals 
 have a government; no authority exists 
 among them; instinct and physical submis- 
 sion alone exist among them. Man alone 
 has laws which ought to be obeyed, but may 
 be disobeyed. Expansion, accumulation, de- 
 velopment, progress, relapses, disintegra- 
 tion, violence, error, superstition, the n^eces- 
 slty of intercommunication, wealth and 
 poverty, peculiar disposition, temperament, 
 configuration of the country, traditional 
 types, pride and avarice, knowledge and ig- 
 norance, sagacity of individuals, taste, activ- 
 ity and sluggishness, noble or criminal bias, 
 position, both geographical and chronolog- 
 ical, — all that affects numbers of men af- 
 fects their governments, and an endless va- 
 riety of governments and political societies 
 has been the consequence; but, whatever 
 form of government may present itself to us, 
 the ' fundamental Idea, however rudely con- 
 ceived, is always the protection of society 
 and its members, security of property and 
 person, the administration of justice there- 
 for, and the united efforts of society to fur- 
 nish the means to authority to carry out lt« 
 
GOVERNMENT 
 
 (416) 
 
 GOVERNMENT 
 
 objects, — contribution, which, viewed as im- 
 posed by authority, is taxation. Those 
 bands of robbers which occasionally have 
 risen in disintegrating societies, as in India, 
 and who merely robbed and devastated, 
 avowing that they did not mean to admin- 
 ister justice or protect the people, form no 
 exception, although the extent of their 
 soldiery, and the periodicity of their raids, 
 caused them to be called governments. 
 What little of government continued to ex- 
 ist was still the remnant of the communal 
 government of the oppressed hamlets; while 
 the robbers themselves could not exist with- 
 out a government among themselves. 
 
 Aristotte classified governments accord- 
 ing to the seat of supreme power, and he has 
 been generally followed down to very recent 
 times. Accordingly, we had monarchy, that 
 government in which the supreme power is 
 vested in one man, to which was added, at a 
 later period, the idea of hereditariness. 
 Aristocracy, the government, in which the 
 supreme power is vested in the arintni, 
 which does not mean, in this case, the best, 
 but the excelling ones, the prominent, i. e., 
 by property and influence. Privilege is its 
 characteristic. Its corresponding degener- 
 ate government is the oligarchy (from oli- 
 gos, little, few), that government in which 
 supremte power is exercised by a few privi- 
 leged ones, who generally have arrogated 
 the power. Democracy, that government in 
 which supreme power is vested in the people 
 at large. Equality is one of its character- 
 istics. Its degenerate correspondent is the 
 ochlocracy (from ochlos, the rabble), for 
 which at present the barbarous term "mob- 
 ocracy" is freqiiently used. 
 
 But this classification was insufficient, 
 even at the time of Aristotle, wh'en, for in- 
 stance, theocracies existed; nor Is the seat 
 of supreme power the only characteristic, 
 nor, in all respects, by any means the chief 
 characteristic. A royal government, for in- 
 stance, may be less absolute than a repub- 
 lican government. In order to group to- 
 gether the governments and political so- 
 cieties which have existed, and are still ex- 
 isting, with philosophical discrimination, we 
 must pay attention to the chief power holder 
 (whether he be one or whether there are 
 many), to the pervading spirit of the ad- 
 ministration or wielding of the power, to the 
 characteristics of the society, or the in- 
 fluencing Interests of the same, to the limita- 
 tion or entirety of public power, to the pecul- 
 iar relations of the citizen to the state. In- 
 deed, every principle, relation, or condition 
 characteristically Influencing or shaping so- 
 ciety or government In particular may fur- 
 nish us with a proper division. We propose, 
 then, the following: 
 
 Grouping of Political Societies and Govern- 
 ments. 
 
 I. According to the supreme power holder, or 
 
 the placing of svpreme power, whether 
 
 really or nominally so. 
 
 The power holder may be one, a few, many, 
 
 or all; and we have, accordingly: 
 
 A. Principalities, that is, states the rulers 
 
 of which are set apart from the 
 ruled, or inherently differ from 
 the ruled, as in the case of the 
 theocracy. 
 
 (1) Monarchy. 
 
 (a) Patriarchy. 
 
 (b) Chieftain government (as our 
 Indians). 
 
 (c) Sacerdotal monarchy (as the 
 states of the church; for- 
 mer sovereign bishoprics). 
 
 (d) Kingdom, or principality 
 proper. 
 
 (e) Theocracy (Jehovah was the 
 
 chief magistrate of the Is- 
 raelitic state). 
 
 (2) Dyarchy. It exists in Siam, and 
 
 existed occasionally in the Ro- 
 man empire; not in Sparta, be- 
 cause Sparta was a republic, al- 
 though her two hereditary gen- 
 erals were called kings. 
 B. Republic. 
 
 (1) Aristocracy. 
 
 (a) Aristocracy proper. 
 
 (aa) Aristocracies which 
 are democracies with- 
 in the body of aristo- 
 crats (as the former 
 Polish government). 
 
 (bb) Organic internal gov- 
 ernment (as Venice 
 formerly) . 
 
 (b) Oligarchy. 
 
 '(c) Sacerdotal republic, or hier- 
 archy, 
 (d) Plutocracy; if, indeed, we 
 adopt this term from an- 
 tiquity for a government in 
 which it is the principle that 
 the possessors of great 
 wealth constitute the body 
 of aristocrats. 
 
 (2) Democracy. 
 
 (a) Democracy proper. 
 
 (b) Ochlocracy (mob rule) , "mob" 
 
 meaning unorganized multi- 
 tude. 
 II. According to the unity of public power, 
 or its divi-^ion and limitation. 
 A. Unrestricted power, or absolutism. 
 
 (1) According to the form of gov- 
 
 ernment. 
 
 (a) Absolute monarchy, or des- ' 
 
 potlsm. 
 
 (b) Absolute aristocracy (Ven- 
 
 ice) ; absolute sacerdotal 
 aristocracy, etc. 
 
 (c) Absolute democracy (the 
 
 government of the Agora, 
 or market democracy). 
 
 (2) According to the organization of 
 
 the administration. 
 
 (a) Centralized absolutism. 
 
 Centralism, called "bu- 
 reaucracy" when carried 
 on by writing; at least, 
 bureaucracy has very rare- 
 ly existed, if ever, with- 
 out centralism. 
 
 (b) Provincial (satraps, pa- 
 
 shas, proconsuls). 
 
GOVERNMENT 
 
 (417) 
 
 GOVERNMENT 
 
 B. According to division of public power. 
 
 (1) Governments in which the three 
 
 great functions of public power 
 are separate, viz., the legisla- 
 tive, executive, judiciary. If a 
 distinct term contradistinguish- 
 ed to centralism be wanted, we 
 might call these !'co-operative 
 governments." 
 
 (2) Governments in which these 
 
 branches are not strictly sepa- 
 rate, as, for instance, in our 
 government, but which are 
 nevertheless not centralized 
 governments ; as Republican 
 Rome, Athens, and several 
 modern kingdoms. 
 
 C. Institutional government. 
 
 (1) Institutional government com- 
 
 prehending the whole, or 
 constitutional govern- 
 ment. 
 
 (a) Deputative government. 
 
 (b) Representative govern- 
 
 ment, 
 (aa) Bicameral, 
 (bb) Unicameral. 
 
 (2) Local self-government. See V. 
 
 We do not believe that any 
 substantial self-government 
 can exist without an institu- 
 tional character and subordi- 
 nate self-governments. It can 
 exist only under an institution- 
 al government (see Lleber's 
 Civil Liberty and Self-Govern- 
 ment, under "Institution"). 
 
 D. Whether the state is the substantive 
 
 or the means, or whether the 
 principle of socialism or indi- 
 vidualism preponderates. 
 
 (1) Socialism, that state of society 
 
 in which the socialist principle 
 prevails, or in which govern- 
 ment considers itself the sub- 
 stantive ; the ancient states ab- 
 sorbing the individual or mak- 
 ing, citizenship the highest 
 phase of humanity; absolutism 
 of Louis XIV. Indeed, all mod- 
 ern absolutism is socialistic. 
 
 (2) Individualism, that system in 
 
 which the state remains ac- 
 knowledged a means, and the 
 individual the substantive; 
 where primary claims, that is, 
 rights, are felt to exist, for the 
 obtaining and protection of 
 which the government is estab- 
 lished, — the government, or 
 even society, which must not 
 attempt to absorb the individ- 
 ual. The individual is immor- 
 tal, and will be of another 
 world; the state is neither. 
 III. According to the descent or transfer of 
 
 supreme power. 
 A. Hereditary governments. 
 
 Monarchies. 
 
 Aristocracies. 
 
 Hierarchies, etc. 
 
 B. Elective. 
 
 Monarchies. 
 
 Aristocracies. 
 
 Hierarchies. 
 
 C. Hereditary — elective — igovernments, 
 
 the rulers of which are chosen from 
 a certain family or tribe. 
 
 D. Governments in which the chief 
 
 magistrate or monarch has the 
 right to appoint the successor; as 
 occasionally the Roman emperors, 
 the Chinese, the Russian, in theory, 
 Bonaparte when consul for life. 
 IV. According to the origin of supreme pow- 
 er, real or theoretical. 
 
 A. According to the primordial charac- 
 
 ter of power. 
 
 (1) Based on jus divinum. 
 
 (a) Monarchies. 
 
 (b) Communism, which rests 
 
 its claims on a jus divi- 
 num or extrapoUtical 
 claim of society, 
 
 (c) Democracies, when pro- 
 
 claiming that the people, 
 because the people, can 
 do what they list, even 
 against the law; as the 
 Athenians once declared 
 it, and Napoleon III., 
 when he desired to be 
 elected president a sec- 
 ond time against the con- 
 stitution. 
 
 (2) Based on the sovereignty of 
 
 the people. 
 
 (a) Establishing an institu- 
 
 tional government, as 
 with us. 
 
 (b) Establishing absolutism 
 • (the Bonaparte sover- 
 eignty). 
 
 B. Delegated power. 
 
 (1) Chartered governments. 
 
 (a) Chartered city govern- 
 
 ments. 
 
 (b) Chartered companies, as 
 the former great East 
 India Company. 
 
 (c) Proprietary governments. 
 
 (2) Vice royalties; as Egypt, and, 
 
 formerly, Algiers. 
 
 (3) Colonial government with con- 
 
 stitution and high amount of 
 self-government, — a govern- 
 ment of great importance in 
 modern history. 
 V. Constitutions. (To avoid too many subdi- 
 visions, this subject has been treated 
 here nrparatchj. See 11^. 
 Constitutions, the fundamental laws on 
 which governments rest, and which deter- 
 mine the relation in which the citizen stands 
 to the government, as well as each portion 
 of the government to the whole, and which, 
 therefore, give feature to the political so- 
 ciety, may be: 
 
 A.' As to their origin. 
 
 (1) Accumulative; as the constitu- 
 tions of England or Republican 
 Rome. 
 
GOVERNMENT 
 
 (418) 
 
 GOVERNMENT 
 
 
 (2) 
 
 Enacted constitutions (general- 
 
 (1) As to admission of members. 
 
 
 
 ly, but not philosophical- 
 
 
 or extension. 
 
 
 
 ly, called "written consti- 
 
 
 (a) Closed, as the Amphiety- 
 
 
 
 tutions"). 
 
 
 onic council, Germany. 
 
 
 
 (a) Octroyed constitutions (as 
 
 
 (b) Open, as ours. 
 
 
 
 the French, by Louis 
 
 (2) 
 
 As to the federal character, or 
 
 
 
 XVIII.) 
 
 
 the character of the 
 
 
 
 (b) Enacted by the people, as 
 
 
 members, as states. 
 
 
 
 our constitutions. ("We, 
 
 
 (a) Lea.gues. 
 
 
 
 the people, charter govern- 
 
 
 (aa) Tribal confedera- 
 
 
 
 ments; formerly govern- 
 
 
 cies; frequently 
 
 
 
 ments chartered the lib- 
 
 
 observed in Asia; 
 
 
 
 erties of the people.") 
 
 
 generally of a loose 
 
 
 (3) 
 
 Pacts between two parties, con- 
 tracts, as Magna Charta, and 
 most charters in the Middle 
 Ages. The medieval rule was 
 that as much freedom was en- 
 joyed as it was possible to con- 
 quer, — expugnare in the true 
 sense. 
 
 
 character. 
 
 (bb) City leagues, as the 
 Hanseatic League, 
 the Lombard Lea- 
 gue. 
 
 (cc) Congress of depu- 
 ties, voting by 
 states and accord- 
 
 
 B. As to extent or uniformity. 
 
 
 ing to instruction; 
 
 
 (1) 
 
 Broadcast over the land. We 
 may call them national consti- 
 stitutions, popular constitu- 
 tions, constitutions for the 
 whole state. 
 
 
 as the Netherlands 
 republic and our 
 Articles of Con- 
 federation, Ger- 
 manic Confedera- 
 
 
 (2) 
 
 Special charters. Chartered, ac- 
 cumulated and varying fran- 
 chises, medieval character. ( See 
 article "Constitution" in the 
 Encyclopaedia Americana.) 
 
 
 tion, 
 (dd) Present "state sys- 
 tem of Europe" 
 (withconstantcon- 
 gresses, if we may 
 
 VI. 
 
 As to the extent and comprehension of 
 
 
 call this "system," 
 
 
 the chief government. 
 
 
 a federative gov- 
 
 
 A. Military govertiTnents. 
 
 
 ernment in its in- 
 cipiency). 
 (b) Confederacies proper, with 
 
 
 (1) 
 
 Commercial government; one of 
 the first in Asia, and that into 
 
 
 
 
 which Asiatic society relapses, 
 as the only remaining ele- 
 ment, when barbarous con- 
 
 
 national congress. 
 
 (aa) With ecclesiae or 
 
 democra;tic con- 
 
 
 
 querors destroy all bonds 
 
 
 gress (Achaean 
 ( League). ■ 
 
 
 
 which can be torn by them. 
 
 
 
 (2) 
 
 Tribal government. 
 
 (a) Stationary. 
 
 (b) Nomadic. We mention 
 
 
 (bb) With representative 
 national congress, 
 as ours. 
 
 
 
 the nomadic government 
 
 C. Mere agglomerations of one ruler. 
 
 
 
 under the tribal govern- 
 
 (1) 
 
 As the early Asiatic monarch- 
 
 
 
 ment, because no other 
 
 
 ies, or Turkey. 
 
 
 
 government has been no- 
 madic, except the patri- 
 
 (2) 
 
 Several crowns in one head; as 
 Austria, Sweden, Denmark. 
 
 
 
 archal government, which 
 
 VII. As to the construction of society, the 
 
 
 
 Indeed is the incipiency 
 
 title of property and allegiance. 
 
 -~ 
 
 
 of the tribal government. 
 
 A. As to the classes of society. 
 
 
 (3) 
 
 City government; that is, city 
 states; as all free states of 
 antiquity, and as the Hanse- 
 atic governments in modern 
 
 (1) 
 
 Castes, hereditarily dividing 
 the whole population, accord- 
 ing to occupations and priv- 
 ileges. India, ancient Egypt. 
 
 
 
 times. 
 
 (2) 
 
 Special castes. 
 
 
 , (4) 
 
 Government of the Medieval 
 Orders extending over por- 
 tions of societies far apart; 
 as the Templars, Teutonic 
 Knights, Knights of St. John. 
 Political societies without nec- 
 essary territory, although they 
 had always landed property. 
 
 
 (a) Government with priv- 
 
 ileged classes or caste; 
 nobility. 
 
 (b) Government with degrad- 
 
 ed or oppressed caste; 
 slavery. 
 
 (c) Governments founded on 
 
 equality of citizens (the 
 
 
 (5) 
 
 National states; that is, popu- 
 lous political societies spread- 
 
 
 uniform tendency of 
 modern civilization). 
 
 
 
 ing over an extensive and co- 
 
 B. As to property and production. 
 
 
 
 hesive territory beyond the 
 
 (1) 
 
 Communism. 
 
 
 
 limits of a city. 
 
 (2) 
 
 Individualism. 
 
 
 B. Confederacies. 
 
 C. As to allegiance. , 
 
GRACE 
 
 (419) 
 
 GRAND CAPE 
 
 (1) Plain, direct; as in unitary 
 
 governments. 
 
 (2) Varied; as in national confed- 
 
 eracies. 
 
 (3) Graduated or encapsulated; as 
 
 in the feudal system, or as 
 is' the case with the serf. 
 D. Governments are occasionally call- 
 ed according to the prevailing in- 
 terests or classes; as 
 Military states; for instance, Prus- 
 sia under Frederick II. 
 Maritime state. 
 Commercial. 
 Agricultural. 
 Manufacturing. 
 Ecclesiastical, etc. 
 VIII. According to simplicity or complexity, 
 as in all other spheres, we have — 
 
 A. Simple governments (formerly 
 
 called "pure;" as "pure democ- 
 racy"). 
 
 B. Complex governments, formerly 
 
 called "mixed." 
 
 GRACE. Favor or indulgence, as distin- 
 guished from right. 
 
 GRACE, DAYS OF. See "Days of Grace." 
 
 GRADATIM (Lat.) In old English law. 
 By degrees or steps; step hy step; from one 
 degree to another. Bracton, fol. 64. 
 
 GRADUS (Lat. a step). A measure of 
 space. Vicat. A degree of relationship (dis- 
 tantia cognatorum) . Heinec. Elem. Jur. 
 Civ. § 153; Bracton, fols. 134, 374; Fleta, lih. 
 6, c. 2, § 1; Id. lib. 4, c. 17, § 4. 
 
 A step or degree generally; e. g., gradus 
 honorum, degrees of honor. Vicat. A pul- 
 pit; a year; a generation. Du Cange. 
 
 A port; any place where a vessel can be 
 brought to land. Du Cange. 
 
 GRADUS PARENTELAE. A pedigree; a 
 table of relationship. 
 
 GRAFFER, or GRAFFARIUS. In old Eng- 
 lish law. A graffer, notary, or scrivener. 
 St. 5 Hen. VIII. c. 1. 
 
 GRAFFIUM. A register; a leger book or 
 cartulary of deeds and evidences. 
 
 GRAFIO. A baron, inferior to a count. 1 
 Mart. Anec. Collect. 13. A fiscal judge; an 
 advocate. Du Cange; Spelman; Cowell. 
 For various derivations, see Du Cange. 
 
 GRAFT. In equity. A term used to desig- 
 nate the right of a mortgagee in premises to 
 which the mortgagor at the time of making 
 the mortgage had an imperfect title, but who 
 afterwards obtained a good title. In this 
 case the new mortgage is considered a graft 
 into the old stock, and as arising in consid- 
 eration of the former title. 1 Ball & B. 40, 
 46, 57; 1 Powell, Mortg. 190. See 9 Mass. 
 34. The same principle has obtained by leg- 
 islative enactment in Louisiana. If a per- 
 son contracting an obligation towards an- 
 other, says the Civil Code (article 2371), 
 grants a mortgage on property of which he 
 is not then the owner, this mortgage shall 
 be valid if the debtor should ever acquire 
 
 the ownership of the property, by whatever 
 right. 
 
 GRAIN. The twenty-fourth part of a pen- 
 nyweight. 
 
 For scientific purposes the grain only is 
 used, and sets of weights are constructed in 
 decimal progression, from ten thousand 
 grains to one-hundredth of a grain. 
 
 Wlheat, rye, barley, or other com sown In 
 the ground. In Pennsylvania, a tenant for 
 a certain term is entitled to the away-going 
 crop. 2 Bin. (Pa.) 487; 5 Bin. (Pa.) 258, 
 289; 2 Serg. & R. (Pa.) 14. See "Away- 
 Going Crop." 
 
 GRAINAGE. In English law. The name 
 of an ancient duty collected in London, con- 
 sisting of one-twentieth part of the salt im- 
 ported into that city. 
 
 GRAMMATICA FALSA NON VITIAT 
 
 chartam. False grammar does not vitiate a 
 deed. 9 Coke, 48. 
 
 GRAMMATOPHYLACIUM (Graeco-Lat.) 
 In the civil law. A place for keeping writ- 
 ings or records. Dig. 48. 19. 9. 6. 
 
 GRAMME. A French weight. The gramme 
 is the weight of a cubic centimetre of dis- 
 tilled water at the temperature of zero. It 
 is equal to 15.4441 grains troy, or 5.6481 
 drachms avoirdupois. 
 
 GRANATARIUS (Law Lat.) In old Eng- 
 lish law. An ofiicer having charge of a 
 granary. Fleta, lib. 2, c. 82, § 1; Id. c. 84. 
 
 GRAND ASSIZE. An extraordinary trial 
 by jury, instituted by Henry II., by way of 
 alternative offered to the choice of the ten- 
 ant or defendant in a writ of right, instead 
 of the barbarous custom of trial by battel. 
 For this purpose, a writ de magna assiza eli- 
 ganda was directed to the sheriff to return 
 four knights, who were to choose twelve 
 other knights to be joined with themselves; 
 and these sixteen formed the grand assize, 
 or great jury, to try the right between the 
 parties. 3 Bl. Comm. 351. 
 
 GRAND BILL OF SALE. In English law. 
 The name of an instrument used for the 
 transfer of a ship while she is at sea. See 
 "Bill of Sale;" 7 Mart. (La.) 318. 
 
 GRAND CAPE. In English law. A writ 
 judicial which lieth when a man has brought 
 a praecipe quod reddat, of a thing that 
 toucheth plea of lands, and the tenant makes 
 default on the day given him in the writ 
 original, then this writ shall go for the king, 
 to take the land into the king's hands, and, 
 if he comes not at the day given him by the 
 grand cape, he has lost his lands. Old Nat. 
 Brev. fols. 161, 162; Reg. Jud. fol. 2b; Brac- 
 ton, lib. 5, tr. 3, c. 1, Nos. 4, 5, 6. So called 
 because its Latin form began with the word 
 cape, "take thou," and because it had more 
 words than the petit cape, or because petit 
 cape summons to answer for default only. 
 Petit cape issues after appearance to the 
 original writ, grand cape before. 
 
GRAND COUTUMIER 
 
 (420) 
 
 GR'ANT 
 
 GRAND COUTUMIER. Two collections of 
 laws bore this title. One, also called the 
 "Coutumier of France," is a collection of the 
 customs, usages, and forms of practice which 
 had been used from time immemorial in 
 Prance; the other, called the "Coutumier de 
 Normiandie" (which, indeed, with some al- 
 terations, made a part of the former), was 
 composed about the fourteenth of Henry III., 
 A. D. 1229, and is a collection of the Norman 
 laws, not as they stood at the conquest of 
 England by William the Conqueror, but some 
 time afterwards, and contains many provi- 
 sions probably borrowed from the old Eng- 
 lish or Saxon laws. Hale, Hist. Com. Law, 
 c. 6. 
 
 GRAND DAYS. In English practice. Those 
 days in the term which are solemnly kept in 
 the inns of court and chancery, viz., Candle- 
 mas Day in Hilary term. Ascension Day in 
 Ba,ster term, St. John the Baptist's Day in 
 Trinity term, and All Saints' Day in Michael- 
 mas term, which are dies nonjuridici, or no 
 days in court, and are set apart for festivity. 
 Jacob. 
 
 GRAND DISTRESS. In English practice. 
 A process which formerly issued where the 
 defendant, after being attached, neglected 
 to appear; its object being to compel an ap- 
 pearance by distraining his goods (3 Bl. 
 Comm. 280). It is called "grand" from its 
 extent and stringency. Blount. 
 
 GRAND JURY. In practice. A body of 
 men, consisting of not less than twelve nor 
 more than twenty-four, respectively returned 
 by the sheriff of every county to every ses- 
 sion of the peace, oyer and terminer, and 
 general gaol delivery, to whom indictments 
 are preferred. 4 Bl. Comm. 302; 1 Chit. 
 Crim. Law, 310, 311. 
 
 There is reason to believe that this institu- 
 tion existed among the Saxons. Crabb, Hist. 
 Eng. Law, 35. By the constitutions of Clar- 
 endon, enacted 10 Hen. II. (A. D. 1164), it is 
 provided that, "if such men were suspected 
 whom none wished or dared to accuse, the 
 sheriff, being thereto required by the bishop, 
 should swear twelve men of the neighbor- 
 hood, or village, to declare the truth" re- 
 specting such supposed crime, the jurors 
 being summoned as witnesses or accusers, 
 rather than judges. It seems to be pretty 
 certain that this statute either established 
 grand juries, if this institution did not exist 
 before, or recognized them if they already 
 existed. 1 Spence, Eq. Jur. 63. 
 
 GRAND LARCENY. 
 
 At Common Law. Simple larceny was 
 
 divided into grand and petit. The former was 
 committed. by the stealing of property exceed- 
 ing twelve pence in value; the latter, when 
 the property was of the value of twelve pence 
 or under. This distinction was not abol- 
 ished till the reign of George IV. Grand 
 larceny was a capital offense, but clergyable 
 unless attended with certain aggravations. 
 Petit larceny was punishable with whip- 
 ping, "or some such corporal punishment 
 less than death;" and, being a felony, it was 
 
 subject to forfeiture, whether upon convic- 
 tion or flight. 
 
 In the United States. The distinction 
 
 between grand and petit larceny is generally 
 preserved; the amount necessary to be stolen 
 to constitute grand larceny being ordinarily 
 about twenty dollars. Grand larceny is a 
 felony, and petit larceny a misdemeanor. 
 
 GRAND SERJEANTY. In English law. A 
 species of tenure in capite, by certain per- 
 sonal and honorable services to the king, 
 called "grand" in respect of the honor of so 
 serving the king. Instances of such services 
 are, the carrying of the king's banner, per- 
 forming some service at his coronation, etc. 
 The honorable parts of this tenure were re- 
 tained, and its oppressive incidents swept 
 away, by St. 12 Car. II. c. 24. Termes de la 
 Ley; 2 Sharswood, Bl. Comm. 73; 1 Steph. 
 Comm. 198. 
 
 GRANDCHILDREN. The children of one's 
 children. Sometimes these may claim be- 
 quests given in a will to children, though, in 
 general, they can make no such claim. 6 
 Coke, 16. See "Child;" "Construction." 
 
 GRANGE. A barn or granary; other out- 
 buildings used in husbandry. 
 
 GRANGIARIUS, or GRANGEARIUS. A 
 grange keeper. 
 
 GRANT. 
 
 At Common Law. A transfer by deed 
 
 of that which cannot pass by livery. Wil- 
 liams, Real Prop. 149. 
 
 A grant was proper to transfer an incor- 
 poreal hereditament or a reversion or vested 
 remainder in land, but in England, before 
 1845, a grant was not effectual to transfer an 
 estate in fee in land in possession. 7 W. Va. 
 235. 
 
 A grant is now sufficient to convey any 
 estate. 12 Minn. 468. 
 
 In. Modern Law. A general term, in- 
 cluding all sorts of conveyances. 4 Mason 
 (U. S.) 69. 
 
 The term is properly applicable only to 
 realty (1 Munt. 410), but it has been applied 
 to personalty. 12 Minn. 468. 
 
 It is particularly applied to conveyances 
 by the government, whether of lands or of 
 incorporeal hereditaments, as franchises. 
 
 By the word "grant," in a treaty, is meant 
 not only a formal grant, but any concession, 
 warrant, order, or permission to survey, pos- 
 sess, or settle, whether written or parol, 
 express, or presumed from possession. Such 
 a grant may be made by law, as well as by 
 a patent pursuant to a law. 12 Pet. (U. S.) 
 410. See 9 Adol. & E. 532; 5 Mass. 472; 9 
 Pick. (Mass.) 80. 
 
 "Office grant" applies to conveyances made 
 by some officer of the law to effect certain 
 purposes, where the owner is either unwill- 
 ing or unable to execute the requisite deeds 
 to pass the title. 
 
 "Private grant" is a grant by the deed of 
 a private person. 
 
 "Public grant" is the mode and act of 
 creating a title in an individual to lands 
 
GRANT, BARGAIN, AND SELL (421) 
 
 GREEN GOODS 
 
 which had previously belonged to the govern- 
 ment. 
 
 The public lands of the United States, and 
 of the various states, have been to a great 
 extent conveyed by deeds or patents issued 
 in virtue of general laws; but many specific 
 grants have also been made, and are the 
 usual method of transfer during the colonial 
 period. See 2 Washb. Real Prop. 517-536: 
 4 Kent, Comm. 450, 494; 8 Wheat. (U. S.) 
 543; 6 Pet. (U. S.) 548; 16 Pet. (U. S.) 367; 
 Brightly, Dig. U. S. Laws, "Lands;" "Pat- 
 ent." 
 
 Among the modes of conveyance Included 
 under office grant are levies and sales to 
 satisfy execution creditors, sales by order or 
 decree of a court of chancery, sales by order 
 or license of court, sales for nonpayment of 
 taxes, and the like. See Blackw. Tax Titles, 
 passim: 2 Washb. Real Prop. 536-549. 
 
 With regard to private grants, see "Deed." 
 
 GRANT, BARGAIN, AND SELL. Words 
 used in instruments of conveyance of real 
 estate. See "Construction;" 8 Barb. (N. Y.) 
 463; 32 Me. 329; 1 T. B. Mon. (Ky.) 30; 1 
 Conn. 79; 5 Tenn. 124; 2 Bin. (Pa.) 95; 11 
 Serg. & R. (Pa.) 109; 1 Mo. 576; 1 Murph. 
 (N. C.) 343. 
 
 GRANT OF PERSONAL PROPERTY. A 
 method of transferring personal property, 
 distinguished from a gift by being always 
 founded on some consideration or equivalent. 
 2 Bl. Comm. 440, 441. Its proper legal desig- 
 nation is an "assignment," or "bargain and 
 sale." 2 Steph. Comm. 102. 
 
 GRANT TO USES. This is common grant, 
 with uses superadded, and has become the 
 favorite mode of transferring realty. Whar- 
 ton. 
 
 GRANTEE. He to whom a grant is made. 
 
 GRANTOR. He by whom a grant is made. 
 
 GRANTZ. In old English law. Noblemen. 
 
 GRASSHEARTH. In old English law. The 
 name of an ancient customary service of ten- 
 ants' doing one day's work for their landlord. 
 
 GRASSON. In feudal law. A fine paid on 
 transfer of a copyhold. 
 
 GRATIFICATION. A reward given volun- 
 tarily for some service or benefit rendered, 
 without being requested so to do, either ex- 
 pressly or by implication. 
 
 GRATIS (Lat.) Without reward or con- 
 sideration. 
 
 GRATIS DICTUM (Lat.) A saying not re- 
 quired; a statement voluntarily made with- 
 out necessity. 
 
 GRATUITOUS. Without valuable or legal 
 consideration. A term applied to deeds of 
 conveyance. 
 
 In Old English Law. Voluntary; with- 
 out force, fear, or favor. Bracton, fols. 11, 
 17. 
 
 GRATUITOUS.CONTRACT. In civil law. 
 
 One the object of which is for the benefit 
 of the person with whom it is made, without 
 any profit, received or promised, as a con- 
 sideration for it; as, for example, a gift. 1 
 Bouv. Inst, note 709. 
 
 GRAVAMEN (Lat.) The grievance com- 
 plained of; the substantial cause of the ac- 
 tion. See Greenl. Ev. § 66. 
 
 GRAVATIO (Lat.) An accusation. 
 
 GRAVIS (Lat.) Grievous; great. Ad grave 
 damnum, to the grievous damage. 11 Coke, 
 40. 
 
 GRAVIUS (Law Lat.) In old European 
 law. A grave; a chief magistrate or officer. 
 A term derived from the more ancient "gra- 
 fio," and used in combination with various 
 other words, as an official title in Germany; 
 as Margravius, Rheingravius, Landgravius, 
 etc. Spelman, voc. "Graflo." 
 
 GRAVIUS EST DIVINAM GUAM TEM- 
 poralem laedere majestatem. It is more seri- 
 ous to hurt divine than temporal majesty. 
 11 Coke, 29. 
 
 GRAY'S INN. An inn of court. See "Inns 
 of Court." 
 
 GREAT CATTLE. In English law. All 
 manner of beasts, except sheep and yearlings. 
 2 Rolle, 173. 
 
 GREAT CHARTER. See "Magna Charta." 
 
 GREAT LAW. The name of an act of the 
 legislature of Pennsylvania, passed at Ches- 
 ter immediately after the arrival of William 
 Penn, December 7, 1682. Sergeant, Land 
 Laws Pa. 24, 230. 
 
 GREAT SEAL. By act of union (article 
 24) it was provided that there should be one 
 great seal for the United Kingdom, to be 
 used in sealing writs, to summon parlia- 
 ment, foreign treaties, etc., in all public acts 
 which concern the United Kingdom, and all 
 acts which concern England, and that a seal 
 should be kept in Scotland, to be used in all 
 things relating to private rights or grants 
 which had theretofore passed the Great Seal 
 of Scotland. Wharton. 
 
 GREAT TITHES. In ecclesiastical law. 
 The more valuable tithes; as, corn, hay, and 
 wood. 3 Burn, Ecc. Law, 680, 681; 3 Steph. 
 Comm. 127. 
 
 GREE. Satisfaction for an offense com- 
 mitted, or injury done. Cowell. 
 
 GREEN CLOTH. An English board or 
 court of justice, composed of the lord stew- 
 ard and inferior officers, and held in the 
 royal household. So named from the cloth 
 upon the board at which it is held. 
 
 GREEN GOODS. A slang term for coun- 
 terfeit money. Usually used in connection 
 with a swindle whereby, under a pretense of 
 selling counterfeit money, some worthless 
 substance is palmed off on the buyer. See 
 79 Hun (N. Y.) 310; 51 Hun (N. Y.) 624. 
 
GREEN SILVER 
 
 (422) 
 
 GROUND RENT 
 
 GREEN SILVER. A feudal custom in the 
 manor of Writtel, in Essex, where every ten- 
 ant whose front door opens to Greenbury 
 shall pay a half-penny yearly to the lord, by 
 the name of "green silver" or "rent." Cow- 
 ell. 
 
 GREENWAX. In English law. The name 
 of the estreats of fines, issues and amerce- 
 ments in the exchequer, delivered to the 
 sheriff under the seal of that court, which is 
 made with green wax. 
 
 GREGORIAN EPOCH. The time from 
 which the Gregorian calendar or computa- 
 tion dates, i. e., from the year 1582. 
 
 GREMIO. In Spanish law. The union of 
 merchants, artisans, laborers, or other per- 
 sons who follow the same pursuits, and are 
 governed by the same regulations. The 
 word "guild," in English, has nearly the 
 same signification. 
 
 GREMIUM (Lat.) Bosom. Ainsworth. De 
 gremio mittere, to send from their bosom; 
 used of one sent by an ecclesiastical corpora- 
 tion or body. A latere mittere, to send from 
 his side, or one sent by an individual; as, a 
 legate sent by the pope. Du Cange. In Eng- 
 lish law, an inheritance is said to be in 
 gremio legis, in the bosom or under the pro- 
 tection of the law, when it is in abeyance. 
 See "In Nubibus." 
 
 GRESSUME, GRESSAME, GRESSUM, or 
 grossome (Scotch, grassum). In old English 
 law. A fine due from a copyholder on the 
 death of his lord. Plowd. fols. 271, 285; 1 
 Strange, 654. Cowell derives it from ger- 
 sum. 
 
 GRETNA GREEN MARRIAGE. A mar- 
 riage celebrated at Gretna, in Dumfries (bor- 
 dering on the county of Cumberland), in 
 Scotland. By the law of Scotland, a valid 
 marriage may be contracted by consent 
 alone, without any other formality. When 
 the marriage act (26 Geo. II. c. 33) rendered 
 the publication of banns, or a license, neces- 
 sary in England, it became usual for persons 
 who wished to marry clandestinely to go to 
 Gretna Green, the nearest part of Scotland, 
 and marry according to the Scotch law; so 
 a sort of chapel was built at Gretna Green, 
 in which the English marriage service was 
 performed by the village blacksmith. 19 & 
 20 Vict. c. 96, § 1, now requires twenty-one 
 days previous residence in Scotland, unless 
 one of the parties has a usual place of resi- 
 dence therein. Wharton. 
 
 GRIEVED. Aggrieved. 3 Bast, 22. 
 
 GRITH (Saxon). Peace. 
 
 GRITHBRECH (Saxon, grith, peace, and 
 'brych, breaking). Breach of the king's 
 peace, as opposed to frittibreoh, a breach of 
 the nation's peace with other nations. Leg. 
 Hen. I. c. 36; Chart. Willielm. Conq. Eccl. St. 
 Pauli in Hist, ejusd. fol. 90. 
 
 GRITHSTOLE (Saxon). In Saxon law. A 
 seat, chair, or place of peace; a sanctuary; 
 
 a stone within a church gate, to which an of- 
 fender might flee. Skene writes the word 
 "girtholl." 
 
 GROCER. In old English law. A mer- 
 chant or trader who engrossed all vendible 
 merchandise; an engrosser. St. 37 Edw. III. 
 c. 5. See "Engrosser." 
 
 GROSS. Great or large; whole or entire; 
 general. 
 
 GROSS ADVENTURE. In maritime law. 
 A maritime or bottomry loan. It is so called 
 because the lender exposes his money to the 
 perils of the sea, and contributes to the gross, 
 or general average. Poth.; Pardessus. 
 
 GROSS AVERAGE. In maritime law. That 
 kind of average which falls on the ship,^ 
 cargo, and freight, and is distinguished from 
 "particular average." See "Average." 
 
 GROSS NEGLIGENCE. The omission of 
 that care which even inattentive and 
 thoughtless men never fail to take of their 
 own property. Jones, Bailm. 
 
 Lata culpa, or, as the Roman lawyers most 
 accurately called it, dolo proxima, is, in prac- 
 tice, considered as equivalent to dolus, or 
 fraud itself. It must not be confounded, 
 however, with fraud; for it may exist con- 
 sistently with good faith and honesty of in- 
 tention, according to common-law authori- 
 ties. 
 
 GROSS WEIGHT. The total weight of 
 goods or merchandise, with the chests, bags, 
 and the like, from which are to be deducted, 
 tare and tret. 
 
 GROSSE BOIS. Great or large wood ; tim- 
 ber. Cowell. 
 
 GROSSEIVlENT(LawFr.) Largely; great- 
 ly. Grossement enseint, big with child. 
 Plowd. 76. 
 
 GROSSOME. See "Gressume." 
 
 GROUND ANNUAL. In Scotch law. An. 
 annual rent of two kinds: First, the feu- 
 duties payable to the lords of erection and 
 their successors j second, the rents reserved 
 for building lots in a city, where sub-feus 
 are prohibited. This rent is in the nature of 
 a perpetual annuity. Bell, Diet. ; Brsk, Inst. 
 11. 3. 52. 
 
 GROUND LANDLORD. The person to- 
 whom ground rent is reserved. 
 
 GROUND RENT. Rent paid for the privi- 
 lege of building on another man's land. 
 Johnson; Webster. A rent reserved by the 
 owner of unimproved land upon a lease of 
 the land to be built upon, as contradistin- 
 guished from the rent paid to the lessee by 
 his tenant of the premises where the build- 
 ings are erected, and from the ordinary rent 
 paid by the tenant to bis landlord upon a 
 demise of lands and tenements. 
 
 A rent reserved to himself and his heirs, 
 by the grantor of land in ^ee simple, out of 
 
GROUND WRIT 
 
 (423) 
 
 GUARDIAN 
 
 the land conveyed. See 9 Watts (Pa.) 262; 
 8 Watts & S. (Pa.) 185; 2 Am. Law Reg. 577. 
 
 GROUND WRIT. By the English common- 
 law procedure act of 1852 (chapter 121), "it 
 shall not be necessary to issue any writ di- 
 rected to the sheriff of the county in which 
 the venue is laid, but writs of execution may 
 issue at once into any county, and be direct- 
 ed to and executed by the sheriff of any coun- 
 ty, whether a county palatine or not, without 
 reference to the county in which the venue 
 is laid, and without any suggestion of the 
 issuing of a prior writ into such county." 
 Before this enactment, a ca. sa. or fi. fa. 
 could not be issued into a county different 
 from that in which the venue in the action 
 was laid, without first issuing a writ, called 
 a "ground writ," into the latter county, and 
 then another writ, which was called a "tes- 
 tatum writ," into the former. The above en- 
 actment abolished this useless process. 
 Wharton. 
 
 GROUNDAGE. In maritime law. The con- 
 sideration paid for standing a ship in a port. 
 Jacob. 
 
 GROWTH HALF-PENNY. A rate paid in 
 some places for the tithe of every fat beast, 
 ox, or other unfruitful cattle. Rapalje & L. 
 
 GRUARII. The principal officers of a for- 
 est. Rapalje & L. 
 
 GUADIA,orWADIA. In old European law. 
 A pledge. Spelman; Calv. Lex. A custom. 
 Spelman. 
 
 GUARANTEE. He to whom a guaranty is 
 madei, 
 
 GUARANTOR. He who makes a guaranty. 
 
 GUARANTY. An undertaking to answer 
 for another's liability, and collateral thereto. 
 A collateral undertaking to pay the debt of 
 another in case he does not pay it. Shaw, 
 C. J., 24 Pick.' (Mass.) 252. 
 
 It is distinguished from suretyship in be- 
 ing a secondary, while that is a primary, ob- 
 ligation; or, as sometimes defined, guaranty 
 is an undertaking that the debtor shall pay; 
 suretyship, that the debt shall be paid. 
 
 The undertaking is essentially in the alter- 
 native. A guarantor cannot be sued as a 
 promisor, as the surety may; ^his contract 
 must be specially set forth. A guarantor 
 warrants the solvency of the promisor, which 
 an indorser does not. 8 Pick. (Mass.) 423. 
 
 Guaranty, as distinguished from "surety- 
 ship," is an independent contract, while the 
 surety is bound jointly with his principal. 
 "A contract of suretyship is a direct liabil- 
 ity for the act to be performed by the debtor, 
 and a guaranty is a liability only for his 
 ability to perform the act." 52 Pa. St. 440. 
 
 As distinguished from "indemnity," in 
 that a principal obligation is essential to 
 guaranty, while indemnity may be a primary 
 contract. 
 
 Guaranties are either: 
 
 (1) General, running to any person deal- 
 ing with the principal. 
 
 (2) Special, to a particular person. 
 
 (3) Limited, i. e., covering only a particu- 
 lar transaction. 
 
 (4) Continuing, applicable to a class of fu- 
 ture transactions. 
 
 (5) Absolute, conditioned only on the de- 
 fault of the principal. 
 
 (6) Conditional, dependent on some ex- 
 traneous condition. 
 
 GUARANTY INSURANCE. A guaranty or 
 insurance against loss in case a person nam- 
 ed shall make a designated default, or be 
 guilty of specified conduct. 9 Am. & Eng. 
 Enc. Law, 65, quoted in 174 111. 310. 
 
 GUARDIAN. One who legally has the care 
 and management of the person, or the estate, 
 or both, of a child during its minority. 
 Reeve, Dom. Rel. 311. 
 
 A person having the control of the prop- 
 erty of a minor without that of his person 
 is known in the civil law, as well as in some 
 of the states of the United States, by the 
 name of "curator." 1 Lee. Elm. 241; Rev. 
 St. Mo. 1855, p. 823. 
 
 Guardians are also sometimes api>ointed of 
 idiots, spendthrifts, etc. 
 
 The general classes of guardians are: 
 
 ( 1 ) Guardian by chancery. This guardian- 
 ship, although unknown at the common law, 
 is well established in practice now. It grew 
 up in the time of William III., and had its 
 foundation in the royal prerogative of the 
 king as parens patriae. 2 Fonbl. Eq. (5th 
 Ed.) 246. 
 
 This power the sovereign is presumed to 
 have delegated to the chancellor. 10 Ves. 
 63; 2 P. Wms. 118; Reeve, Dom. Rel. 317. 
 By virtue of it, the chancellor appoints a 
 guardian where there is none, and exercises 
 a superintending control over all guardians, 
 however appointed, removing them for mis- 
 conduct, and appointing others in their stead. 
 Co. Litt. 89; 2 Bulst. 679; 1 P. Wms. 703; 
 8 Mod. 214; 1 Ves. Jr. 160; 2 Kent, Comm. 
 227. 
 
 This power, in the United States, resides 
 in courts of equity (1 Johns. Ch. [N. Y.] 99; 
 2 Johns. Ch. [N. Y.] 439), and in probate 
 or surrogate courts (2 Kent, Comni. 226; 30 
 Miss. 458; 3 Bradf. Sur. [N. Y.] 133). 
 
 (2) Guardian by nature. The father, and, 
 on his death, the mother. 2 Kent, Comm. 
 220; 2 Root (Conn.) 320; 7 Cow. (N. Y.) 36; 
 2 Wend. (N. Y.) 158; 4 Mass. 675. 
 
 (3) Guardian by nurture. This guardian- 
 ship belonged to the father, then to the 
 mother. The subject of it extended to the 
 younger children, not the heirs apparent. 
 In this country it does not exist, or, rather, 
 it is merged in the higher and more durable 
 guardianship by nature, because all the chil- 
 dren are heirs, and, therefore, the subject 
 of that guardianship. 2 Kent, Comm. 221; 
 Reeve, Dom. Rel. 315; 6 Ga. 401. It ex- 
 tended to the person only (6 Conn. 494; 40 
 Eng. Law & Eq. 109), and terminated at the 
 age of fourteen (1 Bl. Comm. 461). 
 
 (4) Guardian in socage. This guardian- 
 ship arose when socage lands descended to 
 an infant under fourteen years of age; at 
 which period it ceased if another guardian 
 
GUARDIAN AD LITEM 
 
 (424) 
 
 GUIDAGE 
 
 was appoiHted, otherwise it continued. And. 
 313; 5 Johns. (N. Y.) 66. 
 
 The person entitled to it by common law 
 was the«next of kin, who could not by any 
 possibility inherit the estate. 1 Bl. Comm. 
 461. Although formerly recognized in New 
 York, it was never common in the United 
 States (5 Johns. [N. Y.] 66; 7 Johns. [N. Y.] 
 157), because, by the statute of descents 
 generally in force in this country, those who 
 are next of kin may eventually inherit. 
 Wherever it has been recognized, it has been 
 in a form differing materially from its char- 
 acter at common law. 15 Wend. (N. Y.) 631. 
 
 (5) Guardians by statute. These are of 
 two kinds: First, testamentary; second, 
 those appointed by court in pursuance of 
 some statute. 
 
 (6) Testamentary guardians. These are 
 appointed by the deed or last will of the 
 father, and they supersede the claims of all 
 other guardians, and havfe control of the 
 person and the real and personal estate of 
 the child till he arrives at full age. 
 
 (7) Guardians appointed by court. The 
 greater number of guardians among us, by 
 far, are those appointed by court, in con- 
 formity v/ith .statutes which regulate their 
 powers and duties. In the absence of spe- 
 cial provisions, their rights and duties are 
 governed by the general law on the subject 
 of guardian and ward. 
 
 GUARDIAN AD LITEM. A guardian ap- 
 pointed for the purposes of a suit. 
 
 The appointment of such is incident to the 
 power of every court to try a case (2 Cow. 
 [N. Y.] 430), and the power is then con- 
 fined to the particular case at bar (Co. Litt. 
 89, note 16). His duty is to manage the in- 
 terest of the infant when sued, or to bring 
 suit for him. In criminal cases, no guard- 
 ian is appointed; the court acts as guard- 
 ian. Reeve, Dom. Rel. 318. 
 
 GUARDIAN OF THE CINQUE PORTS. 
 
 See "Warden of the Cinque Ports." 
 
 GUARDIAN OF THE PEACE. A warden 
 or conservator of the peace. Rapalje & L. 
 
 GUARDIAN OF THE POOR. In English 
 law. A person acting as overseer of a par- 
 ish in matters relating to the management 
 and relief of the poor. 
 
 GUARDIAN OF THE SPIRITUALITIES. 
 
 In English ecclesiastical law. The person to 
 whom the spiritual jurisdiction of a diocese 
 is committed during the vacancy of the see. 
 Cowell; Blount. 
 
 GUARDIAN OF THE TEMPORALITIES. 
 
 The person to whose custody a vacant see or 
 abbey was committed by the king, who, as 
 steward of the goods and profits thereof, 
 was to give an account to the escheator, and 
 he into the exchequer. Tomlins. 
 
 GUARDIANSHIP. The power or protec- 
 tive authority given by la^w, and imposed on 
 an individual who is free and in the enjoy- 
 ment of his rights, over one whose weak- 
 ness on account of his age or infirmity ren- 
 ders him unable to protect himself. 
 
 GUARDIANUS, orGARDIANUS. A guard- 
 ian, warden, or keeper. Spelmaa; 3 Salk. 
 176. 
 
 GUARENTIGIO. In Spanish law. A term 
 applicable to the contract or writing by 
 which courts of justice are empowered to ex- 
 ecute and carry into effect a contract in the 
 same manner as if it were decreed by the 
 court after the usual legal formalities. This 
 clause, though formerly inserted in contracts 
 of sale, etc., stipulating the payment of a 
 sum of money, is at present usually omitted, 
 as courts of justice ordinarly compel the 
 parties to execute all contracts made by au- 
 thentic acts, that is, acts passed before a no- 
 tary, in the presence of two witnesses. 
 
 GUARNIMENTUM (Law Lat. from Fr. 
 garnement). In old European law. A pro- 
 vision of necessary things. Spelman. A fur- 
 nishing or garnishment. 
 
 GUASTALD. One who had the custody of 
 the royal mansions. Rapalje & L. 
 
 GUBERNATOR (Lat.) A pilot of a ship. 
 
 GUERPI, or GUERPY (Law Fr.) Aban- 
 doned; left; deserted. Britt. c. 33. 
 
 GUERRA, GUARRA, or GUERRE. War, 
 either public or private. Spelman. 
 
 GUERRILLA PARTY (Span, guerra, war; 
 guerrilla, a little war) . In military law. Self- 
 constituted sets of armed men, in times of 
 war, who form no integrant part of the or- 
 ganized army, do not stand on the regular 
 payroll of the army, or are not paid at all, 
 take up arms and lay them down at inter- 
 vals, and carry on petty war, chiefly by 
 raids, extortion, destruction, and massacre. 
 Lieber, Guerr. Part. 18. See Halleck, Int. 
 Law, 386; Woolsey, Int. Law, 299. 
 
 Partisan, free-corps, and guerrilla are 
 terms resembling each other considerably in 
 signification; and, indeed, partisan and guer- 
 rilla are frequently used in the same sense. 
 See Halleck, Int. Law, 386. 
 
 GUEST. A traveler who stays at an inn 
 from day to day, for pay, and without a 
 special contract to board for any definite 
 time. 
 
 If he is invited as a friend by the inn 
 keeper, he is not a "guest" in the technical 
 sense (Bac. Abr. "Inns," c. 5), and, if he 
 stays under a contract for a definite time, 
 he is not a guest, but a boarder (5 Barb. [N. 
 Y.] 560; 26 Ala. [N. S.] 377; 26 Vt. 332). 
 
 GUEST TAKER, or GEST TAKER. An 
 
 agister. 
 
 GUET. In old French law. Watch. Ord. 
 Mar. liv. 4, tit.- 6. 
 
 GU I A. In Spanish law. A right of way for 
 narrow carts. White, New Recop. lib. 2, e. 
 6, § 1. 
 
 GUIDAGE. In old law. That which was 
 given for safe conduct through a strange ter- 
 ritory, or another's territory. Cowell. 
 
 The office of guiding of travelers through- 
 dangerous and unknown ways. 2 Inst. 526. 
 
GUIDON DE LA MER 
 
 (42S) 
 
 GYVES 
 
 GUIDON DE LA MER. The name of a 
 treatise on maritime law, written in Rouen 
 — then Normandy — in 1671, as is supposed. 
 It was received on the continent of Europe 
 almost as equal in authority to one of the 
 ancient codes of maritime law. The author 
 of this work is unknown. This tract or 
 treatise is contained In the "Collection de 
 Lois Maritimes," by J. M. Pardessus, vol. 2, 
 p. 371 et seq. 
 
 GUILD, or GILD. A brotherhood or com- 
 pany governed by certain rules and orders 
 made among themselves by king's license; a 
 corporation, especially for purposes of com- 
 merce; so called because, on entering the 
 guild, the members pay an assessment or 
 tax (gild) towards defraying its charges. 
 Termes de la Ley; Du Cange. A guild held 
 generally more or less property in common, 
 — often a hall, called a "guild hall," for the 
 purposes of the association. The name of 
 "guild" was not, however, confined to mer- 
 cantile companies, but was applied also to 
 religious, municipal, and other corporations. 
 A friborg, that is, among the Saxons, ten 
 families' mutual pledges for each other to 
 the king. Spelman. 
 
 GUILD HALL (Law Li&t. gildhalla, Yaiiona- 
 ly spelled ghildhalla, guihalla, guihaula; 
 from Saxon gild, payment, company, and 
 halla, hall). A place in which are exposed 
 goods for sale. Charter of Count of Flan- 
 ders; Hist. Guinensi, 202, 203; Du Cange. 
 The hall of a guild or corporation; pu Cange; 
 Spelman. The hall of the merchants of 
 the Hanseatic League in London, otherwise 
 called the "Stilyard." Id. 
 
 GUILT. In criminal law. That which ren- 
 ders criminal and liable to punishment. 
 
 That disposition to violate the law which 
 has manifested itself by some act already 
 done. The opposite of innocence. See Ru- 
 therforth, Inst. bk. 1, c. 18, § 10. 
 
 GUILTY. The state or condition of a per- 
 son who has committed a crime, misdemean- 
 or, or offense. 
 
 This word implies a malicious intent, and 
 must be applied to something universally 
 allowed to be a crime. Cowp. 275. 
 
 In Pleading. A plea by which a de- 
 fendant who is charged with a crime, misde- 
 meanor, or tort admits or confesses it. In 
 criminal proceedings, when the accused is 
 arraigned, the clerk asks him, "How say 
 you, A. B., are you guilty or not guilty?" 
 His answer, which is given ore ienus, is 
 called his "plea;" and when he admits the 
 charge in the indictment, he answers or 
 pleads "guilty." 
 
 GULE OF AUGUST. The first of August, 
 the same as .Sf. I'etri's rxiij nd Vineula. Cow- 
 ell. 
 
 GUT I. Jutes; one of the three nations who 
 migrated frpm Germany to Britain at an 
 early period. According to Spelman, they es- 
 tablished themselves chiefly in Kent and the 
 Isle of Wight. 
 
 GWABR MERCHED. Maid's fee. A Brit- 
 ish word signifying a customary fine pay- 
 able to lords of some manors on marriage 
 of tenant's daughter, or otherwise on her In- 
 continence. Cowell. "Marchet." 
 
 GWALSTOW (Saxon). A place of execu- 
 tion. Spelman. 
 
 GWAYF. Waif. Par. Ant. p. 196 ; Cowell. 
 
 GYLPUT. In old law. The name of a 
 local court of the hundred of Pathbew, in 
 Warwickshire. 
 
 GYLTWITE (Saxon). Compensation for 
 fraud or trespass. Grant of King Edgar, A. 
 D. 964; Cowell. 
 
 GYNARCY. A government in which a 
 woman holds, or is capable of holding, the 
 position of chief executive. 
 
 GYVES. Fetters or shackles for the legs. 
 
HABE 
 
 (426) 
 
 HABEAS CORPUS 
 
 H 
 
 HABE, or HAVE (Lat.) A form of the 
 salutatory expression Ave (hail) in the ti- 
 tles of the constitutions of the Theodosian 
 and Justinian Codes. Prateus; Calv. Lex.; 
 Spelman. 
 
 HABEAS CORPORA (Lat. that you have 
 the bodies). In English practice. A writ is- 
 sued out of the common pleas, commanding 
 the sheriff to compel the appearance of a 
 jury in a cause between the parties. It an- 
 swered the same purpose as a distringas ju- 
 ratores in the king's bench. It is abolished 
 by the common-law procedure act. 
 
 HABEAS CORPUS (Lat. that you have the 
 body). A writ directed to the person detain- 
 ing another, and commanding him to pro- 
 duce the body of the prisoner at a certain 
 time and place, with the day and cause of 
 his. caption and detention, to do, submit to, 
 and receive whatsoever the court or judge 
 awarding the writ shall consider in that be- 
 half. 
 
 This is the most famous writ in the law; 
 and, having for many centuries been em- 
 ployed to remove illegal restraint upon per- 
 sonal liberty, no matter by what power im- 
 posed, it is often called the great "writ of 
 liberty." It takes its name from the char- 
 acteristic words it contained when the pro- 
 cess and records of the English courts were 
 written in Latin: 
 
 Praecipimus tibi quod corpus A B in cus- 
 todia vestra detentum, ut dicitur, una cum 
 causa captionis et detentionis suae, quocun- 
 que nomine idem A B oenseatur in eadem 
 habeas coram nobis apud Westm. etc., ad 
 subjiciendum et recipiendum ea, quae curia 
 nostra de eo ad tunc et ibidem ordinari con- 
 tigerit in hoc parte, etc. 
 
 There were several other writs which con- 
 tained the words habeas corpus; but they 
 were distinguished from this and from one 
 another by the specific terms declaring the 
 object of the writ, which terms are still re- 
 tained in the nomenclature of writs, as, fta- 
 teas corpus ad respondendum, ad testifican- 
 dum, ad satisfaciendum,, ad prosequendum, 
 and ad faciendum et recipiendum, ad delib- 
 erandum et recipiendum. 
 
 This writ was in like manner designated 
 as liabeas corpus ad subjiciendum et recipi- 
 endum; but, having acquired in public es- 
 teem a marked importance by reason of the 
 nobler uses to which it has been devoted, it 
 has so far appropriated the generic term to 
 itself that it is now, by way of eminence, 
 commonly called the "Writ of Habeas Cor- 
 pus." 
 
 The date of its origin cannot now be as- 
 certained. Traces of its existence are found 
 in Y. B. 48 Bdw. III. 22; and it appears to 
 have been familiar to, and well understood 
 by, the judges in the reign of Henry VI. In 
 its early history it appears to have been 
 used as a means of relief from private re- 
 
 straint. The earliest precedents where it 
 was used against the crown are in the reign 
 of Henry VII. Afterwards the use of it be- 
 came more frequent, and in the' tftne of 
 Charles I. it was held an admitted constitu- 
 tional remedy. Hurd, Habeas Corpus, 145. 
 
 In process of time, abuses crept into the 
 practice, which in some measure impaired 
 the usefulness of the writ. The party im- 
 prisoning was at liberty to delay his obedi- 
 ence to the first writ, and might wait till a 
 second and third were issued before he pro- 
 duced the party; and many other vexatious 
 shifts were practised to detain state prison- 
 ers in custody. 3 Bl. Comm. 135. 
 
 Greater promptitude in its execution was 
 required to render the writ efficacious. The 
 subject was accordingly brought forward in 
 parliament in 1668, and renewed -from time 
 to time until 1679, when the celebrated habe- 
 as corpus act of 31 Car. II. was passed. The 
 passage of this act has been made the theme 
 of the highest praise and congratulation by 
 British authors, and is even said to have 
 "extinguished all the resources of oppres- 
 sion." Hurd, Habeas Corpus, 93. 
 
 This act being limited to cases of commit- 
 ments for "criminal or supposed criminal 
 matters," every other species of restraint of 
 personal liberty was left to the ordinary 
 remedy at common law; but, doubts being 
 entertained as to the extent of the jurisdic- 
 tion of the judge to inquire into the truth 
 of the return to the writ in such cases, an 
 attempt was made, in 1757, in the house of 
 lords, to render the jurisdiction more reme- 
 dial. It was opposed by Lord Mansfield as 
 unnecessary, and failed, for the time, of suc- 
 cess. It was subsequently renewed, howev- 
 er; and the act of 56 Geo. III. c. 100, sup- 
 plies, in England, all the needed legislation 
 in cases not embraced by the act of 31 Car. 
 II. Hurd, Habeas Corpus. 
 
 The English colonists in America regard- 
 ed the privilege of the writ as one of the 
 "dearest birthrights of Britons," and suffi- 
 cient indications exist that it was frequently 
 resorted to. The denial of it in Massachu- 
 setts by Judge Dudley in 1689 to Rev. John 
 Wise, imprisoned for resisting the collection 
 of an oppressive and illegal tax, was made 
 the subject of a civil action against the 
 judge, and was, moreover, denounced, as one 
 of the grievances of the people, in a pam- 
 phlet published in 1689 on the authority of 
 "the gentlemen, merchants, and inhabitants 
 of Boston and the country adjacent." In 
 New York, in 1707, it served to effect the re- 
 lease of the Presbyterian ministers Makemie 
 and Hampton from an illegal warrant of ar- 
 rest issued by the governor, Cornbury, for 
 preaching the gospel without license. In 
 New Jersey, in 1710, the assembly denounced 
 one of the judges for refusing the writ to 
 Thomas Gordon, which, they said, was the 
 "'undoubted right and great privilege of the 
 
HABEAS CORPUS ACT 
 
 (427) 
 
 HABEMUS OPTIMUM, ETC. 
 
 subject." In South Carolina, in 1692, the as- 
 sembly adopted the act of 31 Car. II. This 
 act was extended to Virginia by Queen Anne 
 early in her reign, while in the assembly of 
 Maryland in 1725 the benefit of its provi- 
 sions was claimed, independent of royal fa- 
 vor, as the "birthright of the inhabitants." 
 The refusal of parliament in 1774 to extend 
 the law of habeas corpus to Canada was de- 
 nounced by the continental congress in Sep- 
 tember of that year as oppressive, and was 
 subsequently recounted in the Declaration of 
 Independence as one of the manifestations 
 on the part of the British government of 
 tyranny over the colonies. Hurd, Habeas 
 Corpus, 109-120. 
 
 It is provided in article 1, § 9, subd. 2, of 
 the constitution of the United States that 
 "the privilege of the writ of habeas corpus 
 shall not be suspended, unless when, in cases 
 of rebellion or invasion, the public safety 
 may require it" 
 
 Similar provisions are found in the consti- 
 tutions of most of the states. In Virginia 
 and Vermont, however, it is forbidden to 
 supend the privilege of the writ in any case; 
 but in the constitutions of Maryland, North 
 Carolina, and South Carolina the writ is not 
 mentioned. 
 
 Congress, by act of March 3, 1863, author- 
 ized the president to suspend the privilege 
 of the writ throughout the whole or any part 
 of the United States, whenever in his judg- 
 ment the public safety might require it, dur- 
 ing the Rebellion. A partial suspension took 
 place. 
 
 Nor has the power ever been exercised by 
 the legislature of any of the states, except 
 that of Massachusetts, which, on the occa- 
 sion of "Shay's Rebellion," suspended the 
 privilege of the writ from November, 1786, to 
 July, 1787. 
 
 HABEAS CORPUS ACT. The statute of 
 31 Chas. II. c. 2. 3 Bl. Comm. 135; 3 Steph. 
 Comm. 699. This statute has been adopted 
 In substance in the United States. 2 Kent, 
 Comm. 27. 
 
 HABEAS CORPUS AD DELIBERANDUM 
 et recipiendum (Lat.) A writ which is is- 
 sued to remove, for trial, a person confined 
 in one county to the county or place where 
 the offense of which he is accused was com- 
 mitted. Bac. Abr. "Habeas Corpus" (A) ; 1 
 Chit. Crlm. Law, 132; Grady & S. Cr. Prac. 
 201. Thus, it has been granted to remove a 
 person in custody for contempt to take his 
 trial for perjury in another county. 1 
 Tyrwh. 185. 
 
 HABEAS CORPUS AD FACIENDUM ET 
 recipiendum (Lat.) A writ usually issued in 
 civil cases to remove an action from an in- 
 ferior court, where the defendant is sued and 
 imprisoned, to some superior court which 
 has jurisdiction over the matter, in order 
 that the cause may be determined there. 
 This writ is commonly called habeas corpus 
 cum causa, because it commands the judges 
 of the inferior court to return the day and 
 cause of the caption and detainer of the 
 prisoner. Bac. Abr. "Habeas Corpus" (A); 
 
 Bagl. Cham. Prac. 297; 3 Bl. Comm. 130; 
 Tidd, Prac. 296. 
 
 This writ may also be issued at the in- 
 stance of the bail of the defendant, to bring 
 him up to be surrendered in their discharge, 
 whether he is in custody in a civil suit or on 
 a criminal accusation. Tidd, Prac. 298; 1 
 Chit. Crim. Law, 132. 
 
 HABEAS CORPUS AD PROSEQUENDUM 
 
 (Lat.) A writ which issues when it is nec- 
 essary to remove a prisoner in order to pros- 
 ecute in the proper jurisdiction wherein the 
 fact was committed. 3 Bl. Comm. 130. 
 
 HABEAS CORPUS AD RESPONDENDUM 
 
 (Lat.) A writ which is usually employed in 
 civil cases to remove a person out of the cus- 
 tody of one court into that of another, In 
 order that he may be sued and answer the 
 action in the latter. 2 Sellon, Prac. 259; 2 
 Mod. 198; 3 Bl. Comm. 129; Tidd, Prac. 300. 
 This writ lies also to bring up a person in 
 confinement to answer a criminal charge. 
 Thus, the court issued it to the warden of 
 the fleet, to take the body of the prisoner 
 confined there before a magistrate, to be ex- 
 amined respecting a charge of felony or mis- 
 demeanor. 5 Barn. & Aid. 730. But it was 
 refused to bring up the body of a prisoner 
 under sentence for a felony, for the purpose 
 of having him tried for a previous felony. 
 
 HABEAS CORPUS AD SATISFACIEN- 
 
 dum (Lat.) A writ which is Issued to bring 
 a prisoner from the prison of one court into 
 that of another, in order to charge him in 
 execution upon a judgment of the last court. 
 2 Sellon, Prac. 261; 3 Bl. Comm. 130; Tidd, 
 Prac. 301. 
 
 HABEAS CORPUS AD SUBJICIENDUM. 
 
 See "Habeas Corpus." 
 
 HABEAS CORPUS AD TESTIFICANDUM 
 
 (Lat.) A writ which lies to bring up a 
 prisoner detained in any jail or prison, to 
 give evidence before any court of competent 
 jurisdiction. Tidd, Prac. 739; 3 Bl. Comm. 
 130; 2 Sellon, Prac. 261. 
 
 The allowance of this writ resting in the 
 discretion of the court, it will be refused if 
 the application appear to be in bad faith, or 
 a mere contrivance. 3 Burrows, 1440. 
 
 It was refused to bring up a prisoner of 
 war (2 Doug. 419), or a prisoner in custody 
 for high treason (Peake, Add. Cas. 21). 
 
 It would of course be refused where it ap- 
 peared from the application that the prison- 
 er was under sentence for crime which ren- 
 dered him incompetent as a witness. 
 
 The application for the writ is made upon 
 affidavit, stating the nature of the suit and 
 the materiality of the testimony, together 
 with the general circumstances of restraint 
 which render the writ necessary. Cowp. 672 ; 
 Fost. Crim. Law, 396; 2 Cow. & H. notes to 
 Phil. Ev. 658. 
 
 HABEAS CORPUS CUM CAUSA. See 
 "Habeas Corpus ad Faciendum et Recipien- 
 dum." 
 
 HABEMUS OPTIMUM TESTEM, CONFI- 
 tentem reum. We have the best witness, a 
 
HABENDUM 
 
 (428) 
 
 HABITUAL CRIMINALS' ACT 
 
 confessing defendant. Fost. Crim. Law, 243. 
 See 2 Hagg. 315; 1 Phil. Bv. 397. 
 
 HABENDUM (Lat. for liaving). In con- 
 veyancing. The clause usually following the 
 granting part of the premises of a deed, 
 which defines the extent of the ownership in 
 the thing granted to be held and enjoyed by 
 the grantee. 2 Washb. Real Prop. 642. 
 
 It commences with the words "to have and 
 to hold." In Law French, these words are 
 rendered "aver et tener," or "a aver et te- 
 ner," and in Latin, "habendum et tenendum." 
 
 HABENDUM ET TENENDUM. In old con- 
 veyancing. To have and to hold. Formal 
 words in deeds of land from a very early 
 period. Brafiton, fol. 17b. 
 
 HABENTES HOMINES (Lat.) Rich men. 
 Du Cange. 
 
 HABERE (Lat.) In the civil law. To have. 
 Sometimes distinguished from tenere (to 
 hold), and possidere (to possess) ; habere re- 
 ferring to the right, tenere to the fact, and 
 Vossidere to both. 
 
 Habere was likewise distinguished as re- 
 ferring to incorporeal things, tenere to cor- 
 poreal, and possidere to both. Calv. Lex. 
 
 HABERE FACIAS POSSESSIONEM (Lat.) 
 In practice. A writ of execution in the ac- 
 tion of ejectment. 
 
 The sheriff is commanded by this writ 
 that, without delay, he cause the plaintiff to 
 have possession of the land in dispute which 
 is therein described. A fi. fa. or ca. sa. for 
 costs may be included in the writ. The 
 duty of the sheriff in the execution and re- 
 turn of that part of the writ is the same as on 
 a common fi. fa or ca. sa. The sheriff is to 
 execute this writ by delivering a full and 
 actual possession of the premises to the 
 plaintiff. For this purpose, he may break an 
 outer or inner door of the house, and, should 
 he be violently opposed, he may raise the 
 posse comitatus. Watson, Sheriffs, 60, 215; 
 5 Coke, 91b; 1 Leon. 145; 3 Bouv. Inst, note 
 3375. 
 
 The name of this writ is abbreviated hab. 
 fa. pass. See 10 Viner, Abr. 14; Tidd, Prac. 
 (8th Eng. Ed.) 1081; 2 Archb. Prac. 58; 3 
 Bl. Comm. 412; Bing. Ex'ns, 115, 252; Bac. 
 Abr. 
 
 HABERE FACIAS SEISINAM (Lat.) In 
 practice. The name of a writ of execution, 
 used in most real actions, by which the sher- 
 iff is directed that he cause the demandant 
 to have seisin of the lands which he has re- 
 covered. 3 Bouv. Inst, note 3374. 
 
 This writ may be taken out at any time 
 within a year and a day after judgment. It 
 is to be executed nearly in the same manner 
 as the writ of habere facias possessionem, 
 and for this purpose the officer may break 
 open the outer door of a house to deliver 
 seisin to the demandant. 5 Coke, 91b; Co- 
 myn. Dig. "Execution" (E) ; Watson, Sheriffs, 
 238. The name of this writ is abbreviated 
 hab. fac. seis. See Bing. Ex'ns, 115, 252; 
 Bac. Abr. 
 
 HABERE FACIAS VISCUM (Lat.) In 
 
 pracj;ice. The name of a writ which lies 
 when a view is to be taken of lands and tene- 
 ments. Fitzh. Nat. Brev. Index, "View." 
 
 HABERE LICERE (Lat. to allow to have). 
 In Roman law. A phrase denoting the duty 
 of a seller to give possession. 
 
 HABERJECTS. A cloth of a mixed color, 
 mentioned in Magna Charta, c. 26. 
 
 HABETO TIBI RES TUAS. Have or take 
 your effects to yourself. One of the old Ro- 
 man forms of divorcing a wife. Calv. Lex. 
 
 HABILIS (Lat.) Fit; suitable. 1 Shars- 
 wood, Bl. Comm. 436. Active; useful (of a 
 servant). Du Cange. Proved; authentic (of 
 Book of Saints). Du Cange. Fixed; stable 
 (of authority of the king). Du Cange. 
 
 HABIT. A disposition or condition of the 
 body or mind acquired by custom or a fre- 
 quent repetition of the same act. See 2 
 Mart. (La.; N. S.) 622; 18 Pa. St. 172; 5 
 Gray (Mass.) 851. 
 
 The habit of dealing has always an im- 
 portant bearing upon the construction of 
 commercial contracts. A ratification will be 
 inferred from the mere habit of dealing be- 
 tween the parties; as, if a broker has been 
 accustomed to settle losses on policies in a 
 particular manner, without any objection be- 
 ing made, or with the silent approbation of 
 his principal, and he should afterwards set- 
 tle other policies in the same manner, to 
 which no objection should be made within 
 a reasonable time, a just presumption would 
 arise of an implied ratification; for, if the 
 principal did not agree to such settlement, he 
 should have declared his dissent. 2 Bouv. 
 Inst. 1313, 1314. 
 
 HABIT AND REPUTE. Applied in Scotch 
 law to a general understanding and belief of 
 something's having happened; e. 0., mar- 
 riage may be constituted by habit and repute. 
 Bell, Diet. 
 
 HABITATIO. A habitation or dwelling. 
 Towns. PI. 116. 
 
 In Civil Law. The right of dwelling; 
 
 the right of free residence in another's 
 house. Inst. 2. 5; Dig. 7. 8. 
 
 HABITATION. 
 
 In Civil Law. The right of a person 
 
 to live in the house ^ of another without prej- 
 udice to the property. 
 
 It differed from a usufruct in this, that the 
 usufructuary might apply the house to any 
 purpose, — as of a store or manufactory; 
 whereas the party having the right of habi- 
 tation could only use it for the residence of 
 himself and family. 1 Brown, Civ. Law, 
 184; Domat, Civ. Law, lib. 1, tit. 11, § 2, 
 note 7. 
 
 In Estates. A dwelling house; a home 
 
 stall. 2 Bl. Comm. 4; 4 Bl. Comm. 220. See 
 10 Grat. (Va.) 64. 
 
 HABITUAL CRIIVIINALS' ACT. A name 
 given to various statutes for the more se- 
 vere punishment of repeated offenses. In 
 England it was applied to St. 32 & 33 
 Vict. c. 99, giving power to apprehend, on 
 
HABITUAL DRUNKARD 
 
 (429) 
 
 HAEREDITAS JACENS 
 
 suspicion, convicted persons holding a license 
 under the penal servitude act. This statute 
 is now repealed. 34 & 35 Vict. c. 112. 
 
 Also applied to statutes declaring profes- 
 sional criminals to be disorderly persons, 
 and punishing them as such. Code Grim. 
 Prac. N. Y. §§ 510-514, 899, subd. 9; Pen. 
 Code N. Y. §§ 690-692. 
 
 HABITUAL DRUNKARD. A person giv- 
 en to ebriety or the excessive use of intoxi- 
 ca,ting drink, who has lost the power or the 
 will, by frequent indulgence, to control his 
 appetite for it. 5 Gray (Mass.) 85. 
 
 Occasional drunkenness is not enough (18 
 Pa. St. 172), yet daily intoxication is not re- 
 quired (112 Mass. 285). 
 
 HACIENDA. In Spanish law. A generic 
 term, applicable to the mass of the property 
 belonging to a state, and the administration 
 of the same. 
 
 As a science, it is defined by Dr. Jose Can- 
 ga Arguells, in his "Diccionario de Hacien- 
 da," to be that part of civil economy which 
 teaches how to aggrandize a nation by the 
 useful employment of its wealth. 
 
 A royal estate. Newman & B. 
 
 HADBOTE. In French law. A recom- 
 pense or amends made for violence offered 
 to a person in holy orders. 
 
 HADERUNGA. Hatred; ill will; prejudice, 
 or partiality. Spelman; Cowell. 
 
 HADGONEL. A tax or mulct. Jacob. 
 
 HAEC EST CONVENTIO (Law Lat. this 
 is an agreement). Words with which agree- 
 ments anciently commenced. Y. B. H. 6 Edw. 
 II. 191. 
 
 HAEC EST FINALIS CONCORDIA (Law 
 Lat. this is the final agreement) . The words 
 with which the foot of a fine commenced. 2 
 Bl. Comm. 351. 
 
 HAEREDA. In Gothic law. A tribunal 
 answering to the English court leet. 4 Bl. 
 Comm. 274. 
 
 HAEREDE ABDUCTO. An ancient writ 
 that lay for the lord, who, having by right 
 the wardship of his tenant under age, could 
 not obtain his person, the same being car- 
 ried away by another person. Old Nat. Brev. 
 93. 
 
 HAEREDEM DEUS FACIT, NON HOMO. 
 
 God, and not man, makes the heir. Bracton, 
 62b. 
 
 HAEREDEM EST NOMEN COLLECTI- 
 vum. Heir is a collective name. 
 
 HAEREDES(Lat.plural of Aoeres). Incivil 
 law. Heirs. 
 
 HAEREDES EXTRANEI (Lat.) In civil 
 law. Extraneous or foreign heirs; that is, 
 those who were not children or slaves of 
 the testator. Those only could be extrane- 
 ous heirs who had a capacity of accepting 
 the inheritance both at the time of making 
 the will and at the death of the testator. 
 Halifax, Anal. bk. 11, c. 6, | 38 et seq. 
 
 HAEREDES NECESSARII (Lat.) In civil 
 law. Necessary heirs. If slaves were made 
 heirs, they had no choice, but on the death 
 of the testator were necessarily free and his 
 heirs. Calv. Lex.; Halifax, Anal. bk. 11, c. 
 6, § 38 et seq.; Heinec. Elem. Jur. Civ. § 
 587. 
 
 HAEREDES PROXIMI (Lat.) The chil- 
 dren or descendants of the deceased. Dalr. 
 Feud. Prop. 110. 
 
 HAEREDES REMOTIORES (Lat.) The 
 kinsmen other than children or descendants. 
 Dalr. Feud. Prop. 110. 
 
 HAEREDES SUI ET NECESSARII (Lat.) 
 In civil law. Proper and necessary heirs; 
 heirs by relationship and necessity. The de- 
 scendants of an ancestor in direct line were 
 so called, sui denoting the relationship, and 
 necessarii the necessity of law which made 
 them heirs without their election, and 
 whether the ancestor died testate or intes- 
 tate. Halifax, Anal. bk. 11, c. 6, § 38 et 
 seq.; Mackeld. Civ. Law, §§ 681, 682; Hei- 
 nec. Elem. Jur. Civ. § 588. 
 
 HAEREDIPETA (Law Lat.) In old Eng- 
 lish law. Next heir. Laws Hen. I.; Du 
 Cange. One who seeks to be made heir ( qui 
 c'upit haereditatem) . 
 
 HAEREDIPETAE SUO PROPINQUO VEL 
 extraneo periculoso sane custodi nullus com- 
 mittatur. To the next heir, whether a rela- 
 tion or a stranger, certainly a dangerous 
 guardian, let no one be committed. Co. Litt. 
 88b. 
 
 HAEREDITAS (Lat. from hacres). 
 
 In Civil Law. "Nihil aliud est liaeredi- 
 
 tas, quam suocessio in universum jus, qiiod 
 defunctus habuit." Inheritance is nothing 
 else than succession to every right which the 
 deceased possessed. Dig. 50. 17; Id. 50. 16; 
 Id. 5. 2; Mackeld. Civ. Law, § 605; Bracton, 
 62b. 
 
 In Old English Law. An estate trans- 
 missible by descent; an inheritance. Mart. 
 Anec. Collect, tit. 3, p. 269; Co. Litt. 9; 
 Glanv. lib. 7, c. 1. 
 
 HAEREDITAS, ALIA CORPORALIS, ALIA 
 Incorporalis; corporalis est, quae tangi po- 
 test et viderl; Incorporalis quae tangi non 
 potest nee viderl. An inheritance is either 
 corporeal or incorporeal. Corporeal is that 
 which can be touched and seen; incorporeal, 
 that which can neither be touched nor seen. 
 Co. Litt. 9. 
 
 HAEREDITAS DAMNOSA. 
 nosa Haereditas." 
 
 See "Dam- 
 
 HAEREDITAS EST SUCCESSIO IN UNI- 
 versum jus quod defunctus habuerat. Inher- 
 itance is the succession to every right which 
 was possessed by the late possessor. Co. 
 Litt. 237. 
 
 HAEREDITAS JACENS (Lat.) 
 
 In Civil Law. A prostrate inheritance. 
 
 The inheritance left to a voluntary heir was 
 so called as long as he had not manifested, 
 
HAEREDITAS LUCTUOSA 
 
 (430) 
 
 HAERES NATUS 
 
 either expressly or by silence, his accept- 
 ance or refusal of the inheritance, which, by 
 a fiction of law, was said to sustain the per- 
 son (sustinere personam) of the deceased, 
 and not of the heir. Mackeld. Civ. Law, § 
 685a. An estate with no heir or legatee to 
 take. Code, 10. 10. 1; Bell, Diet. 
 
 In English Law. An estate in abey- 
 ance; that is, after the ancestor's death, and 
 before assumption of heir. Co. Litt. 342b. 
 An inheritance without legal owner, and 
 therefore open to the first occupant. 2 Shars- 
 wood, Bl. Comm. 259. 
 
 . HAEREDITAS LUCTUOSA. In the civil 
 law. A sad or mournful inheritance or suc- 
 cession; as that of a parent to the estate 
 of a child, which was regarded as disturb- 
 ing the natural order of mortality {turiato 
 or dine mortalitatis) . Code, 6. 25. 9; 4 Kent, 
 Comm. 397. 
 
 HAEREDITAS NIHIL ALIUD EST, QUAM 
 successio in universum jus, quod defunctus 
 habuerit. The right of inheritance is noth- 
 ing else than the faculty of succeeding to all 
 the rights of the deceased. Dig. 50. 17. 62. 
 
 HAEREDITAS NUNQUAM ASCENDIT. 
 The inheritance never ascends. Glanv. lib. 
 7, c. 1; Broom, Leg. Max. (2d London Ed.) 
 469; 2 Sharswood, Bl. Comm. 212, note; 3 
 Greenl. Cruise, Dig. 331; 1 Steph. Comm. 
 378. Abrogated by St. 3 & 4 Wm. IV. c. 106, 
 § 6. 
 
 HAEREDUM APPELLATIONE VENIUNT 
 haeredes haeredum in infinitum. By the title 
 of heirs, come the heirs of heirs to infinity. 
 Co. Litt. 9. 
 
 HAERES. In Roman law. One who suc- 
 ceeds to the rights and occupies the place of 
 a deceased person, being appointed by the 
 will of the decedent. It is to be observed 
 that the Roman haeres had not the slightest 
 resemblance to the English "heir." He cor- 
 responded in character and duties almost ex- 
 actly with the "executor" under the English 
 law. The institution of the haeres was the 
 essential characteristic of a testament. If 
 this was not done, the instrument was called 
 a codicillus. Mackeld. Civ. Law, §§ 632, 650. 
 
 HAERES ASTRARIUS (Law Lat.) In old 
 English law. An heir in actual possession. 
 
 HAERES DE FACTO (Law Lat.) In old 
 English law. Heir from fact; that is, from 
 the deed or act of his ancestor, without or 
 against right. Applied to an heir whose ti- 
 tle originated in the wrongful act of his an- 
 cestor. An heir in fact, as distinguished 
 from an heir de jure, or by law. Bracton, 
 fol. 172. 
 
 HAERES EST ALTER IPSE, ET FILIUS 
 est pars patrls. An heir Is another self, and 
 a son is a part of the father. 
 
 HAERES EST AUT JURE PROPRIETA- 
 tis aut jure representationis. An heir is either 
 by right of property or right of representa- 
 tion. 3 Coke. 40. 
 
 HAERES EST EADEM PERSONA CUM 
 antecessore. The heir is the same person 
 with the ancestor. Co. Litt. 22. 
 
 HAERES EST NOMEN COLLECTIVUM. 
 
 "Heir" is a collective name or noun. 1 Vent 
 215. 
 
 HAERES EST NOMEN JURIS; FILIUS 
 est nomen naturae. "Heir" is a term of law; 
 "son," one of nature. 
 
 HAERES EST PARS ANTECESSORiS. 
 
 The heir is a part of the ancestor. Co. Litt 
 22b; 3 Hill (N. Y.) 165, 167. 
 
 HAERES EX ASSE (Lat.) In civil law. 
 An heir to the whole estate; a sole heir. 
 Inst. 2. 23. 9. 
 
 HAERES EXTRANEUS (Lat.) In civil 
 law. A strange or foreign heir; one who 
 was not subject to the power of the testator, 
 or person who made him heir. Qui testato- 
 ris juri suhjecti nan sunt, extranei haeredes 
 appellantur. Inst. 2. 19. 3. 
 
 HAERES FACTUS (Lat.) In civil law. An 
 heir made by will; a testamentary heir; the 
 person created universal successor by will. 
 Story, Confi. Laws, § 507; 3 Bl. Comm. 2^4. 
 Otherwise called "haeres ex testamento," and 
 "haeres institutus." Inst. 2. 9. 7; Id. 2. 14. 
 
 HAERES FIDEICOMMISSARIUS (Lat.) 
 In the civil law. The person for whose ben- 
 efit an estate was given to another, termed 
 "haeres fiduciarius" (q. v.) by will. Inst. 2. 
 23. 6. 7. 9. Answering nearly to the cestui 
 que trust of the English law. 
 
 HAERES FIDUCIARIUS. A fiduciary heir, 
 or heir in trust; a person constituted heir 
 by will, in trust for the benefit of another, 
 called the "fideicommissarius." Inst. 2. 23. 1. 
 2. Corresponding nearly to the "trustee" of 
 the English law. Crabb, Hist. Bng. Law, 
 397. 
 
 HAERES HAEREDIS MEI EST MEUS 
 haeres. The heir of my heir is my heir. 
 Wharton. 
 
 HAERES LEGITIMUS (Lat.) A lawful 
 heir. Code, 6. 58. 
 
 HAERES LEGITIMUS EST QUEM NUP- 
 tiae demonstrant. He is the lawful heir 
 whom the marriage demonstrates. Mirr. 
 Just. 70; Fleta, lib. 6, c. 1; Dig. 2. 4. 5; Co. 
 Litt. 7b; Broom, Leg. Max. (3d London Ed.) 
 457. As to the application of the principle 
 when the marriage is subsequent to the birth 
 of the child, see 2 Clark & F. 571; 6 Bing. 
 (N. C.) 385; 5 Wheat. (U. S.) 226, 262, note. 
 
 HAERES MINOR UNO ET VIGENTI AN- 
 
 nis non respondebit, nisi in casu dotis. An 
 heir minor, under twenty-one years of age, 
 is not answerable, except in the matter of 
 dower. F. Moore, 348. 
 
 HAERES NATUS (Lat.) In civil law. An 
 heir born; one born heir, as distinguished 
 from one made heir {haeres f actus, q. v.); 
 an heir at law, or by intestacy (a* intesta- 
 
HAERES NECESSARIUS 
 
 (431) 
 
 HALLAGE 
 
 to) ; the next of kin by blood, in cases of in- 
 testacy. Story, Confl. Laws, § 507; 3 Bl. 
 Comm. 224. 
 
 HAERES NECESSARIUS (Lat.) In civil 
 law. A necessary or compulsory heir. This 
 name was given to the heir when, being a 
 slave, he was named "heir" in the testa- 
 ment, because on the death of the testator, 
 whether he would or not, he at once became 
 free, and was compelled to assume the heir- 
 ship. Inst. 2. 19. 1. 
 
 HAERES NON TENETUR IN ANGLIA 
 ad debita antecessoris reddenda, nisi per an- 
 tecessorem ad hoc fuerit obligatus, praeter- 
 quam debita regis tantum. In England, the 
 heir is not bound to pay his ancestor's debts, 
 unless he be bound to it by the ancestor, ex- 
 cept debts due to the king. But now, by 3 
 & 4 Wm. IV. c. 104, he is liable. Co. Litt. 
 386. 
 
 HAERES RECTUS (Lat.) In old English 
 law. A right heir. Fleta, lib. 6, c. 1, § 11. 
 
 HAERES SUUS (Lat.) In civil law. A 
 man's own heir; a decedent's proper or nat- 
 ural heir. This name was given to the lin- 
 eal descendants of the deceased. Inst. 3. 1. 
 4-5. 
 
 HAERETARE (Law Lat.) In old English 
 law. To give a right of inheritance, or make 
 the donation hereditary to the grantee and 
 his heirs. Co well. 
 
 HAERETICO COIVIBURENDO. 
 Haeretico Comburendo." 
 
 See "De 
 
 HAFNE COURTS (hafne, Danish, a haven, 
 or port). Haven courts; courts anciently 
 held in certain ports in England. Spelman. 
 
 HAG A. A house. Blount. 
 
 A military inclosure. Spelman. 
 
 HAGIA, or HAIA. A hedge or inclosure. 
 Men. Angl. tom. 2, p. 273. 
 
 HAIEBOTE. In old English law. A per- 
 mission or liberty to take thorns, etc., to 
 make or repair hedges. Blount. 
 
 HAILL. In Scotch law. Whole; the whole. 
 "All and haill" are common words in con- 
 veyances. 1 Bell, App. Cas. 499. 
 
 HAILWORKFOLK. Holywork. Thosewho 
 formerly held lands by the service of de- 
 fending or repairing a church or monument. 
 Rapalje & L. 
 
 HAIMHALDARE. In old Scotch law. To 
 seek restitution of one's own goods and gear, 
 and bring the same home again. Skene de 
 Verb. Sign. 
 
 HAIMSUCKEN. In Scotch law. The crime 
 of beating or assaulting a person in his own 
 house. Bell, Diet. 
 
 HALF-BLOOD. A term denoting the de- 
 gree of relationship which exists between 
 those who have one parent only in common. 
 
 By the English common law, one related 
 to an intestate of the half-blood only could 
 
 never Inherit, upon the presumption that he 
 is not of the blood of the original purchaser; 
 but this rule has been greatly modified by 
 3 & 4 Wm. IV. c. 106. 
 
 In this country, the common-law principle 
 on this subject may be considered as not in 
 force, though in many states some distinc- 
 tion is still preserved between the whole and 
 the half-blood. 4 Kent, Comm. 403, note; 2 
 Yerg. (Tenn.) 115; 1 McGord (S. C.) 456; 
 31 Pa. St. 289; Dane, Abr. Index; 2 Washb. 
 Real Prop. 411. See "Descent." 
 
 HALF-BROTHER,or HALF-SISTER. Per- 
 sons who have the same father, but different 
 mothers; or the same mother, but different 
 fathers. 
 
 HALF-DEFENSE. In common-law plead- 
 ing. A name applied to the abbreviated 
 form of words with which a plea is intro- 
 duced. 
 
 HALF-ENDEAL. A moiety, or half of a 
 thing. Rapalje & L. 
 
 HALF-KIN EG. In Saxon law. Half-king 
 isemi-rex) . A title given to the aldermen of 
 all England. Crabb, Hist. Eng. Law, 28; 
 Spelman. 
 
 HALF-PROOF. In civil law. That which 
 is insufficient as the foundation of a sentence 
 or decree, although in itself entitled to some 
 credit. Vicat, "Probatio." 
 
 HALF-SEAL. A seal used in the English 
 chancery for the sealing of commissions to 
 delegates appointed upon any appeal, either 
 in ecclesiastical or marine causes. 
 
 HALF-TIMER. A child who, by the opera- 
 tion of the English factory and education 
 acts.is employed for less than the full time in 
 a factory or workshop, in order that he may 
 attend some "recognized efficient school." 
 See Factory and Workshop Act 1878, § 23; 
 Elementary Education Act 1876, § 11. Whar- 
 ton. 
 
 HALF-TONGUE. Ajury.half of one tongue 
 or nationality, and half of another. Vide 
 "De Medietate Linguae," Jacob. 
 
 HALF-YEAR. In the computation of time, 
 a half-year consists of one hundred and 
 eighty-two days. Co. Litt. 135b; Rev. St. N. 
 Y. pt. 1, c. 19, tit. 1, § 3. 
 
 HAL! GEMOTE. Halle gemote. 
 
 HALIMASS. In English law. The feast 
 of All Saints, on the 1st of November; one 
 of the cross-quarters of the year was com- 
 puted from Halimass to Candlemass. Whar- 
 ton. 
 
 HALL. A public building used either for 
 the meetings of corporations, courts, or em- 
 ployed to some public uses; as, the city hall, 
 the town hall. Formerly this word denoted 
 the chief mansion or habitation. 
 
 HALLAGE. In old English law. A fee or 
 toll due for goods or merchandise vended in 
 a hall. Jacob. 
 
 A toll due to the lord of a fair or market, 
 
HALLAZCO 
 
 (432) 
 
 HANAPER 
 
 for such commodities as were vended In the 
 common hall of the place. Cowell; Blount. 
 
 HALLAZCO. In Spanish law. The finding 
 and taking possession of something which 
 previously had no owner, and which thus be- 
 comes the property 'of the first occupant. 
 Las Partidas, 3. 5. 28; Id. 5. 48. 49; Id. 5. 20. 
 50. 
 
 HALLE GEMOTE. Hall assembly. A spe- 
 cies of court baron. 
 
 HALLUCINATION. In medical jurispru- 
 dence. A species of mania by which an idea 
 reproduced by the memory is associated and 
 embodied by the imagination. This state of 
 mind is sometimes called "delusion," or 
 "waking dreams." 
 
 An attempt has been made to distinguish 
 "hallucinations" from "illusions." The for- 
 mer are said to be dependent on the state 
 of the intellectual organs, and the latter on 
 that of those of sense. Ray, Med. Jur. § 99; 
 1 Beck, Med. Jur. 538, note. An instance is 
 given of a temporary hallucination in the 
 celebrated Ben Jonson, the poet. He told a 
 friend of his that he had spent many anight in 
 looking at his great toe, about which he had 
 seen Turks and Tartars, Romans and Car- 
 thaginians, fight, in his imagination. 1 
 Colly. Lun. 34. If, instead of being tempo- 
 rary, this affection of his mind had been 
 permanent, he would doubtless have been 
 considered insane. See, on the subject of 
 spectral illusions, Hibbert, Alderson, and 
 Parrar's Essays; Scott on Demonology, etc.; 
 3 Bostock, Physiology, 91, 161; 1 Esquirol, 
 Maladies Mentales, 159. 
 
 HALMOTE. See "Halle Gemote." 
 
 HALYMOTE, HOLIMOT.or HALEGEMOT 
 
 (from Saxon, halg, holy, and gemot or mot, 
 a meeting). A holy or ecclesiastical court. 
 
 A court held in London before the lord 
 mayor and sheriffs, for regulating the bak- 
 ers. 
 
 It was anciently held on Sunday next be- 
 fore St. Thomas' day, and therefore called 
 the holymote, or holy court. Cowell (Ed. 
 1727); Cunningham. See Spelman; 4 Inst. 
 321. 
 
 HALYWERCFOLK. Those who held by 
 the service of guarding and repairing a 
 church or sepulchre, and were excused from 
 feudal services. Especially in the county of 
 Durham, those who held by service of de- 
 fending the corpse of St. Cuthbert. Jacob. 
 
 HAMBLING. In the forest law. The box- 
 ing or hock sinewing of dogs; an old mode 
 of laming or disabling dogs. Termes de la 
 Ley. 
 
 H A M E S U C K E N . In Scotch law. The crime 
 of hamesucken consists in "the felonious 
 seeking and invasion of a person in his 
 dwelling house." 1 Hume, Hist. Eng. 312; 
 Alls. Crim. Law, 199. 
 
 The mere breaking into a house, without 
 personal violence, does not constitute the of- 
 fense, nor does the violence without an en- 
 try with intent to commit an assault. It is 
 
 the combination of both which completes the 
 crime. It is necessary (1) that the inva- 
 sion of the house should have proceeded 
 from forethought malice; but it is sufficient 
 if, from any illegal motive, the violence has 
 been meditated, although it may not have 
 proceeded from the desire of wreaking per- 
 sonal revenge, properly so called. (2) The 
 place where the assault was committed must 
 have been the proper dwelling house of the 
 party injured, and not a place of business, 
 visit, or occasional residence. (3) The of- 
 fense may be committed equally in the day 
 as In the night, and not only by effraction of 
 the building by actual force, but by an entry 
 obtained by fraud, with the intention of in- 
 flicting personal violence, followed by its 
 perpetration. (4) But, unless the injury to 
 the person be of a grievous and material 
 character, it is not hamesucken, though the 
 other requisites to the crime have occurred. 
 When this is the case, it is immaterial 
 whether the violence be done lucri causa, or 
 from personal spite. 
 
 The punishment of hamesucken in aggra- 
 vated cases of injury is death; in cases of 
 inferior atrocity, an arbitrary punishment. 
 Alls. Crim. Law, c. 6; Brsk. Inst. 4. 9. 23. 
 
 This term was formerly used in England 
 instead of the now modern term "burglary." 
 4 Bl. Comm. 223. 
 
 But in Hale's Pleas of the Crown it is 
 said: "The common genus of offenses that 
 comes under the name of 'hamsecken' is 
 that which is usually called 'house break- 
 ing;' which sometimes comes under the com- 
 mon appellation of 'burglary,' whether com- 
 mitted in the day or night to the intent to 
 commit felony; so that house breaking of 
 this kind is of two natures." 1 Hale, P. C. 
 547; 22 Pick. (Mass.) 4. 
 
 HAMFARE (Saxon, from ham, a house). 
 In Saxon law. An assault made in a house; 
 a breach of the peace in a private house. 
 Spelman; Blount. 
 
 HAM LET. A small village ; a part or mem- 
 ber of a vill. 
 
 HAM MA. A close joining to a house; a 
 croft; a little meadow. Cowell. 
 
 In Old English Law. The right of se- 
 curity and privacy in a man's house. Du 
 Cange. The breach of this privilege by a 
 forcible entry of a house is breach of the 
 peace. Anc. Inst. Eng.; Du Cange; Bracton, 
 lib. 3, tr. 2, c. 2, § 3. The right to entertain 
 jurisdiction of the offense. Will. Thorn, p. 
 2C30; Spelman; Du Cange. Immunity from 
 punishment for such offense. Id.; Pleta, lib. 
 
 I, c. 47, § 18. An insult offered in one's own 
 house (insultus factus in domo). Bromp- 
 ton, p. 957; Du Cange. Variously spelled 
 hamsoca, hamsocua. hamsoTcen, haimsuhen, 
 Jxamesahen. 
 
 HANAPER. A hamper or basket in which 
 were kept the writs of the court of chancery 
 relating to the business of a subject, and 
 their returns. 5 & 6 Vict. c. 113; 10 Rich. 
 
 II. c. 1. Equivalent to the Roman ft,s(m,s. Id. 
 According to Spelman, the fees accruing on 
 
HANAPER OFFICE 
 
 (433) 
 
 HANTELOD 
 
 writs, etc., were there kept. Mon. Angl. torn. 
 1, p. 943 ; Du Cange. 
 
 HANAPER OFFICE. An office on the com- 
 mon-law side of the English court of chan- 
 cery, in which the writs relating to the busi- 
 ness of the subject, and the returns to them, 
 were anciently kept. 3 Bl. Comm. 48. 
 
 So called, according to Blackstone, be- 
 cause the writs were kept in a basket or 
 hamper, but Spelman says that the basket 
 was for keeping the fees of the office, and 
 not the writs. 
 
 This and the petty bag office (q. r.) were 
 offices in which writs relating to the inter- 
 ests of the subject and the crown, respective- 
 ly, were kept. For a discussion of the his- 
 toric origin of the names, see 6 Johns. (N. 
 Y.) 337, 363. 
 
 HAND. A measure of length, four inches 
 long; used in ascertaining the height of 
 horses. 
 
 HAND BOROW (from hand, and Saxon 
 borow, a pledge). Nine of a decennary or 
 friborg were so called, being inferior to 
 the tenth or head borow, — a decenna or 
 friborga being ten freemen or frank-pledges, 
 who were mutually sureties for each other 
 to the king for any damage. Du Cange, 
 "Frfborg," "Head Borow." 
 
 HAND GRITH (Saxon). Peace or protec- 
 tion given by the king with his own hand. 
 Cowell. 
 
 HANDBILL. A written or printed notice 
 displayed to Inform those concerned of some- 
 thing to be done. 
 
 HANDHABEND. In Saxon law. One hav- 
 ing a thing in his hand; that is, a thief 
 found having the stolen goods in his pos- 
 session, — latro manifestus of the civil law. 
 See Laws Hen. I. c. 59; Laws Athelstane, § 
 6; Fleta, lib. 1, c. 38, § 1; Britt. p. 72; Du 
 Cange. 
 
 Jurisdiction to try such thief. Id. 
 
 HANDSALE, or HANDSEL. Anciently, 
 among all the northern nations, shaking of 
 hands was held necessary to bind a bar- 
 gain, — a custom still retained in verbal con- 
 tracts. A sale thus made was called hand- 
 sale, rctiditio per mutiiiiiii inaimiii complexioiivm. 
 In process of time, the same word was used 
 to signify the price or earnest which was 
 given immediately after the shaking of 
 hands, or instead thereof. In some parts of 
 the country it is usual to speak of hand 
 money, as the part of the consideration paid 
 or to be paid at the execution of a contract 
 of sale. 2 Bl. Comm. 448; Heinec. Blem. 
 Jur. Civ. lib. 2, § 335; Toullier, Dr. Civ. liv. 
 3, tit. 3, c. 2, note 33. 
 
 HANDWRITING. Anything written by a 
 person. The manner in which a person 
 writes, including the formation of the char- 
 acters, the separation of the words, and 
 other features distinguishing the written 
 matter, as a mechanical result, from the 
 writing of other persons. 
 
 HANGING IN CHAINS. In atrocious cases 
 
 it was at one time usual, in England, for 
 the court to direct a murderer, after execu- 
 tion, to be hanged upon a gibbet in chains 
 near the place where the murder was com- 
 mitted, a practice quite contrary to the Mo- 
 saic law. Deut. xxi. 23. Abolished by 4 & 
 5 Wm. IV. c. 26. Wharton. 
 
 HANGMAN. An executioner. The name 
 usually given to a man employed by the 
 sheriff to put a man to ' death, according to 
 law, in pursuance of a judgment of a com- 
 petent court and lawful warrant. 
 
 HANGWITE (from Saxon /iarejriow, to hang, 
 and Kite, fine). Fine, in Saxon law, for il- 
 legal hanging of a thief, or for allowing him 
 to escape. Immunity from such fine. Du 
 Cange. 
 
 HANIG. Customary labor. 
 
 HANSE. A commercial confederacy for 
 the good ordering and protection of the com- 
 merce of Its members; an imposition upon 
 merchandise. Du Cange, "Hansa." 
 
 HANSE TOWNS. A number of towns in 
 Europe which joined in a league for mutual 
 protection of commerce as early as the 
 twelfth century. 
 
 Amsterdam and Bremen were the first two 
 that formed it, and they were joined by 
 others in Germany, Holland, England, 
 France, Italy, and Spain, till in 1200 they 
 numbered seventy-two. They made war and 
 peace to protect their commerce, and held 
 countries in sovereignty, as a united com- 
 monwealth. They had a common treasury 
 at Lubeck, and power to call an assembly as 
 often as they chose. For purposes of juris- 
 diction, they were divided into four colleges 
 or provinces. Great privileges were granted 
 them by Louis VI. of France, and succeeding 
 monarchs. One of their principal magazines 
 was at London. Their power became so 
 great as to excite the jealousy of surround- 
 ing nations, who forced the towns within 
 their jurisdiction which belonged to the 
 league to renounce it. Their number and 
 power became thus gradually reduced, be- 
 ginning from the middle of the fifteenth cen- 
 tury; and at the present day only Bremen, 
 Hamburg, Lubeck, and Frankfort-on-the- 
 Main remain, — these being recognized by the 
 act establishing the German Confederacy, in 
 1815, as free Hanseatic cities. Enc. Brit. 
 
 HANSE TOWNS, LAWS OF THE. The 
 
 maritime ordinances of the Hanseatic towns, 
 first published in German at Lubeck in 1597, 
 and in May, 1614, revised and enlarged. The 
 text of this digest, and a Latin translation, 
 are published with a commentary by Ku- 
 ricke; and a French translation has been 
 given by Cleirac. See "Code." 
 
 HANSEATIC. 
 
 towns. 
 
 Pertaining to the hanse 
 
 HANSGRAVE. The, chief of a company; 
 the head man of a corporation. 
 
 HANTELOD. An arrest. Jacob. 
 
HAP 
 
 (434) 
 
 HAYBOTE 
 
 HAP. To catch. Thus, "hap the rent," 
 "hap the deed-poll," were formerly used. 
 Tech. Diet; Cowell. 
 
 HARBOR (Saxon, here herga, station for an 
 army). A place where ships may ride with 
 safety; any navigable water protected by the 
 surrounding country; a haven. It is public 
 property. 1 Bouv. Inst, note 435. 
 
 Harbor Is to be distinguished from "port," 
 which has a reference to the delivery of 
 cargo. See 7 Man. & G. 870; 9 Mete. (Mass.) 
 371-377; 2 Barn. & Aid. 460. Thus, we have 
 the "said harbor basin and docks of the port 
 of Hull." 2 Barn. & Aid. 60. But they are 
 generally used as synonymous. Webster. 
 
 In Torts. To receive clandestinely or 
 
 without lawful authority a person for the 
 purpose of so concealing him that another 
 having a right to the lawful custody of such 
 person shall be deprived of the same; for 
 example, the harboring of a wife or an ap- 
 prentice in order to deprive the husband or 
 the master of them; or, in a less technical 
 sense, it is the reception of persons im- 
 properly. 10 N. H. 247; 5 111. 498. 
 
 The harboring of such persons will sub- 
 ject the harborer to an action for the in- 
 jury; but, in order to put him completely 
 in the wrong, a demand should be made for 
 their restoration, for in cases where the 
 harborer has not committed any other 
 wrong than merely receiving the plaintiff's 
 wife, child, or apprentice, he may be under 
 no obligation to return them without a de- 
 mand. 1 Chit. Prac. 564; Dane, Abr. Index; 
 2 N. C. Law Rep. 249; 5 How. (U. S.) 215, 
 227. 
 
 HARBOR AUTHORITY. In England, a 
 harbor authority is a body of persons, cor- 
 porate or unincorporate, being proprietors 
 of, or intrusted with the duty of construct- 
 ing, improving, managing, or lighting, any 
 harbor. St. 24 & 25 Vict. c. 47. 
 
 HARD LABOR. A phrase used in sen- 
 tencing to confinement in institutions where 
 labor is required of convicts. The word 
 "hard" is surplusage. 29 Pa. St. 448. 
 
 HARDHEIDIS, or HARDIES (Scotch). In 
 old Scotch law. Lions; coins formerly of 
 the value of three half-pence. 1 Pitc. Grim. 
 Tr. pt. 1, p. 64, note. 
 
 HARNASCA (Law Lat.) In old European 
 law. The defensive armor of a man; har- 
 ness. Spelman. 
 
 HARO, or HARROU (Pr.) In Norman and 
 early English law. An outcry, or hue and 
 cry after felons and malefactors. Cowell. 
 
 HASP AND STAPLE. In old Scotch law. 
 The form of entering an heir in a subject 
 situated within a royal borough. It con- 
 sisted of the heir's taking hold of the hasp 
 and staple of the door (which was the sym- 
 bol of possession), with other formalities. 
 Bell, Diet. 
 
 HASPA. 
 
 In Old English Law. The hasp of a 
 
 door; by which the livery of seisin might 
 
 anciently be made, where there was a house 
 on the premises. 
 
 In Old Records. The hasp or clasp of a 
 
 book. 
 
 HASTA (Lat.) 
 
 In the Civil Law. A spear; the badge 
 
 of a sale by auction. Hastal subjicere, to put 
 under the spear; to put up at auction. Calv. 
 Lex. 
 
 In Feudal Law. A spear; the symbol 
 
 used in making investiture of a fief. 
 
 HAT IVIONEY. In maritime law. Primage; 
 a small duty paid to the captain and mari- 
 ners of a ship. 
 
 HAUR. In old English law. Hatred. LL. 
 Gul. Conq. c. 16. 
 
 HAUSTUS (Lat. from haurire, to draw). 
 In civil law. The right of drawing water, 
 and the right of way to the place of drawing. 
 Fleta, lib. 4, c. 27, § 9. 
 
 HAUT CHEMIN (Law Fr.) Highway. Y. 
 B. M. 4 Hen. VI. 4. 
 
 HAUT ESTRET (Law Pr.) High street; 
 highway. Y. B. P. 11 Hen. VI. 2. 
 
 HAVE (Lat.) A form of the salutatory ex- 
 pression Ave, used in the titles of some of 
 the constitutions of the Theodosian and Jus- 
 tinian Codes. See Code, 7. 62. 9; Id. 9. 2. 11. 
 
 To possess corporally. "No one, at com- 
 mon law, was said to have or to be in pos- 
 session of land, unless it were conveyed to 
 him by the livery of seisin, which gave him 
 the corporal investiture and bodily occupa- 
 tion thereof." Bl. Law Tr. 113. 
 
 HAVE AND HOLD. A common phrase in 
 conveyancing, derived from the habendum et 
 tenendum of the old common law. See 
 "Habendum." 
 
 HAVEN. A place calculated for the re- 
 ception of ships, and so situated, in regard to 
 the surrounding land, that the vessel may 
 ride at anchor in it in safety. Hale de Port. 
 Mar. c. 2; 2 Chit. Com. Law, 2; 15 Bast, 304, 
 305. See "Port." 
 
 HAWKER. An itinerant or traveling trad- 
 er, who carries goods about in order to sell 
 them, and who actually sells them to pur- 
 chasers, in contradistinction to a trader who 
 has goods for sale, and sells them in a fixed 
 place of business. 
 
 Superadded to this, though perhaps not 
 essential, is generally understood one who 
 not only carries goods for sale, but seeks 
 for purchasers, either by outcry, which some 
 lexicographers conceive as intimated by the 
 derivation of the word, or by attracting no- 
 tice and attention to them, as goods for sale, 
 by an actual exhibition or exposure of them 
 by placards or labels, or by a conventional 
 signal, like the sound of a horn for the sale 
 of fish. 12 Cush. (Mass.) 495. 
 
 HAYBOTE (from haye, hedge, and hote, 
 compensation). Hedgebote; one of the esto- 
 vers allowed tenant for life or for years; 
 namely, material to repair hedges or fences. 
 
HAYWARD 
 
 (43S) 
 
 HEDAGIUM 
 
 2 Sharswood, Bl. Comm. 35; 1 Washb. Real 
 Prop. 99. 
 
 HAYWARD (from liaye, hedge, and ward, 
 keeping). In old English law. An officer 
 appointed in the lord's court to keep a com- 
 mon herd of cattle of a town. So called be- 
 cause he was to see that they did not break 
 or injure the hedges of inclosed grounds. 
 His duty was also to impound trespassing 
 cattle, and to guard against pound breaches. 
 Kitch. Cts. 46; Cowell. 
 
 HAZARDOUS CONTRACT. A contract in 
 which the performance of that which is one 
 of its objects depends on an uncertain event. 
 Civ. Code La. art. 1769; 1 Bouv. Inst, note 
 707; 1 J. J. Marsh. (Ky.) 596; 3 J. J. Marsh. 
 (Ky.) 84. See "Maritime Loan." 
 
 HE, or HIS. The use of the masculine 
 pronoun is not, as a rule of construction, 
 conclusive that only males are embraced 
 thereby. 71 Cal. 38. 
 
 HEAD COURTS. Certain tribunals in Scot- 
 land, abolished by 20 Geo. II. c. 50. Ersk. 1. 
 4. 5. 
 
 HEAD NOTE. The syllabus of a reported 
 decision. 
 
 HEAD OF A FAMILY. Householder; one 
 who provides for a family. 19 Wend. (N. 
 Y.) 476. There must be the relation of 
 father and child, or husband and wife. 3 
 Humph. (Tenn.) 216; 17 Ala. (N. S.) 486. 
 Per contra, 20 Mo. 75. See "Family." 
 
 HEADBOROW, or HEADBOROUGH. In 
 Saxon law. The head or principal man of 
 a frank pledge decennary or tithing. 
 
 HEADLAND. In old English law. A nar- 
 row piece of unploughed land left at the end 
 of a ploughed field for the turning of the 
 plough. Called, also, "butt." Kennett, Par! 
 Ant. 587; 2 Leon. 70, case 93; 1 Litt. 13. 
 
 HEAFODWEARD. A feudal service ren- 
 dered by a thane, the nature of which is now 
 unknown. 
 
 HEALGEMOTE. A court baron. 
 
 HEALSFANG (from German hals, neck, 
 and fangen, to catch). A sort of pillory, by 
 which the head of the culprit was caught 
 between two boards, as feet are caught in a 
 pair of stocks. 
 
 "The fine which every man would have to 
 pay in commutation of this punishment, had 
 it been in use," for it was very early dis- 
 used, no mention of it occurring in the laws 
 of the Saxon kings. Anc. Inst. Eng.; Spel- 
 man. 
 
 HEALTH LAWS. Laws designed to pre- 
 serve the public health. 
 
 HEALTH OFFICER. An officer, usually 
 municipal, charged with the enforcement of 
 health laws. 
 
 HEARING. 
 
 In Chancery Practice. The trial of a 
 
 chancery suit. 
 
 The hearing is conducted as follows: 
 When the cause is called on in court, the 
 pleadings on each side are opened in a brief 
 manner to the court by the junior counsel 
 for the plaintiff; after which the plaintiff's 
 leading counsel states the plaintiff's case 
 and the points in issue, and submits to the 
 court his arguments upon them. Then the 
 depositions (if any) of the plaintiff's wit- 
 nesses, and such parts of the defendant's 
 answer as supjwrt the plaintiff's case, are 
 read by the plaintiff's solicitor; after which 
 the rest of the plaintiff's counsel address 
 the court. Then the same course of pro- 
 ceedings is observed on the other side, ex- 
 cepting that no part of the defendant's an- 
 swer can be read in his favor if it be replied 
 to. The leading counsel for the plaintiff is 
 then heard in reply; after which the court 
 pronounces the decree. Newland, Prac. 153, 
 154; 14 Viner, Abr. 233; Comyn, Dig. "Chan- 
 cery" (T 1, 2, 3) ; Daniell, Ch. Prac. 
 
 In Criminal Law. The examination of 
 
 a prisoner charged with a crime or misde- 
 meanor, and of the witnesses for the ac- 
 cused. See "Examination." 
 
 HEARSAY EVIDENCE. That kind of evi- 
 dence which does not derive its value solely 
 from the credit to be given to the witness 
 himself, but rests also, in part, on the 
 veracity and competency of some other per- 
 son. 1 Phil. Ev. 185; 1 Greenl. Ev. § 99. 
 
 The term applies to written, as well as 
 oral, matter. See "Evidence." 
 
 HEARTH iVIONEY. A tax, granted by 13 
 & 14 Car. II. c. 10, abolished 1 Wm. & Mary, 
 St. 1, c. 10, of two shillings on every hearth 
 or stove in England and Wales, except such 
 as pay not to the church and poor. Jacob. 
 Commonly called "chimney money." Id. 
 
 HEARTH SILVER. A sort of modus for 
 tithes, viz., a prescription for cutting down 
 and using for fuel the tithe of wood. 2 
 Burn, Ecc. Law, 304. 
 
 HEAT OF PASSION. In criminal law. 
 Furor trevis, sudden passion caused by rea- 
 sonable provocation. It is a characteristic 
 of the crime of voluntary manslaughter, a 
 killing without malice in heat of passion 
 being manslaughter, not murder. 5 Mass. 
 295; 86 Va. 466. 
 
 It need not be so overpowering as for the 
 time to shut out knowledge and destroy 
 volition, but only sufficient to exclude de- 
 liberation and malice. 4 Dev. & B. (N. C.) 
 491; 10 Mich. 212. 
 
 HEBBERIVIAN. An unlawful fisher in the 
 Thames below London bridge. So called be- 
 cause they generally fished at ebbing tide or 
 "water. 4 Hen. VII. c. 15; Jacob. 
 
 HEBBERTHEF. The privilege of having 
 goods of thief and trial of him within such 
 a liberty. Cart. S. Edmundi MS. 163; Cow- 
 ell. 
 
 HEDAGIUiVI (Saxon, heda, hitlia, port). A 
 toll or custom paid at the hith, or wharf, 
 for landing goods, etc., from which an ex- 
 
HEDGE 
 
 (436) 
 
 HEIR OF CONQUEST 
 
 emption was granted by the king to some 
 particular persons and societies. Cart. Ab- 
 batiae de Redinges; Cowell. 
 
 HEDGE. See "Gambling Contract." 
 
 HEDGE BOTE. Wood used for repairing 
 hedges or fences. 2 Bl. Comm. 35; 16 Johns. 
 (N. y.) 15. 
 
 HEGIRA. The account of time used by 
 the Turks and Arabians, who begin their 
 computation of time from the day that 
 Mahomet was compelled to escape from 
 Mecta, — Friday, July 16, A. D. 622. Whar- 
 ton. 
 
 HEIFER. A young cow which has not had 
 a calf; a beast of this kind two years and a 
 half old was held to be improperly described 
 in the indictment as a cow. 2 Bast, P. C. 
 616; 1 Leach, C. C. 105. 
 
 HEIR. 
 
 At Common Law. He who is born or 
 
 begotten in lawful wedlock, and upon whom 
 the law casts the estate in lands, tenements, 
 or hereditaments immediately upon the 
 death of his ancestor. 
 
 The term "heir" has a very different sig- 
 nification at common law from what it has 
 in those states and countries which have 
 adopted the civil law. In the latter, the 
 term applies to all persons who are called to 
 the succession, whether by the act of the 
 party, or by operation of law. The person 
 who is created universal successor by a will 
 is called the "testamentary heir;" and the 
 next of kin by blood is, in cases of intestacy, 
 called the "heir at law," or "heir by intes- 
 tacy." The executor of the common law is 
 in many respects not unlike the testamen- 
 tary heir of the civil law. Again, the ad- 
 ministrator in many respects corresponds 
 with the heir by intestacy. By the common 
 law, executors — unless expressly authorized 
 by the will — and administrators have no 
 right except to the personal estate of the 
 deceased; whereas the heir by the civil law 
 is authorized to administer both the personal 
 and real estate. 1 Brown, Civ. Law, 344; 
 Story, Confi. Laws, § 508. 
 
 No person is heir of a living person. A 
 person occupying a relation which may be 
 that of heirship is, however, called "heir ap- 
 parent" or "heir presuniptive." 2 Bl. Comm. 
 208. A monster cannot be heir. Co. Litt. 
 7b. A bastard cannot be heir. 2 Kent, 
 Comm. 208. 
 
 In the word "heirs" is comprehended heirs 
 of heirs in infinitum. Co. Litt. 7b, 9a; 
 Wood. Inst. 69. 
 
 According to many authorities, heir may 
 be nomen coUectivum, as well in a deed as 
 in a will, and operate in both in the same 
 manner as the word "heirs." 1 Rolle, Abr. 
 253; Ambl. 453; Godb. 155; T. Jones, 111; 
 Cro. Bliz. 313; 1 Burrows, 38; 10 Viner, 
 Abr. 233. But see 2 Brest. Est. 9, 10. In 
 wills, in order to effectuate the intention of 
 the testator, the word "heirs" is sometimes 
 construed to mean the "next of kin" (1 
 Jac. & W. 388) and children (Ambl. 273). 
 See, further, as to the force and import of 
 this word, 2 Vent. 311; 1 P. Wms. 229; 2 
 
 P. Wms. 1, 369; 3 Brown, Pari. Cas. 60, 454; 
 2 W. Bl. 1010; 4 Ves. 26, 766, 794; 2 Atk. 
 89, 580; 5 Bast, 533; 5 Burrows, 2615; 11 
 Mod. 189. 
 
 In Civil Law. He who succeeds to the 
 
 rights and occupies the place of a deceased 
 person. See "Haeres." 
 
 HEIR APPARENT. One who has an in- 
 defeasible right to the inheritance, provided 
 he outlive the ancestor. 2 Bl. Comm. 208. 
 
 HEIR AT LAW. He who, after his ances- 
 tor's death intestate, has a right to all lands, 
 tenements, and hereditaments which belong- 
 ed to him or of which he was seised. The 
 same as "heir general." 
 
 HEIR BENEFICIARY. One who accepts 
 the succession under benefit of inventory 
 ((?. V.) 
 
 HEIR BY CUSTOM. In English law. One 
 whose right of inheritance depends upon a 
 particular and local custom, such as gavel- 
 kind, or borough English. Co. Litt. 140. 
 
 HEIR BY DEVISE. One to whom lands 
 are devised by will; a devisee of lands. An- 
 swering to the haeres factus (g. v.) of the 
 civil law. 
 
 HEIR, COLLATERAL. One who is not of 
 the direct line of the deceased, but comes 
 from a collateral line; as, a brother, sister, 
 an uncle and aunt, a nephew, niece, or cou- 
 sin, of the deceased. 
 
 HEIR, CONVENTIONAL. In civil law. 
 One who takes a succession by virtue of a 
 contract — for example, a marriage contract 
 — which entitles the heir to the succession. 
 
 HEIR, GENERAL. Heir at common law. 
 
 HEIR INSTITUTE. One to whom the right 
 of succession Is ascertained by disposition 
 or express deed of the deceased. 1 Forbes, 
 Inst. pt. 3, p. 75. 
 
 HEIR, LEGAL. In civil law. Alegalheir 
 is one who is of the same blood as the de- 
 ceased, and who takes the succession by 
 force of law. This is different from a tes- 
 tamentary or conventional heir, who takes 
 the succession In virtue of the disposition of 
 man. See Civ. Code La. arts. 873, 875; Diet, 
 de Jur. "Heritier Legitime." There are 
 three classes of legal heirs, to wit, the chil- 
 dren and other lawful descendants, the fath- 
 ers and mothers and other lawful ascend- 
 ants, and the collateral kindred. Civ. Code 
 La. art. 883. 
 
 HEIR MALE. In Scotch law. An heir in- 
 stitute, who, though not next in blood to the 
 deceased, is his nearest male relation that 
 can succeed to him. 1 Forbes, Inst. pt. 3, p. 
 76. 
 
 HEIR OF CONQUEST. In Scotch law. 
 One who succeeds to the deceased in con- 
 quest, i. e., lands or other heritable rights to 
 which the deceased neither did nor could 
 
HEIR OF LINE 
 
 (437) 
 
 HEMOLDBORH 
 
 succeed as heir to his predecessor. Forbes, 
 Inst. pt. 377. 
 
 One who succeeds to lands acquired by 
 purchase. Bell, Diet. 
 
 HEIROFLINE. In Scotch law. One who 
 succeeds lineally by right of blood; one who 
 succeeds to the deceased in his heritage; i. 
 e., lands and other heritable rights derived 
 to him by succession as heir to his predeces- 
 sor. 1 Forbes, Inst. pt. 3, p. 77. 
 
 An heir at law is so called because he 
 succeeds according to certain lines of pro- 
 pinquity. Bell, Diet. 
 
 HEIR OF PROVISION. In Scotch law. One 
 who succeeds as heir by virtue of a particu- 
 lar provision in a deed or instrument. 
 Wharton. 
 
 HEIR OFTAILZIE. In Scotch law. He on 
 whom an estate is settled that would not 
 have fallen to him by legal succession. 1 
 Forbes, Inst. pt. 3, p. 75. 
 
 HEIR PRESUMPTIVE. One who, in the 
 present circumstances, would be entitled to 
 the inheritance, but whose rights may be 
 defeated by the contingency of some nearer 
 heir being born. 2 Bl. Comm. 208. In 
 Louisiana, the presumptive heir is he who is 
 the nearest relation of the deceased capable 
 of inheriting. This quality is given to him 
 before the decease of the person from whom 
 he is to inherit, as well as after the opening 
 of the succession, until he has accepted or 
 renounced it. Civ. Code La. art. 876. 
 
 HEIR SPECIAL. In English law. The is- 
 sue in tail, who claims per formam doni, by 
 the form of the gift. 
 
 HEIR SUBSTITUTE, IN A BOND. In 
 Scotch law. He to whom a bond is payable 
 expressly in case of the creditor's decease, 
 or after his death. 1 Forbes, Inst. pt. 3, p. 
 
 76. 
 
 HEIR, TESTAMENTARY. In civil law. 
 One who is constituted heir by testament 
 executed in the form prescribed by law. He 
 is so called to distinguish him from the "le- 
 gal heirs," who are called to the succession 
 ,by the law; and from "conventional heirs," 
 who are so constituted by a contract inter 
 vivos. See "Haeres Factus;" "Devisee." 
 
 HEIRS, BENEFICIARY. Incivillaw. Those 
 who have accepted the succession under the 
 benefit of an inventory regularly made. 
 Civ. Code La. art. 879. If the heir appre- 
 hend that the succession will be burdened 
 with debts Tseyond its value, he accepts with 
 benefit of inventory, and in that case he is 
 responsible only for the value of the succes- 
 sion. 
 
 HEIRS, FORCED. Those who cannot be 
 disinherited. See "Forced Heirs." 
 
 HEIRS,IRREGULAR. InLouisiana. Those 
 who are neither testamentary nor legal, and 
 who have been established by law to take 
 the succession. See Civ. Code La. art. 874. 
 When the deceased has left neither lawful 
 
 descendants nor ascendants, nor collateral 
 relations, the law calls to his inheritance 
 either the surviving husband or wife, or his 
 or her natural children, or the state. Id. 
 art. 911. This is called an "irregular suc- 
 cession." 
 
 HEIRS OF THE BODY. Lineal descend- 
 ants. 37 Ala. 178. 
 
 "The term 'heir of the body' is a well-es- 
 tablished technical term, with which the 
 words 'children' or 'issue' or 'lawful issue' 
 are not synonymous." 115 Mass. 276. 
 
 Like all similar expressions, its technical 
 sense is frequently subordinated to the evi- 
 dent intent. 
 
 Thus it has been construed as synonymous 
 with "children." 147 Ind. 95; 8 Ga. 387. 
 
 HEIRS, UNCONDITIONAL. InLouisiana. 
 Those who inherit without any reservation, 
 or without making an inventory, whether 
 their acceptance be express or tacit. Civ. 
 Code La. art. 878. 
 
 H El RESS. A female heir to a person hav- 
 ing an estate of inheritance. When there 
 are more than one, they are called "co- 
 heiresses," or "coheirs." 
 
 HEIRLOOM. Chattels which, contrary to 
 the nature of chattels, descend to the heir 
 along with the inheritance, and do not pass 
 to the executor of the last proprietor. 
 
 This word seems to be compounded of 
 "heir" and "loom," that is, a frame, viz., to 
 weave in. Some derive the word "loom" 
 from the Saxon loma, or geloma, which sig- 
 nifies utensils or vessels generally. How- 
 ever this may be, the word "loom," by time, 
 is drawn to a more general signification than 
 it at the first did bear, comprehending all 
 implements of household, as tables, presses, 
 cupboards, bedsteads, wainscots, and which, 
 by the custom of some countries, having be- 
 longed to a house, are never inventoried 
 after the decease of the owner as chattels, 
 but accrue to the heir with the house itself. 
 Minshew. The term "heirlooms" is applied 
 to those chattels which are considered as 
 annexed and necessary to the enjoyment of 
 an inheritance. 
 
 Charters,' deeds, and other evidences of 
 the title of the land, together with the box 
 or chest in which they are contained, the 
 keys of a house, and fish in a fish pond, are 
 heirlooms. Co. Lift. 3a, 185b; 7 Coke, 17b; 
 Cro. Eliz. 372; Brooke, Abr. "Charters," pi. 
 13; 2 Bl. Comm. 28; 14 Viner, Abr. 291. 
 
 HEIRSHIP MOVABLES. In Scotch law. 
 The movables which go to the heir, and not 
 to the executor, that the land may not go 
 to the heir completely dismantled, such as 
 the best of furniture, horses, cows, etc., but 
 not fungibles. Hope, Minor Prac. p. 538; 
 Ersk. Inst. 3. 8. 13-17 et seq.; Bell, Diet. 
 
 HELL. The name given to a place under 
 the exchequer chamber, where the king's 
 debtors were confined. Rich. Diet. 
 
 HEMOLDBORH, or HELMELBORCH. A 
 
 title to possession. The admission of this 
 
HENFARE 
 
 (438) 
 
 HERISCHULDAE 
 
 old Norse term into the laws of the C!on- 
 queror is difficult to be accounted for; it is 
 not found in any Anglo Saxon law extant. 
 Anc. Inst. Eng. 
 
 HENFARE. A fine for flight on account of 
 murder. Domesday Book. 
 
 HENGHEN. In Saxon law. A prison, or 
 house of correction. Anc. Inst. Eng. 
 
 H E N G W YT E ( Saxon) . In old English law. 
 An acquittance from a fine for hanging a 
 thief. Pleta, lib. 1, c. 47, § 17. 
 
 HENRICUS VETUS. Henry the Old, or 
 Elder. King Henry I. is so called in an- 
 cient English chronicles and charters, to 
 distinguish him from the subsequent kings 
 of that name. Spelman. 
 
 HERALD (from French, herault). An offi- 
 cer whose business it is to register genealo- 
 gies, adjust ensigns armorial, regulate funer- 
 als and coronations, and, anciently, to carry 
 messages between princes and proclaim war 
 and peace. 
 
 HERALDS' COLLEGE. In 1450, the her- 
 alds in England were collected into a college 
 by Richard II. The earl marshal of Eng- 
 land was chief of the college, and under 
 him were three kings-at-arms (styled Gar- 
 ter, Clarencieux, Norroy), six heralds-at- 
 arms (styled of York, Lancaster, Chester, 
 Windsor, Richmond, and Somerset), and 
 four pursuivants-at-arms (styled Blue Man- 
 tle, Rouge Croix, Rouge Dragon, and Port- 
 cullis). This organization still continues. 
 Enc. Brit. 
 
 HERBAGE. In English law. An easement 
 which consists in the right to pasture cattle 
 on another's ground. 
 
 HERBERY. An inn. Herbergare, to enter- 
 tain at an inn. Berhergatus, entertained. 
 
 HERD WERCK, or HEORDWERCH. Cus- 
 tomary uncertain services as herdsmen, 
 shepherds, etc. A. D. 1166, Reg. Ecc. Christi 
 Cant. MS.; Cowell. 
 
 HEREBANNUM. Calling out ttie army by 
 proclamation; a fine paid by freemen for not 
 attending the army; a tax for the support of 
 the army. Du Cange. 
 
 HE RE DAD. In Spanish law. A portion 
 of land that is cultivated. Formerly it 
 meant a farm, hacienda de campo, real es- 
 tate. 
 
 HEREDAD YACENTE ( Spanish, from Lat. 
 "haereditas jacens," q. v.) In Spanish law. 
 An inheritance not yet entered upon or ap- 
 propriated. White, New Recop. bk. 2, tit. 
 19, c. 2, § 8. 
 
 HEREDERO. In Spanish law. Heir; he 
 who, by legal or testamentary disposition, 
 succeeds to the property of a deceased per- 
 son. "Haeres censeatur cum defuncto una 
 eademgue persona." Las Partidas, 7. 9. 13. 
 
 HEREDITAMENTS. Things capable of be 
 
 ing inherited. Co. Litt. 5b; 2 Bl. Comm. 17. 
 By this term, such things are denoted as 
 may be the subject matter of inheritance, 
 but not the inheritance itself. It cannot, 
 therefore, by its own intrinsic force, enlarge 
 an estate prima facie a life estate into a fee. 
 2 Bos. & P. 251; 8 Term R. 503. See 4 
 Washb. Real Prop. Index. 
 
 Hereditaments are either (1) corporeal, 
 such as are substantial and permanent, ' be- 
 ing comprehended under the general de- 
 nomination "land;" (2) incorporeal, being 
 heritable rights issuing out of things cor- 
 poreal. 
 
 They include advowsons, tithes, dignities, 
 pensions, franchises, offices, commons, ways, 
 annuities, and rents. 2 Bl. Comm. 19 et seq. 
 
 Hereditaments are also divided into real, 
 personal, and mixed. Challis, Real Prop. 39, 
 40. 
 
 H E R E D I TA R Y. That which is the subject 
 of inheritance. 
 
 HEREGEAT. A heriot (g. v.) Spelman. 
 
 HEREGELD (Saxon). In old English law. 
 A tribute or tax levied for the maintenance 
 of an army. Spelman. 
 
 HE RES. See "Haeres." 
 
 HERESCHIP (Scotch). In old Scotch law. 
 Theft or robbery. 1 Pitc. Crim. Tr. pt. 2, 
 pp. 26, 89. 
 
 HERESY. In English law. An offense 
 against religion, consisting not in a total 
 denial of Christianity, but of some of its 
 essential doctrines, publicly and obstinately 
 avowed. 4 Bl. Comm. 44, 45. An opinion 
 on divine subjects devised by human rea- 
 son, openly taught, and obstinately maiii- 
 tained. 1 Hale, P. C. 384. This offense is 
 now subject only to ecclesiastical correction, 
 and is no longer punishable by the secular 
 law. 4 Steph. Comm. 233. 
 
 HERETOFORE. In the time before the 
 present; down to this time; before this time. 
 167 111. 447; 117 N. T. 150. 
 
 MERGE. In Saxon law. Persons who 
 joined in a body of more than thirty-five to 
 commit crimes. 
 
 HERIOT. In English law. A customary 
 tribute of goods and chattels, payable to the 
 lord of the fee on the decease of the owner 
 of the land. 
 
 Heriot service Is such as is due upon a 
 special reservation in the grant or lease of 
 lands, and therefore amounts to little more 
 than a mere rent. Heriot custom arises 
 upon no special reservation whatsoever, but 
 depends merely upon immemorial usage and 
 custom. See 2 Bl. Comm. 97, 422; Comyn, 
 Dig. "Copyhold" (K 18); Bac. Abr.; 2 
 Saund.; 1 Vem. 441. 
 
 HERISCHILD. A species of English mili- 
 tary service. 
 
 HERISCHULDAE. A fine for disobedience 
 to proclamation of warfare. Skene de Verb. 
 Sign. 
 
HERITABLE BOND 
 
 (439) 
 
 HIGH BAILIFF 
 
 HERITABLE BOND. In Scotch law. A 
 bond for a sum of money, to which is added, 
 for further security of the creditor, a con- 
 veyance of land or heritage to be held by 
 the creditor as pledge. 1 Ross, Lect. 76; 2 
 Ross, Lect. 324. 
 
 HERITABLE JURISDi'CTION. In Scotch 
 law. Grants of criminal jurisdiction made 
 to great families for the better execution of 
 justice. Abolished by 20 Geo. II. c. 43. Bell, 
 Diet. 
 
 HERITABLE RIGHTS. In Scotch law. 
 Rights which go to the heir; generally, all 
 rights in or connected with lands. Bell, 
 Diet. "Heritable." 
 
 HERITAGE. In civil law. Every species 
 of immovables which can be the subject of 
 property, such as lands, houses, orchards, 
 woods, marshes, ponds, etc., in whatever 
 mode they may have been acquired, either 
 by descent or purchase. 3 Toullier, Dr. Civ. 
 472. See Co. Litt. § 731. 
 
 HERITOR. In Scotch law. A land owner. 
 
 H E R M A N D A D. In Spanish law. A frater- 
 nity formed among different towns and vil- 
 lages to prevent the commission of crimes, 
 and to prevent the abuses and vexations to 
 which they were subjected by men in power. 
 
 To carry into effect the object of this asso- 
 ciation, each village and town elected two 
 alcaldes, — one by the nobility, and the other 
 by the community at large. These had un- 
 der their order inferior officers, formed into 
 companies, called cuad villeros. Their duty 
 was to arrest delinquents and bring them be- 
 fore the alcaldes, when they were tried sub- 
 stantially in the ordinary form. This tri- 
 bunal, established during the anarchy pre- 
 vailing in feudal times, continued to main- 
 tain its organization in Spain for centuries; 
 and various laws determining its jurisdic- 
 tion and mode of proceeding were enacted 
 by Ferdinand and Isabella and subsequent 
 monarchs. Nov. Recop. tit. 35, bk. 12, § 7. 
 The abuses introduced in the exercise of the 
 functions of these tribunals caused their 
 abolition, and the santas hermandades of 
 Ciudad Rodrigo, Talavera, and Toledo, the 
 last remnants of these anomalous jurisdic- 
 tions, were abolished by the law of the 7th 
 of May, 1835. Called, also, "Santa Herman- 
 dad." 
 
 HERMAPHRODITUS TAM MASCULO 
 quam foeminae comparatur, secundum prae- 
 valentiam sexus incalescentls. An hermaph- 
 rodite is to be considered male or female 
 according to the predominance of the excit- 
 ing sex. Co. Litt. 8; Bracton, fol. 5. 
 
 HERMER. A great lord. Jacob. 
 
 HERRING SILVER. This was a composi- 
 tion in money for the custom of supplying 
 herrings for the provision of a religious 
 house. Rapalje & L. 
 
 HERDS. A master. Servus facit ut herus 
 det, the servant does [the work] in order 
 that the master may give [him the wages 
 
 agreed on]. Herus dat ut servus facit, the 
 master gives [or agrees to give, the wages] 
 in consideration of, or with a view to, the 
 servant's doing [the work]. 2 Bl. Comm. 
 445. 
 
 HESIA. An easement. Du Cange. 
 
 HETERIA. In Roman law. A society or 
 company. 
 
 HEUVELBORH. In Saxon law. A surety. 
 
 HEYLODE. In feudal law. A duty of cer- 
 tain tenants to repair hedges (hays). 
 
 HIDAGE. In old English law. A tax levied, 
 in emergencies, on every hide of land; the 
 exemption from such tax. Bracton, lib. 2, c. 
 56. It was payable sometimes in money, 
 sometimes in ships or military equipments: 
 e. g., in the year 994, when the Danes landed 
 in England, every three hundred hides fur- 
 nished a ship to king Ethelred, and every 
 eight hides one pack and one saddle. Jacob. 
 
 HIDALGO, or HIJODALGO. In Spanish 
 law. He who, by blood and lineage, belongs 
 to a distinguished family, or is noble by 
 descent. Las Partidas, 2. 12. 3. The origin 
 of this word has given rise to much contro- 
 versy; for which, see Escriche. 
 
 HIDALGUIA. In Spanish law. Nobility 
 by descent or lineage. White, New Recop. 
 bk. 1, tit. 5, c. 3, § 4. See "Hidalgo." 
 
 HIDE (from Saxon liyden, to cover; so, Lat. 
 tectum, from tegere). In old English law. 
 A building with a roof; a house. 
 
 As much land as might be ploughed with 
 one plough. The amount was probably de- 
 termined by usage of the locality. Some 
 make it sixty, others eighty, others ninety- 
 six, others one hundred or one hundred and 
 twenty, acres. Co. Litt. 5; 1 Plowd. 167; 
 Shep. Touch. 93; Du Cange. 
 
 As much land as was necessary to support 
 a hide, or mansion house. Co. Litt. 69a; 
 Spelman; Du Cange, "Hida;" 1 Introd. to 
 Domesday Book, 145. At present, the quan- 
 tity is one hundred acres. Anc. Inst. Eng. 
 
 HIDE AND GAIN. In English law. A 
 term anciently applied to arable land. Co. 
 Litt. 85b. 
 
 HIDE LANDS. In old English law. Lands 
 appertaining to a hide, or mansion. See 
 "Hide." 
 
 HI DEL. In old English law. A place of 
 protection; a sanctuary. St. 1 Hen. VII. cc. 
 5, 6; Cowell. 
 
 HIDGILD. A sum of money paid by a 
 villein or servant to save himself from a 
 whipping. Fleta, lib. 1, c. 47, § 20. 
 
 HIGH BAILIFF. An officer attached to an 
 English county court. His duties are to at- 
 tend the court when sitting, to serve sum- 
 monses, and to execute orders, warrants, 
 writs, etc. St. 9 & 10 Vict. c. 95, § 33; Poll. 
 Cir. Ct. Prac. 16. He also has similar duties 
 
HIGH COMMISSION COURT 
 
 (440) 
 
 HIGH STEWARD, ETC. 
 
 under the bankruptcy jurisdiction of the 
 county courts. Rapalje & L. 
 
 HIGH COMMISSION COURT. In English 
 law. An ecclesiastical court of very exten- 
 sive jurisdiction, for the vindication of the 
 peace and dignity of the church, by reform- 
 ing, ordering, and correcting the ecclesias- 
 tical state and persons, and all manner of 
 errors, heresies, schisms, abuses, offenses, 
 contempts, and enormities. 
 
 It was erected by St. 1 Eliz. c. 1, and abol- 
 ished by 16 Car. II. c. 11. 
 
 HIGH CONSTABLE. An officer appointed 
 in some cities with powers generally limited 
 to matters of police, and not more extensive, 
 in these respects, than those of constables. 
 See "Constable." 
 
 HIGH CONSTABLE OF ENGLAND, LORD. 
 
 His office has been disused (except only upon 
 great and solemn occasions, as the corona- 
 tion, or the like) since the attainder of Staf- 
 ford, Duke of Buckingham, in the reign of 
 Henry VII. Rapalje & L. 
 
 HIGH COURT OF ADMIRALTY. See"Ad- 
 miralty." 
 
 HIGH COURT OF DELEGATES. In Eng- 
 lish law. A tribunal which formerly exer- 
 cised appellate jurisdiction over cases 
 brought from the ecclesiastical and admiral- 
 ty courts. 
 
 It was a court of great dignity, erected by 
 St. 25 Hen. VIII. c. 19. It was abolished, 
 and its jurisdiction transferred to the ju- 
 dicial committee of the privy council. See 
 2 & 3 Wm. IV. c. 92; 3 & 4 Wm. IV. c. 41; 
 6 & 7 Vict. c. 38; 3 Sharswood, Bl. Comm. 
 66. 
 
 HIGH COURT OF ERRORS AND Ap- 
 peals. In American law. An appellate tri- 
 bunal, and the court of last resort, in the 
 state of Mississippi. 
 
 HIGH COURT OF JUSTICE. That branch 
 of the English supreme court of judicature 
 (g. V.) which exercises (1) the original ju- 
 risdiction formerly exercised by the court of 
 chancery, the courts of queen's bench, com- 
 mon pleas, and exchequer, the courts of pro- 
 bate, divorce, and admiralty, the court of 
 common pleas at Lancaster, the court of 
 pleas at Durham, and the courts of the 
 judges or commissioners of assize; and (2) 
 the appellate jurisdiction of such of those 
 courts as heard appeals from inferior courts. 
 Judicature Act 1873, § 16; Rapalje & L. 
 
 HIGH COURT OF JUSTICIARY. See 
 
 "Court of Justiciary." 
 
 HIGH COURTOF PARLIAMENT. In Eng- 
 lish law. The English parliament, as com- 
 posed of the house of peers and house of 
 commons. 
 
 The house of lords sitting in its judicial 
 capacity. 
 
 This term is applied to parliament by 
 most of the law writers. Thus, parliament 
 is said by Blackstone to be the supreme 
 court of the kingdom, not only for the mak- 
 
 ing, but also for the execution, of the laws. 
 4 Bl. Comm. 259. Lord Coke and Lord Hale 
 also apply the term "court" to the whole 
 parliament. And see Finch, Law, 233; Pleta, 
 lib. 2, c. 2. But, from the fact that in ju- 
 dicial proceedings, generally, the house of 
 commons takes no part, but only in the trial 
 of Impeachments, and then only as prose- 
 cutor, and from the fact that the house of 
 commons disclaimed possession of judicial 
 powers at the deposition of Richard II., and 
 the twelve judges made a similar decision 
 in 1 Hen. VII., the propriety of this use of 
 the term has been questioned. Bl. Comm. 
 (Warren, Abr.) 215. The propriety of its 
 application would seem to be derived from 
 the claim of parliament to be considered as 
 the, successor of the aula regis, which was a 
 judicial as well as a legislative body, and, if 
 the succession is established, would be ap- 
 plicable, although the judicial power may 
 have been granted to the various courts. 
 See "Court." 
 
 The house of lords only acts in a judicial 
 capacity in civil cases and in most criminal 
 cases. See "House of Lords;" "Impeach- 
 ment." 
 
 HIGH CRIMESAND MISDEMEANORS. A 
 term used in Const. U. S. art. 2, § 4, and 
 elsewhere, as a ground of impeachment. Its 
 technical sense is parliamentary, and it in- 
 cludes many acts not constituting crimes. 
 Cooley, Const. Lim. 159. 
 
 "High crimes and misdemeanors are such 
 immoral and unlawful acts as are nearly 
 allied and equal in guilt to felony, yet, owing 
 to some technical circumstance, do not fall 
 within the definition of 'felony.' " 1 Russ. 
 Crimes, 61. And see 39 La. Ann. 186. 
 
 HIGH JUSTICE. In feudal law. The ju- 
 risdiction or right of trying crimes of every 
 kind, even the highest. This was a privilege 
 claimed and exercised by the great lords or 
 barons of the middle ages. 1 Robertson, 
 Hist. Charles V., Append, note 23. 
 
 HIGH JUSTICIER. In old French and Ca- 
 nadian law. A feudal lord who exercised 
 the right called "high justice." Guyot, Inst. 
 Feud. c. 26. 
 
 HIGH SEAS. The uninclosed waters of the 
 ocean, and also those waters on the seacoast 
 which are without the boundaries of low- 
 water mark. 1 Gall. (U. S.) 624; 1 Mason 
 (U. S.) 360; 5 Mason (U. S.) 290; 1 Bl. 
 Comm. 110; 2 Hagg. Adm. 398; Dunl. Adm. 
 Prac. 32, 33. 
 
 Waters within the ebb and flow of the sea 
 (Gilp. 524), though in a harbor (Fed. Cas. 
 No. 14,509), but not in a landlocked haven 
 (4 Mason [U. S.] 307; 5 Mason [U. S.] 290; 
 3 Blatchf. [U. S.] 435). 
 
 The open waters of the great lakes are 
 "high seas" (150 U. S. 249), but the waters 
 of an inland river flowing into the great 
 lakes are not (7 Mich. 161). 
 
 HIGH STEWARD,COURTOFTHE LORD. 
 
 In English law. A tribunal instituted for 
 the trial of peers indicted for treason or 
 felony, or for misprision of either, but not 
 
HIGH TREASON 
 
 (441) 
 
 HIPOTECA 
 
 for any other offense. The oflSce is very an- 
 cient, and was formerly hereditary, or held 
 for life, or dum bene se gesserit; but it has 
 been for many centuries granted vfo hac 
 vice only, and always to a lord of parliament. 
 Wharton. 
 
 HIGH TREASON. In English law. The 
 compassing of the king's death; the aiding 
 and comforting of his enemies; the forging 
 or counterfeiting of his coin; or the killing 
 of the chancellor or either of the king's jus- 
 tices. 4 Bl. Comm. 73. See "Treason." 
 
 HIGH-WATER MARK. That part of the 
 shore of the sea to which the waves ordi- 
 narily reach when the tide is at its highest. 
 6 Mass. 435; 1 Pick. (Mass.) 180; 1 Halst. 
 (N. J.) 1; 1 Russ. Crimes, 107; 2 East, P. C. 
 803. See "Seashore;" "Tide." 
 
 Of Tidal Waters. The ordinary high- 
 water point. 60 Pa. St. 339. The point 
 reached by the medium high tide between 
 the spring and neap tides. 44 N. J. Eq. 398. 
 
 Of Nontidal Waters. The highest 
 
 point reached by the waters in the normal 
 state, unaffected by freshets. 88 Me. 155. 
 And see 56 Minn. 513. 
 
 HIGHER AND LOWER SCALE. In the 
 
 practice of the English supreme court of 
 judicature, there are two scales regulating 
 the fees of the court and the fees which 
 solicitors are entitled to charge. The lower 
 scale applies (unless the court otherwise or- 
 ders) to the following cases: All causes 
 and matters assigned by the judicature acts 
 to the queen's bench, or the probate, divorce, 
 and admiralty divisions; all actions of debt, 
 contract, or tort; and in almost all causes 
 and matters assigned by the acts to the 
 chancery division in which the amount in 
 litigation is under £1,000. The higher 
 scale applies in all other causes and matters, 
 and also in actions falling under one of the 
 above classes, but in which the principal 
 relief sought to be obtained is an injunction. 
 5 Q. B. Div. 167, 431; 6 Q. B. Div. 190; Dan- 
 iell, Ch. Prac. 1320. 
 
 HIGHNESS. A title of honor given to 
 princes. The kings of England, before the 
 time of James I., were not usually saluted 
 with the title of "Majesty," but with that 
 of "Highness." The children of crowned 
 heads generally receive the style of "High- 
 ness." Wharton. 
 
 HIGHWA'V. A passage, road, or street 
 which every citizen has a right to use. 1 
 Bouv. Inst, note 442; 3 Kent, Comm. 432; 3 
 Yeates (Pa.) 421; Angell & D. Highways, § 
 2; 16 Mass. 33. 
 
 In a more abstract sense, a public ease- 
 ment or right of way. 
 
 The term "highway" is the generic name 
 for all kinds of public ways, whether they 
 be carriage ways, bridle ways, foot ways, 
 bridges, turnpike roads, railroads, canals, 
 ferries or navigable rivers. 6 Mod. 255; 
 Angell & D. Highways, c. 1; 3 Kent, Comm. 
 432. 
 
 HIGHWAY ROBBERY. Robbery commit- 
 
 ted on a public highway was, under St. 23 
 Hen. VIII. c. 1, more severely punished than 
 robbery committed elsewhere. This distinc- 
 tion was abolished by St. 3 & 4 Wm. & Mary, 
 c. 9. 
 
 HIGHWAYMAN. A robber on the highway. 
 
 HIGLER. In English law. A person who 
 carries from door to door, and sells by re- 
 tail, small articles of provisions, and the 
 like. 
 
 HIGUELA. In Spanish law. The written 
 acknowledgment given by each of the heirs 
 of a deceased person, showing the effects he 
 has received from the succession. 
 
 HIKENILD STREET. A name sometimes 
 given to Ikenild street ('/. r.) 
 
 HILARY TERM. In English law. A term 
 of court, beginning on the 11th and ending 
 on the 31st day of January in each year. 
 
 HINDER AND DELAY. To hinder and de- 
 lay is to do something which is an attempt 
 to defraud, rather than a successful fraud; 
 to put some obstacle in the paih,,or incer- 
 pose some time, unjustifiably, before the 
 creditor can realize what is owed out of 
 his debtor's property. 10 Jones & S. (N. Y.) 
 63. 
 
 HINDU LAW. The system of native law 
 prevailing among the Gentoos, and adminis- 
 tered by the government of British India. 
 
 In all the arrangements for the adminis- 
 tration of justice in India, made by the 
 British government and the East India Com- 
 pany, the principle of reserving to the native 
 inhabitants the continuance of their own 
 laws and usages within certain limits has 
 been uniformly recognized. The laws of the 
 Hindus and Mohammedans have thus been 
 brought into notice in England, and are oc- 
 casionally referred to by writers on English 
 and American law. The native works upon 
 these subjects are very numerous. The qhief 
 English republications of the Hindu law are, 
 Colebrooke's Digest of Hindu Law, London, 
 1801; Sir Wm. Jones' Institutes of Hindu 
 Law, London, 1797. For a fuller account of 
 the Hindu law, and of the original Digests 
 and Commentaries, see Morley's Law of In- 
 dia, London, 1858, and Macnaghten's Prin- 
 ciples of Hindu and Mohammedan Law, Lon- 
 don, 1860. The principal English republi- 
 cations of the Mohammedan law are Ham- 
 ilton's Hedaya, London. 1791; Baillies Di- 
 gest, Calcutta, 1805; Precis de Jurisprudence 
 Mussulmane Selon le Rite Malikite, Paris, 
 1848; and the treatises on succession and in- 
 heritance translated by Sir William Jones. 
 An approved outline of both systems is Mac- 
 naghten's Principles of Hindu and Moham- 
 medan Law; also contained in the "Princi- 
 ples and Precedents" of the same law pre- 
 viously published by the same author. 
 
 HINEFARE. The departure of a husband- 
 ry servant (hiiic) from his master. 
 
 H I POTECA. In Spanish law. A mortgage 
 
HIRE 
 
 (442) 
 
 HOLOGRAPH 
 
 of real property. Johnson, Civ. Law Spain, 
 156 [149]; Wtite, New Recop. bk. 2, tit. 7. 
 
 HIRE. A bailment in whicli compensation 
 is to be given for tbe use of a tiling, or for 
 labor and services about it. 2 Kent, Comm. 
 456; Story, Bailm. § 359. The divisions of 
 this species of contract are denoted by Latin 
 names. 
 
 Locatio operis faciendi is the hire of labor 
 and work to be done, or care and attention 
 to be bestowed, on the goods let by the hirer, 
 for a compensation. 
 , Locatio operis mercium vehendarum is the 
 hire of the carriage of goods from one place 
 to another, for a compensation. Jones, 
 Bailm. 85, 86, 90, 103, 118; 2 Kent, Comm. 
 456 i Civ. Code La. art. 1709-1711. 
 
 Locatio rei or locatio conductio rei is the 
 bailment of a thing to be used by the hirer 
 for a compensation to be paid by him. 
 
 This contract arises from the principles of 
 natural law. It is voluntary, and founded 
 in consent; it involves mutual and reciprocal 
 obligations; and it is for mutual benefit. In 
 some respects it bears a strong resemblance 
 to the contract of sale; the principal differ- 
 ence between them being that in cases of 
 sale the owner parts with the whole pro- 
 prietary interest in the thing, and in cases 
 of hire the owner parts with it only for a 
 temporary use and purpose. In a sale, the 
 thing itself is the object of the contract; 
 in hiring, the use of the thing is its object. 
 Vinnius. lib. 3, tit. 25, in pr.; Poth. de 
 Contr. du Louage, notes 2-4; Jones, Bailm. 
 86; Story, Bailm. § 371; 2 Kent, Comm. 456. 
 
 HIRER. He who hires. See "Bailment." 
 
 HLAFORD (Saxon). A lord. Hlaford- 
 socna, a lord's protection. Hlafordswioe, the 
 crime of betraying one's lord. 
 
 HLAFORDSWIOE (Saxon, hlaford, lord, 
 literally bread given, and wide). In old Eng- 
 lish law. Betraying one's lord; treason. 
 Crabb, Hist. Bng. Law, 59, 301. 
 
 HLOTHBOTE ( Saxon, Woift, company, and 
 6ote, compensation). In old English law. 
 Fine for presence at an illegal assembly. 
 Du Cange. 
 
 HLOTHE. An unlawful assembly of from 
 eight to thirty-five persons. Cowell. See 
 "Herge." 
 
 HOC (Lat.) This. 
 
 HOC PARATUS EST VERIFICARE. See 
 "Et hoc, etc." 
 
 HOC SERVABITUR QUOD INITIO CON- 
 venit. This shall be preserved which is use- 
 ful in the beginning. Dig. 50. 17. 23; Brac- 
 ton, 73b. 
 
 HOCCUS SALTIS. A hoke, hole, or lesser 
 pit of salt. Cowell. 
 
 HOCK-TUESDAY MONEY. This was a 
 duty given to the landlord that his tenants 
 and bondmen might solemnize the day on 
 which the English conquered the Danes, be- 
 
 ing the second Tuesday after Easter week. 
 Cowell. 
 
 HODGE-PODGE ACT. A name given to a 
 legislative act which 'embraces many sub- 
 jects. Such acts, besides being evident 
 proofs of the ignorance of the makers of 
 them, or of their want of good faith, are 
 calculated to create a confusion which is 
 highly prejudicial to the interests of jus- 
 tice. Instances of this wretched legislation 
 are everywhere to be found. See Barr. Obs. 
 St. 449. 
 
 HOG HOWARDS. Township officers at 
 one time elected in New York, whose duty 
 was to catch hogs running at large, and put 
 rings in their noses. 17 Wend. (N. Y.) 522. 
 
 HOGHENHYNE (from Saxon liogU, house, 
 and hine, servant). A domestic servant. 
 Among the Saxons, a stranger guest was, the 
 first night of his stay, called uncuth, or un- 
 known; the second, gust, guest; the third, 
 hogUenhyne; and the entertainer was respon- 
 sible for his acts as for those of his own 
 servant. Bracton, 124b; Du Cange, "Agen- 
 hine;" Spelman, "Homehine." 
 
 HOGSHEAD. A liquid measure, contaan- 
 ing half a pipe; the fourth part of a tun, or 
 sixty-three gallons. 
 
 HOLD PLEAS. To hear or try causes. 3 
 Sharswpod, Bl. Comm. 35, 298. 
 
 HOLDER. The holder of a bill of exchange 
 is the person who is legally in the posses- 
 sion of it, either by indorsement or delivery, 
 or both, and entitled to receive payment 
 either from the drawee or acceptor, and is 
 considered as an assignee. 4 Dall. (Pa.) 53. 
 
 HOLDING. 
 
 In English Law. A piece of land held 
 
 under a lease or similar tenancy for agri- 
 cultural, pastoral, or similar purposes. 
 
 In Scotch Law. The tenure or nature 
 
 of the right given by the superior to the vas- 
 sal. Bell, Diet. 
 
 HOLDING THE MARKET. See "Gam- 
 bling Contract." 
 
 H O L I DAY. A day of cessation from labor ; 
 a day when public business is suspended; a 
 nonjudicial day. 
 
 Primarily the term meant a "holy day," or 
 religious festival. In modern usage it indi- 
 cates a secular day on which, by statute, 
 public business is suspended. It does not 
 appropriately include Sunday. 51 N. J. Law, 
 255. 
 
 HOLOGRAFO. In Spanish law. Olographi; 
 a term applicable to the paper, document, 
 disposition, and more particularly to the last 
 will of a person, which, in order to be valid, 
 must be wholly written, signed, and dated 
 by the testator. "Holographum, apud testum, 
 appellatur testamentum, quod totum manu 
 testatoris scriptum est et subsignatum." 
 
 HOLOGRAPH. What is written with one's 
 own hand. See "Olograph." 
 
HOLY ORDERS 
 
 (443) 
 
 HOMESTEAD 
 
 HOLY ORDERS. In ecclesiastical law. 
 The orders or dignities of the church. Those 
 within holy orders are archbishops, bishops, 
 priests, and deacons. The form of ordina- 
 tion must he according to the form In the 
 book of Common Prayer. Besides these or- 
 ders, the church of Rome had five others, 
 viz., subdeacons, acolyths, exorcists, readers, 
 and ostiaries. 2 Burn, Ecc. Law, 39, 40. 
 
 HOMAGE (anciently homiiiiuin,tToin. homo). 
 A mere acknowledgment of tenure made by 
 a tenant by knight service upon investiture, 
 in the following form: 
 
 The tenant in fee or fee tail that holds by 
 homage shall kneel upon both his knees, un- 
 girded, and the lord shall sit and hold both 
 the hands of his tenant between his hands, 
 and the tenant shall say, "I become your 
 man (Tiomo) from this day forward of life 
 and member, of earthly honor, and to you 
 shall be faithful and true, and shall bear to 
 you faith for the lands that I claim to hold 
 of you, saving that faith that I owe to our 
 lord the king;" and then the lord so sitting 
 shall kiss him. The kiss is indispensable, 
 except sometimes in the case of a woman. 
 Du Cange. After this the oath of fealty is 
 taken; but this may be taken by the steward, 
 homage only by the lord. Termes de la Ley. 
 This species of homage was called homagium 
 planum or simplex (1 Sharswood, Bl. Comm. 
 367), to distinguish it from homagium ligi- 
 um, or liege homage, which included fealty 
 and the services incident. Du Cange; Si>el- 
 man. 
 
 Liege homage was that homage in which 
 allegiance was sworn without any reserva- 
 tion, and was therefore due only to the sov- 
 ereign; and, as it came in time to be exacted 
 without any actual holding from him, it 
 sunk into the oath of allegiance. Termes de 
 la Ley. 
 
 The obligation of homage is mutual, bind- 
 ing the lord to protection of the vassal, as 
 well as the vassal to fidelity. Fleta, lib. 3, c. 
 16. 
 
 HOMAGE ANCESTRAL. Homage was so 
 called where time out of mind a man and 
 his ancestors had held by homage; and in 
 this case the lord who had received the hom- 
 age was bound to acquit the tenant of all 
 services to superior lords, and, if vouched, to 
 warrant his title. If the tenant by homage 
 ancestral aliened in fee, his alienee held by 
 homage, but not by homage ancestral. Ter- 
 mes de la Ley; 2 Sharswood, Bl. Comm. 300. 
 
 HOMAGE JURY. The jury of a lord's 
 court, or court baron. So called because gen- 
 erally composed of those who owed homage 
 to the lord, or the pares curiae. Kltch. Cts.; 
 2 Sharswood, Bl. Comm. 54, 366. 
 
 HOMAGER. One that is bound to do hom- 
 age to another. Jacob. 
 
 HOMAGIUM. Homage (?. v.) 
 
 HOMAGIUM LIGIUM. Liege homage; that 
 kind of homage which was due to the sov- 
 ereign alone as supreme lord, and which was 
 iinno without any saving or exception of the 
 
 rights of other lords. Spelman. So called 
 from Uganda (binding) because it could not 
 be renounced like other kinds of homage. 
 
 HOMAGIUM, NON PER PROCURATORES 
 nee per literas fieri potuit, sed in propria 
 persona tan^ domini quam tenentis capi debet 
 et fieri. Homage cannot be done by proxy, 
 nor by letters, but must be paid and re- 
 ceived in the proper person, as well of the 
 lord as the tenant. Co. Lift. 68. 
 
 HOMAGIUM PLANUM. In feudal law. 
 Plain homage; a species of homage which 
 bound him who did it to nothing more than 
 fidelity, without any obligation either of mil- 
 itary service or attendance in the courts of 
 his superior. 1 Robertson, Hist. Charles V., 
 Append, note 8. 
 
 HOMAGIUM REDDERE. To renounce 
 homage; to give it up or dissolve it, Brac- 
 ton, fol. 81b. 
 
 HOMAGIUM SIMPLEX. In feudal law. 
 Simple homage; that kind of homage which 
 was merely an acknowledgment of tenure, 
 with a saving of the rights of other lords. 
 Harg. Co. Litt. note 18, lib. 2. 
 
 HOME RE BUENO. In Spanish law. The 
 ordinary judge of a district. 
 
 Hence, when the law declares that a con- 
 tract, or some other act, is to be conformable 
 to the will of the homire bueno, it means 
 that it is to be decided by the ordinary 
 judge. Las Partidas, 7. 34. 31. 
 
 In matters of conciliation, it applies to the 
 two persons, one chosen by each party, to 
 assist the constitutional alcalde in forming 
 his judgment of reconciliation. Article 1, c. 
 3, Decree of October 9, 1812. 
 
 Arbitrators chosen by litigants to deter- 
 mine their differences. 
 
 Persons competent to give testimony in a 
 cause. 
 
 HOME. A place of abode from which one 
 has no present intention of removing. 43 
 Me. 418; 124 Mass. 147. 
 
 HOME NE SERA PUNY PUR SUER DES 
 briefes en court le roy, soit il a droit ou a 
 tort. A man shall not be punished for suing 
 out writs in the king's court, whether he be 
 right or wrong. 2 Inst. 228. 
 
 HOME OFFICE. The department of state 
 through which the English sovereign admin- 
 isters most of the internal affairs of the 
 kingdom, especially the police, and com- 
 municates with the judicial functionaries. 
 
 HOME PORT. The port where the owner 
 of a ship resides. 
 
 HOMESOKEN, or HOMSOKEN. See 
 
 "Hamesucken." 
 
 HOMESTALL. The mansion house. 
 
 HOMESTEAD. The house and land con- 
 stituting a family residence. 6 N. D. 482. 
 
 " 'Stethe or sted,' says Lord Coke, 'betoken- 
 eth properly a bank of a river, and many 
 times a place.' Co. Litt. 4, 6. The home- 
 
HOMICIDE 
 
 (444) 
 
 HOMO VOCABULUM, ETC. 
 
 stead, according to that definition, means 
 the home place, the place where the house 
 is, and such is its legal acceptation at the 
 present day. It is the home, the house, and 
 the adjoining land, where the head of the 
 family dwells; the home farm." 36 N. H. 
 158. 
 
 The principal importance of the term is in 
 respect to the exemption of the homestead 
 from execution, and the nature and extent 
 of such exemption is regulated in each state 
 by the statutes allowing the same. 
 
 As a general rule, to constitute a home- 
 stead within the exemption laws the prop- 
 erty must be actually occupied (11 Allen 
 [Mass.] 37; 51 Mich. 541; 23 Minn. 435) as 
 a residence (27 111. 393) by the head of a 
 family (10 Allen [Mass.] 425; 159 111. 148) 
 who has a present possessory interest in the 
 property (170 111. 115; 74 Iowa, 683), with 
 the intention of making such property a 
 homestead (6 Gal. 234; 53 Vt. 554). 
 
 HOMICIDE. Homicide is any killing of a 
 human being. To constitute homicide, (1) 
 the killing must be of a living human be- 
 ing; (2) the death must have been caused 
 by the act or omission of the accused; (3) 
 death must happen within a year and a day 
 after the injury. 
 
 Homicide is either (1) justifiable; (2) ex- 
 cusable; or (3) felonious. Felonious homi- 
 cide is either murder or manslaughter. 1 
 Clark & Marshall, Crimes, 466. See "Mur- 
 der;" "Manslaughter." 
 
 HOMICIDIUM (Lat.) Homicide. 
 
 HOMINE CAPTO IN WITHERNAM. See 
 "De Homine Capto in Withernam." 
 
 HOMINE ELIGENDO (Lat.) In English 
 law. A writ directed to a corporation, re- 
 quiring the members to make choice of a 
 new man, to keep the one part of a seal ap- 
 pointed for statutes merchant. Tech. Diet. 
 
 HOMINE REPLEGIANDO. See "De Hom- 
 ine Replegiando." 
 
 HOMINES (Lat.) In feudal law. Men; 
 feudatory tenants who claimed a privilege of 
 having their causes, etc., tried only in their 
 lord's court. Par. Ant. 15. 
 
 HOMINES LIGII. In feudal law. Liege 
 men; feudal tenants or vassals, especially 
 those who held immediately of the sover- 
 eign. 1 Bl. Comm. 367. 
 
 HOMINUM CAUSA JUS CONSTITUTUM 
 est. Law is established for the benefit of 
 man. 
 
 HO Ml PLAGIUM. In old English law. The 
 maiming of a man. Blount. 
 
 HOMMES DE FIEF (Pr.) In feudal law. 
 Men of the fief; feudal tenants; the peers in 
 the lords' courts. Montesq. Bsp. des Lois, 
 liv. 28, c. 27. 
 
 HOMMES FEODAUX (Pr.) In feudal law. 
 Feudal tenants; the same with hommes de 
 fief (q. V.) Montesq. Esp. des Lois, liv. 28, c. 
 36. 
 
 HOMO (Lat.) A human being, whether 
 male or female. 2 Inst. 45. 
 
 In Feudal Law. A vassal; one who, 
 
 having received a feud, is bound to do hom- 
 age and military service for his land. Va- 
 riously called vassalus, vassus, miles, aliens 
 feialalin, teiiciifi per senitium militare, some- 
 times baro, and most frequently leudes. 
 Spelman. Homo is sometimes also used for 
 a tenant by socage, and sometimes for any 
 dependent. A homo claimed the privilege of 
 having his cause and person tried only in 
 the court of his lord. Kennett, Par., Ant. p. 
 152. 
 
 HOMO CHARTULARIUS. One manumit- 
 ted from slavery by charter. 
 
 HOMO COMMENDATUS. In feudal law. 
 One who surrendered himself into the power 
 of another for the sake of protection or sup- 
 port. L. Ripuar, tit. 72, § 5. 
 
 HOMO ECCLESIASTICUS. A church vas- 
 sal; one who was bound to serve a church, 
 especially to do service of an agricultural 
 character. Spelman. 
 
 HOMO EXERCITALIS. A man of the army 
 (exercitus) ; a soldier. 
 
 HOMO FEODALIS. A vassal or tenant; 
 one who held a fee (feodum), or part of a 
 fee. Spelman. 
 
 HOMO FISCALIS (or FISCALINUS). A 
 
 servant or vassal belonging to the treasury 
 or fiscus. 
 
 HOMO FRANCUS, HOMO INGENUUS.or 
 
 homo liber. In old English law. A free man. 
 
 HOMO LIGIUS. A liege man; a subject; 
 a king's vassal; the vassal of a subject. Spel- 
 man. 
 
 HOMO NOVUS. In feudal law. A new 
 tenant or vassal; one who was invested with 
 a new fee. Spelman. 
 
 HOMO PERTINENS. In feudal law. A 
 feudal bondman or vassal; one who belonged 
 to the soil (qui glebae adsoribitur) . 
 
 HOMO POTEST ESSE HABILIS ET IN- 
 habills diversis temporlbus. A man may be 
 capable and incapable at divers times. 5 
 Coke, 98. 
 
 HOMO REGIUS. A king's vassal. L. 
 Ripuar, tit. 11, § 3. 
 
 HOMO ROMANUS. A Roman. An appel- 
 lation given to the old inhabitants of Gaul 
 and other Roman provinces, and retained in 
 the laws of the barbarous nations. L. Sails, 
 tit. 34, § 3; Spelman. 
 
 HOMO TRIUM LITTERARUM. Amanof 
 three letters; i. e., "t," "u," "r," — a thief. 
 Wharton. 
 
 HOMO VOCABULUM EST NATURAE; 
 persona Juris civilis. "Man" (homo) is a term 
 of nature; "person" (persona) of the civil 
 law. Calv. Lex. 
 
HOMOLOGACION 
 
 (445) 
 
 HORN TENURE 
 
 HOMOLOGACION. In Spanish law. The 
 tacit consent and approval, Inferred by law 
 from the omission of the parties, for the 
 space of ten days, to complain of the sen- 
 tences of arbitrators, appointment of syn- 
 dics, or assignees, of insolvents, settlements 
 of successions, etc. Also, the approval given 
 by the judge of certain acts and agreements 
 for the purpose of rendering them more 
 binding and executory. Escriche, Die. Raz. 
 
 HOMOLOGARE. In civil law. To con- 
 firm or approve; to consent or assent; to 
 confess. Calv. Lex. Sometimes corruptly 
 written "emologare." 
 
 HOMOLOGATE. In modern civil law. To 
 approve; to confirm; as, a court homologates 
 a proceeding. See "Homologation." biter- 
 ally, to use the same words with another; to 
 say the like. 9 Mart. (La.) 324. To assent 
 to what another says or writes. 
 
 HOMOLOGATION. 
 
 In Civil Law. Approbation; confirma- 
 tion by a court of justice; a judgment which 
 orders the execution of some act; as, the ap- 
 probation of an award, and ordering execu- 
 tion on the same. Merlin, Repert.; Civ. 
 Code La.; Dig. 4. 8; 7 Toullier, Dr. Civ. note 
 224. To homologate is to say the like, simili- 
 ter dicere. 9 Mart. (La.) 324. 
 
 In Scotch Law. An act by which a 
 
 person approves a deed, so as to make it 
 binding on him, though in itself defective. 
 Ersk. Inst. 3. 3. 47 et seq.; 2 Bligh, 197; 1 
 Bell, Comm. 144. 
 
 HOMONYMIAE (Graeco-Lat.) A term ap- 
 plied in the civil law to cases where a law 
 was repeated, or laid down in the same 
 terms, or to the same effect, more than once. 
 Cases of iteration and repetition. Bac. 
 Works, IV. 371. See 2 Kent, Comm. 489, 
 note. 
 
 HONESTE VIVERE (Lat.) To live hon- 
 orably, creditably, or virtuously. One of the 
 three general precepts to which Justinian 
 reduced the whole doctrine of the law (Inst. 
 1. 1. 3; Bracton, fols. 3, 3b), the others be- 
 ing alterum non laedere, not to injure oth- 
 ers, and suum cuigue triiuere, to render to 
 every man his due. 
 
 This phrase is rendered by Blackstone, as 
 well as Harris & Cooper, in their transla- 
 tions of the Institutes, "to live honestly," 
 but this is not the proper meaning of hon- 
 este. Burrill. 
 
 HONOR. 
 
 In English Law. The seigniory of a 
 
 lord paramount. 2 Bl. Comm. 91. 
 
 In Common Law. To accept a bill of 
 
 exchange; to pay a bill accepted, or a prom- 
 issory note, on the day it becomes due. 7 
 Taunt. 164; 1 Term R. 172. 
 
 HONOR COURTS. Tribunals held within 
 honors. Cowell. 
 
 HONORABLE. A title of courtesy given 
 in England to the younger children of earls, 
 and the children of viscounts and barons, 
 and, collectively, to the house of commons. I 
 
 In America, the word is used as a title of 
 courtesy for judges, members of congress, 
 and other high officials, but without any dis- 
 tinct rule for its application. 
 
 HONORARIUM. Something given in grat- 
 itude for services rendered. 
 
 It is so far of the nature of a gift that it 
 cannot be sued for. 5 Serg. & R. (Pa.) 412; 
 1 Chit. Bailm. 38; 2 Atk. 332; 3 Bl. Comm. 
 28. Of this character were formerly in Eng- 
 land, though never in the United States, the 
 fees of counsellors at law and of physicians. 
 See 3 Sharswood, Bl. Comm. 28. 
 
 HONORARY. Without fee, profit, or re- 
 ward, either to or by the holder of the hon- 
 orary position. 81 N. Y. 255. 
 
 HONORARY FEUDS. Titles of nobility, 
 descendible to the eldest son, in exclusion of 
 all the rest. 
 
 HONORARY SERVICES. Services by 
 which lands in grand serjeantry were held; 
 such as to hold king's banner, or to hold his 
 head in the ship which carried him from Do- 
 ver to Whitsand, etc. 2 Sharswood, BL 
 Comm. 73j and note. 
 
 HONORARY TRUSTEES. Trustees to 
 preserve contingent remainders. So called 
 because they are bound, in honor only, to de- 
 cide on the most proper and prudential 
 course. Lewin, Trusts, 408. 
 
 HONTFONGENTHEF (Saxon). A tfiief 
 taken with the stolen thing in his hand. See 
 "Handhabend." 
 
 HORA AURORAE. In old English law. 
 The morning bell. Cowell. 
 
 HORA NON EST MULTUM DE SUBTAN- 
 tia negotii, licet in appello de ea aliquando 
 fiat mentio. The hour is not of much con- 
 sequence as to the substance of business, al- 
 though in appeal it is sometimes mentioned. 
 1 Bulst. 82. 
 
 HORAE JUDICIAE (Lat.) Hours judicial, 
 or those in which judges sit in court. In 
 Fortesque's time, these were from 8 to 11 a. 
 m., and the courts of law were not open in 
 the afternoon. Co. Lift. 135a; 2 Inst. 246; 
 Fortesque, 51, p. 120, note. 
 
 HO RCA. In Spanish law. A gallows; the 
 punishment of hanging. White, New Recop. 
 bk. 2, tit. 19, c. 4, § 1. 
 
 HORN. In old Scotch practice. A kind of 
 trumpet used in denouncing cgntumacious 
 persons rebels and outlaws, which was done 
 with three blasts of the horn by the king's 
 sergeant. This was called "putting to the 
 horn," and the party so denounced was said 
 to be "at the horn." BeU, Diet.; Skene de 
 Verb. Sign.; 1 Pitc. Crim. Tr. pt. 2, pp. 77, 
 80. 
 
 HORN TENURE. Tenure by winding a 
 horn on approach of enemy, called "tenure 
 by cornage." If lands were held by this ten- 
 ure of the king, it was grand sergeantry; if 
 of a private person, knight service. Many 
 
HORN WITH HORN 
 
 (446) 
 
 HOUSE 
 
 anciently so held their lands towards the 
 Plcts' Wall. Co. Litt. § 156; Camden, Brit. 
 609. 
 
 HORN WITH HORN. A phrase used to 
 describe the commoning together of horned 
 beasts of different species. 
 
 HORNING. In Scotch law. A process is- 
 suing on a decree of court of sessions, or of 
 an inferior court, by which the debtor is 
 charged to perform, in terms of his obliga- 
 tion, or on failure made liable to caption, 
 that is, imprisonment. Bell, Diet. "Horn- 
 ing, Let;ters of;" "Diligence." The name 
 comes from the ancient custom of proclaim- 
 ing letters of horning not obeyed, and de- 
 claring the recusant a rebel, with three 
 blasts of a horn, called "putting him to the 
 horn." 1 Ross, Lect. 258, 308. 
 
 HORS (Law Pr.) Out; out of; without. 
 Hors son sen, out of his mind.' Britt. c. 
 85. 
 
 HORS DE SON FEE (Fr. out of his fee). 
 In old English law. A plea to an action 
 brought by one who claimed to be lord for 
 rent services as issuing out of his land, by 
 which the defendant asserted that the land 
 in question was out of the fee of the de- 
 mandant. 9 Coke, 30; 2 Mod. 104. 
 
 HORS PRIS (Law Pr.) Except. 
 
 HORSE. Until a horse has attained the 
 age of four years, he is called a "colt." 1 
 Russ. & R. 416. This word is sometimes 
 used as a generic name for all animals of 
 the horse kind. 3 Brev. (N. C.) 9. SeeYelv. 
 67a. 
 
 HOSPITATOR (Lat.) A host or enter- 
 tainer. 
 
 Hospitator communis, an innkeeper. 8 
 Coke, 32. 
 Hospitator magnus, the marshal of a camp. 
 
 HOSPITIA. Inns. Hospitia communia.cojn- 
 mon inns. Reg. Grig. 105. Hospitia curiae, 
 inns of court. Hospitia cancellariae, inns of 
 chancery. Crabb, Hist. Bng. Law, 428, 429, 
 4 Reeve, Hist. Bng. Law, 120. 
 
 HOSTAGE. A person delivered into the 
 possession of a public enemy in the time of 
 war, as a security for the performance of a 
 contract entered into between the belliger- 
 ents. 
 
 Hostages are frequently given as a securi- 
 ty for the payment of a ransom bill, and if 
 they should die, their death would not dis- 
 charge the contract. 3 Burrows, 1734; 1 
 Kent, Comm. 106; Dane, Abr. Index. 
 
 HOSTELLAGIUM. In English law. A 
 right reserved to the lords to be lodged and 
 entertained in the houses of their tenants. 
 
 HOSTES. Enemies. 
 
 "Enemies are those who declare war 
 against us, or against whom we declare war 
 publicly; all others are pirates or robbers." 
 Dig. 50. 16. 118. See "Enemy." 
 
 HOSTES SUNT QUI NOBIS VEL QUI- 
 bus nos bellum decernlmus; caeteri Iradi- 
 tores vei praedones sunt. Enemies are those 
 upon whom we declare war, or who declare 
 it against us; all others are traitors or pi- 
 rates. 7 Coke, 24; Dig. 50. 16. 118; 1 Shars- 
 wood, Bl. Comm. 257. 
 
 HOSTICIDE. One who kills an enemy. 
 
 HOSTILE. Having the character of an 
 enemy; standing in the relation of an enemy. 
 See 1 Kent, Comm. c. 4. 
 
 HOSTILE EMBARGO. See "Embargo." 
 
 HOSTILE WITNESS. Awitness who man- 
 ifests so much hostility or prejudice under 
 examination in chief that the party who has 
 called him, or his representative, is allowed 
 to cross-examine him, i. e., to treat him as 
 though he had been called by the opposite 
 party. Rapalje & L. 
 
 HOSTILITY. A state of open enmity; 
 open war. Wolff. Dr. Nat. § 1191. 
 
 Permanent hostility exists when the indi- 
 vidual is a citizen or subject of the govern- 
 ment at war. 
 
 Temporary hostility exists when the indi- 
 vidual happens to be domiciliated or resident 
 in the country of one of the belligerents. 
 In this latter case, the individual may throw 
 off the national character he has thus ac- 
 quired by residence, when he puts himself in 
 motion, bona fide, to quit the country sine 
 animo revertendi. 3 C. Rob. Adm. 12; 3 
 Wheat. (U. S.) 14. See "Enemy;" "Dom- 
 icile." 
 
 HOT-WATER ORDEAL. See "Ordeal." 
 
 HOTCHPOT, HODGE-PODGE.or HOTCH- 
 potch. The blending and mixing property 
 belonging to different persons, in order to 
 divide it equally. 2 Bl. Comm. 190. 
 
 The bringing together all the personal es- 
 tate of the deceased, with the advancements 
 he has made to his children, in order that 
 the same may be divided agreeably to the 
 provisions of the statute for the distribution 
 of intestates' estates. 
 
 In bringing an advancement into hotchpot, 
 the donee is not required to account for the 
 profits of the thing given. Por example, he 
 is not required to bring into hotchpot the 
 produce of negroes, nor the interest of mon- 
 ey. The property must be accounted for at 
 its value when given. 1 Wash. (Va.) 224; 
 17 Mass. 358; 3 Pick. (Mass.) 450; 2 Desaus. 
 (S. C.) 127; 3 Rand. (Va.) 117, 559. See 
 "Advancement." 
 
 HOTEL. A public house for the enter- 
 tainment of travellers and casual guests. 44 
 N. J. Law, 492. 
 
 The term is synonymous with "inn" or 
 "tavern." 2 Daly (N. Y.) 17; 84 Ala. 452; 
 54 Barb. (N. Y.) 311. 
 
 HOUR OF CAUSE. In Scotch practice. 
 The hour when a court is met. 3 How. St. 
 Tr. 603. 
 
 HOUSE. "In a general sense, a building 
 
HOUSE BOTE 
 
 (447) 
 
 HOUSEHOLDER 
 
 or shed intended or used as a shelter or hab- 
 itation for animals of any kind; but appro- 
 priately a building or edifice for the habita- 
 tion of man; a dwelling place." Webster, 
 quoted in 11 Abb. Pr. (N. Y.) 292. 
 
 Several buildings, so constructed that they 
 may be used as an entirety, may constitute 
 a "house." 9 Ch. Div. 425. 
 
 "House" has been variously held to mean 
 "dwelling house" (11 Abb. Pr. [N. Y.] 292), 
 or to include buildings used for other pur- 
 poses (37 Tex. 412; 9 Ch. Div. 425), accord- 
 ing to the context. 
 
 HOUSE BOTE. An allowance of necessary 
 timber out of the landlord's woods for the 
 repairing and support of a house or tene- 
 ment. This belongs of common right to any 
 lessee for years or for life. House bote is 
 said to be of two kinds, estoveriam aedifi- 
 candi et ardendi. Co. Litt. 41. 
 
 HOUSE OF COMMONS. One of the con- 
 stituent houses of the English parliament. 
 
 It is composed of the representatives of the 
 people, as distinguished from the house of 
 lords, which is composed of the nobility. It 
 consists of six hundred and fifty-four mem- 
 bers, elected as follows: Four hundred and 
 ninety-six from England and Wales, fifty- 
 three from Scotland, and one hundred and 
 five from Ireland. See "Parliament;" "High 
 Court of Parliament." 
 
 HOUSE OF CORRECTION. A place for 
 the imprisonment of those who have com- 
 mitted crimes of lesser magnitude. 
 
 HOUSE OF ILL FAME. A bawdy house 
 (g. v.); a house resorted to for the pur- 
 pose of prostitution and lewdness. 5 I red. 
 (N. C.) 603. See 3 Pick. (Mass.) 26; 21 N. 
 H. 345; 33 Conn. 91. 
 
 HOUSE OF LORDS. One of the constit- 
 uent houses of the English parliament. 
 
 This body is the supreme court of judi- 
 cature in the kingdom. It has no original 
 jurisdiction, but is the court of appeal in the 
 last resort, with a few exceptions, and un- 
 der some limitations as to the right, from 
 the inferior courts upon appeal or writ of 
 error for mistake of law. Appeals lie to 
 this tribunal from Scotch and Irish courts, 
 in some cases. See St. 4 Geo. IV. c. 85, as 
 to Scotch, and St. 39 & 40 Geo. III. c. 67, art. 
 8, as to Irish, appeals. 
 
 This body, when sitting as a court of law, 
 is presided over by the lord chancellor, 
 whose attendance alone is in any respect 
 compulsory, and is composed of as many of 
 its members who have filled judicial stations 
 as choose to attend. Three laymen also at- 
 tend in rotation, but do not vote upon judi- 
 cial matters. 11 Clark & F. 421. In the ab- 
 sence of the chancellor, deputy speakers, who 
 were members of the profession, but not of 
 the house, have been appointed. 3 Shars- 
 wood, Bl. Comm. 56. 
 
 It sits also to try impeachments. See "Im- 
 peachment;" "High Court of Parliament;" 
 "Parliament." 
 
 HOUSE OF REFUGE. A prison for juve- 
 nile delinquents. 
 
 HOUSEBREAKING. In criminal law. The 
 breaking and entering the dwelling house of 
 another, by night or by day, with Intent to 
 commit some felony within the same, wheth- 
 er such felonious intent is executed or not. 
 Housebreaking by night is burglary. 
 
 This crime is of a local character, and the 
 evidence respecting the place must corre- 
 spond with the allegation in the indictment. 
 
 HOUSEHOLD. Those who dwell under 
 the same roof, and constitute a family. Web- 
 ster. But it is not necessary that thejf 
 should be under a roof, or that the father of 
 the family be with it, if the mother and 
 children keep together so as to constitute a 
 family. 18 Johns. (N. Y.) 402. 
 
 Belonging to the house and family; do- 
 mestic. Webster. 
 
 HOUSEHOLD FURNITURE. By this ex- 
 pression, in wills, all personal chattels will 
 pass that may contribute to the use or con- 
 venience of the household, or the ornament 
 of the house; as, plate, linen, china, both 
 useful and ornamental, and pictures. But 
 goods or plate in the hands of testator in 
 the way of his trade will not pass, nor books, 
 nor wines. 1 Jarm. Wills (Perkins Ed.) 
 591, 596, notes; 1 Ves. Sr. 97; 2 Williams, 
 Ex'rs (Am. Ed.) 1017; 1 Johns. Ch. (N. Y.) 
 329. See "Furniture." 
 
 HOUSEHOLD GOODS. In wills. This ex- 
 pression will pass everything of a perma- 
 nent nature (that is, articles of household 
 which are not consumed in their enjoyment) 
 that were used or purchased, or otherwise 
 acquired by the testator, for his house, but 
 not goods in the way of his trade. Plate 
 will pass by this term, but not articles of 
 consumption found in the house, as malt, 
 hops, or victuals, nor guns and pistols, if 
 used in hunting or sport, and not for de- 
 fense of house. A clock in the house, if not 
 fixed to it, will pass. 1 Jarm. Wills (Per- 
 kins Ed.) 589; 1 Rop. Leg. 253. See "Goods." 
 
 HOUSEHOLD STUFF. Words sometimes 
 used in a will. Plate will pass under the 
 term (2 Freem. Ch. 64), but not apparel, 
 books, cattle, victuals, and choses in action, 
 which do not fall within the natural meaning 
 of the word, unless there be an intention 
 manifest that they should pass. 15 Ves. 319. 
 Goods, as seven hundred beds in possession 
 of testator for purposes of trade, do not pass 
 under utensils of "household stuff." 2 P. 
 Wms. 302. In general, "household stuff" 
 will pass all articles which may be used for 
 the convenience of the house. Swinb. Wills, 
 pt. 7, § 10, p. 484. 
 
 HOUSEHOLDER. Master or chief of a 
 family; one who keeps house with his fam- 
 ily. Webster. It "means more than the mere 
 occupant of a room or house. It implies the 
 idea of a domestic establishment." 37 Ala. 
 145. But a man who has absconded from 
 the state, and left his wife and children re- 
 maining together as a family, was for their 
 benefit held to be a householder. 18 Johns. 
 (N. Y.) 402. And a single man renting a 
 house in which he lodged with a younger 
 
HOUSEKEEPER 
 
 (448) 
 
 HUNDRED GEMOTE 
 
 brother has been held a householder. 2 Tei. 
 App. 432. 
 
 A keeper of a tavern or boarding house, or 
 a master or mistress of a dwelling house. 1 
 Supp. Rev. St. Mass. 1836-1853, Index, p. 
 170. A person having and providing for a 
 household. The character is not lost by a 
 temporary cessation from housekeeping. 14 
 Barb. (N. Y.) 456; 19 Wend. (N. Y.) 475. 
 
 HOUSEKEEPER. One who occupies a 
 house. 
 
 A person who occupies every room in the 
 house, under a lease, except one, which is re- 
 served for his landlord, who pays all the 
 taxes, is not a housekeeper. 1 Chit. Bailm. 
 502. Nor is a person a housekeeper who 
 takes a house which he afterwards underlets 
 to another, whom the landlord refuses to ac- 
 cept as his tenant. In this case, the under 
 tenant paid the taxes, and let to the tenant 
 the first floor of the house, and the rent was 
 paid for the whole house to the tenant, who 
 paid it to the landlord. Id. note. 
 
 In order to make the party a housekeeper, 
 he must be in actual possession of the house 
 (1 Chit. Bailm. 288), and must occupy a whole 
 house. See 1 Barn. & C. 178; 2 Term R. 
 406; 3 Petersd. Abr. 103, note; 2 Mart. (La.) 
 313. 
 
 The term is rarely, if ever, used in Amer- 
 ican law. 
 
 HOVEL. A place used by husbandmen to 
 set their ploughs, carts, and other farming 
 utensils out of the rain and sun. Law Lat. 
 Diet. A shed; a cottage; a mean house. 
 
 HOYMAN. The master or captain of a 
 hoy, or small coasting vessel. 
 
 Hoymen are liable as common carriers. 
 Story, Bailm. § 496. 
 
 HU DE-GELD. In old English law. A com- 
 pensation for an a.ssaMlt (transgressio illata) 
 upon a trespassing servant (servus). Sup- 
 posed to be a mistake or misprint in Pleta 
 {or hinegeia. Fleta, lib. 1, c. 47, § 20. Also, 
 the price of one's skin, or the money paid by 
 a servant to save himself from a whipping. 
 Du Cange. 
 
 HUE AND CRY. In old English law. A 
 pursuit of one who had committed felony, by 
 the highway. 
 
 The meaning of "hue" is said to be 
 "shout," from the Saxon huer; but this word 
 also means "to foot," and It may be rea- 
 sonably questioned whether the term may 
 not be "up foot and cry;" in other words, 
 run and rry after the felon. We have a men- 
 tion of hue and cry as early as Edward I.; 
 and by the Statute of Winchester (13 Bdw. 
 I.), "immediately upon robberies and felo- 
 nies committed, fresh suit shall be made 
 from town to town, and county to county, by 
 horsemen and footmen, to the seaside. The 
 constable (the person being described, etc.) 
 is to call upon the parishioners to assist him 
 in the pursuit in his precinct, and to give 
 notice to the next constable, who is to do 
 the same as the first, etc. If the county will 
 not answer the bodies of the offenders, the 
 whole hundred shall be answerable for the 
 
 robberies there committed, etc." A person 
 engaged in the hue and cry apprehending a 
 felon was, on the felon's conviction, entitled 
 to forty pounds, on a certificate of the judge 
 or justice before whom there was convic- 
 tion, as well as to the felon's horse, furni- 
 ture, arms, money, and other goods taken 
 with him, subject to the rights of other per- 
 sons therein. Wood, Inst. 370-373. See 2 
 Hale, P. C. 100. 
 
 HUEBRA. In Spanish law. An acre of 
 land, or as much as can be ploughed in a 
 day by two oxen. 2 White, New Coll. 49. 
 
 HUISSIER. An usher of the court; an of- 
 ficer who serves process. 
 
 In France, an ofllcer of this name performs 
 many of the duties of an English sheriff or 
 constable. In Canada, there may be many 
 huissiers in each county, whose acts are in- 
 dependent of each other; while there can be 
 but one sheriff, who is presumed cognizant 
 of the acts of his subordinates. The French 
 huissier certifies his process; the Canadian 
 merely serves what is put into his hands. 
 
 HUNDRED. In English law. A division 
 of a county, which some make to have origi- 
 nally consisted of one hundred hides of land; 
 others of ten tithings, or one hundred free 
 families. 
 
 It differed in size in different parts of 
 England. 1 Steph. Comm. 122. In many 
 cases, when an offense is committed within 
 a hundred, the inhabitants are liable to make 
 good the damage if they do not produce the 
 offender. See 12 East, 244. 
 
 This system was probably introduced by 
 Alfred (though mentioned in the Poenlten- 
 tiae of Egbert, where it seems to be the ad- 
 dition of a later age), being borrowed from 
 the continent, where it was known to the 
 Franks, under the name ceiiteiiri. ■n the 
 sixth century. See Charlemagne, Cap. lib. 3, 
 c. 10. 
 
 It had a court attached to it, called the 
 "hundred court," or "hundred lagh," like a 
 court baron, except in its larger territorial 
 jurisdiction. It was governed by the hun- 
 dredary (hundredarius) . 9 Coke, 25. The 
 jurisdiction of this court has devolved upon 
 the county courts. Jacob; Du Caifge. Hun- 
 dred penny was a tax collected from the 
 hundred by Its lord or by the sheriff. Hun- 
 dred setena signified the dwellers in the hun- 
 dred. Charta Edg. Reg. Mon. Angl. tom. 1, 
 p. 16. 
 
 HUNDRED COURT. An inferior court, 
 whose jurisdiction extended to the whole ter- 
 ritory embraced in a hundred. They were 
 courts not of record; the freeholders were 
 the judges; they were held before the stew- 
 ard of the manor as register; and they re- 
 sembled courts baron In all respects except 
 in their territorial jurisdiction. 3 Bl. Comm. 
 34, 35. 
 
 HUNDRED GEMOTE. An assembly among 
 the Saxons of the freeholders of a hundred. 
 
 It met twelve times in the year, original- 
 ly; though subsequently its meetings became 
 less frequent. 
 
 It had an extensive jurisdiction, both civil 
 
HUNDRED LAGH 
 
 (449) 
 
 HYPOTHECATE 
 
 and criminal, and was the predecessor of the 
 county court and sheriff's tourn, and pos- 
 sessed very similar powers. Spelman, "Hun- 
 dredum;" 1 Reeve, Hist. Eng. Law, 7. 
 
 HUNDRED LAGH (Saxon). Liability to 
 attend the hundred court. Spelman. See 
 Cow ell; Blount. 
 
 HUNDRED PENNY. In old English law. 
 A tax collected from the hundred, by the 
 sheriff or lord of the hundred. Spelman, voc. 
 "Hundredus." 
 
 HUNDRED SETENA. In Saxon law. The 
 dwellers or inhabitants of a hundred. Cow- 
 ell; Blount. Spelman suggests the reading 
 of sceatena from Saxon sceat, a tax. 
 
 HUNDREDARIUS. In old English law. A 
 hundredary or hundredor. A name given to 
 the chief officer of a hundred, as well as to 
 the freeholders who composed it. Spelman, 
 voc. "Hundredus." 
 
 HUNDREDARY (Lat. liundredarius) . Xhe 
 chief magistrate of a hundred. Du Cange. 
 
 HUNDREDORS. The inhabitants of a hun- 
 dred, who, by several statutes, are held to 
 be liable, in the cases therein specified, to 
 make good the loss sustained by persons 
 within the hundred by robbery or other vio- 
 lence, therein also specified. The principal 
 of these statutes are 13 Edw. I. st. 2, c. 1, 
 § 4; 28 Edw. III. c. 11; 27 Eliz. c. 13; 29 
 Car. II. c. 7; 8 Geo. II. c. 16; 22 Geo. II. 
 c. 24. 
 
 * Persons serving on juries, or fit to be im- 
 panelled thereon, dwelling within the hun- 
 dred where the land in question lies. 35 
 Hen. VIII. c. 6. And some such were neces- 
 sarily on every panel till 4 & 5 Anne, c. 16. 
 4 Steph. Comm. 370. Him that had the ju- 
 risdiction of the hundred; the bailiff of the 
 hundred. Home, Mirr. Just. lib. 1; Jacob. 
 
 HUNTING. The act of pursuing and tak- 
 ing wild animals; the chase. 
 
 HURDLE. In English law. A species of 
 sledge, used to draw traitors to execution. 
 
 HURTO. In Spanish law. Theft. White, 
 New Recop. bk. 2, tit. 20. 
 
 HUSBAND. A man who has a wife. 
 
 HUSBAND OF A SHIP. See "Ship's Hus- 
 band." 
 
 HUSBRECE. Housebreaking; burglary. 
 
 HUSCARLE. In old English law. A house 
 servant or domestic; a man of the house- 
 hold. Spelman. 
 
 A king's vassal, thane, or baron; an earl's 
 man or vassal. A term of frequent occur- 
 rence in Domesday Book. 
 
 HUSGABLUM. In old records. House rent; 
 or a tax or tribute laid upon a house. 3 Mon. 
 Angl. 254; Cowell; Blount. 
 
 HUSTINGS. In English law. The name 
 of a court held before the lord mayor and 
 
 aldermen of London. It is the principal and 
 supreme court of the city. See 2 Inst. 327; 
 St. Armand, Hist. Essay, Leg. Power Eng. 75. 
 
 The place of meeting to choose a member 
 of parliament. 
 
 The term is used in Canadian as well as 
 English law. The manner of conducting an 
 election in Canada and England for a mem- 
 ber of the legislative body is substantially 
 as follows: Upon warrant from the proper 
 officer, a writ issues from the clerk of the 
 crown in chancery, directed to the sheriff, 
 registrar, or other returning oflicer of the 
 electoral division. He thereupon issues and 
 posts in public places a proclamation ap- 
 pointing a day, place, and hour for his hold- 
 ing an election, and also fixing a day when 
 a poll will be opened, if one be demanded 
 and granted. The first day is called "nomi- 
 nation day." On this day he proceeds to the 
 hustings, which must be in the open air, and 
 accessible to all the voters, proclaims the 
 purpose of the election, and calls upon the 
 electors present to name the person they re- 
 quire to represent them. The electors then 
 make a show of hands, which may result in 
 an election, or a poll may be demanded by a 
 candidate or by any elector. On such de- 
 mand, a poll is opened in each township, 
 ward, or parish of the election district, at 
 the places prescribed by statute. 
 
 HUTESIUM ET CLAMOR. Hue and cry 
 
 iq. V.) 
 
 HYPOBOLUM (Lat.) In civil law. The 
 name of the bequest or legacy given by the 
 husband to his wife, at his death, above her 
 dowry. Tech. Diet. 
 
 HYPOTHEC. In Scotch law. A right over 
 a subject which is acquired by a creditor 
 while the subject remains in the possession 
 of the debtor. 
 
 HYPOTHECA. In civil law. That kind 
 of pledge in which the possession of the 
 thing pledged remains with the debtor; the 
 obligation resting in mere contract. Dig. 1. 3. 
 7. 9. 2. 
 
 HYPOTHECARIA ACTIO. In civil law. 
 An hypothecary action ; an action for the en- 
 forcement of an hypotheca, or right of mort- 
 gage; or to obtain the surrender of the thing 
 mortgaged. Inst. 4. 6. 7; Mackeld. Civ. Law, 
 § 356. Adopted in the Civil Code of Louisi- 
 ana, under the name of "I'action hypotheca- 
 rie" (translated, "action of mortgage"). Ar- 
 ticle 3361. 
 
 HYPOTHECARII CREDITORES. In civil 
 law. Hypothecary creditors; those who loan- 
 ed money on the security of an hypotheca 
 (q. V.) Calv. Lex. 
 
 HYPOTHECATE. To pledge a thing with- 
 out delivering the possession of it to the 
 pledgee. "The master, when abroad, and in 
 the absence of the owner, may hypothecate 
 the ship, freight, and cargo, to raise money 
 requisite for the completion of the voyage." 
 3 Kent, Comm. 171. 
 
HYPOTHECATION 
 
 (450) 
 
 HYSTEROPOTMOI 
 
 HYPOTHECATION. A right which a cred- 
 itor has over a thing belonging to another, 
 and which consists in a power to cause it to 
 be sold, in order to be paid his claim out of 
 the proceeds. 
 
 There are two species of hypothecation, one 
 called "pledge" {pignus), and the other prop- 
 erly denominated "hypothecation." Pledge 
 is that species of hypothecation which is 
 contrabted by the delivery by the debtor to 
 the creditor of the thing hypothecated. Hy- 
 pothecation, properly so called, is that which 
 is contracted without delivery of the thing 
 hypothecated. 2 Bell, Comm. (5th Ed.) 25. 
 
 In the common law, cases of hypotheca- 
 tion, in the strict sense of the civil law, — 
 that is, of a pledge of a chattel without pos- 
 session by the pledgee, — are scarcely to be 
 found; cases of bottomry bonds and claims 
 for seamen's wages against ships are the 
 nearest approach to it; but these are liens 
 and privileges, rather than hypothecations. 
 Story, Bailm. § 288. It seems that chattels 
 not in existence, though they cannot be 
 pledged, can be hypothecated, so that the 
 lien will attach as soon as the chattel has 
 been produced. 14 Pick. (Mass.) 497. 
 
 (1) Conventional hypothecations are those 
 Which arise by agreement of the parties. 
 Dig. 20. 1. 5. 
 
 (2) General hypothecations are those by 
 which the debtor hypothecates to his cred- 
 itor all his estate which he has or may have. 
 
 (3) Legal hypothecations are those which 
 arise without any contract therefor between 
 the parties, express or implied. 
 
 (4) Special hypothecations are hypotheca- 
 tions of a particular estate. 
 
 (5) Tacit hypothecations are such as the 
 
 law gives in certain cases, without the con- 
 sent of the parties, to secure the creditor. 
 They are a species of legal hypothecation. 
 
 Thus, the public treasury has a lien over 
 the property of public debtors. Code, 8. 15. 
 1. The landlord has a lien on the goods in 
 the house leased, for the payment of his 
 rent. Dig. 20. 2. 2; Code, 8. 15. 7. The 
 builder has a lien, for his bill, on the house 
 he has built. Dig. 20. 1. The pupil has a 
 lien on the property of the guardian for the 
 balance of his account. Dig. 46. 6. 22; Code, 
 5. 37. 20. There is hypothecation of the 
 goods of a testator for the security of the 
 legacy. Code, 6. 43. 1. 
 
 See, generally, Poth. de I'Hyp. ; Poth. Cont. 
 (Cushing Ed.) 145, note 26; Merlin, Repert; 
 2 Brown, Civ. Law, 195; Abb. Shipp.; Pars, 
 Mar. Law. 
 
 HYPOTHECATION BOND. A bond given 
 in the contract of bottomry or respondentia. 
 
 HYPOTHEQUE. In French law. Hypoth- 
 ecation; the right acquired by the creditor 
 over the immovable property which has been 
 assigned to him by his debtor as security 
 for his debt, although he be not placed in 
 possession of it. 
 
 HYPOTHETICAL. Based upon an assump- 
 tion or hypothesis, as a hypothetical ques- 
 tion is one which calls for the opinion of the 
 witness upon facts assumed by the question. 
 
 HYSTEROPOTMOI. In Roman law. Those 
 who, having been thought dead, unexpected- 
 ly returned. They were not permitted to 
 enter their own houses by the door, but 
 through a hole in the roof. 
 
I E 
 
 ■ (4S1) 
 
 IDEM SONANS 
 
 I. E. An abbreviation for "id est," that is; 
 that is to say. 
 
 I. O. U. In common law. A memorandum 
 of debt in use among merchants. It is not 
 a promissory note, as it contains no direct 
 promise to pay. See 4 Car. & P. 324; 1 
 Man. & G. 46; 1 C. B. 543; 1 Esp. 426; Pars. 
 Bills & Notes. 
 
 IBI SEMPER DEBET FIERI TRIATIO UBI 
 juratores meliorem possunt habere notitiam. 
 A trial should always be had where the ju- 
 rors can be the best informed. 7 Coke, lb. 
 
 IBIDEM (Lat.) The same; the same book 
 or place; the same subject. Abbreviated ib. 
 or id. 
 
 I CT U S (Lat. ) In old English law. A stroke 
 or blow from a club or stone; a bruise, con- 
 tusion, or swelling produced by a blow from 
 a club or stone, as distinguished from "pla- 
 ga," a wound. Fleta, lib. 1, c. 41, § 3. 
 
 ICTUS ORBIS (Lat.) In medical jurispru- 
 dence. A maim, a bruise, or swelling; any 
 hurt without cutting the skin. 
 
 When the skin is cut, the injury is called 
 a "wound." Bracton, lib. 2, tr. 2, cc. 5, 24. 
 
 Ictus is often used by medical authors in 
 the sense of percussus. It is applied to the 
 pulsation of the arteries, to any external le- 
 sion of the body produced by violence; also 
 to the wound inflicted by a scorpion or ven- 
 omous reptile. OrMs is used in the sense of 
 circle, circuit, rotundity. It is applied, also, 
 to the eyeballs, oculi dicuntur orbes. Cast. 
 Lex. Med. 
 
 ID CERTUM EST QUOD CERTUM RED- 
 di potest. That is certain which may be ren- 
 dered certain. 1 Boiiv. Inst, note 929; 2 Bl. 
 Comm. 143; 4 Kent, Comm. 462; 4 Pick. 
 (Mass.) 179; Broom, Leg. Max. (3d London 
 Ed.) 556. 
 
 ID CERTUM EST QUOD CERTUM RED- 
 di potest, sed id magis centum est quod de 
 setnetipso est certum. That is certain which 
 can be made certain, but that is more cer- 
 tain which is certain of itself. 9 Coke, 47a. 
 
 ID EST (Lat.) That is. Commonly ab- 
 breviated "i. e." 
 
 ID PERFECTUM EST QUOD EX OMNI- 
 bus suis partibus constat. That is perfect 
 which is complete in all its parts. 9 Coke, 9. 
 
 ID P08SUMUS QUOD DE JURE POSSU- 
 mus. We are able to do that which we can 
 do lawfully. Lane, 116. 
 
 ID QUOD EST MAGfS REMOTUM, NON 
 trahit ad se quod est magis Junctum, sed e 
 contrario in omni casu. That which is more 
 remote does not draw to itself that which is 
 nearer, but the contrary in every case. Co. 
 Litt. 164. 
 
 ID QUOD NOSTRUM EST, SINE FACTO 
 nostro, ad alium transferri non potest. What 
 belongs to us cannot be transferred to an- 
 other without our consent. Dig. 50. 17. 11. 
 But this must be understood with this quali- 
 fication, that the government may take prop- 
 erty for public use, paying the owner its 
 value. The title to property may also be 
 acquired, without the consent of the owner, 
 by a judgment of a competent tribunal. 
 
 ID SOLUM NOSTRUM QUOD DEBITIS 
 
 deductis nostrum est. That only is ours 
 which remains to us after deduction of 
 debts. Tray. Lat. Max. 227. 
 
 IDEM (Lat. the same). According to Lord 
 Coke, idem has two significations: Idem 
 syllabis seu verbis, the same in syllables or 
 words, and idem, re et sensu, the same in 
 substance and in sense. 10 Coke, 124a. 
 
 In Old Practice. The said or afore- 
 said. Towns. PI. 15, 16. 
 
 IDEM AGENS ET PATIENS ESSE NON 
 potest. To be at once the person acting and 
 the person acted upon is impossible. Jenk. 
 Cent. Cas. 40. 
 
 IDEM EST FACERE, ET NOLLE PRO- 
 hibere cum possis. It is the same thing to 
 do a thing as not to prohibit it when in your 
 power. 3 Co. Inst. 158. 
 
 IDEM EST NIHIL DICERE ET INSUFFI- 
 cienter dicere. It is the same thing to say 
 nothing, and not to say sufficiently. 2 Inst. 
 178. 
 
 IDEM EST NON ESSE, ET NON APPA- 
 
 rere. It is the same thing not to be as not 
 to appear. Jenk. Cent. Cas. 207. Not to ap- 
 pear is the same thing as not to be. Broom, 
 Leg. Max. 165. 
 
 IDEM EST NON PROBARI ET NON ES- 
 se; non deficit jus, sed probatio. What does 
 not appear, and what is not, are the same; 
 it is not the defect of the law, but the want 
 of proof. 
 
 IDEM EST SCIRE AUT SCIRE DEBET 
 
 aut potuisse. To be able to know is the 
 same as to know. This maxim is applied to 
 the duty of every one to know the law. 
 
 IDEM NON ESSE ET NON APPARET. It 
 
 is the same thing not to exist and not to 
 appear. Jenk. Cent. Cas. 207. 
 
 IDEM SEMPER ANTECEDENT! PROXi- 
 mo refertur. Idem always relates to the next 
 antecedent. Co. Litt. 385. 
 
 IDEM SONANS. Sounding the same. A 
 term applied to names which are spelled dif- 
 
IDENT IFICATION 
 
 (452: 
 
 ferently, but have substantially the same 
 sound; the difference in spelling being held 
 in such case not to constitute a variance. 
 Thus, "Hutson" for "Hudson" (7 Miss. 142), 
 "Keen" for "Keene" (Thach. C. C. [Mass.] 
 67), and "Deadema" for "Diadema" (2 Ired. 
 [N. C] 346). 
 
 IDENTIFICATION. 
 
 identity (g. v.) 
 
 The establishment of 
 
 IDENTITAS VERA COLLIGITUR EX 
 multltudine signorum. True identity is col- 
 lected from a number of signs. BaC. Reg. 29. 
 
 IDENTITATE NOMINIS (Lat.) In Eng- 
 lish law. The name of a writ which lies for 
 a person taken upon a capias or exigent, 
 and committed to prison, for another man of 
 the same name. This writ directs the sher- 
 iff to inquire whether he be the person 
 against whom the action was brought, and 
 if not, then to discharge him. Pitzh. Nat. 
 Brev. 267. In practice, a party in this con- 
 dition would be relieved by habeas corpus. 
 
 IDENTITY. Sameness; the state of being 
 the same as something described; the fact 
 that a person or thing is the same as it is 
 represented or charged to be. 
 
 I DEO (Lat.) Therefore. Calv. Lex. 
 
 IDEO CONSIDERATUIVr EST (Law Lat.) 
 Therefore it is considered. The initial words 
 of the ancient entry of judgment in an ac- 
 tion at law, and by which that part of the 
 record is sometimes called in modern prac- 
 tice. 
 
 IDES (Lat.) In civil law. A day in the 
 month from which the computation of days 
 was made. 
 
 The divisions of months adopted among 
 the Romans were as follows: The calends 
 occurred on the first day of every month, 
 and were distinguished by adding the name 
 of the month; as, calendis Januarii, the first 
 of January. The nones occurred on the fifth 
 of each month, with the exception of March, 
 July, October, and May, in which months 
 they occurred on the seventh. The ides oc- 
 curred always on the ninth day after the 
 nones, thus dividing the month equally. In 
 fact, the ides would seem to have been the 
 primal division, occurring in the middle of 
 the month, nearly. Other days than the 
 three designated were indicated by the num- 
 ber of days which would elapse before the 
 next succeeding point of division. Thus, the 
 second of April is the quarto nonas Aprilis; 
 the second of March, the sexto nonas Martii; 
 the eighth of March, octavius idus Martii; 
 the eighth of April, sextus idus Aprilis; the 
 sixteenth of March, decimus Septimus calen- 
 dis Aprilis. 
 
 This system is still used in some chancer- 
 ies in Europe, and we therefore give the fol- 
 lowing: 
 
 2) 
 
 
 IDONEUS 
 
 
 Tame of the Calends, Nones, and Ides. 
 
 
 March, May, 
 
 April, June, 
 
 February as 
 
 Jan., Aug., Dec- 
 
 July, Oct., 
 31 dayH. 
 
 Sept., Nor., 
 
 bissextile. 
 
 Si days. 
 
 30 days. 
 
 29 days. 
 
 1 
 
 Calendis 
 
 Calendis 
 
 Calendis 
 
 Calendis 
 
 2 
 
 4 Nonas 
 
 6 Nonas 
 
 4 Nonas 
 
 4 Nonas 
 
 3 
 
 3 Nonas 
 
 6 NonalB 
 
 3 Nonas 
 
 3 Nonas 
 
 4 
 
 rrid. Non. 
 
 4 Nonas 
 
 Prid. Non. 
 
 Prid. Non. 
 
 5 
 
 Nonis 
 
 3 Nonas 
 
 Nonis 
 
 Nonis 
 
 6 
 
 8 Idus 
 
 Prid.Non. 
 
 8 Idus 
 
 8 Idus 
 
 7 
 
 7 Idus 
 
 Nonis 
 
 7 Idus 
 
 7 Idus 
 
 S 
 
 BIdus 
 
 8 Idus 
 
 6 Idus 
 
 6 Idus 
 
 9 
 
 5 Idus 
 
 7 Idus 
 
 5 Idus 
 
 6 Idus 
 
 10 
 
 4 Idus 
 
 6 Idus 
 
 4 Idus 
 
 4 Idus 
 
 11 
 
 3 Idus 
 
 5 Idus 
 
 3 Idus 
 
 3 Idus 
 
 12 
 
 Prld. Idua 
 
 4 Idus 
 
 Prid. Idua 
 
 Prid. Idu.s 
 
 13 
 
 Idibus 
 
 3 Idus 
 
 Idibus 
 
 Idibus 
 
 14 
 
 19 Cal. 
 
 Prld. Idus 
 
 18 Cal. 
 
 16 Cal. 
 
 15 
 
 18 Cal. 
 
 Idibus 
 
 17 Cal. 
 
 15 Cal. 
 
 16 
 
 17 Cal. 
 
 17 Cal. 
 
 16 Cal. 
 
 14 Cal. 
 
 17 
 
 16 Cal. 
 
 16 Cal. 
 
 15 Cal. 
 
 13 Cal. 
 
 18 
 
 16 Cal. 
 
 15 Cal. 
 
 14 Cal. 
 
 12 Cal. 
 
 19 
 
 14 Cal. 
 
 14 Cal. 
 
 13 Cal. 
 
 11 Cal. 
 
 20 
 
 13 Cal. 
 
 13 Cal. 
 
 12 Cal. 
 
 10 Cal. 
 
 21 
 
 12 Cal. 
 
 12 Cal. 
 
 11 Cal. 
 
 9 Cal. 
 
 22 
 
 11 Cal. 
 
 11 Cal. 
 
 10 Cal. 
 
 .s Cal. 
 
 28 
 
 10 Cal. 
 
 10 Cal. 
 
 OCal. 
 
 7 Cal. 
 
 24 
 
 9 Cal. 
 
 9 Cal. 
 
 8 Cal. 
 
 6 Cal. 
 
 26 
 
 8 0al. 
 
 8 Cal. 
 
 7 Cal. 
 
 5 Cal. 
 
 26 
 
 7 Cal. 
 
 7 Cal. 
 
 OCal. 
 
 4 Cal. 
 
 27 
 
 6 Cal. 
 
 6 Cal. 
 
 6 Cal. 
 
 3 Cal. 
 
 28 
 
 6 Cal. 
 
 6 Cal. 
 
 4 Cal. 
 
 I'rid. Cal. 
 
 29 
 
 4 Cal. 
 
 4 Cal. 
 
 3 Cal. 
 
 
 30 
 
 3 Cal. 
 
 3 Cal. 
 
 Prid. Cal. 
 
 
 SI 
 
 Prid.Cal. 
 
 I'rid. Cal. 
 
 
 
 IDIOCHIRA (Gr.) In civil law. An in- 
 strument privately executed, as distinguish- 
 ed from one publicly executed. Vicat. 
 
 IDIOCY. In medical jurisprudence. Aform 
 of insanity, resulting either from congenital 
 defect, or some obstacle to the development 
 of the faculties in infancy. 
 
 It is an imbecility or sterility of mind, 
 and not a perversion of the understanding. 
 Chit. Med. Jur. 327, note (s) 345; 1 Russ. 
 Crimes, 6; Bac. Abr. "Idiot". (A); Brooke, 
 Abr.; Co. Litt. 246, 247; 3 Mod. 44; 1 Vern. 
 16; 4 Coke, 126; 1 Bl. Comm. 302. 
 
 IDIOT. A person who has been without 
 understanding from his nativity, and whom 
 the law, therefore, presumes never likely to 
 attain any. Shelf. Lun. 2. 
 
 IDIOTA INQUIRENDO, WRIT DE. This 
 is the name of an old writ which directs the 
 sheriff to inquire whether a man be an idiot 
 or not. The inquisition is to be made by a 
 jury of twelve men. Pitzh. Nat. Brev. 232. 
 
 IDONEARE (Law Lat.) To make or prove 
 one's self innocent. Spelman. 
 
 IDONEUS (Lat.) Sufficient; fit; adequate. 
 He is said to be idoneus homo who hath 
 these three things, honesty, knowledge, and 
 civility; and if an officer, etc., be not idone- 
 us, he may be discharged. 8 Coke, 41. Tf 
 a clerk presented to a living is not persona 
 idonea, which includes ability in learning, 
 honesty of conversation, etc., the bishop may 
 refuse him. And to a quare impedit brought 
 thereon, "in literatura minus sufflciens is a 
 good plea, without setting forth the par- 
 ticular kind of learning." 5 Coke, 58; 6 
 Coke, 49b; 2 Inst. 631; 3 Lev. 311; 1 Show. 
 88; Wood. Inst. 32, 33. 
 
 So of things: Idonea quantita^. Calv. 
 
IDONIETAS 
 
 (453) 
 
 IGNORANTIA JURIS, ETC. 
 
 Lex. Idonea paries, a wall sufficient or able 
 to bear the weight. 
 
 In Civil Law. Rich; solvent; e. g., 
 
 idoneus tutor, idoneus deiitur. Calv. Lex. 
 
 IDONIETAS (Law Lat.) In old English 
 law. Ability or fitness (of a parson). Artie. 
 Cleri, c. 13. 
 
 IGNIS JUDICIUM (Lat.) In old English 
 law. The judicial trial by fire. 
 
 IGNITEGIUM (from ignin, fire, and togere, 
 to cover). In old English law. Th.e cur- 
 few, or evening bell. Cowell. See "Cur- 
 few." 
 
 IGNOMINY. Public disgrace; infamy; re- 
 proach; dishonor. Ignominy is the opposite 
 of esteem. 
 
 IGNORAMUS (Lat. we are ignorant or un- 
 informed). In practice. The word which is 
 written on a bill by a grand jury when they 
 find that there is not sufficient evidence to 
 authorize their finding it a true bill. Some- 
 times, instead of using this word, the grand 
 jury indorse on the bill, "Not found." 4 Bl. 
 Comm. 305. 
 
 IGNORANCE. The lack of knowledge. 
 
 Ignorance is distinguishable from "error" 
 or "mistake." Ignorance is want of knowl- 
 edge; error is the nonconformity or oppo- 
 sition of ideas to the truth. Considered as 
 a motive of actions, ignorance differs but 
 little from error. They are generally found 
 together, and what is said of one is said of 
 both. 1 Story, Eq. Jur. 108 et seq. See 4 
 Johns. Ch. (N. Y.) 567. 
 
 (1) Ignorance of fact is the want of knowl- 
 edge as to the fact in question. It would be 
 an error resulting from ignorance of fact, if 
 a man believed a certain woman to be un- 
 married and free, when, in fact, she was a 
 married woman, and were he to marry her 
 under that belief, he would not be criminally 
 responsible. 6 Allen (Mass.) 591. Igno- 
 rance of the laws of a foreign government, or 
 of another state, is ignorance of fact. 9 
 Pick. (Mass.) 112. See, for the difference 
 between ignorance of law and ignorance of 
 fact, 9 Pick. (Mass.) 112. 
 
 (2) Ignorance of law consists in the want 
 of knowledge of those laws which it is our 
 duty to understand, and which every man is 
 presumed to know. The law forbids any one 
 to marry a woman whose husband is living. 
 If any man, then, imagined he could marry 
 such a wolnan, he would be ignorant of the 
 law, and if he married her he would com- 
 mit an error as to a matter of law. How 
 far a party is bound to fulfill a promise to 
 pay, upon a supposed liability, and in ig- 
 norance of the law, see 12 Bast, 38; 2 Jac. 
 & W. 263; 5 Taunt. 143; 3 Barn. & C. 280; 
 1 Johns. Ch. (N. Y.) 512, 516; 6 Johns. Ch. 
 (N. Y.) 166; 9 Cow. (N. Y.) 674; 4 Mass. 
 342; 7 Mass. 452, 488; 9 Pick. (Mass.) 112; 
 1 Bin. (Pa.) 27. Ignorance of law is a pas- 
 sive state, and is distinguished from actual 
 mistake of law. 7 Ga. 70. 
 
 (3) Essential ignorance is ignorance in re- 
 lation to some essential circumstance, so in- 
 
 timately connected with the matter in ques- 
 tion, and which so influences the parties, 
 that it induces them to act in the business. 
 2 Kent, Comm. 367. 
 
 (4) Nonessential or accidental Ignorance 
 is that which has not of itself any necessary 
 connection with the business in question, 
 and which is not the true consideration for 
 entering into the contract; as, if a man 
 should marry a woman whom he believed to 
 be rich, and she proved to be poor, this fact 
 would not be essential, and the marriage 
 would therefore be good. 
 
 (5) Voluntary ignorance exists when a 
 party might, by taking reasonable pains, have 
 acquired the necessary knowledge. For ex- 
 ample, every man might acquire a knowl- 
 edge of the laws which have been promul- 
 gated. A neglect to become acquainted with 
 them is therefore voluntary ignorance. Doc- 
 tor & Stud. 1, 46; Plowd. 343. 
 
 (6) Involuntary ignorance is that which 
 does not proceed from choice, and which could 
 not have been avoided by any means at the 
 party's command, as of a law not yet pro- 
 mulgated. 
 
 IGNORANCE OF LAW. See "Ignorance." 
 
 IGNORANTIA. Ignorance ; want of knowl- 
 edge. Distinguished from mistake', error, 
 or wrong conception. Mackeld. Civ. Law, § 
 165. Divided in the civil law into ignoran- 
 tia facti, ignorance of fact, and ignorantia 
 juris, ignorance of law. Dig. 22. 6. Lord 
 Coke adopts this division, adding that the 
 former is twofold, — lectionis et linguae, ig- 
 norance of reading, and ignorance of lan- 
 guage. 2 Coke, 3b. 
 
 IGNORANTIAEORUM QUAE GUIS SCIRE 
 
 tenetur non excusat. Ignorance of those 
 things which every one is bound to know 
 excuses not. Hale, P. C. 42. See Tindal, 
 C. J., 10 Clark & P. 210; Broom, Leg. Max. 
 (3d London Ed.) 245; 4 Sharswood, Bl. 
 Comm. 27. 
 
 IGNORANTIA EXCUSATUR, NON JURIS 
 sed facti. Ignorance of fact may excuse, but 
 not- Ignorance of law. See "Ignorance." 
 
 IGNORANTIA FACTI EXCUSAT; IGNO- 
 rantla juris non excusat. Ignorance of facts 
 excuses; ignorance of law does not excuse. 
 1 Coke, 177; 4 Bouv. Inst, note 3828; Broom, 
 Leg. Max. (3d London Ed.) 231; 1 Fonbl. 
 Bq. (5th Ed.) 119, note. See "Ignorance." 
 
 IGNORANTIA JUDICIS EST CALAMITAS 
 innpcentis. The ignorance of the judge Is 
 the misfortune of the innocent. 2 Inst. 591. 
 
 IGNORANTIA JURIS NON EXCUSAT. Ig- 
 norance of the law is no excuse. 8 Wend. 
 (N. Y.) 267, 284; 18 Wend. (N. Y.) 586, 588; 
 6 Paige, Ch. (N. Y.) 189, 195; 1 Bdw. Ch. 
 (N. Y.) 467, 472. 
 
 IGNORANTIA JURIS QUOD QUISQUE 
 
 scire tenetur, neminem excusat. Ignorance 
 of law which every one is bound to know 
 excuses no one. 2 Coke, 3b; 1 Plowd. 343; 
 per Ld. Campbell, 9 Clark & F. 324; Broom, 
 
IGNORANTIA LEGIS, ETC. 
 
 (454) 
 
 IMAGINE 
 
 Leg. Max. (3d London Ed.) 232; 7 Car. & P. 
 456; 2 Kent, Comm. 491. 
 
 IGNORANTIA LEGIS NEMINEM EXCU- 
 sat. Ignorance of law excuses no one. See 
 "Ignorance;" 4 Bouv. Inst, note 3828; 1 
 Story, Eq. Jur. § 111. 
 
 IGNORATIS TERMINIS, IGNORATUR ET 
 ars. Terms being unknown, the art also is 
 unknown. Co. Litt, 2. 
 
 IGNORE. To be ignorant of. Webster. 
 To pass over as if not in existence. A grand 
 jury are said to ignore a bill when they do 
 not find the evidence such as to induce them 
 to make a presentment. Brande. 
 
 IGNOSCITUR El QUI SANGUINEM SU- 
 um qualiter redemptum voluit. The law holds 
 him excused who chose that his blood should 
 be redeemed on any terms. Dig. 48. 21. 1; 1 
 Sharswood, Bl. Comm. 131. 
 
 IKENILD STREET. One of the four Ro- 
 man roads in England. 
 
 ILL FAME. A technical expression, which 
 not only means bad character as generally 
 understood, but applies to every person, 
 whatever may be his conduct and character 
 in life, who visits bawdy houses, gaming 
 houses, and other places which are of ill 
 fame. 1 Rogers, City Hall Ree. (N. Y.) 67; 
 2 Hill (N. y.) 558; 17 Pick. (Mass.) 80; Ay- 
 lifCe, Par. 276; 1 Hagg. Bcc. 720, 767; 1 
 Hagg. Consist. 302; 2 Hagg. Consist. 24; 2 
 Greenl. Ev. § 44. See "House of 111 Fame." 
 
 ILLATA ET INVECTA. In Roman law. 
 Things brought into the house by the tenant 
 for his use, and which were liable to distress 
 (jus hypothecae) by the landlord. 
 
 ILLEGAL. Contrary to law; unlawful. 
 
 ILLEGALITY. Signifies that which is con- 
 trary to the principles of law, and denotes 
 a complete defect in the proceedings. 1 Abb. 
 Pr. (N. S.; N. Y.) 432. 
 
 ILLEGITIMATE. That which is contrary 
 to law. It is usually applied to children 
 born out of lawful wedlock. 
 
 If 
 
 ILLEVIABLE. A debt or duty that cannot 
 or ought not to be levied. NiJiil set upon a 
 debt is a mark for illeviable. 
 
 ILLICENCIATUS (Lat.) Without license. 
 
 ILLICIT. What is unlawful; what is for- 
 bidden by the law. 
 
 This word is frequently used in policies 
 of insurance, where the assured warrants 
 against illicit trade. By "illicit trade" is 
 understood that "which is made unlawful by 
 the laws of the country to which the object 
 is bound." The assured, having entered in- 
 to this warranty, is required to do no act 
 which will expose the vessel to be legally 
 9ondemned. 2 La. 337, 338. See "Insur- 
 ance;" "Warranty." 
 
 ILLICITE. Unlawfully. 
 
 This word has a technical meaning, and is 
 
 requisite in an indictment where the act 
 charged is unlawful; as, in the case of a 
 riot. 2 Hawk. P. C. 25, § 96. 
 
 ILLICITUM COLLEGIUM. An illegal cor- 
 poration. 
 
 ILLITERATE. Unacquainted with letters. 
 
 ILLOCABLE. Incapable of being hired 
 out. 
 
 ILLUD (Lat.) That. 
 
 ILLUD QUOD ALIAS LICITUM NON EST, 
 necessltas facit licitum, et necessltas inducit 
 privilegium quod jure privatur. That which 
 is not otherwise lawful necessity makes law- 
 ful, and necessity makes a privilege which 
 supersedes the law. 10 Coke, 61. 
 
 ILLUD QUOD ALTERI UNITUR EXTIN- 
 guitur, neque amplius per se vacare licet. 
 
 That which is united to another is extin- 
 guished, nor can it be any more independent. 
 
 ILLUSION. A species of mania, in which 
 the sensibility of the nervous system is al- 
 tered, excited, weakened, or perverted. 
 
 The patient is deceived by the false ap- 
 pearance of things, and his reason is not 
 sufBciently active and powerful to correct 
 the error; and this last particular is what 
 distinguishes the sane from the insane. Il- 
 lusions are not unfrequent in a state of 
 health, but reason corrects the errors, and 
 dissipates them. A square tower, seen from 
 a distance, may appear round, but, on ap- 
 proaching it, the error is corrected. A dis- 
 tant mountain may be taken for a cloud, 
 but as we approach we discover the truth. 
 To a person in the cabin of a vessel under 
 sail, the shore appears to move; but reflec- 
 tion and a closer examination soon destroy 
 this illusion. An insane individual Is mis- 
 taken on the qualities, connections, and 
 causes of the impressions he actually re- 
 ceives, and he forms wrong judgments as to 
 his internal and external sensations; and 
 his reason does not correct the error. 1 
 Beck, Med. Jur. 538; Bsquirol, torn. 1, p. 202; 
 Diet, des Sciences Medicales, "Hallucina- 
 tion." See "Hallucination." 
 
 ILLUSORY APPOINTMENT. Such an ap- 
 pointment or disposition of property under a 
 power as is merely nominal, and not sub- 
 stantial. 
 
 ILLUSORYAPPOINTMENTACT. St.Wm. 
 IV. c. 46, providing that no appointment 
 shall be impeached in equity on the ground 
 that it is unsubstantial, illusory, or nom- 
 inal. 
 
 IMAGINE. In English law. In cases of 
 treason, the law makes it a crime to imagine 
 the death of the king. In order to complete 
 the offense, there must, however, be an overt 
 act, — the terms "compassing" and "imagin- 
 ing" being synonymous. It has been justly 
 remarked that the words "to compass" and 
 "imagine" are too vague for a statute whose 
 penalty affects the life of a subject. Barr. 
 Obs. St. 243. See "Fiction." 
 
IMBASING 
 
 (4SS) 
 
 IMMUNITY 
 
 IMBASING. The act of reducing coin Be- 
 low the standard alloy. See 1 Hale, P. C. 
 
 102. 
 
 IMBECILITY. In medical jurisprudence. 
 A form of insanity consisting in mental de- 
 ficiency, either congenital, or resulting from 
 an obstacle to the development of the facul- 
 ties, supervening in infancy. 
 
 IMBEZZLE. Occasionally used for "em- 
 bezzle." 
 
 IMBRACERY. See "Embracery." 
 
 IMMATERIAL. Not material; not essen- 
 tial or important. 
 
 IMMATERIAL AVERMENT. In pleading. 
 A statement of unnecessary particulars in 
 connection with, and as descriptive of, what 
 is material. Gould, PI. c. 3, § 186. Such 
 averments must, however, be proved as laid, 
 it is said (Doug. 665), though not if they 
 may be struck out without striking out at 
 the same time the cause of action, and when 
 there is no variance. Gould, PI. c. 3, i 188. 
 See 1 Chit. PI. 282. 
 
 IMMATERIAL ISSUE. In pleading. An 
 issue taken upon some collateral matter, the 
 decision of which will not settle the question 
 In dispute between the parties in action. 
 For example, if in an action of debt on bond, 
 conditioned for the payment of ten dollars 
 and fifty cents at a certain day, the defend- 
 ant pleads the payment of ten dollars ac- 
 cording to the form of the condition, and the 
 plaintiff, instead of demurring, tenders issue 
 upon the payment, it is manifest that, 
 whether this issue be found for the plaintiff 
 or the defendant, it will remain equally un- 
 certain whether the plaintiff is entitled to 
 maintain his action, or not; for in an action 
 for the penalty of a bond, conditioned to pay 
 a certain sum, the only material question is 
 whether the exact sum were paid or not, and 
 the question of payment of a part is a ques- 
 tion quite beside the legal merits. Hob. 
 113; 5 Taunt. 386; Cro. Jac. 585; 2 Wm. 
 Saund. 319b. A repleader will be ordered 
 when an immaterial issue is reached, either 
 before or after verdict. 2 Wm. Saund. 319b, 
 note; 1 Rolle, Abr. 86; Cro. Jac. 585. See 
 "Repleader." 
 
 IMMEDIATE. At once. "Though in strict- 
 ness it excludes all mean times, it shall be 
 construed such convenient time as is rea- 
 sonably requisite for doing the thing." 2 
 Lev. 77. 
 
 It is stronger than the phrase "within a 
 reasonable time," and Implies prompt, vigor- 
 ous action, without any delay. L. R. 4 Q. 
 B. 469. 
 
 Not separated; without anything interven- 
 ing. 
 
 IMMEDIATE DESCENT. "A descent may 
 be said to be mediate or immediate in re- 
 gard to the mediate or immediate descent of 
 the estate or right; or it may be said to be 
 mediate or immediate in regard to the me- 
 dlateness or immedlateness of the pedigree 
 or degrees of consanguinity." 6 Pet. (U. S.) 
 112. 
 
 IMMEMORIAL. Time out of mind. 
 
 IMMEMORIAL POSSESSION. In Louisi- 
 ana. Possession of which no man living 
 has seen the beginning, and the existence of 
 which he has learned from his elders. Civ. 
 Code La. art. 762; 2 Mart. (La.) 214; 7 La. 
 46; 3 TouUier, Dr. Civ. p. 410; Poth. Cont. 
 note 244; 3 Bouv. Inst, note 3069, note. 
 
 IMMEMORIAL USAGE. A usage which 
 has existed from time immemorial. 
 
 IMMEUBLES. 
 ables. 
 
 In French law. Immov- 
 
 IMMIG RATION. The removing into one 
 place from another. It differs from "emigra- 
 tion," which is the moving from one place 
 into another. 
 
 IMMOBILIA SITUM SEQUUNTUR. Im- 
 movables follow the law of their locality. 2 
 Kent, Comm. 67. 
 
 I M M O B I L I S ( Lat. ) Immovable. ImmoUUa, 
 or res immoMles, immovable things, such as 
 lands and buildings. Mackeld. Civ. Law, p. 
 152. § 147; 2 Kent, Comm. 347. 
 
 IMMORAL. That which tends to subvert 
 morality or decency. Contracts, etc., tend- 
 ing to sexual Immorality furnish the most 
 common examples, but a contract in dero- 
 gation of religion was held "immoral" in 
 England (L. R. 2 Exch. 230), as was a con- 
 tract involving the removal of several thou- 
 sand bodies from a burying ground (1 Cab. & 
 El. 577). 
 
 IMMORAL CONSIDERATION. One con- 
 trary to good morals, and therefore invalid. 
 For example, an agreement in consideration 
 of future illicit cohabitation between the 
 parties (3 Burrows, 1568; 1 Esp. 13; 1 Bos. 
 & P. 340, 341), an agreement for the value 
 of libellous and immoral pictures (4 Esp. 
 97), or for printing a libel (2 Starkie, 107), 
 or for an immoral wager (Chit. Cont. 156), 
 cannot, therefore, be enforced. For what- 
 ever arises from an Immoral or illegal con- 
 sideration is void, quid turpi c.r cinixa pro- 
 mis-ium cut iiuii vulet. Inst. 3. 20. 24. 
 
 IMMORALITY. That which is contra ionos 
 mores. 
 
 In England, it is not punishable, in some 
 cases, at the common law, on account of 
 the ecclesiastical jurisdictions, e. g., adultery. 
 But except in cases belonging to the eccle- 
 siastical courts, the court of king's bench is 
 the custos morum, and may punish delicto 
 contra ionos mores. 3 Burrows, 1438; 1 W. 
 Bl. 94; 2 Strange, 788. 
 
 IMMOVABLES. In civil law. Property 
 which, from its nature, destination, or the 
 object to which it is applied, cannot move 
 itself or be removed. Poth. des Choses, § 1. 
 
 IMMUNITY. An exemption from serving 
 in an oflSce, or performing duties which the 
 law generally requires other citizens to per- 
 form. See Dig. lib. 50, tit. 6; 1 Chit. Crlm. 
 Law, 821; 4 Har. & McH. (Md.) 341. 
 
IMPANEL 
 
 (456) 
 
 IMPKDIMENTO 
 
 IMPANEL. 
 
 In Old English Practice. To write the 
 
 names of jurors on a panel, which is an 
 oblong piece of parchment attached to the 
 venire. This is done by the sheriff, or other 
 officer lawfully authorized. 
 
 ^In American Practice. The word is 
 
 used of a jury drawn for trial of a particular 
 cause by the clerk, as well as of the general 
 list of jurors returned by the sheriff. Gra- 
 ham, Prac. 275. See 1 Archb. Prac. 365; 3 
 Sharswood, Bl. Comm. 354. ' 
 
 IMPANELLING. Has nothing to do with 
 drawing, selecting, or swearing jurors, but 
 means simply making the list of those who 
 have been selected. 7 How. Pr. (N. Y.) 441. 
 
 IMPARCARE (Law Lat. from in and par- 
 ous, a pound or inclosed place). In old 
 English law. To Impound. Reg. Orig. 92b. 
 
 To shut up, or confine in prison. Inducti 
 sunt in carcerem et imparcati, they were car- 
 ried to prison and shut up. Bracton, fol. 
 124. 
 
 IMPARGAMENTUM. The right to im- 
 pound cattle. 
 
 IMPARL. To have delay. Literally, to 
 , "speak with" (the plaintiff). The original 
 object of an imparlance was to obtain time 
 for an amicable adjustment. 3 Bl. Comm. 
 299. But the actual object has long been 
 merely to obtain time to plead. 3 Chit. 
 Prac. 700. 
 
 IMPARLANCE (from Fr. porier, to speak). 
 In pleading and practice. Time given by 
 the court to either party to answer the plead- 
 ing of his opponent; as, either to plead, 
 reply, rejoin, etc. 
 
 It is said to be nothing else but the con- 
 tinuance of the cause till a further day. 
 Bac. Abr. "Pleas" (C). In this sense, im- 
 parlances are no longer allowed in English 
 practice. 3 Chit. Prac. 700. 
 
 Time to plead. This is the common sig- 
 nification of the word. 2 Wm. Saund. 1, 
 note 2; 2 Show. 310; Barnes, 346; Lawes, 
 Civ. PI. 93. In this sense, imparlances are 
 not recognized in American law, the com- 
 mon practice being for the defendant to en- 
 ter an appearance, when the cause stands 
 continued, until a fixed time has elapsed 
 within which he may file his plea. See 
 "Continuance." 
 
 General Imparlance. The entry of a 
 
 general prayer and allowance of time to 
 plead till the next term, without reserving 
 to the defendant the benefit of any exception, 
 so that after such an imparlance the de- 
 fendant cannot object to the jurisdiction of 
 the court, or plead any matter in abatement. 
 This kind of imparlance is always from one 
 term to another. 
 
 General Special Imparlance. Contains 
 
 a saving of all exceptions whatsoever, so that 
 the defendant after this may plead not only 
 in abatement, but he may also plead a plea 
 which affects the jurisdiction of the court, 
 as privilege. He cannot, however, plead a 
 tender, and that he was always ready to 
 pay, because by craving time he admits that 
 
 he is not ready, and so falsifies his plea. 
 Tidd, Prac. 418, 419. 
 
 Special Imparlance. Reserves to the 
 
 defendant all exception to the writ, bill, or 
 count; and therefore after it the defendant 
 may plead in abatement, though not to the 
 jurisdiction of the court. 
 
 See Comyn, Dig. "Abatement" (I 19, 20, 
 21), "Pleader" (D); 1 Chit. PI. 420; 1 Sel- 
 lon, Prac. 265; Bac. Abr. "Pleas" (C). 
 
 IMPARSONEE. One in possession of a 
 
 benefice. 
 
 IMPATRONIZATION. The act of a patron 
 in putting one into possession of a benefice. 
 
 IMPEACH. To accuse; to question the 
 suflSciency or genuineness of. 
 To proceed by impeachment (5. v.) 
 
 In the Law of Evidence. To call in 
 
 question the veracity of a witness, by means 
 of evidence adduced for that purpose. 
 
 IMPEACHMENT. 
 
 In English Law. The prosecution of a 
 
 peer or commoner by the house of commons 
 at the bar of the house of lords for treason, 
 high crimes, or misdemeanors. 6 Bnc. Laws 
 Eng. 318. 
 
 InAmerlcan Law. A proceeding against 
 
 a public civil officer, ordinarily prosecuted 
 by the more numerous body of the legisla- 
 ture at the bar of the other, for the removal 
 of such officer from office. 
 
 In Practice. An attack on the testi- 
 mony of a, witness by showing his lack of 
 veracity. It is to be distinguished from 
 contradiction, which is an attack on tes- 
 timony by showing that the facts lat issue 
 are other than as testified to. 
 
 IMPEACHMENT OF WASTE. A restraint 
 from committing waste, upon lands or tene- 
 ments; or a demand of compensation for 
 waste done by a tenant who has but a par- 
 ticular estate in the land granted, and there- 
 fore no right to commit waste. 
 
 All tenants for life or any less estate are 
 liable to be impeached for waste, unless 
 they hold without impeachment of waste; in 
 the latter case they may commit waste with- 
 out being questioned, or any demand for 
 compensation for the waste done. 11 Coke, 
 82. 
 
 IMPECHIARE, or IMPESCARE (LawLat.) 
 
 To impeach or accuse. Cowell. 
 
 IMPEDIENS (Law Lat.) In old practice. 
 One who hinders; an impedient. The de- 
 fendant or deforciant in a fine was some- 
 times so called. Cowell; Blount. 
 
 IMPEDIMENTO. In Spanish law. A pro- 
 hibition to contract marriag4, established by 
 law between certain persons. 
 
 The disabilities arising from this cause 
 are twofold, viz.: 
 
 (1) Impedimento dirimente, — such disa- 
 bilities as render the marriage, null, although 
 contracted with the usual legal solemnities. 
 
 Among these impediments, some are .ab- 
 solute, others relative. The former cannot 
 
IMPEDIMENTS 
 
 (457) 
 
 IMPLEAD 
 
 be cured, and render the marriage radically 
 null; others may be removed by previous 
 dispensation. 
 
 (2) Impedimento, impediente, or prohib- 
 itivo, — such disabilities as impede the con- 
 tracting of a marriage, but do not annul it 
 when contracted. 
 
 For the effects of these impediments, see 
 Escriche, Diet. Raz. "Impedimente Prohib- 
 itivo." 
 
 IMPEDIMENTS. Legal hindrances to mak- 
 ing contracts. Some of these impediments 
 are minority, want of reason, coverture, and 
 the like. See "Contract;" "Incapacity." 
 
 In Civil Law. Bars to marriage. 
 
 (1) Absolute impediments are those which 
 prevent the person subject to them from 
 marrying at all, without either the nullity of 
 marriage or its being punishable. 
 
 (2) Dirimant impediments are those which 
 render a marriage void; as, where one of 
 the contracting parties is already married 
 to another person. 
 
 (3) Prohibitive impediments are those 
 which do not render the marriage null, but 
 subject the parties to a punishment. 
 
 (4) Relative impediments are those which 
 regard only certain persons with regard to 
 each other; as, the marriage of a brother to 
 a sister. 
 
 IMPEDITOR (Law Lat.) In old English 
 law. A disturber in the action of guare im- 
 pedit. St. Marlb. c. 12. 
 
 IMPENSAE (Lat.) In civil law. Expense; 
 outlay. Divided into necessariae, for neces- 
 sity, utiles, for use, and ^oluptuariae, for 
 luxury. Dig. 79. 6. 14; Vocat. 
 
 IMPERATIVE. See "Mandatory." 
 
 IMPERATOR. Emperor. This was the ti- 
 tle of the Roman emperor and of the Eng- 
 lish kings before the Conquest. 1 Bl. Comm. 
 
 242. 
 
 IMPERFECT OBLIGATIONS. Thosewhich 
 are not, in view of the law, of binding force. 
 
 IMPERFECT TRUST. A trust which has 
 not been executed. See "Trust." 
 
 IMPERII MAJESTAS EST TUTELAE SA- 
 
 lus. The majesty of the empire is the safety 
 of its protection. Co. Litt. 64. 
 
 IMPERIUM. The right to command, which 
 includes the right to employ the force of 
 the state to enforce the laws. This is one 
 of the principal attributes of the power of 
 the executive. 1 Toullier, Dr. Civ. note 58. 
 
 IMPERITIA. Unskillfulness. 
 
 IMPERITIA CULPAE AENUMERATUR. 
 
 Ignorance or want of skill is considered a 
 fault, i. e., a negligence, for which one who 
 professes skill is responsible. Dig. 50. 17. 
 132; 1 Bouv. Inst, note 1004; 2 Kent, Comm. 
 588; 4 Ark. 523. 
 
 IMPERITIA EST MAXIMA MECHANE- 
 orum poena. Lack of skill is the greatest 
 punishment of artisans. 11 Coke, 54a. 
 
 IMPERSONALITAS NON CONCLUDIT 
 nee ligat. Impersonality neither concludes 
 norbinds. Co. Litt. 352. 
 
 IMPERTINENT (Lat. in, not, pcrtmens, 
 pertaining or relating to ) . 
 
 In Equity Pleading. A term applied 
 
 to matters introduced into a bill, answer, or 
 other proceeding in a suit which are not 
 properly before the court for decision at 
 that particular stage of the suit. 1 Sumn. 
 (U. S.) 506; 3 Story (U. S.) 13; 1 Paige, 
 Ch. (N. Y.) 555; 5 Blackf. (Ind.) 439. Im- 
 pertinent matter is not necessarily scandal- 
 ous; but all scandalous matter is imperti- 
 nent. 
 
 In Pleading at Law. A term applied 
 
 to matters not necessary to constitute the 
 cause of action or ground of defense. Cowp. 
 683; 5 Bast, 275; 2 Mass. 283. It consti- 
 tutes surplusage {q. v.) 
 
 In Practice. A term applied to evi- 
 dence of facts which do not belong to the 
 matter in question. That which is imma- 
 terial is, in general, impertinent, and that 
 which is material is not, in general, imperti- 
 nent. 1 McClel. & Y. 337. Impertinent mat- 
 ter in the interrogatories to witnesses or 
 their answers, in equity, will be expunged 
 after reference to a master at the cost of 
 the offending party. 2 Younge & C. 445. 
 
 IMPESCARE. See "Impechiare." 
 
 IMPETITIO VASTI. Impeachment of waste 
 (g. V.) 
 
 IMPETRARE (Lat.) In old English prac- 
 tice. To obtain by request, as a writ or 
 privilege. Bracton, fols. 57, 172b. This ap- 
 plication of the word seems to be derived 
 from the civil law. Calv. Lex. 
 
 IMPETRATION. The obtaining anything 
 by prayer or petition. In the ancient Eng- 
 lish statutes, it signifies a preobtaining of 
 church benefices in England from the church 
 of Rome, which belonged to the gift of the 
 king or other lay patrons. 
 
 IMPIER. Umpire. 
 
 IMPIERMENT (Law Pr.) Impairing or 
 prejudicing. St. 23 Hen. VIII. c. 9. Blount; 
 Kelham. 
 
 IMPIGNORATA (LawLat.) Pledged; giv- 
 en in pledge (pignori data) ; mortgaged. A 
 term applied in Bracton to land. Bracton, 
 fol. 20. 
 
 IMPIUS ET CRUDELIS JUDICANDUS 
 est qui libertati non favet. He Is to be judged 
 impious and cruel who does not favor lib- 
 erty. Co. Litt. 124. 
 
 IMPLACITARE (Law Lat. from in, into, 
 and placitum, a plea or suit). In old English 
 law and practice. To subject to an action, or 
 placitum; to implead or sue. 
 
 IMPLACITATUS (Law Lat.) Impleaded; 
 sued. 
 
 IMPLEAD. In practice. To sue or prose- 
 cute by due course of law. 9 Watts (Pa.) 
 47. 
 
IMPLEADED 
 
 (458) 
 
 IMPOTENS 
 
 IMPLEADED (IjOX. implacitatus). Sued' or 
 prosecuted. Still used in practice, particu- 
 larly in the titles of causes where there are 
 several defendants. 
 
 IMPLEMENTS (Lat. impJeo, to fill). Such 
 things as are used or employed for a trade, 
 or furniture of a house. 11 Mete. (Mass.) 
 82. 
 
 Whatever may supply wants. Particular- 
 ly applied to tools, utensils, vessels, instru- 
 ments of labor; as, the implements of trade 
 or of husbandry. Webster. Things of nec- 
 essary use in any trade or mystery, with- 
 out which the work cannot be performed. 
 Al^o, the furniture of a house, as all house- 
 hold goods and implements, such as tables, 
 presses, cupboards, etc. Termes de la Ley; 
 Jacob; Tomlins; Williams. 
 
 The term does not apply to animals. 5 
 Ark. 41; 11 Mete. (Mass.) 79. 
 
 IMPLICATA (Lat.) Small adventures for 
 which the freight contracted for is to be 
 received, although the cargo may be lost. 
 Targa, e. 34; Emerig. Mar. Loans, § 5. 
 
 IMPLICATION. An inference of something 
 not directly declared, but arising from what 
 is admitted or expressed. See terms defined 
 under "Implied." 
 
 IMPLIED. Arising by intendment or in- 
 ference, rather than by actual expression in 
 words. 
 
 IMPLIED ABROGATION. See "Abroga- 
 tion." 
 
 IMPLIED ASSUMPSIT. See "Assumpsit." 
 
 IMPLIED CONDITION. See "Condition." 
 
 IMPLIED CONSIDERATION. See "Con- 
 sideration." 
 
 IMPLIED CONTRACT. See "Contract." 
 
 IMPLIED COVENANT. See "Covenant." 
 
 IMPLIED MALICE. Malice presumed or 
 implied by law from the acts of a party and 
 the circumstances of a case; malice inferred 
 from any deliberate, cruel act committed by 
 one person against another, however sud- 
 den. Whart. Horn. 38; 
 
 IMPLIED TRUST. See "Trust." 
 
 IMPLIED USE. See "Resulting Use." 
 
 IMPLIED WARRANTY. See "Warranty." 
 
 IMPORTATION. In common law. The 
 act of bringing goods and merchandise into a 
 country from a foreign country. 5' Cranch 
 (U. S.) 368; 9 Cranch (U. S.) 104, 120; 2 
 Man. & G. 155, note (a). 
 
 IMPORTS. Goods or other property im- 
 ported or brought into a country from -for- 
 eign territory. Story, Const. § 949. See 
 Const. U. S. art. 1, § 10; 7 How. (U. S.) 
 477. 
 
 IMPORTUNITY. Urgent solicitation, with 
 troublesome frequency and pertinacity. 
 
 Generally applied to solicitation of a testa- 
 tor. Dane, Abr. c. 127, a. 14, s. 5, 6, 7; 2 
 Phillim. Bcc. 551, 552. 
 
 IMPOSITIONS. Imposts, taxes, or contri- 
 butions. 
 
 IMPOSSIBILITY. That which, in the con- 
 stitution and course of nature or the law, no 
 man can do or perform. 
 
 Impossibility is of the following several 
 sorts: 
 
 An act is physically impossible when it is 
 contrary to the course of nature. Such an 
 impossibility may be either absolute, i. e., 
 impossible in any case (e. g., for A. to reach 
 the moon), or relative (sometimes called 
 "impossibility in fact"), i. e., arising from 
 the circumstances of the case (e. g., for A. to 
 make a payment to B., he being a deceased 
 person). To the latter class belongs what 
 is sometimes called "practical impossibility," 
 which exists when the act can be done, but 
 only at an excessive or unreasonable cost. 
 An act is legally or juridically impossible 
 when a rule of law makes it impossible to 
 do it; e. g., for A. to make a valid will be- 
 fore his majority. This class of acts must 
 not be confounded with those which are pos- 
 sible, although forbidden by law, as to com- 
 mit a theft. An act is logically impossible 
 when it is contrary to the nature of the 
 transaction, as where A. gives property to 
 B. expressly for his own benefit, on condition 
 that he transfers it to C. Rapalje & L. 
 
 IMPOSSIBILIUM NULLA OBLIGATIO 
 est. There is no obligation to perform im- 
 possible things. Dig. 50. 18. 185; 1 Poth. 
 Obi. pt. 1, c. 1, sec. 4, § 3; 2 Story, Eq. Jur. 
 (6th Ed.) 763; Broom, Leg. Max. (3d Lon- 
 don Ed.) 228. 
 
 IMPOSSIBLE CONTRACTS. Such con- 
 tracts as cannot be performed, either be- 
 cause of the nature of the obligation under- 
 taken, or because of some supervening event 
 which renders the performance of the obli- 
 gation either physically or legally Impossi- 
 ble. 10 Am. & Eng. Bnc. Law, 176. 
 
 IMPOSTS. Taxes, duties, or impositions. 
 A duty on imported goods or merchandise. 
 Federalist, No. 30; Elliott, Deb. 289; Story, 
 Const. § 949. 
 
 IMPOTENCE. In medical jurisprudence. 
 The incapacity for copulation or propagat- 
 ing the species. It has also been used as 
 synonymous with "sterility." 
 
 The principal use of the term is as a 
 ground of divorce, and as so used it signifies 
 "the irremediable physical incapacity of one 
 of the parties to a marriage for any rea- 
 sonable sexual connection with the other." 
 1 Bish. Mar. & Div. § 766. 
 
 To avoid impotence, there must be capac- 
 ity for "coptila vera," copulation in its nat- 
 ural and ordinary meaning, and not merely 
 of incipient and imperfect coition. 33 Md. 
 405. 
 
 IMPOTENS (Lat.) Unable; impotent; 
 without power or ability. Impotens sui, hav- 
 
IMPOTENTIA 
 
 (459) 
 
 IMPRUIARE 
 
 ing no power of himself, unable to help him- 
 self. Bracton, fol. 15; Pleta, lib. 3, c. 7, § 1. 
 
 IMPOTENTIA (Lat.) Inability; impossi- 
 bility. 
 
 IMPOTENTIA EXCUSAT LEGEM. Impos- 
 sibility is an excuse in the law. Co. Litt. 
 29; Broom, Leg. Max. (3d London Ed.) 223. 
 
 IMPOTENTIAM. Impotence; impossibil- 
 ity. ' 
 
 IMPOTENTIAM, PROPERTY PROPTER. 
 
 See "Property Propter Impotentiam.'" 
 
 IMPOUND. To place in a pound goods or 
 cattle distrained or estray. 3 Bl. Cotnm. 12. 
 
 IMPRESCRIPTIBILITY. The state of be- 
 ing incapable of prescription. 
 
 A property which is held in trust is impre- 
 scriptible, that is, the trustee cannot acquire 
 a title to it -by prescription; nor can the 
 borrower of a thing get a right to it by any 
 lapse of time, unless he claims an adverse 
 right to it during the time required by law. 
 
 IMPRESCRIPTIBLE RIGHTS. Rights to 
 which no claim can be acquired by prescrip- 
 tion. 
 
 IMPRESSMENT. A power possessed by 
 the English crown of taking persons or 
 property to aid in the defense of the coun- 
 try, with or without the consent of the per- 
 sons concerned. It is usually exercised to 
 obtain hands for the queen's ships in time 
 of war, by taking seamen engaged in mer- 
 chant vessels (1 Bl. Comm. 420; Maude & P. 
 Shipp. 123), but in former times impress- 
 ment of merchant ships was also practiced. 
 The admiralty issues protections against Im- 
 pressment in certain cases, either under stat- 
 utes passed in favor of certain callings (e. g.. 
 persons employed in the Greenland fisher- 
 ies), or voluntarily. Rapalje & L. 
 
 IMPRIMATUR (Lat.) A license or allow- 
 ance to one to print. 
 
 At one time, before a book could be printed 
 in England, it was requisite that a permis- 
 sion should be obtained. That permission 
 was called an imprimatur. In some coun- 
 tries where the press is liable to censure, 
 an im.prim,atur is required. 
 
 IMPRIMERY. In some of the ancient Eng- 
 lish statutes, this word is used to signify a 
 printing office, the art of printing, a print or 
 impression. 
 
 IMPRIMIS (Lat. in the first place). It is 
 commonly used to denote the first clause in 
 an instrument, especially in wills, item being 
 used to denote the subsequent clausgs. This 
 is also its classical and literal meaning. 
 Ainsworth. See Fleta, lib. 2, c. 54. Impri- 
 mitus and imprimum also occur. Du Cange, 
 Prec. Ch. 430; Cas. temp. Talb. 110; 6 Madd. 
 31; Magna Cart. 9 Hen. III.; 2 Anc. Inst. 
 Eng. 506. 
 
 IMPRISONMENT. The restraint of a man's 
 liberty. 2 Bish. Grim. Law, § 669. 
 
 The restraint of a person contrary to his 
 will. 2 Inst. 589; 1 Baldw. (U. S.) 239, 600. 
 
 Actual confinement is not essential, a for- 
 cible detention on the street being essential. 
 3 Bl. Comm. 127. Nor is actual manual vio- 
 lence. 100 Mass. 79. 
 
 IMPRISTI. Followers or adherents. 
 
 I M PROBATION. In Scotch law. An act 
 by which falsehood and forgery are proved. 
 Brsk. Inst. 4. 119; Stair, Inst. 4. 20; Bell, 
 Diet. 
 
 IMPROPER FEUDS. Derivative feuds, 
 such, for instance, as those that were orig- 
 inally bartered and sold to the feudatory for 
 a price, or were held upon base or less hon- 
 orable services, or upon a rent in lieu of 
 military service, or were themselves alien- 
 able, without mutual license, or descended 
 indifferently to males or females, or other- 
 wise varied from the rules ordinarily per- 
 taining to feudal tenure. Wharton. 
 
 IMPROPRIATE RECTOR. A lay rector. 
 
 IMPROPRIATE TITHES. Tithes in the 
 hands of a lay owner. 
 
 TmprOPRIATION. In ecclesiastical law. 
 The act of employing the revenues of a 
 church living to one's own use. It is also a 
 parsonage or ecclesiastical living in the 
 hands of a layman, or which descends by 
 inheritance. Tech. Diet. 
 
 IMPROVE. To impeach as false or forged; 
 to cultivate. 4 Cow. (N. Y.) 190. 
 
 In Scotch Law. To improve a lease 
 
 means to grant a lease of unusual duration 
 to encourage a tenant, when the soil is ex- 
 hausted, etc. Bell, Diet.; Stair, Inst. p. 676, 
 § 23. 
 
 IMPROVEMENT. An amelioration in the 
 condition of real or personal property ef- 
 fected by the expenditure of labor or money 
 for the purpose of rendering it useful for 
 other purposes than those for which it was 
 originally used, or more useful for the same 
 purposes. 
 
 In Patent Law. An addition of some 
 
 useful thing to a machine, manufacture, or 
 composition of matter. 
 
 The patent law of July 4, 1836, authorizes 
 the granting of a patent for any new and 
 useful improvement on any art, machine, 
 manufacture, or composition of matter. 
 Section 6. It is often very difficult to say 
 what is a new and useful improvement, the 
 cases often approaching very near to each 
 other. In the present improved state of 
 machinery it is almost impracticable not to 
 employ the same elements of motion, and, in 
 some particulars, the same manner of opera- 
 tion, to produce any new effect. 1 Gall. (U. 
 S.) 478; 2 Gall. (U. S.) 51. See 4 Barn. & 
 Aid. 540; 2 Kent, Comm. 370. 
 
 IMPRUIARE (Law Lat.) In old records. 
 To improve land. Impruiamentum, the im- 
 provement so made of it. Chart. Abbat. MS. 
 fol. 50a; Cowell. 
 
IMPUBER 
 
 (460) 
 
 IN AMBIGUA, ETC. 
 
 IMPUBER (Lat) In civil law. One who 
 is more than seven years old, or out of 
 infancy, and who has not attained the age 
 of puherty; that Is, if a boy, till he has at- 
 tained his full age of fourteen years, and, 
 if a girl, her full age of twelve years. Do- 
 mat, Liv. Prel. tit. 2, § 2, note 8. 
 
 IMPUNITAS CONTINUUM AFFECTUM 
 tribuit delinquent!. Impunity offers a con- 
 tinual Uait to a delinquent. 4 Coke, 45. 
 
 IMPUNITAS SEMPER AD DETERIORA 
 Invitat. Impunity always invites to greater 
 crimes. 5 Coke, 109. 
 
 IMPUTATIO (Lat.) In civil law. Legal 
 liability. 
 
 IMPUTATION OF PAYMENT. In civil 
 law. The application of a payment made by 
 a debtor to his creditor. 
 
 The debtor may apply his payment as he 
 pleases, with the exception that in case of a 
 debt carrying interest it must be first ap- 
 plied to discharging the interest. 
 
 The creditor may apply the funds by in- 
 forming the debtor at the time of payment. 
 
 The law imputes in the neglect of the 
 parties to do so, and in favor of the debtor. 
 It directs that imputation which would have 
 been best for the debtor at the time of pay- 
 ment. Hence it applies the funds to obliga^ 
 tions most burdensome to the debtor; e. g., 
 to a mortgage rather than to a book account, 
 and to a debt which would render the debtor 
 insolvent if unpaid, rather than to any less 
 important one. If nothing else appears to 
 control it, the rule of priority prevails. 
 
 In Louisiana the preceding civil law rules' 
 are in force. The statutory enactment (Civ. 
 Code, art. 2159 et seq.) is a translation of 
 the Code Napoleon (articles 1253-1256), 
 slightly altered. See Poth. Obi. note 528, 
 Translation by Evans, and the notes. Pay- 
 ment is imputed first to the discharge of 
 interest. 1 Mart. (La.; N. S.) 571; 10 Rob. 
 (La.) 51; 5 La. Ann. 738. But if the inter- 
 est was not binding, being usurious, the 
 payment must go to the principal. 
 
 IMPUTED NEGLIGENCE. Negligence of 
 another than the injured person contributing 
 to the injury, and imputed to him by law. 
 As a general rule, contributory negligence 
 will be imputed to another than the negli- 
 gent person, so as to bar an action by such 
 other for injuries received by him (1) if 
 the negligent person was under the direction 
 and control of the injured person (38 Me. 
 443), or (2) where the injured person is not 
 sui juris, and the negligent person is re- 
 sponsible for him as parent or guardian. 
 75 Pa. St. 257. 
 
 IN (Law Fr. einti). A term used, from a 
 very early period, to express the nature of 
 a title, or the mode of acquiring an estate, 
 or the ground upon which a seisin is found- 
 ed. Thus, in Littleton, a tenant is said to 
 be "in by lease of his lessor" {eins per lease 
 son lessor), that is, his title or estate is de- 
 rived from the lease. Litt. § 82. So, par- 
 ceners are said to be "in by divers de- 
 
 scents." Id. § 313. So, the issue of a hus- 
 band is said to be "in by descent" (eins per 
 discent). Id. § 403. So, two sisters are said 
 to be "in by divers titles." Id. § 662. So, 
 in modern law, parties are constantly said 
 in the books to be "in by descent," "in by 
 purchase." A dowress is said to be "in, of 
 the seisin of her husband." 4 Kent, Comm. 
 69. A devisor is said to be "in, of his old 
 estate." 1 Powell, Devises (by Jarman) 
 621, note. So, a lessor. Shaw, C. J., 1 Mete. 
 (Mass.) 120. "If he has a freehold, he is 
 in as freeholder. If he has a chattel in- 
 terest, he is in as a termor. If he has no 
 title, he is in as a trespasser." Lord Mans- 
 field, 1 Burrows, 114. 
 
 IN ACTION. A thing is said to be in ac- 
 tion when it is not in possession, and for 
 its recovery, the possessor unwilling, an ac- 
 tion is necessary. 2 Sharswood, Bl. Comm. 
 396. See "Chose." 
 
 IN ADVERSUM (Law Lat.) Against an 
 adverse, unwilling, or resisting party. "A 
 decree not by consent, but in adversum." 3 
 Story (U. S.) 318. 
 
 IN AEDIFICIIS LAPIS MALE POSITUS 
 non est removendus. In buildings, a stone 
 badly placed is not to be removed. 11 Coke, 
 69. 
 
 IN AEQUA (or AEQUALI) MANU (Law 
 Lat.; Law Pr. en owele mayn). In equal 
 hand; held equally or indifferently between 
 two' parties. Where an instrument was de- 
 posited by the parties to it in the hands of 
 a third person, to keep on certain conditions, 
 it was said to be held in aeguali manu. Reg. 
 Orig. 28. 
 
 IN AEQUALI JURE (Lat.) In equal right. 
 
 IN AEQUALI JURE MELIOR EST CON- 
 dltlo possidentis. When the parties have 
 equal rights, the condition of the possessor 
 is the better. Mitf. Eq. PI. 215; Jeremy, 
 Eq. Jur. 285; 1 Madd. Ch. Prac. 170; Dig. 50. 
 17. 128; Broom, Leg. Max. (3d London Ed.) 
 634; Plowd. 296. 
 
 IN ALIENO SOLO (Lat.) In another's 
 land. 2 Steph. Comm. 20. 
 
 IN ALIO LOCO. See "Cepit in Alio Loco." 
 
 IN ALTA PRODITiONE NULLUS PO- 
 test esse accessorius sed principalis solum- 
 modo. In high treason, no one can be an 
 accessary, but only principal. 3 Inst. 138. 
 
 IN ALTERNATIVIS ELECTIO EST DE- 
 
 bitoris. In alternatives, the debtor has the 
 election. 
 
 IN AMBIGUA VOCE LEGIS EA POTiUS 
 accipienda est significatio, quae vitio caret; 
 praesertim cum etiam voluntas legis ex hoc 
 coiligi possit. When obscurities, ambiguities, 
 or faults of expression render the meaning 
 of an enactment doubtful, that interpreta- 
 tion shall be preferred which is most conso- 
 nant to equity, especially where it is in con- 
 formity with the general design of the legis- 
 
IN AMBIGUIS, ETC. 
 
 (461) 
 
 IN COMMODATO, ETC. 
 
 lature. Dig. 1. 3. 19; Broom, Leg. Max. (3d 
 London Ed.) 513; Bac. Max. reg. 3; 2 Inst. 
 173. 
 
 IN AMBIGUIS CASIBUS SEMPER PRAE- 
 sumitur pro rege. In doubtful cases, the pre- 
 sumption is always in favor of the king. 
 
 IN AMBIGUIS ORATIONIBUS MAXIME 
 sententia spectanda est ejus qui eas protu- 
 lisset. When there are ambiguous expres- 
 sions, the intention of him who uses them is 
 especially to be regarded. This maxim of 
 Roman law was confined to wills. Dig. 50. 
 17. 96; Broom, Leg. Max. (3d London Ed.) 
 506. 
 
 IN ANGLIA NON EST INTERREGNUM. 
 In England there is' no interregnum. Jenk. 
 Cent. Cas. 205; Broom, Leg. Max. 50. 
 
 IN APERTA LUCE (Law Lat.) In open 
 daylight; in the daytime. 9 Coke, 65b. 
 
 IN APICIBUS JURIS. Among the subtle- 
 ties or extreme doctrines of the law. 1 
 Kames, Eq. 190. See "Apex Juris." 
 
 IN ARBITRIUM JUDICIS. In the discre- 
 tion of the court. 
 
 IN ARCTA ET SALVA CUSTODIA (Law 
 Lat.) In close and safe custody. 3 Bl. 
 Comm. 415. 
 
 IN ARTICULO MORTIS. In the article 
 of death; at the point of death. 1 Johns. 
 (N. Y.) 159. 
 
 IN ATROCIORIBUS DELICTIS PUNITUR 
 affectus licet non sequatur effectus. In more 
 atrocious crimes, the intent is punished, 
 though the effect does not follow. 2 RoUe, 
 89. 
 
 IN AUTRE DROIT (Law Fr.) In another's 
 right; as representing another. An executor, 
 administrator, or trustee sues in autre droit. 
 
 IN BANCO (Law Lat.) In bank; in the 
 bench. See "Banc." 
 
 IN BLANK. Without restriction. Applied 
 to indorsements on promissory notes where 
 no indorsee is named. 
 
 IN BONIS (Lat.) Among the goods or 
 property; in actual possession. Inst. 4. 2. 2; 
 Tayl. Civ. Law, 479. 
 
 IN CAMERA. In private; in chambers. 
 
 IN CAPITA (Lat.) To or by the heads or 
 polls. Thus, where persons succeed to es- 
 tates in capita, they take each an equal 
 share. So, where a challenge to a jury Is 
 in capita, it is to the polls, or to the jurors 
 individually, as opposed to a challenge to 
 the array. 3 Sharswood, Bl. Comm. 361. 
 Per capita is also used. 
 
 IN CAPITE (Lat.) In chief. A tenant in 
 capite was one who held directly of the 
 crown (2 Sharswood, Bl. Comm. 60), wheth- 
 er by knight's service or socage. But tenure 
 in capite was of two kinds, — general and 
 special; the first from the king (caput 
 
 regni), the second from a lord (caput feudi). 
 A holding of an honor in king's lands, but 
 not immediately of him, was yet a holding 
 in capite. Kitch. Cts. 127; Dyer, 44; Fitzh. 
 Nat. Brev. 5. Abolished by 12 Car. II. c. 24. 
 
 IN CASU EXTREMAE NECESSITATIS 
 omnia sunt communia. In cases of extreme 
 necessity, everything is in common. Hale, 
 P. C. 54; Broom, Leg. Max. 1. 
 
 IN CASU PROVISO (Law Lat.) In a (or 
 the) case provided. In tali casu editum et 
 provisum, in such case made and provided. 
 Towns. PI. 164, 165. 
 
 IN CAUSA. In the cause, as distinguished 
 from in initialihus (q. v.) A term in Scotch 
 practice. 1 Brown, Ch. 252. 
 
 IN CHIEF. Principal; primary; directly 
 obtained. A term applied to the evidence 
 obtained from a witness upon his examina- 
 tion in court by the party producing him, 
 in relation to the matter in issue at the trial. 
 The examination so conducted for this pur- 
 pose. 
 
 Evidence or examination in chief is to be 
 distinguished from evidence given on cross- 
 examination, and from evidence given upon 
 the voir dire. 
 
 Evidence in chief should be confined to 
 such matters as the pleadings and the open- 
 ing warrant, and a departure from this rule 
 will be sometimes highly inconvenient, if 
 not fatal. Suppose, for example, that two 
 assaults have been committed, one in Jan- 
 uary and the other in February, and the 
 plaintiff prove his cause of action to have 
 been the assault in January; he cannot aban- 
 don that, and afterwards prove another com- 
 mitted in February, unless the pleadings 
 and openings extend to both. 1 Campb. 473. 
 See, also, 6 Car. & P. 73; 1 Moody & R. 282. 
 
 This matter, however, is one of practice; 
 and a great variety of rules exist in the 
 different states of the United States, the 
 leading object, however, being in all cases 
 the same, — to prevent the plaintiff from in- 
 troducing in evidence a different case from 
 the one which he had prepared the defend- 
 ant to expect from the pleadings. 
 
 IN CIVILIBUS MINISTERIUM EXCU- 
 sat, in criminalibus non item. In civil mat- 
 ters, agency or service excuses, but not so 
 in criminal matters. Lofft, 228; Tray. Lat. 
 Max. 243. 
 
 IN CLARIS NON EST LOCUS CONJEC- 
 
 turis. In things obvious there is no room for 
 conjecture. 
 
 IN COMMENDAM (Lat.) The state or 
 condition of a church living which is void 
 or vacant, and which is commended to the 
 care of some one. In Louisiana there is a 
 species of partnership called "partnership in 
 commendam." See "Commendam." 
 
 IN COMMODATO HAEC PACTIO, NE 
 dolus praestetur, rata non est. If in a con- 
 tract for a loan there is inserted a clause 
 that fraud should not be accounted of, such 
 clause Is void. Dig. 13. 1. 17. 
 
IN COMMUNI 
 
 (462) 
 
 IN DUBIO 
 
 IN COMMUNI (Law Lat.) In common. 
 Fleta, lib. 3, c. 4, § 2. 
 
 IN CONJUNCTIVIS, OPORTET UTRAM- 
 que partem esse veram. In conjunctives, 
 each part must be true. Wingate, Max. 13. 
 
 IN CONSIDERATIONE INDE (Law Lat.) 
 In consideration thereof. 3 Sails. 64, pi. 5. 
 
 IN CONSIDERATIONE LEGIS (Law Lat.) 
 In consideration or contemplation of law; in 
 abeyance. Dyer, 102b. 
 
 IN CONSIDERATIONE PRAEMISSORUM 
 (Law Lat.) In consideration of the prem- 
 ises. 1 Strange, 535. 
 
 IN CONSIMILI CASU CONSIMILE DE- 
 
 bet esse remedium. In similar cases, the 
 remedy should be similar. Hardr. 65. 
 
 IN CONSUETUDINIBUS NON DIUTUR- 
 nltas temporis sad soliditas rationis est con- 
 sideranda. In customs, not the length of 
 time, but the strength of the reason, should 
 be considered. Co. Litt. 141. 
 
 IN CONTINENTI (Lat.) Immediately; 
 without any interval or intermission. Calv. 
 Lex. Sometimes written as one word, in- 
 continenti. 
 
 IN CONTRACTIBUS, BENIGNA; IN TES- 
 tamentis, benignior; in restitutionibus, be- 
 nignissima Interpretatio facienda est. In con- 
 tracts, the interpretation or construction 
 should be liberal; in wills, more liberal; in 
 restitutions, most liberal. Co. Litt. 112a. 
 
 IN CONTRACTIBUS, REI VERITAS PO- 
 tius quam scriptura perspici debet. In con- 
 tracts, the truth of the matter ought to be 
 regarded, rather than the writing. Code, 4. 
 22. 1. 
 
 IN CONTRACTIBUS TACITE INSUNT 
 quae sunt moris et consuetudinis. In con- 
 tracts, those things which are of custom 
 and usage are tacitly implied.' Broom, Leg. 
 Max. (3d London Ed.) 759; 3 Bing. N. C. 
 814, 818; Story, Bills, § 143; 3 Kent, Comm. 
 260. 
 
 IN CONTRAHENDA VENDITIONE, AM- 
 blguum pactum contra vendltorem Injterpre- 
 tandum est. In negotiating a sale, an am- 
 biguous agreement is to be interpreted 
 against the seller. Dig. 50. 17. 172; Id. 18. 
 1. 21. 
 
 IN CONVENTIONIBUS CONTRAHENTI- 
 um voluntatem potius quam verba spectari 
 placult. In agreements, the rule is to re- 
 gard the intention of the contracting par- 
 ties, rather than their words. Dig. 50. 16. 
 219; 2 Kent, Comm. 555; Broom, Leg. Max. 
 (3d London Ed.) 491; 17 Johns. (N. Y.) 
 150. 
 
 IN CORPORE (Lat.) In body or sub- 
 stance; in a material thing or object. 8ive 
 eonsigtant in corpore, sive in jure, whether 
 they consist in or belong to a material ob- 
 ject, or a mere right. Bracton, fol. 37b. 
 
 IN CRASTINO (Law Lat.) On the mor- 
 row. In crastino Animarum, on the morrow 
 of All Souls. 1 Bl. Comm. 342. 
 
 IN CRIMINALIBUS, PROBATIONES DE- 
 bent esse luce clariores. In criminal cases, 
 the proofs ought to be clearer than the light. 
 3 Inst. 210. 
 
 IN CRIMINALIBUS SUFFICIT GENERA- 
 lls malltia intentlonis cum facto paris gra- 
 dus. In criminal cases, a general malice of 
 intention is sufficient, with an act of equal 
 or corresponding degree. Bac. Max. reg. 15; 
 Broom, Leg. Max. (3d London Ed.) 291. 
 
 IN CRIMINALIBUS VOLUNTAS REPU- 
 tabitur pro facto. In criminal acts, the will 
 will be taken for the deed. 3 Inst. 106. 
 
 IN CUJUS REI TESTIMONIUM. In testi- 
 mony whereof. 
 
 IN CUSTODIA LEGIS. In the custody of 
 the law. A term applied to property which 
 has been lawfully seized by or committed to 
 the care of an officer of a court for some 
 purpose incident to an action. 10 Pet. (U. 
 S.) 400. The property must be legally held 
 by the officer. Thus, where the clerk of 
 court received money paid in to keep a ten- 
 der good, without an order to that effect, it 
 was held that the money was not in custodia 
 legis. 49 Minn. 133. 
 
 IN DELICTO. In fault; culpable; guilty. 
 See "In Pari Delicto." 
 
 IN DISJUNCTIVIS SUFFICIT ALTERAM 
 partem esse veram. In disjunctives, it is 
 sufficient if either part be true. Wingate, 
 Max. 13; Co. Litt. 225a; 10 Coke, 50; Dig. 
 50. 17. 110. 
 
 IN DOMINICO (Law Lat.) In demesne. 
 In doniinico suo, ut de feodo, in his demesne 
 as of fee. Bracton, fols. 253b, 261b; Pleta, 
 lib. 2, c. 54, § 18; 1 Reeve, Hist. Bng. Law, 
 428; Co. Litt. 17a; 2 Bl. Comm. 105, 106. 
 
 IN DORSO. On the back. 2 Bl. Comm. 
 468; 2 Steph. Comm. 164. In dorso recordi, 
 on the back of the record. 5 Coke, 45. 
 Hence the English "indorse," "indorsement," 
 etc. 
 
 IN DUBIIS (Lat.) In doubtful cases; in 
 matters or cases of doubt. 
 
 IN DUBIIS BENIGNIORA PRAEFEREN- 
 da sunt. In doubtful matters, the more fa- 
 vorable are to be preferred. Dig. 50. 17. 56; 
 2 Kent, Comm. 557. 
 
 IN DUBIIS MAGIS DIGNUM EST ACCIP- 
 iendum. In doubtful cases, the more worthy 
 is to be taken. Branch, Princ. 
 
 IN DUBIIS NON PRAESUMITUR PRO 
 testamento. In doubtful cases, there is no 
 presumption in favor of the will. Cro. Car. 
 51. 
 
 IN DUBIO (Lat.) In doubt; in a state of 
 uncertainty; in a doubtful case. 
 
IN DUBIO HAEC, ETC. 
 
 (463) 
 
 IN FORMA PAUPERIS 
 
 IN DUBIO HAEC LEGIS CONSTRUCTIO 
 quam verba ostendunt. In a doubtful case, 
 that is tie construction of the law which the 
 words Indicate. 
 
 IN DUBIO PARS MELIOR EST SEQUEN- 
 da. In doubt, the gentler course is to be fol- 
 lowed. 
 
 IN DUBIO SEQUENDUM QUOD TUTIUS 
 est. In doubt, the safer course is to be 
 adopted. 
 
 IN DUPLO. In double. Damna in duplo, 
 double damages. Fleta, lib. 4, c. 10, § 1. 
 
 IN EADEM CAUSA (Lat.) In the same 
 state or condition. Calv. Lex. 
 
 IN EMULATIONEM VICINI (Lat.) In 
 envy or hatred of a neighbor. Where an act 
 is done, or action brought, solely to hurt or 
 distress another, it is said to be in emulatio- 
 nem vicini. 1 Kames, Eq. 56. 
 
 IN EO QUOD PLUS SIT SEMPER INEST 
 et minus. The less is always included in 
 the greater. Dig. 50. 17. 110. 
 
 IN EQUITY. According to equitable doc- 
 trines. 
 
 IN ESSE (Lat.) In being; in existence. 
 An event which may happen is in posse; 
 when it has happened, it is in esse. The term 
 is often used of liens or estates. A child in 
 its mother's womb is, for some purposes, re- 
 garded as in esse. 
 
 IN EXCAMBIO (Law Lat.) In exchange. 
 Formal words in old deeds of exchange. 
 
 IN EXITU (Lat.) In issue. De materia in 
 exitu, of the matter in issue. 12 Mod. 372. 
 
 IN EXPOSITIONE INSTRUMENTORUM, 
 mala grammatica, quod fieri potest, vitanda 
 est. In the construction of instruments, bad 
 grammar is to be avoided as much as pos- 
 sible. 6 Coke, 39; 2 Pars. Cont. 26. 
 
 IN EXTENSO. At length; in full. 
 
 IN EXTREMIS (Lat.) At the very end; 
 in the last moments. 
 
 IN FACIE CURIAE (Law Lat.) In the face 
 of the court. Dyer, 28. 
 
 IN FACIE ECCLESIAE (Lat.) In the face 
 or presence of the church. A marriage is 
 said to be made in facie ecclesiae when made 
 ,in a consecrated church or chapel, or by a 
 clerk in orders elsewhere; and one of these 
 two things is necessary to a marriage in 
 England in order to the wife's having dower, 
 unless there be a dispensation or license. 
 Bright, Husb. & Wife, pp. 370, 371, 391. But 
 see 6 & 7 Wm. IV. c. 85; 1 Vict. c. 22; 3 & 4 
 Vict. c. 72. It was anciently the practice 
 to marry at the church door, and there make 
 a verbal assignment of dower. These verbal 
 assignments, to prevent fraud, were neces- 
 sarily held valid only when made in facie et 
 ad ostium ecclesiae. See 2 Sharswood, Bl. 
 Comm. 103; Taylor. 
 
 IN FACIENDO (Lat.) 
 Eq. Jur. § 1308. 
 
 In doing. Story, 
 
 IN FACT. Actual; not based on legal fic- 
 tion or intendment of law. 
 
 IN FACTO. In fact; in deed. In facto dicit, 
 in fact says. 1 Salk. 22, pi. 1. 
 Depending on fact. Calv. Lex. 
 
 IN FACTO QUOD SE HABET AD BO- 
 num et malum magis de bono quam de male 
 lex intendit. In a deed which may be con- 
 sidered good or bad, the law looks more to 
 the good than to the bad. Co. Litt. 78. 
 
 IN (or EN) FAIT (Law Fr.) In fact; in 
 deed. Lord Coke distinguishes "matters of 
 record" from "matters in fait." Co. Litt. 
 380b. 
 
 IN FAVORABILIBUS MAGIS ATTENDI- 
 tur quod prodest quam quod nocet. In things 
 favored, what does good is more regarded 
 than what does harm. Bac. Max. reg. 12. 
 
 IN FAVOREM LIBERTATIS (Lat.) In 
 favor of liberty. 
 
 IN FAVOREM VITAE (Lat.) In favor of 
 life. 
 
 IN FAVOREM VITAE, LIBERTATIS, ET 
 innocentiae omnia praesumuntur. In favor 
 of life, liberty, and innocence, all things are 
 to be presumed. Lofft, 125. 
 
 IN FEODO (Law Lat.) In fee. Bracton, 
 fol. 207; Fleta, lib. 2, c. 64, § 15. Seisitus in 
 feodo, seised in fee. Fleta, lib. 3, c. 7, § 1. 
 
 IN FICTIONE JURIS SEMPER AEQUI- 
 tas existit. A legal fiction is always consist- 
 ent with equity. 11 Coke, 51; Broomj^ Leg. 
 Max. (3d London Ed.) 120, 123; 17 Johns. 
 (N. Y.) 348; 3 Bl. Comm. 43, 283. 
 
 IN FIERI (Lat.) In being done; in pro- 
 cess of completion. A thing is said to rest 
 in fieri when it is not yet complete; e. <}., 
 the records of a court were anciently held 
 to be in fieri, or incomplete, till they were 
 recorded on parchment, but now till the giv- 
 ing of judgment, after which they can be 
 amended only during the same term. 2 Barn. 
 .& Adol. 791; 3 Sharswood, Bl. Comm. 407. 
 It is also used of contracts. 
 
 IN FINE. At the end. 
 
 IN FORMA PAUPERIS (Lat.) In the char- 
 acter or form of a poor man. 
 
 When a person is so poor that he cannot 
 bear the charges of suing at law or in equity, 
 upon making oath that he is not worth five 
 pounds, and bringing a certificate from a 
 counsellor at law that he believes him to 
 have a just cause, he is permitted to sue in 
 forma pauperis, in the manner of a pauper; 
 that is, he is allowed to have original writs 
 and subpoenas gratis, and counsel assigned 
 him without fee. 3 Bl. Comm. 400. And in 
 most if not all the states, provision is made 
 by statute for suing in forma pauperis, the 
 manner of obtaining such privilege varying 
 with the statutes. See 3 Johns. Ch. (N. Y.) 
 
IN FORMA PRAEDICTA 
 
 (464) 
 
 IN INFINITUM 
 
 65; 1 Paige, Ch. (N. Y.) 588; 3 Paige, Ch. 
 (N. Y.) 273; 5 Paige, Ch. (N. Y.) 58; 2 
 Molloy, 475. 
 
 IN FORMA PRAEDICTA (Law Lat.) In 
 form aforesaid. Perk. c. 3, § 242. 
 
 IN FORO (Lat.) In a (or the) forum, 
 court, or tribunal. 
 
 IN FORO CONSCIENTIAE (Lat.) Before 
 the tribunal of conscience; conscientiously. 
 The term is applied to moral obligations, as 
 distinct from the obligations which the law 
 enforces. In the sale of property, for exam- 
 ple, the concealment of facts by the vendee 
 which may enhance the price is wrong in 
 foro conscientiae, but there is no legal obli- 
 gation on the part of the vendee to disclose 
 them, and the contract will be good if not 
 Vitiated by fraud. Poth. Vente, pt. 2, c. 2, 
 note 233; 2 Wheat. (U. S.) 185, note (c). 
 
 IN FORO CONTENTIOSO. In the forum 
 of contention or litigation. 
 
 IN FORO ECCLESIASTICO (LawLat.) In 
 
 an ecclesiastical forum; in the ecclesiastical 
 court. Fleta, lib. 2, c. 57, § 13. 
 
 IN FORO SAECULARI (Law Lat.) In a 
 secular forum or court. Fleta, lib. 2, c. 57, 
 I 14; 1 Bl. Comm. 20. 
 
 IN FRAUDEM CREDITORUM (Lat.) In 
 fraud of creditors; with intent to defraud 
 creditors. Inst. 1. 6. pr. 3. 
 
 IN FRAUDEM LEGIS (Lat.) In fraud of 
 the law ; contrary to law. Taylor. Using pro- 
 cess of law for a fraudulent purpose; and 
 if a person gets an affidavit of service of 
 declaration in ejectment, and thereupon gets 
 judgment, and turns the tenant out, when he 
 has no manner of title in a house, he is 
 liable as a felon, for he used the process of 
 law in fraudem legis. 1 Ld. Raym. 276; 
 Sid. 254. 
 
 An act done in fraudem legis cannot give 
 right of action in the courts of the country 
 whose laws are evaded. 1 Johns. (N. Y.) 
 433. 
 
 IN FULL LIFE. Neither physically nor 
 civilly dead. The term "life" alone has also 
 been taken in the same sense, as including 
 natural and civil life; e. g., a lease made to a 
 person "during life" is determined by a civil 
 death, but if "during natural life," it would 
 be otherwise. 2 Coke, 48. It is a translation 
 of the French phrase en plein vie. Law Fr. 
 Diet. 
 
 IN FUTURO (Lat.) In future; at a future 
 time; the opposite of in praesenti. 2 Bl. 
 Comm. 166, 175. 
 
 IN GENERALI PASSAGIO (LawLat.) In 
 the general passage; passagium being a jour- 
 ney, or, more properly, a voyage, and espe- 
 cially when used alone or with the adjectives 
 magnum, generate, etc., — the journey to Je- 
 rusalem of a crusader, especially of a king. 
 36 Hen. III.; 3 Prynne, Collect. 767; Du 
 Cange. 
 
 In generali passagio was an excuse for 
 
 nonappearance in a suit, which put offl the 
 hearing sine die; but in simplici peregrina- 
 tione or passagio — i. r., being absent on a 
 private pilgrimage to the Holy Land — put off 
 the hearing for a shorter time. Bracton, 338. 
 
 IN GENERALIBUS VERSATUR ERROR. 
 
 Error dwells in general expressions. 3 
 Sumn. (U. S.) 290. 
 
 IN GENERE (Lat.) In kind; of the same 
 kind. Th'ings which, when bailed, may be 
 restored in genere, as distinguished from 
 those which must be returned in specie, or 
 specifically, are called fungibles. Kaufm. 
 Mackeld. Civ. Law, § 148, note. 
 
 Heinec. Elem. Jur. Civ. § 619, defines ge- 
 nus as what the philosophers call "species," 
 viz., a kind. See Dig. 12. 1. 2. 1. 
 
 IN GENERE QUICUNQUE ALIQUID Dl- 
 cit, sive actor sive reus, necesse est ut pro- 
 bat. In general, whoever says anything, 
 whether plaintiff or defendant, must prove 
 it. Best, Ev. 294, § 252. 
 
 IN GREMIO LEGIS (Lat. in the bosom of 
 the law). This is a figurative expression, by 
 which is meant that the subject is under the 
 protection of the law; as, where land is in 
 abeyance. 
 
 IN GROSS. At large; not appurtenant or 
 appendant, but annexed to a man's person, 
 e. g., common granted to a man and his heirs 
 by deed is common in gross; or common in 
 gross may be claimed by prescriptive right. 
 2 Bl. Comm. 34. 
 
 IN HAG PARTE (Law Lat.) In this be- 
 half. Reg. Grig. 25. 
 
 IN HAEC VERBA. In these words; in the 
 same words. Dig. 34. 4. 30. 
 
 IN HAEREDES NON SOLENT TRANSI- 
 re actlones quae poenales ex maleficio sunt. 
 Penal actions arising from anything of a 
 criminal nature do not pass to heirs. 2 Inst. 
 442. 
 
 IN HIIS ENIM QUAE SUNT FAVORA- 
 bllia animae, quamvis sunt damnosa rebus, 
 fiat aliquando extentio statutl. In things that 
 are favorable to the spirit, though injurious 
 to property, an extension of the statute 
 should be sometimes made. 10 Coke, 101. 
 
 IN HIS QUAE DE JURE COMIVi'UNI OM- 
 njbus conceduntur, consuetude alicujus pa- 
 triae vel loci non est alleganda. In those 
 things which, by common right, are conced- 
 ed to all, the custom of a particular country 
 or place is not to be alleged. 11 Coke, 85. 
 
 IN HOC. In this. 
 
 IN IISDEM TERMINIS (Lat.) In the same 
 terms. 9 East, 487. 
 
 IN INDIVIDUO (Law Lat.) In the dis- 
 tinct, identical, or individual form; in spe- 
 cie. Story, Bailm. § 97. 
 
 In special; particular. 
 
 ININFINITUM. Infinitely, or indefinitely. 
 
IN INITIALIBUS 
 
 (465) 
 
 IN MERCY 
 
 IN INITIALIBUS (Lat.) In Scotch law. 
 In the preliminaries. Before a witness is ex- 
 amined as to the cause in which he is to 
 testify, he must deny hearing malice or ill 
 will, being instructed what to say, or hav- 
 ing been bribed, and these matters are called 
 . initialia testimonii, and the examination on 
 them is said to be in initialibus. It is sim- 
 ilar to our voir dire. Bell, Diet. "Initialia 
 Testimonii;" Ersk. Inst. p. 451; Halk. Tech. 
 Terms. 
 
 IN INITIO (Lat.) In or at the beginning. 
 In initio litis, at the beginning, or in the 
 , first stage of the suit. Bracton, fol. 400. 
 
 IN INTEGRUM (Lat.) The original con- 
 dition. See "Restitutio in Integram." Vi- 
 cat, "Integer." 
 
 IN INVITUM (Lat.) Unwillingly. Taylor. 
 Against an unwilling party, or one who has 
 not given his consent, by operation of law. 
 Wharton. 
 
 IN IPSIS FAUCIBUS (Lat.) In the very 
 throat or entrance. In ipsis faucihus of a 
 port, actually entering a port. 1 C. Rob. 
 Adm. 233. 234. 
 
 IN ITINERE (Lat.) On a journey; on the 
 way. Justices in itinere were justices in 
 eyre, who went on circuit through the king- 
 dom for the purpose of hearing causes. 3 
 Sharswood, Bl. Comm. 351; Spelman. In 
 itinere is used in the law of lien, and is 
 there equivalent to in transitu; that is, not 
 yet delivered to vendee. 
 
 IN JUDICIIS MINORI AETATI SUCCUR- 
 ritur. In judicial proceedings, infancy is 
 aided or favored. Jenk. Cent. Cas. 46. 
 
 IN JUDICIO (Lat.) In or by a judicial 
 proceeding; in court. In judicio non credi- 
 tur nisi juratis, in judicial proceedings no 
 one is believed unless on oath. Cro. Car. 64. 
 See Bracton, fols. 98b, 106, 287b, et passim. 
 
 In Civil Law. The proceedings before 
 
 a praetor, from the bringing the action till 
 issue joined, were said to be in jure; but 
 after issue joined, when the cause came be- 
 fore the judex, the proceedings were said to 
 be in judicio. See "Judex." 
 
 IN JUDICIO NON CREDITUR NISI JURA- 
 tis. In law, none is credited unless he is 
 sworn. All the facts must, when established 
 by witnesses, be under oath or atflrmation. 
 Cro. Car. 64. 
 
 IN JURE (Lat.) In law. 
 
 -In Civil Law. A phrase which denotes 
 
 the proceedings in a cause before the prae- 
 tor, up to the time when it is laid before a 
 judex; that is, till issue joined (litis con- 
 testatio) ; also the proceedings in causes 
 tried throughout by the praetor (cognitiones 
 extraordinariae) . Vicat, "Jus." 
 
 In Engfisli Law. In law; rightfully; 
 
 in right. In jure, non remota causa, sed 
 proxima, spectatur. Broom, Leg. Max. 104. 
 Incorporeal hereditaments, as right of juris- 
 diction, are said to exist only in jure, in 
 rlght,^ or contemplation of law, and to ad- 1 
 
 mit of only a symbolical delivery. See Halk. 
 Tech. Terms.^ 
 
 IN JURE ALTERIUS (Lat.) In another's 
 right. Hale, Anal. § 26. 
 
 IN JURE NON REIVIOTA CAUSA, SED 
 proxima, spectatur. In law, the proximate 
 and not the remote cause is to be looked to. 
 Bac. Max. reg. 1; Broom, Leg. Max. (3d Lon- 
 don Ed.) 202. See 2 Pars. Cont. 455. 
 
 IN JURE PROPRIO (Lat.) In one's own 
 right. Hale, Anal. § 26. 
 
 IN JUS VOCARE (Lat.) To call, cite, or 
 summon to court. Inst. 4. 16. 3; Calv. Lex. 
 In jus vocando, summoning to court. Dig. 2. 
 4; 3 Bl. Comm. 279. 
 
 IN KIND. Of the same sort. Return of 
 property is "in kind," as distinguished from 
 ill specie, where an article of fhe same kind, 
 but not the identical one obtained, Is re- 
 turned. 
 
 IN LAW. Implied by law; depending on 
 legal fiction or intendment. 
 
 IN LECTO IVIORTALI (Lat.) On the death 
 bed. Fleta, lib. 5, c. 28, § 12. 
 
 IN LIIVIINE (Lat.) In or at the beginning. 
 This phrase is frequently used; as, the 
 courts are anxious to check crimes in limine. 
 
 IN LITEM (Lat. ad litem). For a suit; to 
 the suit. Greenl. Ev. § 348. 
 
 IN LOCO (Lat.) In place; in lieu; in- 
 stead; in the place or stead. Towns. PI. 38. 
 
 IN LOCO PARENTIS (Lat.) In the place 
 of a parent; as, the master stands towards 
 his apprentice in loco par^.Ais. 
 
 IN MAJORE SUMMA CONTINETUR Mi- 
 nor. In the greater sum is contained the 
 less. 5 Coke, 115. 
 
 IN MAJOREM CAUTELAM (Lat.) For 
 greater security. 1 Strange, 105, arg. 
 
 IN MALEFICIIS VOLUNTAS SPECTA- 
 tur non exitus. In offenses, the intention is 
 regarded, not the event. Dig. 48. 8. 14; 
 Bac. Max. reg. 7; Broom, Leg. Max. (3d Lon- 
 don Ed.) 292. 
 
 IN MALEFICIO RATIHABITIO MANDA- 
 
 to comparetur. In a tort, ratification is 
 equivalent to a command. Dig. 50. 17. 152. 2. 
 
 IN MAXIMA POTENTIA MINIMA LICEN- 
 tia. In the greatest power there is the least 
 liberty. Hob. 159. 
 
 IN MEDIO (Law Lat.) Intermediate. A 
 term applied, in. Scotch practice, to a fund 
 held between parties litigant. 
 
 IN MERCIBUS ILLICITIS NON SITCOM- 
 
 mercium. No commerce should be in Illicit 
 goods. 3 Kent, Comm. 262, note. 
 
 IN MERCY. To be in mercy is to be at 
 the discretion of the king, lord, or judge ia 
 
IN MISERICORDIA 
 
 (466) 
 
 IN OMNIBUS, ETC. 
 
 punishing any offense not directly censured 
 by the law. Thus, to be in the grievous mer- 
 cy of the king is to be in hazard of a great 
 penalty. 11 Hen. VI. c. 6. So, where the 
 plaintiff failed in his suit, he and his pledges 
 were in the mercy of the lord, pro falso 
 clamore suo. This is retained nominally on 
 the record. 3 Sharswood, Bl. Comm. 376. 
 So the defendant is in mercy if he fail in his 
 defense. Id. 398. 
 
 IN MISERICORDIA (Lat. in mercy). The 
 entry on the record where a party was in 
 mercy was. Idea in misericordia, etc. The 
 phrase was used because the punishment in 
 such cases ought to be moderate. See Mag- 
 na Cart. c. 14; Bracton, lib. 4, tr. 5, c. 6. 
 Sometimes misericordia means the being 
 quit of all amercements. 
 
 IN MITIORI SENSU (Lat. in a milder ac- 
 ceptation ) . A phrase denoting a rule of con- 
 struction formerly adopted in slander suits, 
 the object of which was to construe phrases, 
 if possible, so that they would not support 
 an action. 
 
 IN MODUM ASSISAE (Law Lat.) In the 
 manner or form of an assize. Bracton, fol. 
 183b. In modum, juratae, in manner of a 
 jury. Id. fol. 181b. 
 
 IN MORA (Lat.) In delay. 
 
 IN MORTUA MANU (Lat. in a dead hand). 
 Property owned by religious societies was 
 said to be held in mortua manu, or in mort- 
 main, since religious men were civiliter mor- 
 tui. 1 Sharswood, Bl. Comm. 479; Taylor. 
 
 IN NOMINE DEI, AMEN (Lat.) In the 
 name of God, Amen. A solemn form of in- 
 troduction, anciently used in wills and many 
 other instruments, public and private. The 
 Proemia to the Institutes and Digests of 
 Justinian commence, In nomine Domini nostri 
 Jesic Christi, "In the name of our Lord Jesus 
 Christ." The confirmation of the Code and 
 several of the Novels are introduced with 
 the same form. Some old wills began, In 
 nomine Patris, et Filii, et Spirifus Sanoti, 
 Am,en. Blount, voc. "Will." Mercantile in- 
 struments, such as protests, policies, procu- 
 rations, etc., frequently began, In Dei nom- 
 ine, Amen. 
 
 IN NOVO CASU, NOVUM REMEDIUM 
 apponendum est. A new remedy is to be ap- 
 plied to a new case. 2 Inst. 3. 
 
 IN NUBIBUS(Lat.) In the clouds; in abey- 
 ance; in custody of law. In nubibus, in 
 mare, in terra vel in custodia legis, in the 
 air, earth, or sea, or in the custody of the 
 law. Taylor. In case of abeyance, the inher- 
 itance' is figuratively said to rest in nuUius, 
 or in gremio legis; e. g., in case of a grant 
 of life estate to A., and afterwards to heirs 
 of Richard, Richard in this case, being alive, 
 has no heirs until his death, and, conse- 
 quently, the inheritance is considered as 
 resting in nubibus, or in the clouds, till the 
 death of A., when the contingent remainder 
 
 either vests or is lost, and the inheritance 
 goes over. S6e 2 Sharswood, Bl. Comm. 107, 
 note; 1 Coke. 137. 
 
 IN NULLIUS BONIS (Lat.) Among the 
 goods or property of no person; belonging to 
 no person, as treasure trove and wreck were 
 anciently considered. Bracton, fol. 120. 
 
 IN NULLO EST ERRATUM (Lat.) In 
 pleading. A plea to errors assigned on pro- 
 ceedings in error, by which the defendant in 
 error afiirms there is no error in the record. 
 As to the effect of such plea, see 1 Vent. 
 252; 1 Strange, 684; 9 Mass. 532; 1 Burrows, 
 410; T. Raym. 231. It is a general rule that 
 the plea in nulla est erratum confesses the 
 fact assigned for error (Yelv. 57; Dane, Abr. 
 Index), but not a matter assigned contrary 
 to the record (7 Wend. [N. Y.] 55; Bac. Abr; 
 "Error" [G]). 
 
 IN OBSCURA VOLUNTATE MANUMIT- 
 tentis favendum est llbertatl. Where the ex- 
 pression of the will of one who seeks to 
 manumit a slave is ambiguous, liberty is to 
 be favored. Dig. 50. 17. 179. 
 
 IN OBSCURIS INSPICI SOLERE QUOD 
 verisimilius est, aut quod plerumque fieri 
 so let. Where there is obscurity, we usually 
 regard what is probable and what is gener- 
 ally done. Dig. 50. 17. 114. 
 
 IN OBSCURIS QUOD MINIMUM EST SE- 
 quimur. In obscure cases, we follow that 
 which is least so. Dig. 50. 17. 9. 
 
 IN ODIUM SPOLIATORIS (Lat.) In ha- 
 tred of a despoiler. All things are presumed 
 against a despoiler or wrongdoer, in odium 
 spoliatoris omnia praesumuntur. 
 
 IN OMNI ACTIONE UBI DUAE CONCUR- 
 runt districtiones, videlicit in rem et in 
 personam, ilia dlstrictlo tenenda est quae 
 magis timetur et magis ligat. In every ac- 
 tion where two distresses concur, as those 
 in rem and in personam, that is to be chosen 
 which is most dreaded, and which binds 
 most firmly. Bracton, 372; Pleta, lib. 6, c. 
 14, § 28. 
 
 IN OMNI RE NASCITUR RES QUAE IP- 
 sam rem exterminat. In everything, the 
 thing is born which destroys the thing itself. 
 2 Inst. 15. 
 
 IN OMNIBUS CONTRACTIBUS, SIVE 
 ncminatis, sive innon^inatis, permutatio con- 
 tinetur. In every contract, whether nomi- 
 nate or innominate, there is implied an ex- 
 change, *. e., a consideration. 
 
 IN OMNIBUS OBLIGATIONIBUS, IN QUI- 
 bus dies non ponitur, praesenti die debetur. 
 
 In all obligations, when no time is fixed for 
 the payment, the thing is due immediately. 
 Dig.- 50. 17. 14. 
 
 IN OMNIBUS POENALIBUS JUDICIIS.ET 
 aetati et imprudentiae succurritur. In all 
 
IN OMNIBUS, ETC. 
 
 (467) 
 
 IN PRAESENTI 
 
 trials for penal offenses, allowance Is made 
 for youth and lack of discretion. Dig. 50. 
 17. 108; Broom, Leg. Max. (3d London Ed.) 
 282. 
 
 IN OMNIBUS QUIDEM MAXIME TAMEN 
 in jure, aequitas spectanda sit. In all a^airs 
 indeed, but principally in those which con- 
 cern the administration of justice, equity 
 should be regarded. Dig. 50; 17. 90. 
 
 IN PACE DEI ET REGIS (Law Lat.) In 
 the peace of God and the king. Fleta, lib. 1, 
 c. 31, § 6. Formal words in old appeals of 
 murder. 
 
 IN PAIS. Out of court, or without judicial 
 process. Matter in pais is distinguished 
 from matter of record. 2 Bl. Comm. 294. 
 Conveyances were either by matter in pais 
 or deed which was an assurance transacted 
 between two or more private persons out of 
 court, or by matter of record which was an 
 assurance transacted in a court of record. 
 1 Steph. Comm. 466. Notice in pais is notice 
 given without the intervention of the court. 
 Story, Bailm. § 348. 
 
 Without writing, by act or conduct, as dis- 
 tinguished from "by deed." Thus, estoppels 
 are said to be by record, by deed, or by mat- 
 ter in pais. See "Estoppel." 
 
 IN PAPER. In English practice. A term 
 used of a record until its final enrollment on 
 the parchment record. 3 Sharswood, Bl. 
 Comm. 406; 10 Mod. 88; 2 Lilly, Abr. 322; 4 
 Geo. II. 
 
 IN PARI CAUSA (Lat.) In an equal cause. 
 It is a rule that when two persons have 
 equal rights in relation to a particular thing, 
 the party in iwssession is considered as hav- 
 ing the better right, in pari causa possessor 
 potior est. Dig. 50. 17. 128; 1 Bouv. Inst, 
 note 952. 
 
 IN PARI CAUSA POSSESSOR POTIOR 
 haberi debet. When two parties have equal 
 rights, the advantage is always in favor of 
 the possessor. Dig. 50. 17. 128. 
 
 IN PARI DELICTO. Equally in fault. A 
 term applied to parties who have participat- 
 ed equally in a transaction which is illegal, 
 fraudulent, or contrary to public policy, nei- 
 ther of whom can for that reason obtain re- 
 lief in equity from any injury suffered from 
 the other in respect to such transaction. 
 Thus, one making a conveyance of his prop- 
 erty to defraud creditors cannot set aside 
 the conveyance if his accomplice subse- 
 quently refuse to reconvey. 64 Fed. 195; 36 
 Mich. 229. But to put parties in pari delicto 
 there must be equality of turpitude. See 
 124 N. y: 160. 
 
 Though both parties assent to the illegal 
 transaction, if there is great disparity of in- 
 telligence or condition, they are not in pari 
 delicto. 59 111. 470; 82 Ky. 564; 9 Md. 348; 
 69 Mo. 115. 
 
 IN PARI DELICTO IVIELIOR EST CONDI- 
 tio possidentis. When the parties are equal- 
 ly in the wrong, the condition of the pos- 
 sessor is better. 11 Wheat. (U. S.) 258; 3 
 
 Cranch (U. S.) 244; Cowp. 341; Broom, Leg. 
 Max. 325; 4 Bouv. Inst, note 3724. 
 
 IN PARI DELICTO POTIOR EST CONDI- 
 tio defendentis (et possidentis). Where both 
 parties are equally in fault, the condition of 
 the defendant is preferable. 11 Mass. 376; 
 Broom, Leg. Max. (3d London Ed.) 265; 1 
 Story, Cont. (4th Ed.) 591, 592. 
 
 IN PATRIMONIO (Lat.) As a subject of 
 property. Fleta, lib. 3, c. 1, § 2. 
 
 IN PECTORE JUDICIS (Lat.) In the 
 breast of the judge. Latch, 180. A phrase 
 applied to a judgment. 
 
 IN PEJOREM PARTEM (Law Lat.) In 
 the worst part; on the worst side. Latch, 
 159, 160. 
 
 IN PENDENTI (Lat.) In suspension or 
 abeyance. Bracton, fols. 12, 19b. Written 
 in Fleta as one word, inpendenti and im- 
 peridenti. Fleta, lib. 3, c. 9, § 7. 
 
 IN PERPETUAM REI MEMORIAM (Lat.) 
 For the perpetual memory or remembrance 
 of a thing. Gilb. For. Rom. 118. 
 
 IN PERSONAM (Lat.) A remedy where 
 the proceedings are against the person, in 
 contradistinction to those which are against 
 specific things, or in rem. 1 Bouv. Inst, note 
 2646. 
 
 IN PERSONAM ACTIO EST, QUA CUM 
 eo agimus qui obligatus est nobis ad facien- 
 dum aliquid vel dandum. The action in per- 
 sonam is that by which we sue him who is 
 under obligation to us to do something or 
 give something. Dig. 44. 7. 25; Bracton, 
 101b. 
 
 IN PIOS USUS (Law Lat.) For pious 
 uses; for religious purposes. 2 Bl. Comm. 
 
 505. 
 
 IN PLENA VITA (Law Lat.) In full life. 
 Y. B. P. 18 Hen. VI. 2. 
 
 IN PLENO COMITATU (Law Lat.) In 
 full county court. 2 Bl. Comm. 36. 
 
 IN POENALIBUS CAUSIS BENIGNIUS 
 
 interpretandum est. In penal cases, the 
 more favorable interpretation is to be made. 
 Dig. 50. 17. 155. 2; Plowd. 86b; 2 Hale, P. C. 
 365. 
 
 IN POSSE (Lat.) In possibility; not in 
 actual existence; used in contradistinction 
 to in esse. 
 
 IN POTESTATE PARENTIS (Lat.) In 
 the power of a parent. Inst. 1. 8, pr.; Id. 1. 
 9; 2 Bl. Comm. 498. 
 
 IN PRAEMISSORUM FIDEM (Law Lat.) 
 In confirmation or attestation of the prem- 
 ises. A notarial phrase. 
 
 IN PRAEPARATORIIS AD JUDICIUM 
 favetur actori. In things preparatory before 
 trial, the plaintiff is favored. 2 Inst. 57. 
 
 IN PRAESENTI (Lat.) At the present 
 
IN PRAESENTIA, ETC. 
 
 (468) 
 
 IN REM 
 
 time; used in opposition to in futuro. A 
 marriage contracted in words de praesenti is 
 good; as, "I take Paul to be my husband" is 
 a good marriage ; but words de futuro would 
 not be sufficient, unless the ceremony was 
 followed by consummation. 1 Bouv. Inst, 
 note 258. 
 
 IN PRAESENTIA MAJORIS POTESTA- 
 tis, minor potestas cessat. In the presence 
 of the superior power, the minor power 
 ceases. Jenk. Cent. Cas. 214; Cas. temp. 
 Hardw. 28; 13 How. (U. S.) 142; 13 Q. B. 
 740. 
 
 IN PRENDER (Law Fr. in taking). A 
 term applied to such incorporeal heredita- 
 ments as a party entitled to them was to 
 take for himself; such as common. 2 Steph. 
 Comm. 23; 3 BI. Comm. 15. 
 
 IN PRETIO EMPTIONIS ET VENDITIO- 
 nis naturaliter licet contrahentibus se cir- 
 cumvenire. In the price of buying and sell- 
 ing, it is naturally allowed to the contract- 
 ing parties to overreach each other. 1 Story, 
 Cent. (4th Ed.) 606. 
 
 IN PRINCIPIO (L^t. at the beginning). 
 This ia frequently used in citations; as, Bac. 
 Abr. "Legacies in pr." 
 
 IN PROPRIA CAUSA NEMO JUDEX. No 
 one can be judge in his own cause. 12 Coke, 
 13. 
 
 IN PROPRIA PERSONA (Lat.) In his own 
 person; himself; as, the defendant appeared 
 in propria persona; the plaintiff argued the 
 cause in propria persona. 
 
 IN QUO QUIS DELINQUIT, IN EO DE 
 jure est puniendus. In whatever thing one 
 offends, in that he is rightfully to be pun- 
 ished. Co. Litt. 233b. 
 
 IN RE (Lat.) In the matter; as, in re A. 
 B., in the matter of A. B. 
 
 IN RE COMIVIUNt NEMINEIVI DOMINO- 
 rum jurefacere quicquam, invito altero, posse. 
 One co-proprietor can exercise no authority 
 over the common property against the will 
 of the other. Dig. 10. 3. 28. 
 
 IN RE COIVIIVIUNI POTIOR EST CONDI- 
 tio prohibentis. In a partnership, the condi- 
 tion of one who forbids is the more favora- 
 ble. 
 
 IN RE DUBIA BENIGNIOREIVI INTER- 
 pretationem sequi, non minus justius est, 
 quam tutius. In a doubtful case, to follow 
 the milder interpretation is not less the 
 more just than it is the safer course. Dig. 
 50. 17. 192. 2; Id. 28. 4. 3. 
 
 IN RE DUBIA MAGIS INFICIATO QUAIVI 
 affirmatio intelligenda. In a doubtful mat- 
 ter, the negative is to be understood, rather 
 than the affirmative. Godb. 37. 
 
 IN RE LUPANARI, TESTES LUPANA- 
 res admittentur. In a matter concerning a 
 brothel, prostitutes are admitted as witness- 
 es. 5 Barb. (N. Y.) 320, 324. 
 
 IN RE PARI.POTIOREIVI CAUSAIVl ESSE 
 prohibentis constat. Where a thing is owned 
 m common, it is agreed that the cause of him 
 prohibiting its use is the stronger. Dig. 10. 
 3. 28; 3 Kent, Comm. 45; Poth. Con. de Soc 
 note 90; 16 Johns. (N. Y.) 438, 491. 
 
 IN RE PROPRIA INIQUUM ADIVIODUM 
 est alicui licentiam tribuere cententiae. It 
 is extremely unjust that any one should be 
 judge in his own cause. 
 
 IN REBUS (Lat.) In things, cases, or 
 matters. 
 
 IN REBUS IVIANIFESTIS ERRAT QUI 
 auctoritates legum allegat, quia perspicua 
 vera non sunt probanda. He errs who al- 
 leges the authorities of law in things mani- 
 fest, because obvious truths need not be 
 proved. 5 Coke, 67. 
 
 IN REIVl (Lat.) A techn/ical term use*^to 
 designate proceedings or actions instituted 
 against the thing, in contradistinction to 
 personal actions, which are said to be in 
 personam. 
 
 Proceedings i»i rem include not only those 
 instituted to obtain decrees or judgments 
 against property as forfeited in the admi- 
 ralty or the English 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 
 marriage, divorce, bastardy, settlement, or 
 the like. 1 Greenl. Ev. §§ 525, 541. 
 
 Courts of admiralty enforce the perform- 
 ance of a contract, when its performance is 
 secured by a maritime lien or privilege, by 
 seizing into their custody the very subject of 
 hypothecation. In these suits, generally, the 
 parties are not personally bound, and the 
 proceedings are confined to the thing i» 
 specie. Brown, Civ. & Adm. Law, 98. And 
 see 2 Gall. C. C. (U. S.) 200; 3 Term R. 269, 
 270. 
 
 There are cases, however, where the rem- 
 edy is either in personam or in rem. Seamen, 
 for example, may proceed against the ship 
 or freight for their wages, and this is the 
 most expeditious mode; or they may pro- 
 ceed against the master or owners. 4 Bur- 
 rows, 1944; 2 Brown, Civ. & Adm. Law, 396. 
 See, generally, 1 Phil. Ev. 254; 1 Starkie, 
 Bv. 228; Dane, Abr.; Serg. Const. Law, 202, 
 203, 212; Pars. Mar. Law. 
 
 "Various definitions have been given of a 
 judgment in rem., but all are criticised as 
 either incomplete or comprehending too 
 much. It is generally said to be a judgment 
 declaratory of the status of some subject 
 matter, whether this be a person or a thing. 
 Thus, the probate of a will fixes the status 
 of the document as a will. The personal 
 rights and interests which follow are mere 
 incidental results of the status or character 
 of the paper, and do not appear on the face 
 of the judgment. So, a decree establishing 
 or dissolving a marriage is a judgment t« 
 rem, because it fixes the status of the per- 
 son. A judgment of forfeiture, by the proper 
 tribunal, against specific articles or goods, 
 
IN REM ACTIO, ETC. 
 
 (469) 
 
 IN TANTUM 
 
 for a violation of the revenue laws, Is a 
 judgment in rem. But it is objected that the 
 customary definition does not fit such a case, 
 because there is no fixing of the status of 
 anything, the whole effect being a seizure, 
 whatever the thing may be. In the forego- 
 ing instances, and many others, the judg- 
 ment is conclusive against all the world, 
 without reference to actual presence or par- 
 ticipation in the proceedings. If the expres- 
 sion 'strictly in rem' may be applied to any 
 class of cases, it should be confined to such 
 as these. A very able writer says: 'The dis- 
 tinguishing characteristic of judgments in 
 rem is that, wherever their obligation is rec- 
 ognized and enforced as against any person, 
 it is equally recognized and enforced as 
 against all persons. It seems to us that the 
 true definition of a judgment in rem is "an 
 adjudication" against some person or thing, 
 or "upon the status of some subject matter," 
 which, wherever and whenever binding upon 
 any person, is equally binding upon all per- 
 sons.' " 10 Mo. App. 78. 
 
 rN REM ACTIO EST PER QUAM REM 
 nostram quae ab alio possidetur potimus, et 
 semper adversus eum est qui rem possidet. 
 The action in rem is that by which we seek 
 our property which is possessed by another, 
 and is always against him who possesses the 
 property. Dig. 44. 7. 25; Bracton, 102. 
 
 IN RENDER. A thing in a manor is said 
 to lie in render when it must be rendered or 
 given by the tenant, e. g., rent; to lie in 
 prender, when it may be taken by the lord 
 or his officer when it chance. West, Symb. 
 pt. 2, "Fines," § 126. 
 
 IN REPUBLICA MAXIME CONSERVAN- 
 da sunt jura belli. In the state, the laws of 
 war are to be greatly preserved. 2 Inst. 58. 
 
 IN RERUM NATURA (Lat.) In the na- 
 ture or order of things; in existence. Not 
 in reruni natura is a dilatory plea, import- 
 ing that the plaintiff is a fictitious person. 
 
 In Civil Law. A broader term than in 
 
 rebus Immanis; e. (/., before quickening, an 
 infant is in rerum natura, but not in rebus 
 humanis; after quickening, he is in rebus 
 humanis, as well as iru rerum natura. Calv. 
 Lex. 
 
 IN RESTITUTIONEM, NON IN POENAM, 
 haeres succedit. The heir succeeds to the 
 restitution, not the, penalty. 2 Inst. 198. 
 
 IN RESTITUTiONIBUS BENIGNISSIMA 
 interpretatio facienda est. The most favor- 
 able construction is to be made in restitu- 
 tions. Co. Litt. 112. 
 
 IN SATISFACTIONIBUS NON PERMIT- 
 titur amplius fieri quam semel factum est. 
 In payments, more must not be received than 
 has been received once for all. 9 Coke, 53. 
 
 IN SCRINIO JUDICIS (Law Lat.) In the 
 writing case of the judge; among the judge's 
 papers. "That is a thing that rests in scri- 
 nio judicis, and does not appear in the body 
 of the decree." Hardr. 51. 
 
 IN SEPARALI (Law Lat.) In several; in 
 severalty. Pleta, lib. 2, c. 54, § 20. 
 
 IN SIGHT. See "Gambling Contract." 
 
 IN SIMILI MATERIA. Dealing with the 
 subject matter of the same kind. 
 
 IN SIMPLICI PEREGRINATIONE (Lat.) 
 In simple pilgrimage. Bracton, fol. 338. A 
 phrase in the old law of essoins. See "In 
 Generali Passagio." 
 
 IN SOLIDUM.or IN SOLIDO (Lat.) In civil 
 law. For the whole; as a whole. An obli- 
 gation or contract is said to be in solido or 
 in solidum when each is liable for the whole, 
 but so that a payment by one is payment for 
 all; i e., it is a joint and several contract. 
 
 Possession is said to be in solidum when It 
 is exclusive. "Duo in solidum precario liar 
 bere non magis possunt, quam duo in soli- 
 dum vi possidere aut clam; nam neque jus- 
 iae neque injustae possessiones duae concur- 
 rere possunt." Savigny, lib. 3, § 11. 
 
 IN SOLO (Lat.) In the soil or ground. 
 In solo alieno, in another's ground. In solo 
 propria, in one's own ground. 2 Steph. 
 Comm. 20. 
 
 IN SPECIE (Lat.) In the same form; e.g., 
 a ship is said to no longer exist in specie 
 when she no longer exists as a ship, but as a 
 mere congeries of planks. 8 Barn. & C. 561; 
 Arnould, Ins. 1012. To decree a thing in 
 specie is to decree the performance of that 
 thing specifically. 
 
 IN STATU QUO (Lat.) In the same situa- 
 tion as; in the same condition as. 
 
 IN STIPULATIONIBUS CUM QUAERI- 
 tur quid actum sit verba contra stipulatorem 
 interpretanda sunt. In contracts, when the 
 question is what was agreed upon, the terms 
 are to be interpreted against the party of- 
 fering them. Dig. 45. 1. 38. 18. Chancellor 
 Kent remarks that the true principle ap- 
 pears to be "to give the contract the sense 
 in which the person making the promise be- 
 lieves the other party to have accepted it, if 
 he in fact did so understand and accept It." 
 2 Kent, Comm. (7th Ed.) 721; 2 Day (Conn.) 
 281 ; 1 Duer, Ins. 159, 160 ; Broom, Leg. Max. 
 (3d London Ed.) 534; Dig. 45. 1. 38. § 18. 
 
 IN STIPULATIONIBUS ID TEMPUS 
 spectatur quo contraliimus. In agreements, 
 reference is had to the time at which they 
 were made. Dig. 50. 17. 144. 1. 
 
 IN STIRPES. According to roots or stocks; 
 by representation. See "Per Stirpes." 
 
 IN SUBSIDIUM. In aid. 
 
 IN SUO QUISQUE NEGOTIO HABETIOR 
 est quam in alieno. Every one is more dull 
 in his own business than in that of another. 
 Co. Litt. 377. 
 
 IN TANTUM (Law Lat.) In so much; so 
 much; so far; so greatly. Reg. Grig. 97, 
 106. 
 
IN TERMINIS TERMINANTIBUS (470) 
 
 INALIENABLE 
 
 IN TERMINIS TERMINANTIBUS (Law 
 Lat.) In terms of determination; exactly in 
 point. 11 Coke, 40b. In express or determi- 
 nate terms. 1 Leon. 93. 
 
 IN TERROREM (Lat.) By way of threat, 
 terror, or warning. For example, when a 
 legacy is given to a person upon condition 
 not to dispute the validity or the disposi- 
 tions in wills and testaments, the conditions 
 are not, in general, obligatory, but only in 
 terrorem. If, therefore, there exist proba- 
 MUs causa litigandi, the nonobservance of 
 the conditions will not be a forfeiture. 2 
 Vern. 90; 1 Hill, Abr. 253; 3 P. Wms. 344; 
 1 Atk. 404. 
 
 IN TERROREM POPULl (Lat. to the ter- 
 ror of the people). A technical phrase neces- 
 sary in indictments for riots. 4 Car. & P. 
 373. 
 
 Lord Holt has given a distinction between 
 those indictments in which the words in ter- 
 rorem populi are essential, and those where- 
 in they may be omitted. He says that, in 
 indictments for that species of riots which 
 consist in going about armed, etc., without 
 committing any act, the words are necessa- 
 ry, because the offense consists in terrifying 
 the public; but in those riots in which an 
 unlawful act is committed, the words are 
 useless. 11 Mod. 116; 10 Mass. 518. 
 
 IN TESTAMENTIS PLENIUS TESTA- 
 toris ihtentionem scrutamur. In testaments, 
 we should seek diligently the will of the tes- 
 tator. "But," says Dodderidge, C. J., "this 
 is to be observed with these two limitations: 
 (1) His intent ought to be agreeable to the 
 rules of the law; (2) his intent ought to 
 be collected out of the words of the will." 3 
 Bulst. 103; Broom, Leg. Max. (3d London 
 Ed.) 494. 
 
 IN TESTAMENTIS PLENIUS VOLUN- 
 tates testantium interpretantur. In testa- 
 ments, the will of the testator should be lib- 
 erally construed. That Is to say, a will shall 
 receive a more liberal construction than its 
 strict meaning, if alone considered, would 
 permit. Dig. 50. 17. 12; Cujac. ad loc, cited 
 3 Poth. Pand. 46; Broom, Leg. Max. (3d Lon- 
 don Ed.) 507. 
 
 IN TESTAMENTIS RATIO TACITA NON 
 debet considerari, sed verba solum spec- 
 tari debent; adeo per divinationem mentis 
 a verbis recedere durum est. In wills, an un- 
 expressed meaning ought not to be consid- 
 ered, but the words alone ought to be looked 
 to, so hard is it to recede from the words by 
 guessing at the intention. 
 
 IN TESTIMONIUM (Lat.) In witness 
 whereof. 
 
 IN TOTIDEM VERBIS (Lat.) In just so 
 many words; as, the legislature has declared 
 this to be a crime in totidem verMs. 
 
 IN TOTO (Lat.) In the whole; wholly; 
 completely; as, the award is void in toto. In 
 the whole, the part is contained, in toto et 
 pars continetur. Dig. 50. 17. 123. 
 
 IN TOTO ET PARS CONTINETUR. A 
 
 part is included in the whole. Dig. 50. 17. 
 113. 
 
 IN TRADITIONIBUS SCRIPTORUM 
 chartarum non quod dictum est, sed quod 
 gestum factum est, insplcitur. In the deliv- 
 ery of writings (deeds), not what is said, 
 but what is done, is to be considered, 9 
 Coke, 137. 
 
 IN TRAJECTU (Lat.) In the passage over; 
 on the voyage over. See Sir William Scott, 
 3 Rob. Adm. 141. 
 
 IN TRANSITU (Lat.) During the transit 
 or removal from one place to another. See 
 "Stoppage in Transitu." 
 
 IN VADIO (Lat.) In pledge; in gage. 
 
 IN VENTRE SA MERE (Law Pr.) In his 
 mother's womb. 
 
 IN VERAM QUANTITATAM FIDEJUS- 
 
 ser teneatur, nisi pro carta quantitate ac- 
 cessit. Let the surety be holden for the true 
 quantity, unless he agreed for a certain quan- 
 tity. 17 Mass. 597. 
 
 IN VERBIS NON VERBA SED RES ET 
 ratio quaerenda est. In words, not the words, 
 but the thing and the meaning is to be in- 
 quired after. Jenk. Cent. Cas. 132. 
 
 IN VINCULIS (Lat.) In chains; in actual 
 custody. Gilb. For. Rom. 97. 
 
 Applied also, figuratively, to the condition 
 of a person who is compelled" to submit to 
 terms which oppression and his necessities 
 impose on him. 1 Story, Eq. Jur. § 302. 
 
 IN VOCIBUS VIDENDUUM NON A QUO 
 sed ad quid sumatur. In discourses, it is to 
 be seen not from what, but to what, it is ad- 
 vanced. EUesmere, Postn. 62. 
 
 IN WITNESS WHEREOF. These words, 
 which, when conveyancing was in the Latin 
 language, were in cujus rei testimonium, are 
 the initial words of the concluding clause in 
 deeds: "In witness whereof the said par- 
 ties have hereunto set their hands," etc. 
 
 INADEQUATE PRICE. A term applied to 
 indicate the want of a sufficient considera- 
 tion for a thing sold, or such a price as, un- 
 der ordinary circumstances, would be con- 
 sidered insuflScient. 
 
 INADMISSIBLE. What cannot be re- 
 ceived in evidence. 
 
 INAEDIFICATIO(Lat.) Incivillav. Build- 
 ing on another's land with own materi- 
 als, or on own land with another's ma- 
 terials. Heinec. Elem. Jur. Civ. § 363. The 
 word is especially used of a private person's 
 building so as to encroach upon the public 
 land. Calv. Lex. The right of possession of 
 the materials yields to the right to what is 
 on the soil. Id. 
 
 INALIENABLE. A word denoting the con- 
 dition of those things the property in which 
 cannot be lawfully transferred from one per- 
 
INAUGURATION 
 
 (471) 
 
 INCLOSURE 
 
 son to another. Public highways and rivers 
 are inalienable. There are also many rights 
 which are inalienable, as the rights of lib- 
 erty or of speech. 
 
 INAUGURATION. A word applied by the 
 Romans to the ceremony of dedicating a tem- 
 ple, or raising a man to the priesthood, after 
 the augurs had been consulted. 
 
 It was afterwards applied to the installa- 
 tion of emperors, kings, and prelates, in im- 
 itation of the ceremonies of the Romans 
 when they entered the temple of the augurs. 
 It is applied in the United States to the in- 
 stallation of the chief magistrate of the re- 
 public, and of the governors of the several 
 states. 
 
 INBOARD. In marine policy. Not pro- 
 jecting over the rail of the vessel. 46 Jones 
 & S. (N. Y.) 175, 181, 85 N. Y. 473. 
 
 INBORN (Saxon). In old English law. A 
 security, pledge, or hypotheca, consisting of 
 the chattels of a person unable to obtain a 
 personal "borg," or surety. 
 
 INCAPACITY. The want of a quality le- 
 gally to do, give, transmit, or receive some- 
 thing. See "Capacity." 
 
 INCAUSTUM,orENCAUSTUM (Lat.) Ink; 
 a fluid anciently used for writing, of which, 
 as appears from the following passage of 
 Bracton, there were two kinds, — the black 
 (incaustum nignim), and the red (incaustum 
 rubrum), the former being also termed atra- 
 mentum (from ater, black), which is the Latin 
 word generally used for "ink." Item diversi- 
 tas incausti et atramenti, ut si una pars scri- 
 iatur incausto nitjro, et altera pars incausto 
 rubra, non atramento. Bracton, fol. 398b. 
 
 INCAUTE FACTUM PRO NON FACTO 
 habetur. A thing done unwarily or unad- 
 visedly will be taken as not done. Dig. 28. 
 4.1. 
 
 INCENDIARY ('Lat. inoeTidium, a kindling). 
 One who maliciously and willfully sets an- 
 other person's building on fire; one guilty of 
 the crime of arson. 
 
 INCENDIUM AERE ALIENO NON EXUIT 
 debitorum. A flre does not release a debtor 
 from his debt. Code, 4. 2. 11. 
 
 INCEPTION. The commencement ; the be- 
 ginning. In making a will, for example, the 
 writing is its inception. 3 Coke, 31b; Plowd. 
 343. 
 
 INCERTA PRO NULLIUS HABENTUR. 
 Things uncertain are held for nothing. Dav. 
 33. 
 
 INCERTA QUANTITAS VITIAT ACTUM. 
 
 An uncertain quantity vitiates the act. 1 
 RoUe, 465. 
 
 INCEST. The carnal copulation of a man 
 and a woman related to each other in any 
 of the degrees within which marriage is pro- 
 hibited by law. Bish. Mar. & Div. 214-221. 
 
 INCH (Lat. uncia). A measure of length, 
 containing one-twelfth part of a foot. 
 
 INCH OF CANDLE. A mode of sale at 
 one time in use among merchants. A notice 
 is first given upon the exchange, or other 
 public place, as to the time of sale. The 
 goods to be sold are divided into lots, print- 
 ed papers of which, and the conditions of 
 sale, are published. When the sale takes 
 place, a stnall piece of candle, about an inch 
 long, is kept burning, and the last bidder, 
 when the candle goes out, is entitled to the 
 lot or parcel for which he bids. Wharton. 
 
 INCHARTARE. To grant by a writing. 
 
 INCIDENT. This term is used both sub- 
 stantively and adjectively of a thing which, 
 either usually or naturally and inseparably, 
 depends upon, appertains to, or follows an- 
 other that is more worthy. For example, 
 rent is usually incident to a reversion (1 
 Hilllard, Real Prop. 243), while the right of 
 alienation is necessarily incident to a fee- 
 simple at common law, and cannot be sepa- 
 rated by a grant (1 Washb. Real Prop. 54). 
 So a court baron is inseparably incident to 
 a manor, in England. Kitch. Cts. 36; Co. 
 Litt. 151. All nominate contracts and all es- 
 tates known to common law have certain in- 
 cidents which they draw with them, and 
 which it is not necessary to reserve in 
 words. See Jacob. 
 
 INCIDERE (Lat. from in, into or upon, 
 and cadere, to fall). In the civil and old 
 English law. To fall into. Calv. Lex.; Bris- 
 sorius. 
 
 To fall out; to happen; to come to pass. 
 Calv. Lex. 
 
 To fall upon or under; to become subject 
 or liable to. Incidere in legem, to incur the 
 penalty of a law. Brissonius. Quibus mo- 
 dis guis incidat in assisam, in what ways a 
 person may become liable to an assize. Brac- 
 ton, fols. 170b, 171. Incidere in miserioordi- 
 am, to fall into mercy; to become liable to 
 amercement. Fleta, lib. 2, c. 44, § 2. 
 
 INCIPITUR (Lat.) In practice. Thisword, 
 which means "it is begun," signifies the 
 commencement of the entry on the roll on 
 signing judgment, etc. 
 
 INCIVILE EST, NISI TOTA LEGE PROS- 
 pecta, una allqua particula ejus proposita, 
 judicare, vel respondere. It is Improper, un- 
 less the whole law has been examined, to 
 give judgment or advice upon a view of a 
 single clause of it. Dig. 1. 3. 24. See Hob. 
 171-a. 
 
 INCIVILE EST NISI TOTA SENTENTIA 
 
 Inspecta, de aliqua parte judicare. It is Im- 
 proper to pass an opinion on any part of a 
 sentence without examining the whole. Hob. 
 171. 
 
 INCLAMARE (Law Lat. from in, to or up- 
 on, and clamare, to cry). In old European 
 'aw. To cry out for a person, as a crier does 
 in court; to summon to court. Inclamatus, 
 proclaimed; called or summoned by procla- 
 mation (in jus exactus). Edict. Theod. c. 
 145; Spelman. 
 
 INCLOSURE. In English law. Inclosure 
 
INCLUSIO UNIUS, ETC. 
 
 (472) 
 
 INCORRIGIBLE ROGUE 
 
 is the act of freeing land from rights of 
 common, commonable rights, and generally 
 all rights which obstruct cultivation and the 
 productive employment of labor on the soil. 
 Also, an artificial fence around one's es- 
 tate. 39 Vt. 34, 326; 36 Wis. 42. See "Close." 
 
 INCLUSIO UNIUS EST EXCLUSIO AL- 
 terius. The inclusion of one is the exclusion 
 of another. 11 Coke, 58. 
 
 INCLUSIVE. Comprehended in computa- 
 tion. In computing time, as ten days from 
 a particular time, one day is generally to be 
 included, and one excluded. See "Exclu- 
 sive." 
 
 INCOLA (Lat. from incolere, to inhabit, to 
 dwell in). In the civil law. An inhab- 
 itant; a dweller or resident. Properly, one 
 who has transferred his domicile to any 
 country. One who comes from abroad, and 
 takes up his abode in a place, with the view 
 of residing there. The peculiar sense of the 
 word seems to be derived from the compo- 
 nent particle "in," having the sense of "in- 
 to," or "entry." Domicile made a person an 
 incola, as birth made him civis (a citizen). 
 Code, 10. 40. 7; Phillim. Dom. 25, 26. 
 
 In Old English Law. A subject. St. 
 
 Marlb. pr.; Pleta, lib. 2, c. 47, § 13. 
 
 INCOLAS DOMICILIUM FACIT. Resi- 
 dence creates domicile. 1 Johns. Cas. (N. 
 Y.) 363, 366. See "Domicile." 
 
 INCOME. The gain which proceeds from 
 labor, business, or property of any kind. 44 
 Pa. St. 347. It is as large a word as can be 
 used to denote a person's receipts (21 Ch. 
 Div. 85), and means "gross income," not 
 "profits" (18 Wend. [N. Y.] 605), though the 
 contrary has been held (5 Mete. [Mass.] 
 596). 
 
 INCOMMODUM NON SOLVIT ARGUMEN- 
 tum. An inconvenience does not solve an 
 argument. 
 
 INCOMMUNICACION. In Spanish law. 
 The condition of a prisoner who is not per- 
 mitted to see or to speak with any person 
 visiting him during his confinement. A per- 
 son accused cannot be subjected to this treat- 
 ment unless it be expressly ordered by the 
 judge, for some grave offense, and it cannot 
 be continued for a longer period than is ab- 
 solutely necessary. Art. 7, Reglamento de 26 
 Setiembre, 1835. This precaution is resorted 
 to for the purpose of preventing the accused 
 from knowing beforehand the testimony of 
 the witnesses, or from attempting to corrupt 
 them, and concert such measures as will ef- 
 face the traces of his guilt. As soon, there- 
 fore, as the danger of his doing so has 
 ceased, the interdiction ceases likewise. Es- 
 criche. Die. Raz. 
 
 INCOMPATIBILITY. Incapability of exist- 
 ing or being exercised together. 
 
 Thus, the relations of landlord and of ten- 
 ant cannot exist in one man at the same 
 time in reference to the same land. Two of- 
 fices may be incompatible, either from their 
 nature or by statutory provisions. Const. U. 
 
 S. art 6, § 3, note 5; Id. art. 1, § 6, note 2; 
 4 Serg. & R. (Pa.) 277; 17 Serg. & R. (Pa.) 
 219. See "Office." 
 
 INCOMPETENCY. 
 
 Of Officers. Lack of ability or fitness 
 
 to discharge the required duty. 
 
 Judges and jurors are said to be incom- 
 petent from having an interest in the sub- 
 ject matter. A judge is also incompetent to 
 give judgment in a matter not within his 
 jurisdiction. See "Jurisdiction." 
 
 Of Witness. Want of legal capacity 
 
 to testify. 
 
 Of Evidence. Not proper to be re- 
 ceived. Incompetency relates to the evidence 
 itself, not to the fact to be proved thereby. 
 
 In French Law. Inability or insufl- 
 
 ciency of a judge to try a cause brought be- 
 fore him, proceeding from lack of jurisdic- 
 tion. 
 
 INCONCLUSIVE. Not finally decisive. In- 
 conclusive presumptions are capable of be- 
 ing overcome by opposing proof. 3 Bout. 
 Inst. 3063. 
 
 INCONTINENCE. Impudicity; indulgence 
 in unlawful carnal connection. 
 
 INCORPORALIA BELLO NON ADQUI- 
 runtur. Things incorporeal are not acquired 
 by war. 6 Maule & S. 104. 
 
 INCORPORATE. 
 
 (1) To form Into a corporation; to pro- 
 cure or to grant a corporate franchise. 
 
 (2) To include in any writing the con- 
 tents of any other writing, whether by ac- 
 tual insertion, or by mere reference to the 
 document to be incorporated. 
 
 INCORPORATION. The act of creating a 
 corporation. 
 
 In Civil Law. The union of one do- 
 main to another. 
 
 INCORPOREAL. Having no body or cor- 
 pus; not material or tangible; not an ob- 
 ject of sense, but existing solely in contem- 
 plation of law. 
 
 INCORPOREAL CHATTELS. A class of 
 incorporeal rights growing out of or inci- 
 dent to things personal; such as patent 
 rights and copyrights. 2 Steph. Comm. 72. 
 
 INCORPOREAL HEREDITAMENTS. Any- 
 thing, the subject of property, which is in- 
 heritable, and not tangible or visible. 2 
 Wooddeson, Lect. 4. A right Issuing out of 
 a thing corporate, whether real or personal, 
 or concerning or annexed to or exercisable 
 within the same. 2 Sharswood, Bl. Comm. 
 20; 1 Washb. Real Prop. 10. See "Heredita- 
 ments." 
 
 INCORPOREAL PROPERTY. Incivlllaw. 
 That which consists in legal right merely. 
 The same as choses in action at common law. 
 
 INCORRIGIBLE ROGUE. A species of 
 rogue or offender, described in St. 5 Geo. IV. 
 c. 83, and St. 1 & 2 Vict. c. 38. 4 Steph. 
 Comm. 309. 
 
INCREASE, COSTS OF 
 
 (473) 
 
 INDEFINITE NUMBER 
 
 INCREASE, COSTS OF. In English law. 
 It was formerly a practice with the jury to 
 award to the successful party in an action 
 the nominal sum of 40s. only for his costs; 
 and the court assessed by their own ofl5cer 
 the actual amount of the successful party's 
 costs; and the amount so assessed, over and 
 above the nominal sum awarded by the jury, 
 was thence called "costs of increase." Lush, 
 Com. Law Prac. 775. The practice has now 
 wholly ceased. Rapalje & L. 
 
 INCREMENTUM. In old Engli"h law. In- 
 crease; addition; accretion. Cowell. 
 
 INCROACHMENT. See "Encroachment." 
 
 INCULPATE. To impute blame or guilt; 
 to accuse. 
 
 INCULPATORY. In the law of evidence. 
 Going or tending to establish guilt; intended 
 to establish guilt; criminative. Burrill, Circ. 
 Ev. 251, 252. 
 
 INCUMBENT. In ecclesiastical law. A 
 clerk resident on his benefice with cure. He 
 is so called because he does, or ought to, 
 bend the whole of his studies to his duties. 
 In common parlance, it signifies one who is 
 in possession of an office; as, the present in- 
 cumbent 
 
 INCUMBRANCE. Any right to, or inter- 
 est in, land which may subsist in third per- 
 sons, to the diminution of the value of the 
 estate of the tenant, but consistently with 
 the passing of the fee. 5 Conn. 527; 2 
 Greenl. Bv. § 242. 
 
 INCUMBRANCER. One who holds an in- 
 cumbrance upon another's estate. 
 
 INCUR. To become subject to; to bring 
 on. 4 Denio (N. Y.) ' 103. "Men contract 
 debts; they incur liabilities." 15 How. Pr. 
 (N. Y.) 48. 
 
 INCURRERE, orlNCURRAMENTUM. To 
 become liable to or subject to. Cowell. 
 
 lf<U}E. Thereof; therefrom; therefore or 
 therewith. 
 
 INDE DATAE LEGES NE FORTIOR OM- 
 nia posset. Laws were made lest the strong- 
 er Ehonld have unlimited power. Dav. 36. 
 
 INDEBITATUS (Law Lat.) Indebted. Nun- 
 quam indeMtatus, never indebted. The title 
 of the plea substituted In England for nil 
 debet. 
 
 INDEBITATUS ASSUMPSIT (Lat.) In 
 pleading. That species of action of assump- 
 sit In which the plaintiff alleges, in his dec- 
 laration, first a debt, and then a promise in 
 consideration of the debt to pay the amount 
 to the plaintiff. 
 
 It is so called from the words in which 
 the promise is laid in the Latin form, trans- 
 lated in the modem form, "being indebted 
 he promised." The promise so laid Is gen- 
 erally an implied one only. See 1 Chit. PI. 
 334; Steph. PI. 318; 4 Robinson, Prac. 490 
 et seq.; Yelv. 21; 4 Coke, 92b. This form 
 
 of action is brought to recover in damages 
 the amount of the debt or demand. Upon 
 the trial the jury will, according to evidence, 
 give verdict for whole or part of that sum. 
 3 Sharswood, Bl. Comm. 155; Selw. N. P. 
 68, 69 et seq. 
 
 IndeMtatus assumpsit is in this distin- 
 guished from "debt" and "covenant," which 
 proceed directly for the debt, damages being 
 given only for the detention of the debt. 
 Debt lies on contracts by specialty as well 
 as by parol, while Indchitatus asxumpsit lies 
 only on parol contracts, whether express or 
 implied. Browne, Actions at Law, 317. 
 
 For the history of this form of action, see 
 3 Reeve, Hist. Com. Law; 2 Comyn, Cont. 
 549-556; 1 H. Bl. 550, 551; 3 Bl. Comm. 154; 
 Yelv. 70. See "Assumpsit." 
 
 INDEBITI SOLUTIO (Lat.) In civil law. 
 The payment to one of what is not due to 
 him. If the payment was made by mistake, 
 the civilians recovered it back by an action 
 called condictio indebiti. With us, such mon- 
 ey may be recovered by an action of as- 
 sumpsit. 
 
 INDEBITUM (Lat.) Incivillaw. Not due 
 or owing. Dig. 12. 6; Calv. Lex. 
 
 INDEBTEDNESS. The state of being in 
 debt, without regard to the ability or inabil- 
 ity of the party to pay the same. See 1 
 Story, Bq. Jur. 343; 2 Hill, Abr. 421. 
 
 But in order to create an indebtedness, 
 there must be an actual liability at the time, 
 either to pay then or at a future time. If, 
 for example, a person were to enter and be- 
 come surety for another, who enters into a 
 rule of reference, he does not thereby be- 
 come a debtor to the opposite party until the 
 rendition of the judgment on the award. 1 
 Mass. 134. See "Debt." 
 
 INDECENCY. An act tending to obscenity. 
 "The term [indecent] is said to signify more 
 than 'indelicate,' and less than 'immodest,' — 
 to mean something unfit for the eye or ear." 
 12 Fed. 671. 
 
 INDECENT EXPOSURE. Willful or neg- 
 ligent exposure of the person, or the private 
 parts thereof, in a public place. 2 Clark & 
 Marshall, Crimes, 1130; 2 Gray (Mass.) 72; 32 
 Mo. 560; 56 Ind. 328. 
 
 To constitute an offense at common law, 
 the offense must be in such a place that a 
 number of persons may be offended thereby. 
 11 Cox, C. C. 659; 18 Vt. 574. 
 
 INDECIMABLE. Not tithable. 
 
 INDEFEASIBLE. That which cannot be 
 defeated or undone. This epithet is usually 
 applied to an estate or right which cannot be 
 defeated. 
 
 INDEFENSUS (Lat.) One sued or Im- 
 pleaded Who refuses or has nothing to an- 
 swer. 
 
 INDEFINITE FAILURE OF ISSUE. See 
 
 "Failure of Issue." 
 
 INDEFINITE NUMBER. Anumberwhlch 
 
 may be increased or diminished at pleasure. 
 
 When a corporation is composed of an in- 
 
INDEFINITE PAYMENT 
 
 (474) 
 
 INDIAN TRIBE 
 
 definite number of persons, any number of 
 them consisting of a majority of those pres- 
 ent may do any act, unless it be otherwise 
 regulated by the charter or by-laws. 
 
 INDEFINITE PAYMENT. That which a 
 debtor who owes several debts to a creditor 
 makes without making an appropriation. In 
 that case the creditor has a right to make 
 such appropriation. 
 
 INDEFINITUM AEQUIPOLLET UNIVER- 
 sali. The undefined is equivalent to the 
 whole. 1 "Vent. 368. 
 
 INDEFINITUM SUPPLET LOCUM UNI- 
 versalis. The undefined supplies the place 
 of the whole. 4 Coke, 77. 
 
 INDEMNIFY. To save harmless; to se- 
 cure against loss or damage; to make good; 
 to put one in the situation he was in before 
 sustaining a loss. 
 
 INDEMNIS (Lat.) Without loss, damage, 
 or harm. 
 
 INDEMNITEE. The person who is pro- 
 tected by a contract of indemnity. 
 
 INDEMNITOR. The person who, by a con- 
 tract of indemnity, agrees to protect an- 
 other. 
 
 INDEMNITY. That which is given to a 
 person to prevent his suffering damage. 2 
 McCord (S. C.) 279. 
 
 Security to save harmless. A contract 
 whereby one party agrees to secure another 
 against an anticipated loss or damage. 
 
 For distinction between "indemnity" and 
 "guaranty," see "Guaranty." 
 
 INDEMPNIS (Law Lat.) The old form of 
 writing indemnis. Towns. PI. 19. So, in- 
 dempnificatus for indemniflcatus. 
 
 INDENIZATION. The act of making a 
 denizen. 
 
 INDENT (Lat. in, and dens, tooth). To cut 
 in the shape of teeth. 
 
 Deeds of indenture were anciently written 
 on the same parchment or paper as many 
 times as there were parties to the instru- 
 ment, the word cMrographum being written 
 between, and then the several copies cut 
 apart in a zigzag or notched line (whence 
 the name), part of the word cMrographum 
 being on either side of it, and each party 
 kept a copy. The practice now is to cut the 
 top or side of the deed in a waving or notch- 
 ed line. 2 Sharswood, Bl. Comm. 295. 
 
 To bind by indentures; to apprentice; as, 
 to indent a young man to a shoemaker. Web- 
 ster. 
 
 In American Law. An indented cer- 
 tificate issued by the government of the 
 United States at the close of the Revolution, 
 for the principal or interest of the public 
 debt. Ramsay; Hamilton; Webster; Eliot, 
 Funding System, 35; 5 McLean (U. S.) 178; 
 Act April 30, 1790, Sess. 2, c. 9, § 14; Act 
 March 3, 1825, Sess. 2, c. 65, § 17. The word 
 is no longer in use in this sense. 
 
 INDENTURE. A formal written instru- 
 ment made between two or more persons 
 in different interests, as opposed to a deed 
 poll, which is one made by a single person, 
 or by several having similar interests. 
 
 Its name comes from a practice of indent- 
 ing or scolloping such an instrument on the 
 top or side in a waving line. This is not 
 necessary in England at the present day, by 
 St. 8 & 9 Vict. c. 106, § 5, but was in Lord 
 Coke's time, when no words of indenture 
 would supply its place. 5 Coke, 20. In this 
 country it is a mere formal act, not neces- 
 sary to the deed's being an indenture. See 
 Bac. Abr. "Leases" (E 2) ; Comyn, Dig. 
 "Fait" (C, and note d) ; Litt. § 370; Co. Litt. 
 143b, 229a; Cruise, Dig. tit. 32, c. 1, § 24; 2 
 Sharswood, Bl. Comm. 294; 2 Washb. Real 
 Prop. 587 et seq.; 1 Steph. Comm. 447. The 
 ancient practice was to deliver as many cop- 
 ies of an instrument as there were parties 
 to it. And as early as King John it became 
 customary to write the copies on the same 
 parchment, with the word chirographum, or 
 some other word, written between them, and 
 then to cut them apart through such word, 
 leaving part of each letter on either side 
 the line, which was at first straight, after- 
 wards indented or notched. 1 Reeve, Hist. 
 Eng. Law, 89; Du Cange; 2 Washb. Real 
 Prop. 587 et seq. See "Indent." 
 
 INDENTURE OF APPRENTICESHIP. A 
 contract in two parts, by which a person is 
 bound to serve another in his trade, art, or 
 occupation, on condition of being instructed 
 in it. See "Apprentice." 
 
 INDEPENDENT CONTRACT. One in 
 which the mutual acts or promises have no 
 relation to each other, either as equivalents 
 or considerations. Civ. Code La. art. 1762; 
 1 Bouv. Inst, note 699. 
 
 INDEPENDENTCOVENANTS. Covenants 
 in an instrument which are independent of 
 each other, or where the performance of one 
 does not depend on the performance of the 
 other. 1 Seld. 247. 
 
 INDEPENDENTER SE HABET ASSECU- 
 ratio a vlagglo navis. The voyage insured 
 is an independent or distinct thing from the 
 voyage of the ship. 3 Kent, Comm. 318, 
 note. 
 
 INDETERMINATE. That which is uncer- 
 tain, or not particularly designated; as, if 
 I sell you one hundred bushels of wheat, 
 without stating what wheat. 1 Bouv. Inst, 
 note 950. 
 
 INDEX ANIMI SERMO. Speech is the in- 
 dex of the mind. 
 
 INDIAN TRIBE. A separate and distinct 
 community or body of the aboriginal Indian 
 race of men found in the United States. 
 See 5 Pet. (U. S.) ,1, 16, 17; 20 Johns. (N. 
 Y.) 193; 3 Kent, Comm. 308-318; Story, 
 Const. § 1096; 4 How. (U. S.) 567; 1 Mc- 
 Lean (U. S.) 254; 6 Hill (S. C.) 546; S 
 Ala. (N. S.) 48. 
 
INDICARE 
 
 (475) 
 
 INDIVISIBLE 
 
 INDICARE (Law Lat. from index, a show- 
 er or pointer). In the civil law. To show or 
 discover. 
 
 To fix or tell the price of a thing. Calv. 
 Lex. 
 
 To inform against; to accuse. Dig. 50. 16. 
 197. 
 
 INDICATIF. An abolished writ by which 
 a prosecution was in some cases removed 
 from a court christian to the queen's bench. 
 Bnc. Lond. 
 
 INDICATION. In the law of evidence. A 
 sign or token; a fact pointing to some infer- 
 ence or conclusion. Burrill, Circ. Ev. 251, 
 252, 263, 275. 
 
 INDICAVIT (Lat. from Indicare, to show). 
 In English practice. A writ of prohibition 
 that lies for a patron of a church, whose 
 clerk is sued in the spiritual court by the 
 clerk of another patron, for tithes amount- 
 ing to a fourth part of the value of the liv- 
 ing. 3 Bl. Comm. 91; 3 Steph. Comm. 711. 
 So termed from the emphatic word of the 
 Latin form. Reg. Orig. 35b, 36. 
 
 INDICIA (Lat.) Signs; marks. Conjec- 
 tures which result from circumstances not 
 absolutely certain and necessary, but merely 
 probable, and which may turn out not to oe 
 true, though they have the appearance of 
 truth. 
 
 The term is much used in the civil law 
 in a sense nearly or entirely synonymous 
 with "circumstantial evidence." It denotes 
 facts which give rise to inferences, rather 
 than the inferences themselves. However 
 numerous indicia may be, they only show 
 that a thing may be, not that it has been. 
 An indicium can have effect only when a con- 
 nection is essentially necessary with the 
 principal. Effects are known by their 
 causes, but only when the effects can arise 
 only from the causes to which they are at- 
 tributed. When several causes may have 
 produced one and the same effect, it is there- 
 fore unreasonable to attribute it to any par- 
 ticular one of such causes. 
 
 The term is much used in common law of 
 signs or marks of identity. For example, in 
 replevin it is said that property must have 
 indicia, or ear marks, by which to distin- 
 guish it from other property of the same 
 kind. So it is much used in the phrase 
 "indicia of crime," in a sense similar to that 
 of the civil law. 
 
 INDICIUM (Lat.) In civil law. A sign or 
 mark; a species of proof, answering very 
 nearly to the "circumstantial evidence" of 
 the common law. Best, Pres. p. 13, § 11, 
 note; Wills, Circ. Ev. 34. 
 
 INDICTED. Having had an indictment 
 found against him. 
 
 INDICTEE. A person indicted. 
 
 INDICTIO (Lat.) In old public law. A 
 declaration; a proclamation. Indiotio belli, 
 a declaration or indiction of war. Molloy 
 de Jur. Mar. 17. 
 
 INDICTION. The space of fifteen years. 
 
 It was used in dating at Rome and in 
 England. It began at the dismission of the 
 Nicene council, A. D. 312. The first year 
 was reckoned the first of the first indiction, 
 and so on till fifteen years afterwards. The 
 sixteenth year was the first year of the sec- 
 ond indiction; the thirty-first year was the 
 first year of the third indiction, etc. 
 
 INDICTMENT. In criminal practice. A 
 written accusation against one or more per- 
 sons of a crime or misdemeanor, presented 
 to, and preferred upon oath or affirmation 
 by, a grand jury legally convoked. 4 Bl. 
 Comm. 299; Co. Litt. 126; 2 Hale, P. C. 152; 
 Bac. Abr.; Comyn, Dig.; 1 Chit. Crim. Law, 
 168. 
 
 An accusation at the suit of the crown, 
 found to be true by the oaths of a grand 
 jury. 
 
 A written accusation of a crime presented 
 upon oath by a grand jury. 
 
 The word is said to be derived from the 
 old French word inditer, which signifies to 
 indicate, to show, or point out. Its object 
 is to indicate the offense charged against 
 Ihe accused. Rey des Inst. I'Angl. torn. 2, p. 
 347. 
 
 A distinction has been taken between "in- 
 dictment" and "presentment," the former 
 being a bill of indictment presented to the 
 grand jury by the prosecuting ofBcer, and 
 by it found to be "a true bill;" while the 
 latter is a return made by the grand jury 
 of its own motion, upon which a bill of in- 
 dictment was subseQuently framed. 4 Bl. 
 Comm. 301; 7 Grat. (Va.) 631. This dia- 
 tinction is no longer of much practical im- 
 portance; an indictment in modern practice 
 being both a finding and a presentment. 
 See 9 Gray (Mass.) 290. 
 
 INDICTOR. He who causes another to be 
 indicted. The latter is sometimes called the 
 "indictee." 
 
 INDIFFERENT.- To have no bias or par- 
 tiality. 7 Conn. 229. A juror, an arbitra- 
 tor, and a witness ought to be indifferent; 
 and when they are not so they may be chal- 
 lenged. See 9 Conn. 42. 
 
 INDIGENA (Lat. from inde, in, and geno, 
 gigno, to beget). A native; born or bred in 
 the same country or town. Ainsworth. A 
 subject born, or naturalized by act of par- 
 liament. Opposed to alienigena. Rymer, 
 tom. 15, p. 37; Co. Litt. 8a. 
 
 INDIRECT EVIDENCE. Evidence which 
 does not prove the fact in question, but one 
 from which it may be presumed. See "Evi- 
 dence." 
 
 INDISTANTER. Instanter. 
 
 INDITEE (Law Fr.) In old English law. 
 An indictee. 9 Coke, pref. 
 
 INDIVIDUUM (Lat.) In civil law. That 
 cannot be divided. Calv. Lex. 
 
 INDIVISIBLE. Which cannot be separat- 
 ed; entire. 
 
INDIVISUM 
 
 (476) 
 
 INEBRIATE 
 
 INDIVISUM (Lat.) That which two or 
 more persons hold in common without par- 
 tition; nndivided. 
 
 INDORSAT. In old Scotch law. Indorsed. 
 2 Pitc. Crim. Tr. 41. 
 
 INDORSE. To write on the back. Bills of 
 exchange and promissory notes are indorsed 
 by a party's writing his name on the back. 
 Writs in Massachusetts are indorsed in some 
 cases by a person's writing his name on the 
 back, in which case he becomes liable to 
 pay the costs of the suit. 
 
 INDORSEE. The person to whom a nego- 
 tiable instrument is transferred by indorse- 
 ment. 
 
 INDORSEMENT. 
 
 In Commercial Law. That which is 
 
 written on the back of an instrument in 
 writing, and which has relation to it. 
 
 Writing one's nam.e on the back of a prom- 
 issory note or other negotiable instrument. 
 20 Vt. 499. 
 
 An indorsement is generally made pri- 
 marily for the purpose of transferring the 
 rights of the holder of the instrument to 
 some other person. It has, however, various 
 results, such as rendering the indorser lia- 
 ble in certain events; and hence an indorse- 
 ment is sometimes made merely for the pur- 
 IKJse of additional security. This is called 
 an "accommodation indorsement" when done 
 without consideration other than an ex- 
 change of indorsements. See "Accommoda- 
 tion." 
 
 (1) A blank indorsement is one in which 
 the name of the indorser only is written upon 
 the instrument. It is commonly made by 
 writing the name of the indorser on the 
 back (13 Serg. & R. [Pa.] 315), but a writ- 
 ing across the face may answer the same 
 purpose (18 Pick. [Mass.] 63; 16 East, 12). 
 
 (2) An indorsement in full is one in which 
 mention is made of the name of the in- 
 dorsee. Chit. Bills, 170. 
 
 (3) A conditional indorsement is one made 
 subject to some condition without the per- 
 formance of which the instrument will not 
 be or remain valid. 4 Taunt. 30. 
 
 (4) A qualified indorsement is one which 
 restrains, or limits, or qualifies, or enlarges 
 the liability of the indorser, in any manner 
 different from what the law generally im- 
 ports as his true liability, deducible from 
 the nature of the instrument. Chit. Bills 
 (8th Ed.) 261; 7 Taunt. 160. The words 
 commonly used are sans recours, without re- 
 course. 3 Mass. 225; 12 Mass. 14. 
 
 (5) A restrictive indorsement' is one which 
 restrains the negotiability of the instrument 
 to a particular person, or for a particular 
 purpose. 1 Rob. (La.) 222. 
 
 In Criminal Law. An entry made upon 
 
 the back of a writ or warrant. 
 
 When a warrant for the arrest of a per- 
 son charged with a crime has been issued 
 by a justice of the peace of one county, 
 which is to be executed in another county, 
 it is necessary, in some states, that it should 
 be indorsed by a justice of the county where 
 
 it is to be executed. This indorsement it 
 called "backing." 
 
 INDORSER. The person who makes an 
 indorsement. 
 
 INDUCEMENT. 
 
 In Contracts. The benefit which the 
 
 obligor is to receive from a contract is the 
 inducement for making it. 
 
 In Criminal Law. The motive. Con- 
 fessions are sometimes made by criminals 
 under the influence of promises or threats. 
 When, these promises or threats are made by 
 persons in authority, the confessions cannot 
 be received in evidence. See "Confession." 
 
 In Pleading. The statement of matter 
 
 which is introductory to the principal sub- 
 ject of the declaration or plea, and which ia 
 necessary to explain or elucidate it. See 
 "Colloquium." 
 
 INDUCIAE (Lat.) 
 
 In Civil Law. A truce; cessation from 
 
 hostilities for a time agreed upon. Also, 
 such agreement itself. Calv. Lex. So in 
 international law. Grotius de Jure Belli, 
 lib. 3, c. 2, § 11; Huber, Jur. Civ. p. 743, § 
 22. 
 
 In Old Practice. A delay or indulgence 
 
 allowed by law. Calv. Lex.; Du Cange; 
 Bracton, fol. 352b; Fleta, lib. 4, c. 5, § 8. 
 See Bell, Diet; Burton, Law Scot 561. So 
 used in old maritime law; e. g., an induciae 
 of twenty days after safe arrival of vessel 
 was allowed in case of a bottomry bond, to 
 raise principal and interest. Locc. de Jure 
 Mar. lib. 2, c. 6, § 11. 
 
 INDUCIAE LEGALES (Lat.) In Scotch 
 law. The days between the citation of the 
 defendant and the day of appearance; the 
 days between the teste day and day of re- 
 turn of the writ. 
 
 INDUCTION. In ecclesiastical law. The 
 giving a clerk, instituted to a benefice, the 
 actual possession of its temporaliUes. in the 
 nature of livery of seisin. Ayliffe, Par. 299. 
 
 INDULGENCE. A favor granted. 
 
 It is a general rule that where a creditor 
 gives indulgence, by entering into a binding 
 contract with a principal debtor, by which 
 the surety is or may be damnified, such 
 surety is discharged, because the creditor 
 has put it out of his power to enforce Im- 
 mediate payment, when the surety would 
 have a right to require him to do so. 6 
 Dow, Pari. Cas. 238; 3 Mer. 272; Bac. Abr. 
 "Oblig." (D). 
 
 INDULTO. In Spanish law. The condo- 
 nation or remission of the punishment im- 
 posed on a criminal for his offense. L. 1, 
 tit. 32, pt. 7. This power Is exclusirely 
 vested in the king. 
 
 INDUMENT. Endowment (g. «.) 
 
 INDUSTRIAM. See "Per Industriam." 
 
 INEBRIATE. An habitual drunkard. A 
 person rendered unfit, by habitual intoxi- 
 cation, to transact business. 
 
INELIGIBILITY 
 
 (477) 
 
 INFERIOR 
 
 INELIGIBILITY. The incapacity to be 
 lawfully elected to an office. 
 
 INESSE POTEST DONATIONI, MODUS, 
 conditio sive causa; ut modus est; si condi- 
 tio; quia causa. In a gift there may be man- 
 ner, condition, and cause; as (ut), intro- 
 duces a manner; if («i), a condition; be- 
 cause (Quia), a cause. Dyer, 138. 
 
 INEVITABLE ACCIDENT. A term used 
 in the civil law, nearly synonymous with 
 fortuitous event. 10 Miss. 572. 
 
 Any accident which cannot be foreseen 
 and prevented. Though used as synonymous 
 with "act of God," it would seem to have a 
 wider meaning, including not only accidents 
 resulting from natural forces, but those 
 originating from human agencies. 4 Doug. 
 287, 290, per Lord Mansfield; 21 Wend. (N. 
 Y.) 198, per Cowen, J.; 3 Blackf. (Ind.) 
 222; 2 Ga. 349; 10 Miss. 572; 1 Pars. Cont. 
 635; Whart. Neg. 553. 
 
 In the Law of Maritime Collisions. In- 
 evitable accident, "an occurrence which the 
 party charged with the collision could not 
 possibly prevent by the exercise of ordinary 
 care, caution, and maritime skill." 2 Wall. 
 (U. S.) 550. 
 
 INEST DE JURE. It is implied by law. 
 
 INFALISTATUS (Law Lat. from in, and 
 Fr. faluise, the seashore). In old English 
 law. Exposed upon the sands or seashore. 
 A species of punishment mentioned in Heng- 
 ham. Summa Parva, c. 3; Cowell. 
 
 I N F A M I S ( Lat. ) In Roman law. One who, 
 in consequence of the application of a gen- 
 eral rule, and not by virtue of an arbitrary 
 decision of the censors, lost his political 
 rights, but preserved his civil rights. Sa- 
 vigny. Dr. Rom. § 79. 
 
 INFAMOUS CRIME. A crime which works 
 infamy in one who has committed it. 
 
 In the United States. It has been held 
 
 that only those crimes are infamous that 
 were so at common law (1 Dak. 289), but 
 the general rule is that any offense is in- 
 famous that may be punished by death, or 
 by imprisonment in the penitentiary, with 
 or without hard labor. 128 U. S. 393; 8 
 Gray (Mass.) 349; 75 Mich. 611. 
 
 The test is the possible punishment, and 
 not that awarded in a particular case. 114 
 U. S. 417. 
 
 At Common Law. Treason and all 
 
 felonies, and certain misdemeanors affecting 
 the public interest most closely, were in- 
 famous crimes, the nature of the crime 
 being the test. 1 Greenl. Bv. § 373; 114 U. 
 S. 417. 
 
 INFAMY. That state which is produced 
 by the conviction of an infamous crime, and 
 the loss of honor, which renders the in- 
 famous person incompetent as a witness. 
 
 INFANGTHEFE (from in, within, fang, 
 taken, and thef, or theof, a thief). In old 
 English law. A thief taken in, or within; i. 
 «., within the manor or liberty of any man 
 
 having jurisdiction to try him. Spelman; 
 Pleta, lib. 6, c. 37, § 2. A thief taken on any 
 one's lands, being one of his own men or ten- 
 ants, found in possession of the thing stolen. 
 Bracton, fol. 154b; 2 Reeve, Hist. Bng. Law, 
 40. 
 
 The privilege or liberty, anciently granted 
 to lords of certain manors, to try such of- 
 fenders. Id.; Cowell; LL. Gul. Conq, lib, :i. 
 lote. 
 
 INFANS NON MULTUM A FURIOSO 
 distat. An infant does not differ much from 
 a lunatic. Bracton, lib. 3, c. 2, § 8; Dig. 
 50. 17. 5. 40; 1 Story, Eq. Jur. §§ 223, tU. 
 242. 
 
 INFANT. At common law, one of either 
 sex under the age of twenty-one years. Co. 
 Litt. 171. By statute, the age at which fe- 
 males reach their majority has been lowered 
 In some states. See "Age." 
 
 INFANTIA (Lat. from infans). In the 
 civil law. The age from birth till the com- 
 pletion of seven years. 4 Bl. Comm. 22; 
 Calv. Lex.; Helnec. Elem. Jur. Civ. lib. 1 tit 
 21, § 247. 
 
 INFANTICIDE. The murder of a new-born 
 infant. It is thus distinguishable from 
 "abortion" and "foeticide," which are limit- 
 ed to the destruction of the life of the foetus 
 in utero. 
 
 INFANZON. In Spanish law. A person of 
 noble birth, who exercises within his do- 
 mains and inheritance no other rights and 
 privileges than those conceded to him. 
 
 INFEFT. In Scotch law. To give seisin 
 or possession of lands; to invest or enfeoff. 
 1 Kames, Eq. 215. 
 
 INFEFTMENT. 
 
 In Old Scotch Law. Investiture or in- 
 
 feudation, including both charter and seisin. 
 1 Forbes, Inst. pt. 2, p. 110. 
 
 In Later Law. Sasine, or the instru- 
 ment of possession. Bell, Diet. 
 
 INFENSARE CURIAM (Law Lat.) An 
 expression applied to a court when it sug- 
 gested to an advocate something which he 
 had omitted through mistake or ignorance. 
 Spelman. 
 
 INFEOFFMENT. The act or instrument 
 of feoffment. In Scotland it is synonymous 
 with sasine, meaning the instrument of pos- 
 session. Formerly it was synonymous with 
 "investiture." Bell, Diet. See "Enfeoffment." 
 
 INFERENCE. A conclusion drawn by rea- 
 son from premises established by proof. 
 
 INFERIOR. One who, in relation to an- 
 other, has less power and is below him; one 
 who is bound to obey another. He who 
 makes the law is the superior; he who is 
 bound to obey it, the inferior. 1 Hour. 
 Inst, note 8. 
 
INFERIOR COURTS 
 
 (478) 
 
 INFRA 
 
 INFERIOR COURTS. By this term are 
 understood all courts except the supreme 
 courts. An inferior court is a court of lim- 
 ited jurisdiction, and it must appear on the 
 face of its proceedings that it has jurisdic- 
 tion, or its proceedings will be void. 3 
 Bouv. Inst, note 2529. 
 
 INFICIARI, or INFITIARI (Lat.) In the 
 civil law. To deny; to deny one's liability; 
 to refuse to pay a debt or restore a pledge; to 
 deny the allegation of a plaintiff; to deny 
 the charge of an accuser. Calv. Lex. 
 
 INFICIATIO (Lat.) In civil law. Denial; 
 denial of fact alleged by plaintiff, — especial- 
 ly, a denial of debt or deposit. Vocat; Calv. 
 Lex. 
 
 INFIDEL. One who does not believe in 
 the existence of a God who will reward or 
 punish in this world, or that which is to 
 come. Willes, . 550. One who professes no 
 religion that can bind his conscience to 
 speak the truth. 1 Greenl. Ev. § 368. 
 
 This term has been very indefinitely ap- 
 plied. Under the name of "infidel," Lord 
 Coke comprises Jews and heathens (2 Inst. 
 506; 3 Inst. 165), and Hawkins includes 
 among infidels such as do not believe either 
 in the Old or New Testament (Hawk. P. C. 
 bk. 2, c. 46, § 148). 
 
 INFIDELITAS (Lat.) In feudal law. In- 
 fidelity; faithlessness to one's feudal oath. 
 Spelman. 
 
 INFIDUCIARE (Law Lat.) In old Euro- 
 pean law. To pledge property. Spelman. 
 
 INFIHT (Saxon). An assault upon an in- 
 habitant of same dwelling. Anc. Inst. Bng. 
 
 INFINITUM IN JURE REPRQBATUR. 
 
 That which is infinite or endless Is repre- 
 hensible in law. 9 Coke, 45. 
 
 INFIRMATiVE. Weakening. Webster. 
 Tending to weaken or render infirm; dis- 
 probabilizing. 3 Benth. Jud. Ev. 13, 14. 
 Exculpatory is used by some authors as 
 synonymous. See Wills, Circ. Ev. 120 et 
 seq.; Best, Pres. § 217 et sect. 
 
 INFIRMATIVE CONSIDERATION. In the 
 law pf evidence. A consideration, supposi- 
 tion, or hypothesis of which the criminative 
 facts of a case admit, and which tends to 
 weaken the inference or presumption of 
 guilt deducible from them. Burrill, Circ. 
 Ev. 153-155. 
 
 INFIRMATIVE FACT. In the law of evi- 
 dence. A fact set up, proved, or even sup- 
 posed, in opposition to the criminative facts 
 of a case, the tendency of which is to weak- 
 en the force of the inference of guilt de- 
 ducible from them. 3 Benth. Jud. Ev. 14; 
 Best, Pres. § 217 et seq.; Burrill, Circ. Ev. 
 154. 
 
 Otherwise called an "exculpatory fact. 
 
 INFIRMATIVE HYPOTHESIS. In the law 
 of evidence. An hypothesis upon which the 
 criminative circumstances may be explained 
 
 consistently with the innocence of the ac- 
 cused. 
 
 INFORMAL. Deficient in matters of form. 
 
 INFORMALITY. Want of legal form. 
 
 INFORMATION. 
 
 In French Law. The act or instru- 
 ment which contains the depositions of wit- 
 nesses against the accused. Poth. Proe. 
 Civ. § 2, art. 5. 
 
 In Practice. A complaint or accusa- 
 tion exhibited against a person for some 
 criminal offense. 4 Bl. Comm. 308. 
 
 It differs in no respect from an indictment 
 in its form and substance, except that it is 
 filed at the mere discretion of the proper 
 law officer of the government, ex officio, 
 without the intervention of a grand jury. 4 
 Bl. Comm. 308. The process has not been 
 formally put in motion by congress for mis- 
 demeanors, but is common in civil prose- 
 cutions for penalties and forfeitures. 3 
 Story, Const. 659. The information is usual- 
 ly made upon knowledge given by some oth- 
 er person than the oflicer, called the "re- 
 lator." 
 
 The term is also applied to the pleading 
 by which proceedings by the government, 
 particularly those of a quasi criminal char- 
 acter, are begun. 
 
 INFORMATION IN THE NATURE OF A 
 
 quo warranto. A proceeding against the 
 usurper of a franchise or ofiice. See "Quo 
 Warranto." 
 
 INFORMATION OF INTRUSION. A pro- 
 ceeding instituted by the state prosecuting 
 officer against intruders upon the public do- 
 main. See Gen. St. Mass. c. 141; 3 Pick. 
 (Mass.) 224; 6 Leigh (Va.) 588. 
 
 INFORMATUS NON SUM (Lat.) In prac- 
 tice. I am not informed. A formal answer 
 made in court or put upon record by an at- 
 torney when he has nothing to say in de- 
 fense of his client. Styles, Reg. 372. 
 
 INFORMER. A person who informs or 
 prefers an accusation against another, whom 
 he suspects of the violation of some penal 
 statute. 
 
 INFORTIATUM (Lat.) In civil law. The 
 second part of the Digest or Pandects of 
 Justinian. See "Digest." 
 
 This part, which commences with the 
 third title of the twenty-fourth book, and 
 ends with the thirty-eighth book, was thus 
 called because it was the middle part, which, 
 it -was said, was supported and fortified by 
 the two others. Some have supposed that 
 this name was given to it because it "treats 
 of successions, substitutions, and other im- ■ 
 portant matters, and, being more used than 
 the others, produced greater fees to the law- 
 yers. 
 
 INFRA (Lat.) Below; under; beneath; 
 underneath. The opposite of supra, above. 
 Thus, we say, primo ffradu est, — supra, pater, 
 mater, infra, filius, filia; in the first degree 
 of kindred in the ascending line, above is 
 
INFRA AETATEM 
 
 (479) 
 
 INFRINGEMENT 
 
 the father and the mother, below^ In the de- 
 scending line, son and daughter. Inst. 3. 
 6. 1. 
 
 In another sense, this word signifies "with- 
 in;" as, infra corpus civitatis, within the 
 hody of the county; infra praesidia, within 
 the guards. So of time, "during;" infra 
 furoreTn, during the madness. This use is 
 not classical. The sole instance of the word 
 in this sense in the Code, infra anni spatium 
 (Code, bk. 5, tit. 9, § 2), is corrected to 
 intra anni spatium, in the edition of the 
 Corpus Jur. Civ. of 1833, at Leipsic. The 
 use of infra for intra seems to have sprung 
 up among the barbarians after the fall of 
 the Roman empire. In Italian, the preposi- 
 tion fra, which is a corruption of infra, is 
 used in the sense of intra. Bonetti, Ital. 
 Diet. 
 
 INFRA AETATEM (Lat.) Within or un- 
 der age. 
 
 INFRA ANNOS NUBILES (Law Lat.) Un- 
 der marriageable years; not yet of marriage- 
 able age. 6 Coke, 22. 
 
 INFRA ANNUM LUCTUS (Lat.) Within 
 the year of grief or mourning. 1 Sharswood, 
 Bl. Comm. 457; Code, 5. 9. 2. But intra 
 anni spatium is the phrase used in the pass- 
 age in the Code referred to. See Corp. Jur. 
 Civ. 1843, Leipsic. Intra tempus luctus oc- 
 curs in Nov«lla 22, c. 40. This year was at 
 first ten months, afterwards twelve. 1 Beck, 
 Med. Jur. 612. 
 
 INFRA BRACHIA (Lat.) Within her arms. 
 Used of a husband de jure as well as de 
 facto. 2 Inst. 317. Also, inter brachia. 
 Bracton, fol. 148b. It was in this sense 
 that a woman could only have an appeal for 
 murder of her husband inter brachia sua. 
 Woman's Lawy. pp. 332, 335. 
 
 INFRA CIVITATEM. Within the state. 
 
 INFRA CORPUS COMITATUS (Lat.) 
 Within the body of the county. 
 
 The common-law courts have jurisdiction 
 infra corpus coihitatus. The admiralty, on 
 the contrary, has no such jurisdiction, un- 
 less, indeed, the tide water may extend with- 
 in such county. 5 How. (U. S.) 441, 451. 
 See "Admiralty;" "Fauces Terrae." 
 
 INFRA DIGNITATEM CURIAE (Lat.) Be- 
 low the dignity of the court. Example: In 
 equity a demurrer will lie to a bill on the 
 ground of the triviality of the matter in dis- 
 pute, as being below the dignity of the 
 court. See 4 Johns. Cb. (N. Y.> 183; 4 
 Paige, Ch. (N. Y.) 364; 4 Bouv. Inst, note 
 4237. 
 
 INFRA FUROREM (Law Lat.) During 
 madness; while in a state of insanity. Brac- 
 ton, fol. 19b; Fleta, lib. 3, c. 9, § 17. 
 
 INFRA HOSPITIUM (Lat.) Within the 
 Inn. When once a traveler's baggage comes 
 infra hospitium, that is, in the care and 
 Tinder the charge of the innkeeper, it is at 
 Ws risk. See 1 Coke, 32; 14 Johns. (N. Y.) 
 175- 21 Wend. (N. Y.) 282; 25 Wend. (N. 
 
 Y.) 642; 8 N. H. 408; 1 Smith, Lead. Cas. 
 47; 9 Pick. (Mass.) 280; 7 Cush. (Mass.) 
 417; 1 Adol. & E. 522; 3 Nev. & M. 576; 2 
 Kent, Comm. 593 (9th Ed.); Story, Bailm. 
 §478; 1 Pars. Cont. 631, notes. See "Guest;" 
 "Innkeeper." 
 
 INFRA JURISDICTIONEM (Law Lat.) 
 Within the jurisdiction. 2 Strange, 827; 
 Latch, 214. 
 
 INFRA LIGEANTIAM REGIS (Law Lat.) 
 Within the king's llgeance. Comb. 212. 
 
 INFRA METAS (Law Lat.) Within the 
 bounds or limits. Infra metas forestae, 
 within the bounds of the forest. Fleta, lib. 
 2, c. 41, § 12. Infra metas hospitii, within 
 the limits of the household; within the verge. 
 Id", lib. 2, c. 2, § 2. 
 
 INFRA PRAESIDIA (Lat. within the walls). 
 A term used in relation to prizes, to signify 
 that they had been brought completely in 
 the power of the captors; that is, within the 
 towns, camps, ports, or fleet of the captors. 
 Formerly the rule was, and perhaps still in 
 some countries is, that the act of bringing 
 a prize infra praesidia changed the proper- 
 ty; but the rule now established is that 
 there must be a sentence of condemnation 
 to effect this purpose. 1 C. Rob. Adm. 134; 
 1 Kent, Comm. 104; Chit. Law Nat. 98; 
 Abb. Shipp. 14; Hugo, Dr. Rom. § 90. 
 
 INFRA QUATUOR MARIA (Lat.) Within 
 the four seas. Litt. § 157. 
 
 According to classical style, the phrase 
 ought to be "intra," etc. Harg. Co. Litt. lib. 
 2, note 115. 
 
 INFRA REGNUM (Law Lat.) Within the 
 realm. Reg. Orig. 25. 
 
 INFRA TEMPUS SEMESTRE (Law Lat.) 
 Within six months (infra sex menses) . St. 
 Westminster II. c. 5; 2 Inst. 361; 2 Reeve, 
 Hist. Bng. Law, 195; 3 Bl. Comm. 249. 
 
 INFRA TRIDUUM (Law Lat.) Within 
 three days. Formal words In old appeals. 
 Fleta, lib. 1, c. 31, § 6; Id. c. 35, § 3. 
 
 INFRACTION (Lat. infrango, to break in 
 upon). The breach of a law or agreement; 
 the violation of a compact. In the French 
 law this is the generic expression to desig- 
 nate all actions which are punishable by the 
 Code of France. 
 
 INFRINGEMENT. In patent law. A word 
 used to denote the act of trespassing uiwn 
 the incorporeal right secured by a patent. 
 Any person who, without legal permission, 
 shall make, use, or sell to another to be 
 used, the thing which is the subject matter 
 of any existing patent, is guilty of an in- 
 fringement. 
 
 To constitute an infringement, there need 
 not be a precise duplication, but only an 
 adoption of the "operative principle" (1 
 Fish. Pat. Cas. [U. S.] 319); a mere change 
 in the mechanical incidents, while retaining 
 the principle, being an infringement. By 
 the "principle" of a machine is not meant 
 
INFUGARE 
 
 (480) 
 
 INHERITANCE ACT 
 
 the original elementary principles of motion, 
 but the modus operandi, — the peculiar de- 
 vice or manner of producing the effect'. 1 
 Gall. (U. S.) 478. 
 
 INFUGARE. To cause to flee. 
 
 INFUSION. In medical jurisprudence. A 
 pharmaceutical operation, which consists in 
 pouring a hot or cold fluid upon a substance 
 whose medical properties it is desired to 
 extract. The product of this operation. 
 
 Although "infusion" differs from "decoc- 
 tion," they are said to be ejusdem generis; 
 and in the case of an indictment which 
 charged the prisoner with giving a decoc- 
 tion, and the evidence was that he had giv- 
 en, an infusion, the difference was held to 
 be immaterial. 3 Campb. 74. 
 
 INGENIUM (Lat. of middle ages). A net 
 er hook (Du Cange) ; hence, probably, the 
 meaning given by Spelman of artifice, fraud 
 (ingin). A machine (Spelman), especially 
 for warlike purposes; also, for navigation of 
 a ship (Du Cange). 
 
 I N G E N U I (Lat. ) In civil law. Those free- 
 men who were born free. Vicat. 
 
 They were a class of freemen, distin- 
 guished from those who, born slaves, had 
 afterwards legally obtained their freedom. 
 The latter were called, at various periods, 
 sometimes liierti, sometimes libertini. An 
 unjust or illegal servitude did not prevent 
 a man from being ingenuus. 
 
 INGENUITAS (Law Lat.) Manumission; 
 liberty. 
 
 INGENUITAS REGNI (Law Lat.) In old 
 English law. The freemen, yeomanry, or 
 commonalty of the kingdom. Cowell. Ap- 
 plied sometimes also to the barons. Id. 
 
 INGRESS, EGRESS, AND REGRESS. 
 
 These words are frequently used in leases 
 to express the right of the lessee to enter, 
 go upon, and return from the lands in ques- 
 tion. 
 
 INGRESSU (Lat.) An ancient writ of en- 
 try, by which the plaintiff or complainant 
 sought an entry into his lands. Tech. Diet. 
 
 INGRESSUS (Lat.) In old English law. 
 Ingress; entry. The relief paid by an heir 
 to the lord was sometimes so called. Cow- 
 ell. 
 
 INGROSSATOR (Law Lat.) An engross- 
 er. Ingrossator magni rotuli, engrosser of 
 the great roll; afterwards called "clerk of 
 the pipe." Spelman; Cowell. 
 
 INGROSSING. In practice. The act of 
 copying, from a rough draft, a writing, in 
 order that it may be executed; as, ingross- 
 ing a deed. 
 
 INHAEITANT (Lat. in, In, ftafteo, to dwell). 
 One who has a habitation at a given place. 
 See "Habitation." 
 
 The term is one whose meaning varies 
 with the context. 10 Am. & Eng. Enc. Law, 
 7TI. 
 
 Used in the tax laws as convertible with 
 "resident." In making residence a test of 
 taxability, the statute looks only to an ac- 
 tual inhabitancy for some permanent period 
 and purpose, at a prescribed time. 48 Barb 
 (N. Y.) 51. 
 
 INHABITED HOUSE DUTY. A tax as- 
 sessed in England on inhabited dwelling- 
 houses,* according to their annual value (St 
 14 & 15 Vict. c. 36; 32 & 33 Vict. c. 14, § 
 11), which is payable by the occupier, the 
 landlord being deemed the occupier where 
 the house is let to several persons (St. 48 
 Geo. III. c. 55, Schedule B). Houses occu- 
 pied solely for business purposes are ex- 
 empt from duty, although a care taker may 
 dwell therein, and houses partially occupied 
 for business purposes are to that extent ex- 
 empt. Rapalje & L. 
 
 INHERENT POWER. An authority pos- 
 sessed without its being derived from an- 
 other; a right, ability, or faculty of doing 
 a thing, without receiving that right, abil- 
 ity, or faculty from another. 
 
 INHERETRIX. The old term for "heir- 
 ess." Co. Lift. 13a. 
 
 INHERIT. To take by ihheritance ; to take 
 as heir on the death of the ancestor. '"Bo 
 inherit to" a person is a common expres- 
 sion in the books. *3 Coke, 41; 2 BI. Comm. 
 254, 255. 
 
 INHERITABLE BLOOD. Blood of an an- 
 cestor which, while .it makes the person in 
 whose veins it flows a relative, will also 
 give him the legal rights of inheritance in- 
 cident to that relationship. See 2 Shars- 
 wood, Bl. Comm. 254, 255. Descendants can 
 derive no title through a person whose 
 blood is not inheritable. Such, in England, 
 are persons attainted and aliens. But at- 
 tainder is not known in this country. Id. 
 See 4 Kent, Comm. 413, 424; 1 Hilliard, 
 Real Prop. 148; 2 Hilliard, Real Prop. 190. 
 
 INHERITANCE. A perpgtuity in lands to 
 a man and his heirs; the right to succeed 
 to the estate of a person who dies intestate. 
 Dig. 50. 16. 24. The term is applied to 
 lands. 
 
 The property which is inherited is called 
 an inheritance. 
 
 The term "inheritance" includes not only 
 lands and tenements which have been ac- 
 quired by descent, but every fee simple or 
 fee tail which a person has acquired by pur- 
 chase may be said to be an inheritance, be- 
 cause the purchaser's heirs may inherit It. 
 Lift. § 9. See "Estate." 
 
 In Civil Law. The succession to all 
 
 the rights of the deceased. It is of two 
 kinds: That which arises by testament, 
 when the testator gives his succession to a 
 particular person; and that which arises by 
 operation of law, which is called "succes- 
 sion ab intestat." Heinec. Lee. Elem. §§ 
 484, 485. 
 
 INHERITANCE ACT. The English stat- 
 ute of 3 & 4 Wm. IV. c. 106, regulating the 
 
INHIBITION 
 
 (481) 
 
 INJUNCTION 
 
 law of Inheritance. 2 Chit. St. 575; 2 Shars- 
 wood, Bl. Comm. 37; 1 Staph. Comm. 500. 
 
 INHIBITION. 
 
 In Civil Law. A prohibition which the 
 
 law makes or a judge ordains to an indi- 
 vidual. Halifax, Anal. p. 126. 
 
 In English Law. The name of a writ 
 
 which forbids a judge from further proceed- 
 ing in a cause depending before him. It is 
 in the nature of a prohibition. Termes de la 
 Ley; Fitzh. Nat. Brev. 39. 
 
 In Scotch Law. A personal prohibi- 
 tion which passes by letters under the sig- 
 net, prohibiting the party inhibited to con- 
 tract any debt or do any act by which any 
 part of the heritable property may be alien- 
 ed or carried off, in prejudice of the cred- 
 itor inhibiting. Ersk. Prac. bk. 2, tit. 2, § 2. 
 See "Diligence." 
 
 INHIBITIONAGAINSTAWIFE. InScotch 
 laWr A writ in the sovereign's name, pass- 
 ing the signet, which prghibits all and sun- 
 dry from having transactions with a wife, 
 or giving her credit. Bell, Diet.; Ersk. Inst. 
 1. 6. 26. 
 
 INHOC, or INHOKE (Saxon; Law Lat. i?i- 
 hokiuvi). In old records. A nook or comer 
 of a common or fallow field, inclosed and 
 cultivated. Kennett, Par. Ant. 297, 298 ; Cow- 
 ell. 
 
 INHONESTUS (Lat.) In old English law. 
 Unseemly; not In due order. Pleta, lib. 1, c. 
 31, § 8. 
 
 INIQUISSIMA PAX EST ANTEPONENDA 
 justlssimo bello. The most unjust peace is 
 to be preferred to the justest war. 18 Wend. 
 (N. Y.) 257, 305. 
 
 INIQUITY. In Scotch practice. A tech- 
 nical expression applied to the decision of 
 an inferior judge who has decided contrary 
 to law. He is said to have committed iniqui- 
 ty. Bell, Diet. 
 
 INIQUUM EST ALIOS PERMITTERE, 
 alios inhlbere mercaturann. It is inequitable 
 to permit some to trade, and to prohibit 
 others. 3 Inst. 181. 
 
 INIQUUM ESTALIQUEM REI SUI ESSE 
 Judicem. It is unjust for any one to be judge 
 in his own cause. 12 Coke, 13. 
 
 INIQUUM EST INGENUIS HOMINIBUS 
 non esse liberam rerum suarum alienatlo- 
 nem. It is against equity for freemen not to 
 have the free disposal of their own property. 
 Co. Litt. 223. See 1 Bouv. Inst, notes 455, 
 460. 
 
 INITIAL (from Lat. initiwn, beginning). 
 Beginning; placed at the beginning. Web- 
 ster. Thus, the initials of a man's name 
 are the first letters of his name. 
 
 INITIALIATESTIMONII (Lat.) InScotch 
 law. A preliminary examination of a wit- 
 ness to ascertain what disposition he bears 
 towards the parties, — whether he has been 
 prompted what to say, whether he has re- 
 ceived a bribe, and the like. It resembles 
 
 in some respects an examination on voir 
 dire in English practice. 
 
 INITIATE. Commenced. 
 
 A husband was, in feudal law, said to be 
 tenant by the curtesy initiate when a child 
 who might inherit was born to his wife, be- 
 cause he then first had an inchoate right 
 as tenant by the curtesy, and did homage 
 to the lord as one of the pares curtis, peers 
 of the court; whence "curtesy." This right 
 became consummated on the death of the 
 wife before the husband. See 2 Sharswood, 
 Bl. Comm. 127; 1 Steph. Comm. 247. 
 
 INITIATIVE. In French law. The name 
 given to the important prerogative confer- 
 red by the Charte Constitutionnelle (article 
 16) on the late king to propose through his 
 ministers projects of laws. 1 Toullier, Dr. 
 Civ. note 39. See "Veto." 
 
 INJUNCTION. A prohibitory writ, issued 
 by the authority of, and generally under the 
 seal of, a court of equity, to restrain one or 
 more of the defendants or parties, or quasi 
 parties, to a suit or proceeding in equity, 
 from doing, or from permitting his servants 
 or others who are under his control to do, 
 an act which is deemed to be unjust or in- 
 equitable so far as regards the rights of 
 some other party or parties to such suit or 
 proceedings in equity. Eden, Inj. c. 1; Jer- 
 emy, Eq. Jur. bk. 3, c. 2, § 1; Story, Eq. 
 Jur. § 861; Willard, Eq. Jur. 341; 4 Bouv. 
 Inst. 120; 2 Green, Ch. (N. J.) 136; 1 Madd. 
 126. 
 
 (!) Preliminary injunctions are used to re- 
 strain the party enjoined from doing or con- 
 tinuing to do the wrong complained of, ei- 
 ther temporarily or during the continuance 
 of the suit or proceeding in equity in which 
 such injunction is granted, and before the 
 rights of the parties have been definitely 
 settled by the decision and decree of the 
 court in such suit or proceeding. 
 
 (2) Final or perpetual injunctions are 
 awarded, or directed to be issued, or the pre- 
 liminary injunction already issued is made 
 final or perpetual, by the final decree of the 
 court, or when the rights of the parties so 
 far as relates to the subject of the injunc- 
 tion are finally adjudicated and disposed of 
 by the decision and the order or decree of 
 the court. 2 Freem. Ch. 106; 4 Johns. Ch. 
 (N. Y.) 69; 3 Yerg. (Tenn.) 366; 1 Bibb 
 (Ky.) 184; 4 Bouv. Inst. 123. 
 
 In England, injunctions were divided in- 
 to "common injunctions" and "special in- 
 junctions." Eden, Inj. (3d Am. Ed.) 178, 
 note; Willard, Eq. Jur. 342; Saxt. (N. J.) 
 504. The common injunction was obtained 
 of course when the defendant in the suit in 
 equity was in default for not entering his 
 appearance, or for not putting in his an- 
 swer to the complainant's bill within the 
 times prescribed by the practice of the court. 
 Eden, Inj. (3d Am. Ed.) 59-61. 68-72, 93, 
 note; Story, Eq. Jur. § 892; 18 Ves. 523; 
 Jeremy, Eq. Jur. bk. 3, c. 2, § 1, p. 339; 
 Gilb. For. Rom. 194; Newby, Chanc. Prac. 
 c. 4, § 7. Special injuncMons were founded 
 upon the oath of the complainant, or other 
 
INJURIA ABSQUE 
 
 (482) 
 
 INJURY 
 
 evidence of the truth of the charges con- 
 tained in his bill of complaint. They were 
 obtained upon a special application to the 
 court, or to the oflBcer of the court who was 
 authorized to allow the issuing of such in- 
 junctions, and usually upon notice of such 
 application given to the party whose pro- 
 ceedings were sought to be enjoined. Story, 
 Eq. Jur. § 892; 4 Eden, Inj. 78, 290; Jeremy, 
 Eq. Jur. 339, 341, 342; 3 Mer. 475; 18 Ves. 
 522, 523. In the United States courts, and 
 in the equity courts of most of the states 
 of the Union, the English practice of grant- 
 ing the common injunction has been discon- 
 tinued or superseded, either by statute or 
 by the rules of the courts. And the pre- 
 liminary injunctions are therefore all spe- 
 cial injunctions in the courts of this coun- 
 try, where such English practice has been 
 superseded. 
 
 INJURIA ABSQUE (or SINE) DAMNO. 
 Wrong without damage; an actionable wrong 
 not resulting in any legal damage. 
 
 The doctrine of injuria absque damno ap- 
 plies only in those cases where, though there 
 was a wrongful act, it did not amount to 
 an invasion of a substantial right, the tend- 
 ency of modern law being to presume nom- 
 inal damages from every infraction of a 
 legal right, though no actual damage result. 
 Whether nominal damages will be presumed, 
 or the rule of injuria absque damno ap- 
 plied, depends on the disposition of the 
 court to invoke the maxim "de minimis," 
 etc. See 75 Cal. 182; 30 Vt. 443. And this 
 will be done generally only where the right 
 infringed was in itself trivial, as where an 
 officer, on attaching hay, used for a few mo- 
 ments, without leave, a fork belonging to 
 the attachment debtor, and then returned it 
 uninjured. 22 Vt. 231. See Sedgw. Dam. § 
 96; Suth. Dam. § 3; "Nominal Damages." 
 
 INJURIA FIT El CUI CONVICIUM DIC- 
 tum est, vel de eo factum carmen famosum. 
 An injury is done to him of whom a re- 
 proachful thing is said, or concerning whom 
 an infamous song is made. 9 Coke, 60. 
 
 INJURIA NON EXCUSAT INJURIAM. A 
 
 wrong does not excuse a wrong. Broom, 
 Leg Max. (3d London Ed.), 247, 343, 349; 
 11 Exoh. 822; 15 Q. B. 276; 6 El. & Bl. 76; 
 Branch, Princ. 
 
 INJURIA NON PRAESUMITUR. A wrong 
 is not presumed. Co. Litt. 232. 
 
 INJURIA PROPRIA NON CADET IN 
 beneficium faclentis. No one shall profit by 
 his own wrong. 
 
 INJURIA SERVI DOMINUM PERTINGIT. 
 The master is liable for injury done by his 
 servant. Lofft, 229. 
 
 INJURIOUS WORDS. In Louisiana. Slan- 
 der, or libellous words. Civ. Code La. art. 
 3501. 
 
 INJURY (Lat. in, negative, jus, a right). 
 A wrong or tort. 
 
 Relative injuries are injuries to those 
 
 rights which a person possesses in relation 
 to the person who is immediately affected 
 by the wrongful act done. 
 
 Absolute injuries are injuries to those 
 rights which a person possesses as being a 
 member of society. 
 
 Private injuries are infringements of the 
 private or civil rights belonging to individ- 
 uals, considered as individuals. 
 
 Public injuries are breaches and violations 
 of rights and dutiesj which affect the whole 
 community as a community. 
 
 Injuries to personal property are the un- 
 lawful taking and detention thereof from 
 th^ owner; and other injuries are some 
 damage affecting the same while in the 
 claimant's possession, or that of a third per- 
 son, or injuries to his reversionary inter- 
 ests. 
 
 Injuries to real property are ousters, tres- 
 passes, nuisances, waste, subtraction of rent, 
 disturbance of right of way, and the like. 
 
 It is obvious that the divisions overlap 
 each other, and that the same act may be, 
 for example, a relative, a private, and a pub- 
 lic injury at once. For many injuries of 
 this character, the offender may be obliged 
 to suffer punishment for the public wrong, 
 and to recompense the sufferer for the par- 
 ticular loss which he has sustained. TJie 
 distinction is more commonly marked by the 
 use of the terms civil- injuries to denote pri- 
 vate injuries, and of crimes, misdemeanors, 
 etc., to denote the public injury done, though 
 not always; as, for example, in case of a 
 public nuisance which may be also a private 
 nuisance. 
 
 In Civil Lavtf. A delict committed in 
 
 contempt or outrage of any one, whereby his 
 body, his dignity, or his reputation Is ma- 
 liciously injured. Voet, Com. ad Pand. 47, 
 tit. 10, note 1. 
 
 A real injury is inflicted by any act by 
 which a person's honor or dignity is affect- 
 ed; as, striking one with a cane, or even 
 aiming a blow without striking; spitting in 
 one's face; assuming a coat of arms, or any 
 other mark or distinction, proper to anoth- 
 er, etc. The composing and publishing de- 
 famatory libels may be reckoned of this 
 kind. Ersk. Prac. 4. 4. 45. 
 
 A verbal injury, when directed against a 
 private person, consists in the uttering con- 
 tumelious words, which tend to Injure his 
 character by making him little or ridiculous. 
 Where the offensive words are uttered in the 
 heat of a dispute, and spoken to the person's 
 face, the law does not presume any mali- 
 cious intention in the utterer, whose resent- 
 ment generally subsides with his passion; 
 and yet, even in that case, the truth of the 
 injurious words seldom absolves entirely 
 from punishment. Where the Injurious ex- 
 pressions have a tendency to blacken one's 
 moral character, or fix some particular guilt 
 upon him, and are deliberately repeated in 
 different companies, or handed about in 
 whispers to confidants, the crime then be- 
 comes slander, agreeably to the distinction 
 of the Roman law. Dig. 15, § 12, "De In- 
 jur." , 
 
INJUSTUM EST, ETC. 
 
 (483) 
 
 INNS OF COURT 
 
 INJUSTUM EST, NISI TOTA LEGE IN- 
 spectae, de una allqua ejus particula propo- 
 sita judicare vel respondere. It is unjust to 
 give judgment or advice concerning any par- 
 ticular clause of a law without having ex- 
 amined the whole law. 8 Coke, 117b. 
 
 INLAGARE, or INLEGIARE. To restore 
 to protection of law. Opposed to utlagare. 
 Bracton, lib. 3, tr. 2, c. 14, § 1; Du Cange. 
 
 INLAGATION. Restoration to the protec- 
 tion of law. 
 
 INLAGHE. A person subject to the law; 
 under the protection of the law. 
 
 INLAND. Within the same country. As 
 to what are inland bills of exchange, see 
 "Bill of Exchange." 
 
 INLAND BILL OF EXCHANGE. One 
 
 drawn upon a person living in the same 
 Etate or country with the drawer. 
 
 INLAND NAVIGATION. Includes naviga- 
 tion upon rivers (6 Biss. [U. S.] 364), but 
 not on the Great Lakes (24 How. [U. S.] 1). 
 
 INLANDTAL.or INLANTAL (Saxon). The 
 came with inland (g. v.) Cowell. 
 
 INLAUGHE. See "Inlaghe." 
 
 INLAW. To place under the protection 
 of the law. "Swearing obedience to the king 
 In a leet, which doth inlaw the subject." 
 Bac. Works, IV. 328. 
 
 INLIGARE (Law Lat.) In old European 
 law. To confederate; to join in a league (in 
 ligam coire). Spelman. 
 
 INMATE. One who dwells in a part of an- 
 other's house, the latter dwelling, at the 
 same time, in the said house. Kitch. Cts. 
 45b; Comyn, Dig. "Justices of the Peace" 
 (B 85); 1 Barn. & C. 578; 8 Barn. & C. 71; 
 9 Barn. & C. 335; 2 Dowl. & R. 743; 2 Man. 
 £ R. 227; 4 Man. & R. 151; 2 Russ. Crimes, 
 937; 1 Deac. Crim. Law, 185; 2 East, P. C. 
 499, 505; 1 Leach, Crim. Law, 90, 237, 427; 
 Ale. Reg. Cas. 21; 1 Man. & G. 83. See 
 "Lodger." 
 
 INN. A house where a trayeller is fur- 
 nished with everything he has occasion for 
 while on hia way. Bac. Abr. "Inns" (B) ; 
 12 Mod. 255; 3 Barn. & Aid. 283; 4 Camp. 
 77; 2 Chit. Bailm. 484; 9 B. Mon. (Ky.) 72; 
 3 Chit. Com. Law, 365, note 6. A public 
 house of entertainment for all who choose 
 to visit it. 5 Sandf. (N. Y.) 247. 
 
 INNAMIUM. A pledge. 
 
 INNAVIGABLE. A term applied in foreign 
 insurance law to a vessel not navigable, 
 through irremediable misfortune by a peril 
 of the sea. The ship is relatively innav- 
 igable when it will require almost as much 
 time and expense to repair her as to build 
 a new one. Targa, c. 54, p. 238, c. 60, p. 
 256; Emerig. tom. V; pp. 577, 591; 3 Kent, 
 Comm. 323, note. 
 
 INNER BARRISTER. One admitted to 
 plead within the bar. 
 
 INNINGS. Lands gained from the sea by 
 draining. Cunningham. 
 
 INNKEEPER. The keeper of a common 
 inn for the lodging and entertainment of 
 travellers and passengers, their horses and 
 attendants, for a reasonable compensation. 
 Bac. Abr. "Inns," etc.; Story, Bailm. § 475. 
 But one who entertains strangers occasion- 
 ally, although he may receive compensation 
 for it, is not an innkeeper. 2 Dev. & B. (N. 
 C.) 424; 7 Ga. 296. 
 
 INNOCENCE. The absence of guilt (g. «.) 
 
 INNOCENT CONVEYANCES. In English 
 law. A technical term used to signify those 
 conveyances made by a tenant of his lease- 
 hold which do not occasion a forfeiture. 
 These are conveyances by lease and release, 
 bargain and sale, and a covenant to stand 
 seised by a tenant for life. 1 Chit. Prac. 
 243, 244. 
 
 INNOMINATE (Lat.) In civil law. Not 
 named or classed; belonging to no specific 
 class; ranking under a general head. A 
 term applied to those contracts for which no 
 certain or precise remedy was appointed, but 
 a general action on the case only. Dig. 2. 1. 
 4. 7. 2; Id. 19. 4. 5. 
 
 INNOMINATE CONTRACTS. In civil law. 
 Contracts which have no particular names, 
 as permutation and transaction. Inst. 2. 10. 
 13. There are many innominate contracts; 
 but the Roman lawyers reduced them to four 
 classes, namely, do ut des, do ut facias, facia 
 ut des, and facto ut facias. Dig. 2. 14. 7. 2. 
 
 INNONIA (Law Lat.) In old English law. 
 A close or inclosure {clausum, inclausura) . 
 Spelman. 
 
 INNOTESCIMUS (Lat.) In English law. 
 An epithet used for letters patent, which are 
 always of a charter of feoffment, or some 
 other instrument not of record, concluding 
 with the words, Innotescimus per praesentes, 
 etc. Tech. Diet. 
 
 INNOVATION. In Scotch law. The ex- 
 change of one obligation for another, so that 
 the second shall come in the place of the 
 first. Bell, Diet. The same as "novation." 
 
 INNS OF CHANCERY. So called because 
 anciently inhabited by such clerks as chiefly 
 studied the framing of writs, which regu- 
 larly belonged to the cursitors, who were of- 
 ficers of the court of chancery. There are 
 nine of them, — Clement's, Clifford's, and Ly- 
 on's Inn; Purnival's, Thavies'. and Symond's 
 Inn; New Inn; and Barnard's and Staples' 
 Inn. These were formerly preparatory col- 
 leges for students, and many entered them 
 before they were admitted into the inns of 
 court. They consist chiefly of solicitors, and 
 possess corporate property, hall, chambers, 
 etc., but perform no public functions like 
 the Inns of court. Wharton. 
 
 INNS OF COURT. The name given to th« 
 
INNUENDO 
 
 (484) 
 
 INQUISITIO 
 
 colleges of the English professors and stu- 
 dents of the common law. 
 
 The four principal inns of court are the 
 Inner Temple and Middle Temple (formerly 
 belonging to the Knights Templar), Lin- 
 coln's Inn, and Gyay's Inn (anciently belong- 
 ing to the earls of Lincoln and Gray). The 
 other inns are the two Sergeants' Inns. See 
 "Inns of Chancery." 
 
 INNUENDO (Lat. innuere, to nod at, to 
 hint at; meaning). The word was used when 
 pleadings were in Latin, and has been trans- 
 lated by "meaning." 
 
 In Pleading. A clause in a declara- 
 tion, indictment, or other pleading contain- 
 ing an averment which is explanatory of 
 some preceding word or statement. 
 
 It derives its name from the leading word 
 by which it was always introduced when 
 pleadings were in Latin. It is mostly used 
 in actions of slander, and is then said to be 
 a subordinate averment, connecting particu- 
 lar parts of the publication with what has 
 gone before, in order to elucidate the defend- 
 ant's meaning more fully. 1 Starkie, Sland. 
 
 6 L. 431. 
 
 Its object is to explain the defendant's 
 meaning by reference to previous matter. 
 See "Colloquium." It may be used to point 
 to the plaintiff as the person intended in 
 the defendant's statement. It may show that 
 a general imputation of crime is intended to 
 apply to the plaintiff (Heard, Lib. & Sland. 
 §226; 1 H. L. Cas. 637; 2 Hill [N. Y.] 282), 
 but it cannot be allowed to give a new sense 
 to words where there is no such charge (8 
 Q. B. 825; 7 C. B. 280). 
 
 It may point to the injurious and action- 
 able meaning, where the words complained 
 of are susceptible of two meanings (8 Q. B. 
 841; Moore & S. 727), -and generally explain 
 the preceding maner (1 Dowl. fN. S.] 602; 
 
 7 C. B. 251; 15 0. B. 360; 1 Mees. & W. 245; 
 
 5 Bing. 17; 10 Bing. 250; 12 Adol. & E. 
 317), but cannot enlarge and point the ef- 
 fect of language beyond its natural and com- 
 mon meaning in its usual acceptation 
 (Heard, Lib. & Sland. § 219; Mete. Yelv. 22; 
 2 Salk. 513; 1 Ld. Raym. 256; 2 Cowp. 688; 
 4 Per. & D. 161; 6 Barn. & C. 154; 4 Nev. 
 
 6 M. 841; 4 Dowl. 703; 9 Adol. & E. 282; 12 
 Adol. & E. 719; 15 Pick. [Mass.l 335), un- 
 less connected with the proper introductory 
 averments (1 Cromp. & J. 143; 1 Adol. & E. 
 554; 9 Adol. & E. 282, 286, note; 1 C. B. 
 728; 6 C. B. 239; 1 Saund. 242; 2 Pick: 
 rMass.l 320; 13 Pick. [Mass.] 198; 15 Pick. 
 L Mass.l 321; 16 Pick. [Mass.] 1; 11 Mete. 
 [Mass.] 473; 8 N. H. 246; 12 Vt. 51; 1 Bin. 
 [Pa.] 537; 5 Bin. [Pa.] 218; 11 Serg. & R. 
 [Pa.] 343; 5 Johns. [N. Y.] 211). 
 
 INOFFICIOSUM (Lat.) In civil law. In- 
 oflRcious; contrary to natural duty or affec- 
 tion. Used of a will of a parent which dis- 
 inherited a child without just cause, or of 
 that of a child which disinherited a parent, 
 and which could be contested by querela in- 
 offlciosi testamenti. Dig. 2. 5. 3, 13; Paulus. 
 lib. 4, tit. 5, § 1. 
 
 INOFFICIOUS TESTAMENT. A will not 
 
 in accordance with the natural affections 
 and ties of relationship of the testator. 
 
 INOFICIOCIDAD. In Spanish law. Every- 
 thing done contrary to a duty or obligation 
 assumed, as well as in opposition to the pi- 
 ety and affection dictated by nature, inof- 
 ficiosum dicitur id omne quod contra pietatis 
 offlcium factum est. The term applies espe- 
 cially to testaments, donations, dower, etc., 
 which may be either revoked or reduced 
 when they affect injuriously the rights of 
 creditors or heirs. 
 
 INOPS CONSILII (Lat.) Destitute or with- 
 out counsel. In the construction of wills, a 
 greater latitude is given, because the testator 
 is supposed to have been inops consilii. 
 
 INPENY AND OUTPENY. In old English 
 law. A customary payment of a penny on 
 entering into and going out of a tenancy 
 (pro exitu de tenura, et pro ingressu). Spel- 
 man; Cowell. 
 
 INQUEST OF OFFICE. An inquiry made 
 by the king's officer, his sheriff, coroner, or 
 escheator, either virtute officii, or by writ 
 sent to him for that purpose, or by commis- 
 sioners specially appointed, concerning any 
 matter that entitles the king to the posses- 
 sion of lands or tenements, goods or chat- 
 tels. It is done by a jury of no determinate 
 number, — either twelve, or more, or less. 3 
 Sharswood, Bl. Comm. 258; Pinch, Law, 323- 
 325. An inquest of oflSce was bound to find 
 for the king upon the direction of the court. 
 The reason given is that an inquest con- 
 cluded no man of his right, but only gave 
 the king an opportunity to enter, so that he 
 could have his right tried. 3 Sharswood, Bl. 
 Comm. 260; 4 Steph. Comm. 61; F. Moore, 
 730; Vaughan, 135; 3 Hen. VII. 10; 2 Hen. 
 IV. 5; 3 Leon. 196. An inquest of office was 
 also called, simply, "office." As to "office" in 
 the United States, see 1 Caines (N. Y.) 426; 
 7 Cranch (U. S.) 603; 2 Kent, Comm. 16, 23. 
 
 IN QUI LIN US. In civil law. The hirer of 
 a house in the city; a city tenant, as eolonus 
 was a country tenant. Bracton, fol. 42b. 
 
 INQUIRY, WRIT OF. A writ sued out by 
 a plaintiff in a case where the defendant has 
 let the proceedings go "by default, and an 
 interlocutory judgment has been given for 
 damages generally, where the damages do 
 not admit of calculation. It issues to the 
 sheriff of the county in which the venue is 
 laid, and commands him to inquire, by a 
 jury of twelve men, concerning the amount 
 of damages. The sheriff thereupon tries the 
 cause in his sheriff's court, and some amount 
 must always be returned to the court. But 
 the return of the inquest merely informs 
 the court, which may, if it choose, in all 
 cases assess damages, and thereupon give 
 final judgment. 2 Archb. Prac. (Waterman 
 Ed.) 952; 3 Sharswood, Bl. Comm. 398; 3 
 Chit. St. 495, 497. 
 
 INQUISITIO (Lat.) In old English law. 
 An inquisition or inquest. Inquisitio post 
 mortem, an inquisition after death. An In- 
 
INQUISITION 
 
 (485) 
 
 INSCRIPTION 
 
 quest of office held, during the continuance 
 of the military tenures, upon the death of 
 every one of the king's tenants, to inquire 
 of what lands he died seised, who was his 
 heir, and of what age, in order to entitle 
 the king to his marriage, wardship, relief, 
 primer seisin, or other advantages, as the 
 circumstances of the case might turn out. 3 
 Bl. Comm. 258. Inguisitio patriae, the in- 
 quisition of the country; the ordinary jury, 
 as distinguished from the grand assize. 
 Bracton, fol. 15b. 
 
 INQUISITION. In practice. An examina- 
 tion of certain facts by a jury impanelled 
 by the sheriff for the purpose. The instru- 
 ment of writing on which their decision is 
 made is also called an inquisition. The 
 sheriff or coroner, and the jury who make 
 the inquisition, are called the "inquest." 
 The term "inquest" is now generally used 
 instead of "inquisition." 
 
 INQUISITOR. A designation of sheriffs, 
 coroners super visum corporis, and the like, 
 who have power to inquire into certain mat- 
 ters. 
 
 In Ecclesiastical Law. The name of 
 
 an officer who is authorized to inquire into 
 heresies, and the like, and to punish them; a 
 judge. 
 
 INROLMENT, or ENROLLMENT (Law 
 Lat, irrotulatio) . The act of putting upon 
 a roll. 
 
 Formerly, the record of a suit was kept 
 on skins of parchment, which, best to pre- 
 serve them, were kept upon a roll, or in the 
 form of a roll. What was written upon 
 them was called the "inrolment." After, 
 when such records came to be kept in books, 
 the making up of the record retained the 
 old name of "inrolment." Thus, in equity, 
 the inrolment of a decree is the recording of 
 it, and will prevent the rehearing of the 
 <;ause, except on appeal to the house of 
 lords, or by bill of review. The decree may 
 be inroUed immediately after It has been 
 passed and entered, unless a caveat has been 
 entered. 2 Freem. 179; 4 Johns. Ch. (N. Y.) 
 199; 14 Johns. (N. Y.) 501. And before 
 signing and inrolment, a decree cannot be 
 pleaded in bar of a suit, though it can be 
 insisted on by way of answer. 3 Atk. 809; 
 2 Ves. Jr. 577; 4 Johns. Ch. (N. Y.) 199. 
 See Saund. Ord. Chanc. 
 
 Transcribing upon the records of a court 
 deeds, etc., according to the statutes on the 
 subject. See 1 Chit. St. 425, 426; 2 Chit. St. 
 €9, 76-78; 3 Chit. St. 1497. Placing on file or 
 record generally, as annuities, attorneys, etc. 
 
 INSANITY. Unsoundness or derangement 
 of mind. 
 
 Insanity is the general term, and includes 
 all mental unsoundness, whether complete 
 or partial, and whether congenital or in- 
 duced. 
 
 It may be divided into (1) idiocy or im- 
 becility, being the state of one who has been 
 from birth without reason, and (2) lunacy, 
 the state of one who once possessed reason, 
 but has lost it in whole or in part. 
 
 "Lunacy" may be either (1) impulsive, 
 
 consisting in an unnatural and sometimes ir- 
 resistible impulse to certain acts, apart from 
 or against all reason, and (2) delusive, con- 
 sisting in persistent and incorrigible hallu- 
 cinations as to matters of fact. 
 
 Further subdivisions have been sometimes 
 made, as into the various manias, — homi- 
 cidal, suicidal, etc. 
 
 Moral or emotional insanity is a perverted 
 condition of the emotional or moral nature, 
 inducing criminal acts, and not accompanied 
 by intellectual delusion. It is the negative 
 aspect of "irresistible impulse." 
 
 "Insanity" is frequently used in the sense 
 of "lunacy," and as excluding "idiocy," and 
 "imbecility." 
 
 The forms of insanity have been tabulated 
 by a distinguished alienist as follows: 
 I. Defective development of the faculties. 
 
 (1) Idiocy. 
 
 (a) Resulting from congenital de- 
 
 fect. 
 
 (b) Resulting from an obstacle to 
 
 the development of the fac- 
 ulties, supervening in In- 
 fancy. 
 
 (2) Imbecility. 
 
 (a) Resulting from congenital de- 
 
 fect. 
 
 (b) Resulting from an obstacle to 
 
 the development of the fac- 
 ulties, supervening in in- 
 fancy. 
 TI. Lesion of the faculties subsequent to 
 their development. 
 
 (1) Mania. , 
 
 (a) Intellectual. 
 
 (aa) General, 
 (bb) Partial. 
 
 (b) Affective. 
 
 (aa) General. ' 
 
 (bb) Partial. 
 
 (2) Dementia. 
 
 (a) Consecutive to mania, or inju- 
 
 ries of the brain. 
 
 (b) Senile, peculiar to old age. 
 
 1 Ray, Med. Jur. "Insanity" (3d Ed.) p. 71. 
 
 INSANUS EST QUI.ABJECTA RATIONE, 
 omnia cum impetu at furore faoit. He is in- 
 sane who, reason being thrown away, does 
 everything with violence and rage. 4 Coke, 
 128. 
 
 INSCRIBERE. In the Roman law. To 
 subscribe an accusation. The subscriber was 
 bound to substantiate his charge, or suffer 
 the penalty appropriate to such charge. 
 Calv. Lex. 
 
 INSCRIPTIO (Lat.) In civil law. A writ- 
 ten accusation; an undertaking to suffer the 
 punishment of the accused in case of a fail- 
 ure to prove him guilty. Calv. Lex. 
 
 INSCRIPTION. 
 
 In Civil Law. An engagement which 
 
 a person who makes a solemn accusation of 
 a crime against another enters into that he 
 will suffer the same punishment, if he has 
 accused the other falsely, which would have 
 
INSCRIPTIONES 
 
 (486) 
 
 INSPECTION, TRIAL BY 
 
 been inflicted upon him had he been guilty. 
 Code, 9. 1. 10; Id. 9. 2. 16. 17. 
 
 In Evidence. Something written or en- 
 graved. 
 
 Inscriptions upon tombstones and other 
 proper places, as rings, and the like, are held 
 to be evidence of pedigree. Buller^ N. P. 
 233; Cowp. 591; 10 East, 120; 13 Ves. 145. 
 See "Declaration;" "Hearsay Evidence." 
 
 INSCRIPTIONES (Lat.) The name given 
 by the old English law to any written in- 
 strument by which anything is granted. 
 Blount. 
 
 INSENSIBLE. In pleading. That which 
 is unintelligible is said to be insensible. 
 Steph. PI. 378. 
 
 INSIDERS. See "Gambling Contract." 
 
 INSIDIATORES VIARUM (Lat.) Persons 
 who lie in wait in order to commit some fel- 
 ony or other misdemeanor. 
 
 INSIMUL(Lat.) Together; jointly. Towns. 
 PI. 44. 
 
 INSIMUL COMPUTASSENT (Lat.) They 
 had accounted together. See "Account." 
 
 INSIMUL TENUIT. In old English prac- 
 tice. The name of a species of the writ of 
 formedon in the descender, which lay for a 
 cotenant against a stranger. 
 
 INSINUACION. In Spanish law. The pres- 
 entation of a public document to a compe- 
 tent judge, in order to obtain his approba- 
 tion and sanction of the same, and thereby 
 giving it judicial authenticity. 
 
 "Insinuatio est ejus quod traditur, sive 
 agitur, coram quocumque judice in scriptu- 
 ram redactio." 
 
 This formality is requisite to the validity 
 of certain donations inter vivos. Escriche, 
 Die. Raz. 
 
 neai 
 
 INSINUARE. In civil law. To put into; 
 fl deposit a writing in court, answering 
 nearly to the modern expression "to file." 
 To transcribe an act in the public registers; 
 to record. Si non mandatum actis insinu- 
 atum est, if the power or authority be not 
 deposited among the records of the court. 
 Inst. 4. 11. 3. 
 
 To declare or acknowledge before a judi- 
 cial ofiicer; to give an act an official form. 
 Calv. Lex. 
 
 To make known; to give information. Id. 
 i 
 
 INSINUATIO (Law Lat.) In old English 
 law. Information or suggestion. Ex insin- 
 uatione, on the information. Reg. Jud. 25, 
 50. 
 
 INSINUATION. In civil law. The tran- 
 scription of an act on the public registers, 
 like our recording of deeds. It was not nec- 
 essary in any other alienation but that ap- 
 propriated to the purpose of donation. Inst. 
 2. 7. 2; Poth. Tr. des Donations, Entre Vifs, 
 sec. 2, art. 3, § 3; Encyclopedie; 8 Toullier, 
 Dr. Civ. note 198. 
 
 INSINUATION OF A WILL. In civil law. 
 The first production of it; or, leaving it in 
 the hands of the register in order to its pro- 
 bate. 21 Hen. VIII. c. 5; Jacob. 
 
 INSOLVENCY. The state of a person who 
 is unable, from any cause, to pay his debts. 
 Two tests of insolvency prevail, their appli- 
 cation generally being governed by the pur- 
 pose for which the fact of insolvency is as- 
 certained, though there is some confusion in 
 the cases in this respect. 
 
 Generally, for the purpose of enabling the 
 debtor or his creditors to take advantage of 
 insolvent acts, one is insolvent who is un- 
 able to meet his obligations as they accrue 
 in due course of trade, and is unable to 
 proceed in business without making some 
 arrangement with his creditors, without re- 
 gard to the ultimate sufficiency of his assets 
 in liquidation. 112 Pa. St. 294; 98 Iowa, 321; 
 86 Me. 246; 3 Gray (Mass.) 600; 116 Mo. 226. 
 
 Within the rule relating to conveyances 
 by insolvent persons, It is generally held 
 that one is insolvent whose obligation could 
 not be collected by legal means out of his 
 property. 43 N. Y. 75; 31 Mo. 73. If one 
 has means from which payment could be en- 
 forced, he is not insolvent, even though he 
 is in embarrassed circumstances, and un- 
 able to make present payment (136 N. Y. 
 104; 52 Mo. App. 282), or has even been com- 
 pelled to suspend business (63 Hun [N. Y.] 
 632). Property so situated that it cannot 
 be reached by creditors is not to be consid- 
 ered in determining the issue of solvency. 
 53 Ga. 339. 
 
 Distinction between "insolvency'' and 
 "bankruptcy," see "Bankruptcy." 
 
 INSOLVENT. One who is in a state of in- 
 solvency (g. V.) 
 
 INSPECTATOR. An adverse party. 
 
 INSPECTION CLaX. inspicere, to look into). 
 The examination of certain articles made by 
 law subject to such examination, so that 
 they may be declared fit for commerce. The 
 decision of the inspectors is not final. The 
 object of the law is to protect the communi- 
 ty from fraud, and to preserve the character 
 of the merchandise abroad. 8 Cow. (N. Y.) 
 45. See 1 Johns. (N. Y.) 205; 13 Johns. (N. 
 Y.) 331; 2 Caines (N. Y.) 312; 3 Caines (N. 
 Y.) 207. 
 
 In Practice. Examination. 
 
 The inspection of all public records is free 
 to all persons who have an interest in them, 
 upon payment of the usual fees. 7 Mod. 
 129; 1 Strange, 304; 2 Strange, 260, 954, 
 1005. But it seems a mere stranger, who 
 has no such Interest, has no right at com- 
 mon law. 8 Term R. 390. 
 
 INSPECTION, TRIAL BY. A mode of trial 
 formerly in use in England, by which the 
 judges of a court decided a point in dispute, 
 upon the testimony of their own senses, 
 without the intervention of a jury. This 
 took place in cases where the fact upon 
 which issue was taken must, from its na- 
 ture, be evident to the court from ocular 
 
INSPECTOR 
 
 (4S7) 
 
 INSTITOR 
 
 demonstration, or other irrefragable proof, 
 and was adopted for the greater expedition 
 of a cause. 3 Bl. Comm. 331. In this way- 
 questions whether a party were an infant or 
 not, whether an injury was mayhem or not, 
 etc., were determined; but this has been 
 long out of use. 3 Steph. Comm. 582. 
 
 INSPECTOR. The name given to certain 
 officers whose duties are to examine and in- 
 spect things over which they have jurisdic- 
 tion; as, inspector of bark, one who is by 
 law authorized to examine bark for exporta- 
 tion, and to approve or disapprove of its 
 quality. Inspectors of customs are officers 
 appointed by the general government. As to 
 their duties, see 1 Story, U. S. Laws, 590, 
 605, 609, 610, 612, 619, 621, 623, 650; 2 Story, 
 U. S. Laws, 1490, 1516; 3 Story, U. S. Laws, 
 1650, 1790. 
 
 INSPECTORSHIP, DEED OF. In English 
 law. An agreement between an insolvent 
 and his creditors, by which a certain person 
 is appointed to supervise the winding up of 
 the estate. 
 
 INSPEXIMUS(Lat.we have seen). A word 
 sometimes used in letters patent, reciting a 
 grant, inspeximus such former grant, and so 
 reciting it lerbutiiii. It then grants such 
 further privileges as are thought convenient. 
 5 Coke, 54. 
 
 INSTALLATION, or INSTALMENT. The 
 
 act by which an officer is put in public pos- 
 session of the place he is to fill. The presi- 
 dent of the United States, or a governor, is 
 installed into office, by being sworn agree- 
 ably to the requisition of the constitution 
 and laws. 
 
 INSTANCE. Literally, standing on; hence, 
 urging, solicitation. Webster. 
 
 In Civil and French Law. In general, 
 
 all sorts of actions and judicial demands. 
 Dig. 44. 7. 58. 
 
 In Ecclesiastical Law. Causes of in- 
 stance are those proceeded in at solicitation 
 of some party, as opposed to causes of office, 
 which run in the name of the judge. Hali- 
 fax, Anal. p. 122. 
 
 In Scotch Law. That which may be 
 
 insisted on at one diet or course of proba- 
 tion. Wharton. 
 
 INSTANCE COURT. In English law. That 
 branch of the admiralty court which has 
 the jurisdiction of all matters except those 
 relating to prizes. 
 
 An "insiance court" takes cognizance of 
 contracts made and injuries committed on 
 the high seas; a "prize court" has jurisdic- 
 tion of prizes, etc. 18 Johns. (N. Y.) 257. 
 
 The term is sometimes used in American 
 law for purposes of explanation, but has no 
 proper application to admiralty courts in 
 the United States, where the powers of both 
 instance and prize courts are conferred with- 
 out any distinction. 3 Ball. (U. S.) 6; 1 
 Gall. (U. S.) 563; 3 Kent, Comm. 355, 378. 
 See "Admiralty." 
 
 INSTANCIA. In Spanish law. The insti- 
 
 tution and prosecution of a suit from its in- 
 ception until definitive judgment. The first 
 instance, primera instancia, is the prosecu- 
 tion of a suit before the judge competent to 
 take cognizance of it at its inception; the 
 second instance, secunda instancia, is the ex- 
 ercise of the same action before the court of 
 appellate jurisdiction; and the third in- 
 stance, tercera instancia, is the prosecution 
 of the same suit, either by an application of 
 revision before the appellate tribunal, that 
 has already decided the cause, or before 
 some higher tribunal, having jurisdiction of 
 the same. 
 
 All civil suits must be tried and decided, 
 in the first instance, within three years; and 
 all criminal, within two years. 
 
 As a general rule, three instances are ad- 
 mitted in all civil and criminal cases. Const. 
 1812, art. 285. 
 
 INSTANS EST FINIS UNIUS TEMPORIS 
 et principlum alterius. An instant is the end 
 of one time, and the beginning of another. 
 Co. Litt. 185. 
 
 INSTANTER (Lat.) Immediately; pres- 
 ently. This term, it is said, means that the 
 act to which it applies shall bp done within 
 twenty-four hours; but a doubt has been 
 suggested by whom is the account of the 
 hours to be kept, and whether the term "in- 
 stanter," as applied to the subject matter, 
 may not be more properly taken to mean 
 "before the rising of the court," when the 
 act is to be done in court, or "before the 
 shutting of the office the same night," when 
 the act is to be done there. 1 Taunt. 343; 6 
 East, 587, note (e) ; Tidd, Prac. (3d Ed.) 
 508, note; 3 Chit. Prac. 112. See 3 Burrows, 
 1809; Co. Litt. 157; Styles, Reg. 452. 
 
 INSTAR (Lat.) Like; resembling; equiva- 
 alent; as, instar dentium, like teeth; instar 
 omnium, equivalent to all. 
 
 INSTAURUM (Law Lat.) In old English 
 deeds. A stock or store of cattle, and other 
 ihings; the whole stock upon a farm, includ- 
 ing cattle, wagons, ploughs, and all other 
 implements of husbandry. 1 Mon. Angl. 548 ; 
 Pleta, lib. 2, c. 68. § 1; Id. c. 72, § 7. Terra 
 instaurata, land already stocked, or furnished 
 with all tilings necessary to carry on the use 
 or occupation of a farm. 
 
 INSTIGATION. The act by which one in- 
 cites another to do something; as, to injure 
 a third person, or to commit some crime or 
 misdemeanor, to commence a suit, or to pros- 
 ecute a criminal. See "Accomplice." 
 
 INSTIRPARE. To establish. 
 
 INSTITOR (Lat.) In civil law. A clerk 
 in a store; an agent. 
 
 He was so called' because he watched over 
 the business with which he was charged; 
 and it is immaterial whether he was em- 
 ployed in making a sale in the store, or 
 whether charged with any other business. 
 Institor appellatus est ex eo, quod negotio 
 gerendo instet; nee multum facit tabernae 
 sit praepositus, an cuilibet alii negotiationi. 
 Dig. 14. 3. 1. 3. Mr. Bell says that the 
 
INSTITORIA ACTIO 
 
 (488) 
 
 INSTITUTES 
 
 charge given to a clerk to manage a store 
 or shop is called "institorial power." 1 Bell, 
 Comm. (5th Ed.) 479; Ersk. Inst. 3. 3. 46; 
 1 Stair, Inst, (by Brodie) bk. 1, tit. 11, §§ 
 12, 18, 19; Story, Ag. § 8. 
 
 INSTITORIA ACTIO (Lat.) In the civil 
 law. The name of an action given to those 
 who had contracted with an institor (g. v.) 
 to compel the principal to performance. 
 Inst. 4. 7. 2; Dig. 14. 3. 1; Story, Ag. § 426. 
 
 INSTITUTE. 
 
 In Scotch Law. The person first called 
 
 in the "tailzie;" the rest, or the heirs of 
 tailzie, are called "substitutes."' Ersk. Prac. 
 3. 8. 8. See "Substitutes." 
 
 In Civil Law. One who is appointed 
 
 heir by testament, and is required to give 
 the estate devised to another person, who is 
 called the "substitute." 
 
 To name or to make an heir by testament. 
 Dig. 28. 5. 65. To make an accusation; to 
 commence an action. 
 
 INSTITUTES. Elements of jurisprudence ; 
 text books containing the principles of law 
 made the foundation of legal studies. 
 
 The word was first used by the civilians 
 to designate those books prepared for the 
 student, and supposed to embrace the funda- 
 mental legal principles arranged in an or- 
 derly manner. Two books of Institutes were 
 known to the civil lawyers of antiquity,^ — 
 Gaius and Justiniain. 
 
 (1) Coke's Institutes. Pour volumes of 
 commentaries upon various parts of the Eng- 
 lish law. 
 
 Sir Edward Coke hath written four vol- 
 umes of "Institutes," as he is pleased to call 
 them, though they have little of the institu- 
 tional method to warrant such a ti*le. The 
 first volume is a very extensive commentary 
 upon a little excellent treatise of tenures, 
 compiled by Judge Littleton in the reign of 
 Edw. IV. This comment is a rich mine of 
 valuable common-law learning, collected and 
 heaped together from the ancient reports 
 and Year Books, but greatly defective in 
 method. The second volume is a comment 
 on many old acts of parliament, without any 
 systematical order; the third, a more me- 
 thodical treatise on the pleas of the crown; 
 and the fourth, an account of the several 
 species of courts. These Institutes are usu- 
 ally cited thus: The first volume as Co. Litt., 
 or 1 Inst.; the second, third, and fourth as 
 2, 3, or 4 Inst., without any author's name. 
 1 Bl. Comm. 72. 
 
 (2) Gains' Institutes. A tractate upon the 
 Roman law, ascribed to Caius or Gaius. 
 
 Of the personal history of this jurist noth- 
 ing is known. Even the spelling of his name 
 is matter of controversy, and he is known 
 by no other title than Gains, or Caius. He 
 is believed to have lived in the reign of 
 Marcus Aurelius. The history of Gains' In- 
 stitutes is remarkable. In 1816, Niebuhr 
 was sent to Rome by the king of Prussia. 
 On his way thither, he spent two days in the 
 cathedral library of Verona, and at this time 
 discovered these Institutes, which had been 
 
 lost to the jurists of the middle ages. In 
 1817, the Royal Academy of Berlin charged 
 Goeschen, Bekker, and Hollweg with the dn- 
 ty of transcribing the discovered manu- 
 script. In 1819, Goeschen gave the first com- 
 pleted edition, as far as the manuscript 
 could be deciphered, to his fellow jurists. It 
 created an unusual sensation, and became 
 a fruitful source of comment. It formed a 
 new era in the study of Roman law. It 
 gave the modern jurist the signal advantage 
 of studying the source of the Institutes of 
 Justinian. It is believed by the best mod- 
 ern scholars that Gains' was the first origi- 
 nal tractate of the kind, not being compiled 
 from former publications. The language of 
 Gaius is clear, terse, and technical, — evi- 
 dently written by a master of law, and a 
 master of the Latin tongue. The Institutes 
 were unquestionably practical. There is no 
 attempt at criticism or philosophical discus- 
 sion. The disciple of Sabinus is content to 
 teach law as he finds it. Its arrangement 
 is solid and logical, and Justinian follows it 
 with an almost servile imitation. 
 
 The best editions of Gaius are Goeschen's 
 second edition, Berlin, 1824, in which the 
 text was again collated by Bluhme, and the 
 third edition of Goeschen, Berlin, 1842, ed- 
 ited by Lachman from a critical revision by 
 Goeschen, which had been interrupted by 
 his death. In France, (Jains attracted equal 
 attention, and we have three editions and 
 translations: Boulet, Paris, 1824; Domen- 
 get. 1843; and Pellat, 1844. 
 
 In 1859, Francesco Lisi, a learned Italian 
 scholar, published, at Bologna, a new edi- 
 tion of the first book of Gaius, with an Ital- 
 ian translation, en regard. "The edition is 
 accompanied and enriched by many valuable 
 notes, printed in both Latin and Italian. 
 Perhaps this must be considered, so far as 
 printed, the most complete edition of the 
 old civilian that modern scholars have yet 
 produced. 
 
 The reader who may wish to pursue his 
 Gaiian studies should consult the list of 
 some thirty-odd treatises and commentaries 
 mentioned in Mackeldey's Lehrbuch des Rom. 
 Rechts, p. 47, note (b), (13th Ed.) Wien, 
 1851; Huschke, Essay Zur Kritik und In- 
 terp. von Gaius Inst., Breslau, 1830; Hau- 
 bold's Inst. Jur. Rom. Prev. Line pp. 151, 
 152, 505, 506, Lipsiae, 1826; Boecking's Ga- 
 ius, Preface, pp. 11-18, Leps. 1845; Lisi's 
 Gaius, Preface, pp. x. xi., Bologna, 1859. 
 
 (3) Justinian's Institutes. An abridg- 
 ment of the Code and Digest, composed by 
 order of that emperor, and under his guid- 
 ance, with an intention to give a summary 
 knowledge of the law to those persons not 
 versed in it, and particularly to students. 
 Inst. Proem. § 3. 
 
 The lawyers employed to compile it were 
 Tribonian, Theophllus, and Dorotheus. The 
 work was first published on the 21st of No- 
 vember in the year 533, and received the 
 sanction of statute law by order of the em- 
 peror. They are divided into four books; 
 each book is divided into titles, and each ti- 
 tle into separate paragraphs or sections, pre- 
 ceded by an introductory part. The first 
 part is called principium, because it Is the 
 
INSTITUTES 
 
 (489) 
 
 INSTITUTIONES 
 
 commencemenlf of the title; those which fol- 
 low are numbered, and called "paragraphs." 
 The work treats of the rights of persons, 
 of things, and of actions. The first bpok 
 treats of persons; the second, third, and the 
 flTst five titles of the fourth book, of things; 
 and the remainder of the fourth book, of ac- 
 tions. The method of citing the Institutes 
 should be understood, and is now commonly 
 by giving the number of the book, title, and 
 section, thus: Inst. I. 2. 5, — thereby indi- 
 cating book I. title 2, section 5. Where it 
 is intended to indicate the first paragraph, 
 or principium, thus: Inst. B. I. 2. pr. Fre- 
 quently the citation is simply I. or J. I. 2. 
 5. A second mode of citation is thus: § 5, 
 Inst, or I. I. 2, — meaning book I title 2, 
 paragraph 5. A third method of citation, 
 and one in universal use with the older 
 jurists, was by giving the name of the title 
 and the first words of the paragraph refer- 
 red to, thus: § senatusoonsultum est I de 
 jure nat. gen. et civil, — which means, as be- 
 fore, Inst. B. I. tit. 2, § 5. See 1 Colquhoun, 
 § 61. 
 
 The first printed edition of the Institutes 
 is that of Schoyffer, lol. 1468. The last crit- 
 ical German edition is that of Schrader, 
 Berlin, 1832. This work of Schrader is the 
 most learned and most elaborate commen- 
 tary on the text of Justinian in any lan- 
 guage, and was intended to form a part of 
 the Berlin Corpus Juris, but nothing further 
 has been yet published. It is impossible in 
 this brief article to name all the commenta- 
 ries on these Institutes, which in all ages 
 have commanded the study and admiration 
 of jurists. More than one hundred and fifty 
 years ago, one Romberg printed a tract De 
 Multitudine nimia Commentatorum in In- 
 stutiones Juris. But we must refer the read- 
 er to the best recent French and English 
 editions. Ortolan's Institutes de I'Empereur 
 Justinien avec le texte, la traduction en re- 
 gard, et les explications sous chaque para- 
 graphe, Paris, 1857, 3 vols. 8vo, sixth edi- 
 tion. This is, by common consent of schol- 
 ars, regarded as the best historical edition 
 of the Institutes ever published. Du Caur- 
 roy's Institutes de Justinean traduites et ex- 
 pliquees par A. M. Du Caurroy, Paris, 1851, 
 8th ed. 2 vols. 8vo. The Institutes of Jus- 
 tinian, with English Introduction, Transla- 
 tion, and Notes, by Thomas Collet Sandars, 
 M. A., London, 1853, 8vo; 2d Ed., 1860. This 
 work has been prepared expressly for begin- 
 ners, and is founded mainly upon Ortolan, 
 with a liberal use of La Grange, Du Caur- 
 roy, Warnkoenig, and Puchta, as well as 
 Harris and Cooper. A careful study of this 
 edition will result in the student's abandon- 
 ing its pages, and betaking himself to Schra- 
 der and Ortolan. The English edition of 
 Harris, and the American one of Cooper, 
 have ceased to attract attention. 
 
 (4) Theophilus' Institutes. A paraphrase 
 of Justinian, made, it is believed, soon after 
 A. D. 5"^^. 
 
 It is generally supposed that in A. D. 534, 
 535, and 536, Theophilus read his commen- 
 tary in Greek to his pupils in the law school 
 of Constantinople. He is conjectured to 
 have died some time in A. D. 536. This 
 
 paraphrase maintained itself as a manual 
 of law until the eighth or tenth century. 
 This text was used in the time of Hexabib- 
 los of Harmenipulus, the last of the Greek 
 jurists. It is also conjectured that Theophi- 
 lus was not the editor of his own para- 
 phrase, but that it was drawn up by some 
 of his pupils after his explanations and lec- 
 tures, inasmuch as it contains certain bar- 
 barous phrases, and the texts of the manu- 
 scripts vary greatly from each other. 
 
 It has, however, always been somewhat in 
 use, and jurists consider that its study aids 
 the text of the Institutes; and Cujas and 
 Hugo have both praised it. The first edition 
 was that of Zuichem, fol. Basle, 1531; the 
 best edition is that of Reitz, 2 vols. 4to, 1751, 
 Haag. There is a German translation by 
 Wusterman, 1823, 2 vols. 8vo; and a French 
 translation by- Mons. Ilregier, Paris, 1847, 
 8vo, whose edition is prefaced by a learned 
 and valuable introduction and dissertation. 
 Consult Mortreuil, Hist, du Droit Byzan., 
 Paris, 1843; Smith, Diet. Biog. London, 1849, 
 3 vols. 8vo; 1 Kent, Comm. 533; Profession 
 d'Avocat, torn. ii. note 536, p. 95; Introd. a 
 I'Etude du Droit Remain, p. 124; Diet de 
 Jurisp.; Merlin, Repert.; Enc. d'Alembert. 
 
 INSTITUTIO HAEREDIS (Lat.) In Ro- 
 man law. The appointment of the haeres in 
 the will. See "Haeres." 
 
 INSTITUTION (Lat. instituere, to form, to 
 establish). 
 
 In Civil Law. The appointment of an 
 
 heir; the act by which a testator nominates 
 one or more persons to succeed him in all 
 his rights, active and passive. Halifax, 
 Anal. 39; Poth. Tr. des Donations Testamen- 
 taires. c. 2, sec. 1, § 1; Civ. Code La. art. 1598; 
 Dig. 28. 5. 1; Id. 1. 28. 6. 1. 2. 4. 
 
 In Ecclesiastical Law. To become a 
 
 parson or vicar, four things are necessary, 
 viz., holy orders, presentation, institution, 
 induction. Institution is a kind of investi- 
 ture of the spiritual part of the benefice; 
 for by institution the care of the souls of 
 the parish is committed to the charge of the 
 clerk, previous to which the oath against 
 simony and of allegiance and supremacy are 
 to be taken. By institution the benefice is 
 full, so that there can be no fresh presenta- 
 tion (except the patron be the king), and 
 the clerk may enter on parsonage house and 
 glebe, and take the tithes; but he cannot 
 grant or let them, or bring an action for 
 them, till induction. See 1 Sharswood, Bl. 
 Comm. 389-391; 1 Burn, Ecc. Law, 169-172. 
 
 In Political Law. A law, rite, or cere- 
 mony enjoined by authority as a permanent 
 rule of conduct or of government; as, the 
 Institutions of Lycurgus. Webster. An or- 
 ganized society, established either by law or 
 the authority of individuals, for promoting 
 any object, public or social. Webster. 
 
 In Practice. The commencement of an 
 
 action ; as, A. B. has instituted a suit against 
 C. D. to recover damages for trespass. 
 
 INSTITUTIONES (Lat. from instituere, to 
 instruct, or educate). Works containing the 
 elements of any science; institutions, or in- 
 
INSTRUCTIONS 
 
 (490) 
 
 INSURANCE AGENT 
 
 stltutes. One of Justinian's principal law 
 collections, and a similar work of the Roman 
 jurist GalMS, are so entitled. See "Insti- 
 tutes." 
 
 INSTRUCTIONS. 
 
 In the Law of Agency. Orders given 
 
 by a principal to his agent in. relation to the 
 business of his agency. 
 
 The agent is bound to obey the instruc- 
 tions he has received, and when he neglects 
 so to do he is responsible for the conse- 
 quences, unless he is Justified by matter of 
 necessity. 4 Bin. (Pa.) 361; 1 Livermore, 
 Ag. 368. See "Agent." 
 
 In English Practice. The statements 
 
 of a cause of action, given by a client to 
 his attorney, and which, where such is the 
 practice, are sent to his pleader to put into 
 legal form of a declaration. Warren, Law 
 Stud. 284. 
 
 Instructions to counsel are their Indem- 
 nity for any aspersions they may make on 
 the opposite party; but attorneys who have 
 a just regard to their own reputation will 
 be cautious, even under instructions, not to 
 make any unnecessary attack upon a party 
 or witness. For such unjustifiable conduct 
 the counsel Will be held responsible. Eu- 
 nom. Dial. 2, § 43, p. 132. For a form of in- 
 structions, see 3 Chit. Prac. 117, 120, note. 
 
 In American Practice. The charge or 
 
 directions as to the law, given by the court 
 to the jury. 
 
 In French Law. The means used and 
 
 formality employed to prepare a case for 
 trial. It is generally applied to criminal 
 cases, and is then called "criminal instruc- 
 tion." It is <ben defined as the acts and pro- 
 ceedings which tend to prove positively a 
 crime or delict, in order to Inflict on the 
 guilty person the punishment which he de- 
 serves. 
 
 INSTRUMENT. The writing which con- 
 tains some agreement, and is so called be- 
 cause it has been prepared as a memorial 
 of what has taken place or been agreed 
 upon. 
 
 Something reduced to writing as a means 
 of evidence. Abbott. A will has been held 
 to be an "instrument." 14 Eq. Cas. 402. 
 
 The agreement and the instrument in 
 which It is contained are very different 
 things, — the latter being only evidence of 
 the existence of the former. 
 
 INSTRUMENT OF APPEAL. The docu- 
 ment by which an appeal is brought In an 
 English matrimonial cause from the presi- 
 dent of the probate, divorce, and admiralty 
 division to the full court. It is analogous 
 to a petition. Browne, Div. 322. 
 
 INSTRUMENT OF EVIDENCE. Instru- 
 ments of evidence are the media through 
 which the evidence of facts, either disputed 
 or required to be proved, is conveyed to the 
 mind of a judicial tribunal; and they com- 
 prise persons, as well as writings. Best, 
 Bv. § 123. 
 
 INSTRUMENTA (Lat.) That kind of evi- 
 dence which consists of writings not under 
 
 seal; as, court rolls, accounts, and the like. 
 3 Co. Litt. (Thomas Ed.) 487. 
 
 INSUFFICIENCY. In chancery practice. 
 After filing of defendant's answer, the plain- 
 tiff has six weeks in which to file exceptions 
 to it for insufficiency, which is the fault of 
 not replying specifically to specific charges 
 in the bill. Smith, Ch. Prac. 344; Mitf. Eq. 
 PI. 376, note; Saunders, Ord. Chanc. Index. 
 
 INSULA (Lat. island). A house not con- 
 nected with other houses, but separated by 
 a surrounding space of ground. Calv. Lex. 
 
 INSUPER (Lat.) Moreover; over and 
 above. 
 
 An old exchequer term, applied to a charge 
 made upon a person in his account. Blount. 
 
 INSURABLE INTEREST. Such an inter- 
 est in a subject of insurance as will entitle 
 the person possessing it to obtain insurance. 
 
 In the law of fire insurance, an insurable 
 interest may be defined as such an interest 
 as would entail a pecuniary loss were the 
 property destroyed. 62 N. Y. 47. 
 
 In the law of life insurance, an insurable 
 interest in the life of another is such a re- 
 lation that the death of such person would 
 entail pecuniary loss. Any relationship re- 
 sulting in dependence, or giving a right to 
 service or support, gives an insurable inter- 
 est to the person benefited. 12 Mass. 115; 
 57 Vt. 496; 66 Mo. 63. A creditor has an in- 
 surable interest in the life of his debtor. 23 
 Conn. 244. ' 
 
 INSURANCE. A contract whereby, for an 
 agreed premium, one party undertakes to in- 
 demnify the other against loss on a specified 
 subject by specified perils. The party agree- 
 ing to make the indemnity is usually called 
 the "insurer" or "underwriter;" the other, 
 the "insured" or "assured;" the agreed con- 
 sideration, the "premium;" the written con- 
 tract, a "policy;" the events insured against^ 
 "risks" or "perils;" and the subject, right, 
 or interest to be protected, the "insurable 
 interest." 1 Phil. Ins. §§ 1-5. Called, also, 
 "assurance." 
 
 Insurance is classified according to the 
 nature of the risk insured against, or the 
 nature of the property insured, the princi- 
 pal sorts being (1) fire insurance, being 
 against injury to property by fire; (2) life 
 insurance, being against injury by the death 
 of one in whose interest the assured has a 
 pecuniary interest; (3) marine insurance, 
 being against injury to vessels or their cargo 
 by any peril of navigation; and (4) accident 
 insurance, being against loss from acciden- 
 tal personal injury. 
 
 Many other varieties, however, have be- 
 come common in recent years, as against in- 
 jury to crops by hail; against loss by de- 
 falcation; against defects of title to land, 
 etc. 
 
 INSURANCE AGENT. An agent for ef- 
 fecting insurance may be such by appoint- 
 ment, or the recognition of his acts done as 
 such. 2 Phil. Ins. § 1848; 4 Cow. (N. T.) 
 645. He may be agent for either ot the 
 
INSURED 
 
 (491) 
 
 INTER CANEM ET LUPUM 
 
 parties to the policy, or for distinct pur- 
 poses for botli. 16 T. B. Men. (Ky.) 252; 20 
 Barb. (N. Y.) 68. 
 
 INSURED. The person who procures an 
 insurance. 
 
 INSURER. The underwriter in a policy of 
 Insurance; the party agreeing to make in- 
 demnity to the other. Sometimes applied 
 improperly to denote the party insured. 
 
 INSURGENT. One who is concerned in 
 an insurrection. He differs from a rebel in 
 this, that "rebel" is always understood in a 
 bad sense, or one who unjustly opposes the 
 constituted authorities; insurgent may b? 
 one who justly opposes the tyranny of con- 
 stituted authorities. The colonists who op- 
 posed the tyranny of the English govern- 
 ment were insurgents, not rebels. 
 
 INSURRECTION. A rebellion of citizens 
 or subjects of a country against its govern- 
 ment. 
 
 An insurrection may constitute treason (3 
 Dall. [U. S.l 348), and, if extensive, may 
 amount to civil war. 67 U. S. 635. 
 
 INTAKERS. In English law. The name 
 given to receivers of goods stolen in Scot- 
 land, who take them to England. 9 Hen. V. 
 c. 27. 
 
 INTEGER (Lat.) Whole; untouched. Res 
 integra means a question which is new and 
 undecided. 2 Kent, Comm. 177. 
 
 INTEMPERANCE. Habitual immoderate 
 use of intoxicants does not necessarily im- 
 ply drunkenness. 76 111. 213. 
 
 INTEND (from Lat. intendere, from in, to 
 or towards, and tendere, to stretch or strain). 
 To fix the mind upon a thing; to mean; to 
 determine; to act with a full knowledge of 
 consequences, and with a determination or 
 willingness to produce such consequences. 1 
 Greenl. Ev. § 18; 3 Maule & S. 11, 15; Bur- 
 rill, Circ. Bv. 38, 47. 
 
 INTENDANT. One who has the charge, 
 management, or direction of some office, de- 
 partment, or public business. 
 
 INTENDED TO BE RECORDED. This 
 phrase is frequently used in conveyancing, 
 in deeds which recite other deeds which 
 have not been recorded. In Pennsylvania, it 
 has been construed to be a covenant, on the 
 part of the grantor, to procure the deed to 
 be recorded in a reasonable time. 2 Rawle 
 CPa.) 14. 
 
 INTENDENTE. In Spanish law. The im- 
 mediate agent of the minister of finance, or 
 the chief and principal director of the dif- 
 ferent branches of the revenue, appointed 
 In the various departments in each of the 
 provinces of the Spanish monarchy. See 
 Bscriche, Die. Raz. 
 
 . INTENDMENT OF LAW. The true mean- 
 ing, the correct understanding, or intention, 
 of the law; a presumption or inference made 
 by the courts. Co. Lltt. 78. 
 
 INTENT. Intention ((?. v.-) 
 That the terms are synonymous, see 2 
 Jones (N. C.) 414. 
 
 INTENTIO (Lat.) 
 
 In Civil Law. The formal complaint 
 
 or claim of a plaintiff before the praetor. 
 "Reus exoeptionem velut intentionem im- 
 plet;" id est, reus in exceptione actor est, the 
 defendant makes up his plea as if it were a 
 declaration; i. e., the defendant is plaintiff 
 in the plea. 
 
 In Old English Law. A count or decla- 
 ration in a real action (narratio). Brac- 
 ton, lib. 4, tr. 2, c. 2; Pleta, lib. 4, c. 7; Du 
 Cange. 
 
 INTENTIO CAECA MALA. A hidden in- 
 tention Is bad. 2 Bulst. 179. 
 
 INTENTIO INSERVIRE DEBET LEGI- 
 
 bus, non leges intention!. Intentions ought 
 to be subservient to the laws, not the laws 
 to intentions. Co. Litt. 314. 
 
 INTENTIO MEA IMPONIT NOMEN OP- 
 eri meo. My intent gives a name to my act. 
 Hob. 123. 
 
 INTENTION. A design, resolve, or deter- 
 mination of the mind. 
 
 The exercise of an intelligent will, the 
 mind being fully aware of the nature and 
 consequences of the act which is about to 
 be done, and with such knowledge, and with 
 full liberty of action, willing and electing 
 to do it. 2 Lea (Tenn.) 619. 
 
 It implies contractual obligation to carry 
 out the intention, and is to be distinguished 
 from "promise." 24 N. J. Law, 430. 
 
 It is not synonymous with "motive" (131 
 Mo. 397), nor with "attempt" (3 Dev. [N. 
 C] 330). 
 
 INTER. In Latin phrases. A preposition, 
 meaning among; between. 
 
 INTER ALIA ( Lat. ) Among other things ; 
 as, "the said premises, which, inter alia, 
 Titius granted to Caius." 
 
 INTER ALIAS CAUSAS ACQUISITIONES 
 magna, Celebris, et famosa est causa dona- 
 tionis. Among other methods of acquiring 
 property, a great, much-used, and celebrated 
 method Is that of gift. Bracton. 11. 
 
 INTER ALIOS (Lat.) Between other par- 
 ties, who are strangers to the proceeding in 
 question. 
 
 INTER ALIOS RES GESTAS ALUS NON 
 posse praejudicium facere saepe constitutum 
 est. It has been often settled that things 
 which took place between other parties can- 
 not prejudice. Code, 7. 60. 1. 2. 
 
 INTER APICES JURIS. See "Apex Juris." 
 
 INTER CAETEROS (Lat.) Among oth- 
 ers; in a general clause; not by name (nom- 
 imitiiii). A term applied, In the civil law, to 
 clauses of disinheritance in a will. Inst. 2. 
 13. 1; Id. 2. 13. 3. 
 
 INTER CANEM ET LUPUM (Lat. between 
 
INTER CONJUGES 
 
 (492) 
 
 INTERESSE TERMINI 
 
 the dog and the wolf). The twilight; be- 
 cause then the dog seeks his rest, and the 
 wolf his prey. 3 Inst. 63. 
 
 INTER CONJUGES. Between husband and 
 wife. 
 
 INTER PARTES (Lat. between the par- 
 ties). A phrase signifying an agreement 
 professing in the outset, and before any 
 stipulations are introduced, to be made be- 
 tween such and such persons; as, for ex- 
 ample, "This indenture, made the day 
 
 of , 1848, between A. B., of the one 
 
 part, and C. D., of the other." It is true 
 that every contract is in one sense inter 
 partes, because to be valid there must be 
 two parties at least, but the technical sense 
 of this expression is as above mentioned. 
 Add. Cont. 9. 
 
 INTER REGALIA. Among the regalia (g. 
 
 r.) 
 
 INTER SE, INTER SESE (Lat.) Among 
 themselves. Story, Partn. § 405. 
 
 INTER VIVOS (Lat.) Between living per- 
 sons; as, a gift inter vivos, which is a gift 
 made by one living person to another. See 
 "Gifts." It is a rule that a fee cannot pass 
 by grant or transfer inter vivos, without ap- 
 propriate words of inheritance. 2 Prest. Est. 
 64. See "Donatio Mortis Causa." 
 
 INTERCALARE (Lat.) In civil law. To 
 introduce or insert among or between oth- 
 ers; to introduce a day or month into the 
 calendar; to intercalate. Dig. 50. 16. 98. pr. 
 
 INTERCHANGEABLY (Law Lat. alterna- 
 tim). In the way, mode, or form of ex- 
 change or interchange. A term constantly 
 used in the concluding clause of indentures, 
 — in witness whereof, the said parties have 
 hereunto interchangeably set their hands 
 and seals, — and properly importing not only 
 an execution by all the parties, but an ac- 
 tual interchange of signatures and seals, 
 such as takes place in the case of instru- 
 ments executed in duplicate, or in part and 
 counterpart, where the signature and seal of 
 each party are affixed to the part given to 
 the other. It is used, however, every day in 
 deeds signed by the grantor only, but will 
 not be held to import a signature by the 
 grantee. 7 Pa. St. 329. 
 
 INTERCOM MON. To enjoy a right of com- 
 mon mutually with the inhabitants of a con- 
 tiguous town; vill, or manor. 2 Sharswood, 
 Bl. Comm. 33; Termes de la Ley. 
 
 INTERCOMMONING. A mutual privilege, 
 between the tenants of adjoining manors, of 
 pasturing their cattle on the commons of 
 each other. 
 
 INTERCOURSE (Lat. intercnrsus, from in- 
 ter, between, and eiirrere, to run). Communi- 
 cation; literally, a running, or passing be- 
 tween persons or places; commerce. 7 How. 
 (U. S.) 283-573. 
 
 INTERDICT. 
 
 In Civil Law. The formula according 
 
 to which the praetor ordered or forbade any- 
 thing to be done in a cause concerning true 
 or quasi possession until it should be de- 
 cided definitely who had a right to it. But 
 in modern civil law it is an extraordinary 
 action, by which a summary decision is had 
 in questions of possession or quasi posses- 
 sion. Heinec. Blem. Jur. Civ. § 1287. In- 
 terdicts are either prohibitory, restorative, 
 or exhibitory; the first being a prohibition, 
 the second a decree for restoring possession 
 lost by force, the third a decree for the ex- 
 hibiting of accounts, etc. Id. 1290. Inter- 
 dicts were decided by the praetor without 
 the Intervention of a judex, differing in this 
 from actions (actiones). 
 
 The etymology of the word, according to 
 Justinian, is quod inter duos dicitur; accord- 
 ing to Isidorus, quod interim dicitur. Vo- 
 cat; Sand. Just. 589; Mackeld. Civ. Law, §§ 
 195, 230, 235. Like an injunction, the inter- 
 dict was merely personal in its effects; and 
 it had also another similarity to it, by being 
 temporary or perpetual. Dig. 43. 1. 1. 3. 4. 
 See Story, Eq. Jur. § 865; Halifax, Anal. c. 
 6. See "Injunction." 
 
 In Ecclesiastical Law. Ail ecclesias- 
 tical censure, by which divine services are 
 prohibited either to particular persons or 
 particular places. These tyrannical edicts, 
 issued by ecclesiastical powers, have been 
 abolished in England since the reformation, 
 and were never known in the United States. 
 See 2 Bum,' Ecc. Law, 340, 341. Baptism 
 was allowed during an interdict; but the 
 holy eucharist was denied, except in the 
 article of death, and burial in consecrated 
 ground was denied, unless without divine 
 offices. 
 
 INTERDICTION. In Civil law. A judicial 
 decree, by which a person is deprived of the 
 exercise of his civil rights. 
 
 The condition of the party who labors un- 
 der this Incapacity. 
 
 INTERDICTUM SALVIANUM (Lat.) In 
 civil law. The Salvian interdict A process 
 which lay for' the owner of a farm to obtain 
 possession of the goods of his tenant who 
 had pledged them to him for the rent of the 
 land. Inst. 4. 15. 3. 
 
 INTERDUM EVENIT UT EXCEPTIO 
 quae prima facie justa videtur, tamen ini- 
 que noceat. It sometimes happens that a 
 plea which seems prima ■facie just, neverthe- 
 less is injurious and unequal. Inst. 4. 14; 
 Id. 4. 14. 1. 2. 
 
 INTERESSE (Lat.) The interest of mon- 
 ey, as distinguished from the principaL 
 An interest in land. 
 
 INTERESSE TERMINI (Lat.) An inter- 
 est in the term. The demise of a term In 
 land does not vest any estate in the lessee, 
 but gives him a mere right of entry on the 
 land, which right is called his interest in 
 the term, or inter esse termini. See Co. Lltt. 
 46; 2 Bl. Comm. 144; 10 Viner, Abr. 348; 
 Dane, Abr. Index; Watk. Con v. 15; 1 Wasfcb. 
 Real Prop. Index. 
 
INTEREST 
 
 (493) 
 
 INTERLOCUTORY 
 
 INTEREST (Lat.) It concerns; it is of 
 adTantage. 
 
 In ^Contracts. The right of property 
 
 -which a man has in a thing. See '.'Insurable 
 Interest." 
 
 On Debts. The compensation which is 
 
 paid by the borrower of money to the 
 lender for its use, and, generally, ■ by a 
 debtor to his creditor in recompense for his 
 detention of the debt. 
 
 INTEREST, MARITIME. See "Marine In- 
 terest." 
 
 INTEREST OR NO INTEREST. A provi- 
 sion in a policy of insurance, which imports 
 that the policy is to be good though the in- 
 sured have no insurable interest in the sub- 
 ject maiter. This consti.utes a "wager pol- 
 icy," which is bad in England, by St. 19 Geo. 
 II. c. 37, and, generally, from the policy of 
 the law. 2 Pars. Mar. Law, 89, note. 
 
 INTEREST REIPUBLICAE NE MALEFI- 
 cia remaneant impunlta. It concerns the 
 commonwealth that crimes do not remain 
 unpunished. Jenk. Cent. Cas. 30, 31. 
 
 INTEREST REIPUBLICAE NE SUAQUIS 
 male utatur. It concerns the republic that 
 no one misuse his property. 6 Coke, 36. 
 
 INTEREST REIPUBLICAE QUOD HOMI- 
 nes conserventur. It concerns the common- 
 wealth that we be preserved. 12 Coke, 62. 
 
 INTEREST REIPUBLICAE RES JUDICA- 
 tas non rescind!. It concerns the common- 
 wealth that things adjudged be not rescind- 
 ed. See "Res Judicata." 
 
 INTEREST REIPUBLICAE SUPREMA 
 hominum testamenta rata haberi. It con- 
 cerns the commonwealth that men's last 
 wills be sustained. Co. Litt. 236. 
 
 "INTEREST REIPUBLICAE UT CARCE- 
 res sint in tuto. It concerns the common- 
 wealth that prisons be secure. 2 Inst. 589. 
 
 INTEREST REIPUBLICAE UT PAX IN 
 regno conservetur, at quaecunque paci adver- 
 sentur provide declinentur. It benefits the 
 state to preserve peace in the kingdom, and 
 to prudently decline whatever is adverse to 
 it 2 Inst. 158. 
 
 INTEREST REIPUBLICAE UT QUALI- 
 
 bet re sua bene utatur. It concerns the com- 
 monwealth that every one use his property 
 properly. 6 Coke, 37. 
 
 INTEREST REIPUBLICAE UT SIT Fi- 
 nis litium. It concerns the commonwealth 
 that there be a limit to litigation. Co. Litt. 
 SOS. 
 
 INTEREST SUIT. In English probate law. 
 A suit to determine which of several persons 
 Is by interest entitled to administer an es- 
 tate. 
 
 INTERFERENCE. The state of things 
 which exists when a person applies for a 
 patent which, if granted, would cover any 
 of the patentable ground occupied by any 
 
 existing patent, or by any patent for which 
 an application is then pending. An investi- 
 gation is ordered by the commissioner of 
 patents, for the purpose of determining 
 which of the parties was the first to make 
 the invention, or that portion of it from 
 which the interference results. When the 
 controversy is between two applications, a 
 patent will be finally granted to him who is 
 shown to be the first inventor, and will be 
 denied to the other applicant so far as the 
 point thus controverted is concerned. But 
 it the interference is between an application 
 on the one hand and an actual patent on the 
 other, as there is no power in the patent 
 office to cancel the existing patent, all that 
 can be done is to grant or withhold from the 
 applicant the patent he asks. If the patent 
 is granted to him, there will be two patents 
 for the same thing. The two parties will 
 stand upon a footing of equality, and must 
 settle their rights by a resort to the courts, 
 in the manner provided by the act of con- 
 gress. In interference cases, each party 
 is allowed to take the testimony of wit- 
 nesses in accordance with rules established 
 by the patent office. See Act July 4, 1836, 
 §§ 8, 16. 
 
 INTERIM (Lat.) In the meantime; mean- 
 while. An assignee ad interim is one ap- 
 pointed between the time of bankruptcy and 
 appointment of the regular assignee. 2 Bell, 
 Comm. 355. 
 
 INTERIM COMMITTITUR. In the mean- 
 time let him be committed. 
 
 INTERIM CURATOR. An officer appoint- 
 ed to have the temporary management of the 
 property of a convict, since the abolition of 
 escheats. 4 Steph. Comm. 462. 
 
 INTERIM FACTOR. In Scotch law. A ju- 
 dicial officer elected or appointed under the 
 bankruptcy law to take charge of and pre- 
 serve the estate until a fit person shall be 
 elected trustee. 2 Bell, Comm. 357. 
 
 INTERIM OFFICER. One appointed to fill 
 a temporary vacancy. 
 
 INTERLAQUEARE. In old practice. To 
 link together, or interchangeably. Writs 
 were called "interlaqueata" where several 
 were issued against several parties rewtiding 
 in different counties, each party being sum- 
 moned by a separate writ to warrant the 
 tenant, together with the other warrantors. 
 Fleta, lib. 5, c. 4, § 2. They were. In other 
 words, simul cum writs. 
 
 INTERLINEATION. Writing between two 
 lines. 
 
 INTERLOCUTOR. In Scotch practice. An 
 order or decree of court; an order made in 
 open court. 2 Swint. 362; Arkley, 32. 
 
 f 
 
 INTERLOCUTOR OF RELEVANCY. In 
 Scotch practice. A decree as to the rele- 
 vancy of a libel or indictment in a criminal 
 case. 2 Alls. Crim. Pr. 373. 
 
 INTERLOCUTORY. Something which is 
 
INTERLOPERS 
 
 (494) 
 
 INTERPRETAEE, ETC. 
 
 done between the commencement and the 
 end of a suit or action which decides some 
 point or matter, which, however, is not a 
 final decision of the matter In issue; as, in- 
 terlocutory judgments, or decrees, or orders. 
 
 Interlocutory Costs. Costs accruing 
 
 upon proceedings in the intermediate stages 
 of a cause, as distinguished from final costs ; 
 such as the costs of motions. 3 Chit. Gen. 
 Prac. 597. 
 
 Interlocutory Decree. A provisional or 
 
 prelimnary decree, which is not final, and 
 does not determine the suit, but directs 
 some further proceedings preparatory to the 
 final decree. A decree pronounced for the 
 purpose of ascertaining matter of law or 
 fact preparatory to a final decree. 1 Barb. 
 Ch. Prac. 326, 327. 
 
 Interlocutory Judgment. A prelimina- 
 ry or intermediate judgment. A judgment 
 given in the course of an action upon some 
 plea, proceeding, or default which is only 
 intermediate, and does not determine or 
 complete the suit, as upon a demurrer or 
 plea in abatement, or where the right of the 
 plaintiff is established, but the quantum of 
 damages is not ascertained. 1 Tidd, Prac. 
 568. See "Pinal." 
 
 Interlocutory Order. An order made 
 
 during the progress of a cause upon some 
 incidental matter which arises out of the 
 proceedings. 
 
 ^Interlocutory Sentence. In civil law. 
 
 A sentence on some indirect question aris- 
 ing from the principal cause. Halifax, Civ. 
 t,aw, bk. 3, c. 9, No. 40. 
 
 INTERLOPERS. Persons who interrupt 
 the trade of a company of merchants, by 
 pursuing the same business with them in 
 the same place, without lawful authority. 
 
 INTERNATIONAL LAW. The system of 
 rules which Christian ' states acknowledge 
 to be obligatory upon them in their relations 
 to each other and te each other's subjects. 
 It Is the Jits inter gentes, as distinguished 
 from the jus gentium. 
 
 The rules of conduct regulating the inter- 
 course of states. Halleck, Int. Law, 41; Da- 
 vis, Int. Law, § 2. It consists of those rules 
 of conduct which reason deduces as conso- 
 nant to justice from the nature of the so- 
 ciety existing among independent nations, 
 with such definitions and modifications as 
 may be established by mutual consent. 
 Wheaton. Int. Law, § 14. 
 
 International law has been divided into 
 (1) public, and (2) private, under which 
 division public international law is the law 
 of nations as above defined, while private 
 international law consists of the rules by 
 which courts determine within what na- 
 tional jurisdiction an action or proceeding 
 falls, or by what national law it should be 
 decided. Glenn, Int. Law, § 2. 
 
 Various divisions of international law 
 have been proposed, but none are of any 
 great importance. One has been into nat- 
 ural and voluntary law, in which latter con- 
 ventional or treaty law and customary are 
 embraced. Another, somewhat similar, sep- 
 arates International rules into those which 
 
 are deducible from general natural jus, those 
 which are derived from the idea of estate, 
 and those which grow out of simple com- 
 pact. Whatever division be made, it is to be 
 observed that nations are voluntary, first, in 
 deciding the question what intercourse they 
 will hold with each other; second, that they 
 are voluntary in defining their rights and 
 obligations, moral claims and duties, al- 
 though these have an objective existence 
 beyond the control of the will of nations; 
 and third, that, when international law has 
 arisen by the free assent of those who enter 
 into certain arrangements, obedience to its 
 provisions is as truly in accordance with 
 natural law, which requires the observance 
 of contracts, as if natural law had been in- 
 tuitively discerned or revealed from heaven, 
 and no consent had been necessary at the 
 outset. 
 
 INTERNUNCIO. A minister of a second 
 order, charged with the affairs of the court 
 of Rome, where that court has no nuncio 
 under that title. 
 
 INTERN UNCI US (Lat. from inter, be- 
 tween, and nuncius, a messenger). A mes- 
 senger between two parties; a go-between. 
 Applied to a broker, as the agent of both 
 parlies. 4 Rob. Adm. 204. 
 
 INTERRELATION. In civil law. The act 
 by which, in consequence of an agreement, 
 the party bound declares that he will not 
 be bound beyond a certain time. WolH. 
 Inst. § 752. 
 
 In the case of a lease from year to year, 
 or to continue as long as both parties please, 
 a notice given by one of them to the other 
 of a determination to put an end to the 
 contract would bear the name of "interpela- 
 tion." 
 
 INTERPLEADER. 
 
 At Common Law. A proceeding In the 
 
 action of detinue, by which the defendant 
 states the fact that the thing sued for is in 
 his hands, and that it is claimed by a third 
 person, and that whether such person or 
 the plaintiff is entitled to it is unknown to 
 the defendant, and thereupon the defendant 
 prays that a process of garnishment may be 
 issued to compel such third person so claim- 
 ing to become defendant in his stead. 3 
 Reeve, Hist. Eng. Law, c. 23; Mitf. Eq. PI. 
 (Jeremy Ed.) 141; Story, Eq. Jur. §§ 800, 
 801, 802. 
 
 In Equity. A bill whereby one from 
 
 whom two or more persons claim the same 
 duty or thing can compel them to inter- 
 plead, and have their several claims ad- 
 judged, lest he be twice compelled to render 
 the same debt, duty, or property. 77 111. 
 139. 
 
 In ModeRn Law. Several statutory rem- 
 edies have been substituted in various states. 
 In some, a complaint in the nature of a bill 
 of interpleader (see 17 Mo. 499), and in 
 others a formal collateral proceeding to try 
 title to property (130 111. 87). 
 
 INTERPRETARE ET CONCORDARE LE- 
 ges legibus est optimus Interpretandi mo- 
 
INTERPRJETATIO, ETC 
 
 (495) 
 
 INTERROGATORIES. 
 
 dus. To interpret and reconcile laws so that 
 they harmonize is the best mode of con- 
 struction. 8 Coke, 169. 
 
 INTERPRETATIO CHARTARUM BENIG- 
 ne facienda est, ut res magis valeat quam 
 pereat. The interpretation of deeds is to be 
 liberal, that the thing may rather have ef- 
 fect than fail. Broom, Leg. Max. 543. 
 
 INTERPRETATIO FIENDA EST UT RES 
 magis valeat quam pereat. Such a construc- 
 tion is to be made that the subject may 
 have an effect, rather than none. Jenk. 
 Cent Cas. 198. 
 
 INTERPRETATIO TALIS AMBIGUIS 
 semper fienda est, ut evitetur Inconvenlens 
 et absurdum. In ambiguous things, such a 
 construction should be made that what is in- 
 convenient and absurd may be avoided. 4 
 Inst. 328. 
 
 INTCRPRETATION. The discovery and 
 representation of the true meaning of any 
 signs used to convey ideas. Lieber, Leg. & 
 Pol. Herm. 
 
 "Construction" is sometimes used as a 
 synonym (Jones, Const, p. 3), though it has 
 been said that "construction" is the broader 
 term, and includes also the legal effect (2 
 Pars. Cont. 491, note a). 
 
 The "true meaning" of any signs is that 
 meaning which those who used them were 
 desirous of expressing. A person adopting 
 or sanctioning them "uses" them as well as 
 their Immediate author. Both parties to 
 an agreement equally make use of the signs 
 declaratory of that agreement, though one 
 only is the originator, and the other may be 
 entirely passive. The most common signs 
 used to convey ideas are words. When there 
 is a contradiction in signs intended to agree, 
 resort must be had to construction, — that is, 
 the drawing of conclusions from the given 
 signs, respecting ideas which they do not 
 express. 
 
 (1) Close interpretation (interpretatio re- 
 stricta) is adopted if just reasons, connected 
 with the formation and character of the text, 
 induce us to take the words in their nar- 
 rowest meaning. This species of interpre- 
 tation has generally been called "literal," 
 but the term is inadmissible. Lieber, Leg. 
 & Pol. Herm. 66. 
 
 (2) Extensive interpretation (interpretatio 
 extensiva, called, also, "liberal interpreta- 
 tion") adopts a more comprehensive signifi- 
 cation of the word. 
 
 (3) Extravagant interpretation (interpre- 
 tatio excedens) is that which substitutes a 
 meaning evidently beyond the true one. It 
 is therefore not genuine interpretation. 
 
 (4) Free or unrestricted interpretation (in- 
 terpretatio soluta) proceeds simply on the 
 general principles of interpretation in good 
 faith, not bound by any specific or superior 
 principle. 
 
 (5) Limited or restricted interpretation 
 (interpretatio limitata) is when we are in- 
 fluenced by other principles than the strictly 
 hermeneutic ones. Ernesti, Inst. Interp. 
 
 (6) Predestined interpretation (interpreta- 
 tio predestinata) takes place if the interpre- 
 
 ter, laboring under a strong bias of mind, 
 makes the text subservient to his precon- 
 ceived views or desires. This includes artful 
 interpretation (interpretatio ra/er), by which 
 the interpreter seeks to give a meaning to 
 the text other than the one he knows to 
 have been intended. 
 
 The civilians divide interpretation into: 
 
 (1) Authentic (interpretatio authentica), 
 which proceeds from the author himself. 
 
 (2) Usual (interpretatio usualis), when 
 the interpretation is on the ground of usage. 
 
 (3) Doctrinal (interpretatio doctrinalis) , 
 when made agreeably to rules of science. 
 Doctrinal interpretation is subdivided into 
 extensive, restrictive, and declaratory, — ex- 
 tensive, whenever the reason of a proposi- 
 tion has a broader sense than its terms, and 
 it is consequently applied to a case which 
 had not been explained; restrictive, when 
 the expressions have a greater latitude than 
 the reasons; and declaratory, when the rea- 
 sons and terms agree, but it is necessary to 
 settle the meaning of some term or terms 
 to make the sense complete. 
 
 INTERPRETATION CLAUSE. A clause in 
 a statute defining words used therein, or 
 prescribing rules for its interpretation. 
 
 INTERPRETER. One employed to make 
 a translation. 
 
 An interpreter should be sworn before he 
 translates the testimony of a witness. 4 
 Mass. 81; 5 Mass. 219; 2 Cainea (N. Y.) 
 155. 
 
 A person employed between an attorney 
 and client to act as interpreter is considered 
 merely as the organ between them, and is 
 not bound to testify as to what he has ac- 
 quired in those confidential communica- 
 tions. 1 Pet. C. C. (U. S.) S56; 4 Munf. 
 (Va.) 273; 3 Wend. (N. Y.) 337. 
 
 INTERREGNUM (Lat.) The period, in 
 case of an established government, which 
 elapses between the death of a sovereign and 
 the election of another, is called "interreg- 
 num." The vacancy which occurs when 
 there is no government. 
 
 INTERN. To restrict a person to a lim- 
 ited territory; to forbid departure from the 
 realm. 
 
 INTERROGATOIRE. In French law. An 
 act or instrument which contains the inter- 
 rogatories made by the judge to the person 
 accused, on the facts which are the object 
 of the accusation, and the answers of the 
 accused. Poth. Proc. Crim. sec. 4, art. 2, § 1. 
 
 INTERROGATORIES. Material and per- 
 tinent questions, in writing, to necessary 
 points, not confessed, exhibited for the ex- 
 amination of witnesses or persons who are 
 to give testimony in the cause. 
 
 Interrogatories are exhibited In various 
 proceedings, as in a bill of equity by way of 
 discovery, on a statutory discovery, on the 
 taking of a deposition. 
 
 Interrogatories to a witness are either 
 original and direct on the part of him who 
 produces the witnesses, or cross and counter, 
 
INTERRUPTIO 
 
 (496) 
 
 INTIMATION 
 
 «Hi behalf of the adverse party, to examine 
 ■witnesses produced on the other side. Ei- 
 ther party, plaintiff or defendant, may ex- 
 hibit original or cross interrogatories. 
 
 INTERRUPTIO (Lat. from interrumpere, to 
 break through or apart). Interruption. A 
 term used both in the civil and common law 
 ot prescription. Calv. Lex. 
 
 INTERRUPTIO MULTIPLEX NON TOL- 
 lit praescriptionem semel obtentam. Repeat- 
 ed interruptions do not defeat a prescription 
 once obtained. 2 Inst. 654. 
 
 INTERRUPTION. The efEect of some act 
 or circumstance which stops the course of a 
 prescription or act of limitations. 3 Bligh 
 (N. S.) 444; 4 Mees. & W. 497. 
 
 Civil interruption is that which takes 
 place by some judicial act. 
 
 Natural interruption is an interruption in 
 fact. 4 Mason (U. S.) 404; 2 Younge & J. 
 285. See "Easement;" "Limitations;" "Pre- 
 scription." 
 
 In Scotch Law. The true proprietor's 
 
 claiming his right during the course of pre- 
 scription. Bell, Diet. 
 
 INTERSTATE COMMERCE. Commerce 
 between persons or places in different states. 
 See "Commerce." A shipment from one 
 state to another under a contract for con- 
 tinuous carriage is interstate commerce, 
 even as to so much of the journey as is 
 within the limits of a single state (102 U. 
 S. 541), or though the journey is tempo- 
 rarily interrupted before leaving the state 
 (116 U. S. 517) ; but a shipment between 
 points in the same state is not interstate 
 commerce, though the goods are carried out 
 of the state en route (145 V. S. 192). 
 
 INTERSTATE COMlVlERCE ACT. Act 
 Cong. Feb. 4, 1888, regulating interstate com- 
 merce, designs to secure reasonable and uni- 
 form charges for carriage of freight and 
 passengers, and prevent rebates, preferences, 
 and pooling. 
 
 INTERSTATE COMMERCE COMMIS- 
 sion. A commission of five persons created 
 by the interstate commerce act to enforce 
 its provisions. 
 
 INTERVENER. A party who seeks to in- 
 terpose in a suit. See "Intervention." 
 
 INTERVENTION (Lat. intervenio, to come 
 between or among). 
 
 In Civil Law. The act by which a third 
 
 party becomes a party in a suit pending be- 
 tween other persons. 
 
 The intervention is made either to be 
 joined to the plaintiff, and to claim the same 
 thing he does, or some other thing connected 
 with it; or to join the defendant, and with 
 him to oppose the claim of the plaintiff, 
 which it is his interest to defeat. Poth. 
 Proc. Civ. c. 2, sec. 6, § 3. 
 
 In Modern Practice. The term is some- 
 times used in the same sense as in the civil 
 law. 
 
 In English Ecclesiastical Law. The 
 
 proceeding of a third person, who, not being 
 
 originally a party to the suit or proceeding, 
 but claiming an interest in the subject mat- 
 ter in dispute, in order the better to protect 
 such interest, Interposes his claim. 2 Chit 
 Prac. 492; 3 Chit. Com. Law, 633; 2 Hagg. 
 Const. 137; 3 Phillim. Bcc. Law, 586; 1 Add. 
 Bcc. Law, 5; 4 Hagg. Bcc. Law, 67; Dunl. 
 Adm. Prac. 74. The intervener may come 
 in at any stage of the cause, and even after 
 judgment, if an appeal can be allowed on 
 such judgment. 2 Hagg. Const. 137; 1 Eng. 
 Ecc. Law, 480; 2 Eng. Ecc. Law, 13. 
 
 INTESTABILIS. An incompetent or dis- 
 qualified witness. 
 
 INTESTABLE. One who cannot lawfully 
 make a testament. 
 
 An infant, an insane person, or one civilly 
 dead cannot make a will, for want of capac- 
 ity or understanding. A married woman 
 cannot make such a will without some spe- 
 cial authority, because she is under the 
 power of her husband. They are all in- 
 testable. 
 
 INTESTACY. The state or conditiOQ of 
 dying without a will. 
 
 INTESTATE. One who, having lawful pow- 
 er to make a will, has made none, or one 
 which is defective in form. In that case, he 
 is said to die intestate, and his estate de- 
 scends to his heir at law. 
 
 This term comes from the Latin intestatus. 
 Formerly, it was used in France indiscrim- 
 inately with de-confess ; that is, without con- 
 fession. It was regarded as a crime, on ac- 
 count of the omission of the deceased per- 
 son to give something to the church, and 
 was punished by privation of burial in 
 consecrated ground. This omission, accord- 
 ing to Flournel, Hist, de Avocats, vol. 1, p. 
 116, could be repaired by making an amplia- 
 tive testament in the name of the deceased. 
 Vely, tom. 6, p. 145; Henrion de Pansey, 
 Authorite Judiciaire, 129, and note, i See 
 "Descent;" "Distribution;" "Will." 
 
 INTESTATE SUCCESSION. The succes- 
 sion or devolution of interest of the property 
 of one dying intestate. In Louisiana, the 
 term "succession" is applied to the estate as 
 a whole. 
 
 INTESTATO. In the civil law. Intestate; 
 without a will. Calv. Lex. 
 
 INTESTATUS. In the civil and old Eng- 
 lish law. An intestate; one who dies with- 
 out a will. Dig. 50. 17. 7. 
 
 INTESTATUS DECEDIT, QUI AUT OM- 
 nino testamentum non fecit aut non juri 
 fecit, aut id quod fecerat ruptum irritumve 
 factum est, aut nemo ex eo haeres exstitit. 
 He dies intestate who either has made no 
 will at all, or has not made it legally, or 
 whose will which he had made has been an- 
 nulled or become ineffectual, or from whom 
 there is no living heir. Inst. 3. 1. pr. ; Dig. 
 38. 16. 1; Id. 50. 16. 64. 
 
 INTIMATION. 
 In Civil Law. 
 
 The name of any judi- 
 
INTITLE 
 
 (497) 
 
 INVENTIO 
 
 cial act by which a notice of a legal pro- 
 ceeding is given to some one; but it is more 
 usually understood to mean the notice or 
 summons which an appellant causes to be 
 given to the opposite party, that the sen- 
 tence will be reviewed by the superior judge. 
 In Scotch Law. An instrument of writ- 
 ing, made under the hand of a notary, and 
 notified to a party, to inform him of a right 
 which a third person had acquired; for ex- 
 ample, when a creditor assigns a claim 
 against his debtor, the assignee or cedent 
 must give an intimation of this to the debt- 
 or, who, till then, is justified in making pay- 
 ment to the original creditor. Kames, Bq. 
 bk. 1, p. 1, § 1. 
 
 INTITLE. An old form of entitle. 6 Mod. 
 304. 
 
 INTOL AND UTTOL. In old records. Toll 
 or custom paid for things imported and ex- 
 ported, or bought in and sold out. Cowell. 
 
 INTOXICATED. Drunk from the use of 
 intoxicating liquors. See 47 Vt. 294. 
 
 INTOXICATING LIQUORS. Such liquors 
 as will, if used as a beverage, produce 
 drunkenness. 25 Kan. 767. 
 
 It includes all liquors, whether spirituous, 
 vinous, or malt (70 Mass. 20), of which the 
 human stomach can contain enough to pro- 
 duce intoxication. 21 N. Y. 173. 
 
 INTRA. In Latin phrases. A preposition, 
 meaning in; near; within. In^ra or inter 
 has taken the place of intra in many of the 
 more modern Latin phrases. 
 
 INTRA ANNI SPATIUM. Within the space 
 of a year. Code, 5. 9. 2. Intra annate tern- 
 pus. Id. 6. 30. 19. 
 
 INTRA FIDEM. Within belief; credible. 
 Calv. Lex. 
 
 INTRA LUCTUS TEMPUS (Lat.) Within 
 the time of mourning. Code, 9. 1. 
 
 INTRA MAENIA (Lat. within the walls of 
 a house). A term applied to domestic or 
 menial servants. 1 Bl. Comm. 425. 
 
 INTRA QUATUOR MARIA (Lat.) Within 
 the four seas. Shep. Touch. 378. 
 
 INTRA PARIETES (Lat.) Betweenwalls; 
 among friends; out of court; without litiga- 
 tion. Calv. Lex. 
 
 INTRA PRAESIDIA (Lat.) Within the de- 
 fenses. Dig. 49. 15. 5. 1. See "Infra Prae- 
 sidia." 
 
 INTRA VIRES. Within the power. The 
 opposite of ultra vires (q. v.) 
 
 INTRINSIC VALUE. "Its true, inherent, 
 and essential value, not depending upon acci- 
 dent, place, or person, but the same every- 
 where, and to every one." 5 Ired. (N. C.) 
 698. 
 
 INTROMISSION. In Scotch law. The as- 
 suming possession of property belonging to 
 another, either on legal grounds, or without 
 
 any authority. In the latter case it is 
 called "vicious" intromission. Bell, Diet. 
 
 INTRONISATION. In French ecclesiastic- 
 al law. The installation of a bishop in his 
 Episcopal see. Clef des Lois Rom. 
 
 INTRUDER. One who, on the death of the 
 ancestor, enters on the land, unlawfully, be- 
 fore the heir can enter. 
 
 INTRUSION. The entry of a stranger 
 after the determination of a particular es- 
 tate of freehold, before the entry of him in 
 reversion or remainder. 
 
 This entry and interposition of the stran- 
 ger differs from an abatement in this, that an 
 abatement is always to the prejudice of an 
 heir or immediate devisee; an intrusion is 
 always to the prejudice of him in remainder 
 or reversion. 3 Sharswood, Bl. Comm. 169; 
 Pitzh. Nat. Brev. 203; Archb. Civ. PI. 12; 
 Dane, Abr. Index; 3 Steph. Comm. 443. 
 
 The name of a writ brought by the owner 
 of a fee simple, etc., against an intruder. 
 New Nat. Brev. 453. Abolished by 3 & 4 
 Wm. IV. c. 57. 
 
 INTUITUS (Lat. from hitueri, to look up- 
 on or view). A view; regard; contempla- 
 tion. Dircrso intuitu (q. v.), with a different 
 view. 
 
 View or sight. Intuitu Dei, in the sight of 
 God. Magna Charta, pr. 
 
 INURE. To take effect; to result. 
 
 INUTILIS LABOR, ET SINE FRUCTU, 
 non est effectus legis. Useless labor and 
 without fruit is, not the effect of law. Co. 
 Litt. 127; Wingate, Max. 38. 
 
 INVADIARE (Law,Lat.) In feudal and old 
 European law. To pledge; to engage or 
 pledge lands; to mortgage. 
 
 INVADIATIO (Law Lat.) A pledge or 
 mortgage. 
 
 INVADIATUS (Law Lat.) One who is un-^ 
 der pledge; one who has had sureties or 
 pledges given for him. Spelman. 
 
 A person acquitted. 
 
 INVALID. Not valid; of no binding force. 
 
 INVASION. The entry of a country by a 
 public enemy, making war. 
 
 INVECTA ET ILLATA (Lat.) In civil law. 
 Things carried and brought in; things 
 brought into a building hired {aedes), or 
 into a hired estate in the city (praedium ur- 
 ianum), which are held by a tacit mortgage 
 for the rent. Vocat; Domat, Civ. Law. 
 
 INVENIENS LIBELLUM FAMOSUM ET 
 non corrumpens punitur. He who finds a 
 libel, and does not destroy it, is punished. 
 F. Moore, 813. 
 
 INVENTIO. 
 
 In Civil Law. Finding; one of the 
 
 modes of acquiring title to property by oc- 
 cupancy. Heinec. lib. 2, tit. 1, § 350. Some- 
 times Englished "invention." 
 
 In Old English Law. A thing found; 
 
INVENTION 
 
 (498) 
 
 INVOICE 
 
 as goods, or treasure trove. Cowell. The 
 plural, inventiones, is also used. 
 
 INVENTION. In patent law. The act or 
 operation of finding out something new; the 
 contrivance of that which did not before 
 exist. The word is also used to denote the 
 thing itself which has been so contrived, 
 and which is the subject matter of a patent. 
 
 The test of novelty to determine whether 
 a given contrivance is an "invention" is 
 whether an ordinary mechanic would, with- 
 out other suggestion than his knowledge of 
 the art, make such a contrivance. If so, it 
 is not an invention. 3 Fish. Pat. Cas. (U. 
 S.) 98; 27 Fed. 219. 
 
 An invention differs from a "discovery," 
 inasmuch as this latter term is used to sig- 
 nify the finding out of something which 
 existed before. Thus, we speak of the dis- 
 covery of the properties of steam, or of 
 electricity; but the first contrivance of any 
 machinery by which those discoveries were 
 applied to practical use was an invention; 
 the former always existed, though not be- 
 fore known; the latter did not previously 
 exist. 
 
 INVENTIONES. A word used in some an- 
 cient English charters to signify treasure 
 trove. 
 
 INVENTOR. One who finds out something 
 new, or who contrives or produces a thing 
 which did not before exist; one who makes 
 an invention. The word is generally used 
 to denote the author of such contrivances 
 as are by law patentable. See "Invention." 
 
 INVENTORY. A list, schedule, or enumer- 
 ation in writing, containing, article by 
 article, the goods and chattels, rights and 
 credits, and, in some cases, the lands and 
 tenements, of a person or persons. A con- 
 servatory act, which is made to ascertain the 
 situation of an intestate's estate, the estate 
 of an insolvent, and the like, for the purpose 
 of securing it to those entitled to it. 
 
 INVENTUS (Lat.) Found. Thesaurus in- 
 ventus, treasure trove. 'Non est inventus, 
 he is not found. 
 
 INVERITARE. To verify or prove. 
 
 INVEST (Lat. JniosHre, to clothe). To put 
 in possession of a fief upon taking the oath 
 of fealty or fidelity to the prince or superior 
 lord. 
 
 INVESTITIVE FACT. One by means of 
 which a right comes into existence. Hol- 
 land, Jur. 132. 
 
 They are divided by Bentham into colla- 
 tive, conferring rights, and impositive, im- 
 posing duties. 
 
 INVESTITURE. The act of giving posses- 
 sion of lands by actual seisin. 
 
 When livery of seisin was made to a per- 
 son by the common law, he was invested 
 with the whole fee. This the foreign feud- 
 ists, and sometimes our own law writers, 
 call "investiture;" but, generally speaking, 
 it Is termed by the common-law writers the 
 
 "seisin of the fee." 2 Bl. Comm. 209, 313- 
 Fearne, Cont. Rem. 223, note (z). 
 
 By the canon law, investiture was made 
 per baculum et annulum, by the ring and 
 crosier, which were regarded as symbols of 
 the Episcopal jurisdiction. Ecclesiastical 
 and secular fiefs were governed by the same 
 rule in this respect, — that previously to in- 
 vestiture neither a bishop, abbot, or lay lord 
 could take possession of a flef conferred 
 upon them by the prince. 
 
 Pope Gregory VI. first disputed the right 
 of sovereigns to give investiture of ecclesias- 
 tical fiefs, A. D. 1045; but Pope Gregory VII. 
 carried on the dispute with much more 
 vigor, A. D. 1073. He excommunicated the 
 emperor Henry IV. The popes Victor III., 
 Urban II., and Paul II. continued the con- 
 test. This dispute, it is said, cost Christen- 
 dom sixty-three battles, and the lives of 
 many millions of men. 
 
 INVESTMENT BUYING. See "Gambling 
 Contract." 
 
 I N V I O LA B I L I TY. That which is not to be 
 violated. The persons of ambassadors are 
 inviolable. See "Ambassador." 
 
 INVITO (Lat.) Being unwilling. 
 
 INVITO BENEFICIUM NON DATUR. No 
 one is obliged to accept a benefit against his 
 consent. Dig. 50. 17. 69; Broom, Leg. Max. 
 (3d London Ed.) 625. But if he does not 
 dissent, he will be considered as assenting. 
 See "Assent." 
 
 INVITO DEBITORE (Lat.) Against the 
 will of the debtor. 
 
 INVITO DOMINO (Lat.) In criminal law. 
 Without the consent of the owner. 
 
 In order to constitute larceny, the prop- 
 erty stolen must be taken invito domino; 
 this is the very essence of the crime. Cases 
 of considerable difficulty arise when the own- 
 er has, for the purpose of detecting thieves, 
 by himself or his agents, delivered the prop- 
 erty taken, as to whether they are larcenies 
 or not. The distinction seems to be this, 
 that when the owner procures the property 
 to be taken, it is not larceny; and when he 
 merely leaves it in the power of the defend- 
 ant to execute his original purpose of tak- 
 ing it, in the latter case it will be considered 
 as taken invito domino. 2 Bailey (S. C.) 
 569; 2 Russ. Crimes, 66, 105; 2 Leach, C. C. 
 913; 2 East, P. C. 666; Bac. Abr. "Felony" 
 (C) ; Alls. Crim. Prac. 273; 2 Bos. & P. 508; 
 1 Car. & M. 217. See "Larceny." 
 
 INVOICE. In commercial law. An account 
 of goods or merchandise sent by merchants 
 to their correspondents at home or abroad, 
 in which the marks of each package,, with 
 other particulars, are set forth. Marsh. Ins. 
 408; Dane, Abr. Index. An invoice ought 
 to contain a detailed statement, which 
 should indicate the nature, quantity, quality, 
 and price of the things sold, deposited; etc. 
 1 Pardessus, Dr. Com. note 248. See "Bill 
 of Lading;" 2 Wash. 0. C. (IT. S.) 113, 1S5. 
 
INVOICE BOOK 
 
 (499) 
 
 IRRITANT 
 
 INVOICE BOOK. Abook in which invoices 
 are copied. 
 
 INVOLUNTARY. An involuntary act is 
 that which is performed with constraint ((/. 
 i\), or with repugnance, or without the will 
 to do it. An action is involuntary, then, 
 which is performed under duress. Wolff. 
 Inst. § 5. 
 
 The term is frequently used in connection 
 with various proceedings to denote an ad- 
 verse proceeding. Thus, involuntary bank- 
 ruptcy proceedings are those instituted by 
 a creditor, and not by the bankrupt. 
 
 INVOLUNTARY MANSLAUGHTER. Hom 
 icide committed unintentionally, but with- 
 out excuse, and not under such circumstan- 
 ces as to raise the implication of malice. 1 
 Clark & Marshall, Crimes, 562. 
 
 IOTA. The ninth and smallest letter of 
 the Greek alphabet; hence any minute or 
 insignificant thing. 
 
 IPSAE LEGES CUPIUNT UT JURE RE- 
 gantur. The laws themselves desire that 
 they should be governed by right. Co. Lift. 
 174b, quoted from Cato. 
 
 IPSE (Lat.) I (before verbs of first per- 
 son) ; thou (before verbs of second person) ; 
 he himself, she herself, he alone, etc.; the 
 very one; e. g., ipsum corpus, the very thing 
 itself. Halk. Tech. Terms. Ipsae [etenim] 
 leges cupiunt ut jures regantur, for the very 
 laws themselves wish that they should be 
 ruled by right,— a line, quoted from Cato, 
 which occurs in the decision of Chief Justice 
 Wray and the whole court in the Case of 
 Bankrupts, 2 Coke, 25b. 
 
 IPSE DIXIT. He himself said it. Applied 
 as a substantive to the unsupported asser- 
 tion of one person. 
 
 IPSISSIMIS VERBIS (Lat.) In the iden- 
 tical words; opposed to "substantially." 7 
 How. (U. S.) 719; 5 Ohio St. 346. 
 
 IPSO FACTO (Lat.) By the fact itself; 
 by the mere fact. 
 
 IPSO JURE (Lat.) By the operation of 
 law; by mere law. 
 
 IRA FUROR BREVIS EST. Anger is a 
 short insanity. 4 Wend. (N. Y.) 336, 355. 
 
 IRA MOT US (Lat.) Moved or excited by 
 anger or passion. A term sometimes for- 
 merly used in the plea of son assault de- 
 mesne. 1 Tidd, Prac. 645. 
 
 IRE AD LARGUM (Lat.) To go at large. 
 
 IRENARCHA. In Roman law. An officer 
 whose duties are described In Dig. 5. 4. 18. 7. 
 See Id. 48. 3. 6; Code, 10. 75. Literally, a 
 peace officer or magistrate. 
 
 IRREGULAR. Not according to rule. See 
 "Irregularity." 
 
 IRREGULAR DEPOSIT. See "Deposit." 
 
 IRREGULAR PROCESS. Such as a CQurt 
 
 has general jurisdiction to issue, but which 
 is unauthorized in the particular case by rea- 
 son of the existence or nonexistence of some 
 fact or circumstance rendering it improper 
 in such a case. 103 N. Y. 84, 90. 
 
 IRREGULARITY. In practice. The do- 
 ing or not doing that, in the conduct of a 
 suit at law, which, conformably with the 
 practice of the court, ought or ought not to 
 be done. 
 
 It is the technical term for every defect in 
 proceedings or the mode of conducting an 
 action or defense. It is ' a comprehensive 
 term, including all formal objections to mat- 
 ters of practice. 
 
 IRRELEVANT. Matter ina pleading which 
 has no substantial relation to the contro- 
 versy in suit. 3 Sandf. Ch. (N. Y.) 743; 6 
 How. Pr. (N. Y.) 312. 
 
 Equivalent to "impertinent." Includes 
 "scandalous" matter in a pleading. 5 How. 
 Pr. (N. Y.) 53. 
 
 IRRELEVANT EVIDENCE. That which 
 does not support the issue, and which, of 
 course, must be excluded. 
 
 IRREPARABLE INJURY. An injury is 
 "irreparable," within the rule that injunction 
 will issue to prevent only such injuries, not 
 only where the injury, from its nature, can- 
 not be compensated by damages, or the dam- 
 ages cannot be ascertained by any certain 
 measure (4 N. J. Eq. 449), but when the 
 wrongdoer is insolvent (51 Iowa, 385; 42 
 Neb. 238). 
 
 IRREPLEVIABLE. That cannot be re- 
 plevied or delivered on sureties. Spelled, 
 also, "irreplevisable." Co. Litt. 145; 13 Bdw. 
 I. c. 2. 
 
 IRRESISTIBLE FORCE. A term applied 
 to such an interposition of human agency 
 as is, from its nature and power, absolutely 
 uncontrollable; as, the inroads of a hostile 
 army. Story, Bailm. § 25; Lois des Batim. 
 pt. 2, c. 2, § 1. It differs from "inevitable 
 accident" (</. r.) 
 
 IRREVOCABLE. Which cannot be revoked 
 or recalled. A power of attorney in which 
 the attorney has an interest granted for 
 consideration is irrevocable. See "Will." 
 
 I RRIGATION. The act of wetting or moist- 
 ening the ground by artificial means; the ap- 
 plication of water to land by artificial means 
 for the raising of crops and other products 
 of the soil. Long, Irrigation, § 1. 
 
 IRRITANCY. In Scotch law. The hap- 
 pening of a condition or event by which a 
 charter, contract, or other deed, to which 
 a clause irritant is annexed, becomes void. 
 Ersk. Inst. bk. 2, tit. 5, note 25. Irritancy 
 is a kind of forfeiture. It is legal or con- 
 ventional. Burton, Real Prop. 298. 
 
 IRRITANT. In Scotch law. Avoiding or 
 making void; as an irritant clause. See "Ir- 
 ritancy." 
 
IRRITANT CLAUSE 
 
 (500) 
 
 ISSUE 
 
 IRRITANT CLAUSE. In Scotch law. A 
 provision by whic^i certain prohibited acts 
 specified in a deed are, if committed, de- 
 clared to be null and void. 
 
 IRROGARE. In civil law. To impose or 
 set upon, as a fine. Calv. Lex. To inflict, 
 as a punishment. To make or ordain, as a 
 law. 
 
 IRROTULATIO (Law Lat.) An inroUing; 
 a record. 2 Rymer, Foed. 673; Du Cange; 
 Law Fr. & Lat. Diet.; Bracton, fol. 293; 
 Fleta, lib. 2, c. 65, § 11. 
 
 ISH. In Scotch law. The period of the 
 termination of a tack or lease. 1 Bligh, 522. 
 
 ISLAND. A body of land surrounded by 
 water. The title to islands in navigable 
 waters is in the state (53 Am. Rep. 215) ; 
 but an island in private waters belongs to 
 the owners of the nearest mainland, unless 
 otherwise appropriated (9 Cush. [Mass.] 
 548). 
 
 ISSINT (Norman Pr. thus, so). In plead- 
 ing. A term formerly used to introduce a 
 statement that special matter already plead- 
 ed amounts to a denial. 
 
 In actions founded on deeds, the defendant 
 may, instead of pleading non est factum in 
 the common form, allege any special mat- 
 ter which admits the execution of the writ- 
 ing in question, but which, nevertheless, 
 shows that it is not in law his deed, and may 
 conclude with, "and so it is not his deed;" 
 as, that the writing was delivered to A. B. 
 as an escrow, to be delivered over on cer- 
 tain conditions, which have not been com- 
 plied with, "and so it is not his act;" or 
 that, at the time of making the writing the 
 defendant was a feme covert, "and so it is 
 not her act." Bac. Abr. "Pleas" (H 3), (I 
 2) ; Gould, PI. c. 6, pt. 1, § 64. 
 
 An example of this form of plea, which is 
 sometimes called the "special general issue," 
 occurs in 4 Rawle (Pa.) 83, 84. 
 
 ISSUABLE. In practice. Leading or tend- 
 ing to an issue. An issuable plea is one 
 upon which the plaintiff can take issue and 
 proceed to trial. 
 
 ISSUABLE PLEA. A plea in chief to the 
 merits, upon which the plaintiff may take 
 issue and go to trial. 
 
 ISSUABLE TERMS. Hilary and Trinity 
 terms are so called from the making up of 
 the issues, during those terms, for the as- 
 sizes, that they may be tried by the judges, 
 who generally go on circuit to try such is- 
 sues after these two terms. But for town 
 causes all four terms are issuable. 3 Shars- 
 wood, Bl. Comm. 350; 1 Tidd, Prac. 121. 
 
 ISSUE. 
 
 In Real Property Law. Lineal descend- 
 ants; all persons who have descended from 
 a common ancestor. 3 Ves. 257; 17 Ves. 
 481; 19 Ves. 547; 1 Rop. Leg. 90. 
 
 In a will it may be held to have a more re- 
 stricted meaning, to carry out the testator's 
 
 intention. 7 Ves. 522; 19 Ves. 73; 1 Hop. 
 Leg. 90. See "Heirs of the Body." 
 
 In Pleading. A single, certain, and ma- 
 terial point, deduced >»y the pleadings of the 
 parties, which is afiirmed on the one side, 
 an(i denied on the other. 
 
 The entry of the pleadings. 1 Chit. PI. 630. 
 
 Several connected matters of fact may go 
 to make up the point in issue. 
 
 A collateral issue is one framed upon some 
 matter not directly in the line of the plead- 
 ings; as, for example, upon the identity of 
 one who pleads diversity in bar of execution. 
 4 Bl. Comm. 396. 
 
 A common issue is that which is formed 
 upon the plea of non est factum to an action 
 of covenant broken. 
 
 An actual issue is one formed in an action 
 brought in the regular manner, for the pur- 
 pose of trying a question of right between 
 the parties. 
 
 A feigned issue is one formed in a fic- 
 titious action, under direction of the court, 
 for the purpose of trying before a jury some 
 question of fact. 
 
 Such issues are generally ordered by a 
 court of equity, for which no jury is sum- 
 moned, to ascertain the truth of some dis- 
 puted fact. They are also frequently used 
 in courts of law, by the consent of the par- 
 ties, to determine some disputed rights with- 
 out the formality of pleading; and by this 
 practice much time and expense are saved 
 in the decision of a cause. 3 Bl. Comm. 452. 
 Suppose, for example, it is desirable to set- 
 tle a question of the validity of a will in a 
 court of equity. For this purpose an action 
 is brought, in which the plaintiff, by a fic- 
 tion, declares that he laid a wager for a 
 sum of money with the defendant, for ex- 
 ample, that a certain paper is the last will 
 and testament of A., then avers it is his 
 will, and therefore demands the money; the 
 defendant admits the wager, but avers that 
 it is not the will of A.; and thereupon that 
 issue is joined, which is directed out of 
 chancery to be tried; and thus the verdict of 
 the jurors at law determines the fact in the 
 court of equity. 
 
 The name is a misnomer, inasmuch as the 
 issue Itself is upon a real, material point in 
 question between the parties, and the cir- 
 cumstances only are fictitious. It is a con- 
 tempt of the court in which the action is 
 brought to bring such an action, except un- 
 der the direction of some court. 4 Term E. 
 402. 
 
 (1) A formal issue is one which is framed 
 according to the rules required by law, in an 
 artificial and proper manner. 
 
 (2) An informal issue is one which arises 
 when a material averment is traversed in 
 an improper or inartificial manner. Bac. 
 Abr. "Pleas" (G 2, N 5) ; 2 Wm. Saund. 319a, 
 note 6. 
 
 (3) An issue in fact is one in which the 
 truth of some fact is affirmed and denied. 
 
 In general, it consists of a direct affirma- 
 tive allegation on one side, and a direct 
 negative on the other. Co. Litt. 126a; Bac. 
 Abr. "Pleas" (G 1); 2 W. Bl. 1312; 8 Term 
 R. 278; 5 Pet. (U. S.) 149. But an affirma- 
 tive allegation which completely excludes 
 
ISSUE ROLL 
 
 (501) 
 
 ITER 
 
 the truth of the preceding may be sufficient. 
 1 Wils. 6; 2 Strange, 1177. Thus, the gen- 
 eral issue in a writ of right, called the 
 "mise," is formed by two affirmatives, the 
 demandant claiming a greater right than 
 the tenant, and the tenant a greater than the 
 demandant. 3 Bl. Comm. 195, 305. And in 
 an action of dower, the count merely de- 
 mands that the third part of [ ] acres of 
 land, etc., as the dower of the demandant of 
 the endowment of A. B., heretofore the hus- 
 band, etc., and the general issue is that A. 
 B. was not seised of such estate, etc., and 
 that he could not endow the demandant 
 thereof, etc.; which mode of denial, being 
 argumentative, would not, in general, be al- 
 lowed. 2 Saund. 329. 
 
 (4) A general issue is one which denies in 
 direct terms the whole declaration; as, for 
 example, where the defendant pleads nil 
 debet, that he owes the plaintiff nothing, or 
 nul disseisin, no disseisin committed. 3 
 Greenl. Ev. § 9; 3 Bl. Comm. 305. See "Gen- 
 eral Issue." 
 
 (5) A special issue is one formed by tiie 
 defendant's selecting any one substantial 
 point, and resting the weight of his cause 
 upon that. It is contrasted with the general 
 issue. Comyn, Dig. "Pleader" (R 1, 2). 
 
 (6) A material issue is one properly form- 
 ed on some material point which will, when 
 decided, decide the question between the par- 
 ties. 
 
 (7) An Immaterial issue is one formed on 
 some immaterial matter, which, though 
 found by the verdict, will not determine the 
 merits of the cause, and will leave the court 
 at a loss how to give judgment. 2 Wm. 
 Saund. 319, note 6. See "Immaterial Issue." 
 
 (8> An issue in fact is an Issue taken 
 upon or consisting of matter of fact, the 
 fact only, and not the law being disputed, 
 and which is to be tried by a jury. 3 
 Bl. Comm. 314, 315; Co. Litt. 126a; 3 Steph. 
 Comm. 572. 
 
 (9) An issue in law Is an issue upon 
 matter of law, or consisting of matter of 
 law, being produced by a demurrer on the 
 one side, and a joinder in demurrer on the 
 other. 3 Bl. Comm. 314; 3 Steph. Comm. 
 572, 580. 
 
 ISSUE ROLL. In English law. The name 
 of a record which contains an entry of the 
 term of which the demurrer book, issue, or 
 paper book is entitled, and the warrants of 
 attorney supposed to have been given by the 
 parties at the commencement of the cause, 
 and then proceeds with the transcript of 
 the declaration and subsequent proceedings, 
 continuances, and award of the mode of the 
 decision as contained in the demurrer, is- 
 sue, or paper book. Steph. PI. 98, 99. After 
 final judgment, the issue roll is no longer 
 called by that name, but assumes that of 
 judgment roll. 2 Archb. Prac. 206. 
 
 ISSUES. In English law. The goods and 
 profits of the lands of a defendant against 
 whom a writ of distringas or distress infinite 
 has been issued, taken by virtue of such 
 writ, are called "issues." 3 Bl. Comm. 280; 
 1 Chit. Grim. Law, 351. 
 
 ITA EST (Lat. soit "s). Among the civil- 
 ians, when a notary dies, leaving his regis- 
 ter, an officer who is authorized to make of- 
 ficial copies of his notarial acts writes, in- 
 stead of the deceased notary's name, which 
 is required when he is living, ita est. 
 
 ITA LEX SCRIPTA EST. The law is so 
 written. 26 Barb. (N. Y.) 374, 380. 
 
 The law must be obeyed, notwithstanding 
 the apparent rigor of its application. 3 Bl. 
 Comm. 430. We must be content with the 
 law as it stands, without inquiring into its 
 reasons. 1 Bl. Comm. 32. 
 
 ITA QUOD (Lat.) The name or condition 
 In a submission, which is usually introduced 
 by these words, "so as the award be made of 
 and upon the premises," which, from the 
 first words, is called the ita quod. 
 
 When the submission is with an ita quod, 
 the arbitrator must make an award of all 
 matters submitted to him of which he had 
 notice,, or the award will be entirely void. 7 
 East, 81; Cro. Jac. 200; 2 Vern. 109; Rolle, 
 Abr. "Arbitrament" (L 9). 
 
 ITA SEMPER FIAT RELATIO UT VA- 
 
 leat dispositio. Let the relation be so made 
 that the disposition may stand. 6 Coke, 76. 
 
 ITA TE DEUS ADJUVET (Lat. so help 
 you God). The old form of administering 
 an oath in England, generally in connection 
 with other words, thus: Ita te Dens adjuvet, 
 et xdcrusunda Die EvangeUii, So help you 
 God, and God's holy Evangelists. Ita te 
 Deus adjuvet et omnes sancti, So help you 
 God and all the saints. Willes, 338. 
 
 ITA UTERE TUO UT ALIENUM NON 
 laedas. Use your own property and your 
 own rights in such a way that you will not 
 hurt your neighbor, or prevent him from 
 enjoying his. Frequently written, "Sic utere 
 tuo," etc. (.q. V.) 
 
 ITEM (Lat.) Also; likewise; in like man- 
 ner; again; a second time. "These are the 
 various meanings of this Latin adverb. 
 
 It is used to introduce a new paragraph, or 
 chapter, or division; also to denote a partic- 
 ular in an account. It is used when any 
 article or clause is added to a former, as if 
 there were here a new beginning. Du Cange. 
 Hence the rule that a clause in a will intro- 
 duced by item shall not influence or be influ- 
 enced by what precedes or follows, if it be 
 sensible, taken independently (1 Salk. 239), 
 or there is no plain intent that it should be 
 taken in connection, in which cases it may 
 be construed conjunctively, in the sense of 
 "and," or "also," in such a manner as to con- 
 nect sentences. If, therefore, a testator be- 
 queath a legacy to Peter, payable out of a 
 particular fund, or charged upon a particu- 
 lar estate, itrin, a legacy to James, James' 
 legacy as well as Peter's will be a charge 
 upon the same property. 1 Atk. 436; 3 Atk. 
 256; 1 Brown, Ch. 482; 1 Rolle, Abr. 844; 1 
 Mod. 100; Cro. Car. 368; Vaughan, 262; 2 
 Rop. Leg. 349; 1 Salk. 234. 
 
 ITER (Lat.) 
 
 In Civil Law. A way; a right of way 
 
ITER 
 
 (502) 
 
 ITINERATIO 
 
 belonging as a servitude to an estate, in the 
 country (praedium rusticum). The right of 
 ■way was of three kinds: (1) Iter, a right 
 to walk, or ride on horseback or in a litter; 
 (2) actus, a right to drive a beast or ve- 
 hicle; (3) via, a full Bight of way, compris- 
 ing right to walk or ride, or dive beast or 
 carriage. Heinec. Elem. Jur. Civ. § 408. Or, 
 as some think, they were distinguished by 
 the width of the objects which could be 
 rightfully carried over the way; e. g., via, 
 eight feet; actus, four feet, etc. Mackeld. 
 Civ. Law, § 290; Bracton, 232; 4 Bell, H. L. 
 Sc. 390. , 
 
 Iter est jus eundi, anibulandi hominis; non 
 etiam jumentum agendi vel veMculum. Iter is 
 the right of going or walking, and does not 
 include the right of driving a beast of bur- 
 den or a carriage. Co. Litt. 56a; Inst. 2. 3. 
 pr.; 1 Mackeld. Civ. Law, p. 343, § 314. 
 
 In Old English Law. A journey, espe- 
 cially a circuit made by a justice in eyre, or 
 itinerant justice, to try causes according to 
 
 his own mission. Du Cange; Bracton, lib. 3, 
 cc. 11, 12, 13 ; Britt. c. 2 ; Cowell. See "Jus- 
 tices in Byre." 
 
 ITERUM (Lat.) In the civil law. A sec- 
 ond time. Dig. 2. 13. 7. 1. 
 
 ITERATIO. Again; a second time. 
 
 ITINERA (Lat. pi. of iter). Eyres, or cir- 
 cuits. 1 Reeve, Hist. Eng. Law, 52. 
 
 ITINERANT. Wandering; travelling; who 
 makes circuits. See "Justices in Eyre." 
 
 ITINERANTES (Law Lat.) Itinerant; 
 travelling; in eyre. A term applied to jus- 
 tices instituted by Hen. II. 
 
 ITINERATIO (Law Lat.) In old English 
 law. An eyre, or circuit; the same with iter. 
 Spelman. Si infra diem ilium tncipiat itiiw- 
 ratio, if the eyre begins within that day. 
 Bracton, fol. 110. 
 
JA 
 
 (503) 
 
 JEUX DE BOURSE 
 
 J A (Law Fr.) Yet; never; nevertheless. 
 Kelham; Brltt. c. 49, 93. 
 
 JACENS (Lat.) Lying; fallen; prostrate; 
 in abeyance. Bracton, fol. 84. 
 
 JACENS HAEREDITAS. 
 
 which is in abeyance. 
 
 An inheritance 
 
 Throwing out; a false 
 
 JACTITATION. 
 
 boasting. 
 
 JACTITATION OF MARRIAGE. In Eng- 
 lish ecclesiastical law. The boasting by an 
 individual that he or she has married an- 
 other, from which it may happen that they 
 will acquire the reputation of being mar- 
 ried to each other. 
 
 The ecclesiastical courts may in such cas- 
 es entertain a libel by the party injured, 
 and, on proof of the facts, enjoin the wrong- 
 doer to perpetual silence, and, as a punish- 
 ment, make him pay the costs. 3 Bl. Comm. 
 93; 2 Hagg. Consist. 285, 423; 2 Chit. Prac. 
 459. 
 
 JACTITATION OF TITHES. The boasting 
 by a man that he is entitled to certain 
 tithes, to which he has legally no title. 
 
 JACTIVUS. One who is in default, or 
 loses by default. Spelman. 
 
 JACTURA (Lat. jaceo, to throw). A jetti- 
 son. 
 
 JACTUS (Lat.) A throwing goods over- 
 board to lighten or save the vessel, in which 
 case the goods so sacrificed are a proper sub- 
 ject for general average. Dig. 14. 2, de lege 
 Ehodia de jactu; 1 Pardessus, 104 et seq.; 
 Kuricke, Inst. Mar. Hanseat. tit. 8; 1 Para. 
 Mar. Law, 288, note. 
 
 JACTUS LIBELLI. In the civil law. The 
 throwing down of a stone (of a structure 
 being erected on land). One of the means 
 whereby the true owner might assert his 
 title, and interrupt the running of an ad- 
 verse possession. 
 
 JAIL. A term generally substituted in 
 modern usage for "gaol" (g. v.) 
 
 JAIL DELIVERY. See "Gaol Delivery." 
 
 JAIL LIBERTIES. See "Gaol Liberties." 
 
 JAMUNLINGI, or JAMUNDILINGI. Free- 
 men who delivered themselves and property 
 to the protection of a more powerful person, 
 in order to avoid military service and other 
 burdens. Spelman. Also a species of serfs 
 among the Germans. Du Cange. The same 
 as commendati. 
 
 JANITOR (Lat.) In old English law. A 
 doorkeeper. Pleta, lib. 2, c. 24. 
 
 JAVELOUR. In Scotch law. Jailer or 
 gaoler. 1 Pitc. Crim. Tr. pt. 1, p. 33. 
 
 JEDBURGH JUSTICE. 
 
 palje & L. 
 
 Lynch law. Ha- 
 
 JEOFAILE (Law Pr.) I have failed; I am 
 in error. 
 
 Certain statutes are called statutes of 
 amendments and jeofailes, because, where a 
 pleader perceives any slip in the form of his 
 proceedings, and acknowledges the error 
 (jeofaile), he is at liberty, by those statutes, 
 to amend it. The amendment, however, is sel- 
 dom made; but the benefit is attained by the 
 court's overlooking the exception. 3 Bl. 
 Comm. 407; 1 Saund. 228, note 1; Doct. Plac. 
 297; Dane, Abr. These statutes do not apply 
 to Indictments. 
 
 JEOPARDY. Peril; danger. See Baldw. 
 (U. S.) 93. 
 
 The usual technical use of the term is In 
 connection with the rule of criminal law, 
 that no person shall be twice put in jeopar- 
 dy for the same offense. Const. U. S. art. 5, 
 Amend. 
 
 A person is "in jeopardy," within this rule, 
 when a trial jury is impanelled and sworn 
 to try his case (83 Ind. 331; 18 N. Y. 128; 
 105 Pa. St. 1) upon issue joined (111 Ind. 
 47) by plea to a valid indictment (105 Mass. 
 53; 5 Md. 82) in a court of competent juris- 
 diction (7 Mich. 162; 48 N. J. Law, 371), 
 and the jury has been charged with his de- 
 liverance (23 Pa. St. 12; 2 Kelly [Ga.] 60). 
 Where the practice of charging the jury 
 with the deliverance of the prisoner at the 
 outset does not obtain, jeopardy attaches 
 when the jury is sworn. 
 
 There are some holdings that jeopardy 
 does not attach till after verdict 5 Litt. 
 (Ky.) 137; 1 Walk. (Miss.) 134. 
 
 JERGUER. In English law. An officer of 
 the custom house, who oversees the waiters. 
 Tech. Diet. 
 
 JET (Pr.) In French law. Jettison. Ord. 
 Mar. liv. 3, tit. 8; Bmerig. Tr. des Assur. c. 
 12, § 40. 
 
 JETSAM. Goods cast out from a ship by 
 way of jettison, and which sink, being thus 
 distinguished from flotsam, jettisoned goods 
 which float, and ligan, jettisoned goods, 
 bound to some buoyant substance. 1 Bl. 
 Comm. 292. 
 
 JETTISON. The throwing overboard of 
 part of the cargo, or any article on board a 
 ship, or the cutting and casting away of 
 masts, spars, rigging, sails, or other furni- 
 ture, for the purpose of lightening or reliev- 
 ing the ship in case of necessity or emer- 
 gency. Gourlie, Gen. Av. 74. 
 
 JEUX DE BOURSE. In French law. A 
 kind of gambling or speculation, which con- 
 sists of sales and purchases which bind nei- 
 
JOB 
 
 (504) 
 
 JOINT LIVES 
 
 ther of the parties to deliver the things 
 which are the object of the sale, and which 
 are settled by paying the difference in tne 
 value of the things sold between the day of 
 the sale and that appointed for delivery of 
 such things. 1 Pardessus, Dr. Com. note 
 162. 
 
 JOB. The whole of a thing which is to be 
 done. In this sense it is employed in the Civ- 
 il Code of Louisiana (article 2727) : "To 
 build by plot, or to work by the job," says 
 that article, "is to undertake a building for 
 a certain stipulated price." See Duranton, 
 Cont. liv. 3, tit. 8, notes 248, 263; Poth. Cont. 
 notes 392, 394. See "Deviation." 
 
 JOBBER. In commercial law. One who 
 buys and sells articles for others. 
 
 One who buys from importers, and sells to 
 retailers. 4 Sandf. Ch. (N. Y.) 587. 
 
 JOCALIA (Lat.) Jewels. This term was 
 formerly more properly applied to those or- 
 naments which women, although married, 
 call their own. , When these jocalia are not 
 suitable to her degree, they are assets for 
 the payment of debts. 1 Rolle, Abr. 911. 
 
 JOCLET. In old English law. A little 
 farm or manor. Cowell; Blount. 
 
 JOCUS (Lat.) In old English law. A game 
 of hazard. Reg. Orig. 290. 
 
 JOCUS PARTITUS. In old English prac- 
 tice. A divided game, risk, or hazard. An 
 arrangement which the parties to a suit 
 were anciently sometimes allowed to make 
 by mutual agreement upon a certain hazard 
 (sub periculo); as that one should lose if 
 the case tutned out in a certain way, and, 
 if it did not, that the other should gain 
 {quod unus amittat si ita sit, et si non sit, 
 quod alius lucretur). Bracton, fols. 211b, 
 379b, 432, 434, 200b. 
 
 This arrangement, however, was altogeth- 
 er a voluntary and extrajudicial one. 
 
 JOHN DOE. A name given in legal pro- 
 ceedings to a party whose true name is un- 
 known. It was the name which was usually 
 given to the fictitious lessee of the plaintiff 
 in the mixed action of ejectment. He was 
 sometimes called "Goodtitle," or "Jackson." 
 So the Romans had their fictitious person- 
 ages in law proceedings, as Titius, Seius. 
 
 JOINDER. A joining or uniting together; 
 a comprehending or including or several per- 
 sons or things together; as of several per- 
 sons as plaintiffs or defendants in one suit, 
 or of several causes of action, or counts, in 
 one declaration. 1 Chit. PI. 8, 41, 64, 84, 199. 
 
 JOINDER IN DEMURRER. The formal 
 answer made to a demurrer at common law. 
 
 JOINDER OF ACTIONS. Joinder of two 
 or more causes of action in the same com- 
 plaint or declaration. 
 
 JOINDER OF CAUSES OF ACTION. 
 "Joinder of Actions." 
 
 See 
 
 JOINDER OF ISSUE. The acceptance by 
 one party of an issue of fact tendered by the 
 other. 
 
 JOINDER OF OFFENSES. The unitingof 
 several distinct offenses in one indictment or 
 information. 
 
 JOINDER OF PARTIES. The uniting of 
 two or more persons as coparties, either 
 plaintiff or defendant. 
 
 JOINT ACTION. An action brought by 
 two or more as plaintiffs, or against two or 
 more as defendants. 
 
 JOINT ADVENTURE. An enterprise un- 
 dertaken by several persons jointly. See 
 "Adventure." 
 
 JOINT AND SEVERAL BOND. A bond of 
 two or more obligors, who bind themselves 
 jointly and severally to the oblige^s, who 
 can sue all the obligors jointly, or any one 
 of them separately, for the whole amount, 
 but cannot bring a joint action against part, 
 that is, treat it as joint as to some, and 
 several as to others. Upon- the payment of 
 the whole by one of such obligors, a right 
 to contribution arises in his favor against 
 the other obligors. 
 
 JOINT BOND. The bond of two or more 
 obligors, the action to enforce which must 
 be joint against them all. 
 
 JOINT CONTRACT. One in which the 
 contractors are jointly bound to perform the 
 promise or obligation therein contained, or 
 entitled to receive the benefit of such prom- 
 ise or obligation. 
 
 JOINT CREDITORS. Persons jointly hold- 
 ing the same debt or demand. 
 
 JOINT DEBTORS. Persons united in a 
 joint liability or indebtedness. 
 
 JOINT EXECUTORS. Those who are 
 joined in the execution of a will. 
 
 JOINT FIAT. A fiat in bankruptcy, issued 
 against two or more trading partners. Whar- 
 ton. 
 
 JOINT FINE. In old English law. "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 offenses are 
 to be severally imposed on each particular 
 offender, and not jointly upon all of them." 
 Jacob. 
 
 JOINT HEIR. A coheir. 
 
 JOINT INDICTMENT. One indictment 
 brought against two or more offenders, char- 
 ging the defendants jointly. It may be 
 where there is a joint criminal act, without 
 any regard to any particular personal de- 
 fault or defect of either of the defendants. 
 Thus, there may be a joint indictment 
 against the joint keepers of a gaming house. 
 1 Vent. 302; 2 Hawk. P. C. 240. 
 
 JOINT LIVES. This expression, which is 
 met with more frequently in English books, 
 
JOINT-STOCK BANKS 
 
 (SOS) 
 
 JOURNEYS ACCOUNT 
 
 applies when a right is granted to two or 
 more persons, to be enjoyed while both or 
 all of them shall live. Abbott. 
 
 JOINT-STOCK BANKS. In English law. 
 A species of quasi corporations, or compa- 
 nies regulated by deeds of settlement. 
 
 In some respects they stand in the same 
 situation as other unincorporated bodies; 
 but they differ from the latter in this, that 
 they are invested by certain statutes with 
 powers and privileges usually incident to 
 corporations. These enactments provide for 
 the continuance of the partnership notwith- 
 standing a change of partners. The death, 
 bankruptcy, or the sale by a partner of his 
 share does not affect the identity of the 
 partnership. It continues the same body, 
 under the same name, by virtue of the act 
 of parliament, notwithstanding these chan- 
 ges. 7 Geo. IV. c. 46, § 9. 
 
 JOINT-STOCK COMPANY. A partnership 
 having a capital stock divided into transfer- 
 able shares. Shumaker, Partnership, 447. 
 
 JOINT-STOCK CORPORATION. A term 
 used sometimes instead of "stock corpora- 
 tion" to indicate those corporations (includ- 
 ing substantially all corporations for pecun- 
 iary profit) which have a capital stock di- 
 vided into shares. 
 
 JOINT TENANTS. Two or more persons 
 who acquire together lands or tenements to 
 be held jointly between them in equal shares, 
 the interests of all uniting and forming one 
 ownership. 
 
 Joint tenants differ from tenants in com- 
 mon, in that the title of the former must 
 have been acquired at the same time, by the 
 same conveyance or act, while the latter 
 hold by several titles; and also in that the 
 shares of the former are equal, while those 
 of the latter need not be so. 
 
 JOINT TRESPASSERS. Two or more who 
 unite in committing a trespass. 
 
 JOINT TRUSTEES. Two or more per- 
 sons charged jointly with the execution of a 
 trust. 
 
 JOINTRESS, or JOINTURESS. A woman 
 who has an estate settled on her by her hus- 
 band, to hold during her life. If she survive 
 him. Co. Litt. 46. 
 
 JOINTURE. A joint estate limited to both 
 husband and wife. A competent livelihood 
 of freehold for the wife, of lands and tene- 
 ments, to take effect, in profit or possession, 
 presently after the death of the husband, 
 for the life of the wife at least. 
 
 Jointures are regulated by the statute of 
 27 Hen. VIII. c. 10, commonly called the 
 "Statute of Uses." 
 
 To make a good jointure, the following 
 circumstances must concur, namely: It 
 must take effect, in possession or profit, im- 
 mediately from the death of the husband. It 
 must be for the wife's life, or for some 
 greater estate. It must be limited to the 
 wife herself, and not to any other person in 
 trust for her. It must be made in satisfac- 
 
 tion for the wife's whole dower, and not 
 of part of it only. The estate limited to the 
 wife must be expressed or averred to be in 
 satisfaction of her whole dower. It must 
 be made before marriage. A jointure at- 
 tended with all these circumstances is bind- 
 ing on the widow, and is a complete bar to 
 the claim of dower, or, rather, it prevents 
 its ever arising. But there are other modes 
 of limiting an estate to a wife, which. Lord 
 Coke says, are good jointures within the 
 statute, provided the wife accepts of toem 
 after the death of the husband. She may, 
 however, reject them, and claim her dower. 
 Cruise, Dig. tit. 7; 2 Bl. Comm. 137. In its 
 more enlarged sense, a jointure signifies a 
 joint estate limited to both husband and 
 wife. 2 Bl. Comm. 137. See 14 Viner, Abr. 
 540; Bac. Abr.; 2 Bouv. Inst, note 1761 et 
 seq. ; Washb. Real Prop. 
 
 JORNALE (Law Lat.) In old European 
 law. As much ground as might be ploughed 
 in one day. Spelman. 
 
 JOU R. A French word, signifying day. It 
 is used in our old law hooks; as, tout jours, 
 forever. It is also frequently employed in 
 the composition of words; as, journal, a 
 day book; journeyman, a man who works by 
 the day; journeys account. 
 
 JOUR EN BANC. In old practice. A day 
 in banc. Distinguished from "jour en pays," 
 a day in the country, otherwise called "jour 
 en nisi prius." Y. B. H. 11 Hen. VI. 1. 
 
 JOURNAL. 
 
 In Maritime Law. The book kept on 
 
 board of a ship or other vessel, which con- 
 tains an account of the ship's course, with 
 a short history of every occurrence during 
 the voyage. Another name for log book. 
 Chit. Law Nat. 199. 
 
 In Commercial Law. A book used 
 
 among merchants, in which the contents of 
 the waste book or day book are separated 
 every month, and entered on the debtor and 
 creditor side, for more convenient posting 
 in the ledger. 
 
 In Legislation. An account of the pro- 
 ceedings of a legislative body. 
 
 JOURNEY. The term originally signified 
 a day's travel (see "Jour"), but now means 
 travel, without regard to duration. 
 
 JOURNEYS ACCOUNT. In English prac- 
 tice. A new writ which the plaintiff was 
 permitted to sue out within a reasonable 
 time after the abatement, without his fault, 
 of the first writ. This time was computed 
 with reference to the number of days which 
 the plaintiff must spend in journeying to 
 reach the court; hence the name of "jour- 
 neys account," — that is, journeys accomptes 
 or counted. This writ was quasi a continu- 
 ance of the first writ, and so related back to 
 it as to oust the defendant or tenant of his 
 voucher, plea of non<^enure. joint tenancy 
 fully administered, or any other plea aris- 
 ing upon matter happening after date of the 
 first writ. Co. Litt. fol. 9h. 
 
JUBERE 
 
 . (S06) 
 
 JUDEX NON, ETC. 
 
 JUBERE (Lat.) In civil law. To order, 
 direct, or command. Calv. Lex. The word 
 jubeo, I order, in a will, was called a "word 
 of direction," as distinguished from "preca- 
 tory words." Code, 6. 43. 2. 
 
 To assure or promise. Calv. Lex. 
 
 To decree or pass a law. Adam, Rom. Ant. 
 
 JUBILACION. In Spanish law. The right 
 of a public officer to retire from office, re- 
 taining his title and his salary, either in 
 whole or in part, after he has attained the 
 age of fifty years, and been in public serv- 
 ice at least twenty years, whenever his in- 
 firmities prevent him from discharging the 
 duties of his office. 
 
 JUDAISMUS (Lat.) The religion and rites 
 of the Jews. Du Cange. A quarter set apart 
 for residence of Jews. Du Cange. A usuri- 
 ous rate of interest. 1 Mon. Angl. 839; 2 
 Mon. Angl. 10, 665. Sex marcus sterlingo- 
 rum ad acguietandam terram praedictum de 
 Judaismo, inquo fuit impignorata. Du Cange. 
 An income anciently accruing to the king 
 from the Jews. Blount. 
 
 JUDENS. A Jew. 
 
 JUDEX (Lat.) 
 
 In Roman Law. One who, either in 
 
 own right, or by appointment of the magis- 
 trate for the special case, judged causes. 
 
 Thus, the praetor was formerly called ju- 
 dex. But, generally, praetors and magis- 
 trates who judge of their own right are dis- 
 tinguished from indices, who are private 
 persons, appointed by the praetor, on appli- 
 cation of the plaintiff, to try the cause, as 
 soon as issue is joined, and furnished by 
 him with instructions as to the legal prin- 
 ciples involved. They were variously called 
 judiees delegati, or pedanei, or speciales. 
 They resemble in many respects jurors. 
 Thus, both are private persons, brought in at 
 a certain stage of the proceedings, viz., issue 
 joined, to try the cause, under instructions 
 from the judge as to the law of the case. 
 But civilians are not clear whether the ju- 
 diees had to decide the fact alone, or the 
 law and fact. The judex resembles in many 
 respects the arbitrator, or arbiter, the chief 
 differences being, first, that the latter is ap- 
 pointed in cases of trust and confidence, the 
 former in cases where the relations of the 
 parties are governed by strict law (in prac- 
 tionibus strictis); second, the latter has the 
 whole control of case, and decides according 
 to equity and good conscience, the former by 
 strict formulae ; third, that the latter may be 
 a magistrate, the former must be a private 
 person; fourth, that the award of the ar- 
 biter derives its force from the agreement 
 of submission, while the decree of the judex 
 has its sanction in the command of the 
 praetor to try the cause. Calv. Lex.; 1 
 Spence, Bq. Jur. 210, note; Kaufm. Mackeld. 
 Civ. Law, § 193, note. 
 
 There was generally one judex, sometimes 
 three, — in which case the decision of two, in 
 the absence of the third, had no effect. Calv. 
 Lex. Down to the time of handing over the 
 cause to the judex, that is, till issue joined, 
 the proceedings were before the praetor, 
 
 and were said to be in jure; after that, be- 
 fore the judex, and were said to be in judieio. 
 In all this we see the germ of the Anglo- 
 Saxon system of judicature. 1 Spence, Eq. 
 Jur. 67. 
 
 In Civil Law. A judge who conducts 
 
 the trial from beginning to end; magistra- 
 tus. The practice of calling in judiees was 
 disused before Justinian's time; therefore, 
 in the Code, Institutes, and Novels, judex 
 means judge in its modern sense. Heinec. 
 Elem. Jur. Civ. § 1327. 
 
 In Old English Law. A juror. Spel- 
 
 man. A judge, in modern sense, especially 
 — as opposed to justiciarius, i. e., a common- 
 law judge — to denote an ecclesiastical judge. 
 Bracton, fols. 401, 402. 
 
 JUDEX A QUO. The judge from whom an 
 appeal is taken. See "A Quo." 
 
 JUDEX AD QUEM. A judge to whom an 
 appeal is taken. See "A Quo." 
 
 JUDEX AEQUITATEM SEMPER SPEC- 
 tare debet. A judge ought always to regard 
 equity. Jenk. Cent. Cas. 45. 
 
 JUDEX ANTE OCULOS AEQUITATEM 
 semper habere debet. A judge ought always 
 to have equity before his eyes. Jenk. Cent. 
 Cas. 58. 
 
 JUDEX BONUS NIHIL EX ARBITRIO 
 suo faciat, nee propositione domesticae vol- 
 untatis, sed juxta leges et jura pronunciet. 
 A good judge should do nothing from his 
 own arbitrary will, or from the dictates of 
 his private wishes; but he should pronounce 
 according to law and justice. 7 Coke, 27a. 
 
 JUDEX DAMNATUR CUM NOCENS AB- 
 
 solvitur. The judge is condemned when the 
 guilty are acquitted. 
 
 JUDEX DATUS. In Roman law. A judge 
 given, that is, assigned or appointed, by the 
 praetor to try a cause. 
 
 JUDEX DEBET JUDICARE SECUNDUM 
 allegata et probata. The judge ought to de- 
 cide according to the allegations and the 
 proofs. 
 
 JUDEX DELEGATUS (Lat.) In civil law. 
 A delegated judge; a special judge. 
 
 JUDEX EST LEX LOQUENS. The judge 
 is the speaking law. 7 Coke, 4a. 
 
 JUDEX FISCALIS. In old European law. 
 A fiscal judge; a judge having cognizance of 
 matters pertaining to the flscus, or public 
 treasury. 
 
 JUDEX HABERE DEBET DUOS SALES, 
 — salem sapientiae, 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. 3 Inst. 147. 
 
 JUDEX NON POTEST ESSE TESTIS IN 
 propria causa. A judge cannot be a witness 
 in his own cause. 4 Inst. 279. 
 
JUDEX NON POTEST 
 
 (507) 
 
 JUDGMENT 
 
 JUDEX NON POTEST INJURIAM SIBI 
 datam punire. A judge cannot punish a 
 wrong done to himself. 12 Coke, 114. 
 
 JUDEX NON REDDIT PLUS QUAM QUOD 
 petens ipse requirit. The judge does not 
 give more than the plalntlfE demands. 2 
 Inst. 286, case 84. 
 
 JUDEX ORDINARIUS (Lat.) Incivillaw. 
 A judge who had jurisdiction by his own 
 right, not by another's appointment. Calv. 
 Lex.; Vicat. Blackstone says that judices or- 
 dinarii decided only questions of fact, while 
 questions of law were referred to the cen- 
 tumviri; but this would seem to be rather 
 the definition of judices selecti; and not all 
 questions of law were referred to the cen- 
 iunviri, but particular actions, e. g., querela 
 inofficiosi testamenti. See 2 Sharswood, Bl. 
 Coram. 315; Vicat, "Centumviri." 
 
 JUDEX PEDANEUS. In Roman law. A 
 name given to the judge appointed by the 
 praetor to try a cause from the law seat 
 which he occupied at the foot of the tribunal 
 or praetor's bench. 
 
 JUDGE. A public officer lawfully appoint- 
 ed to decide litigated questions according to 
 law. 
 
 An officer so named in his commission, 
 and who presides in some court. 
 
 In its most extensive sense, the term in- 
 cludes all officers appointed to decide liti- 
 gated questions while acting in that capac- 
 ity, including justices of the peace, and even 
 jurors, it is said, who are judges of the 
 facts. 4 Dall. (Pa.) 229; 3 Yeates (Pa.) 300. 
 In ordinary legal use, however, the term is 
 limited to the sense of the second of the 
 definitions here given (15 111. 388), unless 
 it may be that the case of a justice or com- 
 missioner acting judicially is to be consid- 
 ered an extension of this meaning. See 3 
 Cush. (Mass.) 584. 
 
 JUDGE ADVOCATE. An officer of a court 
 martial who is to discharge some duties at 
 the trial of offenders. His duties are to 
 prosecute in the name of the United States; 
 but he shall so far consider himself as coun- 
 sel for the prisoner, after the prisoner shall 
 have made his plea, as to object to leading 
 questions to any of the witnesses, or any 
 question to the prisoner the answer to which 
 might tend to criminate himself. He is, 
 further, to swear the members of the court 
 before they proceed upon any trial. Rules 
 & Articles of War, art. 69; 2 Story, U. S. 
 Laws, 1001; Holt, Dig. passim. 
 
 JUDGE ORDINARY. By St. 20 & 21 Vict, 
 c. 85, § 9, the judge of the court of probate 
 was made judge of the court for divorce and 
 matrimonial causes created by that act, un- 
 der the name of the "judge ordinary." 
 
 JUDGE'S CERTIFICATE. InEnglish prac- 
 tice. The written statement of the judge 
 who tried the cause, that one of the parties 
 is entitled to costs in the action. It is very 
 important in some cases that these certifi- 
 cates should be obtained at the trial. See 
 Tidd, Prac. 879; 3 Chit. Prac. 458, 486; 3 
 
 Camp. 316; 5 Barn. & Aid. 796. A statement 
 of the opinion of the court, signed by the 
 judges, upon a question of law submitted to 
 them by the chancellor for their decision. 
 See 3 Sharswood, Bl. Comm. 453. See "Case 
 Stated." 
 
 JUDGE'S NOTES. Short statements, not- 
 ed by a judge on the trial of a cause, of what 
 transpires in the course of such trial. 
 
 JUDGMENT. In practice. The conclusion 
 of law upon facts found, or admitted by the 
 parties, or upon their default in the course 
 of the suit. Tidd, Prac. 930. 
 
 The decision or sentence of the law, given 
 by a court of justice or other competent tri- 
 bunal, as the result of proceedings insti- 
 tuted therein for the redress of an injury. 
 
 A final decision entered in a book of judg- 
 ments under the signature of the judge (3 
 Green [N. J.] 383), or, as is the practice 
 In many jurisdictions, under the signature 
 of the clerk. 
 
 A final or definitive sentence or decision, 
 by which a cause is determined, though not 
 capable of being enrolled, so as to constitute 
 what is technically called a "record," is a 
 judgment. 10 Wend. (N. Y.) 44. 
 
 Judgments are either in rem, or in per- 
 sonam. See "In Rem;" "In Personam." 
 
 They are either final, or interlocutory. 
 See "Pinal Judgment;" "Interlocutory Judg- 
 ment." 
 
 Accordingly, as they are rendered for vari- 
 ous causes, and at various stages of the 
 proceedings without trial, or on a partial 
 trial of the issues, judgments are: 
 
 (1) Judgment by default. A judgment 
 rendered in consequence of the nonappear- 
 ance of the defendant. 
 
 (2) Judgment by nil dicit. One rendered 
 against a defendant for want of a plea. 
 
 (3) Judgment by confession. A judg- 
 ment entered for the plaintiff in case the de- 
 fendant, instead of entering a plea, con- 
 fesses the action, or, at any time before 
 trial, confesses the action and withdraws 
 his plea. 
 
 (4) Judgment of retraxit. One given 
 against the plaintiff, where, after appear- 
 ance, he withdraws his suit. It differs from 
 nonsuit in being a voluntary renunciation 
 of the claim, and will bar a svibsequent ac- 
 tion. 3 Bl. Comm. 396. 
 
 (5) Judgment of nonsuit. A judgment 
 rendered against a plaintiff when he, on trial 
 by jury, fails to be present. See "Nonsuit." 
 
 (6) Judgment of nolle prosequi. A judg- 
 ment entered against the plaintiff where, 
 after appearance, he refuses to further prose- 
 cute his suit. 
 
 (7) Judgment by non sum informatus. 
 One which is rendered when defendant's at- 
 torney, instead of entering a plea, says that 
 he is not informed of any answer to be 
 given to the action. 
 
 I (8) Judgment of non prosequitur. One 
 given against a plaintiff for neglect to take 
 any of the steps which it is incumbent upon 
 him to take in due timft. 
 
 I Among the different judgments rendered 
 
JUDGMENT CREDITOR 
 
 (508) 
 
 JUDICATURE 
 
 in particular actions, or on particular pleas, 
 are: 
 
 (9) Judgment quod recuperet. A judg- 
 ment in favor of the plaintiff that he do 
 recover, which is rendered when plaintiff 
 has prevailed upon an issue in fact or an 
 issue in law other than one arising on a 
 dilatory pleading. 
 
 (10) Judgment quod partitio fiat. The in- 
 terlocutory judgment in a writ of partition, 
 that partition be made. 
 
 (11) Judgment partitio facto, flrma et sta- 
 ilis in perpetuum. The final judgment in 
 partition. 
 
 (12) Judgment quod computet. A judg- 
 ment in an action of account render that the 
 defendant account. 
 
 (13) Judgment pro retorno Jiaiendo. A 
 judgment in an action for the possession of 
 goods, that plaintiff have a return thereof. 
 
 (14) Judgment of nil capita per breve. 
 or per Milam. A judgment in favor of a de- 
 fendant upon an issue raised upon a dec- 
 laration or peremptory plea. 
 
 (15) Judgment of cassetur ftreue (that the 
 writ be quashed). A judgment rendered in 
 favor of a party pleading in abatement to a 
 writ. 
 
 (16) Judgment of error. A judgment ren- 
 dered by an appellate court on a record 
 sent up from an inferior court. 
 
 (17) Judgment of renpnnihat oii.iter. One 
 rendered against a defendant that he do 
 answer over after he has failed to establish 
 a dilatory plea. 
 
 (18) Judgment quod partes replacitant. 
 A judgment for repleader. 
 
 (19) Judgment nul tiel record. One ren- 
 dered upon a plea denying the existence of 
 a record. 
 
 (20) Judgment capiatur. One formerly 
 rendered against a defendant in a civil ac- 
 tion for a wrong vi et armis, rendering him 
 liable to arrest and imprisonment until a 
 fine was paid to the king for the breach of 
 the peace. 
 
 (21) Judgment non obstante veredicto. A 
 judgment rendered without regard to a ver- 
 dict rendered in the action. See "Non Ob- 
 stante Veredicto." 
 
 JUDGMENT CREDITOR. One who is en- 
 titled to enforce a judgment by execution 
 (g. V.) The owner of an unsatisfied judg- 
 ment. 
 
 JUDGMENT DEBTOR. One against whom 
 a judgment stands unsatisfied. 
 
 JUDGMENT DEBTOR SUMMONS. Un- 
 der the English bankruptcy act of 1861 ( sec- 
 tions 76-85), these summonses might be is- 
 sued against both traders and nontraders, 
 and, in default of payment of, or security or 
 agreed composition for, the debt, the debtors 
 might be adjudicated bankrupt. This act was 
 repealed by 32 & 33 Vict. c. 83, § 20. 32 & 33 
 Vict. c. 71, however (bankruptcy act 1869), 
 provides (section 7) for the granting of a 
 "debtor's summons," at the instance of cred- 
 itors, and, in the event of failure to pay or 
 compound, a petition for adjudication may 
 be presented, unless in the events provided 
 for by that section. Rapalje & L. 
 
 JUDGMENT DEBTS. Debts, whether on 
 simple contract or by specialty, for the re- 
 covery of which judgment has been entered 
 up, either upon a cognovit, or upon a war- 
 rant of attorney, or as the result of a suc- 
 cessful action. 
 
 JUDGMENT NISI. A judgment entered 
 on the return of the nisi prius record with 
 the postea indorsed, which will become ab- 
 solute according to the terms of the "pos- 
 tea" unless the court out of which the nisi 
 prius record proceeded shall, within the first 
 four days of the following term, otherwise 
 order. 
 
 Under the compulsory arbitration law of 
 Pennsylvania, on filing the award of the ar- 
 bitrators, judgment nisi is to be entered, ' 
 which judgment is to be valid as if it had 
 been rendered on a verdict of a jury, unless 
 an appeal is entered within the time re- 
 quired by law. 
 
 JUDGMENT NOTE. A promissory note 
 given in the usual form, and containing, in 
 addition, a power of attorney to appear and 
 confess judgment for the sum therein named. 
 
 JUDGMENT PAPER. In English practice. 
 An incipitur of the pleadings, written on 
 plain paper, upon which the master will sign 
 judgment. 1 Archb. Prac. 229, 306, 343. 
 
 JUDGMENT RECORD. 
 
 In English Practice. A parchment roll, 
 
 on which are transcribed the whole proceed- 
 ings in the cause, deposited and filed of rec- 
 ord in the treasury of the court, after sign- 
 ing of judgment. 3 Steph. Comm. 632. 
 
 In American Practice. A record signed, 
 
 filed, and docketed by the clerk, all of which 
 is necessary to suing out execution. Gra- 
 ham, Prac. 341. 
 
 JUDGMENT ROLL. In English law. A 
 record made of the issue roll (g. v.), which, 
 after final judgment has been given, in the 
 cause, assumes this name. Steph. PI. 133; 
 3 Chit. St. 514. 
 
 JUDICANDUM EST LEGIBUS NON EX- 
 emplls. We are to judge by the laws, not by 
 examples. 4 Coke, 33b; 4 Sharswood, Bl. 
 Comm. 405; 19 Johns. (N. Y.) 513. 
 
 JUDICATIO (Lat.) In civil law. Judging; 
 the pronouncing of sentence, after hearing a 
 cause. Halifax, Anal. bk. 3, c. 8, No. 7. 
 
 JUDICATORES TERRARUM. Persons in 
 the county palatine of Chester, who, on a 
 writ of error, were to consider of the judg- 
 ment given there, and reform it; otherwise 
 they forfeited £100 to the crown by custom. 
 Jenk. Cent. Cas. 71. 
 
 JUDICATURE. The state of those em- 
 ployed in the administration of justice; and 
 in this sense it is nearly synonymous with 
 "judiciary." This term is also used to sig- 
 nify a tribunal; and sometimes it Is em- 
 ployed to show the extent of jurisdictloni;,. 
 as, the judicature is upon writs of error, etc. 
 Comyn, Dig. "Parliament" (L ly. And-se?*- 
 Comyn, Dig. "Courts" (A). 
 
JUDICATURE ACTS 
 
 (509) 
 
 JUDICIAL CONVENTION 
 
 JUDICATURE ACTS. A series of acts of 
 parliament reforming and consolidating the 
 English courts, and simplifying the proced- 
 ure therein. St. 36 & 37 Vict. c. 66, and St. 
 38 & 39 Vict, c, 77, and amendments. 
 
 JUDICESNONTENENTUR EXPRIMERE 
 causam sententiae suae. Judges are not 
 bound to explain the reason of their sen- 
 tence. Jenk. Cent. Cas. 75. 
 
 JUDICES ORDINARII (Lat.) In civil law. 
 Ordinary indices; the common judices ap- 
 pointed to try causes, and who, according to 
 Blackstone, determined only questions of 
 fact. 3 Bl. Comm. 315. 
 
 JUDICES PEDANEOS (Lat.) In Roman 
 law. Judges chosen by the parties. 
 
 Among the Romans, the praetors and other 
 great magistrates did not themselves decide 
 the actions which arose between private in- 
 dividuals. These were submitted to judges 
 chosen by the parties, and these judges were 
 called judices pedaneos. In choosing them, 
 the plaintiff had the right to nominate, and 
 the defendant to accept or reject those nom- 
 inated. Heinec. Ant. Rom. lib. 4, tit. b. 
 note 40; 7 Toulller, Dr. Civ. note 353. 
 
 JUDICES SELECTI (Lat.) In civil law. 
 Select or selected judices or judges; those 
 who were used in criminal causes, and be- 
 tween whom and modern jurors many points 
 of resemblance have been noticed. 3 31. 
 Comm. 366. 
 
 JUDICI OFFICIUM SUUM EXCEDENTI 
 non paretur. To a judge who exceeds his 
 office or jurisdiction no obedience is due. 
 Jenk. Cent. Cas. 139. 
 
 JUDICI SATIS POENA EST QUOD DEUM 
 habet ultorem. It is punishment enough for 
 a judge that he is responsible to God. 1 
 Leon. 295. 
 
 JUDICIA (Lat.) -In Roman law. Judicial 
 proceedings; trials. Judicia publioa, crim- 
 inal trials. Dig. 48. 1. 
 
 JUDICIA IN CURIA REGIS NON ADNI- 
 bilentur, sed stent in robore suo quousque 
 per errorem aut attinctum adnullentur. Judg- 
 ments in the king's courts are not to be 
 annihilated, but to remain in force until an- 
 nulled by error or attaint. 2 Inst. 539. 
 
 JUDICIA IN DELIBERATIONIBUS CRE- 
 bro maturescunt, In accelerato processu nun- 
 quam. Judgments frequently become ma- 
 tured by deliberation, never by hurried pr.3- 
 cess. 3 Inst. 210. 
 
 JUDICIA POSTERIORA SUNT IN LEGE 
 -fortiora. The latter decisions are stronger 
 in law. 8 Coke, 97. 
 
 JUDICIASUNT TANQUAM JURIS DICTA, 
 et pro veritate accipiuntur. Judgments are, 
 as it were, the dicta or sayings of the law, 
 and are received as truth. 2 Inst. 537. 
 
 JUDICIAL. Belonging to the office of a 
 judge; as judicial authority. 
 
 Relating to or connected with the admin- 
 istration of justice; as a judicial officer. 
 
 Having the character of judgment or for- 
 mal legal procedure; as a judicial act. 
 
 Proceeding from a court of justice; as a 
 judicial writ, a judicial determination. 
 
 Constituting the basis of a judgment; as a 
 judicial opinion. 
 
 Whatever emanates from a judge as such, 
 or proceeds from a court of justice, is judi- 
 cial. A power which, when exercised by 
 officers not connected with the judiciary, 
 would be regarded as purely administrative, 
 becomes at once judicial when exercised by 
 a court of justice. 
 
 Where any power is conferred upon a 
 court of justice, to be exercised by it as a 
 court, in the manner and with the formali- 
 ties used in its ordinary proceedings, the 
 action of such court is to be regarded as 
 judicial, irrespective of the original nature 
 of the power. 22 N. Y. 67, 82, 84; 11 Abb. 
 Pr. (N. Y.) 301, 315. 
 
 JUDICIAL ACTS. Acts requiring the ex- 
 ercise of some judicial discretion, as distin- 
 guished from ministerial acts, which re- 
 quire none. Rapalje & L. 
 
 JUDICIAL ADMISSIONS. Admissions of 
 the party which appear of record as the ad- 
 missions of the party. 
 
 JUDICIAL COMMITTEE OF THE PRIVY 
 council. In English law. A tribunal, com- 
 posed of members of the privy council, 
 which exercises the entire appellate juris- 
 diction of the sovereign in council, and also 
 advises him upon any matters which he 
 may refer to it. 
 
 Its jurisdiction extends to cases in civil, 
 ecclesiastical, and maritime law, in equity, 
 and to many of the colonial cases, including 
 cases arising under the Hindoo and Moham- 
 medan law. It consists of eminent lawyers, 
 chiefly of judicial station. When questions 
 arise which belong to any peculiar jurisdic- 
 tion, as the ecclesiastical or civil, the attend- 
 ance and aid of judges in that branch are 
 required; and in case of questions under the 
 Hindoo or other peculiar systems of law, as- 
 sistance is, in like manner, derived from 
 those skilled in such proceedings. 
 
 Allegations and proofs are made before 
 this committee, which thereupon reports to 
 the sovereign in council, by whom judgment 
 is finally rendered. Bl. Comm. (Warren, 
 Abr.) 220. 
 
 JUDICIAL CONFESSIONS. In criminal 
 law. Those voluntarily made before a mag- 
 istrate, or in a court, in the due course of 
 legal proceedings. A preliminary examina- 
 tion, taken in writing, by a magistrate law- 
 fully authorized, pursuant to a statute, or 
 the plea of guilty made in open court to an 
 indictment, are sufficient to found a convic- 
 tion upon them. 
 
 JUDICIAL CONVENTIONS. Agreements 
 entered into in consequence of an order of 
 court; as, for example, entering Into a bond 
 on taking out a writ of sequestration. 6 
 Mart. (La.: N. S.) 494. 
 
JUDICIAL DECISIONS 
 
 (SIO) 
 
 JUDICIUM REDDITUR, ETC. 
 
 JUDICIAL DECISIONS. The opinions or 
 determinations of the judges in causes be- 
 fore them. Hale, Hist. Crim. Law, 68; Wil- 
 les, 666; 3 Barn. & Aid. 122; 1 H. Bl. 63; 5 
 Maule & S. 185. See "Dictum." 
 
 JUDICIAL DISCRETION. See "Discre- 
 tion." 
 
 JUDICIAL DOCUMENTS. Proceedings re- 
 lating to litigation. They are divided into 
 (1) judgments, decrees, and verdicts; (2) 
 depositions, examinations, and inquisitions 
 taken in the course of a legal process; (3) 
 writs, warrants, pleadings, etc., which are in- 
 cident to any judicial proceedings. 
 
 JUDICIAL MORTGAGE. In Louisiana. 
 The lien resulting from judgments, whether 
 these be rendered on contested cases, or by 
 default, whether they be final or provisional, 
 in favor of the person obtaining them. Civ. 
 Code La. art. 3289. 
 
 JUDICIAL NOTICE. The cognizance taken 
 by a court of matters of fact, without the 
 production of evidence thereof. The mat- 
 ters of fact of which judicial notice will be 
 taken, are, in general, those of general noto- 
 riety, immemorial usage, or uniform na- 
 tional occurrence. 
 
 JUDICIAL POWER. The authority vested 
 in the judges or courts, as distinguished 
 from that vested in other departments of 
 government. That power by which judicial 
 tribunals construe the constitution, and laws 
 of the United States, or of the states, and 
 determine the rights of parties. 14 Abb. 
 Pr. (N. S.; N. Y.) 165; 65 Barb. (N. Y.) 444. 
 
 JUDICIAL PROCEEDINGS. Proceedings 
 relating to, practised in, or proceeding from, 
 a court of justice. 
 
 JUDICIAL SALE. A sale, by authority of 
 some competent tribunal, by an officer au- 
 thorized by law for the purpose. In a strict 
 sense, an execution sale is not a judifcial 
 sale (18 Vt. 394), but it is generally so re- 
 garded (66 Ind. 505). 
 
 JUDICIAL WRITS. In English practice. 
 The capias and all other writs subsequent to 
 the original writ not issuing out of chan- 
 cery, but from the court to which the orig- 
 inal was returnable. 
 
 Being grounded on what had passed in 
 that court in consequence of the sheriff's re- 
 turn, t'hey are called "judicial" writs, in con- 
 tradistinction to the writs issued out of 
 chancery, which were called "original" 
 writs. 3 Bl. Comm. 282. 
 
 JUDICIARY. That which is done while ad- 
 ministering justice; the judges taken col- 
 lectively; as, the liberties of the people are 
 secured by a wise and independent judiciary. 
 See "Court;" 3 Story, Const, bk. 3, c. 38. 
 
 JUDICIARY ACT. The name ordinarily 
 given to Act Cong. Sept. 24, 1789, establish- 
 ing the system of federal courts. 
 
 JUDICIIS POSTERIORjBUS FIDES EST 
 adhibenda. Faith or credit is to be given to 
 the later decisions. 13 Coke, 14. 
 
 JUDICIS EST IN PRONUNTIANDO SE- 
 
 qiii regulam, exceptlone non probata. The 
 judge in his decision ought to follow the 
 rule, when the exception is not proved. 
 
 JUDICIS EST JUDICARE SECUNDUM 
 allegata et probata. A judge ought to decide 
 according to the allegations and proofs. 
 Dyer, 12a; Halk. Max. 73. 
 
 JUDICIS EST JUS DICERE NON DARE. 
 
 It is the duty of a judge to declare the law, 
 not to enact it. Lofft, 42. 
 
 JUDICIS OFFICIUM EST OPUS DIEI IN 
 
 die suo perficere. It is the duty of a judge 
 to finish the work of each day within that 
 day. Dyer, 12. 
 
 JUDICIS OFFICIUM EST UT RES ITA 
 tempora rerum quaerere, quaesito t«inpore 
 tutus eris. It is the duty of a judge to in- 
 quire the times of things, as well as into 
 things; by inquiring into the time you will 
 be safe. Co. Litt. 171. 
 
 JUDICIUM. A court; judicial power; a 
 judicial proceeding; sometimes applied in 
 this sense to an action generally, and some- 
 times to a determination therein, as a ver- 
 dict or judgment. 
 
 JUDICIUM A NON SUO JUOICE DATUM 
 nullius est momenti. A judgment given by 
 an improper judge is ,of no moment. 10 
 Coke, 76b; 2 Q. B. 1014; 13 Q. B. 143; 14 
 Mees. & W. 124; 11 Clark & P. 610. 
 
 JUDICIUM CAPITALE. In old English 
 law. Judgment of death; capital judgment. 
 Fleta, lib. 1, c. 39, § 2. Called, also, "judi- 
 cium vitae amissionis," judgment of loss of 
 lite. Id. lib. 2, c. 1, § 5. 
 
 JUDICIUM DEI (Lat. the judgment or de- 
 cision of God). In old English law. A term 
 applied to trials by ordeal; for, In all trials 
 of this sort, God was thought to interfere 
 in favor of the innocent, and so decide the 
 cause. These trials are now all abolished. 
 
 JUDICIUM EST QUASI JURIS DICTUM. 
 
 Judgment is, as it were, a saying of the law. 
 Co. Litt. 168. 
 
 JUDICIUM NON DEBET ESSE ILLUSO- 
 rium; suum effectum habere debet. A judg- 
 ment ought not to be illusory; it ought to 
 have its proper effect. 2 Inst. 341. 
 
 JUDICIUM PARIUM. In old English law. 
 Judgment of the peers; judgment of one's 
 peers; trial by jury. Magna Charta, c. 89. 
 
 JUDICIUM REDDITUR IN INVITUM. 
 Judgment is given against one, whether he 
 will or not. Co. Litt. 248b. 
 
 JUDICIUM REDDITUR IN INVITUM, )N 
 praesumptione legis. In presumption of law, 
 a judgment is given against inclination. 
 Co. Litt. 248b. 314b. 
 
JUDICIUM SEMPER, ETC. 
 
 (511) 
 
 JURA SANGUINIS, ETC. 
 
 JUDICIUM SEMPER PRO VERITATEAC- 
 clpitur. A judgment Is always taken for 
 truth. 2 Inst. 380; 17 Mass. 237. 
 
 JUGERUM (Lat.) An acre. Co. Litt. 5b. 
 As much as a yoke {jugiim) of oxen could 
 plough in one day. 
 
 JUGES D'INSTRUCTION. In French law. 
 Officers subject to the procureur imperial or 
 general, who receive in cases of criminal 
 offenses the complaints of the parties in- 
 jured, and who summon and examine wit- 
 nesses 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. 
 
 JUGULATOR. In old records. A cutthroat 
 or murderer. Cowell. 
 
 JUGUM (Lat.) In the civil law. A yoke; 
 a measure of land; as much land as a yoke 
 of oxen could plough in a day. Nov. 17, c. 8. 
 Called, also, jugalinm and ej/gocephalum. Id. 
 See Brissonius. 
 
 JUGUM TERRAE (Law Lat.) In old Eng- 
 lish law. A yoke of land ; half a plough land. 
 Domesday Book; Co. Litt. 5a; Cowell. 
 
 JUICIO. In Spanish law. A trial or suit. 
 White, New Recop. bk. 3, tit. 4, c. 1. 
 
 JUICIO DE APEO. In Spanish law. The 
 decree of a competent tribunal directing the 
 determining and marking the boundaries of 
 lands or estates. 
 
 JUICIO DE CONCURSO DE ACREEDO- 
 
 res. In Spanish law. The decree obtained 
 by a debtor against his creditors, or by the 
 creditors against their debtor, for the pay- 
 ment of the amounts due, according to the 
 respective rank of each creditor, when the 
 property of the debtor is insufficient to pay 
 the whole of his liabilities. 
 
 JUMENT. In old Scotch law. An ox used 
 for tillage. 1 Pitc. Crim. Tr. pt. 2, p. 89. 
 
 JUMENTA. In civil law. Beasts of bur- 
 den; animals used for carrying burdens. 
 This word did not include "oxen." Dig. 32. 
 65. 5. 
 
 JUMP BAIL. A colloquial expression, 
 meaning to abscond in violation of the obli- 
 gation of a bail bond. 
 
 JUNCTA JUVANT. Things joined have 
 effect. 11 East, 220. 
 
 JUNIOR. Younger ; subsequent to in point 
 of time: Thus, junior creditor, one whose 
 claim accrued after that of another; junior 
 judgment, one entered after another against 
 the same person; junior writ, oAe issued 
 after another against the same person. 
 
 JURA (Lat. pi. of jus, g. v.) Rights; laws. 
 
 1 Bl. Comm. 123. Freedoms or abilities. 
 Bac. Works, iii. 265. 
 
 JURA ECCLESIASTICA LIMITATA SUNT 
 infra limites separates. Ecclesiastical laws 
 are limited within separate bounds. 3 
 Bulst. 53. 
 
 JURA EODEM MODO DESTITUUNTUR 
 quo constituuntur. Laws are abrogated or 
 repealed by the same means by which they 
 are made. Broom, Leg. Max. (3d London 
 Ed.) 785. 
 
 JURA FISCALIA (Lat.) In English law. 
 Fiscal rights; rights of the exchequer. :! Bl. 
 Comm. 45. 
 
 JURA IN RE (Lat.) In civil law. Rights 
 in a thing, as opposed to rights to a thing 
 {jura ad rem). Rights in a thing which are 
 not gone upon loss of possession, and which 
 give a right to an action in rem against who- 
 ever has the possession. These rights are 
 of four kinds: Dominium, hereditas, serv- 
 itus, pignus. Heinec. Elem. Jur. Civ. § S33. 
 See "Jus in Re." 
 
 JURA MIXTI DOMINII. In old English 
 law. Rights of mixed dominion. The king's 
 right or power of jurisdiction was so term- 
 ed. Hale, Anal. § 6. 
 
 JURA NATURAE SUNT IMMUTABILIA. 
 The laws of nature are unchangeable. 
 Branch, Princ; Oliver, Forms, 56. 
 
 JURA PERSONARUM (Lat.) In civillaw. 
 Rights which belong to men in their differ- 
 ent characters or relations, as father, ap- 
 prentice, citizen, etc. 1 Sharswood, Bl. 
 Comm. 122, note. 
 
 JURA PRAEDIORUM. In civil law. The 
 rights of estates. Dig. 50. 16. 86. 
 
 JURA PUBLICA ANTEFERENDA PRIVA- 
 
 tis. Public rights are to be preferred to pri- 
 vate. Co. Litt. 130. 
 
 JURA PUBLICA EX PRIVATO PROMIS- 
 cue decidi non debent. Public rights ought 
 not to be decided promiscuously with pri- 
 vate. Co. Litt. 181b. 
 
 JURA REGALIA (or REGIA) (Lat.) Royal 
 rights. 1 Sharswood, Bl. Comm. 117, 119, 
 240; 3 Sharswood, Bl. Comm. 45. See 21 & 
 22 Vict. c. 45. 
 
 JURA REGIS SPECIALIA NON CONCE- 
 duntur per generalia verba. The special 
 rights of the king are not granted by general 
 words. Jenk. Cent. Cas. 103. 
 
 JURA RERUM. Rights of things; the 
 rights of things; rights which a man may 
 acquire over external objects or things un- 
 connected with his person. 1 Bl. Comm. 
 122; 2 Bl. Comm. 1. 
 
 JURA SANGUINIS NULLO JURE CIVILI 
 dirlmi possunt. The right of blood and kin- 
 dred cannot be destroyed by any civil law. 
 Dig. 50. 17. 9; Bac. Max. reg. 11; Broom, 
 Leg. Max. (3d London Ed.) 474. 
 
JURA SUMMI IMPERII 
 
 (512) 
 
 JURE ECCLESIAE 
 
 JURA SUMMI IMPERII. Rights of su- 
 preme dominion; rights of sovereignty. 1 
 Bl. Comm. 49; 1 Kent, Comm. 211. 
 
 JURAMENTAE CORPORALES(Lat.) Cor- 
 poral oaths. These oaths are so called be- 
 cause the party making oath must touch the 
 Bible, or other thing, by which he swears. 
 
 JURAMENTUM (Lat.) In civil law. An 
 oath. 
 
 JURAMENTUM CALUMNIAE (Lat. oath 
 of calumny). In civil and canon law. An 
 oath required of plaintiff and defendant, 
 ■whether the parties themselves insist on it 
 or not, that they are not influenced in seek- 
 ing their right by malice, but believe their 
 cause to be just. It was also required of 
 the attorneys and procurators of the parties. 
 Called also, jusjurandum or sacramentum 
 calumniae. Calv. Lex.; Vicat; Clerke, Prax. 
 tit. 42. 
 
 JURAMENTUM EST INDIVISIBILE; ET 
 non est admittendum in parte verum at in 
 parte falsam. An oath is Indivisible; it is 
 not to be held partly true and partly false. 
 4 Inst. 274. 
 
 JURAMENTUM JUDIC1ALE (Lat.) In 
 <:ivil law. An oath which the judge, of his 
 own accord, defers to either of the parties. 
 
 It is of two kinds: First, that which the 
 judge defers for the decision of the cause, 
 and which is understood by the general 
 name juramentum judiciale, and is some- 
 times called suppletory oath, juramentum 
 suppletorium; second, that which the judge 
 defers in order to fix and determine the 
 amount of the condemnation which he ought 
 to pronounce, and which is called juramen- 
 tum in litem. Poth. Obi. p. 4, c. 3, § 3, art. 3. 
 
 JURAMENTUM NECESSARIUM. In Ro- 
 man law. A necessary (compulsory) oath. 
 A statement under oath which might be re- 
 quired of a party on his adversary agreeing 
 to be bound thereby. 
 
 JURAMENTUM VOLUNTARIUM. In Ro- 
 man law. A voluntary oath, which a party 
 might make on the offer of his adversary to 
 be bound thereby. He was not, however, 
 compelled to accept the offer, as in case of 
 the juramentum neccssarinm. 
 
 J U RARE. To swear; to take an oath. 
 
 JURARE EST DEUM IN TESTUM VO- 
 care, et est actus divini cultus. To swear is 
 to call God to witness, and is an act of re- 
 ligion. 3 Inst. 165. See 3 Bouv. Inst. 3180, 
 Tiote; 1 Benth. Jud. Ev. 376, 371, note. 
 
 JURAT. In practice. That part of an affi- 
 davit where the officer certifies that the 
 same was "sworn" before him, and when and 
 vs^here. 
 
 JURATS (Law Lat. jurati). Sworn men; 
 officers of certain municipal corporations in 
 England, in the nature of aldermen or as- 
 sistants. Cowell; Blount. So called from 
 their official oaths. See Dugdale, Imbank- 
 ing. 18 et seq. 
 
 J U RATA (Lat.) In old English law. A jury 
 of twelve men sworn. Especially, a jury of 
 the common law, as distinguished from the 
 assiza, or jury established or re-established 
 by St. Hen. II. 
 
 The jurata, or common-law jury, was a 
 jury called in to try the cause, upon the 
 prayer of the parties themselves, in cases 
 where a jury was" not given by St. Hen. II., 
 and, as the jury was not given under the 
 statute of Henry II., the writ of attaint pro- 
 vided in that statute would not be against 
 a jurata for false yerdict. It was common 
 for the parties to a cause to request that the 
 cause might be decided by the assiza, sitting 
 as a jurata, in order to save trouble of sum- 
 moning a new jury, in which case "cadit as- 
 siza et vertitur in juratam," and the cause 
 is said to be decided non in modum assizae, 
 but in modum juratae. 1 Reeve, Hist. Eng. 
 Law, 335, 336; Glanv. lib. 13, c. 20; Brac- 
 ton, lib. 3, c. 30. But this distinction has 
 been long obsolete. 
 
 Juratae were divided into: First, jurata 
 dilatoria, which inquires out offenses against 
 the law, and presents their names, together 
 with their offenses, to the judge, and which 
 is of two kinds, — major and minor, accord- 
 ing to the extent of its jurisdiction; second, 
 jurata judicaria, which gives verdict as to 
 the matter of fact in issue, and is of two 
 kinds, — civilis, in civil causes, and crimina- 
 Hs, in criminal causes. Du Cange. 
 
 A clause in nisi prius record called the 
 "jury clause," so named from the word 
 jurata, with which its Latin form begins. 
 
 A jurat. 
 
 JURATION. The act of swearing; the ad- 
 ministration of an oath. 
 
 JURATO CREDITUR IN JUDICIO. He 
 
 who makes oath is to be believed in judg- 
 ment. 3 Inst. 79. 
 
 JURATOR. A juror; a compurgator (?.».) 
 
 JURATORES DEBENT ESSE ViCINI, 
 
 sufficientes et minus suspect!. Jurors ought 
 to be neighbors, of sufficient estate, and free 
 from suspicion. Jenk. Cent. Cas. 141. 
 
 JURATORES SUNT JUDICES FACTI. 
 
 Jurors are the judges of the facts. Jenk. 
 Cent. Cas. 68. 
 
 JURATORY CAUTION. A security some- 
 times taken in Scotch proceedings, when no 
 better can be had, viz., an inventory of ef- 
 fects given up upon oath, and assigned in se- 
 curity of the sums which may be found due. 
 Bell, Diet. 
 
 JURE (Lat.) By right; in right; by the 
 law; according to the law. 
 
 JURE BELLI. By the right or law of war. 
 1 Kent, Comm. 126; 1 C. Rob. Adm, 289. 
 
 JURE CIVILI. By the civil law. Inst. 1. 
 3. 4; 1 Bl. Comm. 423. 
 
 JURE ECCLESIAE. In right of the Church. 
 1 Bl. Comm. 401. 
 
JURE EMPHYTEUTICO 
 
 (513) 
 
 JURISDICTION CLAUSE 
 
 JURE EMPHYTEUTICO. By the right or 
 law of emphyteosiK. 3 Bl. Comm. 232. See 
 "Bmphyteosis." 
 
 JURE GENTIUM. By the law of nations. 
 Inst. 1. 3. 4; 1 Bl. Comm. 423. 
 
 JURE NATURAE AEQUUM EST, NEMI- 
 nem cum alterius detrimento, et injuria fieri 
 locupletiorem. According to the laws of na- 
 ture, it is just that no one should he en- 
 riched with detriment and Injury to another, 
 i. e., at another's expense. Dig. 50. 17. 200. 
 
 JURE PROPINQUITATIS (Lat.) By right 
 of relationship. Co. Litt. 10b. 
 
 JURE REPRESENTATIONIS (Lat.) By 
 right of representation. See "Per Stirpes." 
 2 Sharswood, Bl. Comm. 219, note 14, 224. 
 
 JURE UXORIS (Lat.) By right of a wife. 
 
 JURI NON EST CONSONUM QUOD ALI- 
 quis accessorius in curia regis convincatur 
 antequam aliquis de facto fuerit attinctus. 
 It is not consonant to justice that any ac- 
 cessory should be convicted in the king's 
 court before any one has been attainted of 
 the fact. 2 Inst. 183. 
 
 JURIDICAL (Lat. jurUlu-ii.s, q. c.) Relat- 
 ing to the administration of justice. A jurid- 
 ical day is one on which courts sit for the 
 administration of justice. 
 
 Belonging to the office of a judge. See 
 "Judicial." 
 
 JURIDICUS (Lat. from yu.v, law, and dicere, 
 to say, or pronounce). Belonging to law; 
 relating to the administration of justice In 
 or by a court. T)i<x jitridicus, a day on which 
 courts can lawfully sit; a juridical day; a 
 law or court day. 
 
 JURIS EFFECTUS IN EXECUTIONE 
 consistit. The effect of a law consists in the 
 execution. Co. Litt. 289b. 
 
 JURIS ET DE JURE (Lat. of right and by 
 law). A presumption is said to be juris et 
 de jure when it is conclusive, i. e., when no 
 evidence will be admitted to rebut it, in con- 
 tradistinction to a presumption, which is 
 simply juris, i. e., rebuttable by evidence. 1 
 Greenl. Bv. § 15, note; Wills, Circ. Bv. 29; 
 Best, Pres. p. 20, § 17; Best, Ev. p. 43, § 48. 
 
 JURIS ETSEISINAE CONJUNCTIO (Lat.) 
 The union of seisin, or pbssession, and the 
 right of possession, forming a complete title. 
 2 Sharswood, Bl. Comm. 199, 311. 
 
 JURIS POSITIVI. Positive, as distin- 
 guished from natural, law. 
 
 JURIS PUBLICI (Lat.) Of common right; 
 of common or public use; such things as, at 
 least in their own use, are common to all 
 the king's subjects; as common highways, 
 common bridges, common rivers, and com- 
 mon ports. Hale, Anal. § 23. The phrase 
 publici juris is also used. Hale de Jur. Mar. 
 par. 1, c. 3. 
 
 JURIS UTRUM (Law Lat.) In English 
 
 law. A writ which lay for the incumbent of 
 a benefice, to recover the lands or tene- 
 ments belohging to the church, which were 
 aliened by his predecessor. Termes de la 
 Ley; 48 Pitzh. Nat. Brev. 49. Sometimes 
 called "the parson's writ of right," being the 
 highest writ he could have. 3 Bl. Comm. 252. 
 
 JURISCONSULTUS (Lat. skilled in the 
 law). In civil law. A person who has such 
 knowledge of the laws and customs which 
 prevail in a state as to be able to advise, act, 
 and to secure a person in his dealings. 
 
 The early jurisconsults gave their opinions 
 gratuitously, and were also employed in 
 drawing up written documents. From Au- 
 gustus to Adrian, only those allowed by the 
 emperor could be jurisconsults. Before and 
 after those emperors, any could be juriscon- 
 sults who chose. If their opinion was unan- 
 imous, it had the force of law; if not, the 
 praetor could follow which opinion he chose. 
 Vicat. 
 
 There were two sects of jurisconsults at 
 Rome, — the Proculeians and Labinians. The 
 former were founded by Labeo, and were in 
 favor of innovation; the latter by Capito, 
 and held to the received doctrine. Cush. 
 Rom. Law, §§ 5, 6. 
 
 JURiSDICTIO EST POTESTAS DE PUB- 
 lico introducta, cum necessitate juris dicen- 
 di. Jurisdiction is a power introduced for 
 the public good, on account of the necessity 
 of dispensing justice. 10 Coke, 73a. 
 
 JURISDICTION (Lat. ;«s, law, dicBre, to say). 
 The authority by which judicial officers take 
 cognizance of and decide causes; poWer to 
 hear and determine a cause. 3 Ohio, 494; 6 
 Pet. (U. S.) 591. And it has been consid- 
 ered that it is essential to jurisdiction that, 
 the court should not only have power to 
 hear and determine the case generally, but 
 that, in the course of the hearing, and in 
 the particular judgment rendered, it keep 
 within its power. 93 U. S. 282. 
 
 Jurisdiction is either (1) general over all 
 matters within the judicial power of the 
 sovereignty creating it, or (2) limited to 
 certain specified subject matters or persons. 
 See "General Jurisdiction." 
 
 It is either (3) original, being that of the 
 tribunal in which an action is commenced 
 in the first instance, or (4) appellate, being 
 that of the tribunal to which the action la 
 removed by proceedings for review. 
 
 It is either (5) exclusive in some par- 
 ticular court, (6) concurrent in being pos- 
 sessed at the same time by two or more 
 separate tribunals, or (7) assistant, being 
 that possessed by a tribunal in aid of pro- 
 ceedings in* another separate tribunal. 
 
 It is either (8) criminal, that which exists 
 for the punishment of crimes, or (9) civil, 
 over subject matters not of a criminal na- 
 ture. 
 
 JURISDICTION CLAUSE. In equity prac- 
 tice. That part of a bill which is intended 
 to give jurisdiction of the suit to the court, 
 by a general averment that the acts com- 
 plained of are contrary to equity, and tend 
 to the Injury of the plaintlft, and that he 
 
JURIS DICXrONAL 
 
 (514) 
 
 JURY BOX 
 
 has no remedy, or not a complete remedy, 
 without the assistance of a court of equity, 
 is called the "jurisdiction clause." Mitf. Bq. 
 PI. (Jeremy Ed.) 43. 
 
 This clause is unnecessary; for if the 
 court appear from the bill to have jurisdic- 
 tion, the bill will be sustained without this 
 clause; and if the court have not jurisdic- 
 tion, the bill will be dismissed, though the 
 clause may be inserted. Story, Eq. PI. § 34. 
 
 JURISDICTIONAL. Pertaining to ; essen- 
 tial to or conferring jurisdiction. 
 
 JURISPERITUS (Lat. from jus, law [juris, 
 of law], and perifus, skilled). Skilled or 
 learned in the law. ' 
 
 JURISPRUDENCE. The science of the 
 law; the practical science of giving a wise 
 interpretation to the laws, and making a 
 just application of them to all cases as they 
 arise. 
 
 By science, in the first definition, is under- 
 stood that connection of truths which is 
 founded on principles either evident in 
 themselves, or capable of demonstration, — a 
 collection of truths of the same kind, ar- 
 ranged in methodical order. In the latter 
 sense, it is the habit of judging the same 
 questions in the same manner, and by this 
 course of judgments forming precedents. 1 
 Aylifle, Pand. 3; Toullier, Dr. Civ. tit. prel. 
 § 1, note 1, 12, 99; Merlin, Repert.; 19 Am. 
 Jur. 3. 
 
 JURISPRUDENTIA (Lat. from jus, law 
 [juris, of law] , and prudentia, wisdom, knowl- 
 edge). In the civil and common law. Juris- 
 prudence, or legal science. 
 
 JURISPRUDENTIA EST DIVINARUM 
 atque humanarum rerum notitia; justi atque 
 injusti scientia. Jurisprudence is the knowl- 
 edge of things divine and human; the 
 science of the just and the unjust. Dig. 1. 
 1. 10. 2; Inst. 1. 1. 1; Bracton, 3; 8 Johns. 
 (N. Y.) 290, 295. 
 
 JURISPRUDENTIA LEGtS COMMUNIS 
 Angliae est scientia socialis at copiosa. The 
 jurisprudence of the common law of Eng- 
 land is a science sociable and copious. 7 
 Coke, 28a. 
 
 JURIST. One versed in the science of the 
 law; one skilled in the civil law; one skilled 
 in the law of nations. 
 
 JURISTIC ACT. One of legal efficacy. 
 
 JURO. In Spanish law. A certain pension 
 granted by the king on the public revenues, 
 and more especially on the salt works, by 
 favor, either in consideration of meritorious 
 services, or in return for money loaned the 
 government, or obtained by it through forced 
 loans. It is a portion of the yearly revenue 
 of the state, assigned as a rightful indem- 
 nity, either in perpetuity or as an annuity. 
 
 JUROR (Lat. juro, to swear). A man who 
 Is sworn or affirmed, to serve on a jury. 
 
 JURY (Lat. jvrata. sworn). In practice. A 
 body of men who are sworn to declare the 
 
 facts of a case as they are delivered from 
 the evidence placed before them. 
 
 It is applied loosely to a number of bodies, 
 as coroners' juries, etc. 
 
 As applied to petit juries, its most com- 
 mon use, the full number of twelve men is 
 essential to a common-law jury. 18 N Y 
 128. • ■ ■ 
 
 The origin of this venerable institution of 
 the common law is lost in the obscurity, of 
 the middle ages. Antiquarians trace it back 
 to an early period of English history; but, if 
 known to the Saxons, it must have existed 
 in a very crude form, and may have been 
 derived to them from the mode of adminis- 
 tering justice by the peers of Htigant par- 
 ties, under the feudal institutions of Prance, 
 Germany, and the other northern nations of 
 Europe. The ancient ordeals of red-hot iron 
 and boiling water, practiced by the Anglo- 
 Saxons to test the innocence of a party ac- 
 cused of crime, gradually gave way to the 
 wager of battle, in the days of the Normans; 
 while this latter mode of trial disappeared 
 in civil cases in the thirteenth century, 
 when Henry II. introduced into the assizes 
 a trial by jury. It is referred to in Uagnti 
 Cliarta as an institution existing in England 
 at that time, and its subsequent history is 
 well known. See "Grand Assize;" 3 BI. 
 Comm. 349; ], Reeve, Hist. Eng. Law, 23, 84; 
 Glanv. c. 9; Bracton, 155. 
 
 A jury cLe medietate linguae is one com- 
 posed half of aliens and half of denizens. 
 
 Such juries might formerly be claimed, 
 both in civil and criminal cases, where the 
 party claiming the privilege was an alien 
 born, by virtue of 28 Edw. III. c. 13. And 
 see 8 Hen. VI. c. 29; 3 Geo. III. c. 25, by 
 which latter statute the right is thought to 
 be taken away in civil cases. See 3 Shars- 
 wood, Bl. Comm. 360; 4 Sharswood, Bl. 
 Comm. 352. A provision' of a similar na- 
 ture, providing for a jury one-half of the 
 nationality of the party claiming the privi- 
 lege, where he is a foreigner, exists In some 
 of the states of the United States. 
 
 A grand jury is one organized for certain 
 preliminary purposes. See "Grand Jury." 
 
 A petit jury is a jury who try the question 
 in issue, and pass finally upon the truth of 
 the facts in dispute. The term "jury" is or- 
 dinarily applied to this body distinctively. 
 
 A common jury is one drawn in the usual 
 manner. 
 
 A special or struck jury is one selected by 
 the assistance of vthe parties. 
 
 This is granted in some cases upon motion 
 and cause shown, under various local provi- 
 sions. See 33 Eng. Law & Eq. 406. The 
 method at common law was for the officer 
 to return the names of forty-eight principal 
 freeholders to the prothonotary or proper 
 officer. The attorneys of the respective par- 
 ties, being present, strike off each twelve 
 names, and from the remaining twenty-four 
 the jury is selected. A similar course is 
 pursued in those states where such juries 
 are allowed. See 3 Sharswood, Bl. Comm. 
 357. 
 
 JU RY BOX. A place set apart for the jury 
 to sit in during the trial of a cause. 
 
JURY LIST 
 
 ,515) 
 
 JUS AD REM 
 
 JU RY LIST. A paper containing the names 
 of jurors impanelled to try a cause, or it 
 contains the names of all the jurors sum- 
 moned to attend court. 
 
 JURY OF MATRONS. 
 
 en." 
 
 See "Jury Wom- 
 
 JURY PROCESS. In practice. The writs 
 for summoning a jury, viz., in England, 
 venire juratores facias, and distringas jura- 
 tores, or habeas corpora juratorum. These 
 writs are now abolished, and jurors are sum- 
 moned by precept. 1 Chit. Archb. Prac. (by 
 Prent.) 344; Com. Law Proc. Act 1852, §§ 
 104, 105; 3 Chit. St. 519. 
 
 JURY WHEEL. A revolving box, from 
 which names are drawn by chance to form 
 the jury list (?. v.) 
 
 JURY WOMEN. A jury of women is given 
 in two cases, viz., on writ de ventre in- 
 spiciendo, in which case the jury is made up 
 of men and women, but the search is made 
 by the latter (1 Madd. 11; 2 P. Wms. 591) ; 
 and where pregnancy is pleaded by con- 
 demned criminal in delay of execution, in 
 which case a jury of twelve discreet women 
 is formed, and on their returning a verdict 
 of enseinte, the execution is delayed till 
 birth, and sometimes the punishment com- 
 muted to perpetual exile. But if the crim- 
 inal be privement enseinte, and not "quick," 
 there is no respite. 2 Hale, P. C. 412. As 
 to time of quickening, see 1 Beck, Med. Jur. 
 229. 
 
 JURYMAN. A juror; one who is impan- 
 elled on a jury. Webster. 
 
 JUS. Right in general or in the abstract; 
 justice or equity. 
 
 Law in general; law as distinguished from 
 equity. 
 
 A rule of law; a statute or regulation. 
 
 Power or authority. 
 
 An action; a court or judicial tribunal. 
 
 JUS ABUTENDI (Lat. the right to abuse). 
 By this phrase is understood the right to 
 abuse property, or having full dominion over 
 property. 3 TouUier, Dr. Civ. note 86. Used 
 in contradistinction to the jus utendi (q. v.) 
 
 JUS ACCRESCENDI (Lat.) The right of 
 survivorship. 
 
 At common law, when one of several joint 
 tenants died, the entire tenancy or estate 
 went to the survivors, and so on to the last 
 survivor, who took an estate of Inheritance. 
 This right, except in estates held in trust, 
 has been abolished by statute In most of 
 the United States. 
 
 JUS ACCRESCENDI INTER MERCATO- 
 res locum non habet, pro beneficio commer- 
 cii. The right of survivorship does not exist 
 among merchants for the benefit of com- 
 merce. Co. Litt. 182; 1 Bouv. Inst, note 682. 
 
 JUS-ACCRESCENDI PRAEFERTUR ONE- 
 ribus. The right of survivorship Is preferred 
 to incumbrances. Co. Litt. 185. 
 
 JUS ACCRESCENDI PRAEFERTUR UL- 
 timae voluntatl. The right of survivorship 
 is preferred to a last will. Co. Litt. 185b. 
 
 JUS AD REM (Lat.) A right which be- 
 longs to a person only mediately and rela- 
 tively, and has for its foundation an obli- 
 gation incurred by a particular person. 
 
 The jus in re, by the effect of its very na- 
 ture, is independent and absolute, and is ex- 
 ercised per se ipsum, by applying it to its 
 object; but the jus ad rem is the faculty of 
 demanding and obtaining the performance 
 of some obligation by which another is 
 bound to me ad aliquid dandum, vel facien- 
 dum, vel praestandum. Thus, if I have the 
 ownership of a horse, the usufruct of a flock 
 of sheep, the right of habitation of a house, 
 a right of way over your land, etc., my right 
 in the horse, in the flock of sheep, in the 
 house, or the land, belongs to me directly, 
 and without any intermediary; it belongs 
 to me absolutely, and Independently of any 
 particular relation with another person; I 
 am in direct and immediate relation with 
 the thing itself which forms the object of my 
 right, without reference to any other rela- 
 tion. This constitutes a jus in re. If, on 
 the other hand, the horse is lent to me by 
 you, or if I have a claim against you for a 
 thousand dollars, my right to the horse or 
 to the sum of money exists only relatively, 
 and can only be exercised through you; my 
 relation to the object of the right is mediate, 
 and is the result of the immediate relation 
 of debtor and creditor existing between you 
 and me. This is a jus ad rem. Every jus 
 in re, or real right, may be vindicated by the 
 actio in rem against him who is in posses- 
 sion of the thing, or against any one who 
 contests the right. It has been said that the 
 words jus in re of the civil law convey the 
 same idea as "thing in possession" at com- 
 mon law. This is an error, arising from a 
 confusion of ideas as to the distinctive char- 
 acters of the two classes of rights. Nearly 
 all the common-law writers seem to take It 
 for granted that by the jus in re is under- 
 stood the title or property in a thing in the 
 possession of the owner; and that by the 
 jus ad rem is meant the title or property in 
 a thing not in the possession of the owner. 
 But i^ is obvious that possession Is not one 
 of the elements constituting the jus in re. 
 although possession is generally, but not al- 
 ways, one of the incidents of this i;ight, yet 
 the loss of possession does not exercise the 
 slightest influence on the character of the 
 right itself, unless it should continue for a 
 sufficient length of time to destroy the right 
 altogether by prescription. In many instan- 
 ces the jus in re Is not accompanied by pos- 
 session at all; the usuary is not entitled to 
 the possession of the thing subject to his 
 use; still, he has a jus in re. So with re- 
 gard to the right of way, etc. See "Domini- 
 um." 
 
 A mortgage Is considered by most writers 
 as a jus in re; but it is clear that it Is a jus 
 ad rem. It is granted for the sole purpose 
 of securing the payment of a debt, or the 
 fulfillment of some other personal obliga- 
 tion. In other words, it la an accessory to 
 
JUS AESNECIAE 
 
 (S16) 
 
 JUS EST NORMA, ETC. 
 
 a principal obligation and corresponding 
 right. It can have no separate and inde- 
 pendent existence. The immovable on which 
 I have a mortgage is not the object of the 
 right, as in the case of the horse of which 
 I am the owner, or the house of which I 
 have the right of habitation, etc. The true 
 object of my right is the sum of money due 
 to me, the payment of which I may enforce 
 by obtaining a decree for the sale of the 
 property mortgaged. 2 Marcade, 350 et seq. 
 
 JUS AESNECIAE. The right of primogen- 
 iture. 
 
 JUS ALBINATUS. Thedroitd'aubaiTiefq.v.) 
 See "Albinatus Jus." 
 
 JUS ANGUQRUM. The laws and customs 
 of the West Saxons, in the time of the 
 Heptarchy, by which the people were for a 
 long time governed, and which were pre- 
 ferred before all others. Wharton. 
 
 JUS AQUAEDUCTUS (Lat.) In civil law. 
 The name of a servitude which gives to the 
 owner of land the right to bring down water 
 through or from the land of another, either 
 from its source, or from any other place. 
 
 JUS BANCI. In old English law. The 
 right of bench; the right or privilege of 
 having an elevated and separate seat of judg- 
 ment, anciently allowed only to the king's 
 judges, who hence were said to administer 
 "high" justice, summam administrant justi- 
 tiam. Blount. 
 
 JUS BELLI. The law of war; the law of 
 nations as applied to a state of war, defining 
 in particular the rights and duties of the 
 belligerent powers themselves, and of neu- 
 tral nations. 
 
 The right of war; that which may be done 
 without injustice with regard to an enemy. 
 Grotius de Jure Belli, lib. 1, c. 1, § 3. 
 
 JUS BELLUM DECENDI. The right to de- 
 clare war. 
 
 JUS CANONICUM. The canon law. 
 
 JUS CIVILE (Lat.) In Roman law. The 
 private law, in contradistinction to the pub- 
 lic law, or jus gentium. 1 Savigny, Dr. 
 Rom. c. 1, § 1. 
 
 JUS CIVILE EST QUOD SIBI POPULUS 
 constituit. The civil law is what a people 
 establishes for itself. 1 Johns. (N. Y.) 424, 
 426. 
 
 JUSCIVITATIS(Lat.) In Roman law. The 
 collection of laws which are to be observed 
 among all the members of a nation. It is 
 opposed to jus gentium, which is the law 
 which regulates the affairs of nations among 
 themselves. 2 Lepage, c. 5, p. 1. 
 
 JUS CLOACAE. (Lat.) In civil law. The 
 name of a servitude which requires the 
 party who is subject to it to permit his 
 neighbor to conduct the waters which fall 
 on his grounds over those of the servient 
 estate. 
 
 JUS COMMUNE. 
 
 In Civil Law. Common right; the com- 
 mon and natural rule of right, as opposed to 
 •jus singulare (q. v.) Mackeld. Civ. Law % 
 196. ' ' 
 
 1 n English Law. The common law, an- 
 swering to the Saxon "folcright." 1 bi 
 Comm. 67. 
 
 JUSCONSTITUI OPORTETIN HIS QUAE 
 ut plurlmum accldunt non quae ex inopinato. 
 Laws ought to be made with a view to 
 those cases which happen most frequently, 
 and not to those which are of rare or acci- 
 dental occurrence. Dig. 1. 3. 3; Broom Leg 
 Max. 43. 
 
 JUS CORONAE. In English law. The 
 right of the crown, or, rather, to the crown; 
 the right of succession to the throne. 1 Bl 
 Comm. 191; 2 Steph. Comm. 434. 
 
 JUS CUDENDAE MONETAE. In old Eng- 
 lish law. The right of coining money. 2 
 How. St. Tr. 118. 
 
 JUSCURIALITATIS. In English law. The 
 right of curtesy. Spelman. 
 
 JUS DARE (Lat.) To give or to make the 
 law. Jus dare belongs to the legislature;, 
 jus dicere, to the judge. 
 
 JUS DELIBERANDI (Lat.) The right of 
 deliberating given to the heir, in those coun- 
 tries where the heir may have "benefit of in- 
 ventory" ( g. v.), in which to consider wheth- 
 er he will accept or renounce the succession. 
 
 In Louisiana, he is allowed ten days be- 
 fore he is required to make his election. 
 Civ. Code La. art. 1028. 
 
 JUS DESCENDIT, ET NON TERRA. A 
 
 right descends, not the land. Co. Litt. 345. 
 
 JUS DICERE (Lat.) To declare the law. 
 It is the province of the court jus dicere, to 
 declare what the law is. 
 
 JUS DICERE, NON JUS DARE. To de- 
 clare the law, not to make it. 7 Terra R. 
 696; Arg. 10 Johns. (N. Y.) 566; 7 Bxch. 
 543; 2 Edw. Ch. (N. Y.) 29;. 4 C. B. 560, 561; 
 Broom, Leg. Max. (3d London Ed.) 140. 
 
 JUS DISPONENDI (Lat.) The right to dis- 
 pose of a thing. 
 
 JUS DIVIDENDI. The right of disposing 
 of realty by will. Du Cange. 
 
 JUS DUPLICATUM (Lat. double right). 
 When a man has the possession as well as 
 the property of anything, he is said to have 
 a double right, jus duplicatum. Bracton, 
 lib. 4, tr. 4,, c. 4; 2 Bl. Comm. 199. 
 
 JUS EST ARS BONI ET AEQUI. Law is 
 
 the science of \vliat is' good and just. Dig. 
 1. 1. 1. 1. 
 
 JUS EST NORMA RECTI; ET QUICQUID 
 est contra normam recti est injuria. The law 
 is the rule of right; and whatever la con- 
 trary to the rule of right Is an Injury. 3 
 Bulst. 313. 
 
JUS ET PRAUS, ETC. 
 
 (517) 
 
 JUS MERUM 
 
 JUS ET FRAUS NUNQUAM COHABl- 
 
 tant. Right and fraud never live together. 
 
 JUS EX INJURIA NON ORITUR. Aright 
 Cannot arise from a wrong, i Bin. 639. 
 
 JUS FECI ALE (Lat.) In Roman law. That 
 species of international law which had its 
 foundation in the religious belief of differ- 
 ent nations, such as the international law 
 which now exists among the Christian peo- 
 ple of Europe. Savigny, Dr. Rom. c. 2, § 11. 
 
 JUSFIDUCIARUM (Lat.) Incivillaw. A 
 right to something held in trust; for this 
 there was a remedy in conscience. 2 Bl. 
 Comm. 328. 
 
 JUS FLAVIANUM. In old Roman law. A 
 body of laws drawn up by Cneius Flavins, a 
 clerk of Appius Claudius, from the materials 
 to which he had access. It was a popular- 
 ization of the laws. Mackeld. Civ. Law, § 
 39. 
 
 JUSFLUMINUM. Incivillaw. The right 
 to the use of rivers. Locc. de Jur. Mar. lib. 
 1, c. 6. 
 
 JUS FODIENDl (Lat.) In the civil and 
 old English law. A right of digging on an- 
 other's land. Inst. 2. 3. 2; Bracton, fol. 222; 
 Fleta, lib. 4, c. 19, § 6. 
 
 JUS GENTIUM (Lat.) The law of nations. 
 Although the Romans used these words in 
 the sense we attach to "law of nations," yet 
 among them the sense was much more ex- 
 tended. Palck, Enc. Jur. 102, note 42. 
 
 Modern writers have made a distinction 
 between the laws of nations which have for 
 their object the conflict between the laws of 
 different nations, which is called jus gen- 
 tium privatum, or private international law, 
 and those laws of nations which regulate 
 thos? matters which nations, as such, have 
 with each other, which is denominated jus 
 gentium publicum, or public international 
 law. Foelix, Droit Int. Prive, note 14. See 
 "International Law." 
 
 JUS GLADII (Lat. the right of the sword). 
 Supreme jurisdiction; the right to absolve 
 from or condemn a man to death. 
 
 JUS HABENDI (Lat.) The right to have 
 a thing. 
 
 JUS HABENDI ET RETINENDI. Aright 
 to have and to retain the profits, tithes, and 
 offerings, etc., of a rectory or parsonage. 
 Rapalje & L. 
 
 JUS HAEREDITATIS. The right of in- 
 heritance. Rapalje & L. 
 
 JUS HONORARIUM. The body of Roman 
 law, which was made up of edicts of the 
 supreme magistrates, particularly the prae- 
 tors. 
 
 JUS IMMUNITATIS. In civil law. The 
 law of immunity or exemption from the bur- 
 den of public oflice. Dig. 50. 6. 
 
 JUS IN PERSONAM. A right against a 
 
 person; a right which gives its possessor a 
 power to oblige another person to give or 
 procure, to do or not to do, something. Ra- 
 palje & L. 
 
 JUS IN RE (Lat.) A right which belongs 
 to a person, immediately and absolutely, in a 
 thing, and which is the same against th« 
 whole world, — idem erga omnes. See "Jus 
 ad Rem." 
 
 JUS IN RE INHAERIT OSSIBUS USU- 
 fructuarll. A right in the thing cleaves to 
 the person of the usufructuary. 
 
 JUS IN RE PROPRIA. The right of en- 
 joyment which is incident to full ownership 
 or property, and is often used to denote the 
 full ownership or property itself. It is dis- 
 tinguished from jus in re aliena, which is a 
 mere easement or right in or over the prop- 
 erty of another. 
 
 JUS INCOGNITUM (Lat.) An unknown 
 law. This term is applied by the civilians 
 to obsolete laws, which, as Bacon truly ob- 
 serves, are unjust; for the law, to be just, 
 must give warning before it strikes. Bac. 
 Aph. 8, § 1 ; Bowyer, Mod. Civ. Law, 33. 
 But until it has become obsolete, no custom 
 can prevail against it. See "Obsolete." 
 
 JUS INDIVIDUUM (Law Lat.) An indi- 
 vidual or indivisible right; a right incapable 
 of division. 36 Eng. Law & Eq. 25. 
 
 JUS JURANDI FORMA VERBIS D!F- 
 fert, re convenit; hunc enim sensum habere 
 debet, ut Deus invocetur. The form of tak- 
 ing an oath differs in language, agrees in 
 meaning; for it ought to have this sense, — 
 that the Deity is invoked. Grotius de Jure 
 Belli, lib. 2, c. 13, § 10. 
 
 JUSJURANDUM INTER ALIOS FACTUM 
 nee nocere nee prodesse debet. An oath 
 made between others ought neither to hurt 
 nor proflt. 4 Inst. 279. 
 
 JUS LATH. In Roman law. The right of 
 Latium or of the Latins. The principal priv- 
 ilege of the Latins seems to have been the 
 use of their own laws, and their not being 
 subject to the edicts of the praetor, and that 
 they had occasional access to the freedom of 
 Rome, and a participation in her sacred 
 rites. Butler, Hor. Jur. 41. 
 
 JUS LEGITIMUM (Lat.) In civil law. A 
 legal right which might have been enforced 
 by due course of law. 2 Bl. Comm. 328. 
 
 JUS MARITI (Lat.) In Scotch law. The 
 right of the husband to administer, during 
 the marriage, his wife's goods and the rents 
 of her heritage. 
 
 In the common law, by jus mariti is under- 
 stood the rights of the husband, as jus mar- 
 iti cannot attach upon a bequest to the wife, 
 although given during coverture, until the 
 executor has assented to the legacy. 1 
 Bailey, Bq. (S. C.) 214. 
 
 JUS MERUM (Lat.) A simple or bare 
 right; a right to property in land, without 
 possession, or the right of possession. 
 
JUS NA.TURAE 
 
 (518) 
 
 JUS PUBLICUM, ETC. 
 
 JUS NATURAE. The law of nature. See 
 "Jus Naturale." 
 
 JUS NATURALE. Natural law; the rule 
 and dictate of right reason, showing the 
 moral deformity or moral necessity there is 
 in any act according to its suitableness to a 
 reasonable nature. Grotius de Jure Belli, 
 lib. 1, c. 1, c. 3. 
 
 The term is used interchangeably with 
 jus gentium. Tayl. Civ. Law, 128. 
 
 JUS NATURALE EST QUOD APUD Ho- 
 mines eandem habet potentiam. Natural right 
 is that which has the same force among all 
 men. 7 Coke, 12. 
 
 JUS NAVIGANDI. The right of navigating 
 or navigation; the right of commerce by 
 ships or by sea. Locc. de Jur. Mar. lib. 1, 
 c. 3. 
 
 JUS NEC INFLECTI GRATIA, NEC 
 frangi potentia, nee adulterari pecunia po- 
 test; quod si non modo oppressum, sed de- 
 sertum aut negiigentia asservatum fuerit, 
 nihil est quod quisquam se habere certum, 
 aut a patre accepturum, aut liberis esse re- 
 licturum, arbitretur. Favor ought not to be 
 able to bend justice, power to break it, nor 
 money to corrupt it; for not only if it be 
 overboi'ne, but if it be abandoned or negli- 
 gently observed, no one can think that he 
 holds anything securely, or that he will in- 
 herit anything from his father, or be able to 
 leave anything to his children. Cicero. 
 
 JUS NECIS. In Roman law. The right of 
 death, or of putting to death; a right which 
 a father anciently had over his children. 3 
 Gibb. Rom. Emp. 169. 
 
 JUS NON HABENTI, TUTE NON PARE- 
 tur. It is safe not to obey him who has no 
 right. Hob. 146. 
 
 JUS NON PATITUR UT IDEM BIS SOL- 
 vatur. Law does not suffer that the same 
 thing be twice paid. 
 
 JUSNONSCRIPTUM. The unwritten law. 
 1 BI. Comm. 64. 
 
 JUS PAPIRIANUM. The civil law of Pa- 
 pirius. The title of the earliest collection 
 of Roman leges curiatae, said to have been 
 made in the time of Tarquin, the last of the 
 kings, by a pontifex maximus of the name 
 of Sextus or Publius Paplrius. Dig. 1. 2. 2. 
 2. Very few fragments of this collection 
 now remain, and the authenticity of these 
 has been doubted. 1 Kent, Comm. 517; 
 Mackeld. Civ. Law, p. 14, § 21. 
 
 JUS PATRONATUS (Lat.) In ecclesias- 
 tical law. A commission from the bishop, 
 directed usually to his chancellor and others 
 of competent learning, who are required to 
 summon a jury, composed of six clergymen 
 and six laymen, to inquire into and examine 
 who is the rightful patron. 3 Bl. Comm. 
 246. 
 
 JUS PERSONARUM (Lat.) The right of 
 persons. See "Jura Personarum." 
 
 JUS POSSESSIONIS (Lat.) A (or the) 
 right of possession, or seisin. Bracton, fol 
 3; Fleta, lib. 4, c. 1, § 2; Co. Litt. 266a; 3 
 Bl. Comm. 177, 191. 
 
 JUS POSTLIiVIINII. 
 
 In Civil Law. The right of postlim- 
 iny; the right or claim of a person who had 
 been restored to the possession of a thing, 
 or to a former condition, to be considered as 
 though he had never been deprived of it. 
 Dig. 49. 15. 5; 3 Bl. Comm. 107, 210. 
 
 In International Law. The right by 
 
 which property taken by an enemy, and re- 
 captured or rescued from him by the fellow 
 subjects or allies of the original owner, is 
 restored to the latter upon certain terms. 
 1 Kent, Comm. 108. 
 
 JUS PRAESENS. In civil law. A present 
 or vested right; a right already completely 
 acquired. Mackeld. Civ. Law, p. 174, § 183. 
 
 JUS PRAETORIUM. In civil law. The 
 discretion of the praetor, as distinct from 
 the leges, or standing laws. 3 Bl. Comm. 49. 
 That kind of law which the praetors intro- 
 duced for the purpose of aiding, supplying, 
 or correcting the civil law for the public 
 benefit. Dig. 1. 1. 7. Called, also, jms hon- 
 orarium (g. V.) 
 
 JUS PRECARIUIVI (Lat.) In civil law. A 
 right to a thing held for another, for which 
 there was no remedy. 2 Bl. Comm. 328. 
 
 JUS PROJICIENDI (Lat.) In civil law. 
 The name of a servitude by which the owner 
 of a building has a right of projecting a part 
 of his building towards the adjoining house, 
 without resting on the latter. It is extend- 
 ed merely over the ground. Dig. 50. 16. 242; 
 Id. 8. 2. 25; Id. 8. 5. 8. 5. 
 
 JUS PROPRIETATIS. The right of prop- 
 erty, as distinguished from the jus posses- 
 sionis, or right of possession. Bracton, fol. 
 3. Called by Bracton "jus merum," the mere 
 right. Id.; 2 Bl. Comm. 197; 3 Bl. Comm. 
 19. 176. 
 
 JUS PROTEGENDI (Lat.) In civil law. 
 The name of a servitude. It is a right by 
 which a part of the roof or tiling of one 
 house is made to extend over the adjoining 
 house. Dig. 50. 16. 242. 1; Id. 8. 2. 25; Id. 
 8. 5. 8. 5. 
 
 JUS PUBLICUIVl (Lat.) In the Roman law. 
 Public law; that which regards the condi- 
 tion of the Roman state (guod ad statum ret 
 Romanae spectat). Inst. 1. 1. 4; Dig. 1. 1. 1. 2. 
 This definition is borrowed by Bracton, who 
 accommodates it to the English jurispru- 
 dence. Est jus publicum quod ad statum rei- 
 pnhlicae pertinc.t. Bracton, fol. 3b. 
 
 JUS PUBLICUM ET PRIVATUM QUOD 
 ex natural ibus praeceptis aut gentium aut 
 civilibus est collectum; et quod in jure scrip- 
 to jus appeliatur, id in lege Angliae rectum 
 esse dicitur. Public and private law is that 
 which is collected from natural principles, 
 either of nations or in states; and that 
 whjch in the civil law Is called jus, in the 
 
JUS PUBLICUM, ETC. 
 
 (519) 
 
 JUST COMPENSATION 
 
 law of England is said to be "right." Co. 
 Litt. 185. 
 
 JUS PUBLICUM PRIVATORUM PACTIS 
 mutari non potest. A public right cannot be 
 changed by agreement of private parties. 
 
 JUS QUAESITUM (Lat.) A right to ask 
 or recover; for example, in an obligation 
 there is a binding of the obligor, and a jus 
 quaesitum in the obligee. 1 Bell, Comm. 
 (5th Ed.) 323. 
 
 JUS QUIRITIUM.' The old law of Rome, 
 that was applicable originally to patricians 
 only, and, under the Twelve Tables, to the 
 entire Roman people, was so called, in con- 
 tradistinction to the jus praetorium (q. v.), 
 or equity. Brown. 
 
 JUS QUO UNIVERSITATES UTUNTUR 
 est idem quod habent privati. The law which 
 governs corporations is the same which gov- 
 erns individuals. 16 Mass. 44. 
 
 JUS RELICTAE (Lat.) In Scotch law. 
 The right of a wife, after her husband's 
 death, to a third of movables if there be 
 children, and to one-half if there be none. 
 
 JUS RERUM (Lat.) The right of things. 
 Its principal object is to ascertain how far a 
 person can have a permanent dominion over 
 things, and how that dominion is acquired. 
 See Bl. Comm. 
 
 JUS RESPICIT AEQUITATEM. Law re- 
 gards equity. Co. Litt. 24b; Broom, Leg. 
 Max. (3d London Ed.) 143; 17 Q. B. 292. 
 
 JUS SCRIPTUM. 
 
 In Roman Law. Written law. Inst. 1. 
 
 2. 3. All law that was actually committed to 
 writing, whether it had originated by enact- 
 ment or by custom, in contradistinction to 
 such parts of the law of custom as were not 
 committed to writing. Mackeld. Civ. Law, 
 p. 125, § 113. 
 
 In English Law. Written lawTor stat- 
 ute law, otherwise called lex scripta, as dis- 
 tiiiguished from the common law, lex non 
 scripta. 1 Bl. Comm. 62. 
 
 Jus scriptum is used in Pleta to denote the 
 civil ICLW, as distinguished from the com- 
 mon law of England. Liber 6, c. 1, § 1. 
 
 JUS SINGULARE. In civil law. A pecul- 
 iar or individual rule, differing from the jus 
 commune, or common rule of right, and es- 
 tablished for some special reason. Mackeld. 
 Civ. Law, p. 181, § 188. 
 
 JUS STAPULAE. In old European law. 
 The law of staple; the right of staple; a 
 right or privilege of certain towns of stop- 
 ping imported merchandise, and compelling 
 it to be offered for sale in their own mar- 
 kets. Loco, de Jur. Mar. lib. 1, c. 10. 
 
 JUS STRICTUM (Lat.) A Latin phrase, 
 which signifies law Interpreted without any 
 modification, and in Its utmost rigor. 
 
 JUS 8UPERVENIENS AUCTORI AC- 
 cressit successori. Aright growing to a pos- 
 sessor accrues to a successor. Halk. Max. 
 76. 
 
 JUS TERTII. The right or interest of a 
 third party. 
 
 JUS TESTAMENTORUM PERTINET OR- 
 
 dinario. Y. B. 4 Hen. VII., 13b. The right at 
 testapients belongs to the ordinary. 
 
 JUS TRIPERTITUM. In the Roman law. 
 The law of wills. Sir Henry Maine says that 
 it is so called because of its three-fold deri- 
 vation from the imperial constitutions, the 
 civil law, and the praetorian edicts. Anc. 
 Law, 207. 
 
 JUS TRIPLEX EST,— PROPRIETATIS, 
 possessionis, et posslbllltatis. Right is three- 
 fold, — of property, of possession, and of pos- 
 sibility. 
 
 JUSTRIUM LIBERORUM. In Roman law. 
 A right or privilege allowed to the parent of 
 three or more children. 2 Kent, Comm. 85; 
 2 Bl. Comm. 247. These privileges were an 
 exemption from the trouble of guardianship, 
 priority in bearing offices, and a treble pro- 
 portion of corn. Adams, Rom. Ant. (Am. 
 Ed.) 227. 
 
 JUS UTENDI (Lat.) The right to use 
 property without destroying its substance. 
 It is employed in contradistinction to the 
 jus abutendi. 3 TouUier, Dr. Civ. note 86. 
 
 JUS VENANDI ET PISCANDI. The right 
 of hunting and fishing. 
 
 JUS VENDIT QUOD USUS APPROBAVIT. 
 
 The law dispenses what use has approved. 
 Ellesmere, Postn. 35. 
 
 JUSJURANDI FORMA VERBIS DIFFERT, 
 re convenit; hunc enim sensum habere de- 
 bet, ut Deus invocetur. The form of taking 
 an oath differs in language, agrees in mean- 
 ing; for it ought to have this sense, that the 
 Deity is invoked. Grotius de Jure Belli, bk. 
 2, c. 13, § 10. 
 
 JUSJURANDUM (Lat.) In civil law. An 
 oath. 
 Juramentum is the usual law Latin word. 
 
 JUSJURANDUM INTER ALIOS FACTUM 
 nee nocere nee prodesse debet. An oath 
 made in another cause ought neither to hurt 
 nor profit. 4 Inst. 279. 
 
 JUST COMPENSATION. As used in the 
 constitution, means a full and fair equiva- 
 lent for the loss sustained by the taking for 
 public use. It may be more, or It may be 
 less, than the mere money value of the prop- 
 erty actually taken. The exercise of the 
 power being necessary for the public good, 
 and all property being held subject to its 
 exercise when and as the public good re- 
 quires it, it would be unjust to the public 
 that it should be required to pay the owner 
 more than a fair indemnity for the loss he 
 sustains by the appropriation of his property 
 for the general good. On the other hand, 
 it would be equally unjust to the owner If 
 he should receive less than a fair indemnity 
 for such loss. To arrive at this fair in- 
 demnity, the interests of the public and of 
 the owner, and all the circumstances of the 
 
jaSTA CAUSA 
 
 (520) 
 
 JUSTICES OF NISI PRIUS 
 
 particular appropriation, should be taken 
 into consideration. Lewis, Em. Dom. § 462. 
 Compensation for the actual loss in dol- 
 lars and cents. 157 111. 56. 
 
 JUSTA CAUSA (Lat.) In the civil law. A 
 just cause ; a lawful ground ; a legal transac- 
 tion of some bind. 1 Mackeld. Civ. Law, 287, 
 § 274. See Grotius de Jure Belli, lib. 2, c. 
 23, § 13. 
 
 JUSTICE. The constant and perpetual 
 disposition to render every man his due. 
 Inst. bk. 1, tit. 1; 2 Inst. 56. The conform- 
 ity of our actions and our will to the law. 
 Toullier, Dr. Civ. tit. prel. note 5. 
 
 In the most extensive sense of the word, 
 it differs little from "virtue;" for it includes 
 within itself the whole circle of virtues. Yet 
 the common distinction between them is that 
 that which considered positively and in itself 
 is called "virtue," when considered relatively 
 and with respect to others has the^name of 
 "justice." But justice, being in itself a part 
 of virtue, is confined to things simply good 
 or evil, and consists in a man's taking such 
 a proportion of them as he ought. 
 
 Toullier exposes the want of utility and 
 exactness in this division of distributive and 
 commutative justice, adopted in the compen- 
 dium or abridgments of the ancient doctors, 
 and prefers the division of internal and ex- 
 ternal justice, — the first being a conformity 
 of our will, and the latter a conformity of 
 our actions, to the law, their union making 
 perfect justice. Exterior justice is the ob- 
 ject of jurisprudence; interior justice is the 
 object of morality. Dr. Civ. tit. prel. notes 
 6, 7. 
 
 According to the Frederician Code (part 
 1, bk. 1, tit. 2, § 27), justice consists simply 
 in letting every one enjoy the rights which 
 he has acquired in virtue of the laws. And, 
 as this definition includes all the other rules 
 of right, there is properly but one single 
 general rule of right, namely, give every one 
 his own. 
 
 Commutative justice is that virtue whose 
 object it is to render to every one what be- 
 longs to him, as nearly- as may be, or that 
 which governs contracts. To render com- 
 mutative justice, the judge must make an 
 equality between the parties, that no pne 
 may be a gainer by another's loss. 
 
 Distributive justice is that virtue whose 
 object it is to distribute rewards and pun- 
 ishments to each one according to his mer- 
 its, observing a just proportion by comparing 
 one person or fact with another, so that nei- 
 ther equal persons have unequal rights, nor 
 unequal persons things equal. Toullier's 
 learned note, Droit Civ. tit. prel. n. 7, note. 
 
 In Norman French. Amenable to jus- 
 tice. Kelham. 
 
 In Feudal Law. Feudal jurisdiction, 
 
 divided into high (alta jitstitia), and low 
 (simplex, inferior justitia), the former being 
 a jurisdiction over matters of life and limb; 
 the latter over smaller causes. Lpg. Bdw. 
 Conf. c. 26; Du Cange. Sometimes high, low, 
 and middle justice or jurisdiction were dis- 
 tinguished. 
 
 An assessment. Du Cange. Also,, a judicial 
 fine. Du Cange. 
 
 In Practice. A title given In Eng- 
 land and America to judges of common-law 
 courts, being a translation of justitia, which 
 was anciently applied to common-law judges, 
 while judex was applied to ecclesiastical 
 judges and others; e. y., judcv flscalis. Leg. 
 Hen. I. §§ 24, 63; Anc. Inst. Eng. Index; Co. 
 Litt. 71b. 
 
 The judges of king's bench and common 
 pleas, and the judges of almost all the su- 
 preme courts in the United States, are prop- 
 erly styled "justices." 
 
 The term "justice" is also applied to the 
 lowest judicial officers; e. g., a trial justice; 
 a justice of the peace. 
 
 JUSTICE AYRES. In Scotch law. The 
 circuits through the kingdom made for the 
 distribution of justice. Brsk. Inst. 1. 3. 25. 
 
 JUSTICES COURTS. In American law. 
 Inferior tribunals, with limited jurisdiction, 
 both civil and criminal. There are courts 
 so called in the states of Massachusetts and 
 New Hjampshire, and probably other states. 
 
 JUSTICES IN EYRE. Certain judges es- 
 tablished, if not first appointed, A. D. 1176, 
 
 22 Hen. II. 
 
 England was divided into certain circuits, 
 and three justices in eyre — or "justices itin- 
 erant," as they were sometimes called — ^were 
 appointed to each district, and made the 
 circuit of the kingdom once in seven years, 
 for the purpose of trying causes. They were 
 afterwards directed, by Magna charta, c. 12, 
 to be sent into every county once a year. 
 The itinerant justices were sometimes mere 
 justices of assize or dower, or of general gaol 
 delivery, and the like. 3 Bl. Comm, 58; 
 Crabb, Hist. Eng. Law, 103, 104. 
 
 JUSTICES OF ASSIZE. These justices, 
 or, as they are sometimes called, "justices of 
 nisi prius," are judges of the superior Eng- 
 lish courts, who go on circuit into the vari-. 
 ous counties of England and Wales for the 
 purpose of disposing of such causes as are 
 ready for trial at the assizes. Rapalje & L. 
 
 JUSTICES OF GAOL DELIVERY. Those 
 justices who are sent with a commission to 
 hear and determine all causes appertaining 
 to persons, who, for any offense, have been 
 cast into gaol. Part of their authority was 
 to punish those who let to mainprise those 
 prisoners who mere not bailable by law, and 
 they seem formerly to have been sent into 
 the country upon this exclusive occasion, but 
 afterwards had the same authority given 
 them as the justices of assize. Brown. 
 
 JUSTICES OF LABORERS. In old Eng- 
 lish law. Justices appointed to try the cases 
 of laboring men who would not work for the 
 wages prescribed by the statute of laborers. 
 
 23 Edw. III. 
 
 JUSTICES OF NISI PRIUS. In English 
 law. This title is now usually coupled with 
 that of "justices of assize;" the judges of 
 the superior courts acting on their circuitB 
 in both these capacities. 3 Bl. Comm. 58, 59. 
 
JUSTICES OF OYEK, ETC. 
 
 (521) 
 
 JUSTIFICATION 
 
 Formerly there was a distinction made, jus- 
 tices of assize having power to render judg- 
 ments, but jiistices of nisi prius having pow- 
 er only to receive verdicts. 
 
 JUSTICES OF OYER AND TERMINER. 
 Certain persons appointed by the king's com- 
 mission, among whom were usually two 
 judges of the courts at Westminster, and 
 who went twice in every year to every coun- 
 ty of the kingdom (except London and Mid- 
 dlesex), and, at what was usually called the 
 "assizes," heard and determined all treasons, 
 felonies, and misdemeanors. 
 
 JUSTICES OF THE BENCH. The justices 
 of the court of common bench or common 
 pleas. 
 
 JUSTICES OF THE FOREST. In old Eng- 
 lish law. Officers who had jurisdiction over 
 all offenses committed within the forest 
 against vert or venison. The court wherein 
 these justices sat and determined such causes 
 was called the "justice seat of the forest." 
 They were also sometimes called the "jus- 
 tices im eyre of the forest." 
 
 JUSTICES OF THE HUNDRED. Hun- 
 dredors; lords of the hundreds; they who 
 had the jurisdiction of hundreds, and held 
 the hundred courts. 
 
 JUSTICES OF THE JEWS. Justices ap- 
 pointed by Richard I. to carry into effect 
 the laws and orders which he had made for 
 regulating the money contracts of the Jews. 
 
 JUSTICES OF THE PAVILION (mtidarii 
 . navilionis) . Certain judges of court of pie- 
 poudre, of a most transcendent jurisdiction, 
 authorized by the bishop of Winchester, at a 
 fair held at St. Giles Hills near that city, 
 by virtue of letters patent granted by Edw. 
 IV. Prynne on 4 Inst. fol. 191. 
 
 JUSTICES OF THE PEACE. Public offi- 
 cers invested with judicial powers for the 
 purpose *f preventing breaches- of the peace, 
 and bringing to punishment those who have 
 violated the law. 
 
 JUSTICES OF TRAIL BASTION. A sort 
 of justice in eyre, with large and summary 
 powers, appointed by Edw. I. during his ab- 
 sence in war. Old. Nat. Brev. fol. 52; 12 
 Coke, 25. For derivation, see Cowell. 
 
 JUSTICIAR, or JUSTICIER. In old Eng- 
 lish law. A judge or justice. Baker, fol. 118 ; 
 Cron. Angl. One of several persons learned 
 in the law, who sat in the aula regis, and 
 formed a kind of court of appeal in cases ot 
 difficulty. 
 
 The chief justiciar (capitalis justioarius 
 totius Angliae) was a special magistrate, 
 who presided over the whole aula regis, who 
 was the principal minister of state, the sec- 
 ond man in the kingdom, and, by virtue of 
 his office, guardian of the realm in the king's 
 absence. 3 Sharswood, Bl. Comm. 37; Spel- 
 man, 330, 331, 332; 2 Hawk. P. C. 6. The 
 last who bore this title was Philip Basset, in 
 the time of Hen. III. 
 
 JU8TICIARE, or JUSTITIARE (Law Lat. 
 from justicia or justitia, justice). In old Eng- 
 lish law. To justice; to do justice or right; 
 to compel a person to appear in court. 
 Bracton, fol. 308b ; 1 Reeves, Hist. Eng. Law, 
 125, 173, 174. Hence the writ of justicies (g.v.) 
 Justiciari, to be justiced; to have justice. 
 St. Marlb. c. 1. 
 
 JUSTICIARII ITINERANTES (Lat.) In 
 English law. Justices who formerly went 
 from county to county to administer justice. 
 They were usually called justices in eyre, to 
 distinguish them from justices residing at 
 Westminster, who were called justicii resi- 
 dentes. Co. Litt. 293. 
 
 JUSTICIARII RESIDENTES (Lat.) In 
 English law. Justices or judges who usually 
 resided in Westminster. 'They were so called 
 to distinguish • them from justices in eyre. 
 Co. Litt. 293. 
 
 JUSTICIARIUS, or JUSTITIARIUS (Law 
 Lat.) In old English law. A justice. Magna 
 Charta, 9 Hen. III. cc. 12, 13. 
 
 JUSTICIARY. Another name for a judge. 
 In Latin, he was called justicarius, and in 
 French justicier. Not used. Bac. Abr. 
 "Courts" (A). 
 
 JUSTICIARY COURT. The chief criminal 
 court of Scotland. 
 
 JUSTICIATUS (Law Lat from jiisUclare, 
 q. c.) In old English law. Judicature, pre- 
 rogative, or jurisdiction. Blount. 
 
 JUSTICIES (from justiciare) . In English 
 law. A special writ, in the nature of a com- 
 mission, empowering a sheriff to hold plea in 
 his county court of a cause which he could 
 not take jurisdiction of without this writ; 
 e. g., trespass vi et armis for any sum, and 
 all personal actions above forty shillings. 1 
 Burn, Just. 449. So called from the Latin 
 word justicies, used in the writ, which runs, 
 "praecipimus tibi quod justicies A. B.," etc.; 
 we command you to do A. B. right, etc. 
 Bracton, lib. 4, tr. 6, c.l3; Kitch. Cts. 74; 
 Fitzh. Nat. Brev. 117; 3 Sharswood, Bl. 
 Comm. 8, 6. 
 
 JUSTIFIABLE HOMICIDE. Justifiable 
 homicide is the necessary killing of another 
 in the performance of the legal duty, or the 
 exercise of a legal right, the slayer not being 
 at all in fault. Homicide is justifiable (1) 
 in the execution of a capital sentence pro- 
 nounced by a competent court; (2) to pre- 
 vent the commission of a felony; (3) to 
 suppress a riot; (4) to effect the arrest of a 
 felon, or prevent his escape after arrest; (5) 
 where one who is feloniously assaulted, and 
 who is himself without fault, kills his as- 
 sailant to save himself from death or great 
 bodily harm then appearing reasonably im- 
 minent. 1 Clark & Marshall, Crimea, 582. 
 
 JUSTIFICATION. 
 
 In Torts. Pacts making tlie act charg- 
 ed legall^ justifiable. 
 
 In Pleading. The allegation of matter 
 
 of fact by the defendant, establishing his le- 
 
JUSTIFICATORS 
 
 (522) 
 
 JUZGADO 
 
 gal right to do the act complained of by the 
 plaintiff. 
 
 Justification admits the doing of the act 
 charged as a wrong, but alleges a right to 
 do it on the part of the defendant, thus de- 
 nying that it is a wrong. Excuse merely 
 shows reasons why the defendant should not 
 make good the injury which the plaintitt has 
 suffered frpm some wrong done. See "Avow- 
 ry." 
 
 In Practice. The proceeding by which 
 
 sureties establish their ability to perform the 
 undertaking of the bond or recognizance. 
 
 JUSTIFICATORS. A kind of compurga- 
 tors, or those who, by oath, justified the in- 
 nocence or oaths of others, as in the case of 
 wagers of law. 
 
 JUSTIFYING BAIL. In practice. The pro- 
 duction of bail in court, who there justify 
 themselves against the exception of the 
 plaintiff. See "Bail." 
 
 JUSTITIA (Lat.) Justice; a jurisdiction, 
 or the office of a judge. 
 
 JUSTITIA DEBET ESSE LIBERA, QUIA 
 nihil iniquius venali justitia; plena, quia jus- 
 titia non debet claudicare; et ceteris, quia 
 dilatio est quaedam negatio. Justice ought 
 to be unbought, because nothing is more 
 hateful than venal justice; full, for justice 
 ought not to halt; and quick, for delay is a 
 kind of denial. 2 Inst. 56. 
 
 JUSTITIA EST CONSTANS ET PERPE- 
 tua voluntas jus suum cuique tribuendi. Jus- 
 tice Is a steady and unceasing disposition to 
 render to every man his due. Inst. 1. 1. pr. ; 
 Dig. 1. 1. 10. 
 
 JUSTITIA EST DUPLEX, VIZ., SEVERE 
 puniens et vere praeveniens. Justice is 
 double; punishing severely, and truly pre- 
 venting. 
 
 JUSTITIA EST VIRTUS EXCELLENS, 
 et Altissimo complacens. Justice is an ex- 
 cellent virtue and pleasing to the Most High. 
 4 Inst. 58. 
 
 JUSTITIA FIRMATUR SOLIUM. By jus- 
 tice the throne is established. 3 Inst. 140. 
 
 JUSTITIA NEMINI NEGANDA EST. Jus- 
 tice is to be denied to none. Jenk. Cent. 
 Cas. 178. 
 
 JUSTITIA NON EST NEGANDA, NON 
 differenda. Jnstice is not to be denied nor 
 delayed. Jenk. Cent. Cas. 76. 
 
 JUSTITIA NON NOVIT PATREM NEC 
 matrem; solum veritatem spectat justitia. 
 Justice knows neither father nor mother; 
 justice looks to truth alone. 1 Bulst. 199. 
 
 JUSTITIA PIEPOUDROUS. Speedy jus- 
 tice. Bracton, 333b. 
 
 JUSTITIUM. In civil law. A suspension 
 or intermission of the administration of jus- 
 tice in courts; vacation time. Calv. Lex. 
 
 JUSTIZA. In old Spanish law. A supreme 
 judge; a judicial magistrate peculiar to the 
 kingdom of Aragon. 
 
 JUSTUIVI NON EST ALIQUEM ANTENA- 
 tum mortuum facere bastardum, qui pro 
 tota vita sua pro legitime habetur. It is not 
 just to make a bastard after his death one 
 elder born, who all his life has been account- 
 ed legitimate. 8 Coke, 101. 
 
 JUXTA (Lat.) According to. 1 Ld. Raym. 
 415. The same as secundum, in the civil law. 
 12 Mod. 218. 
 
 Juxta formam statuti, according to the form 
 of the statute. Reg. Orig. 16. The estab- 
 lished phrase by which reference to a stat- 
 ute was expressed in old writs and records. 
 
 Juxta tenorem, sequentem, according to the 
 tenor following. 2 Salk. 417. A phrase used 
 in the old books, when the very words them- 
 selves referred to were set forth. Id.; 1 Ld. 
 Raym. 415. 
 
 Juxta oonventionem, according to the cove- 
 nant. Pleta, lib. 4, c. 16,' § 6. 
 
 Juxta ratam, at or after the rate. Dyer, 82. 
 
 JUZGADO. In Spanish law. The collec- 
 tive number of judges that concur in a de- 
 cree, and more particularly the tribunal kav- 
 ing a single jtidge. 
 
K3 
 
 4S23) 
 
 KEEPING TERM 
 
 K 
 
 K. B. An abbreviation for "king's bench" 
 (q. V.) 
 
 KAIA (Law Lat.) A key, kay, or quay. 
 Spelman. 
 
 KAIAGIUM (Law Lat.) Kayage or wharf- 
 age. Spelman. 
 
 KAI N. In Scotch law. A payment of fowls, 
 etc., reserved in a lease. It is derived from 
 cantim, a word used in ancient grants to 
 signify fowls or animals deliverable by the 
 vassal to his superior as part of the redden- 
 dum. Ersk. Inst. 11. 10. 32; 2 Ross, Lect. 236, 
 405. 
 
 KALENDAE. Rural chapters, or conven- 
 tions of the rural deans and parochial cler- 
 gy, which were formerly held on the calends 
 of every month; hence the name. Par. Ant. 
 604. 
 
 KALENDAR. The original form of "cal- 
 endar." 
 
 KALENDS. See "Calends." 
 
 KALENDARIUM (Lat.) In civil law. A 
 calendar; a book of accounts, memorandum 
 book, or debt book; a book in which accounts 
 were kept of moneys loaned out on interest. 
 Dig. 32. 64. So called because the Romans 
 used to let out their money, and receive the 
 interest on the calends of each month. Calv. 
 Lex. 
 
 KARL (Saxon). In Saxon and old Eng- 
 lish law. A man; a serving man. Buskarl, 
 a seaman. Huskarl, a house servant. Spel- 
 man. 
 
 KARRATA (Law Lat.) In old records. 
 A cartload. Cowell; Blount. 
 
 KAST (Swed.) In Swedish law. Jetti- 
 son; a literal translation of the Latin jactus 
 (q. v.) Locc. de Jur. Mar. lib. 2, c. 7, § 1. 
 
 KAST GELD (Swed.) Contribution for a 
 jettison; average. Locc. de Jur. Mar. lib. 2, 
 c. 8, § 1. 
 
 KE (Law Fr. that). A corruption of que. 
 E mlums ke meismes celes chartres, and we will 
 that these same charters. Conf. Cart. 25 
 Edw. L 
 
 KEELAGE. The right of demanding mon- 
 ey for the bottom of ships resting in a port 
 or harbor. The money so paid is also called 
 "keelage." 
 
 KEELHALE,KEELHAUL,orKEELRAKE. 
 To drag a person under the keel of a ship 
 by means of ropes from the yard-arms, a 
 punishment formerly practiced in the navy. 
 Enc. Lond. 
 
 KEELS. This word is applied, in England, 
 to vessels employed in the carriage of coals. 
 Jacob. 
 
 KEEP. A strong tower or hold in the mid- 
 dle of any castle or fortification, wherein the 
 besieged make their last efforts of defense, 
 was formerly, in England, called a "keep;" 
 and the inner pile within the castle of Dover, 
 erected by King Henry II. about the year 
 1153, was termed the "King's Keep;" so at 
 Windsor, etc. It seems to be something of 
 the same nature with what is called abroad 
 a "citadel." Jacob. 
 
 KEEP OPEN. As applied to a place of 
 business, implies "a readiness to carry on 
 the usual business therein." 16 Mich. 477. 
 
 KEEP THE PEACE. To refrain from any 
 breach of the peace ((/. r.) 
 
 KEEPER OF THE FOREST (called, also, 
 the "chief warden of the forest"). An officer 
 who had the principal government over all 
 officers within the forest, and warned them 
 to appear at the court of justice seat on a 
 summons from the lord chief justice in eyre. 
 Manw. For. Law, pt. 1, p. 156; Jacob. 
 
 KEEPER OF THE GREAT SEAL. A ju- 
 dicial officer who is by virtue of his office a 
 lord, and a member of the privy council. 
 Through his hands pass all charters, com- 
 missions, and grants of the crown, to be 
 sealed with the great seal, which is under 
 his keeping. The office was consolidated 
 with that of lord chancellor by 5 Eliz. c. 18, 
 and the lord chancellor is appointed by de- 
 livery of the great seal, and taking oath. 4 
 Inst. 87; 1 Hale, P. C. 171, 174; 3 Sharswood, 
 Bl. Comm. 47. 
 
 KEEPER OF THE PRIVY SEAL. The of- 
 ficer through whose hands go all charters, 
 pardons, etc., signed by the king before 
 going to the great seal, and some which do 
 not go there at all. He is of the privy coun- 
 cil virtute officii. He was first called clerk 
 of the privy seal, then guardian, then lord 
 privy seal, which is his present designation. 
 12 Rich. II. c. 12; Rot. Pari. 11 Hen. IV.; 
 St. 34 Hen. VIII. c. 4; 4 Inst. 55; 2 Shars- 
 wood, Bl. Comm. 347. 
 
 KEEPER OF THE TOUCH. The master 
 of the aasay in the English mint. 12 Hen. 
 VI. c. 14. 
 
 KEEPING HOUSE. In English bankrupt- 
 cy law. The act of a trader in withdrawing 
 to a secret part of the house, refraining from 
 going to business, or confining himself to 
 the house for the purpose of avoiding his 
 creditors. It is an act of bankruptcy. Robs. 
 Bankr. 107 et seq. 
 
 KEEPING TERM. It was necessary for 
 students in the Inns of Court to keep twelve 
 terms, comprising three years, for admission 
 to the English bar. Each term was three 
 
KENILWORTH EDICT 
 
 (524) 
 
 KING 
 
 or four weeks, Including one grand week. 
 "Keeping the term" was to dine in the hall 
 once In each grand week, and once in each 
 of two half weeks. The terms so kept 
 need not have been consecutive. Robinson, 
 "Bench and Bar." 
 
 KENILWORTH EDICT. An edict or award 
 between Henry III. and those who had been 
 In arms against him; so called because made 
 at Kenilworth Castle, in Warwickshire, A. D. 
 1266. It contained a composition of those 
 who had forfeited their estates in that re- 
 bellion, which composition was five years' 
 rent of the estates forfeited. Hale, Com. 
 Law, 10, note (d). 
 
 KENNING TO A TERCE. In Scotch law. 
 The ascertainment by a sheriff of the just 
 preportion of the husband's lands which be- 
 longs to the widow In virtue of her terce 
 or third. An assignment of dower by sher- 
 iff. Ersk. Inst. 11. 9. 50; Bell, Diet 
 
 KENTLAGE. In maritime law. A perma- 
 nent ballast, consisting usually of pigs of 
 iron, cast in a particular form, or other 
 weighty material, which, on account of its 
 superior cleanliness, and the small space 
 occupied by It, Is frequently preferred to 
 ordinary ballast. Abb. Shlpp. 5. 
 
 KENTREF. The division of a county; a 
 hundred in Wales. See "Cantred." 
 
 KERNES. Idlers; vagabonds. 
 
 KEYAGE. A toll paid for loading and un- 
 loading merchandise at a key or wharf. 
 
 KEYS. 
 
 Of Court. In old Scotch law. Certain 
 
 ■officers of courts. See "Claves Curiae." 
 
 Of the Isle of Man. The twenty-four 
 
 chief commoners, who form the local legis 
 lature. 1 Steph. Comm. 99. 
 
 In Old English Law. A guardian or 
 
 'warden. 
 
 KEYUS. A guardian, warden, or keeper. 
 Mon. Angl. tom. 2, p. 71. 
 
 KIDDER. An engrosser of corn to enhance 
 its price. 
 
 KIDNAPPING. The forcible abduction or 
 stealing away of a man, woman, or child 
 from their own country, and sending them 
 into another. 4 Bl. Comm. 219. Statutory 
 definitions are somewhat different. 
 
 Actual force is not necessary; fraud or 
 intimidation may suffice. 88 N. Y. 1<82. But 
 the taking must be against the will of the 
 person, and consent is a defense unless the 
 person was incapable of consenting (8 N. H. 
 550; 25 N. Y. 272), or the consent was ob- 
 tained by fraud (20 111. 315). 
 
 KILbERKIN. A measure of capacity, equal 
 to eighteen gallons. 
 
 KILKETH. An ancient servile payment 
 made by tenants in husbandry. Cowell. 
 
 KILL. 
 
 (1) A Dutch word, meaning the channel 
 
 or bed of a stream. Sometimes applied to 
 the stream itself. 1 Comst. (N. Y.) 107. 
 
 (2) An Irish word, meaning church or 
 cemetery. Bnc. Lond. 
 
 KILLYTH STALLION. A custom by which 
 lords of manors were bound to provide a 
 stallion for the use of their tenants' mares. 
 Spelman. 
 
 KIN. Relation or relationship by blood or 
 consanguinity. "The nearness of kin is com- 
 puted according to the civil law." 2 Kent, 
 Comm. 413. 
 
 KINDRED. Relations by blood. 
 
 Nature has divided the kindred of every 
 one into three principal classes: (1) His 
 children, and their descendants. (2) His 
 father, mother, and other ascendants. (3) 
 His collateral relations; which Include, in 
 the first place, his brothers and sisters, and 
 their descendants; and, secondly, his uncles, 
 cousins, and other relations of either sex, 
 who have not descended from a brother or 
 sister of the deceased. All kindred, then, 
 are descendants, ascendants, or collaterals. 
 A husband or wife of the deceased, there- 
 fore, is not his or her kindred. 14 Ves. 372. 
 See Wood. Inst. 50; Ayllffe, Par. 325; Dane, 
 Abr.; 2 Bl. Comm. 516, note; Poth. des Suc- 
 cess, c. 1, art. 3. 
 
 It has been held to Include an adopted 
 child (4 S. W. 683), but not an illegitimate 
 child (38 Me. 153). 
 
 KING. The chief magistrate of a king- 
 dom, vested usually with the executive 
 power. 
 
 The following table of the reigns of Eng- 
 lish and British kings Eind queens, com- 
 mencing with the Conquest, is added, to as- 
 sist the student' in many points of chronol- 
 ogy": 
 
 Accession. 
 
 William I .' 1066 
 
 William II 1087 
 
 Henry 1 1100 
 
 Stephen 1135 
 
 Henry II 1154 
 
 Richard 1 1189 
 
 John 1199 
 
 Henry III 1216 
 
 Edward 1 1272 
 
 Edward II 1307 
 
 Edward III 1327 
 
 Richard II 1377 
 
 Henry IV 1399 
 
 Henry V 1413 
 
 Henry VI 1422 
 
 Edward IV 1461 
 
 Edward V 1483 
 
 Richard III 1483 
 
 Henry VII 1485 
 
 Henry VIII 1509. 
 
 Edward VI 1547 
 
 Mary 1553 
 
 Elizabeth 1558 
 
 James 1 1603 
 
 Charles 1 1625 
 
 Charles II 1660 
 
 James II 1685 
 
 William III 1689 
 
 Anne .' 1702 
 
KING GELD 
 
 (S2S) 
 
 KNIGHTS HOSPITALLERS 
 
 G«orge 1 1714 
 
 George II 1727 
 
 George III 1760 
 
 George IV 1820 
 
 ■William IV 1830 
 
 Victoria 1837 
 
 Edward VII 1901 
 
 KING GELD. Aroyalaid; an escuage(g.«;.) 
 
 KING'S BENCH. See "Court of King's 
 Bench." 
 
 KING'S CHAMBERS. Those portions of 
 the seas, adjacent to the coasts of Great 
 Britain, which are inclosed within head- 
 lands, so as to be cut off from the open sea 
 by imaginary straight lines drawn from one 
 promontory to another. Rapalje & L. 
 
 KING'S (or QUEEN'S) COUNSEL. Bar- 
 risters or Serjeants who have been called 
 within the bar, and selected to be the king's 
 counsel. They answer in some measure to 
 the adtocati fisci, or advocates of the rev- 
 enue, among the Romans. They must not 
 be employed against the crown without spe- 
 cial leave, which is, however, always grant- 
 ed, at a cost of about nine pounds. 3 Shars- 
 wood, Bl. Comm. 27, note. 
 
 KING'S (or QUEEN'S) EVIDENCE. In 
 English law. An accomplice in a felony, 
 who, on an implied promise of pardon if he 
 fully and fairly discloses the truth, is admit- 
 ted as evidence for crown against his ac- 
 complices. See "State's Evidence." 
 
 KING'S (or QUEEN'S) SILVER. A fine 
 or payment due to the king for leave to 
 agree in order to levying a fine iflnalis Con- 
 cordia). 2 Sharswood, Bl. Comm. 350; Dyer, 
 320, pi. 19; 1 Leon, 249, 250; 2 Leon. 56, 179, 
 233, 234; 5 Coke, 39. 
 
 KINGS WIDOW. In feudal law. A widow 
 of the king's tenant. She was not allowed 
 to remain without the king's consent, lest 
 she thereby induct the king's enemy into 
 the tenure. 
 
 KINGDOM. A country where an officer 
 called a "king" exercises the powers of gov- 
 ernment, whether the same be absolute or 
 limited. Wolff. Inst. § 994. In some king- 
 doms the executive officer may be a woman, 
 who is called a "queen." 
 
 KINSBOTE (from kin, and bote, a composi- 
 tion). In Saxon law. A composition for 
 killing a kinsman. Anc. Inst. Bng. Index, 
 "Bote." 
 
 KINTLIDGE. A term used by merchants 
 and seafaring men to signify a ship's bal- 
 last. Merc. Diet. 
 
 KIRBY'S QUEST. An ancient record re- 
 maining with the remembrancer of the Eng- 
 lish exchequer. So called from being the 
 Inquest of John de Klrby, treasurer to Ed- 
 ward I. 
 
 KISSING THE BOOK. A ceremony used 
 in taking the corporal oath; the object being, 
 ■s the canonists say, to denote the assent of 
 
 the witness to the oath in the form it is im- 
 posed. .The witness kisses either the whole 
 Bible, or some portion of it; or a cross, in 
 some countries. See the ceremony explained 
 In Oughton's Ordo, tit. Ixxx.; Consltt. Courts, 
 pt. 3, sec. 1, § 3; Junkin, Oath, 173, 180; 2 
 Poth. Obi. (Evans Ed.) 234. 
 
 KLEPTOMANIA. A mania to steal. 
 
 KNAVE. A false, dishonest, or deceitful 
 person. This signification of the word has 
 arisen by a long perversion of its orig;inal 
 meaning, which was merely "servant" or 
 "attendant." 
 
 KNAVESHIP. In old English law. The 
 portion of grain given to the servant in 
 charge of a mill by tenants who were thirled 
 to the mill. 
 
 KNIGHT. In English law. The next per- 
 sonal dignity after the nobility. Of knights 
 there are several orders and degrees. The 
 first in rank are knights of the garter, insti- 
 tuted by Edward III. in 1344; next follows, 
 a knight banneret r then come knights of the 
 Bath, instituted by Henry IV., and revived 
 by George I.; and they were so called from 
 a custom of bathing the night before their 
 creation. The last order are knights bach- 
 elors, who, though the lowest, are yet the 
 most ancient, order of knighthood; for we 
 find that King Alfred conferred this order 
 upon his son Athelstan. 1 Bl. Comm. 403. 
 These are sometimes called "knights of the 
 chamber," being such as are made in time 
 of peace, and so called because knighted in 
 the king's chamber, and not in the field. 2 
 Inst. 666. Of the! more recently established 
 orders are the knights of St. Michael and 
 St. George, established in 1818, and the 
 knights of St. Patrick, an Irish order insti- 
 tuted in 1763. These last have no rank in 
 England. Knights were called equites, be- 
 cause they always served on horseback; au- 
 rati, from the gilt spurs they wore; and mi- 
 lites, because they formed the royal army, in 
 virtue of their feudal tenures. 
 
 KNIGHTS BACHELORS. See "Knight." 
 
 KNIGHTS BANNERET. See "Knight." 
 
 KNIGHT'S FEE. Anciently so much of an 
 inheritance in land as was sufficient to main- 
 tain a knight; and every man possessed of 
 such an estate was obliged to be knighted, 
 and attend the king in his wars, or pay a 
 pecuniary sum in lieu thereof, called "escu- 
 age." In the time of Henry II. the estate 
 was estimated at twenty pounds a year; but 
 Lord Coke, in his time, states it to be an 
 estate of six hundred and eighty acres. Co. 
 Litt. 69a. 
 
 KNIGHTS HOSPITALLERS. An order of 
 knights that had their name from a hospital 
 erected at Jerusalem for the use of pilgrims 
 coming to the Holy Land, and dedicated to 
 St. John Baptist. They were afterwards 
 called "Knights of St. John of Jerusalem," 
 and their first business was to provide for 
 and protect such pilgrims as came to that 
 hospital. Afterwards, being driven out of 
 
KNIGHTS OF ST. MICHAEL, ETC. (526). 
 
 KYTH 
 
 the Holy Land, they settled at Rhodes, and 
 then ^t Malta, and were then called "Knights 
 of Malta." Many of them came to England 
 in the year 1100, where, in process of time, 
 they became of so much wealth and dignity 
 that their superior was the first lay baron, 
 and had a. seat among the lords in parlia- 
 ment. 
 
 KNIGHTS OF ST. MICHAEL AND ST. 
 
 George. See "Knight." 
 
 KNIGHTS OF ST. PATRICK. See 
 
 "Knight." 
 
 KNIGHTS OF THE BATH. See "Knight." 
 
 KNIGHTS OF THE CHAMBER. See 
 
 "Knight." 
 
 KNIGHTS OF THE GARTER. See 
 
 "Knight." 
 
 KNIGHTS OF THE POST. Hireling wit- 
 nesses. 
 
 KNIGHTS OF THE SHIRE. In English 
 law. Members of parUament representing 
 counties or shires, in contradistinction to 
 citizens or burgesses, who represent bor- 
 ouglis or corporations. So called because, as 
 the terms of the writ for election still re- 
 quire, it was . formerly necessary that he 
 should be a knight. 2 Steph. Comm. 362, 
 392. 
 
 KNIGHT'S SERVICE. Upon the Norman 
 conquest, all the lands in England were 
 ■divided into knight's fees, in number above 
 sixty thousand; and for every knight's fee a 
 knight was bound to attend the king in his 
 wars forty days in a year, in which space 
 of time, before war was reduced to a science, 
 a campaign was generally finished. If a 
 man only held half a knight's fee, he was 
 •only bound to attend twenty days; and so 
 in proportion. But this personal service, in 
 , process of time, grew into pecuniary com- 
 mutations, or aids, until at last, with the 
 military part of the feudal system, it was 
 abolisned at the restoration, by St. 12 Car. 
 II. c. 24. .1 Bl. Comm. 410; 2 Bl. Comm. 62. 
 
 KNIGHTS TEMPLARS. An order of 
 knights so called from having their first resi- 
 dence in some apartments adjoining the tem- 
 
 ple at Jerusalem; and their employment was 
 to guard the roads for the security of pil- 
 grims in the Holy Land. They came into 
 England in the reign of Stephen, where 
 they increased so much in wealth and power 
 that they were considered dangerous to the 
 state, and the order was suppressed in 1312. 
 
 KNIGHTENCOURT. A court which used 
 to be held twice a year by the bishop of 
 Hereford. 
 
 KNIGHTENGUILD, or KNIGHTENGYLD. 
 
 An ancient guild or society formed by King 
 Edgar. 
 
 KNIGHTHOOD. The character, dignity, 
 o)' status of a knight. 
 
 KNOCK DOWN. To accept a bid at an 
 auction. So called from the fact that the 
 auctioneer's acceptance of the bid is com- 
 monly signified by a stroke of his hammer. 
 "Knocked down" is synonymous with 
 "struck off." 7 Hill (N. Y.) 439. 
 
 KNOWINGLY. In pleading. The word 
 "knowingly," or "well knowing," will supply 
 the place of a positive averment, in an in- 
 dictment or declaration, that the defendant 
 knew the facts subsequently stated. If no- 
 tice or knowledge be unnecessarily stated, 
 the allegation may be rejected as surplus- 
 age. See Comyn, Dig. "Indictment" (G 6); 
 2 Cush. (Mass.) 577; 2 Strange, 904; 2 Bast, 
 452; 1 Chit. PI. 367. 
 
 It implies actual personal knowledge. 4 
 Lans. (N. Y.) 22. 
 
 In an indictment it signifies that defend- 
 ant, at the time of committing the offense 
 charged, well knew what he was doing. 14 
 Fed. 127. 
 
 KNOWLEDGE. Positive assurance of a 
 fact. 
 
 It is not synonymous with "information" 
 (21 Pac. 39), or "notice" (1 So. 777), and 
 differs from "belief" in degree; knowledge 
 being a firm belief (9 Gray [Mass.] 271). 
 
 KNOWN MEN. A title formerly given to 
 the Lollards. Cowell. 
 
 KNUCKLES. See "Brass Knuckles." 
 
 KYTH. Kin or kindred. 
 
L S 
 
 (S27) 
 
 LAESA MAJESTAS 
 
 L 
 
 An abbreviation for loous sigilli 
 
 L. S, 
 
 (g. V.) 
 
 LA (La-w Pr.) Tliere. Dyer (Fr. Ed.) 62. 
 La ou, there whiere ; whereas. Kelliam; Law 
 Fr. Diet. Que la, until that. Kelham. 
 
 LA. FR. The definite article feminine. 
 
 LA CONSCIENCE EST LA PLUS CHAN- 
 geante des regies. Conscience is the most 
 changeable of rules. 
 
 LA LEY FAVOUR LA VIE D'UN HOME. 
 The law favors a man's life. Y. B. Hen. 
 VL 51.- 
 
 LA LEY FAVOUR L'INHERITANCE D'UN 
 home. The law favors a man's inheritance, 
 y. B. Hen. VI. 51. 
 
 LA LEY VOIT PLUS TOST SUFFER UN 
 mischiefe que Un Inconvenience. The law 
 would rather suffer a mischief than an in- 
 convenience. Litt. § 231. 
 
 LABEL. A narrow slip of paper or parch- 
 ment affixed to a deed or writing, hanging 
 at or out of the same. This name Is also 
 given to an appending seal. See 2 Fed. 217. 
 
 LABOR. Continued operation; work; man- 
 ual work. 
 
 LABOR A JURY. To tamper with a jury; 
 to persuade jurymen not to appear. It seems 
 to come from the meaning of "labor," to 
 prosecute with energy, to urge; as, to labor 
 a point. Dyer, 48; Hob. 294; Co. Litt. 157b; 
 14 & 20 Hen. VII. 30, 11. The first lawyer 
 that came from England to practice in Bos- 
 ton was sent back for laboring a jury. 
 Washb. Jud. Hist. 
 
 LABORARIIS. An ancient writ against 
 I>ersons who refused to serve and do labor, 
 and who had no means of living; or against 
 such as, having served in the winter, re- 
 fused to serve in the summer. Reg. Grig. 
 189. 
 
 LABORER. One who performs manual la- 
 bor. 10 Am. & Eng. R. R. Cas. 642. 
 
 A contractor is not (6 Am. & Eng. R. R. 
 Cas. 619), nor is an architect who merely 
 provides plans (90 Pa. St. 47) ; but one who 
 directs the work is (35 Pa. St. 42). 
 
 Clerks, bookkeepers, traveling salesmen, 
 «tc., are not. 44 111. App. 338, 341. 
 
 LABORERS, STATUTES OF. St. 23 Edw. 
 III., St. 12 Rich. II., 5 Bliz. c. 4, and St. 26 
 A 27. Vict, c 125, making regulations as to 
 laborers, servants, apprentices, etc. 
 
 LACHES (Fr. lacker, to slacken; to let 
 slip). Negligent delay in enforcing a right. 
 
 "Inexcusable negligence and Inattention 
 to one's interests." 16 N. J. Eq. 242. 
 
 "Laches presupposes not only lapse of 
 
 time, but also the existence of circumstances 
 which render negligence imputable, and un- 
 less reasonable diligence is shown in the 
 prosecution of a claim to equitable relief, 
 the court, acting on the maxim vigilantihus 
 non donnientihiis subvenient leges, will de- 
 cline to interfere." Lindl. Partn. 902. 
 
 LACTA (Law Lat.) In old English law. 
 Defect in the weight of money; lack of 
 weight. This word and the verb laotare are 
 used in an assize or statute of the sixth year 
 of King John. Spelman. 
 
 LACUS (Lat.) 
 
 In the Civil Law. A lake; a recepta- 
 cle of water which is never dry. Dig. 43. 14. 
 1. 3. 
 
 In Old English Law. Allay or alloy of 
 
 silver with base metal. Pleta, lib. 1, c. 22, i§ 
 6. This word is not found either in Spelman 
 or Cowell. 
 
 LadA (from Saxon ladian, to purge). 
 
 In Saxon Law. A purgation, or mode 
 
 of trial by which one purged himself of an 
 accusation; as by oath or ordeal. Spelman. 
 
 A watercourse; a trench or canal for drain- 
 ing marshy grounds. In old English, a lade 
 or load. Spelman; Cowell. 
 
 In Old English Law (from Saxon lath- 
 
 ian, to assemble). A court of justice; a 
 lade or lath. Cowell. 
 
 LADE, or LODE. The mouth of a river. 
 
 LADEN IN BULK. Freighted with a car- 
 go which is neither in casks, boxes, bales, 
 nor cases, but lies loose in the hold, being 
 defended from wet or moisture by a number 
 of mats and a quantity of dunnage. Cargoes 
 of corn, salt, etc., are usually so shipped. 
 Wharton. 
 
 LADY. The title pertaining to a peer's 
 wife, and (by courtesy) to the wife of a 
 baronet or knight, and the daughter of an 
 earl. Webster. 
 
 LADY COU RT. The court of a lady of the 
 mancfr. 
 
 LADY DAY. The feast of the Annuncia- 
 tion, March twenty-fifth. 
 
 LADY'S FRIEND. The name of a func- 
 tionary in the British house of commons. 
 When the husband sues for a divorce, or 
 asks the passage of an act to divorce him 
 from his wife, he is required to make a pro- 
 vision for her before the passage of the act. 
 It is the duty of the lady's friend to see that 
 such a provision is made. Macq. Hush. & 
 Wife, 213. 
 
 LAESA IVIAJESTAS (Lat.) Laese majes- 
 ty, or Injured majesty; high treason. It Is 
 a phrase taken from the civil law, and an- 
 
LAESIO ULTRA, ETC. 
 
 (528) 
 
 LAND TAX 
 
 ciently meant any offense against the king's LAMMAS LANDS. Lands over which there 
 person or dignity, defined by 25 Bdw. III. c. is a right of pasturage by persons other than' 
 6. Glanv. lib. 5, c. 2; 4 Sharswood, Bl. the owner from about Lammas, or reaping 
 Comm. 75; Bracton, 118. See "Crimen." time, until sowing time. Wharton. 
 
 LAESIO ULTRA DIMIDIUM VEL ENOR- 
 mis. rn Roman law. The injury sustained 
 by one of the parties to an onerous contract 
 when he had been overreached by the other 
 to the extent of more than one-half of the 
 value of the subject maLter; c. g., when a 
 vendor had not received half the value of 
 property sold, or the purchaser had paid 
 more than double value. Colq. Civ. Law, § 
 2094. 
 
 LAESIONE FIDei, SUITS PRO. Suits or 
 actions for breach of faith in civil contracts 
 which the clergy, in the reign of Stephen, 
 introduced into the spiritual courts, by 
 means of which they took cognizance of 
 many matters of contract belonging to the 
 temporal courts under a pretext that faith 
 solemnly plighted was of a religious nature, 
 the breach of which belonged to the spiritual 
 tribunals. 1 Reeve, Hist. Bng. Law, 74. 
 
 LAESIWERP. In old English law. Athing 
 surrendered into the hands or power of an- 
 other; a thing given or delivered. Spelman. 
 
 LAGA. The law. 
 
 LAGAN (Sa,xonUggan,cu1)are) . Goodsfound 
 at such a distance from shore that it was un- 
 certain what coast they would be carried to, 
 and therefore belonging to the finder. Brac- 
 ton, 120. See "Ligan." 
 
 LAGE DAY. In old English law. A law 
 day; a day of open court. 
 
 LAGE MAN. A juror. Cowell. 
 
 LAGU. In old English law. Law; also 
 used to express the territory or district in 
 which a particular law was in force, as Dena 
 lagu, the district under Danish law, etc. 
 
 LAHLSLIT (Saxon). A breach of law: 
 Cowell. A mulct for an offense, viz., twelve 
 "ores." 1 Anc. Inst. Eng. 169. 
 
 LAHMAN (Saxon). A lawyer. Domesday 
 Book, I. 189. 
 
 LAICUS. A layman. 
 
 LAIRESITE. The name of a fine imposed 
 upon those who committed adultery or forni- 
 cation. Tech. Diet. 
 
 LAITY. Those persons who do not make 
 a part of the clergy. In the United States 
 the division of the people into clergy and 
 laity is not authorized by law, but is merely 
 conventional. 
 
 LAMBETH DEGREE. A degree given by 
 archbishop of Canterbury. 1 Sh'arswood, 
 Bl. Comm. 381, note. Although he can con- 
 fer all degrees given by the two universities, 
 the. graduates have many privileges not 
 shared by the recipients of his degrees. 
 
 LANCETI. In feudal law. Vassals who 
 were obliged to work for their lord one day 
 in the week, from Michaelmas to autumn, 
 either with fork, spade, or flail, at the lord's 
 option. Spelman. 
 
 L A N D, or LA N DS. A term comprehending 
 any ground, soil, or earth whatsoever; as, 
 meadows, pastures, woods, waters, marshes, 
 furzes, and heath. 
 
 An estate of frank tenement at the least. 
 Shep. Touch. 92. 
 
 In the technical sense, freeholds are not 
 included within the word "lands." 3 Madd. 
 535. The term terra in Latin was used to 
 denote land, from terendo, quia vomers teri- 
 tur (because it is. broken by the plough), 
 and, accordingly, in fines and recoveries, 
 land, i. e., terra, has been held to mean ara- 
 ble land. Salk. 256; Cowp. 346; Co. Litt. 
 4a; 11 Coke, 55a. But see Cro. Bliz. 476; 4 
 Bing. 90; Burton, Real Prop. 196. See, also, 
 2 P. Wms. 458, note; 5 Ves. 476; 28 Viner, 
 Abr. 203. 
 
 " 'Land' comprehendeth in its legal signifi- 
 cance any ground, soil, or earth whatsoever. 
 It includes, also, all castles, houses, or other 
 buildings, for they consist of two things, — 
 land, which is the foundation, and struc- 
 tures thereon. Land hath also, in its legal 
 signification, an indefinite extent upwards, 
 as well as downwards." 1 Inst. 4a; 2 Bl. 
 Comm. 18. 
 
 "Lands" is not as broad a term as "tene- 
 ments" or "hereditaments," but has been 
 scmetimes used as including these. 1 
 Washb. Real Prop. 9. It does not Include 
 Incorporeal hereditaments issuing out of 
 lands. 5 Denio (N. Y.) 324. 
 
 LAND CEAP, or LAND CHEAP (land, and 
 Saxon ceapan, to buy). A fine payable in 
 money or cattle, upon the alienation of land, 
 within certain manors and liberties. Cowell. 
 
 LAND COURT. The name of a court in 
 the city of St. Louis, state of Missouri, hav- 
 ing sole jurisdiction in St. Louis county in 
 suits respecting lands, and in actions of 
 ejectment, dower, partition. 
 
 LAND GABEL (or GABLE). A tax or rent 
 issuing out of land. Blount. A ground 
 rent. Cowell. 
 
 LAND-REEVE. A person whose business 
 it is to overlook certain parts of a farm or 
 estate; to attend not only to the woods and 
 hedge timber, but also to the state of the 
 fences, gates, buildings, private roads, drift- 
 ways, and watercourses; and likewise to the 
 stocking of commons, and encroachments of 
 every kind, as well as to prevent or detect 
 waste and spoil in general, whether by the 
 tenants or others, and to report the same 
 t;o the manager or land steward. Bnc. Lond. 
 
 LAND TAX; A tax on beneficial proprietor 
 of land. So far as a tenant is beneficial 
 
LAND TENANT 
 
 (529) 
 
 LAPSE 
 
 proprietor, and no farther, does it rest on 
 him. It has superseded all other methods 
 of taxation in Great Britain. S^gd. Vend. 
 268. It was first imposed in 1693, a new 
 valuation of the lands in the kingdom hav- 
 ing been made in 1692, which has not since 
 been changed. In 1798 it was made per- 
 petual, at a rate of four shillings in a pound 
 of valued rent. See Bnc. Brit. "Taxation;" 
 Wharton. 
 
 LAND TENANT (commonly called tene ten- 
 ant). He who actually possesses the land. 
 
 LAND WAITER. In English law. An of- 
 ficer of the custom house, whose duty is, 
 upon landing any merchandise, to examine, 
 taste, weigh, or measure it, and to take an 
 account thereof. In some ports they also 
 execute the office of a coast waiter. They 
 are likewise occasionally styled "searchers," 
 and are to attend and join with the patent 
 searchers in the execution of all cockets for 
 the shipping of goods to be exported to for- 
 eign parts; and, in cases where drawbacks 
 on bounties are to be paid to the merchant 
 on the exportation of any goods, they, as 
 well as the patent searchers, are to certify 
 the shipping thereof on the debentures. Enc. 
 Lond. 
 
 LANDS CLAUSES CONSOLIDATION 
 acts. Certain English statutes (8 Vict. c. 8, 
 amended by 23 & 24 Vict. c. 106, and 32 & 33 
 Vict, c 18), to provide legislative clauses in 
 a convenient form for incorporation by ref- 
 erence in future special acts of parliament 
 for taking lands, with or without the con- 
 sent of their owners, for the promotion of 
 railways, and other public undertakings. 
 Mozley & W. 
 
 LANDS, TENEMENTS, AND HEREDITA- 
 merits. The technical and most comprehen- 
 sive description of real property, as "goods 
 and chattels" is of personalty. Winiams, 
 Real Prop. 5. 
 
 LANDATOR. A witness to character. 
 
 LANDBOC (Saxon, from hiiiil, and hoc. a 
 writing). In Saxon law. A charter or deed 
 by which lands or tenements were given or 
 held. Spelman; Cowell; 1 Reeve, Hist. Eng. 
 Law. 10; 1 Spence, Ch. 22. 
 
 LANDEFRICUS. A landlord. 
 
 LANDEGANDMAN (Saxon). In old Eng- 
 lish law. A kind of customary tenant or in- 
 ferior tenant of a manor. Spelman. 
 
 LANDIMER (Scotch; ha.t. agriniciisor). In 
 old Scotch law. A measurer of land. Skene 
 de Verb. Sign. voc. "Particata." 
 
 LAND I RECTA. In Saxon law. Services 
 and duties laid upon all that held land, in- 
 cluding the three obligations called "trinoda 
 necessitas" (q. v.); quasi land rights. Cow- 
 ell. 
 
 LANDLORD. 
 
 In Old Law. The lord or proprietor of 
 
 land, who, under the feudal system, re- 
 
 tained the dominion or ultimate property of 
 the feud, or fee of the land; while his gran- 
 tee, who had only the possession and use of 
 the land, was styled the "feudatory," or "vas- 
 sal," which was only another name for the 
 tenant or holder of it. 
 
 In Modern Law. The lessor of lands 
 
 or tenements. 
 
 LANDMARK. A monument set up in or- 
 der to ascertain the boundaries between two 
 contiguous estates. For removing a land- 
 mark an action lies. 1 Thomas, Co. Litt. 
 787. See "Monument." 
 
 LANDSLAGH. In Swedish law. A body 
 of common law, compiled about the thir- 
 teenth century, out of the particular customs 
 of every province; being analogous to the 
 common law of England. 1 Bl. Comm. 66. 
 
 LANDWARD (Scotch). Rural. 
 
 LANGUAGE. The medium for the com- 
 munication of perceptions and Ideas. 
 
 Spoken language is that wherein articu- 
 late sounds are used. 
 
 Written language is that wherein written 
 characters are used, and especially the sys- 
 tem of characters called "letters and fig- 
 ures." 
 
 LANGUIDUS( L^t. ) In practice. The name 
 of a return made by the sheriff when a de- 
 fendant, whom he has taken by ylrtue of pro- 
 cess, is so dangerously sick that to remove 
 him would endanger his life or health. 
 
 LANIS DE CRESCENTIA WALLIAE TRA- 
 ducendis absque custuma, etc. An ancient 
 writ that lay to the customer of a port to 
 permit one to pass wool without paying cus- 
 tom, he having paid it before in Wales. Reg. 
 Grig. 279. 
 
 LANZAS. In Spanish law. A certain con- 
 tribution in money paid by the grandees and 
 other high officers in lieu of the soldiers they 
 ought to furnish government in time of war. 
 
 LAPIS MARMORIUS. A marble stone 
 about twelve feet long and three feet broad, 
 placed at the upper end of Westminster Hall, 
 where was likewise a marble chair erected 
 on the middle thereof, in which the English 
 sovereigns anciently sat at their coronation 
 dinner, and at other times the lord chancel- 
 lor. Rapalje & L. 
 
 LAPSE. To glide; to pass slowly, silently, 
 or by degrees, to slip; to deviate from the 
 proper path. Webster. See "Lapsed De- 
 vise;" "Lapsed Legacy." 
 
 In Ecclesiastical Law. The trans- 
 fer, by forfeiture, of a right to present or 
 collate to a vacant benefice from a person 
 vested with such right to another, in conse- 
 quence of some act of negligence by the for- 
 mer. Ayliffe, Par. 331. 
 
 Upon six months' neglect of the patron, 
 the right lapses to the bishop; upon six 
 months' neglect of bishop, to archbishop; 
 upon his six months' neglect, to king. The 
 day on which the vacancy occurs is not 
 
LAPSE PATENT 
 
 (530) 
 
 LASCIVIOUS CARRIAGE 
 
 counted, and the six months are calculated 
 as a half-year. 2 Burn, Bee. Law, 355. 
 
 LAPSE PATENT. A patent Issued to peti- 
 tioner for land; a patent for which land to 
 another party has lapsed through neglect of 
 patentee. The lapse patent relates to date of 
 original patent, and makes void all mesne 
 conveyances. 1 Wash. (Va.) 39, 40. 
 
 LAPSED DEVISE. A devise which has 
 lapsed, or does not take effect because of the 
 death of devisee before testator. 
 
 LAPSED LEGACY. A legacy which, on ac- 
 count of the death of the legatee before the 
 period arrives for the payment of the legacy, 
 lapses or deviates from the course prescribed 
 by the testator, and falls into the residuum. 
 1 Williams, Bx'rs, 1036. 
 
 A distinction exists between a lapsed de- 
 vise and a lapsed legacy. A legacy which 
 lapses does not fall into the residue unless 
 so provided by the will, but descends to the 
 heir at law; on the contrary, personal prop- 
 erty passes by the residuary clause where 
 it is not otherwise disposed of. 2 Bouv. Inst. 
 2154-2156. See "Lapsed Devise." 
 
 LARCENY. In criminal law. The wrong- 
 ful and fraudulent taking and carrying away 
 by one person of the mere personal goods of 
 another from any place, with a felonious 
 intent to convert them to his, the taker's, use, 
 and make them his property without the con- 
 sent of the owner. 2 East, P. C. 553; 4 
 Wash. C. C. (U. S.) 700. 
 
 In a recent English case, Mr. Baron Parke 
 said that this definition, which was the most 
 complete of any, was defective, in not stat- 
 ing what is the meaning of the word "felo- 
 nious," which, he said, "may be explained to 
 mean that there is no color of right or ex- 
 cuse for the act; and the 'intent' must be to 
 deprive the owner, not temporarily, but per- 
 manently, of his property." 2 Car. & K. 
 942; 1 Den. C. C. 370; Tempi. & M. C. C. 40. 
 It is safer to be guided by the cases than by 
 the definitions given by text writers. 
 
 Larceny is of two kinds, namely, simple 
 larceny,' and compound larceny. 
 
 (1) Simple larceny at common law is the 
 taking and carrying away of the mere per- 
 sonal goods of another of any value, from 
 any place, with a felonious intent to steal 
 the same. This definition Includes the fol- 
 lowing elements: 
 
 (a) The subject of the offense must be 
 the mere personal goods of another, though, 
 at common law, other things are made the 
 subject of larceny by statute. 
 
 Therefore — 
 
 (i) It must be personal, as distinguished 
 from real property. 
 
 (ii) It must be something which the law 
 recognizes as property, and the subject of 
 ownership. 
 
 (iii) It must be of some value; but the 
 least value to the owner is sufficient. 
 
 (iv) It must be the property of another; 
 but a special property in another is suffi- 
 cient, even as against the general owner; 
 and mere possession is enough as against 
 others than the owner. 
 
 (b) The goods must be taken, and the 
 taking must be under such circumstances as 
 to amount technically to a trespass. 
 
 (c) There must be some asportation or 
 carrying away of the goods. 
 
 (d) Both the taking and the carrying 
 away must be with a felonious intent, — an 
 intent to steal, — existing at the time. 
 
 Grand and petit larceny. By statute in 
 some jurisdictions, larceny has been divided, 
 according to the value of the property or 
 other circumstances, into grand larceny and 
 petit larceny. 
 
 (2) Compound larcenies are larcenies 
 committed under certain aggravating cir- 
 cumstances. Thus: 
 
 (a) At common law, robbery, which is 
 larceny from the person or In the presence 
 of another by violence, or by putting him In 
 fear, is a compound larceny. 
 
 (b) By statute in most jurisdictions, it 
 is a comjMJund larceny, punished more se- 
 verely than simple larceny, to steal (1) from 
 the person of another, or (2) from a dwell- 
 ing house, or certain other places specified 
 in the statute. 2 Clark & Marshall, Crimes 
 649. 
 
 LARCENY BY BAILEE. A Statutory of- 
 fense existing in one or two states, consist- 
 ing of the fraudulent conversion of property 
 by a bailee thereof. The offense is covered 
 by the ordinary statutes against embezzle- 
 ment. 
 
 LARGE (Law Pr.) Broad ; the opposite of 
 estreyte, strait or strict. Pures et largesJ 
 Britt. c. 34. 
 
 LARON, or LARUN. In old English law. 
 A thief; thieves. Petits larons, petty thieves. 
 Britt. c. 29. 
 
 LAS PART I DAS. The name of a code of 
 Spanish law. It is sometimes called las siete 
 partidas, or the seven parts, from the num- 
 ber of its principal divisions. It is a com- 
 pilation from the civil law, the customary 
 law of Spain, and the canon law. It was 
 compiled by four Spanish jurisconsults, un- 
 der the eye of Alphonso X., A. D. 1250, and 
 published in Castille in 1263, but first pro- 
 mulgated as law by Alphonso XL, A. D. 
 1348. The maritime law contained in It is 
 given in volume 6, Pardessus, Col. Mar. Law. 
 He follows the edition of 1807, at Paris. It 
 has been translated into English. Such of 
 its provisions as are applicable are in force 
 in Florida, Louisiana, and Texas. 1 Bl. 
 Comm. 66; 1 White, New Recop. 354. 
 
 LASCIVIOUS CARRIAGE. In Connecti- 
 cut. A term including those wanton acts 
 between persons of different sexes, who are 
 not married to each other, that flow from 
 the exercise of lustful passions, and which 
 are not otherwise punished as crimes against 
 chastity and public decency. 2 Swift, Dig. 
 343; 2 Swift, Syst. 331. 
 
 Lascivious carriage may consist not only 
 in mutual acts of wanton and indecent fa- 
 miliarity between persons of different sexes, 
 but in wanton and indecent actions against 
 the will and without the consent of one ol 
 
LASHITE 
 
 (S31) 
 
 LATHE 
 
 them; as, if a man should forcibly attempt 
 to pull up the clothes of a woman. 5 Day 
 (Conn.) 81. 
 
 LASHITE, or LASHLITE. A kind of for- 
 feiture during the government of the Danes 
 in England. Enc. Lond. 
 
 LAST (Law Lat. lastns, lestus). In English 
 law. A burden; a weight or measure of va- 
 rious commodities, as of pitch, hides, fish, 
 corn, wool, leather, etc. Cowell. 
 
 LAST COURT. A court held by the twen- 
 ty-four jurats in the marshes of Kent, and 
 summoned by the bailiffs, whereby orders 
 were made to lay and levy taxes, impose 
 penalities, etc., for the preservation of the 
 said marshes. Enc. Lond. 
 
 LAST HEIR. He to whom the lands come 
 if they escheat for want of lawful heirs, 
 viz., sometimes the lord of whom the lands 
 are held, sometimes the king. Bracton, lib. 
 5. c. 17. 
 
 LAST RESORT. A court from which there 
 is no appeal is called the "court of last re- 
 sort." 
 
 LAST SICKNESS. That of which a per- 
 son dies. The last sickness includes the 
 whole of the sickness of which the person 
 dies, no matter of how long duration. 8 Me. 
 167. 
 
 The expenses of this sickness are gener- 
 ally entitled to a preference in payment of 
 debts of an insolvent estate. Civ. Code La. 
 art 3166. 
 
 To prevent impositions, the statute of 
 frauds requires that nuncupative wills shall 
 be made during ,the testator's last sickness. 
 Roberts, Frauds, 556; 20 Johns. (N. Y.) 502. 
 
 LAST WILL (Lat. ultima voluntas). A dis- 
 position of real estate, to take effect after 
 death. 
 
 It is strictly distinguishable from "testa- 
 ment," which is applied to personal estate 
 (1 Williams, Ex'rs, 6, note [b] Am. Notes); 
 but the words are generally used together, 
 "last will and testament," in a will, whether 
 real or personal estate is to be disposed of. 
 See "Will." 
 
 LASTAGE, or LESTAGE. A custom ex- 
 acted in some fairs and markets to carry 
 things bought whither one will. But it is 
 more accurately taken for the ballast or lad- 
 ing of a ship. Also custom paid for wares 
 sold by the last, as herrings, pitch, etc. 
 
 LATA CULPA DOLO AEQUIPARATUR. 
 Gross negligence is equal to fraud. 
 
 LATE. Recently; last. 7 Cal. 226. 
 Defunct. 17 Ala. 190. 
 
 LATEtY. This word has been held to 
 have "a very large retrospect, as we say 
 'lately deceased' of one dead ten or twenty 
 years." 2 Show. 294. 
 
 LATENS (Lat. from latere, to lie hid). 
 Latent; hidden; not apparent. 
 
 LATENT AMBIGUITY. One which does 
 not appear from the words of an instru- 
 ment, but only from the application of the 
 words to the subject matter. See 117 U. S. 
 221. 
 
 A latent ambiguity may arise from the 
 fact that there are two or more persons or 
 objects to which a perfect description will 
 apply. Thus, where lands were conveyed to 
 one by name, and it appeared that there 
 were two of that name, it was held a latent 
 ambiguity. 131 Mass. 179. Or it may arise 
 from a misdescription not apparent on the 
 face of the instrument, whereby two per- 
 sons or objects or none at all are described. 
 117 U. S. 221. 
 
 A mere mistake in a description, whereby 
 it is made to apply to something other than 
 was intended, Is not an ambiguity. 11 Johns. 
 (N. Y.) 201. 
 
 LATENT DEED. One kept for twenty 
 years or more in a man's scrutoire or strong 
 box, accompanied by no distinctive posses- 
 sion. 7 N. J. Law, 177. 
 
 LATENT DEFECT. One not discoverable 
 by external examination. 13 N. Y. 9. 
 
 The term is used both in personal injury 
 law, and in the law of sales. 
 
 In Personal Injury Law. An employe 
 
 (108 Ind. 286) and a fortiori a third person 
 is not bound to take notice of latent defects, 
 while the owner of the defective appliance 
 is bound to use due care and diligence to 
 discover the same, if it can be done by any 
 appropriate test (Wood, Mast. & S. § 368 >; 
 while a carrier is held to every test dictated 
 by the utmost possible care (119 Mass. 412). 
 
 In the Law of Sales. A seller is bound 
 
 to disclose latent defects known to him, but 
 does not impliedly warrant against latent 
 defects except under peculiar circumstances, 
 as where the goods are of his own manu- 
 facture. 21 N. Y. 552. 
 
 LATERAL SUPPORT. The support of 
 land by the adjoining land; so called in con- 
 tradistinction from "subjacent support," that 
 of the soil beneath. The right to such later- 
 al support exists as a natural incident of 
 real property (25 N. J. Law, 356; 122 Mass. 
 199) ; and an adjoining landowner who, by 
 excavation on his own land, removes such 
 lateral support, is liable in damages (135 
 Mass. 150; 57 Minn. 493). 
 
 LATE RARE (Law Lat. from latiix, a side). 
 In old English law. To lie sideways; literal- 
 ly, to side; the opposite of capitnrr., to head 
 or abut. Cowell. See "Capitare." 
 
 LATHE, or LATH (Law Lat. laestrum or 
 leda). A division of certain counties In 
 England, intermediate between a county or 
 shire and a hundred, sometimes containing 
 three or four hundreds, as in Kent and Sus- 
 sex. Cowell. But in Sussex the word used 
 for this division is "rape." 1 Bl. Comm. 
 116. There was formerly a lathe reeve or 
 bailiff in each lathe. Id. This division in- 
 to lathes continues to the present day. See 
 12 East, 244. In Ireland, the lathe was in- 
 termediate between the tything and the hun- 
 
LATHE RETSVE. 
 
 (532) 
 
 LAW 
 
 dred. Spencer, Ireland. See Termes de la 
 Ley. 
 
 LATHE REEVE, LATHREVE, or LEID- 
 greve (Saxon). An officer under the Saxon 
 government, who had authority over a lathe. 
 Cowell; 1 Bl. Comm. 116. 
 
 LATIDEMEO. In Spanish law. The tax 
 paid by the possessor of land held hy quit 
 rent or emphyteusis to the owner of the 
 estate, when the tenant alienates his right 
 in the property. 
 
 LATIFUNDIUM (Lat.) In civil law. Great 
 or large possessions; a great or large field; 
 a common. Ainsworth. A great estate made 
 up of smaller ones (fundus), which began 
 to be common in the latter times of the em- 
 pire. Schmidt, Civ. Law, Introd. p. 17. 
 
 LATIFUNDUS (Lat. late possidetis) . A pos- 
 sessor of a large estate made up of smaller 
 ones. Du Cange. 
 
 LATINI JUNIANI (Lat.) In Roman law. 
 A class of freedmen (Uhertini) intermedi- 
 ate between the two other classes of freed- 
 men called, respectively, "Gives Bomani" and 
 "Dediticii." Slaves under thirty years of 
 age at the date of their manumission, or 
 manumitted otherwise than by vindicta, cen- 
 sus, or testamentum, or not the qulritary 
 property of their manumissors at the time 
 of manumission, were called "Latini." By 
 reason of one or other of these three defects, 
 they remained slaves by strict ' law even 
 after their manumission, but were protected 
 in their liberties first by equity, and eventu- 
 ally by the Lex Junia Norhana, A. D. 19, 
 from which law they took the name of "Ju- 
 niani" In addition to that of "Latini." Brown. 
 
 LATITAT (Lat. he lies hid). In English 
 law. The nam^ of a writ calling a defend- 
 ant to answer to a personal action in the 
 king's bench. It derives its name from a 
 supposition that the defendant lurks and lies 
 hid, and cannot be found in the county of 
 Middlesex (in which the said court is hold- 
 en) to be taken there, but is gone into some 
 other county, and therefore requiring the 
 sheriif to apprehend him in such other coun- 
 ty. Pitzh. Nat. Brev. 78. 
 
 LATITATIO. In the civil law and old Eng- 
 lish practice. A lying hid; lurking, or con- 
 cealment of the person. Dig. 42. 4. 7. 5; 
 Bracton, fol. 126. 
 
 LATRO. In the civil and old English law. 
 A robber. Dig. 50. 16. 118; Fleta, lib. 1, c. 
 38, § 1. A thief. 
 
 LATROCINATION. The act of robbing; a 
 depredation. 
 
 LATROCINIUM. 
 
 Larceny or theft. Reg. Orig. 268b. 
 A thing stolen. Fleta, lib. 1, c. 38, § 7. 
 The liberty of infangthef, or privilege of 
 judging and executing thieves. 
 
 LATROCINY. Larceny. 
 
 LAUDARE. 
 
 In Civil Law. To name; to cite or 
 
 quote; to show one's title or authority. Calv. 
 Lex. 
 
 In Feudal Law. To deterrnine or pass 
 
 upon judicially. Feud. lib. 1, tit. 22. Lau- 
 damentiim, the finding or award of a jury. 
 2 Bl. Comm. 285. 
 
 LAUDATIO. In Roman law. Testimony 
 adduced in favor of the character of an ac- 
 cused person. Halifax, Anal. bk. 3, c. IS. 
 
 LAUDATOR. A witness to the good char- 
 acter of an accused person. 
 
 LAUDEIVIIUIVI, or LAUDATIOREIVI (Lat. o 
 laudando domino). A fiftieth part of the 
 purchase money, or (if no sale) of the value 
 of the estate paid to the landlord {domintis) 
 by a new emphyteuta on his succession to 
 the estate, not as heir, but as singular suc- 
 cessor. Voet. Com. ad Pand. lib. 6, tit. S, 
 §§ 26-35; Mackeld. Civ. Law, 297. 
 
 In Old English Law. The tenant paid 
 
 a laudemium or acknowledgment money to 
 new landlord on the death of the old. See 
 Blount, "Acknowledgment Money." 
 
 LAUDUM. An arbitrament or award. Ra- 
 palje & L. 
 
 In Old Scotch Law. Sentence or judg- 
 ment; dome or doom. 1 Pitc. Crim. Tr. pt. 
 
 2, p. 8. 
 
 LAUGEMANNI (LawLat.) Lords of man- 
 ors, according to Coke's definition, who 
 writes theword launcmaiwi. Domesday Book; 
 Co. Litt. 5a. 
 
 LAUGH E. Frank pledge. 2 Reeve, Hist. 
 Eng. Law, 17. 
 
 LAUGHLESMAN (Saxon). In old English 
 law. An outlaw. Bracton, fol. 125. 
 
 LA U N C EG A Y. A kind of offensive weapon. 
 now disused, and prohibited by 7 Rich. II. c. 
 13. 
 
 LAUNCH. The movement by which a ship 
 or boat descends from the shore into the 
 water when she is first built, or afterwards. 
 
 A large, long, low, flat-bottomed boat. Mar. 
 Diet. The long-boat of a ship; a small ves- 
 sel employed to carry the cargo of a large 
 one to and from the shore. 
 
 LAUS DEO (Lat.) Praise be to God. An 
 old heading to bills of exchange. West, 
 Symb. pt. 1, lib. 2, § 660. 
 
 LAVOR NUEVA (Spanish). In Spanish 
 law. A new work. Las Partidas, pt. 3, tit. 
 32, lib. 1. 
 
 LAW. That which is established; a rule 
 or method of action. 
 
 A distinction is to be observed in the out- 
 set between the abstract and the concrete 
 meaning of the word. In the broadest sense 
 which it bears when used in the. abstract 
 law, it is the science which treats of the 
 theory of government. 
 
 In a stricter sense, but still in the ab- 
 stract, it is the aggregate of those rules and 
 principles enforced and sanctioned by the 
 
LAW 
 
 (533) 
 
 LAW FRENCH 
 
 governing power in a community, and ac- 
 cording to which it regulates, limits, and 
 protects the conduct of members of the com- 
 munity. In the abstract sense, it includes 
 the decisions of courts. 
 
 Used in the concrete, law is a rule of ac- 
 tion prescribed by a superior. 1 Bl. Comm. 
 38. 
 
 In a stricter concrete sense, it is a rule of 
 civil conduct prescribed by the supreme 
 power in a state. 1 Steph. Comm. 25. 
 
 In the strictest sense, it is a statute; a 
 rule ■prescribed by the legislative power. 10 
 Pet (U. S.) 18. 
 
 Used without an article prefixed, the ab- 
 stract sense is generally intended; with an 
 article, the sense is usually concrete. 
 
 Law is used to denote the system of the 
 common law, as distinguished from equity. 
 See "Equity." 
 
 It is also used in contradistinction to 
 "fact" See "In Law." 
 
 Arbitrary law. A law or provision of law 
 so far removed from considerations of ab- 
 stract justice that it is necessarily founded 
 on the mere will of the law-making power, 
 so that it is rather a rule established than a 
 principle declared. The principle that an in- 
 fant shall not be bound by his contract is 
 not arbitrary; but the rule that the limit of 
 infancy shall be twenty-one years, not twen- 
 ty nor twenty-two, is arbitrary. 
 
 The term is also sometimes used to sig- 
 nify an unreasonable law, — one that is in 
 violation of justice. 
 
 Irrevocable laws. All laws which have not 
 in their nature or in their language some 
 limit or termination provided are, in theory, 
 perpetual; but the perpetuity is liable to be 
 defeated by subsequent abrogation. It has 
 sometimes been attempted to secure an abso- 
 lute perpetuity by an express provision for- 
 bidding any abrogation. But it may well be 
 questioned whether one generation has power 
 to bind their posterity by an Irrevocable 
 law. See this subject discussed by Benth. 
 Works, vol. 2, pp. 402-407; and see Dwarr. 
 St 479. 
 
 Municipal law is a system of law proper 
 to any single state, nation, or community. 
 See "Municipal Law." 
 
 Penal law is one which inflicts a penalty 
 for its violation. 
 
 Positive law is the system naturally es- 
 tablished by a community, in distinction 
 from "natural law." 
 
 A private law is one which relates to pri- 
 vate matters which do not concern the pub- 
 lic at large. 
 
 A prospective law or statute is one which 
 applies only to cases arising after its enact- 
 ment, and does not affect that which is al- 
 ready past. 
 
 A public law is one which affects the pub- 
 lic, either generally or in some classes. 
 
 A retrospective law or statute is one that 
 turns backvrard to alter that which is past, 
 or to affect men in relation to their conduct 
 before its enactment. These are also called 
 « "retroactive laws." In general, whenever a 
 retroactive statute would take away vested 
 rights, or impair the obligation of contracts, 
 
 it is in so far void. 3 Dall. (Pa.) 391. But 
 laws which only vary the remedies, or mere- 
 ly cure a defect in proceedings otherwise 
 fair, are valid. 10 Serg. & R. (Pa.) 102, 103; 
 15 Serg. & R. (Pa.) 72; 2 Pet (U. S.) 380, 
 627; 8 Pet (U. S.) 88; 11 Pet (U. S.) 420. 
 See "Ex Post Facto." 
 
 For matters peculiar to the following 
 classes of laws, see their several titles: "Ad- 
 jective Law;" "Brehon Law;" "Bretts and 
 Scotts, Laws of the;" "Canon Law;" "Civil 
 Law;" "Code;" "Colonial Laws;" "Commer- 
 cial Law;" "Consuetudinary Law;" "Corn 
 Laws;" "Criminal Law;" "Crown Law;" 
 "Ecclesiastical Law;" "Ex Post Facto Law;" 
 "Fecial Law;" "Feudal Law;" "Foreign 
 Law;" "Game Laws;" "Hindu Law;" "In- 
 solvency;" "Laws of Oleron;" "Military 
 Law;" "Retrospective Law;" "Rhodlan 
 Laws." 
 
 LAW ALWAYS CONSTRUETH THINGS 
 
 to the best. Wingate, Max. p. 720, max. 193. 
 
 LAW BORGH. In old Scotch law. A pledge 
 or surety for appearance. 
 
 LAW BURROWS. In Scotch law. Secu- 
 rity for the peaceful behavior of a party; se- 
 curity to keep the peace. This process was 
 much resorted to by the government of 
 Charles II. for political purposes. 
 
 LAW CHARGES. In Louisiana. Costs. 
 
 LAW COURT OF APPEALS. In American 
 law. An appellate tribunal, in the state of 
 South Carolina, for hearing appeals from the 
 courts of law. 
 
 LAW DAY. The day fixed in a mortgage 
 or defeasible deed for the payment of the 
 debt secured. 24 Ala. (N. S.) 149; 10 Conn. 
 280. 
 
 The phrase formerly marked the time when 
 all legal rights were lost by the mortgagor's 
 default. There is now no such time, until 
 foreclosure; and the term serves only to en- 
 gender confusion. 21 N. Y. 343, 345, 365, 
 367. 
 
 In Old English Law. Law day or lage 
 
 day denoted a day of open court; especially 
 the more solemn courts of a county or hun- 
 dred. The court leet, or view of frank- 
 pledge. 
 
 LAW FRENCH. From the time of William 
 the Norman down to that of Edward III., 
 all public proceedings and documents in Eng- 
 land, including the records of the courts, the 
 arguments of counsel, and the decisions of 
 the judges, were in the language of the Nor- 
 man French. After Latin and English were 
 substituted in the records and proceedings, 
 however, the cases and decisions continued 
 until the close of the seventeenth century to 
 be reported in French; the first reports pub- 
 lished in England being those of Style, in 
 1658. The statutes of the reign of Henry 
 III., and some of the subsequent reigns, are 
 partly or wholly in this language; but Eng- 
 lish was substituted in the reign of Henry 
 VII. Of the law treatises in French, the 
 
LAW LATIN 
 
 (S34) 
 
 LAW OF THE LAND 
 
 Mirrour and Britton, and the works of 
 Littleton, may be mentioned. 
 
 LAW LATIN. Edward III. substituted the 
 Latin language for the Norman French in 
 the records, and the English in other pro- 
 ceedings. The Latin was used by virtue of 
 its being the language of scholars of all 
 European nations; but, in order to adapt it 
 to the purposes of the profession, the Eng- 
 lish terms of legal art in most frequent use 
 were Latinized by the simple addition of a 
 Latin termination, and the diverse vocabu- 
 lary thus collected was arranged in English 
 idioms. But this barbarous dialect com- 
 mended itself by a semblance of scholarly 
 sound, and more by the precision which at- 
 taches to technical terms that are never 
 used in popular language. During the time 
 of Cromwell, English was used; but with 
 the restoration Latin was reinstated, and 
 held its place till 4 Geo. II. c. 26, when it 
 was enacted that, since the common people 
 ought to know what was done for and 
 against them, proceedings should be in Eng- 
 lish. It was found, however, that certain 
 technical terms had become so fixed that, by 
 a subsequent act, such words were allowed 
 to continue in use. 6 Geo. II. c. 14. Hence 
 a large class of Latin terms are still in use, 
 of which nisi prius, Jiabeas corpus, lis pen- 
 dens, are examples. Consult 3 Bl. Comm. 
 318-323, and as to particular words and 
 phrases, Termes de la Ley; Taylor; Law 
 French & Law Latin Diet.; Kelham; Du 
 Cange. 
 
 LAW LIST. An annual English publica- 
 tion of a quasi ofiicial character, comprising 
 various statistics of interest in connection 
 with the legal profession. It includes 
 (among other information) the following 
 matters: A list of judges, queen's counsel, 
 and Serjeants at law; the judges of the 
 county courts; benchers of the inns of court; 
 barristers, in alphabetical order; the names 
 of counsel practicing in the several circuits 
 of England and Wales; London attorneys: 
 county attorneys; officers of the courts of 
 chancery and common law; the magistrates 
 and law officers of the city of London; the 
 metropolitan magistrates and police; re- 
 corders; county court officers and circuits; 
 lord lieutenants and sheriffs; colonial judges 
 and officers; public notaries. Mozley & W. 
 
 LAW LORDS. Peers in the British parlia- 
 ment who have held high judicial office, or 
 have been distinguished in the legal profes- 
 sion. Mozley & W. 
 
 LAW MARTIAL. The military law or ar- 
 ticles of war. 
 
 LAW MERCHANT. 
 
 in England. The general body of com- 
 mercial usages in matters relative to com- 
 merce. Blackstone calls it the "custom of 
 merchants," and ranks it under the head of 
 the particular customs of England, which 
 go to make up the great body of the common 
 law. 1 Bl. Comm. 75. Since, however, its 
 character is not local, nor its obligation con- 
 fined to a particular district, it cannot with 
 
 propriety be considered as a "custom" in the 
 technical sense. 1 Steph. Comm. 54. It is a 
 system of law which does not rest exclusive- 
 ly on the positive institutions and local cus- 
 toms of any particular country, but consists 
 of certain principles of equity and usages 
 of trade which general convenience and a 
 common sense of justice have established, to 
 regulate the dealings of merchants and mari- 
 ners in all the commercial countries of the 
 civilized world. 3 Kent, Comm. 2. 
 
 In the United States. The law mer- 
 chant of England, consisting of the body of 
 usages, the decisions of the English courts 
 construing the same, and statutes confirm- 
 ing and modifying the same prior to the 
 Declaration of Independence, are a part of 
 the common law of the United States. 19 
 111. 598; 1 Morris (Iowa) 128. 
 
 LAW OF ARMS. That law which gives 
 precepts and rules concerning war; how to 
 make and observe leagues and truce, to pun- 
 ish ofEenders in the camp, and such like. 
 Cowell; Blount. Now more commonly call- 
 ed the "law of war." R 
 
 LAW OF CITATIONS. In Roman law. An 
 act of Valentinian, passed A. D. 426, provid- 
 ing that the writings of only five jurists, 
 viz., Papinian," Paul, Gains, Ulpian, and Mo- 
 destinus, should be quoted as authorities. 
 The majority was binding on the judge. If 
 they were equally divided, the opinion of 
 Papinian was to prevail, and in such a case, 
 if Papinian was silent upon the matter, then 
 the judge was free to follow his own view 
 of the matter. Brown. 
 
 LAW OF MARQUE. Law authorizing re- 
 prisal against the goods of another, where 
 justice cannot be had in ordinary course. 
 See "Letter of Marque and Reprisal." 
 
 LAW OF NATIONS. See "International 
 Law." 
 
 LAW OF NATURE. That law which God, 
 the sovereign of the universe, has prescribed 
 to all men, not by any formal promulga- 
 tion, but by the internal dictate of reason 
 alone. It is discovered by a just considera- 
 tion of the agreeableness or disagreeable- 
 ness of human actions to the nature of man, 
 and it comprehends all the duties which we 
 owe either to the Supreme Being, to our- 
 selves, or to our neighbors; as, reverence 
 to God, self-defense, temperance, honor to 
 our parents, benevolence to all, a strict ad- 
 herence to our engagements, gratitude, and 
 the like. Ersk. Prac. Scotch Law, 1. 1. 1. 
 See AylifCe, Pand. tit. 2, p. 2 ; Cicero, de Leg. 
 lib. 1. 
 
 The primitive laws of nature may be re- 
 duced to six, namely, comparative sagacity, 
 or reason; self-love; the attraction of the 
 sexes to each other; the tenderness of par- 
 ents towards their children; the religious 
 sentiment; sociability. See "Jus Naturale." 
 
 LAW OF THE LAND. Due process of law 
 (g. V.) 2 Yerg. (Tenn.) 50; 6 Pa. St. 86; 4" 
 Hill (N. Y.) 140. 
 
LAW OF THE ROAD 
 
 (S3S) 
 
 LE GUIDON 
 
 LAW OF THE ROAD. The rules of law 
 regulating the conduct of persons on high- 
 ways to avoid collision with or other injury 
 to other persons thereon. It cannot be stated 
 in rules, but is a general duty to observe in 
 speed, vigilance, etc., what due and ordinary 
 care may require under the circumstances 
 of the particular case. A few general rules, 
 however, may be stated, as that meeting 
 vehicles should each turn to the right of the 
 center of the road (28 Mich. 32; 195 Pa. St. 
 190), though nonobservance may be justified 
 by circumstances (9 App. Div. [N. Y.] 68), 
 and the rule does not apply as between 
 vehicles and pedestrians (147 Mo. 679). 
 
 LAW OF THE STAPLE. See "Law Mer- 
 chant." 
 
 LAWSPIRITUAL. The ecclesiastical law, 
 or law Christian. Co. Litt. 344. 
 
 LAW WORTHY. Being entitled to, or hav- 
 ing the benefit and protection of, the law. 
 
 LAWFUL. Legal; that which is not con- 
 trary to law; that which is sanctioned or 
 permitted by law; that which is in accord- 
 ance with law. The terms "lawful," "un- 
 lawful," and "illegal" are used with refer- 
 ence to that which is in its substance sanc- 
 tioned or prohibited by the law. The term 
 "legal" is occasionally used with reference to 
 matters of form alone. Thus, an oral agree- 
 ment to convey land, though void by law, is 
 not properly to be said to be unlawful, be- 
 cause there is no violation of law in making 
 or in performing such an agreement; but 
 it is said to be not legal, or not in lawful 
 form, because the law will not enforce it, 
 for want of that written evidence required in 
 such cases. 
 
 LAWFUL AGE. Majority; usually the age 
 of twenty-one years. 
 
 LAWFUL MAN. A freeman, unattainted, 
 and capable of bearing oath; a legaUs homo. 
 
 LAWFUL MONEY. Money which is a le- 
 gal tender in payment of debts; e. g., gold 
 and silver coined at the mint. 2 Salk. 446; 
 5 Mod. 7; 3 Ind. 358; 2 How. (U. S.) 244; 
 3 How. (U. S.) 717; 16 Ark. 83. See 1 
 Hempst. (U. S.) 236. 
 
 LA WING OF DOGS. Mutilating the fore- 
 feet of mastiffs, to prevent them from run- 
 ning after deer. 3 Bl. Comm. 71. 
 
 LAWLESS COURT. An ancient local Eng- 
 lish court, said to have been held in Essex 
 once a year, at cock crowing, without a 
 light or pen and ink, and conducted in a 
 whisper. 
 
 LAWLESS MAN. An outlaw. 
 
 LAWS OF OLERON. A maritime code 
 said to have been drawn up by Richard I. 
 at the Isle of Oleron, whence its name. See 
 Fed. Gas. vol. 30, Appendix, for a copy. 
 
 LAWSUIT. An action at law, or litigation 
 
 LAWYER. One skilled in the law. 
 A popular term for a person engaged in 
 the practice of law. See "Attorney." 
 
 LAY. 
 
 In English Law. That which relates 
 
 to persons or things not ecclesiastical. In 
 the United States, the people are not by law 
 divided, as in England, into ecclesiastical 
 and lay. The law makes no distinction be- 
 tween them. 
 
 In Pleading. To state or to allege. 
 
 The place from whence a jury are to be 
 summoned is called the "venue," and the al- 
 legation in the declaration of the place where 
 the jury is to be summoned is, in technical 
 language, said to "lay the venue." 3 Steph. 
 Comm. 574; 3 Bouv. Inst, note 2826. To 
 state at the conclusion of a declaration the 
 amount of damages which the plaintiff claims 
 is to "lay damages." 
 
 LAY CORPORATION. A corporation com- 
 posed of lay persons, or for lay purposes. 
 Angell & A. Corp. 28-30; 1 Bl. Comm. 470. 
 
 LAY DAMAGES. See "Lay." 
 
 LAY DAYS. In maritime law. The time 
 allowed to the master of a vessel for loading 
 and unloading the same. In the absence of 
 any custom to the contrary, Sundays are to 
 be computed in the calculation of lay days 
 at the port of discharge. 10 Mees. & W. 331. 
 See 3 Esp. 121. See "Demurrage." 
 
 LAY FEE. A fee held by ordinary feudal 
 tenure, as distinguished from the ecclesias- 
 tical tenure of frankalmoign, by which an 
 ecclesiastical corporation held of donor. 
 The tenure of frankalmoign is reserved by 
 St. 12 Car. II., which abolished military ten- 
 ures. 1 Bl. Comm. 101. 
 
 LAY IMPROPRIATOR. Lay rector, to 
 whom the greater tithes are reserved, the 
 lesser going to the vicar. 1 Burn, Ecc. Law, 
 75, 76. 
 
 LAY OUT. This has always been regard- 
 ed as an appropriate expression for the lo- 
 cation and establishment of a highway. 133 
 Mass. 329. 
 
 LAY PEOPLE. Jurymen. Pinch, Law, 381. 
 
 LAYING THE VENUE. See "Lay." 
 
 LAYMAN. In ecclesiastical law. One who 
 is not an ecclesiastic nor a clergyman. 
 
 LAZARET, or LAZARETTO. A place, se- 
 lected by public authority, where vessels 
 coming from infected or unhealthy countries 
 are required to perform quarantine. 
 
 LE CONGRES. A species of proof on 
 charges of impotency in France, coitus coram 
 tesWbus. /Abolished A. D. 1677. Rapalje & L. 
 
 LE CONTRAT FAIT LA LOI. 
 
 tract makes the law. 
 
 The con- 
 
 LE GUIDON (orLE GUIDON DE LA MER). 
 The title of a celebrated French treatise 
 
LE LEY DE DIEU, ETC. 
 
 (536) 
 
 LEAGUE 
 
 on the law of insurance, being the earliest 
 work extant on that subject. It was pre- 
 pared for the use of the merchants ot Rouen 
 at least as early as the sixteenth century, 
 but its author's name has not been preserv- 
 ed. It was published by Cleirac in 1671, in 
 his collection entitled Les Us et Goutumes de 
 la Mer. 3 Kent, Comm. 346; 1 Duer, Ins. 
 Introd. Disc. Lect. 11. 
 
 LE LEY DE DIEU ET LE LEY DE TER- 
 re sent tout un, et I'un et I'autre preferre et 
 favour le common et publique bien del terre. 
 The law of God and the law of the land are 
 all one, and both preserve and favor the 
 common and public good of the land. Keilw. 
 191. 
 
 LE LEY EST LE PLUS HAUT ENHERI- 
 tance que le roy ad, car par le ley, il mesme 
 et touts ses sujets sent rules, et si le ley ne 
 fuit, nul roy ne nul enheritance serra. The 
 law is the highest inheritance that the king 
 possesses; for by the law both he and all 
 his subjects are ruled; and, if there were 
 no law, there would be neither king nor in- 
 heritance. 
 
 LE ROI LE VEUT. The king assents. 
 This is the formula used in England, and 
 formerly in France, when the king approved 
 of a bill passed by the legislature. 1 Toul- 
 lier, Dr. Civ. note 52. 
 
 LE ROI S'AVISERA. The king will con- 
 sider of it. This phrase is used by the Eng- 
 lish monarch when he gives his dissent to 
 an act passed by the lords and commons. 
 The same formula was used by the late king 
 of the French for the same purpose. 1 Toul- 
 lier, Dr. Civ. note 52. See "Veto." 
 
 LE ROI VEUT EN DELIBERER. The king 
 will deliberate on it. Thi^ is the formula 
 which the late French king used when he 
 intended to veto an act of the legislative 
 assembly. 1 TouUier, Dr. Civ. note 42. 
 
 LE ROY (or LA REINE) REMERCIE SES 
 loyal sujets, accepte leur benevolence, et 
 aussi le veut (Law Fr.) The king (or queen) 
 thanks his (or her) loyal subjects, accepts 
 their benevolence, and wills it to be so. 
 The form of the royal assent to a bill of sup- 
 ply. 1 Bl. Comm. 184. 
 
 LEADING A USE. A term applied to deeds 
 declaring the use of a fine; i. e., specifying 
 to whose use the fine shall Inure before the 
 fine is levied. 2 Bl. Comm. 363. See "Deed." 
 
 LEADING CASE. A case decided by a 
 court of last resort, which decides some par- 
 ticular point in question, and to which ref- 
 erence is constantly or frequently made, for 
 the purpose of determining the law in sim- 
 ilar questions. 
 
 Many elements go to the constitution of a 
 case as a leading case, among which are the 
 priority of the case, the character of the 
 court, the amount of consideration given to 
 the question, the freedom from collateral 
 matters or questions. The term is applied 
 
 to cases as leading either in a particular 
 state, or at common law. A very convenient 
 means of digesting the law upon any subject 
 is found to be the selection of a leading case 
 upon the subject, and an arrangement ot 
 authorities illustrating the questions decided. 
 See Bennett & H. Lead. Cr. Cas.; Smith, 
 Lead. Cas.; Hare & W. Sel. Dec; White & T. 
 Lead. Cas.; and a variety of others. 
 
 LEADING COUNSEL. That one of two or 
 more counsel employed on the same side in 
 a cause whoi has the principal management 
 of the cause. So called as distinguished 
 from the other, who is called the "junior 
 counsel." 
 
 LEADING QUESTION. In practice. A 
 question which puts into the witness' mouth 
 the words to be echoed back, or plainly sug- 
 gests the answer which the party wishes to 
 get from him. 7 Serg. & R. (Pa.) 171; 4 
 Wend. (N. Y.) 247. In that case the ex- 
 aminer is said to lead him to the answer. 
 It is not always easy to determine what is , 
 or is not a leading question. 
 
 These questions cannot, in general, be put 
 to a witness in his examination in chief. 3 
 Bin. (Pa.) 130; 6 Bin. (Pa.) 483; 1 Phil. 
 Ev. 221; 1 Starkie, Ev. 123. But, in an ex- 
 amination in chief, questions may be put to 
 lead the mind of the witness to the subject 
 of inquiry; and they are allowed when It 
 appears the witness wishes to conceal the 
 truth, or to favor the opposite party, or 
 where, from the nature of the case, the mind 
 of the witness cannot be directed to the sub- 
 ject of inquiry without a particular specifi- 
 cation of such subject. 1 Campb. 43; 1 
 Starkie, 100. 
 
 In cross-examinations, the examiner has 
 generally the right to put leading questions. 
 1 Starkie, Ev. 132; 3 Chit Prac. 892; 
 Rose. Civ.Ev. 94; 3 Bouv. Inst, notes 3203, 
 3204. 
 
 LEAGUE. A measure of length, which 
 consists of three geographical miles. The 
 jurisdiction of the United States extends 
 into the sea a marine league. See Acts Con- 
 gress June 5, 1794 (1 Story, V. S. Laws, 
 352), and April 20, 1818 (3 Story, U. S. 
 Laws, 1694); 1 Wait, State Papers, 195. _ 
 
 In Criminal Law. A conspiracy to do 
 
 an unlawful act. The term is butlittle used. 
 
 In International Law. An agreement 
 
 between states. Leagues between states are 
 of several kinds: First, leagues offensive 
 and defensive, by which two or more na- 
 tions agree not only to defend each other, 
 but to carry on war against their common 
 enemies. Second, defensive, but not offen- 
 sive, obliging each to defend the other 
 against any ioreign invasion. Third, leagues 
 of simple amity, by which one contracts not 
 to invade, injure, or offend the other. This 
 usually includes the liberty of mutual com- 
 merce and trade, and the safeguard of mer- 
 chants and traders in each other's domain. 
 Bac. Abr. "Prerogative" (D 4). See "Con- 
 federacy;" "Conspiracy;" "Truce;" "War." 
 
LEAKAGE 
 
 (S37) 
 
 LEET 
 
 LEAKAGE. The waste which has taken 
 place In liquids, by their escaping out of 
 the casks or vessels in which they were kept. 
 
 By Act March 2, 1799, § 59 (1 Story, U. S. 
 Laws, 625), it is provided that there be an 
 allowance of two per cent, for leakage on 
 the quantity which shall appear by the 
 gauge tQ be contained in any cask of liquors 
 subject to duty by the gallon, and ten per 
 cent, on all beer, ale, and porter in bottles, 
 and five per cent, on all other liquors in bot- 
 tles, to be deducted from the invoice quan- 
 tity, in lieu of breakage; or it shall be lawful 
 to compute the duties on the actual quan- 
 tity, to be ascertained by tale, at the option 
 of the importer, to be made at the time of 
 entry. 
 
 LEAL. Loyal; that which belongs to the 
 law. 
 
 LEALTE (Law Fr.) Legality; the condi- 
 tion of a legalis homo, or lawful man. LL. 
 Gul. Conq. lib. 16. 
 
 LEAP YEAR. See "Bissextile." 
 
 LEARNED IN THE LAW. A qualification 
 usually prescribed by statute for judges and 
 district attorneys. Admission to the bar is 
 the only and conclusive test of legal learn- 
 ing within such a requirement. 12 S. D. 16. 
 
 LEASE. A contract by which a person 
 owning or controlling lands or tenements 
 permits another to occupy the same for a 
 period leBS than that to which the right of 
 the lessor extends. The person so permit- 
 ting the occupation of premises is called the 
 "lessor;" the person contracting for posses- 
 sion is called the "lessee." Regarded with 
 respect not to the making of the lease, but 
 of the relation created thereby, the parties 
 are known respectively as "landlord" and 
 "tenant." 
 
 LEASE AND RELEASE. A species of con- 
 veyance much used in England, consisting 
 theoretically of two instruments, but which 
 are practically united in the same instru- 
 ment. 
 
 It was invented by Sergeant Moore, soon 
 after the enactment of the statute of uses. 
 It is thus contrived: A lease, or rather 
 bargain and sale upon some pecuniary con- 
 sideration for one year, is made by the ten- 
 ant of the freehold to the lessee or bargainee. 
 This, without any enrollment, makes the bar- 
 gainor stand seised to the use of the bar- 
 gainee, and vests in the bargainee the use 
 of the term for one year, and then the stat- 
 ute immediately annexes the possession. 
 Being thus in possession, he is capable of 
 receiving a release of the freehold and re- 
 version, which must be ipade to the tenant 
 in possession, and accordingly the next day 
 a release is granted to him. 
 
 The lease and release, when used as a con- 
 veyance of the fee, have the joint operation 
 of a single conveyance. 2 Bl. Comm. 339; 
 4 Kent, Comm. 482; Co. Litt. 207; Cruise, 
 Dig. tit. 32, c. 11. 
 
 LEASEHOLD. The estate held by virtue 
 of a lease. 
 
 For the various kinds of leasehold estates, 
 see "Tenancy." 
 
 LEASING MAKING. In Scotch law. Verbal 
 sedition, viz., slanderous and untrue speeches 
 to the disdain, reproach, and contempt of 
 his majesty, his council and proceedings, 
 etc. Bell, Diet.; Ersk. Inst. 4. 4. 29. 
 
 LEAUTE (Law Fr.) Legality; sufficiency 
 in law. Britt. c. 109. 
 
 LEAVE. To give or dispose of by will. 
 "The word 'leave,' as applied to the subject 
 matter, prima facie means a disposition by 
 will." 10 East, 438. 
 
 LEAVE AND LICENSE. A defense to an 
 action in trespass setting up the consent of 
 the plaintiff to the trespass complained of. 
 
 LEAVE OF COURT. Permission granted 
 by the court to do something which, without 
 such permission, would not be allowable. 
 
 LECHERWITE, LAIRWITE, or LEGER- 
 
 wite. A fine for adultery or fornication, an- 
 ciently paid to the lords of certain manors. 
 4 Inst. 206. 
 
 LECTOR DE LETRA ANTIQUA. In Span- 
 ish law. The person duly authorized by the 
 government to read and decipher ancient 
 documents and titles, in order to entitle them 
 to legal effect in courts of justice. 
 
 The Importance of the functions of this 
 officer caused the queen of Spain to issue an 
 ordinance on the 2d of July, 1838, ordering 
 that no person should be permited to exer- 
 cise it unless he justified, first, that he was 
 a man of good character; second, that he 
 was twenty-five years of age, and submitted 
 to a strict examination, justifying that he 
 was acquainted with the Latin language, 
 and especially with the idioms of it used in 
 writings and documents of the middle ages, 
 also with the Romance or ancient Castilian, 
 the Limousin, used in the ancient provinces 
 of Arragon, paleology, Spanish history and 
 chronology; and, third, that he could de- 
 cipher the ancient manuscripts preserved in 
 the archives of Spain, the ancient modes of 
 writing, and the changes introduced in it by 
 time. This examination to be conducted 
 under the superintendence of the Ghefe Polit- 
 ico, and the proccs rerhdl forwarded to the 
 queen, together with the observations of 
 the board of examiners. Escriche, Die. Raz. 
 
 LEDGER BOOK. In ecclesiastical law. 
 The name of a book kept in the prerogative 
 courts in England. It is considered as a roll 
 of the court, but, it seems, it cannot be read 
 in evidence. Bac. Abr. 
 
 LEDGREVIUS (Law Lat.) In old English 
 law. A lathe reeve, or chief officer of a 
 lathe. Spelman. 
 
 LEET. In English law. The name of a 
 court of criminal jurisdiction, formerly of 
 much importance, but latterly fallen into 
 disuse. See "Court Leet." 
 
LEGA 
 
 (538) 
 
 LEGAL TENDER 
 
 LEGA (Law Lat.) In old English law. 
 The alloy of money. Cowell; Blount. 
 
 A termination of the names of places in 
 old records, supposed by Spelman to sig- 
 nify "place." 
 
 LEGABILIS. In old English law. That 
 which may be bequeathed. Cowell. 
 
 LEGACY. A gift by last will. The term 
 is more commonly applied to money or per- 
 sonal property, although sometimes used 
 with reference to a charge upon real estate. 
 2 Williams, Bx'rs, 947; 5 Term R. 716; 1 
 Burrows, 268; 7 Ves. 391, 522. 
 
 Absolute Legacy. One given without 
 
 condition, to vest immediately. 1 Vern. 254; 
 
 2 Vern. 181; 5 Ves. 461; 19 Ves. 86; Comyn, 
 Dig. "Chancery" (14). 
 
 Additional Legacy. One given to a 
 
 legatee to whom a legacy has already been 
 given. It may be either by an increase in 
 a codicil of a prior legacy given in the will, 
 or by another legacy added to that already 
 given by the will. 6 Mod. 31; 2 Ves. Jr. 449; 
 
 3 Mer. 154. 
 
 Alternative Legacy. One by which the 
 
 testator gives one of two or more things, 
 without designating which. 
 
 Conditional Legacy. A bequest whose 
 
 existence depends upon the happening or 
 not happening of some uncertain event, by 
 which it is either to take place or be de- 
 feated. 1 Rop. Leg. (3d Ed.) 645. 
 
 Demonstrative Legacy. A bequest of a 
 
 certain sum of money with reference to a 
 particular fund for payment. ' Williams, 
 Ex'rs, 995. 
 
 General Legacy. One so given as not to 
 
 amount to a bequest of a particular thing or 
 money of the testator, distinguished from 
 all others of the same kind. 1 Rop. Leg. (3d 
 Ed.) 170. 
 
 Indefinite Legacy. A bequest of things 
 
 which are not enumerated or ascertained as 
 to numbers or quantities; as, a bequest by 
 a testator of all his goods, all his stocks in 
 the funds. Lowndes, Leg. 84; Swinb. Wills, 
 485; Ambl. 641; 1 P. Wms. 697. 
 
 Lapsed Legacy. One which, in conse- 
 quence of the death of the legatee before the 
 testator, or before the period for vesting, 
 has never vested. 
 
 ^Legacy for Life. One in which the 
 
 legatee is to enjoy the use of the legacy for 
 life. 
 
 Model Legacy. A bequest accompanied 
 
 with directions as to the mode in which it 
 should be applied for the legatee's benefit; 
 for example, a legacy to Titius to put him an 
 apprentice. 2 Vern. 431; Lowndes, Leg. 151. 
 
 Pecuniary Legacy. One of money. Pe- 
 cuniary legacies are most usually general 
 legacies, but there may be a specific pecun- 
 iary legacy; for example, of the money in 
 a certain bag. 1 Rop. Leg. 150, note. 
 
 Residuary Legacy. A bequest of all the 
 
 testator's personal estate not otherwise ef- 
 fectually disposed of by his will. Lowndes, 
 Leg. 10; Bac. Abr. "Legacies" (I). 
 
 — ^Specific Legacy. A bequest of a speci- 
 fied part of the testator's personal estate. 
 
 distinguished from all others of tbe same 
 kind. 3 Beav. Rolls, 349. 
 
 LEGAL. Opposed (1) to that which is un- 
 lawful; (2) to that which is equitable; (3) 
 to that which is actual. See "In Law." 
 
 As a prefix, it ordinarily implies sufficient 
 in point of law; thus, legal consideration, 
 legal debts, legal defenses, etc. 
 
 LEGAL ASSETS. Such property of a tes- 
 tator in the hands of his executor as is liable 
 to debts in temporal courts, and to legacies 
 in the spiritual by course of law. Equitable 
 assets are such as are liable only by help 
 of a court of equity. 2 Williams, Bx'rs, 
 1408-1431 (Am. Notes). No such distinction 
 exists in Pennsylvania. 1 Ashm. (Pa.) 347. 
 See Story, Eq. Jur. § 551; 2 Jarm. Wills, 543. 
 
 LEGAL ESTATE. One the right to which 
 may be enforced in a court of law. 
 
 It is distinguished from an equitable es- 
 tate, the right to which can be established 
 only in a court of equity. 2 Bouv. Inst, note 
 168S. 
 
 The party who has the legal title has alone 
 the right to seek a remedy for a wrong to 
 his estate, in a court of law, though he may 
 have no beneficial interest in it. The equi- 
 table owner is he who has not the legal es- 
 tate, but is entitled to the beneficial interest. 
 
 The person who holds the legal estate for 
 the benefit of another is called a "trustee." 
 He who has the beneficiary interest and does 
 not hold the legal title is called the "bene- 
 ficiary," or, more technically, the cestui que 
 trust. 
 
 When the trustee has a claim, he must 
 enforce his right in a court of equity, for 
 he cannot sue any one at law in his own 
 name (1 East, 497; 8 Term R. 332; 1 Saund. 
 158, note 1; 2 Bing. 20), still less can he in 
 such court sue his own trustee (1 Bast, 
 497). 
 
 LEGAL INTEREST. That rate of interest 
 which is allowed by law in the absence of an 
 express contract. 
 
 LEGAL MALICE. Constructive or implied 
 malice. See "Malice." 
 
 LEGAL MEMORY. See "Memory." 
 
 LEGAL REPRESENTATIVE. Sometimes 
 used for "personal representative" (g. v.) 
 
 LEGAL REVERSION. In Scotch law. The 
 period within which a proprietor is at lib- 
 erty to redeem land adjudged from him for 
 debt. Bell, Diet. 
 
 LEGAL TENDER. Lawful money which 
 may be tendered in payment of debt. Un- 
 der the laws of the United States, gold coin 
 is full legal tender, silver coin is legal ten- 
 der in payments of not to exceed five dol- 
 lars, the minor coins in payments not to ex; 
 ceed twenty-five cents. Treasury notes, fete, 
 are full legal tender except in payment of 
 duties on imports and interest on the public 
 debt. Rev. St. U. S., § 3584 et seq. 
 
LEGALIS HOMO 
 
 (539) 
 
 LEGEM VADIRRE 
 
 LEGALIS HOMO (Lat.) A person who 
 possesses all his civil rights; a lawful man; 
 o^e who stands rectus in curia, not outlawed 
 nor infamous. In this sense are the words 
 proM et legales homines. 
 
 LEGALIS MONETA ANGLIAE. Lawful 
 money of England. 1 Inst. 207. 
 
 LEGALITY, or LEGALNESS. Lawfulness. 
 
 LEGALIZATION. The act of making law- 
 ful. 
 
 By legalization is also understood the act 
 by which a judge or competent oflBcer au- 
 thenticates a record, or other matter, in or- 
 der that the same may be lawfully read in 
 evidence. See 102 Mass. 127. 
 
 LEGALLY. See "Legal." 
 
 LEGANTINE CONSTITUTIONS. The 
 name of a cod^ of ecclesiastical laws, en- 
 acted in national synods, held under legates 
 from Popes Gregory IX. and Clement IV., in 
 the reign of Hen. III., about the years 1220 
 and 1268. 1 Bl. Comm. 83. Burn says, 1237 
 and 1268. 2 Burn, Ecc. Law, 30d. 
 
 LEGARE (Lat.) In the civil and old Eng- 
 lish law. To bequeath; to leave or give by 
 will; to give in anticipation of death. In 
 Scotch phrase, to legate. Bracton, fol. 18b. 
 Applied to real, as well as personal, prop- 
 erty. 
 
 LEGATARY. One to whom anything is 
 bequeathed; a legatee. This word is some- 
 times, though seldom, used to designate a 
 legate or nuncio. 
 
 LEGATEE. The person to whom a legacy 
 Is given. See "Legacy." 
 
 LEGATES. Legates are extraordinary am- 
 bassadors sent by the pope to Catholic coun- 
 tries to represent him, and to exercise his 
 jurisdiction. They are distinguished from 
 the ambassadors of the pope who are sent to 
 other powers. 
 
 Legates a latere hold the first rank among 
 those who ^re honored by a legation. They 
 are always chosen from the college of cardi- 
 nals, and are called a latere, in imitation of 
 the magistrates of ancient Rome, who were 
 taken from the court, or side of the em- 
 peror. 
 
 Legati missi are simple envoys. 
 
 Legati nati are those who are entitled to 
 be legates by birth. See "A Latere." 
 
 LEGATION. An embassy; a mission. All 
 persons attached to a foreign legation, law- 
 fully acknowledged by the government of 
 this country, whether they are ambassadors, 
 envoys, ministers, or attaches, are protected 
 by the act of April 30, 1790 (1 Story, U. S. 
 Laws, 83), from violence, arrest, or molestar 
 tion. 1 Dall. (Pa.) 117; 1 Wash. C. C. (U. 
 S.) 232; 2 Wash. C. C. (U. S.) 435; 4 Wash. 
 C. C. (U. S.) 531; 11 Wheat. (U. S.) 467; 1 
 Miles (Pa.) 366; 1 Nott & McC. (S. C.) 217; 
 1 Baldw. (XT. S.) 240; Wheat. Int. Law, 167. 
 See "Ambassador;" "Arrest;" "Privilege." 
 
 LEGATORY. The third part of a free- 
 man's personal estate, which by the custom 
 of London, in case he had a wife and chil- 
 dren, the freeman might always have dis- 
 posed of by will. Bac. Abr. "Customs of 
 London" (D 4). 
 
 LEGATOS VIOLARE CONTRA JUS GEN- 
 tlum est. It is contrary to the law of na- 
 tions to do violence to ambassadors. Branch, 
 Princ. 
 
 LEGATUM. 
 
 In Civil Law. A legacy; a gift left by 
 
 will. Dig. 3136. A gift left by a deceased 
 person to be executed by the heir. Inst. 2. 
 20. 1. 
 
 In Common Law. A legacy. 
 
 In Old Ecclesiastical'Law. A soul scot 
 
 or a gift to the church. Cowell. 
 
 LEGATUiVI IVIORTE TESTATORIS TAN- 
 tum conflrmatur, sicut donatio inter vivos 
 traditione sola. A legacy is confirmed by the 
 death of the testator, in the same manner 
 as a gift from a living person is by delivery 
 alone. Dyer, 143. 
 
 LEGATUS, REGIS VICE FUNGITUR A 
 quo destinatur, et honorandus est sicut ille 
 cujus vicem gerlt. An ambassador fills the 
 place of the king by whom he is sent, and is 
 to be honored as he is whose place he fills. 
 12 Coke, 17. 
 
 LEGEM AMITTERE. To lose one's law; 
 to become infamous or outlaw. 
 
 LEGEM ENIM CONTRACTUS DAT. The 
 contract makes the law. 22 Wend. (N. Y.) 
 215, 233. 
 
 LEGEM FACERE (Law Lat.) In old Eng- 
 lish law. To make law, or oath. Legem 
 vadiare, to wage law. Legem habere, to have 
 law; to be capable of giving evidence upon 
 oath. Legem amittere, to lose the law, or 
 privilege of being admitted to oath. Legem 
 terrae amittentes perpetuam infamiac notam 
 inde merito inourrunt, they who lose the ler 
 terrae (law of the land) justly incur therefor 
 the perpetual brand of infamy. 3 Inst. 221. 
 In Branch's Maxims, the peculiar meaning of 
 lex terrae, in this passage, has been misap- 
 prehended. 
 
 LEGEM FERRE (Lat.) In the Roman 
 law. To propose a law to the people for 
 their adoption. Heinec. Ant. Rom. lib. 1, tit. 
 2; Tayl. Civ. Law, 9. 
 
 LEGEM HABERE. To have one's law ; to 
 be a legal person. 
 
 LEGEM JUBERE (or SCISCERE). In the 
 Roman law. To give consent and authority 
 to a proposed law; to make or pass it. Tayl. 
 Civ. Law, 9. 
 
 LEGEM TERRAE AMITTENTES PER- 
 petuam infamiae notam inde merito incur- 
 runt. Those who do not preserve the law of 
 the land, thence justly incur the ineffaceable 
 brand of infamy. 3 Inst. 221. 
 
 LEGEM VADIRRE. To wage one's law. 
 
LEGES 
 
 (i40) 
 
 LEGITIMATION 
 
 LEGES (Lat.) 
 
 In Civil Law. Laws proposed by a 
 
 magistrate of the senate, and adopted by the 
 whole people in comitia centuriata. See 
 "Popullscitum;" "Lex." 
 
 In English. Law. Laws. 
 
 Leges scriptae, written or statute laws. 
 
 Leges non scriptae, unwritten or custom- 
 ary laws; the common law, including general 
 customs, or the common law, properly so 
 called; and also particular customs of cer- 
 tain parts of the kingdom, and those par- 
 ticular laws that are, by custom, observed 
 only in certain courts and jurisdictions. 1 
 Bl. Comm. 67. "These parts of law are 
 therefore styled leges non scriptae, because 
 their original institution and authority are 
 not set down in writing, as acts of parlia- 
 ment are, but they receive their binding 
 power and the force of laws by long and im- 
 memorial usage." 1 Steph. Comm. 40, 66. 
 It is not to be understood, however, that 
 they are merely oral, for they have come 
 down to us in reports and treatises. 
 
 LEGES ANGLIAE SUNT TRIPARTITAE: 
 jus commune, consuetudines, ac decreta co- 
 mitiorum. The laws of England are three- 
 fold: Common law, customs, and decrees of 
 parliament. 
 
 LEGES FIGENDI ET REFIGENDI CON- 
 suetudo est periculosisslma. The 'custom of 
 making and unmaking laws is a most dan- 
 gerous one. 4 Coke, pref. 
 
 LEGES HUMANAE NASCUNTUR, VI- 
 vunt, at moriuntur. Human laws are born, 
 live, and die. 7 Coke, 25; 2 Atk. 674; 11 C. 
 B. 767; 1 Bl. Comm. 89. 
 
 LEGES NATURAE PERFECTISSIMAE 
 sunt et immutabiles; humani vero juris con- 
 ditio semper in infinitum decurrit, et nihil 
 est in eo quod perpetuo stare possit. Leges 
 humanae nascuntur,vivunt, mortiuntur. The 
 laws of nature are most perfect and im- 
 mutable; but the condition of human law 
 is an unending succession, and there is noth- 
 ing in it which can continue perpetually. 
 Human laws are born, live, and die. 7 Coke, 
 25. 
 
 LEGES NON VERBIS SED REBUS SUNT 
 impositae. Laws are imposed on things, not 
 words. 10 Coke, 101. 
 
 LEGES POSTERIORES PRIORES CON- 
 trarias abrogant. Subsequent laws repeal 
 prior conflicting ones. 2 Rolle, 410 ; 11 Coke, 
 626, 630. 
 
 LEGES SUUM LIGENT LATOREM. Laws 
 I should bind the proposers of them. Fleta, 
 bk. 1, c. 17, § 11. 
 
 LEGES TABELLARIAE (Lat.) Roman 
 laws regulating the mode of voting by ballot 
 (taiella). 1 Kent, Comm. 232, note. 
 
 LEGES VIGILANTIBUS, NON DORMIEN- 
 tibus subveniunt. The laws aid the vigilant, 
 not the negligent. Fanning; Dunham; 5 
 Johns. Ch. (N. Y.) 122, 145; Toole; Cook; 
 16 How, Pr. (N. Y.) 142, 144. 
 
 LEGIBUSSOLUTUS(Lat.) Releasedfrom 
 the laws; not bound by the laws. An ex- 
 pression applied in the Roman civil law to 
 the einperor. Calv. Lex. ; 3 Gibb. Rom. Emp. 
 157. 
 
 LEGIBUS SUMPTIS DESINENTIBUS, 
 lege naturae utendum est. When laws im- 
 posed by the state fail, we must act by the 
 law of nature. 2 Rolle, 298. 
 
 LEGIS CONSTRUCTIO NON FACIT IN- 
 
 juriam. The construction of law does no 
 wrong. Co. Litt. 183. 
 
 LEGIS INTERPRETATIO LEGIS VIM OB- 
 
 tinet. The construction of law obtains the 
 force of law. Branch, Princ. 
 
 LEGIS MINISTER NON TENETUR, IN 
 executione officii sui, fugere aut retrocedere. 
 The minister of the law is not bound, in the 
 execution of his office, either to fly or re- 
 treat. 6 Coke, 68. 
 
 LEGISLATIVE POWER. The authority, 
 under the constitution, to make laws, and to 
 alter or repeal them. 
 
 LEGISLATOR. One who makes laws; a 
 member of the legislature (g. v.) 
 
 LEGISLATORUM EST VIVA VOX, RE- 
 bus et non verbis, legem imponere. The 
 
 voice of legislators is a living voice, to im- 
 pose laws on things, and not on words. 10 
 Coke, 101. 
 
 LEGISLATURE. That body of men In the 
 state which has the power of making laws. 
 
 LEGISPERITUS (Law Lat.) A person 
 skilled or learned in the law; a lawyer or 
 advocate. Feud. lib. 2, tit. 1. 
 
 LEGIT UT GLERICUS. He reads as a 
 clerk. The answer made by the ordinary to 
 the question legit vel non, importing that 
 the prisoner could read, and was entitled to 
 benefit of clergy. Dyer, 205. 
 
 LEGIT VEL NON? Does he read or not? 
 The question asked of the ordinary on the 
 trial, whether a prisoner claiming benefit of 
 clergy could read. 1 Salk. 61. 
 
 LEGITIM (called, otherwise, "Bairn's Part 
 of Gear"). In Scotch law. The legal share 
 of father's free movable property, due on his 
 death to his children. If widow and chil- 
 dren are left, it is one-third; if children 
 alone, one-half. Ersk. Inst. 3., 9. 20 ; 4 Bell, 
 H. L. Sc. 286. 
 
 LEGITIMACY. The state of being born in 
 wedlock; that is, in a lawful manner. 
 
 LEGITIMATE. That which is according 
 to law; as, legitimate children are lawful 
 children, born in wedlock, in contradistinc- 
 tion to bastards; legitimate authority, or 
 lawful power, in opposition to usurpation. 
 
 LEGITIMATION. The act of giving the 
 character of legitimate children to those who 
 were not so born. 
 
LEGITIMATION, ETC. 
 
 (S41) 
 
 LETTER MISSIVE 
 
 LEGITIMATION PER SUBSEQUENS 
 matrlmonium. The legitimation of a bastard 
 by the subsequent marriage of his parents. 
 Bell, Diet. 
 
 LEGITIME. In civil law. That portion of 
 a parent's estate of which he cannot disin- 
 herit his children without a legal cause. 
 
 The Civil Code of Louisiana declares that 
 donations inter vivos or mortis causa cannot 
 exceed two-thirds of the property of the dis- 
 poser, if he leaves at his decease a legiti- 
 mate child; one-half if he leaves two chil- 
 dren; and one-third if he leaves three, or a 
 greater number. Under the name of "chil- 
 dren" are included descendants of whatever 
 degree they may be. It must be understood 
 that they are only counted for the child they 
 represent. Civ. Code La. art. 1480. 
 
 LEGITIME IMPERANTI PARERE NE- 
 cesse est. One who commands lawfully must 
 be obeyed. Jenk. Cent. Cas. 120. 
 
 LEGITIMUS. Lawful; legitimate. Legiti- 
 mus haeres et flUus est quern, nuptiae demon- 
 strant, a lawful son and heir is he whom the 
 marriage points out to be lawful. Bracton, 
 fol. 63. 
 
 LEGO (Lat.) In Roman law. I bequeath. 
 A common term In wills. Dig. 30. 36. 81, et 
 seq. 
 
 LEGULEIUS (Lat.) A person skilled in 
 law (<« Ugibus versatus) ; one versed in the 
 forms of law. Calv. Lex; Cicero de Orat. i. 
 
 55. 
 
 LEIDGREVE. In Saxon law. An officer 
 who had jurisdiction over a lathe. Cowell. 
 
 LEIPA (Law Lat.) In old English law. A 
 fugitive or runaway. LL. Hen. I. c. 43. 
 Spelman. Possibly the root of "elope." 
 
 LENDER. He from whom a thing is bor- 
 rowed; the bailor of an article loaned. 
 
 LEOD (Saxon). People; a people; a na- 
 tion. Spelman, voc. "Leodes." 
 
 LEODES (Law Lat.; from Saxon lead). In 
 old European law. A vassal, or liege man 
 (vassallus; homo Ugeus). Spelman. 
 
 Service (serviiium). Id.; Marculf. lib. 1, 
 form. 40. 
 
 A were or weregild (wera, wergildum). 
 Spelman. 
 
 LEOHT GESCEOT. A tax for lighting the 
 church. 
 
 LEONiNA SOCIETAS (Lat.) An attempt- 
 ed partnership, in which one party was to 
 bear all the losses, and have no share in the 
 profits. This was a void partnership in Ro- 
 man law; and, apparently, it would also be 
 void as a partnership in English law, as be- 
 ing inherently inconsistent with the notion 
 of partnership. Dig. 17. 2. 29. 2; Brown. 
 
 LEPROSO AMOVENDO. A writ which 
 anciently lay to remove a leper who attend- 
 ed at church or public meetings, to the dan- 
 ger and annoyance of the inhabitants. 
 
 LES FICTIONS NAISSENT DE LA LOI, 
 et non la loi des fictions. Fictions arise from 
 the law, and not law from fictions. 
 
 LES LOIS NE SE CHARGENT DE PUNIR 
 que les actions exterleures. Laws do not un- 
 dertake to punish other than outward ac- 
 tions. Montesq. Esp. de Lois, bk. 12, c. 11 ; 
 Broom, Leg. Max. (3d London Ed.) 279. 
 
 LESION. In civil law. A terra used to 
 signify the injury suffered, in consequence of 
 inequality of situation, by one who does not 
 receive a full equivalent for what he gives 
 In a commutative contract. 
 
 The remedy given for this injury Is 
 founded on its being the effect of Implied 
 error or imposition; for in every commuta- 
 tive contract equivalents are supposed to be 
 given and received. Code La. art. 1854. 
 Persons of full age, however, are not al- 
 lowed, in point of law, to object to their 
 agreetnents as being Injurious, unless the 
 injury be excessive. Poth. Obi. p. 1, c. 1, 
 sec. 1, art. 3, § 4. But minors are admitted 
 to restitution, not only against any exces- 
 sive inequality, but against any inequality 
 whatever. Id. § 5; Code La. art. 1858. See 
 "Fraud;" "Guardian;" "Sale." 
 
 LESPEGEND (Saxon). A lesser thane oi- 
 baron. Const. Canuti Regis de Foresta, art. 
 2. Spelman prefers to write it "lesthegen." 
 
 LESSEE. He to whom a lease is made; 
 he who holds an estate by virtue of a lease. 
 See "Lease." 
 
 LESSOR. 
 
 "Lease." 
 
 He who grants a lease. See 
 
 LESTAGE, or LASTAGE (Saxon last, bur- 
 den). A custom for carrying things In fairs 
 and markets. Fleta, lib. 1, c. 47; Termes de 
 la Ley. 
 
 LET. Hindrance; obstacle; obstruction. 
 To lease; to grant the use and possession 
 of a thing for compensation. It is the cor- 
 relative of "hire." See "Hire." 
 
 LETRADO (Spanish). In Spanish law. 
 An advocate. White's New Recop. bk. 1, tit. 
 1, c. 1, § 3, note. 
 
 LETTER. He who, being the owner of a 
 thing, lets it out to another for hire or com- 
 pensation. Story, Bailm. § 369. See "Hire." 
 
 LETTER CARRIER. A person employed 
 to carry letters from the post oflice to the 
 persons to whom they are addressed. Pro- 
 visions are made by the act of March 3, 1851 
 (11 U. S. St. at Large, 591), for the appoint- 
 ment of letter carriers in cities and towns, 
 and by chapter 21, § 2, of the same act, for 
 letter carriers in Oregon and California. 
 
 LETTER MISSIVE. In English law. A 
 request addressed to a peer, peeress, or lord 
 of parliament, against whom a bill has been 
 filed, desiring the defendant to appear and 
 answer to the bill. It is issued by the lord 
 chancellor, on petition, after the filing of the 
 bill; and a neglect to attend to this places 
 
LETTER OF ADVICE 
 
 (542) 
 
 LETTERS CLOSE 
 
 the defendant, in relation to such suit, on 
 the same ground as other defendants who 
 are not peers, and a subpoena may then is- 
 sue. Newland, Prac. 9; 2 Madd. Ch. Prac. 
 196; Cooper, Bq. PI. 16. 
 
 LETTER OF ADVICE. A letter contain- 
 ing information of any circumstances un- 
 known to the person to whom it is written; 
 generally informing him of some commer- 
 cial transaction by the writer of the letter. 
 
 It Is usual and perfectly proper for the 
 drawer of a bill of exchange to write a 
 letter of advice to the drawee, as well to 
 prevent fraud or alteration of the bill, as to 
 let the drawee know what provision has been 
 made for the payment of the bill. Chit. Bills, 
 185. 
 
 LETTER OF ADVOCATION. In Scotch 
 law. The decree or warrant of the supreme 
 court or court of sessions, discharging the 
 inferior tribunal from all further proceed- 
 ings in the matter, and advocating the ac- 
 tion to itself. This proceeding is similar to 
 a certiorari issuing out of a superior court 
 for the removal of a cause from an inferior. 
 
 LETTER OF ATTORNEY. A written in- 
 strument, by which one or more persons, 
 called the "constituents," authorize one or 
 more other persons, called the "attorneys," 
 to do some lawful act by the latter for or 
 instead, and in the place, of the former. 1 
 Uoody, C. C. 52, 70. It may be parol or un- 
 der seal. See "Power of Attorney." 
 
 LETTER OF CREDENCE. In internation- 
 al law. A written instrument addressed by 
 the sovereign or chief magistrate of a state 
 to the sovereign or state to whom a public 
 minister is sent, certifying his appointmient 
 as such, and the general object of his mis- 
 sion, and requesting that full faith and cred- 
 it may be given to what he shall do and say 
 on the part of his court. 
 
 When it is given to an ambassador, envoy, 
 or minister accredited to a sovereign, it is 
 addressed to the sovereign or state to whom 
 the minister is delegated. In the case of a 
 charge d'affaires, it is addressed by the sec- 
 retary or minister of state charged with the 
 department of foreign affairs to the minister 
 of foreign affairs of the other government. 
 Wheat. Int. Law, pt. 3, c. 1, § 7; Wicq. de 
 TAmbassadeur. lib. 1, § 15. 
 
 LETTER OF CREDIT. A letter whereby 
 one person requests another to advance 
 money or give credit to a third, and agrees 
 to reimburse or indemnify the person mak- 
 ing the advance, or giving the credit. 
 
 At first it was practically confined to mer- 
 c-iiants, and was designed to enable a mer- 
 chant to obtain goods or money to buy the 
 same. 
 
 In modern times it is much used as a con- 
 venience by travelers in foreign parts to 
 avoid carrying large sums of money; a sum 
 being deposited with a bank, which Issues a 
 letter of credit to its correspondents in for- 
 eign parts. 
 
 Letters of credit are special if addressed 
 to some particular person; general If ad- 
 
 dressed to- any one giving credit to the 
 bearer. 
 
 LETTER OF LICENSE. An instrument or 
 writing made by creditors to their insolvent 
 debtor, by which they bind themselves to 
 allow him a longer time than he had a right 
 to, for the payment of his debts, and that 
 they will not arrest or molest him in his 
 person or property till after the expiration 
 of such additional time. 
 
 LETTER OF MARQUE AND REPRISAL. 
 
 A commission granted by the government to 
 a private individual, to take the property 
 of a foreign state, or of the citizens or sub- 
 jects of such state, as a reparation for an 
 injury committed by such state, its citizens 
 or subjects. A vessel loaded with merchan- 
 dise, on a voyage to a friendly port, but 
 armed for its own defense in case of attack 
 by an enemy, is also called a "letter of 
 marque." 1 Boul. P. Dr. Com. tit. 3, § 2, p 
 300. 
 
 By the constitution (article 1, | 8, el. 11), 
 congress have power to grant letters of 
 marque and reprisal. See Chit. Law Nat. 
 73; 1 Bl. Comm. 251; Viner, Abr! "Preroga- 
 tive" (B 4) ; Comyn, Dig. "Prerogative" (B 
 4); Molloy, bk. 1, c. 2, § 10; 2 Wooddeson, 
 Lect. 440; 2 C. Rob. Adm. 224; 5 C. Rob. 
 Adm. 9, 260. And see "Reprisal." 
 
 LETTER OF RECALL. A written docu- 
 ment addressed by the executive of one gov- 
 ernment to the executive of another, inform- 
 ing the latter that a minister sent by th» 
 former to him has been recalled. 
 
 LETTER OF RECOMMENDATION. An 
 instrument given by one person to another, 
 addressed to a third, in which the bearer is 
 represented as worthy of credit. 1 Bell, 
 Comm. (5th Ed.) 371; 3 Term R. 51; 7 
 Cranch (IT. S.) 69; Pell, Guar. c. 8; 6 Johns. 
 (N. Y.) 181; 13 Johns. (N. Y.) 224; 1 Day 
 (Conn.) 22. See "Recommendation." 
 
 LETTER OF RECREDENTIALS. A docu- 
 ment delivered to a minister by the secre- 
 tary of state of the government to which 
 he was accredited. It is addressed to the ex- 
 ecutive of the minister's country. This is 
 in reply to the "letter of recall." 
 
 LETTERS. Epistles; despatches; written 
 messages, usually on paper, folded un and 
 sealed, and sent by one person to another. 
 
 1 Caines (N. Y.) 582. 
 
 LETTERS AD COLLIGENDUM BONA DE- 
 functl. In practice. In default of the repre- - 
 sentatives and creditors to administer to 
 the estate of an intestate, the officer entitled 
 to grant letters of administration may grant, 
 to such person as he approves, "letters to 
 collect the goods of the deceased," which 
 neither make him executor nor administra- 
 tor; his only business being to collect the 
 goods, and keep them in his safe-custody 
 
 2 Bl. Comm. 505. 
 
 LETTERS CLOSE. Close letters are grants 
 of the king, and. being of private concern, 
 
LETTERS OF ADMINISTRATION (543) 
 
 LEVANTES ET CUBANTES 
 
 they are thus distinguished from "letters 
 patent." 
 
 LETTERS QF ADMINISTRATION. An In- 
 strument in writing, granted by the judge 
 or officer having jurisdiction and power of 
 granting such letters, thereby giving the 
 administrator (naming him) "full power to 
 administer the goods, chattels, rights, and 
 credits, which were of the said deceased, in 
 the county or district in which the said 
 judge or officer has jurisdiction; as also to 
 ask, collect, levy, recover, and receive the 
 credits whatsoever of the said deceased, 
 which at the time of his death were owing, 
 or did in any way belong, to him, and to 
 pay the debts in which the said deceased 
 stood obliged, so far forth as the said goods 
 and chattels, rights and credits, will extend, 
 according to the rate and order of law." See 
 "Letters Testamentary." 
 
 LETTERS OF FIRE AND SWORD. See 
 "Fire and Sword." 
 
 LETTERS OF HORNING. See "Horning." 
 
 LETTERS OF REQUEST. In English ec- 
 clesiastical law. An instrument by which a 
 judge of an inferior court waives or remits 
 his own jurisdiction in favor of a court of 
 appeal immediately superior to it. 
 
 Letters of request, in general, lie only 
 where an appeal would lie, and lie only to 
 the next immediate court of appeal, waiving 
 merely the primary jurisdiction to the prop- 
 er appellate court, except letters of request 
 from the most inferior ecclesiastical court, 
 which may be direct to the court of arches, 
 although one or two courts of appeal may 
 by this be ousted of their jurisdiction as 
 courts of appeal. 2 Add. Ecc. 406. The ef- 
 fect of letters of request is to give jurisdic- 
 tion to the appellate court in the first in- 
 stance. See a form of letters of request in 2 
 Chit. Prac. 498, note (h). 
 
 LETTERS OF SAFE-CONDUCT. No sub- 
 ject of a nation at war with England can, by 
 the law of nations, come into the realm, nor 
 can travel himself upon the high seas, or 
 send his goods and merchandise from one 
 place to another, without danger of being 
 seized, unless he has "letters of safe-con- 
 duct," which, by divers old statutes, must be 
 granted under the great seal, and enrolled 
 in chancery, or else are of no effect; the 
 sovereign being the best judge of such emer- 
 gencies as may deserve exemption from the 
 general law of arms. But passports or li- 
 censes from the ambassadors abroad are now 
 more usually obtained, and are allowed to be 
 of equal validity. Wharton. 
 
 LETTERS OF SLAINS (or SLANES). Let- 
 ters subscribed by the relatives of a person 
 who had been slain, declaring that they had 
 received an assythment, and concurring in 
 an application to the crown for a pardon to 
 the offender. These or other evidences of 
 their concurrence were necessary to found 
 the application. Bell, Diet. 
 
 LETTERS PATENT. The name of an in- 
 
 strument granted by the government to con- 
 vey a right to the patentee; as, a patent for 
 a tract of land; or to secure to him a right 
 which he already possesses, as, a patent for 
 a new invention or discovery. Letters pat- 
 ent are matter of record. They are so called 
 because they are not sealea up, but are 
 granted open. See "Patent." 
 
 LETTERS ROGATORY. An instrument 
 sent in the name and by the authority of a 
 judge or court to another, requesting the lat- 
 ter to cause to be examined, upon interroga- 
 tories filed in a cause depending before the 
 former, a witness who is within the jurisdic- 
 tion of the judge or court to whom such let- 
 ters are addressed. 
 
 LETTERS TESTAMENTARY. Theformal 
 instrument in writing granted to an execu- 
 tor by the judge or officer having jurisdic- 
 tion of the probate of wills, stating his ap- 
 pointment as executor, and authorizing him 
 to proceed. 
 
 LETTING OUT. In American law. The 
 act of awarding a contract. 
 
 This term is much used in the United 
 States, and most frequently in relation to 
 contracts to construct railroads, canals, or 
 other mechanical works. When such an un- 
 dertaking has reached the point of actual 
 construction, a notice is generally given that 
 proposals will be received until a certain 
 period, and thereupon a letting out, or award 
 of portions of the work to be performed ac- 
 cording to the proposals, is made. See 35 
 Ala. (N. S.) 55. 
 
 LETTRE (Law Fr.) In old English law. 
 A letter; conveyance or grant, so called from 
 its form. A tout:: veiLr que cexte lettre rer- 
 rount ou orroiint, A. de B. xaJut: Saches may 
 (Iter done a P. etc To all those who shall 
 see or hear this letter, A. of B. greeting: 
 Know that I have given to P., etc. Britt. 
 c. 41. 
 
 LEUCA, LEUGA, or LEGA (Law Lat.) 
 
 In Old French Law. A league, con- 
 sisting of fifteen hundred paces. Spelman. 
 
 In Old English Law. A league or mile 
 
 of a thousand paces. Domesday Book; Spel- 
 man; Fleta, lib. 2, c. 2, § 2. 
 
 A privileged space around a monastery of 
 a league or mile in circuit. Spelman. 
 
 LEVANDAE NAVIS CAUSA (Lat.) In civil 
 law. For the sake of lightening the ship. 
 Goods thrown overboard with this purpose 
 are subjects of a general average. 
 
 LEVANT ET COUCHANT (Law Fr.) Ris- 
 ing up and lying down. A term applied to 
 trespassing cattle which have remained long 
 enough upon land to have lain down to rest 
 and risen up to feed, which, in general, is 
 held to be a night and a day. 3 Bl. Comm. 9. 
 
 LEVANTES ET CUBANTES. Same as 
 
 levant et couchant. 
 
 Applied by Bracton to villeins who lived 
 on their lord's estate. Bracton, fol. 6b. 
 
LEVARI FACIAS 
 
 (544) 
 
 LEX AGRARIA 
 
 LEVARI FACIAS (Lat. that you cause to 
 be levied). 
 
 In Practice. A writ of execution di- 
 recting the sheriff to cause to be made of the 
 lands and chattels of the judgment debtor 
 the sum recovered by the judgment. 
 
 Under this writ, the sheriff was to sell the 
 goods and collect the rents, issues, and prof- 
 its of the land in question. It has been gen- 
 erally superseded by the remedy by elegit, 
 which was given by St. Westminster II. (13 
 Edw. I.) c. 18. In case, however, the judg- 
 ment debtor is a clerk, upon the sheriff's 
 return that he has no lay fee, a writ in the 
 nature of a levari facias goes to the bishop of 
 the diocese, who thereupon sends a seques- 
 tration of the profits of the clerk's benefice, 
 directed to the church wardens, to collect 
 and pay them to the plaintiff till the full 
 sum be raised. Yet the same course is. pur- 
 sued upon a /?. fa. 2 Burn, Bcc. Law, 329. 
 See 2 Tidd, Prac. 1042; Comyn, Dis. "Execu- 
 tion" (C 4) ; Finch, Law, 471; 3 Bl. Comm. 
 471. 
 
 In American Law. A writ used to sell' 
 
 lands mortgaged, after a judgment has been 
 obtained by the mortgagee, or his assignee, 
 against the mortgagor, under a peculiar pro- 
 ceeding authorized by statute. 3 Bouv. Inst, 
 note 3396. 
 
 LEVARI FACIAS DAMNA DE DISSEISI- 
 toribus. A writ formerly directed to the 
 sheriff for the levying of damages, which a 
 disseisor had been condemned to pay to the 
 disseisee. Cowell. 
 
 LEVARI FACIAS QUANDO VICECOMES 
 returnavit quod non habuit emptores. An 
 old writ commanding the sheriff to sell the 
 goods of a debtor which he had already 
 taken, and had returned that he could not 
 sell them; an^ as much more of the debtor's 
 goods as would satisfy the whole debt. Cow- 
 ell. 
 
 LEVARI FACIAS RESIDUUM DEBITI. 
 An old writ directed to the sheriff for levy- 
 ing the remnant of a partly-satisfied debt 
 upon the lands and tenements or chattels of 
 the debtor. Cowell. 
 
 LEVATO VELO (Lat.) An expression used 
 in the Roman law (Code, 11. 4. 5), and ap- 
 plied to the trial of wreck and salvage. 
 Commentators disagree about the origin of 
 the expression, but all agree that its general 
 meaning is that these cause.s shall be heard 
 summarily. The most probable solution is 
 that it refers to the place where causes were 
 heard. A sail was spread before the door, 
 and officers employed to keep strangers from 
 the tribunal. When these causes were 
 heard, this sail was raised, and suitors came 
 directly to the pourt, and their causes were 
 heard immediately. As applied to maritime 
 courts, its meaning is that causes should be 
 heard without delay. These causes require 
 despatch, and a delay amounts practically to 
 a denial of justice. Emerig. Tr. des Assur. 
 c. 26, § 3. 
 
 LEVIABLE. That which may be levied. 
 
 LEVIR. A husband's brother. Vicat. 
 
 LEVITICAL DEGREES. Those degrees of 
 kindred, set forth in the eighteenth chapter 
 of Leviticus, within which persons are pro- 
 hibited to marry. 
 
 LEVY. To raise. Webster. To levy a 
 nuisance, i. e., to raise or do a nuisance (9 
 Coke, 55) ; to levy a fine, i. e., to raise or 
 acknowledge a fine (2 Bl. Comm. 357; 1 
 Steph. Comm. 236); to Jevy a tax, i e., to 
 raise or collect a tax; to levy war, i. e., to 
 raise or begin war, to take arms for attack 
 (4 Bl. Comm. 81) ; to levy an execution, i. e., 
 to raise or levy so much money on execution 
 (Reg. Orig. 298). 
 
 In Practice. The raising of the mAney 
 
 for which an execution has been issued. The 
 seizing of property under an execution. 
 
 LEVYING WAR. In criminal law. The 
 assembling of a body of men for the purpose 
 of effecting by force a treasonable object; 
 and all who perform any part, however 
 minute, or however remote from the scene 
 of action, and who are leagued in the gen- 
 eral conspiracy, are considered as engaged 
 in levying war, within the meaning of the 
 constitution. 4 Cranch (U. S.) 473, 474; 
 Const, art. 3, § 3. See "Treason;" Fed. Cas. 
 No. 14,692. This is a technical term, bor- 
 rowed from the English law, and its mean- 
 ing is the same as it is when used in St. 25 
 Edw. III. 4 Cranch (U. S.) 471; Hall, Law 
 J. 351; 1 East, P. C. 62-77; Alis. Crim. Law, 
 606; 9 Car. & P. 129. 
 
 LEWDNESS. Licentiousness; an offense 
 against the public economy, when of an open 
 and notorious character; as, by frequenting 
 houses of ill fame, which is an indictable 
 offense, or by some grossly scandalous and 
 public indecency, for which the punishment 
 at common law is fine and imprisonment. 
 The various acts which constituted lewdness 
 at common law are now generally covered 
 by a variety of statutory ofiienses, as "inde- 
 cent exposure," "lascivious cohabitation," 
 etc. 
 
 LEX (Lat.) The law; a law for the govern- 
 ment of mankind in society. Among the an- 
 cient Romans this word was frequently used 
 as synonymous with right, jus. When put 
 absolutely, it means the law of the Twelve 
 Tables. 
 
 LEX AELIA SENTIA. The Aelian Sentian 
 law, respecting wills, proposed by the con- 
 suls Aelius and Sentius, and passed A. U. 
 756, restraining a master from manumitting 
 his slaves in certain cases. Calv. Lex.; 
 Halifax, Anal. bk. 1, c. 3. 
 
 LEX AEQUITATE GAUDET; APPETIT 
 perfectum; est norma recti. The law de- 
 lights in equity; it covets perfection; it is a 
 rule of right. Jenk. Cent. Cas. 36. 
 
 LEX AGRARIA. In Roman law. The 
 agrarian law. A law proposed by Tiberius 
 Gracchus, A. U. 620, that no one should 
 possess more than five hundred acres of land, 
 and that three commissioners should be ap- 
 
LEX ALAMANNORUM 
 
 (545) 
 
 LEX CORNELIA DE INJUrillS 
 
 pointed to divide among the poorer people 
 what any one ,had above that extent. Liv. 
 Bpit 58. 
 
 LEX ALAMANNORUM (or ALEMANNO- 
 rum). The law of the Alemanni; first re- 
 duced to writing from the customs of the 
 country by Theodoric, king of the Franks, 
 A. D. 512. Amended and re-enacted by Clo- 
 talre II. Spelman; Butler, Hor. Jur. 84. 
 
 LEX ALIQUANDO SEQUITUR AEQUI- 
 tatem. The law sometimes follows equity. 
 3 WllB. 119. 
 
 LEX AMISSA. One who is an infamous, 
 perjured, or outlawed person. Bracton, lib. 
 4, c. 19. 
 
 ' LEX ANGLIAE. The law of England; the 
 common law; or, the curtesy of England. 
 
 LEX ANGLIAE EST LEX MISERICOR- 
 diae. The law of England is a law of mercy. 
 2 Inst 315. 
 
 LEX ANGLIAE NON PATITUR ABSUR- 
 dum. The law of England does not suffer an 
 absurdity. 9 Coke, 22. 
 
 LEX ANGLIAE NUNQUAM MATRIS SED 
 semper patris conditlonem imitari partum 
 judicat. The law of England rules that the 
 offspring shall always follow the condition 
 of the father, never that of the mother. Co. 
 Litt. 123. 
 
 LEX ANGLIAE NUNQUAM SINE PAR- 
 liamento mutari potest. The law of England 
 cannot be changed but by parliament. 2 
 Inst. 218. 619. 
 
 LEXAPPARENS. In old English and Nor- 
 man law. Apparent or manifest law. A 
 term used to denote the trial by battel or 
 duel, and the trial by ordeal, "lex" having 
 the sense of process of law (process litis). 
 Spelman. Called "apparent" because the 
 plaintiff was obliged to make his right clear 
 by the testimony of witnesses before he 
 could obtain an order from the court to 
 summon the defendant. 
 
 LEX AQUILIA. In the Roman law. The 
 Aquilian law; a celebrated law passed on 
 the proposition of the tribune C. Aquilius 
 Gallus, A. U. 672, regulating the compen- 
 sation to be made for that kind of damage 
 called "injurious," in the cases of killing or 
 wounding the slave or beast of another. 
 Inst 4. 3; Dig. 9. 2; Code, 3. 35; Calv. Lex. 
 
 LEX ATI LI A. In the Roman law. The 
 Atilian law; a law passed on the proposi- 
 tion of the tribune L. Atilius Regulus, A. 
 U. 443, authorizing the praetor, with a ma- 
 jority of the tribunes, to appoint guardians. 
 Changed by Justinian. Inst. 1. 20. 3. 4. 
 
 LEX ATI N I A. In the Roman law. The 
 Atlnlan law; a law declaring that the prop- 
 erty In things stolen should not be acquired 
 by prescription (,usucapione) . Inst. 2. 6. 2; 
 Adam. Rom. Ant. 207. 
 
 LEX BAIUVARIORUM (BAIORIORUM, or 
 BoioFum). The law of the Bavarians, a bar- 
 
 barous nation of Europe, first collected (to- 
 gether with the law of the Franks and Ale- 
 manni) by Theodoric I., and finally com- 
 pleted and promulgated by Dagobert. Spel- 
 man. 
 
 LEX BARBARA. The barbarian law. A 
 term applied to the laws of those nations 
 that were not In subjection to the Roman 
 empire, such as the Burgundian and Salian 
 law, the law of the Lombards, etc. Spel- 
 man. 
 
 LEX BENEFICIALIS REI CONSIMILI 
 remedium praestat. A beneficial law affords 
 a remedy in a similar case. 2 Inst. 689. 
 
 LEX BREHONIA (Law Lat) The Brehon 
 law. See "Brehon Law." 
 
 LEX BRETOYSE (or BRETOISE). The 
 
 law of the ancient Britons, or Marches of 
 Wales. 
 
 LEX BURGUNDIONUM. The law of the 
 Burgundians, a barbarous nation of Europe, 
 first compiled and published by Gundebald, 
 one of the last of their kings, about A. 0. 
 500. Spelman; Butler, Hor. Jur. 84. 
 
 LEX CITIUS TOLERARE VULT PRIVA- 
 tum damnum quam publicum malum. The 
 law would rather tolerate a private loss 
 than a public evil. Co. Litt. 152b. 
 
 LEX COMITATUS (LawLat) InoldEng- 
 11 sh law. The law of the county, or the law 
 administered in the county court before the 
 earl (comes) or his deputy. Spelman. 
 
 LEX COMMISSORIA. In Roman law. A 
 law by which a debtor and creditor might 
 agree, where a thing had been pledged to the 
 latter to secure the debt, that, if the debtor 
 did not pay at the day, the pledge should 
 become the absolute property of the creditor. 
 This was abolished by a law of Constantine. 
 Kent, Comm. 583. 
 
 A law according to which a seller might 
 stipulate that, if the price of the thing sold 
 were not paid within a certain time, the sale 
 should be void. Dig. 18. 3. 
 
 LEX COMMUNIS. The common law. See 
 "Jus Commune." 
 
 LEX CONTRA ID QUOD PRAESUMIT, 
 probationem non recipit. The law admits 
 no proof against that which it presumes. 
 Lofft 573. 
 
 LEX CORNELIA DE FALSO (or FALSIS). 
 
 In Roman law. The Cornelian law respect- 
 ing forgery or counterfeiting. Passed by the 
 dictator Sylla. Dig. 48. 10; Calv. Lex. 
 
 LEX CORNELIA DE INJURIIS. In Roman 
 law. The Cornelian law respecting Injuries: 
 a law passed by the dictator L. Cornelius 
 Sylla, providing remedies for certain in- 
 juries, as for battery, forcible entry of an- 
 other's house, etc. Calv. Lex. Being the 
 most important of the Cornelian laws, it is 
 sometimes known generally as- "Lex Cor- 
 nelia." 
 
LEX CORNELIA, ETC. 
 
 (546) 
 
 LEX LOCI. ETC. 
 
 LEX CORNELIA DE SICARIIS ET VENE- 
 
 ficis. In Roman law. The Cornelian law re- 
 specting assassins and poisoners. Passed by 
 the dictator Sylla. Dig. 48. 8; Calv. Lex. 
 
 LEX DANORUM. The law of the Danes; 
 Dane-law or Dane-lage. Spelman. 
 
 LEX DE FUTURO; JUDEX DE PRAETE- 
 rito. The law provides for the future; the 
 judge for the past. 
 
 LEX DEFICERE NON POTEST IN JUS- 
 titla exhibenda. The law ought not to fail 
 in dispensing justice. Co. Litt. 197. 
 
 LEX DERAISNIA. The proof of a thing 
 which one denies to be done by him, where 
 another affirms it; defeating the assertion 
 of his adversary, and showing it be against 
 reason or probability. This was used among 
 the old Romans, as well as the Normans. 
 Cowell. 
 
 LEX DILATIONES SEMPER EXHORRET. 
 The law always abhors delay. 2 Inst. 240. 
 
 LEX DOMICILII (Lat.) The law of the 
 domicile. 2 Kent, Comm. 112, 433. 
 
 LEX EST AB AETERNO. The law is 
 from everlasting. Branch, Princ. 
 
 LEX EST DICTAMEN RATIONIS. Law 
 
 is the dictate of reason. Jenk. Cent. Cas. 
 117. 
 
 LEX EST NORMA RECTI. Law i^ a rule 
 of right. 
 
 LEX EST RATIO SUMMA, QUAE JUBET 
 quae sunt utilla et necessaria, et contraria 
 prohibet. Law is the perfection of reason, 
 which commands what is useful and neces- 
 sary, and forbids the contrary. Co. Litt. 
 319b. 
 
 LEX EST SANCTIO SANCTA, JUBENS 
 honesta, et prohlbens contraria. Law is a 
 sacred sanction, commanding what is right, 
 and prohibiting the contrary. 2 Inst. 587. 
 
 LEX EST TUTISSIMA CASSIS; SUB 
 clypeo legis nemo decipitur. Law is the saf- 
 est helmet; under the shield of the law no 
 one is deceived. 2 Inst. 56. 
 
 LEX ET CONSUETUDO PARLIAMENTI. 
 
 The law and custom of parliament. The 
 houses of parliament constitute a court not 
 only of legislation, but also of justice, and 
 have their own rules, by which the court 
 itself and the suitors therein are governed. 
 May, Pari. Prac. (6th Ed.) 38-61. See 1 Bl. 
 Comm. 163. 
 
 LEX ET CONSUETUDO REGNI. The law 
 
 and custom of the realm; one of the names 
 of the common law. 
 
 LEX FALCIDIA. See "Palcidlan Law." 
 
 LEX FAVET DOTI. The law favors dow- 
 er. 3 & 4 Wm. IV. c. 105. 
 
 LEX FINGIT UBI SUBSISTIT AEQUITAS. 
 
 Law feigns where equity subsists. 11 Coke, 
 90; Branch, Princ. 
 
 LEX FORI (Lat. the law of the forum). 
 The law of the country, to the tribunal in 
 which an action is brought. 5 Clark & F. 1. 
 
 LEX FRANCORUM. The law of the 
 Pranks; promulgated by Theodoric I., son of 
 Clovis I., at the same time with the law of 
 the Alemanni and Bavarians. Spelman. 
 This was a different collection from the Salic 
 law. 
 
 LEX FRISIONUM. The law of the Fris- 
 ians, promulgated about the middle of the 
 eighth century. Spelman. 
 
 LEX FURIA (or FUSIA) CANINIA. In Ro- 
 man law. The Furian Caninlan law; a law 
 passed in the consulship of P. Furius Camil- 
 lus and C. Caninius Gallus, A. U. 752, pro- 
 hibiting masters from manumitting by will 
 more than a certain number or proportion 
 of their slaves. This law was abrogated by 
 Justinian. Inst. 1. 7; Code, 7. 3; Heinee. 
 Elem. Jur. Civ. lib. 1, tit. 7. 
 
 LEX GOTHICA. The Gothic law, or law 
 of the Goths. First promulgated in writing, 
 A. D. 466. Spelman. 
 
 LEX HOSTILIA. The Hostilian law, pass- 
 ed in the consulship of A. Hostilius, author- 
 izing actions of theft to be brought in the 
 name of captives or persons absent on the 
 business of the state. Inst. 4. 10. pr.; Calv. 
 Lex. 
 
 LEX IMPERATORIA. The Imperial or 
 Roman law. Quoted under this name by 
 Fleta, lib. 1, c. 38, § 15; Id. lib. 3, c. 10, § 3. 
 
 LEX INTENDIT VICINUM VICINI FAC- 
 ta scire. The law presumes that one neigh- 
 bor knows the actions of another. Co. Litt. 
 78b'. 
 
 LEX JUDICAT DE REBUS NECESSARIO 
 faciendis quasire ipsa factls. The law judges 
 of things which must necessarily be done as 
 if actually done. Branch, Princ. 
 
 LEX JUDICIALIS. An ordeal. Leg. H. 1. 
 
 LEX JULIA MAJESTATIS. InRomanlaw. 
 The Julian law of majesty; a law promul- 
 gated by Julius Caesar, and again published 
 with additions by Augustus, comprehending 
 all the laws before enacted to punish trans- 
 gressors against the state. Halifax, Anal. 
 bk. 3, c. 12; Calv. Lex. 
 
 LEX LOCI (Lat.) The law of the place. 
 This may be either lex loci contractus ant 
 actus, the law of the place of making the 
 contract or of the thing done; lex loci rei 
 sitae, the law of the place where the thing 
 is situated; lex loci doviicilii, the law of the 
 place of domicile. 
 
 In general, however, lex loci is only used 
 for lex loci contractus aut actus. 
 
 LEX LOCI DELICTUS. The law of the 
 
 place where an offense was committed. 
 
LEX LOCI SOLUTIONIS 
 
 (547) 
 
 LEX RHODIA 
 
 LEX LOCI SOLUTIONIS. The law of the 
 place where payment or performance of a 
 contract is, by its terms, to be made. 
 
 LEX LONGOBARDORUM (Lat.) The name 
 of an ancient code in force among the Lom- 
 bards. It contains many evident traces of 
 feudal policy. It survived the destruction 
 of the ancient government of Lombardy by 
 Charlemagne, and is said to be still partially 
 in force in some districts of Italy. 
 
 LEX MANIFESTA. Manifest or open law; 
 the trial by duel or ordeal. The same as 
 lex apparens (q. v.) 
 
 LEX MERCATORIA (Lat.) That system 
 of laws which is adopted by all commercial 
 nations, and which, therefore, constitutes a 
 part of the law of the land. See "Law Mer- 
 chant." 
 
 LEX NECESSITATIS EST LEX TEMPO- 
 ris, i. e., instantls. The law of necessity is 
 the law of time, that is, time present. Hob. 
 159. 
 
 LEX NEMINEM COGIT AD VANA SEU 
 inutilia peragenda. The law forces no one 
 to do vain or useless things. Wingate, Max. 
 600; 3 BL Comm. 144; 2 Bing. (N. C.) 121; 
 13 East, 420; 7 Pa. St. 206, 214; 3 Johns. (N. 
 Y.) 598. 
 
 LEX NEMINEM COGIT OSTENDERE 
 quod nescire praesumltur. The law forces 
 no one to make known what he is presumed 
 not to know. Lofft, 569. 
 
 LEXNEMINI FACIT INJURIAM. The law 
 does wrong to no one. Branch, Princ. 
 
 LEX NEMINI OPERATUR INIQUUM, NE- 
 mini facit injuriam. The law never works 
 an injury, or does him a wrong. Jenk. Cent. 
 Gas. 22. 
 
 LEX NIL FACIT FRUSTRA, NIL JUBET 
 frustra. The law does nothing and com- 
 mands nothing in vain. 3 Bulst. 279; Jenk. 
 Cent. Cas. 17. 
 
 LEX NON A REGE EST VIOLANDA. The 
 
 law is not to be violated by the king. Jenk. 
 Cent. Cas. 7. 
 
 LEX NON COGIT AD IMPOSSIBILIA. 
 The law requires nothing impossible. Co. 
 Litt 231b; Hob. 96; 1 Bouv. Inst, note 851. 
 
 LEX NON CURAT DE MINIMIS. The law 
 does not regard small matters. Hob. 88. 
 
 LEX NON DEFICIT IN JUSTITIA EXI- 
 benda. The law does not fail in showing 
 justice. Jenk. Cent. Cas. 31. 
 
 LEX NON EXACTE DEFINIT, SED AR- 
 bitrio boni viri permittit. The law does not 
 define exactly, but trusts in the judgment of 
 a good man. 9 Mass. 475. 
 
 LEX NON FAVET VOTIS DELICATO- 
 rum. The law favors not the wishes of the 
 dainty. 9 Coke, 58a. 
 
 LEX NON INTENDIT ALIQUID IMPOS- 
 
 sibile. The law intends not anything impos- 
 sible. 12 Coke, 89a. 
 
 LEX NON PATITUR FRACTIONES ET 
 divlsiones statuum. The law suffers no frac- 
 tions and divisions of estates. 1 Coke, 87; 
 Branch, Princ. 
 
 LEX NON PRAECIPIT INUTILIA, QUIA 
 
 inutilis labor stultus. The law commands 
 not useless things, because useless labor is 
 foolish. Co. Litt. 137; 5 Coke, 89a. 
 
 LEX NON REQUIRIT VERIFICARE 
 quod apparet curiae. The law does not re- 
 quire that to be proved which is apparent to 
 the court. 9 Coke, 54. 
 
 LEX ORDINANDI. The same as lex fori 
 (q. V.) 
 
 LEX PAPIA POPPAEA. In Roman law. 
 The Papian Poppaean law; a law proposed 
 by the consuls Papius and Poppaeus at the 
 desire of Augustus, A. U. 762, enlarging the 
 lex Praetoria (q. v.) Inst. 3. 8. 2; Halifax, 
 Anal. bk. 2, c. 10. 
 
 LEX PLUS LAUDATUR QUANDO RA- 
 tione probatur. The law is the more praised 
 when it is consonant to reason. 3 Term R. 
 146; 7 Term R. 252; 7 Adol. & B. 657; Broom, 
 Leg. Max. (3d London Ed.) 151. 
 
 LEX POSTERIOR DEROGAT PRIORI. A 
 
 prior statute shall give place to a later. 
 Mackeld. Civ. Law, 5; Broom, Leg. Max. (3d 
 London Ed.) 27. 
 
 LEX PRAETORIA. In Roman law. The 
 Praetorian law; a law by which every f reed- 
 man who made a will was commanded to 
 leave a moiety to his patron. Inst. 3. 8. 1. 
 
 L. C. B. Gilbert has applied the term to 
 the rules that govern in a court of equity. 
 Gilb. Ch. pt. 2. 
 
 LEX PROSPICIT, NON RESPICIT. The 
 
 law looks forward, not backward. Jenk. 
 Cent. Cas. 284. See "Retrospective Law." 
 
 LEX PUN IT MENDACIUM. The law pun- 
 ishes falsehood. Jenk. Cent. Cas. 15. 
 
 LEX REG I A. A law by which it was 
 claimed that the legislative power was trans- 
 ferred by the Roman people to the emperor. 
 Inst. 1. 2. 6. Whether such a law was passed 
 has been doubted. 1 Kent, Comm. 544; 
 Tayl. Civ. Law, 236, note. 
 
 LEX REI SITAE (Lat.) The law of the 
 
 place of situation of the thing. 
 
 LEX REJICIT SUPERFLUA, PUGNAN- 
 
 tia, incongrua. The law rejects superfluous, 
 contradictory, and incongruous things. Jenk. 
 Cent. Cas. 133, 140, 176. 
 
 LEX REPROBAT MORAM. The law dis- 
 approves of delay. 
 
 LEX RESPICIT AEQUITATEM. Law re- 
 gards equity. See 14 Q. B. 504, 511, 512. 
 
 LEX RHODIA. The Rhodlan law, particu- 
 
LEX SACRAMENTALIS 
 
 (548) 
 
 LIABILITY 
 
 larly the fragment of it on the subject of 
 jettison {de jactu), preserved In the Pan- 
 dects. Dig. 14. 2. 1; 3 Kent, Comm. 232, 233. 
 
 LEX SACRAMENTALIS. Purgation by 
 oath. Leg. H. 1. i 
 
 LEX SALICA. The Salic law; the law of 
 the Salian Franks, a people of Germany who 
 settled in Gaul in the fifth century. It is 
 the oldest of the barbarian codes, being said 
 to have been framed about A. D. 422. The 
 most celebrated provision of this code, one 
 excluding females from inheritance, is often 
 referred to alone as the Salic law. 
 
 According to Spelman, many provisions of 
 the laws of Henry I. were taken from this 
 source. ■ 
 
 LEX SCRIPTA SI CESSET, ID CUSTODI- 
 ri oportet quod morbus et consuetudlne in- 
 ductum est; et, si qua in re hoc defecerit, 
 tunc id quod proximum et consequens ei est; 
 et, sj id non appareat, tunc jus quo urbs 
 Romana utitur servari oportet. If the writ- 
 ten law be silent, that which is drawn from 
 manners and custom ought to be observed; 
 and, if that is in any manner defective, then 
 that which is next and analogous to it; and, 
 if that does not appear, then the law which 
 Rome uses should be followed. 7 Coke, 19. 
 This maxim of Lord Coke is so far followed 
 at the present day that, in cases where there 
 is no precedent of the English courts, the 
 civil law is always heard with respect, and 
 often, though not necessarily, followed. 
 Wharton. 
 
 LEX SEMPER DABIT REMEDIUM. The 
 law will always give a remedy. 3 Bouv. 
 Inst, note 2411; Bac. Abr. "Actions in Gen- 
 eral" (B) ; Branch, Princ; Broom, Leg. Max. 
 (3d London Ed.) 181; 12 Adol. & B. 266; 7 Q. 
 B. 451. 
 
 LEX SEMPER INTENDIT QUOD CON- 
 venit rationi. The law always intends what 
 is agreeable to reason. Co. Litt. 78. 
 
 LEX SITUS. Modern law Latin for "the 
 law of the place where property is situated." 
 The general rule is that lands and other 
 immovables are governed by the lex situs, i. 
 e., by the law of the country in which they 
 are situated. Westl. Priv. Int. Law, 62. 
 
 LEX SPECTAT NATURAE ORDINEM. 
 The law regards the order of nature. Co. 
 Litt. 197; Broom, Leg. Max. (3d London Ed.) 
 231. 
 
 LEXSUCCURRIT IGNORANTI. The laws 
 succor the ignorant. Jenk. Cent. Cas. 15. 
 
 LEX SUCCURRIT MINORIBUS. The law 
 assists minors. Jenk. Cent. Cas. 57. 
 
 LEX TALIONIS (Lat.) The law of retalia- 
 tion, an example of which is given in the 
 law of Moses, — an eye for an eye, a tooth for 
 a tooth, etc. 
 
 Amicable retaliation includes those acts of 
 retaliation which correspond to the acts of 
 the other nation under similar circumstan- 
 ces. 
 
 Jurists and writers on international law 
 are divided as to the right of one nation pun- 
 ishing with death, by way of retaliation, the 
 citizens or subjects of another nation. In 
 the United States, no example of such bar- 
 barity has ever been witnessed; but prison- 
 ers have been kept in close confinement in 
 retaliation for the same conduct towards 
 American prisoners. See Rutherforth, Inst, 
 bk. 2, c. 9; Mart. Law Nat. bk. 8, c. 1, § 3, 
 note; 1 Kent, Comm. 93; Wheaton, Int. Law 
 pt. 4, c. 1, § 1. 
 
 Vindictive retaliation includes those acts 
 which amount to a war. 
 
 LEX TERRAE (Lat.) The law of the land. 
 See "Due Process of Law." 
 
 LEX UNO ORE OMNES ALLOQUITUR. 
 
 The law speaks to all with one mouth. 2 
 Inst. 184. 
 
 LEX VIGILANTIBUS, NON DORMIENTI- 
 bus subvenit. Law assists the wakeful, not 
 the sleeping. 1 Story, Cent. (4th Ed.) 502. 
 
 LEX WALLENSICA. The Welsh law; the 
 law of Wales. Blount. 
 
 LEX WISIGOTHORUM. The law of the 
 
 Visigoths, or Western Goths, who settled in 
 Spain; first reduced to writing A. D. 466. 
 They were made by Buric, amended by 
 Chindaswindus and Recaswindus. A revision 
 of these laws was made by Egigas. Spel- 
 man. 
 
 LEY (Old Fr. ; a corruption of loi). Law. 
 For example, Termes de la Ley, — Terms of 
 the Law. In another, and an old technical, 
 sense, ley signifies an oath, or the oath with 
 compurgators; as, il tend sa ley aiu pleyn- 
 tiffe. Britt. c. 27. 
 
 LEY CIVILE. In old English law. The 
 civil or Roman law. Y. B. H. 8 Edw. III. 
 42. Otherwise termed ley escripte, the writ- 
 ten law. Y. B. 10 Edw. III. 24. 
 
 LEY GAGER. Wager of law; an offer to 
 make an oath denying the cause of action of 
 the plaintiff, confirmed by compurgators (?. 
 v.), which oath used to be allowed in cer- 
 tain cases. When it was accomplished, it 
 was called the "doing of the law," fesans de 
 ley. Termes de la Ley, "Ley;" 2 Barn. & C. 
 538; 3 Bos. & P. 297; 3 & 4 Wm. IV. c. 42, § 
 16. 
 
 LEYES DE ESTILLO. In Spanish law. 
 Laws of the age; a book of explanations of 
 the Fuero Real, to the number of two hun- 
 dred and fifty-two, formed under the author- 
 ity of Alonzo X. and his son Sancho, and of 
 Fernando el Emplazado, and published at 
 the end of the thirteenth century or begin- 
 ning of the fourteenth, and some of them 
 are inserted in the New Recopilacion. Seel 
 White, New Recop. p. 354. 
 
 LEZE MAJESTY. An offense against sov- 
 ereign power; treason; rebellion. 
 
 LIABILITY. Responsibility; the state of 
 one who is bound in law and justice to do 
 
LIBEL 
 
 (549) 
 
 LIBER ASSISARUM 
 
 something which may be enforced by action. 
 This liability may arise from contracts ei- 
 ther express or implied, or in consequence of 
 torts committed. 
 
 LIBEL. 
 
 In Practice. A written statement by a 
 
 plaintiff, in ecclesiastical and admiralty 
 courts, of his cause of action, and of the re- 
 lief he seeks to obtain in a suit. Law, Ecc. 
 Law, 17; AylifEe, Par. 346; Shelf. Mar. & 
 Div. 506; Dunl. Adm. Prac. 111. It performs 
 substantially the same oflBce in the ecclesi- 
 astical courts, and those courts which follow 
 the practice of the ecclesiastical courts, as 
 the bill in chancery and the declaration in 
 common-law practice. 
 
 In Torts. That which is written or 
 
 printed, and published, calculated to injure 
 the character of another by bringing him in- 
 to ridicule, hatred, or contempt. Parke, J., 
 15 Mees. & W. 344. 
 
 Everything, written or printed, which re- 
 flects on the character of another, and is 
 published without lawful justification or ex- 
 cuse, is a libel, whatever the intention may 
 have been. 15 Mees. & W. 437. 
 
 A malicious defamation, expressed either 
 in printing or writing, or by signs or pic- 
 tures, and tending either to blacken the mem- 
 ory of one who is dead, or the reputation of 
 one who is alive, and expose him to public 
 hatred, contempt, or ridicule. 1 Hawk. P. C. 
 bk. 1, c. 73, § 1; 4 Mass. 168; 2 Pick. (Mass:) 
 115; 9 Johns. (N. Y.) 214; 1 Denio (N. Y.) 
 347; 24 Wend. (N. Y.) 434; 9 Barn. & C. 
 172; 4 Man. & R. 127; 2 Kent, Comm. 13. 
 
 It has been defined, perhaps with more 
 precision, to be a censorious or ridiculous 
 writing, picture, or sign made with a mali- 
 cious or mischievous intent towards govern- 
 ment, magistrates, or individuals. 3 Johns. 
 Cas. (N. Y.) 354; 9 Johns. (N. Y.) 215; 5 
 Bin. (Pa.) 340. 
 
 Any publication not oral, which exposes a 
 person to hatred, contempt, ridicule, or ob- 
 loquy, or tends to injure him in his business 
 or calling, impair his standing in society, or 
 cause him to be shunned or avoided by his 
 neighbors. Odgers, Libel & S. 22. 
 
 LIBEL OF ACCUSATION. In Scotch law. 
 The instrument which contains the charge 
 against a person accused of a crime. Libels 
 are of two kinds, namely, indictments and 
 criminal letters. 
 
 Every libel assumes the form of what is 
 termed, in logic, a "syllogism." It is first 
 stated that some particular kind of act is 
 criminal; as, that "theft is a crime of a 
 heinous nature, and severely punishable." 
 This proposition is termed the "major." It 
 is next stated that the person accused is 
 guilty of the crime so named, "actor, or art 
 and part." This, with the narrative of the 
 manner in which, and the time when, the 
 offense was committed, is called the "minor" 
 proposition of the libel. The "conclusion" is 
 that, all or part of the facts being proved, 
 or admitted by confession, the panel "ought 
 to be punished with the pains of the law, to 
 deter others from committing the like crime 
 
 in all time coming." 
 300, 301. 
 
 Burton, Pub. Laws, 
 
 LIBELLANT. The party who files a libel 
 in an ecclesiastical or admiralty case, cor- 
 responding to the plaintiff in actions in the 
 common-law courts. 
 
 LIBELLEE. A party against whom a libel 
 has been filed in procedings in an ecclesi- 
 astical court or in admiralty, corresponding 
 to the defendant in a common-law suit. 
 
 LIBELLUS (Lat.) 
 
 In Civil Law. A little book. lAbellus 
 
 supplex, a petition, especialy to emperor, all 
 petitions to whom must be in writing. L. 
 15, Dig. in jus voc. Libellum rescribere, to 
 mark on such petition the answer to It. L. 
 2, § 2, Dig. de jur. flsc. Libellum agere, to 
 assist or counsel the emperor in regard to 
 such petitions, L. 12, Dig. cle distr. pign.; 
 and one whose duty it is to do so is called 
 magister libellorum. There were also pro- 
 magistri. L. 1, Dig. de offic. praef. pract. 
 Libellus accusaioriu§, an information and ac- 
 cusation of a crime. L. 17, § 1, and L. 29, § 
 8, Dig. ad leg. Jul. de adult. Libellus divor- 
 tii, a writing of divorcement. L. 7, Dig. de 
 divort. et repud. Libellus rerum, an inven- 
 tory. Calv. Lex. Libellus or oratio consul- 
 toria, a message by which emperors laid 
 matters before senate. Calv. Lex.; Suet. 
 Caes. 56. 
 
 A writing in which is contained the names 
 of the plaintiff (actor) and defendant {re- 
 us), the thing sought, the right relied upon, 
 and name of the tribunal before which the 
 action is brought. Calv. Lex. 
 
 Libellus appellatorius, an appeal. Calv. 
 Lex.; L. 1, § ult.. Dig. ff. de appellat. 
 
 In English Law (sometimes called ?ife/- 
 
 lus conventionalis) . A bill. Bracton, fol. 
 112. 
 
 LIBELLUS CONVENTIONIS. In the civil 
 law. The statement of a plaintiff's claim in 
 a petition presented to the magistrate, who 
 directed an officer to deliver it to the de- 
 fendant. 
 
 LIBELLUS FAMOSUS (Lat.) A libel; a 
 defamatory writing. L. 15, Dig. de pnen. ; 
 Vocat. sub "famosus." It may be without 
 writing; as, by signs, pictures, etc. 5 Rep. 
 de famosis libellis. 
 
 LIBELOUS. Constituting a libel. 
 
 LIBER (Lat.) 
 
 In Civil Law. A book, whatever the 
 
 material of which it is made; a principal 
 subdivision of a literary work; thus, the 
 Pandects, or Digest of the Civil Law, is di- 
 vided into fifty books. L. 52, Dig. de legat. 
 
 In Civil and Old English Law. Free; 
 
 e. g., a free (liber) bull. Jacob. Exempt 
 from service or jurisdiction of another, e. g., 
 a free (liber) man. L. 3, Dig. de statu homi- 
 
 IIKIII. 
 
 LIBER ASSISARUM (Lat.) The book of 
 assigns or pleas of the crown; being the 
 fifth part of the Year Books. 
 
LIBER BANCUS 
 
 (SSO) 
 
 LIBERTAS 
 
 LIBER BANCUS (Law Lat.) In old Eng- 
 lish law. Free bench. Bracton, fol. 97b. 
 
 LIBER ET LEGALIS HOMO (Lat.) A 
 free and lawful man; one worthy of being a 
 juryman. He must neither be infamous nor 
 a bondman. 3 Bl. Comm. 340, 362; Bracton, 
 fol. 14b; Fleta, lib. 6, c. 25, § 4; Id. lib. 4, c. 
 5, § 4. 
 
 LIBER FEUDORUM (Lat.) A code of the 
 feudal law, which was compiled by direction 
 of the emperor Frederick Barbarossa, and 
 published in Milan, in 1170. It was divided 
 into five books, of which the first, second, and 
 some fragments of the others still exist, and 
 are printed at the end of all the modern edi- 
 tions of the Corpus Juris Givilis. Giannone, 
 bk. 13, e. 3; Cruise, Dig. prel. diss. c. 1, 
 § 31. 
 
 LIBER HOMO (Lat.) A free man; a free- 
 man lawfully competent to act as juror. Ld. 
 Raym. 417; Keb. 563. 
 
 In London, a man can be a liier homo ei- 
 ther (1) by service, as having served his ap- 
 prenticeship; or (2) by birthright, being a 
 son of a liher homo; or (3) by redemption, 
 i. e., allowance of mayor and aldermen. 
 There was no intermediate state between 
 villein and liber homo. Fleta, lib. 4, c. 11, § 
 22. But a liher homo could be vassal of an- 
 other. Bracton, fol. 25. 
 
 In Old European Law. An allodial pro- 
 prietor, as opposed to a feudatory. Calv. 
 Lex. "Alode." 
 
 LIBER JUDICIARUM (Lat.) The book of 
 judgment, or doom book. The Saxon Dom- 
 boc. Conjectured to be a book of statutes of 
 ancient Saxon kings. See Jacob, "Domboc;" 
 1 Bl. Comm. 64. 
 
 LIBER NIGER (Lat.) Black book. A 
 name given to several ancient records. See 
 "Black Book of the Bxchequer." 
 
 LIBER NIGER SCACCARll (Law Lat.) 
 The Black Book of the Exchequer, attributed 
 to Gervase of Tillbury. 1 Reeve, Hist. Eng. 
 Law, 220, note. 
 
 LIBER RUBER SCACCARll (Law Lat.) 
 The Red Book of the Exchequer. 1 Reeve, 
 Hist. Eng. Law, 220, note. See "Red Book 
 of the Exchequer." 
 
 LIBERA BATELLA (Law Lat.) In old 
 records. A free boat; the right of having a 
 boat to fish in a certain water; a species of 
 free fishery. Plac. Itin. apud Cestriam, 14 
 Hen. VII. 
 
 LIBERA ELEEMOSYNA (Law Lat.) In old 
 English law. Free alms; frankalmoign. 
 Bracton, fol. 27b. 
 
 LIBERA FALDA (Law Lat.) In old Eng- 
 lish law. Frank fold; free fold; free fol dage. 
 1 Leon. 11. 
 
 LIBERA LEX (Law Lat.) In old English 
 law. Frank law; free law; otherwise called 
 lex terrae (q. v.) Called libera, according to 
 Lord Coke, to distinguish men who enjoy it. 
 and whose best and freest birthright it is, 
 
 from them that by their offenses have lost it. 
 Co. Litt. 94b. Amittere liberam legem, to lose 
 one's frank law. 3 Bl. Comm. 340; 4 Bl. 
 Comm. 136; Crabb, Hist. Eng. Law, 318, 319; 
 Co. Litt. 294b; Fleta, lib. 4, c. 8, § 2. 
 
 LIBERA PISCARIA (Law Lat.) In old 
 English law. A free fishery (g. i'.) Co. Litt. 
 122a. 
 
 LIBERA WARRENA (Law Lat.) In old 
 English law. Free warren (q. v.) 
 
 LIBERAM LEGEM AMITTERE. To lose 
 one's free law (called the villainous judg- 
 ment) to become discredited or disabled as 
 juror and witness, to forfeit goods and chat- 
 tels and lands for life, to have those lands 
 wasted, houses razed, trees rooted up, and 
 one's body committed to prison. It was an- 
 ciently pronounced against conspirators, but 
 is now disused, the punishment substituted 
 being fine and imprisonment. Hawk. P. C. 
 61, c. 72, § 9; 3 Inst. 221. 
 
 LIBERARE. 
 
 In the Civil Law. To free or set free; 
 
 to liberate; to give one his liberty. Calv. 
 Lex. 
 
 In Old English Law. To deliver, trans- 
 fer, or hand over. Applied to writs, panels 
 of jurors, etc. Bracton, fols. 116, 176b. 
 
 LIBERATA PECUNIA NON LIBERAT OF- 
 ferentem. Money being restored does not 
 set free the party offering. Co. Litt. 207. 
 
 LIBERATE (Lat.) In English practice. A 
 writ which issues on lands, tenements, and 
 chattels, being returned under an extent on 
 a statute staple, commanding the sheriff to 
 deliver them to the plaintiff, by the extent 
 and appraisement mentioned in the writ of 
 extent, and in the sheriff's return thereto. 
 See Comyn, Dig. "Statute Staple" (D 6). 
 
 LIBERATIO. 
 
 In Old English Law. Livery; money 
 
 paid for the delivery or use of a thing. 
 
 In Old Scotch Law. Livery; a fee 
 
 given to a servant or ofiicer. Skene de Verb. 
 Sign. 
 
 Money, meat, drink, clothes, etc., yearly 
 given and delivered by the lord to his domes- 
 tic servants. Blount. 
 
 LIBERATION. In civil law. The extin- 
 guishment of a contract, by which he who 
 was bound becomes free or liberated. Wolff. 
 Dr. Nat. § 749. Synonymous with "pay- 
 ment." Dig. 50. 16. 47. 
 
 LIBERI. 
 
 In Saxon Law< Freemen; the posses- 
 sors of allodial lands. 1 Reeve, Hist. Eng. 
 Law, 5. 
 
 In the Civil Law. Children. The term 
 
 included "'grandchildren." 
 
 LIBERI CHASEA (or CHACIA) (Law 
 Lat.) In old English law. A free chase. 
 Reg. Jud. 37; Fleta, lib. 2, c. 41, § 51. 
 
 LIBERTAS. Liberty; freedom; a privi- 
 lege; a franchise. 
 
LIBERTAS ECCLESIASTICA 
 
 (SSI) 
 
 LIBERTY 
 
 LIBERTAS ECCLESIASTICA. Churchlil)- 
 erty, or ecclesiastical immunity. 
 
 LIBERTAS EST NATURALIS FACULTAS 
 ejus quod cuique facere libet, nisi quod de 
 jure aut vi prohibetur. Liberty is the nat- 
 ural power of doing whatever one pleases, 
 except that which is restrained by law or 
 force. Co. Litt. 116. 
 
 LIBERTAS INAESTIMABILIS RES EST. 
 
 Liberty is an inestimable good. Dig. 50. 17. 
 106; Fleta, lib. 2, c. 51, § 13. 
 
 LIBERTAS NON RECIPIT AESTIMA- 
 tionem. Freedom does not admit of va,lua- 
 tion. Bracton, 14. 
 
 LIBERTAS OMNIBUS REBUS FAVORA- 
 bilior est. Liberty is more favored than all 
 things. Dig. 50. 17. 122. 
 
 LIBERTAS REGALES AD CORONAM 
 spectantes ex concesslone regum a corona 
 exierunt. Royal franchises relating to the 
 crown have emanated from the crown by 
 grant of kings. 2 Inst. 496. 
 
 LIBERTATIBUS ALLOCANDIS. A writ 
 lying for a citizen or burgess, impleaded 
 contrary to his liberty, to have his privilege 
 allowed. Reg. Orig. 262. 
 
 LIBERTATIBUS EXIGENDIS IN ITINE- 
 
 re. An ancient writ, whereby the king com- 
 manded the justices in eyre to admit of an 
 attorney for the defense of another's lib- 
 erty. Reg. Orig. 19. 
 
 LIBERTI, or LIBERTINI. lu Roman law. 
 The condition of those who, having been 
 slaves, had been made free. 1 Brown, Civ. 
 Law, 99. 
 
 There is some distinction between these 
 words. By libertus was understood the freed- 
 man when considered in relation to his pa- 
 tron, who had bestowed liberty upon him; 
 and he was called libertinus when considered 
 in relation to the state he occupied in so- 
 ciety subsequent to his manumission. Lee. 
 Dr. Civ. § 93. 
 
 LIBERTICIDE. A destroyer of liberty. 
 
 LIBERTIES. Privileged districts exempt 
 from the sheriff's jurisdiction. 
 
 LIBERTINUM INGRATUM LEGES CIV- 
 iles In pristinam servitutem redigunt; sed 
 leges Angliae seme! manumissum semper 
 liberum judicant. The civil laws reduce an 
 ungrateful freedman to his original slavery; 
 but the laws of England regard a man once 
 manumitted as ever after free. Co. Litt. 137. 
 
 LIBERTY (Lat. lihei; free; Hheitaa. free- 
 dom, liberty). Freedom from restraint; the 
 faculty of willing, and the power of doing 
 what has been willed, without influence from 
 without. 
 
 A privilege held by grant or prescription, 
 by which some men enjoy greater privileges 
 than ordinary subjects. 
 
 , A territory with some extraordinary privi- 
 lege. 
 
 A part of a town or city; as, the Northern 
 Liberties of Philadelphia. See "Faubourg." 
 
 Civil liberty is the greatest amount of ab- 
 solute liberty which can, in the nature of 
 things, be equally possessed by every citizen 
 in a state. 
 
 The term is frequently used to denote the 
 amount of absolute liberty which is actually 
 enjoyed by the various citizens under the 
 government and laws of the state as admin- 
 istered. 1 Bl. Comm. 125. 
 
 The fullest political liberty furnishes the 
 best possible guaranty for civil liberty. 
 
 Lieber defines civil liberty as guarantied 
 protection against interference with the in- 
 terests and rights held dear and important 
 by large classes of civilized men, or by all 
 the members of a state, together with an 
 effectual share in the making and adminis- 
 tration of the laws, as the best apparatus to 
 secure that protection, including Black- 
 stone's divisions of civil and political under 
 this head. 
 
 Natural liberty is the right which nature 
 gives to all mankind of disposing of their 
 persons and property after the manner they 
 judge most consonant to their happiness, on 
 condition of their acting within the limits 
 of the law of nature, and so as not to inter- 
 fere with an equal exercise of the same 
 rights by other men. Burlam. Nat. Law, c. 
 3, § 15; 1 Bl. Comm. 125. It is called by 
 Lieber "social" liberty, and is defined as the 
 protection of unrestrained action in as high 
 a degree as the same claim of protection of 
 each individual admits of. 
 
 Personal liberty consists in the power of 
 locomotion, of changing situation, or remov- 
 ing one's person to whatever place one's in- 
 clination may direct, without imprisonment 
 or restraint, unless by due course of law. 1 
 Bl. Comm. 134. 
 
 Political liberty is an effectual share in the 
 making and administration of the laws. Lie- 
 ber, Civ. Lib. 
 
 Liberty, in its widest sense, means the 
 faculty of willing, and the power of doing 
 what has been willed, without influence from 
 without. It means self-determination, unre- 
 strainedness of action. Thus defined, one 
 being only can be absolutely free, namely, 
 God. So soon as we apply the word " ihev ' 
 to spheres of human action, the term re- 
 ceives a relative meaning, because the power 
 of man is limited; he is subject to constant 
 influences from without. If the idea of un- 
 restrainedness of action is appliVil to 
 social state of man, it receives a limitation 
 still greater, since the equal claims of unre- 
 strained action of all necessarily involves 
 the idea of protection against interference 
 by others. We thus oome to the definition, 
 that liberty of social man consists in the 
 protection of unrestrained action in as high 
 a degree as the same claim of protection of 
 each individual admits of, or in the most 
 eflicient protection of his rights, claims, in- 
 terests, as man or citizen, or of his human- 
 ity, manifested as a social being. See 
 "Right." The word "liberty," applied to 
 men in their political state, may be viewed 
 with reference to the state as a whole, and 
 
LIBERTY OF THE PRESS 
 
 (552) 
 
 LICENCIADO 
 
 in this case means the independence of the 
 state, of other states; or it may have refer- 
 ence to the relation of the citizen to the 
 government, in which case it is called "po- 
 litical" or "civil" liberty; or it may have 
 reference to the status of a man as a polit- 
 ical being, contradistinguished from him 
 who is not considered master over his body, 
 will, or labor, — the slave. This is called 
 "personal" liberty, which, as a matter of 
 course, includes freedom from prison. 
 
 LIBERTY OF THE PRESS. The right to 
 print and publish the truth, from good mo- 
 tives and for justifiable ends. 3 Johns. Gas. 
 (N. Y.) 394. The right to print without 
 previous license or restraint, subject to the 
 consequences of law. 1 Cow. (N. Y.) 628; 
 13 W. Va. 182. 
 
 LIBERTY OF THE RULES. A privilege 
 to go out of the Fleet and Marshalsea pris- 
 ons within certain limits, and there reside. 
 Abolished by 5 & 6 Vict. c. 22. 
 
 LIBERTY TO HOLD PLEAS. The liberty 
 of having a court of one's own. Thus, cer- 
 tain lords had the privilege of holding pleas 
 within their own manors. 
 
 LIBERUM CORPUS AESTIMATIONEM 
 non recipit. The body of a freeman does not 
 admit of valuation. Dig. 9. 3. 7. 
 
 LIBERUM EST CUIQUE APUD SE EX- 
 plorare an expediat sib! consilium. Every 
 one is free to ascertain for himself whether 
 a recommendation is advantageous to his 
 interests. 6 Johns. (N. Y.) 181, 184. 
 
 LIBERUIVI MARITAGIUIVl (Lat.) In old 
 English law. Frank marriage (q. v.) 2 Bl. 
 Comm. 115; Litt. § 17; Bracton, fol. 21. 
 
 LIBERUIVI SERVITIUM. Free service; 
 service of a warlike sort by a feudatory ten- 
 ant; sometimes called servitium liberum ar- 
 morum. Somn. Gavelkind, p. 56; Jacob; 4 
 Coke, 9. 
 
 Service not unbecoming character of free- 
 men and soldiers to perform; as, to serve un- 
 der the lord in his wars, to pay a sum of 
 money, and the like. 2 Bl. Comm. 60. The 
 tenure of free service does not make a vil- 
 lein a free man, unless homage or manumis- 
 sion precede, any more than a tenure by vil- 
 lein services makes a freeman a villein. Brac- 
 ton, fol. 24. 
 
 LIBERUM SOCAGIUM. In old English 
 law. Free socage. Bracton, fol. 207; 2 Bl. 
 Comm. 61, 62. 
 
 LIBERUM TENEMENTUM. 
 
 In Real Law. Freehold; frank tene- 
 ment. 2 Bouv. Inst, note 1690; 1 Washb. 
 Real Prop. 46. 
 
 In Pleading. A plea in justification by 
 
 the defendant in an action of trespass, by 
 which he claims that he is the owner of the 
 close described in the declaration, or that it 
 is the freehold of some third person, by 
 whose command he entered. 2 Salk. 453; 7 
 Term R. 355; 1 Wm. Saund. 299b, note. 
 
 It has the effect of compelling the plain- 
 tiff to a new assignment, setting out the 
 abuttals where he has the locus in quo only 
 generally in his declaration (11 East, 51,72; 
 16 East, 343; 1 Barn. & G. 489); or to set 
 forth tenancy in case he claims as tenant 
 of the defendant, or the person ordering the 
 trespass (1 Saund. 299b). It admits posses- 
 sion by the plaintiff, and the fact of the 
 commission of a trespass as charged. 2 Mc- 
 Gord (S: C.) 226. 
 
 LIBLAC. In Saxon law. Witchcraft, par- 
 ticularly that kind which consisted in the 
 compounding and administering of drugs 
 and philters. 
 
 LIBLACUM. In Saxon law. Bewitching 
 any person; also a barbarous sacrifice. 
 
 LIBORUM APPELLATIONE CONTINEN- 
 tur omnia voiumina, sive in charta, sive in 
 membrana sint, sive in quavis alia materia. 
 
 Under the name of books are contained all 
 volumes, whether upon paper, or parchment, 
 or any other material. Dig. 32. 52. pr. et per 
 tot. 
 
 LIBRA ARSA (Law Lat.) In old English 
 law. A pound burned; that is, melted, or 
 assayed by melting, to test its purity. lAbrae 
 arsae et pensatae, pounds burned and weigh- 
 ed. A frequent expression in Domesday 
 Book, to denote the purer coin in which 
 rents were paid. Spelman; Gowell. 
 
 LIBRA NUMERATA (Law Lat.) In old 
 English law. A pound counted; that is, 
 paid or reckoned by tale (ad numerum), in- 
 stead of being weighed. Spelman. 
 
 LIBRA PENSA (or PENSATA) (Law Lat.) 
 In ;old English law. A pound weighed, or 
 tried by weight. Spelman. See "Libra Arsa." 
 
 LIBRARIUS (Lat.) In the Roman law. A 
 writer or amanuensis; a copyist. Dig. 50. 
 17. 92. See Calv. Lex. 
 
 LIBRATA (Law Lat. from libra, a pound). , 
 In old English law. A quantity of land yield- 
 ing a pound rent per annum; a pound land. 
 Bracton, fol. 16; Reg. Orig. lb, 94; Fleta, Ub. 
 5, c. 5, 41; Gowell, voc. "Fardihgdeal." 
 
 LIBRIPENS (Lat.) In the Roman law. A 
 weigher, or balance holder; the person who 
 held a brazen balance in the ceremony of 
 emancipation per aes et librani. Inst. 2. 10. 1; 
 Adam, Rom. Ant. 52. 
 
 LICENCIADO. In Spanish law. Lawyer 
 or advocate. By a decree of the Spanish 
 government of 6th November, 1843, it was 
 declared that all persons who have obtained 
 diplomas of "Licentiates in Jurisprudence" 
 from any of the literary universities of 
 Spain are entitled to practice in all the 
 courts of Spain without first obtaining per- 
 mission by the tribunals of justice. 
 
 Their title is furnished them by the min- 
 ister of the interior, to whom the universi- 
 ties forward a list of those whom they think 
 qualified. 
 
 This law does not apply to those already 
 
LICENSE 
 
 (553) 
 
 LICET SAEPIUS, ETC. 
 
 lioessed, who may, however, obtain the ben- 
 efit of it, upon surrendering their license 
 and complying with certain other formali- 
 ties prescribed by the law. 
 
 LICENSE (Lat. lic&re, to permit). 
 
 By Government. An authorization by 
 
 the government to an individual to do cer- 
 tain acts, or carry on a certain business. 
 Thus, marriage licenses, saloon keepers' li- 
 censes, pilots' licenses, etc. 
 
 In Contracts. A permission; a right 
 
 given by some competent authority to do an 
 act which, without such authority, would be 
 illegal. 
 
 An authority to do a particular act or se- 
 ries of acts on another's land without pos- 
 sessing any estate therein. 11 Mass. 533; 
 4 Sandf. Ch. (N. Y.) 72; 1 Washb. Real 
 Prop. 148. 
 
 The written evidence of the grant of such 
 right. 
 
 An executed license exists where the li- 
 censed act has been done. 
 
 An executory license exists wiipre the li- 
 censed act has not been performed. 
 
 An express license is one which is granted 
 in direct terms. 
 
 An implied license is one which is pre- 
 sumed to have been given from the acts of 
 the party authorized to give it. 
 
 It is distinguished from an easement, 
 which implies an interest in the land to be 
 affected, and a lease, or right to take the 
 profits of land. It may be, however, and 
 often is, coupled with a grant of some inter- 
 est in the land itself, or right to take the 
 profits. 1 Washb. Real Prop. 148. 
 
 A license may be by specialty (2 Pars. 
 Cont. 22) ; by parol (13 Mees. & W. 838; 4 
 Maule & S. 562; 7 Barb. [N. Y.] 4; 1 Washb. 
 Real Prop. 148) ; or by implication from cir- 
 cumstances, as opening a door in response 
 to a knock (Hob. 62; 2 Greenl. Ev. § 427). 
 
 In International Law. Permission 
 
 granted by a belligerent state to its own 
 subjects, or to the subjects of the enemy, to 
 carry on a trade interdicted by war. Wheat- 
 on, Int. Law, 475. 
 
 In Patent Law. A right granted by a 
 
 patentee to another to use or vend the pat- 
 ented article. 
 
 In Pleading. A plea of justification to 
 
 an action of trespass, that the defendant was 
 authorized by the owner of the freehold to 
 commit the trespass complained of. 
 
 A license must be specially pleaded to an 
 action of trespass (2 Term R. 166), but may 
 be given in evidence in an action on the 
 case (2 Mod. 6; 8 Bast, 308). 
 
 LICENSEE. A person to whom a license 
 has been granted. 
 
 LICENSOR. The grantor of a license. 
 
 LICENTIA CONCORDANDI (Lat. leave to 
 agree). One of the formal steps in the levy- 
 ing a fine. When an action is brought 
 for the purpose of levying a fine, the defend- 
 ant, knowing himself to be in the wrong, is 
 supposed to make overtures of accommoda- 
 
 tion to the plaintiff, who accepts them, but, 
 having given pledges to prosecute his suit, 
 applies to the court, upon the return of the 
 writ of covenant, for leave to make the mat- 
 ter up. This, which is readily granted, is 
 called the Ucentia concordandi. 5 Coke, 39; 
 Cruise, Dig. tit. 35, c. 2, 22. 
 
 LICENTIA LOQUENDI. Imparlance. 
 
 LICENTIA SURGENDI. In old English 
 law. Liberty of rising; a liberty or space 
 of time given by the court to a tenant, who 
 is essoined, de malo lecti. In a real action, 
 to arise out of his bed. Also, the writ there- 
 upon. If the demandant can show that the 
 tenant was seen abroad before leave of court, 
 and before being viewed by the knights ap- 
 pointed by the court for that purpose, such 
 tenant shall be taken to be deceitfully es- 
 soined, and to have made default. Bracton, 
 lib. 5; Fleta, lib. 6, c. 10. 
 
 LICENTIA TRANSFRETANDI. A writ or 
 warrant directed to keeper of port of Dover, 
 or other seaport, commanding him to let the 
 person who has this license of the king pass 
 over sea. Reg. Grig. 93. 
 
 LICENTIATE. One who has license to 
 practice any art or faculty. 
 
 LICENTIOUSNESS. The doing what one 
 pleases, without regard to the rights of oth- 
 ers. It differs from liberty in this, that the 
 latter is restrained by natural or positive 
 law, and consists in doing whatever we 
 please not inconsistent with the rights of 
 others, whereas the former does not respect 
 those rights. Wolff. Inst. § 84. 
 
 In a narrower sense, lewdness or lascivl- 
 ousness. 
 
 LICERE, or LICERI (Lat.) In Roman law. 
 To offer a price for a thing; to bid for it. 
 
 LICET (Lat.) It is lawful; not forbidden 
 by law. 
 
 Id omne licitum est, quod non est tegibvs 
 prohibitum, quamohrem, quod, lege permit- 
 finte, fit, poenani non merctur. Licere divi- 
 mus quod legibus, moriius. institutisque 
 conceditur. Cic. Philip. 13; L. 42, D. ft. de 
 ritu nupt. Est aliquid quod non oporteat; 
 tametsi licet; quicguod vero non licet cehe 
 non oportet. L. verbum oportere. ff. de verb. 
 et rer. sign. 
 
 Although. Calv. Lex. An averment that 
 "although such a thing is done or not done" 
 is not implicative of the doing or not do- 
 ing, but a direct averment of it. Plowd. 127. 
 
 LICET DISPOSITIO DE INTERESSE FU- 
 turo sit inutilis tamen potest fieri declaratio 
 praecedens quae sortiatur effectum inter- 
 veniente novo actu. Although the grant of 
 a future interest be inoperative, yet a dec- 
 laration precedent may be made which may 
 take effect, provided a new act intervene. 
 Bac. Max. reg. 14; Broom, Leg. Max. (3d 
 London Ed.) 600. 
 
 LICET SAEPIUS REQUISITUS (Lat. al- 
 
LICITA BENE, ETC. 
 
 (SS4) 
 
 LIEN 
 
 though often requested). In pleading. A 
 formal allegation in a declaration that the 
 defendant has been often requested to per- 
 form the acts the nonperformance of which 
 is complained of. 
 
 It is usually alleged in the declaration that 
 the defendant, licet saepius requisitus, etc., 
 he did not perform the contract the violation 
 of which is the foundation of the action. 
 This allegation is generally suflBcient when 
 a request is not parcel of the contract. In- 
 deed, In such cases it is unnecessary even to 
 lay a general request; for the bringing o£ 
 the suit Is itself a sufficient request. 1 
 Saund. 33, note 2; 2 Saund. 118, note 3; 
 Plowd. 128; 1 Wlls. 33; 2 H. Bl. 131; 1 Johns. 
 Cas. (N. Y.) 99, 319; 7 Johns. (N. Y.) 462; 
 18 Johns. (N. Y.) 485; 3 Maule & S. 150. See 
 "Demand." 
 
 LICITA BENE MISCENTUR, FORMULA 
 nisi juris obstet. Lawful acts may well he 
 fused into one, unless some form of law for- 
 bid; e. g., two having a nguL lo convej', c^a 
 a moiety, may unite and convey the whole. 
 Bac. Max. 94; Crabb, Real Prop. 179. 
 
 LICITACION. In Spanish law. The sale 
 made at public auction by coproprietors, or 
 coheirs, of their joini proper. y »«uitn nj 
 susceptible of being advantageously divided 
 in kind. 
 
 LICITARE (Lat.) In Roman law. To of- 
 fer a price at a sale; to bid; to bid often; 
 to make several bids, one above another. 
 Calv. Lex. 
 
 LICITATION. In civil law. An offering 
 for sale to the highest bidder, or to him who 
 will give most for a thing. An act by which 
 coheirs or other coproprietors of a thing in 
 common and undivided between them put it 
 to bid between them, to be adjudged and to 
 belong to the highest and last bidder, upon 
 condition that he pay to each of his copro- 
 prietors a part in the price equal to the un- 
 divided part which each of the said copro- 
 prietors had in the estate licited, before the 
 adjudication. Both. Cont. Sale, notes 516, 
 638. 
 
 LICITATOR. In Roman law. A bidder at 
 a sale. 
 
 LIDFORD LAW. See "Lynch Law." 
 
 LIEGE (from liga, a bond, or litis, a man 
 wholly at command of his lord). In feudal 
 law. Bound by a feudal tenure; bound in 
 allegiance to the lord paramount, who owned 
 no superior. 
 
 The term was applied to the lord, or liege 
 lord, to whom allegiance was due, since he 
 was bound to protection and a just govern- 
 ment, and also to the feudatory, liegeman, 
 or subject bound to allegiance, for he was 
 bound to tribute and due subjection. 34 & 
 35 Hen. VIII. So lieges are the king's sub- 
 jects. St. 8 Hen. VI. c. 10; 14 Hen. VIII. c. 
 2. So in Scotland. Bell, Diet. But in an- 
 cient times private persons, as lords of 
 
 manors, had their lieges. Jacob; 1 Bl. 
 Comm. 367. 
 
 Liege, or Ugius, was used in old records 
 for full, pure, or perfect; e. g., Ugia potestas, 
 full and free power of disposal. Par. Ant. 
 280. Probably in this sense derived from 
 legitima. So in Scotland. See "Liege Pous- 
 tie." 
 
 LIEGE HOMAGE. Homage based on alle- 
 giance, as opposed to that which Implied 
 merely an acknowledgment of tenure. The 
 former was due to the sovereign alone, while 
 the latter was rendered to any superior lord 
 of whom lands were held. 1 Bl. Comm. 367. 
 
 LIEGE LORD. 
 
 lord. 
 
 A sovereign; a superior 
 
 LIEGE POUSTIE (legitima pofestas). In 
 Scotch law. That state of health which gives 
 a person full power to dispose of, mortis 
 causa, or otherwise, his heritable property. 
 Bell, Diet. 
 
 LIEGEMAN. 
 
 Cowell. 
 
 He that oweth allegiance. 
 
 LIEGER, or LEGER. 
 
 sador. 
 
 A resident ambas- 
 
 LIEGES, or LIEGE PEOPLE. Subjects. 
 
 LIEN. A hold or claim which one person 
 has upon the property of another as a se- 
 curity for some debt or charge. 
 
 In its original significance, it was the right 
 of one in possession of the personalty of an- 
 other to detain it until some claim was 
 satisfied by the owner, actual possession by 
 the lien claimant being essential. 62 Barb. 
 (N. Y.) 323; 26 Wend. (N. Y.) 467. 
 
 In modern usage, the term has been en- 
 larged, and may be defined as a charge Im- 
 posed on specific property, real or personal, 
 by which it is made security for the per- 
 formance of an act. 4 Cliff. (U. S.) 225. 
 
 In every case in which property, either 
 real or personal, is charged with the pay- 
 ment of a debt or duty, every such charge 
 may be denominated a lien on the prop 
 erty. It differs from an estate in or title 
 to the property, as it may be discharged 
 at any time by payment of the sum for 
 which the lien attaches. It differs from a 
 mortgage in the fact that a mortgage is 
 made and the property delivered, or other- 
 wise, for the express purpose of security; 
 while the lien attaches as Incidental to the 
 main purpose of the bailment, or, as in case 
 of a judgment, by mere act of the law, with- 
 out any act of the party. In this general 
 sense, the word is commonly used by English 
 and American law writers to include those 
 preferred or privileged claims given by stat- 
 ute or by admiralty law, and which seem to 
 have been adopted from the civil law, as well 
 as the security existing at common law, to 
 which the term more exactly applies. 
 
 Liens are divided, in respect to their ori- 
 gin and nature, into common law, civil law, 
 equitable, maritime, and statutory. 
 
 (1) Common-law liens. As distinguished 
 
LIEN 
 
 (S5S) 
 
 LIFE ESTATE 
 
 from tlie other classes, they consist in a mere 
 right to retain possession until the debt or 
 charge Is paid. 
 
 In the case of a factor, an apparent excep- 
 tion exists, as he Is allowed a lien on the 
 proceeds of goods sold, as well as on the 
 goods themselves. But this seems to result 
 from the relation of the parties, and the 
 purposes of the bailment; to effectuate 
 which, and at the same time give a security 
 to the factor, the law considers the posses- 
 sion, or right to possession, of the proceeds, 
 the same thing as the possession of the goods 
 themselves. 
 
 A particular lien is a right to retain the 
 property of another on account of labor em- 
 ployed or money expended on that specific 
 property. Whit. Liens, 9. 
 
 A general lien is a right to retain the 
 property of another on account of a general 
 balance due from the owner. 3 Bos. & P. 
 494. 
 
 (2) Civil-law liens. The civil law em- 
 braces, under the head of mortgages and 
 privilege, the peculiar securities which, in 
 the common and maritime law, and eq.uity, 
 are termed "liens." 
 
 In regard to privilege, Domat says: "We 
 do not reckon in the number of privileges 
 the preference which the creditor has on the 
 movables that have been given him in a 
 pawn, and which are in his custoUy. The 
 privilege of a creditor is the distinguishing 
 right which the nature of his credit gives 
 him, and which makes him to be preferred 
 before other creditors, even those who are 
 prior in time, and who have mortgages." 
 Domat, Civ. Law, pt. 1, lib. iii. tit. 1. § v. 
 
 These privileges are of two kinds: One 
 gives a preference on all the goods, without 
 any particular assignment on any one thing; 
 the other gives to the creditors their se- 
 curity on certain things, and not on the 
 other goods. 
 
 (3) Equitable liens. Such as exist in 
 equity, and of which courts of equity alone 
 take cognizance. 
 
 A lien is neither a jus in re nor a jus ad 
 rem. It is not property in the thing, nor 
 does it constitute a right of action for the 
 thing. It more properly constitutes a charge 
 upon the thing. In regard to these liens, it 
 may be generally stated that they arise from 
 constructive trusts. They are, therefore, 
 wholly independent of the possession of the 
 thing to which they are attached as an In- 
 cumbrance, and they can be enforced only 
 in courts of equity. Story, Bq. Jur. § 1217. 
 
 An equitable lien on a sale of realty is 
 very different from a lien at law, for It oper- 
 ates after the possession has been changed, 
 and is available by way of charge instead of 
 detainer. Adams, Eq. Jur. 127. 
 
 (4) Maritime liens. Maritime liens do 
 not include or require possession. The word 
 lien is used in maritime law, not in the 
 strict legal sense in which we understand it 
 in courts of common law, in which case there 
 could be no lien where there was no posses- 
 sion, actual or constructive; but to express, 
 as if by analogy, the nature of claims which 
 neither presuppose nor originate in posses- 
 
 sion. 22 Eng. Law & Eq. 62. See 15 Bost. 
 Law Rep. 555; 16 Bost. Law Rep. 1, 264; 17 
 Bost. Law Rep. 93, 421. A distinction is 
 made in the United States between qualified 
 maritime liens, which depend upon posses- 
 sion, and absolute maritime liens, which do 
 not require nor depend upon possession. 7 
 How. (U. S.) 729. 
 
 (5) Statutory liens. Under this head it is 
 convenient to consider some of those liens 
 which subsist at common law, but have been 
 extensively modified by statutory regula- 
 tions, as well as those which subsist entirely 
 by force of statutory regulations. 
 
 The principal liens of this class are judg- 
 ment liens, and liens of materialmen and 
 builders. 
 
 Liens, whether common law, equitable, or 
 statutory, are either conventional, i. e.. by 
 express agreement of the parties, or by oper- 
 ation of law, by legal Implication from the 
 acts of parties. 
 
 LIEN OF A COVENANT. The commence- 
 ment of a covenant stating the names of the 
 covenantors and covenantees, and the char- 
 acter of the covenant, whether joint or sev- 
 eral. 
 
 LIENOR. One who holds or owns a lien. 
 
 LIEU, LEU, LIU, or LYU (Law Fr.; from 
 Lat. Jocm). A place. Britt. c. 27. 
 
 LIEU CON US (Law Fr.) In old pleading. 
 A known place ; a place well known and gen- 
 erally taken notice of by those who dwell 
 about it, as a castle, a manor, etc. Whi- 
 shaw; 1 Ld. Raym. 259. "A liberty is in the 
 nature of a Tien cnnun." North, C. J., 2 Mod. 
 48. ' 
 
 LIEUTENANT. This word has now a nar- 
 rower meaning than it formerly had. Its 
 true meaning is a deputy, a substitute, from 
 the French lieu (place or post) and tenant 
 (holder). Among civil officers we have lieu- 
 tenant governors, who in certain cases per- 
 form the duties of governors, lieutenants of 
 police, etc. Among military men, "lieuten- 
 ant general" was formerly the title of a 
 commanding general, but now it signifies 
 the degree above major general. Lieuten- 
 ant colonel is the officer between the colonel 
 and the major. Lieutenant, simply, signi- 
 fies the officer next below a captain. In 
 the navy, a lieutenant is the second officer 
 next in command to the captain of a ship. 
 
 LIFE ANNUITY. An annual income to be 
 paid during the continuation of a particular 
 life. See "Annuity." 
 
 LIFE ASSURANCE. An insurance of a 
 life upon the payment of a premium. This 
 may be for the whole life, or for a limited 
 time. On the death of the person whose life 
 has been insured during the time for which 
 it is insured, the insurer is bound to pay to 
 the insured the money agreed upon. 1 Bouv. 
 Inst, note 1231. See "Loss." 
 
 LIFE ESTATE. An estate whose duration 
 is limited to the life of the party holding it. 
 
LIFE INSURANCE 
 
 (SS6) 
 
 LIMITATION, WORDS OF 
 
 or of some other person; a freehold estate, 
 not of inheritance. 4 Kent, Comm. 23, 25. 
 
 LIFE INSURANCE. A contract of insur- 
 ance wherein the insurer agrees to pay a 
 specified sum in the event of the death of a 
 particular person, if it occur at a time and 
 under circumstances within the terms of the 
 contract. 
 
 LIFE INTEREST. An interest, limited by 
 the term of the life, either of the person in 
 ■whom the right is vested, or of another. 
 
 LIFE PEERAGE. Letters patent, confer- 
 ring the dignity of haron for life only, do 
 not enable the grantee to sit and vote in the 
 house of lords, not even with the usual writ 
 of summons to the house. Wharton. 
 
 LIFE POLICY. A policy of life insurance. 
 
 LIFE RENT. In Scotch law. A right to 
 use and enjoy a thing during life, the sub- 
 stance of it being preserved. 
 
 A life rent cannot, therefore, be constituted 
 upon things which perish in the use; and 
 though it may upon subjects which grad- 
 ually wear out by time, as household furni- 
 ture, etc., yet it is generally applied to 
 heritable subjects. Life rents are divided 
 into conventional and legal. 
 
 The conventional are either simple or by 
 reservation. A simple life rent, or by a 
 separate constitution, is that which is 
 granted by the proprietor in favor of an- 
 other. A life rent by reservation is that 
 which a proprietor reserves to himself in 
 the same writing by which he conveys the 
 fee to another. Life rents by law are the 
 terce and the curtesy (q. v.) 
 
 LIFE RENTER. In Scotch law. A tenant 
 for life without waste. Bell, Diet. 
 
 LIGA (Law Lat.) In old European law. A 
 league or confederation {foedus, confoedera- 
 tio). Spelman. 
 
 LIGAN, or LAGAN. Goods cast into the 
 sea tied to a buoy, so that they may be found 
 again by the owners, are so denominated. 
 When goods are cast into the sea in storms 
 or shipwrecks, and remain there, without 
 coming to land, they are distinguished by 
 the barbarous names of jetsam, flotsam, and 
 ligan. 5 Coke, 108; Harg. St. Tr. 48; 1 BL 
 Comm. 292. 
 
 LIGARE (Lat.) To tie, or bind. Bracton, 
 fol. 369b. 
 
 To enter into a league or treaty (inire 
 foe&us). Spelman. 
 
 LIGEA (Law Lat.) In old English law. A 
 liege woman; a female subject. Reg. Orig. 
 312b. 
 
 LIGEANCE. The true and faithful obedi- 
 ence of a subject to his sovereign, of a citizen 
 to his government. It signifies, also, the 
 territory of a sovereign. See "Allegiance." 
 
 LIGEANTIA EST QUASI LEGIS ESSEN- 
 tia; est vinculum fidel. Allegiance is, as It 
 
 were, the essence of the law; it is the bond 
 of faith. Co. Litt 129. 
 
 LIGEANTIA NATURALIS, NULLIS 
 3laustris coercetur, nullis metis refraentur, 
 ^uliis finibus premitur. Natural allegiance 
 is restrained by no barriers, curbed by no 
 bounds, compressed by no limits. 7 Coke, 10. 
 
 LIGHTERIVIAN. The owner or manager 
 of a lighter; a lighterman is considered as 
 a common carrier. See "Lighters." 
 
 LIGHTERS. Small vessels employed in 
 loading and unloading larger vessels. 
 
 The owners of lighters are liable like other 
 common carriers for hire. It is a term of 
 the contract on the part of the carrier or 
 lighterman, implied by law, that his vessel 
 is tight and fit for the purpose or employ- 
 ments for which he offers and holds it forth 
 to the public. It is the immediate founda- 
 tion and substratum of the contract that it 
 is so; the law presumes a promise to that 
 effect on the part of the carrier, without 
 actual proof; and every principle of sound 
 policy and public convenience requires it 
 should be so. 5 East, 428; Abb. Shipp. 225; 
 1 Marsh. Ins. 254; Park, Ins. 23; Weskett, 
 Ins. 328; Pars. Mar. Law. 
 
 LIGHTS. Those openings in a wall which 
 are made rather for the admission of light 
 than to look out of. 6 J. B. Moore, 47; 9 
 Bing. 305. See "Ancient Lights." 
 
 Lamps carried on board vessels, under 
 statutory regulations or otherwise, for the 
 purpose of preventing collisions at night. 
 
 Lamps or lights placed in lighthouses, or 
 other conspicuous positions, as aids to navi- 
 gation at night. 
 
 LIGIUS. A tie or bond allegiance. 
 
 LIGNA ET LAPIDES SUB "ARMORUM" 
 appellatione non continentur. Sticks and 
 stones are not contained under the name of 
 arms. Bracton, 144b. 
 
 LIGULA. In old English law. A copy, ex- 
 emplification, or transcript of a court roll or 
 deed. Cowell. 
 
 LIMB. Ordinarily, only a member useful 
 in fight, and the loss of which would amount 
 to mayhem at common law. 1 Bl. Comm. 
 130. 
 
 Sometimes metaphorically used for gen- 
 eral physical safety. 
 
 LI MEN ARCH A (Graeco-Lat) In the Ro- 
 man law. An officer who had charge of a 
 harbor or port. Dig. 50. 4. 18. 10; Code, 7. 
 
 16. 38. 
 
 LIMITATION OF ASSIZE. In old prac- 
 tice. A certain time prescribed by statute, 
 within which a man was required to allege 
 himself or his ancestor to have been seised 
 of lands sued for by a writ of assize. Cowell. 
 
 LIMITATION, WORDS OF. See "Words 
 of Limitation." 
 
LIMITATIONS 
 
 (557) 
 
 LINK 
 
 • LIMITATIONS. 
 
 Of Actions. The statutory restriction 
 
 of the time within which action may be 
 brought. 
 
 Of Criminal Prosecutions. The stat- 
 utory restriction of the time within which 
 indictment may be found for an offense. 
 
 Of Estates. A circumscription of the 
 
 quantity of time comprised in any estate. 1 
 Prest. Est. 25. 
 
 The definition or circumscription, in any 
 conveyance, of the interest which the grantee 
 is intended to take. The term is used by 
 different writers in different senses. Thus, 
 it is used by Lord Coke to denote the ex- 
 press definition of an estate by the words of 
 its creation, so that it cannot endure for 
 any longer time than till the contingency 
 happens upon which the estate is to fail. 
 Co. Litt. 23b. In the work of Mr. Sanders 
 on Uses, the term is used, however, in a 
 broader and more general sense, as given in 
 the second definition above. 1 Sanders, Uses 
 (4th Ed.) 121 et seq. And, indeed, the same 
 writers do not always confine themselves 
 to one use of the term, though the better 
 usage is undoubtedly given by Mr. Stephen 
 in his note above cited. And see Fearne, 
 Cont. Rem. (Butler's note [n] ; 9th Ed.) 10; 
 1 Steph. Comm. (5th Ed.) 304, note. For 
 the distinctions between limitations and re- 
 mainders, see "Conditional Limitation;" 
 "Contingent Remainder." 
 
 Consult, generally, Angell, Ballantine, and 
 Price, on Limitations; Blintoff and Wash- 
 bum on Real Property ; Barbour and Bishop 
 on Criminal Law. 
 
 LIMITED. Restricted; bounded; prescrib- 
 ed; confined within positive bounds; re- 
 stricted in duration, extent, or scope. 
 
 LIMITED ADMINISTRATION. Special ad- 
 ministration. See "Administration." 
 
 LIMITED DIVORCE. A divorce aniensafit 
 thoro. See "Divorce." 
 
 LIMITED FEE. A general term, opposed 
 to fee simple, and covering all qualified or 
 conditional estates of inheritance in lands. 
 It includes base fees, conditional fees, and 
 fees tail. 2 Bl. Comm. 109. 
 
 LIMITED JURISDICTION. See "Jurisdic- 
 tion." 
 
 LIMITED OWNER. One whose title in 
 lands is less than a fee simple. 
 
 LIMITED PARTNERSHIP. One wherein 
 the liability of one or more of the members 
 is, by compliance with certain statutory pro- 
 visions, limited to the amount of their con- 
 tribution to the capital stock. The term 
 "special partnership" is sometimes used; 
 but "limited partnership" seems better, for 
 "particular partnerships," or partnerships 
 for a single transaction, are sometimes called 
 "special partnerships." 
 
 LINARIUM (Law Lat. from linum, flax). 
 In old records. A place where flax Is sown; 
 a flax plat. Pat. 22 Hen. IV. par. 1, m. 33; 
 Blount 
 
 LINE. 
 
 In Descents. The series of persons 
 
 who have descended from a common ances- 
 tor, placed one under the other, in the order 
 of their birth. It connects successively all 
 the relations by blood to each other. See 
 "Consanguinity;" "Degree." 
 
 Great-grandfa- 
 ther, great 
 -grandmotbor. 
 Grandfather, 1 
 Grandmother. J 
 ^ Father, Mother. 
 
 dfa-| 
 lor. J 
 
 o 6. Tritavus, Tritavia. 
 
 A 5. Atavua, Atavia. 
 
 o i. Abavus, Abaria. 
 
 o 3. Proavus, Proavia. 
 
 ^Ego. 
 
 " I Son. 
 
 ^ ' Grandson. 
 
 ^ ] Great-grandson. 
 
 o 1. Pater, Mater. 
 
 oEgo. 
 
 il. Filius. 
 
 J 2. Nepos, Nepti. 
 
 i 3. Pronepoa, Proneptia. 
 
 A 4. Abnepos, Abneptis. 
 
 ^ 5. Adnopos, Adnepti. 
 
 i 6. Trinepos, Trineptis. 
 
 The line is either direct or collateral. The 
 direct line is composed of all the persons 
 who are descended from each other. If, in 
 the direct line, any one i>erson is assumed as 
 the propositus, in order to count from him 
 upwards and downwards, the line will be 
 divided into two parts, the ascending and 
 descending lines. The ascending line is that 
 which, counting from the propositus, ascends 
 to his ancestors, to his father, grandfather, 
 great-grandfather, etc. The descending line 
 is that which, counting from the same per- 
 son, descends to his children, grandchildren, 
 great-grandchildren, etc. The preceding ta- 
 ble is an example. 
 
 The collateral line, considered by Itself, 
 and in relation to the common ancestor, is 
 a direct line. It becomes collateral when 
 placed alongside of another line below the 
 common ancestor, in whom both lines unite. 
 For example: 
 
 Common ancestor. 
 
 Direct 
 line. 
 
 Collateral 
 line. 
 
 O o 
 
 Ego. 
 
 These two lines are independent of each 
 other; they have no connection except by 
 their union in the person of the common an- 
 cestor. This reunion is what forms the rela- 
 tion among the persons composing the two 
 lines. 
 
 A line is also paternal or maternal. In the 
 examination of a person's ascending line, the 
 line ascends first to his father, next to his 
 paternal grandfather, his paternal greab 
 grandfather, etc., so on from father to father. 
 This is called the paternal line. Another 
 line will be found to ascend from the same 
 person to his mother, his maternal grand- 
 mother, and so from mother to mother. This 
 
LINEA 
 
 (5S8) 
 
 LIS MOTA 
 
 is the maternal line. These lines, however, 
 do not take in all the ascendants; there are 
 many others who must be imagined. 
 
 See 2 Bl. Comm. 200, bk. 2, c. 14; Poth. 
 des Success, c. 1, art. 3, § 2; "Ascendants." 
 
 Boundary Lines. The division between 
 
 two estates. Limit; border; boundary. 
 
 Measures. A line is a lineal measure, 
 
 containing the one-twelfth part of an inch. 
 
 LINEA (Lat.) In civil and old English 
 law. A line; a series of persons descending 
 from a common stock (series personarum a 
 communi stipite descendentium) . Heineo. Blem. 
 Jur. Civ. lib. 1, tit. 10, § 153. It was ascen- 
 dens as weH as drscciidciis. Hale, Anal. § 18; 
 Pleta, lib. 6, c. 1. § 11. 
 
 LINEA RECTA (Lat.) The perpendicular 
 line; the direct line; the line of ascent, 
 through father, grandfather, etc., and of de- 
 scent, through son, grandson, etc. Co. Litt. 
 
 10, 158; Bracton, fol. 67; Fleta, lib. 6, c. 1, § 
 
 11. This is represented in a diagram by a 
 vertical line. 
 
 Persons springing from another immedi- 
 ately, or mediately through a third person, 
 are said to be in the direct line {liiiea recta), 
 and are called "ascendants" and "descend- 
 ants." Mackeld. Civ. Law, § 129, 
 
 LINEA RECTA EST INDEX SUI ET OB- 
 liqui; lex est linea recti. A right line is an 
 index of itself and of an oblique; law Is a 
 line of right. Co. Litt. 158. 
 
 LINEA RECTA SEIVIPER PRAEFERTUR 
 transversali. The right line is always pre- 
 ferred to the collateral. Co. Litt. 10; Pleta, 
 lib. 6, c. 1; 1 Steph. Comm. (4th Ed.) 406. 
 
 LINEA TRANSVERSALIS (Lat.) A line 
 crossing the perpendicular lines. Where two 
 persons are descended from a third, they are 
 called "collaterals," and are said to be re- 
 lated in the collateral line (linea transversa 
 or obligua) . 
 
 LINEAL. In a direct line. 
 
 LINEAL CONSANGUINITY. That kind of 
 consanguinity which subsists between per- 
 sons of whom one is descended in a direct 
 line from the other; as between a particular 
 person and his father, grandfather, great- 
 grandfather, and so upward, in the direct 
 ascending line; or between the same person 
 and his son, grandson, great-grandson, and 
 so downwards, in the direct descending line. 
 2 Bl. Comm. 203. 
 
 LINEAL DESCENT. Descent in a right 
 line, as where an estate descends from an- 
 cestor to heir in one line of succession, as 
 opposed to collateral descent, which is de- 
 scent in a transverse or zigzag line, namely, 
 up through the common ancestor, and then 
 down from him. 
 
 LINEAL WARRANTY. A warranty by an- 
 cestor from whom the title did or might 
 have come to heir. 2 Bl. Comm. 301; Rawle, 
 
 Gov. 30; 2 Hilliard, Real 'Prop. 360. Thus, 
 a warrant by an elder son during lifetime 
 of father was lineal to a younger son, but a 
 warranty by younger son was collateral to 
 elder; for, though the younger might take 
 the paternal estate through the elder, the 
 elder could not take it through the younger. 
 Litt. § 703. Abolished. 3 & 4 Wm. IV. c 74* 
 § 14. 
 
 LINES AND CORNERS. In deeds and sur- 
 veys. Boundary lines and their angles with 
 each other. 17 Miss. 459; 21 Ala. 66; 9 Post 
 & H. (N. H.) 471; 10 Grat. (Va.) 445; 16 
 Ga. 141. 
 
 LIQUERE (Lat.) In the civil law. To be 
 clear, evident, or satisfactory. When a ju- 
 dex was in doubt how to decide a case, he 
 represented to the praetor, under oath, siM 
 non liguere, that it was not clear to him, and 
 was thereupon discharged. Calv. Lex. 
 
 LIQUET. It is clear or apparent; it ap- 
 pears. Satis liquet, it sufficiently appears. 
 1 Strange, 412. 
 
 LIQUIDATE. To pay; to settle. Webster; 
 8 Wheat. (U. S.) 322. 
 
 To ascertain or make certain in amount. 
 20 Ga. 53. 
 
 Liquidating partner. The member 
 
 of a dissolved partnership who winds up its 
 business. Shumaker, Partn. 128. 
 
 LIQUIDATION. A fixed and determinate 
 valuation of things which before were un- 
 certain. 
 
 LIQUIDATOR. A person appointed to car- 
 ry out the winding up of a company. 
 
 LIS (Lat.) A controversy or dispute. See 
 "Lis Mota." 
 
 A suit at law; an action; a controversy 
 carried on in form of law. In the civil law, 
 this was a more general term than actio. 
 Litis nomen omnem actionem signifieat, the 
 term lis signifies every kind of action. Dig. 
 50. 16. 36; Co. Litt. 292. 
 
 LIS ALIBI PENDENS. A suit pending 
 elsewhere. The fact that proceedings are 
 pending between a plaintiff and defendant in 
 one court in respect to a given matter is fre- 
 quently a ground for preventing the plain- 
 tiff from taking proceedings in another court 
 against the same defendant for the same ob- • 
 ject, and arising out of the same cause of 
 action. Rapalje & L. 
 
 LIS MOTA (Lat.) A controversy begun, 
 i. e., on the point at Issue, and prior to com- 
 mencement of judicial proceedings. Such 
 controversy is taken to arise on the advent 
 of the state of facts on which the claim rests; 
 and after such controversy has arisen (post 
 litem motam), no declarations of deceased 
 members of family as to matters of pedigree 
 are admissible. 6 Car. & P. 560; 4 Campb. 
 417; 2 Russ. & M. 161; Greenl. Ev. §§ 131, 
 132; 4 Maule & S. 497; 1 Pet. (U. S.) 337; 
 26 Barb. (N. Y.) 177. 
 
LIS PENDENS 
 
 (5h9) 
 
 LITERIS OBLIGATIO 
 
 LIS PENDENS (Lat.) A pending suit. 
 
 The control which a court has, during the 
 pendency of an action, over property in- 
 volved therein. Bennett, Lis Pendens, § 2. 
 
 The property involved is the res. Its char- 
 acter remains fixed during the litigation, 
 and this litigated or contested quality is 
 called res Utigiosa. L4s pendens, notice of 
 Us pedens, and rule Us pendens, when used 
 without reference to a statute defining their 
 meaning, are synonymous terms. Bennett, 
 Lis Pendens, §§ 2, 59. 
 
 One who purchases property pending an 
 action concerning , it (pendente Ute, q. v.) 
 takes subject to the event of the action, the 
 maxim of the law being pendente Ute nihil 
 innovetur. 
 
 All real property is subject to Us pendens 
 (45 N. H. 517), and all personalty (37 Pa. 
 St. 353; 23 Wis. 1) except negotiable paper 
 (103 U. S. 806; 48 N. Y. 613). 
 
 To constitute lis pendens there must be an 
 action actually commenced (27 Mo. 560) in 
 a court of competent jurisdiction, involving 
 the title to particular property (13 R. I. 
 102), to which the claimant of the property 
 is a party (24 Iowa, 155), and the property 
 must be sufficiently described in the plead- 
 ings so that it can be identified by reason- 
 able inquiry (4 Johns. Ch. [N. Y.] 39). 
 
 LIST. A table of cases arranged for trial 
 or argument; as, the trial list, the argument 
 list. 3 Bouv. Inst, note 3031. See "Calen- 
 dar." 
 
 LISTERS. This word is used in some of 
 the states to designate the persons appointed 
 to make lists of taxables. See Rev. St. Vt 
 538. 
 
 LITE PENDENTE (Lat.) Pending the 
 suit. Fleta, lib. 2, c. 54, § 23. 
 
 LITEM SUAM FACERE (Lat.) To make 
 a suit his own. Where a judex, from par- 
 tiality or enmity, evidently favored either of 
 the parties, he was said litem suam facere. 
 Calv. Lex. 
 
 LITERA (Lat.) A letter; the letter of a 
 law, as distinguished from its spirit. See 
 "Letter." 
 
 LITERA PISANA. The Pisan letter. A 
 term applied to the old character in which 
 the copy of the Pandects formerly kept at 
 Pisa, in Italy, was written. Spelman. 
 
 LITERAE. Letters. A term applied in old 
 English law to various instruments in writ- 
 ing, public and private. 
 
 LITERAE DIMISSORIAE. Dimissory let- 
 ters. See "Dimissoriae Litterae." 
 
 LITERAE HUMANIORES. A term includ- 
 ing Greek, Latin, general philology, logic, 
 moral philosophy, metaphysics; the name of 
 the principal course of study in the Univer- 
 sity of Oxford. Wharton. 
 
 LJTERAE MORTUAE. Dead letters; ful- 
 filling words of a statute. Lord Bacon ob- 
 serves that "there are in every statute cer- 
 
 tain words which are as veins, where the life 
 and blood of the statute cometh, and where 
 all doubts do arise, and the rest are literae 
 inortuae, fulfilling words." Bac. St. Uses, 
 (Works, iv. 189). 
 
 LITERAE PATENTES. Letters patent; 
 literally, open letters. 
 
 LITERAE PATENTES REGIS NON 
 erunt vacuae. Letters patent of the king 
 shall not be void. 1 Bulst. 6. 
 
 LITERAE PROCURATORIAE (Lat.) In 
 civil law. Letters procuratory; a written 
 authority, or power of attorney (litera ai- 
 tornati), given to a procurator. Vicat; 
 Bracton, fols. 40-43. 
 
 LITERAE RECOGNITIONIS. In mari- 
 time law. A bill of lading. Jacobsen, Sea 
 Laws, 172. 
 
 LITERAE SCRIPTAE MANENT. Written 
 words last. 
 
 LITERAE SIGILLATAE. In old English 
 law. Sealed letters. The return of a sheriff 
 was so called. Pleta, lib. 2, c. 64, § 19. 
 
 LITERAL CONTRACT. In civil law. A 
 contract the whole of the evidence of which 
 is reduced to writing. This contract is per- 
 fected by the writing, and binds the party 
 who subscribed it, although he has received 
 no consideration. Lee. Elm. § 887. 
 
 LITERAL PROOF. In civil law. Written 
 evidence. 
 
 LITERARY PROPERTY. The interest of 
 an author, or those who claim under him, in 
 his work before or after publication, and 
 with or without copyright. Drone, Copy- 
 right, 97. 
 
 Literary property is the common-law own- 
 ership of the original work. Copyright is 
 the statutory right to make all the copies of 
 it that shall be made for a term of years. 
 Abbott. 
 
 The scope of such property is, in the ab- 
 sence of copyright laws, that an author has 
 the sole right of first printing and publish- 
 ing his writings. 4 Burrows, 2408. The au- 
 thor's property right is lost as soon as he 
 prints and publishes the manuscript (8 Pet. 
 [U. S.] 591) ; though a private use or circu- 
 lation of a manuscript, as for the purpose 
 of instructing students, will not forfeit the 
 author's literary property. 
 
 By statute, a penalty is denounced against 
 the publication of a manuscript without the 
 author's consent. Rev. St. U. S. § 4966. 
 
 LITERATURA (Lat. from Utcra, a letter). 
 In old English law. Education; learning; 
 knowledge of letters. Ad lUeraturam ponere, 
 to put to learning; to put to school. Par. 
 Ant. 401; Cowell. Minus sxifficirns in Utera- 
 fura, deficient in education. 
 
 LITERIS OBLIGATIO. In Roman law. The 
 contract of nomen, which was constituted 
 by writing (scriptura). It was of two kinds, 
 viz.: (1) A re in personam, when a trans- 
 
LITIGAKT 
 
 (S60) 
 
 LITUS MARIS 
 
 action was transferred from the daybook 
 (aqiversaria) into the ledger (codex) in the 
 form of a debt under the name or heading of 
 the purchaser or debtor (nomera) ; and (2) 
 a persona in personain, where a debt already 
 standing under one nomen or heading was 
 transferred in the usual course of novatio 
 from that nomen to another and substituted 
 nomen. By reason of this transferring, these 
 obligations were called nomina transcripti- 
 tia. No money was, in fact, paid to consti- 
 tute the contract. If ever money was paid. 
 then the nomen was arca/rium, i. e., a real 
 contract, re contractus, and not a nomen 
 proprium. Brown. 
 
 LITIGANT. One engaged in a suit; one 
 fond of litigation. 
 
 LITIGARE (Lat.) To litigate; to carry on 
 a suit (litem agere), either as plaintiff or 
 defendant; to claim or dispute by action; 
 to test or try the validity of a claim by ac- 
 tion. 
 
 LITIGATE. To contend in form of law. 
 
 LITIGATION. A contest, authorized by 
 law, in a court of justice, for the purpose of 
 enforcing a right. 
 
 LITIGIOSA RES. See "Lis Pendens." 
 
 LITIGIOSITY. In Scotch law. The pend- 
 ency of a suit. It is an implied prohibition 
 of alienation, to the disappointment of an 
 action, or of diligance, the direct object of 
 which is to obtain possession, or to acquire 
 the property of a particular subject. The 
 effect of it is analogous to that of inhibi- 
 tion. 2 Bell, Comm. (5th Ed.) 152. See "Lis 
 Pendens." 
 
 LITIGIOUS. That which is the subject oi' 
 a suit or action; that which is contested in a 
 court of justice. In another sense, litigious 
 signi*'es a disposition to sue; a fondness for 
 litigation. 
 
 LITIGIOUS RIGHTS. In French law. 
 Those which are or may be contested either 
 in whole or in part, whether an action has 
 been commenced, or when there is reason to 
 apprehend one. Poth. Vente, note 584; 9 
 Mart. (La.) 183; Tropl. de la Vente. note 984 
 a 1003; Eva. Civ. Code, art. 2623; Eva. Civ. 
 Code, art. 3522, note 22. See "Contentious 
 Jurisdiction." 
 
 LITIS AESTIMATIO. The measure of dam- 
 ages. 
 
 LITIS CONTESTATIO. 
 
 In the Civil and Canon Law. Contes- 
 tation of suit; the process of contesting a 
 suit by the opposing statements of the re- 
 spective parties; the process of coming to 
 an issue; the attainment of an issue; the is- 
 sue itself. 
 
 In the Practice of the Ecclesiastical 
 
 Courts. The general answer made by the 
 defendant, in which he denies the matter 
 charged against him in the libel. Halifax, 
 Civ. Law. bk. 3, c. 11, No. 9. 
 
 LITIS DOMINIUM. In civil law. Owner- 
 ship, control, or directirn of a suit. A Ac- 
 tion of law by which the employment of an 
 attorney or proctor (procurator) In a suit 
 was authorized or justified, he being sup- 
 posed to become, by the appointment of his 
 principal (dominus) or. client, the dominus 
 litis. Heinec. Elem. Jur. Civ. lib. 4, tit. lu 
 §§ 1246, 1247. 
 
 LITIS NOMEN ACTIONEM SIGNIFICAT, 
 sive in rem, sive in personam sit. The word 
 lex, i. e., a lawsuit, signifies every action, 
 whether j?i rem oi- in personam, uo. L.itt. 
 292. . 
 
 LITISPENDENCE. An obsolete term for 
 the time during which a lawsuit is going on. 
 
 LITISPENDENCIA. In Spanish law The 
 condition of a suit pending in a court of 
 justice. 
 
 In order to render this condition valid, it 
 is necessary that the judge be competent to 
 take cognizance of the cause; that the de- 
 fendant has been duly cited to appear, and 
 fully informed, In due time ana lorm, of 
 the nature of the demand, or thPit, if he has 
 not, it has been through his own fault or 
 fraud. 
 
 The litispendencia produces two effects: 
 The legal impossibility of alienating the 
 property in dispute during the pendency of 
 the suit; the accumulation of all the pro- 
 ceedings in the cause, in the tribunal where 
 the suit is pending, whether the same be 
 had before the same judge or other judges 
 or notaries. This cumulation may be re- 
 quired in any stage of the cause, and forms a 
 valid exception to the further proceeding, 
 until the cumulation is effected. Bscriche, 
 Die. Raz. 
 
 LITRE. A French measure of capacity. 
 It is of the size of a decimetre, or one-tenth 
 part of a cubic metre. It is equal to 61.028 
 cubic inches. See "Measure." 
 
 LITTORAL (Uttus). Belonging to shore; 
 as, of sea and great lakes. Webster. Cor- 
 responding to riparian proprietors on a 
 stream or small pond are littoral proprietors 
 on a sea or lake. But "riparian" is also used 
 coextensively with "littoral." 7 Gush. 
 (Mass.) 94. See 17 How. (U. S.) 426. 
 
 LITURA. In civil law. An obliteration or 
 blot in a will or other instrument. Dig. 28. 
 4. 1. 1. 
 
 LITUS EST QUOSQUE MAXIMUS FLUC- 
 tus a mari pervenit. The shore is where the 
 highest wave from the sea has reached. 
 Dig. 50. 16. 96; Angell, Tide Waters, 67. 
 
 LITUS MARIS (Lat.) 
 
 In Civil Law. Shore; beach. QuafAio- 
 
 tus eluderet. Cic. Top. c. 7. Qua fluctus 
 adludit. Qulnct. lib. 5, c. ult. Quansqtie 
 maximus fluctus a mari pervenit. Celsus. 
 Said to have been first so defined by Cicero, 
 in an award as arbitrator. L. 92, D, de verb, 
 signif. Qua maximus fl,uotus exaestuat. It. 
 112, D., eod. tit. Quatenas hihemus flm:itv-i 
 
LIVERY 
 
 (561) 
 
 LOAN FOR USE 
 
 maximusexcurrit. Inst. lib. 2, de rer. divis. 
 et qual. § 3. That is to say, as far as the 
 largest winter wave runs up. Vocab. 
 
 At Common Law. The shore between 
 
 common high-water mark and low-water 
 mark. Hale de Jur. Mar. cc. 4, 5, 6; 3 Kent, 
 Comm. 427; 2 Hilliard, Real Prop. 90. 
 
 Shore is also used of a river. 5 W'heat. 
 (U. S.) 385; 20 Wend. (N. Y.) 149. See 
 13 How. (U. S.) 381; 28 Me. 180; 14 Pa. St. 
 171. 
 
 LIVERY. In English law. The delivery of 
 possession of lands to those tenants who 
 hold of the king in capita or by knight's 
 service. 
 
 The name of a writ which lay for the 
 heir of age to obtain possession of the seisin 
 of his lands at the king's hands. Fitzh. Nat. 
 Brev. 155; 2 Bl. Comm. 68. 
 
 The distinguishing dress worn by the serv- 
 ants of a gentleman or nobleman, or by the 
 members of a particular guild. "Livery or 
 clothing." Sayer, 274. By St. 1 Rich. II. c. 
 7, and St. 16 Rich. II. c 4, none but the 
 servants of a lord, and continually dwelling 
 in his house, or those above rank of yeomen, 
 should wear the lord's livery. 
 
 Privilege of a particular company or guild. 
 Wharton. 
 
 LIVERY OF SEISIN. In estates. A deliv- 
 ery of possession of lands, tenements, and 
 hereditaments unto one entitled to the same. 
 This was a ceremony used in the common 
 law for the conveyance of real estate; and 
 livery was in deed, which was performed by 
 the feoffor and the feoffee going upon the 
 land, and the latter receiving it from the 
 former; or in law, where the same was not 
 made on the land, but in sight of it. 2 Bl. 
 Comm. 315, 316. 
 
 In most of the states, livery of seisin is 
 unnecessary, it having been dispensed with 
 either by express law or by usage. The re- 
 cording of the deed has the same effect. 
 W^shb. Real Prop. 14, 35. In Maryland, how- 
 ever, it seems that a deed cannot operate as 
 a feoffment without livery of seisin. 5 Har. 
 & J. (Md.) 158. See 4 Kent, Comm. 381; 1 
 Mo-. 553; 1 Pet. (U. S.) 508; 1 Bay (S. C.) 
 107; 5 Har. & J. (Md.) 158; 11 Me. 318; 
 Dane, Abr. See "Seisin." 
 
 LIVERY STABLE. A place where horses 
 and vehicles are kept to be let to the pub- 
 lic. See 30 La. Ann. 1095. 
 
 Though some other related business may 
 be carried on, as the boarding of horses for 
 hire, the keeper of the stable is, as to such, 
 an agister, etc., as the case may be, not a 
 livery stable keeper. 
 
 LIVRE TOURNOIS. In common law. A 
 coin used in Prance before the revolution. 
 It is to be computed, in the ad valorem duty 
 on goods, etc., at eighteen and a half cents. 
 Act March 2, 1798, § 61 (1 Story, U. S. Laws, 
 629). See "Foreign Coins." 
 
 LLOYDS. A mutual fire and marine insur- 
 ance association, the members underwriting 
 each other's policies. 
 
 LOADMANAGE. The pay to leadsmen; 
 that is, persons who sail or row before ships, 
 in barks or small vessels, with instruments 
 for towing the ship and directing her course, 
 in order that she may escape the dangers in 
 her way. Poth. des Avaries, note 137; Gui- 
 don de la Mer, c. 14; Bac. Abr. "Merchant 
 and Merchandise" (F). It is not in use in 
 the United States. 
 
 LOAN. A bailment without reward; a 
 bailment of an article for use or consump- 
 tion without reward; the thing so bailed. 
 
 A loan, in general, implies that a thing is 
 lent without reward; but in some cases a 
 loan may be for a reward; as, the loan of 
 money. 7 Pet. (U. S.) 109. 
 
 It would be an inquiry too purely specu- 
 lative whether this use of the term "loan" 
 originated in the times when taking interest 
 was considered usury, and improper, the bail- 
 ment of money which was to be returned in 
 kind. The supposition would furnish a rea- 
 sonable explanation of the exception to the 
 general rule that loan includes properly only 
 those bailments where no reward is given 
 or received by the bailee. 
 
 In order to make a contract usurious, 
 there must be a loan (Cowp. 112, 770; 1 Ves. 
 Jr. 527; 2 Bl. 859; 3 Wils. 390), and the 
 borrower must be bound to return the money 
 at all events (2 Schoales & L. 470). The 
 purchase of a bond or note is not a loan (3 
 Schoales & L. 469; 9 Pet. [U. S.] 103); but 
 if such a purchase be merely colorable, it 
 will be considered as a loan (2 Johns. Cas. 
 [N. Y.] 60, 66; 12 Serg. & R. [Pa.] 46; 15 
 Johns. [N. Y.] 44). 
 
 LOAN FOR CONSUMPTION. A contract 
 by which the owner of a personal chattel, 
 called the "lender," delivers it to the bailee, 
 called the "borrower," to be returned in 
 kind. For example, if a person borrows a 
 bushel of wheat, and at the end of a month 
 returns to the lender a bushel of equal value. 
 This class of loans is commonly considered 
 under the head of "bailments," but it lacks 
 the one essential element of bailment, — that 
 of a return of the property. It is more 
 strictly a barter or an exchange; the prop- 
 erty passes to the borrower. 4 N. Y. 76; 8 
 N. Y. 433; 1 Ohio St. 98; 3 Mason (U. S.) 
 478; 1 Blackf. tind.) 353; Story, Bailm. § 
 439. Those cases sometimes called ventuum 
 (the corresponding civil-law term), such as 
 where corn is delivered to a miller to be 
 ground into wheat, are either cases of hir- 
 ing of labor and service, as where the miller 
 grinds and returns the identical wheat 
 ground into flour, retaining a portion for his 
 services, or constitute a mere exchange, as 
 where he mixes the wheat with his own, 
 undertaking to furnish an equivalent in corn. 
 It amounts to a contract of sale; payment 
 being stipulated for in a specified article in- 
 stead of money. 
 
 LOAN FOR USE. A bailment of an article 
 to be used by the borrower without paying 
 for the use. 2 Kent, Comm. (4th Ed.) 573. 
 
 Loan for use (called commodatum In the 
 civil law)v, differs from a loan for consump- 
 
LOAN SOCIETIES 
 
 (562) 
 
 LOCALITY 
 
 tion (called mutuum in the civil law) in 
 this, that the commodatum must be specific- 
 ally returned; the mutuum is to be returned 
 in kind. In the case of a commodatum, the 
 property in the thing remains in the lender; 
 in a mutuum, the property passes to the bor- 
 rower. 
 
 LOAN SOCIETIES. In English law. A 
 kind of club formed for the purpose of ad- 
 ' vancing money on loan to the industrial 
 classes. They are of comparatively recent 
 origin in England, and are authorized and 
 regulated by 3 & 4 Vict. c. 110, and 21 Vict, 
 c. 19. 
 
 LOBBYING. Personal solicitation of a 
 member of a legislative body during a ses- 
 sion thereof, by one not a member, with 
 reference to any matter pending in the leg- 
 islature, so called from the fact that such 
 solicitation is supposed to take place in the 
 "lobby" of the legislative hall. 
 
 The term is generally used in a bad sense, 
 as including only secret or wrongful solici- 
 tation, and not the submission of petitions, 
 or the presentation of arguments, at a proper 
 time and place. 
 
 As a general rule, all contracts for per- 
 sonal solicitation of legislators, or the use 
 of personal influence with them, are void, 
 though no bribery or other corrupt practice 
 is contemplated. 36 N. Y. 241; 101 U. S. 
 108. But the professional services of a law- 
 yer may be employed for legitimate pur- 
 poses connected with pending legislation, 
 such as the presentation of evidence or argu- 
 ment openly, and at proper times and places. 
 80 Va. 475; 21 Wall. (U. S.) 441. 
 
 L'OBLIGATION SANS CAUSE, OU SUR 
 une fausse cause, ou sun cause llliclte, ne 
 peut avoir aucun effet. An obligation with- 
 out consideration, or upon a false considera- 
 tion (which fails), or upon unlawful consid- 
 eration, cannot have any effect. Code, 3. 3. 
 4; Chit. Cont. (10th Am. Ed.) 25, note. 
 
 LOCAL ACTION. In practice. An action 
 the cause of which could have arisen in 
 some particular county only. 
 
 All local actions must be brought in the 
 county where the cause of action arose. 
 
 In general, all actions are local which 
 seek the recovery of real property (2 W. Bl. 
 1070; 4 Term R. 504; 7 Term R. 589), wheth- 
 er founded upon contract or not; or dam- 
 ages for injury to such property, as waste, 
 under the statute of Gloucester, trespass 
 quare clausum, fregit, trespass or case for 
 injuries affecting things real, as for nui- 
 sances to houses or lands, disturbance of 
 rights of way or of common, obstruction or 
 diversion of ancient watercourses (1 Chit. 
 PI. 271; Gould, PI. c. 3, §§ 105, 106, 107); 
 but not if there were a contract between the 
 parties on which to ground an action (15 
 Mass. 284; 1 Day [Conn.] 263). 
 
 Many actions arising out of injuries to 
 local rights are local; as, quare impedit. 1 
 Chit. PI. 241. The action of replevin is also 
 local. 1 Wm. Saund. 247, note 1; Gould, 
 PI. c. 3, § 111; Comyn, Dig. "Action." See 
 "Transitory Action." 
 
 LOCAL ALLEGIANCE. The allegiance due 
 to a government from an alien while within 
 its limits. 1 Bl. Comm. 370; 2 Kent, Comm 
 63, 64. 
 
 LOCAL CHATTEL. A fixture. 
 
 LOCAL COURT. A court whose jurisdic- 
 tion is limited to a particular locality. 
 Sometimes applied to the courts of the home 
 jurisdiction, as opposed to foreign courts. 
 
 LOCAL CUSTOM. One whose observance 
 is confined to a particular locality. 
 
 LOCAL GOVERNMENT. Government con- 
 fined to a certain locality. The autonomous 
 government of a minor subdivision of a 
 state or country, as opposed to the' general 
 government. 
 
 LOCAL IMPROVEMENTS. Improvements 
 made in a particular locality, by which the 
 real estate in that locality is specially bene- 
 fitted. Cooley, Tax'n, 109, 177, 419. 
 
 The question whether an improvement is 
 local depends not on whether it is of use to 
 the general public, but on the special benefit 
 which will result to the real property ad- 
 joining or near the locality in which it is 
 made. 22 Minn. 507.- 
 
 LOCAL OPTION. A privilege granted to a 
 locality of determining by popular vote 
 whether a general law shall be effective in 
 that locality. Usually applied to the de- 
 termination by popular vote whether or not 
 the sale of intoxicating liquor shall be al- 
 lowed in a particular locality. 
 
 LOCAL PREJUDICE. A prejudice against 
 a litigant, or in favor of his adversary, pre- 
 vailing in a particular locality, and tending 
 to prevent a fair trial there. Such prejudice 
 is ground for change of venue. 
 
 LOCAL STATUTES. Statutes whose op- 
 eration is intended to be restricted within 
 certain limits, much less than the limits of 
 the legislative jurisdiction. A statute js not 
 local because it excludes from its operation 
 one or two counties in the state. See 86 N. 
 Y. 7; Dwarr. St. p. 384. It may be ei her 
 public or private. 1 Bl. Comm. 85, 86, note. 
 "Local statutes" is used by Lord Mansfield 
 as opposed to "personal statutes," which re- 
 late to personal transitory contracts; where- 
 as local statutes refer to things in a certain 
 jurisdiction alone; e. g., the statute of frauds 
 relates only to things in England. 1 W. Bl. 
 246. 
 
 LOCAL TAXES. Taxes (more often called 
 "assessment") limited to certain civil divi- 
 sions of the state or city. 
 
 LOCAL VENUE. The venue of a local ac- 
 tion (q. V.) 
 
 LOCALITY, In Scotch law. This name is 
 given to a life rent created In marriage con- 
 tracts in favor of the wife, instead of leav- 
 ing her to her legal life rent of terce. 1 
 Bell, Comm. 55. See "Jointure." 
 
LOCARE 
 
 (563) 
 
 LOCUM TENENS 
 
 LOCARE. To let for hire; to deliver or 
 bail a thing for a certain reward or compen- 
 sation. Bracton, fol. 62. 
 
 LOCARIUM. In old European law. The 
 price of letting; money paid for the hire of 
 a thing; rent. Spelman. 
 
 LOCATARIUS. In civil law. A deposi- 
 tary. 
 
 LOCATE. To fix or definitely determine. 
 
 LOCATIO (Lat.) In civil law. Letting for 
 kire. Calv. Lex.; Vocat. The term is also 
 used by text writers upon the law of bail- 
 ment at common law. 1 Pars. Cont. 602. In 
 Scotch law it is translated "location." Bell, 
 Diet. 
 
 LOCATIO-CONDUCTIO. In civil law. A 
 compound word used to denote the contract 
 of bailment for hire, expressing the action of 
 both parties, viz., a letting by the one, and 
 a hiring by the other. 2 Kent, Comm. 586, 
 note; Story, Bailm. § 368. 
 
 LOCATIO CUSTODIAE. A letting to keep ; 
 a bailment or deposit of goods for hire. 
 Story, Bailm. § 442. 
 
 LOCATIO MERCIUM VEHENDARUM 
 (Lat.) In civil law. The carriage of goods 
 for hire. 
 
 In respect to contracts of this sort en- 
 tered into by private persons not exercising 
 the business of common carriers, there does 
 not seem to be any material distinction 
 varying the rights, obligations, and duties of 
 the parties from those of other bailees for 
 hire. Every such private person is bound to 
 ordinary diligence and a reasonable exercise 
 of skill; and of course he is not responsible 
 for any losses not occasioned by ordinary 
 negligence, unless he has expressly, by the 
 terms of his contract, taken upon himself 
 such risk. 2 Ld. Raym. 909, 917, 918; 4 
 Taunt. 787; 6 Taunt. 577; 2 Marsh. 293; 
 Jones, Bailm. 103, 106, 121; 2 Bos. & P. 417; 
 1 Bouv. Inst, note 1020. See "Common Car- 
 
 LOCATIO OPERIS (Lat.) In civil law. 
 The hiring of labor and services. 
 
 It is a contract by which one of the par- 
 ties gives a certain work to be performed by 
 the other, who binds himself to do it for the 
 price agreed between them, which he who 
 gives the work to be done promises to pay 
 to the other for doing it. Poth. du Contr. 
 de Louage, note 392. This is divided into 
 two branches: First, locatio operis faciendi; 
 and, secondly, Incafin merciiim rehenflnrvm 
 (g. V.) 
 
 LOCATIO OPERIS FACIENDI (Lat.) In 
 civil law. Hire of services to be performed. 
 
 There are two kinds: First, the locatio 
 operis faciendi, strictly so called, or the hire 
 of labor and services; such as the hire of 
 tailors to make clothes, and of jewelers to 
 set gems, and of watchmakers to repair 
 watches. Jones, Bailm. 90, 96, 97. Secondly, 
 locatio custodiae, or the receiving of goods 
 
 on deposit for a reward, which is properly 
 the hire of care and attention about the 
 goods. Story, Bailm. §§ 422, 442; 1 Bouv. 
 Inst, note 994. 
 
 In contracts for work, it is of the essence 
 of the contract, first, that there should be 
 work to be done; secondly, for a price or re- 
 ward; and, thirdly, a lawful contract be- 
 tween parties capable and intending to con- 
 tract. Poth. du Contr. de Louage, notes 395- 
 403. 
 
 LOCATIO REI (Lat.) In civil law. The 
 hiring of a thing. It is a contract by which 
 one of the parties obligates himself to give 
 to the other the use and enjoyment of a 
 certain thing for a period of time agreed 
 upon between them, and in consideration of 
 a price which the latter binds himself to 
 pay in return. Poth. du Contr. de Louage, 
 note 1. 
 
 LOCATION. In the apportionment of pub- 
 lic lands, the selection and designation of 
 lands which the person making the location 
 claims under the law. 
 
 In Scotch Law. A contract by which 
 
 the temporary use of a subject, or the work 
 or service of a person, is given for an as- 
 certained hire. 1 Bell, Comm. bk. 2, pt. 3, 
 c. 2, sec. 4, art. 2, § 1, p. 255. See "Bail- 
 ment;" "Hire.'-' 
 
 LOCATIVE CALLS. Calls describing cer- 
 tain means by which the land to be located 
 can be identified. 
 
 Reference to physical objects in entries 
 and deeds, by which the land to be located 
 is exactly described. 2 Bibb (Ky.) 145; 3 
 Bibb (Ky.) 414. 
 
 Special, as distinguished from general, 
 calls or descriptions. 3 Bibb (Ky.) 414; 2 
 Wheat. (U. S.) 211; 10 Wheat. (U. S.) 463; 
 7 Pet. (U. S.) 171; 18 Wend. (N. Y.) 157; 
 16 Johns. (N. Y.) 257; 17 Johns. (N. Y.) 
 29; 10 Grat. (Va.) 445; Jones Law (N. C.) 
 469; 16 Ga. 141; 5 Ind. 302; 15 Mo. 80; 2 
 Bibb (Ky.) 118. 
 
 LOCATOR. In civil, law. He who leases 
 or lets a thing to hire to another. His 
 duties are, first, to deliver to the hirer the 
 thing hired, that he may use it; second, to 
 guaranty to the hirer the free enjoyment 
 of it; third, to keep the thing hired in good 
 order in such manner that the hirer may 
 enjoy it; fourth, to warrant that the thing 
 hired has not such defects as to destroy its 
 use. Poth. du Contr. de Louage, note 53. 
 
 LOCK-UP HOUSE. A place used tempora- 
 rily as a prison. 
 
 LOCKMAN. An officer in the Isle of Man 
 to execute the orders of the governor, some- 
 thing like our undersherifE. Wharton. 
 
 LOCO PARENTIS. 
 
 tis." 
 
 "In Loco Paren- 
 
 LOCOCESSION (Lat.) In the civil law. 
 The act of giving place. 
 
 LOCUM TENENS (Lat.) Holding the 
 place. Applied to a deputy. 
 
LOCUPLES 
 
 (S64) 
 
 LONG PARLIAMENT 
 
 LOCUPLES (Lat.) In civil law. Able to 
 respond in an action; good for the amount 
 which the plaintiff might recover. Dig. 50. 
 36. 234. 1. 
 
 LOCUS (Lat.) A place; the place where 
 a thing is done. 
 
 LOCUS CONTRACTUS. See "Lex Loci." 
 
 LOCUS CONTRACTUS REGIT ACTUM. 
 
 The place. of the contract governs the act. 
 2 Kent, Comm. 458. 
 
 LOCUS CRI MINIS. The locality of a crime; 
 the place where a crime was committed. 
 
 LOCUS DELICTI. The place where the 
 tort, offense, or injury has been committed. 
 
 LOCUS IN QUO (Lat. the place in which). 
 In pleading. The place where anything is 
 alleged to have been done. 1 Salk. 94. 
 
 LOCUS PARTITUS. In old English law. 
 A place divided; a division made between 
 two towns or counties to make out in which 
 the land or place in question lies. Fleta, 
 lib. 4, c. 15, § 1; Cowell. 
 
 LOCUS PRO SOLUTIONE REDITUS AUT 
 pecuniae secundum condltionem dimisslonis 
 aut obligatlonis est striate observandus. The 
 place for the payment of rent or money is 
 to be strictly observed according to the con- 
 dition of the lease or obligation. 4 Coke, 73. 
 
 LOCUS PUBLICUS. In civil law. A pub- 
 lic place. Dig. 43. 8. 1; Id. 43. 8. 2. 3. 
 
 LOCUS REGIT ACTUM. In private inter- 
 national law. The rule that, when a legal 
 transaction complies with the formalities 
 required by the law of the country where it 
 is done, it is also valid in the country where" 
 it is to be given effect, although by the law 
 of that country other formalities are re- 
 quired. 8 Savigny, System, § 381; Westl. 
 Priv. Int. Law, 159. 
 
 LOCUS REI SITAE. See "Lex Rei Sitae." 
 
 LOCUS SIGILLI. The place of the seal. 
 
 The letters L. S. (an abbreviation of locus 
 sigilli), surrounded by a scroll, is in some 
 states held a good seal (5 Wis. 549), but in 
 others a common-law seal is required. See 
 "Seals." 
 
 LOCUS STANDI. A place of standing; 
 standing in court. A right of appearance in 
 a court of justice, or before a legislative 
 body, on a given question. 
 
 LODE MAN. In old English law. A kind 
 of pilot who navigated a vessel within a 
 harbor. Jacob. 
 
 LODEMANAGE. Pilotage fees paid to a 
 lodeman. 
 
 LODGER. One who inhabits a portion of 
 a house of which another has the general 
 possession and custody. It is by this reten- 
 tion of general possession and control by 
 another that a "lodger" is distinguished 
 from a "tenant." 
 
 It is difficult, in the present state of the 
 law, to state exactly the distinctions be- 
 tween a "lodger," a "guest," and a "boarder." 
 A person may be a guest at an inn without 
 being a lodger. 1 Salk. 388; 9 Pick. (Mass.) 
 280; 25 Wend. (N. Y.) 653; 5 Sandf. (N. Y.) 
 242; 16 Ala. (N. S.) 666; 8 Blackf. (Ind.) 
 535; 14 Barb. (N. Y.) 193; 6 C. B. 132. And 
 boarder includes one who regularly takes his 
 meals with, and forms in some degree a 
 part of, the householder's family. 25 Eng. 
 Law & Eq. 76. 
 
 LCDS ET RENTES. A fine payable to the 
 seigneur upon every sale of lands within 
 his seigniory. 1 Low. (U. S.) 59. 
 
 Any transfer of lands for a consideration 
 gives rise to the claim (1 Low. [U. S.] 79) ; 
 as, the creation of a rente viagire (life rent) 
 (1 Low. [U. S.] 84); a transfer under 6o« 
 emphyteotique' (1 Low. [U. S.] 295); a 
 promise to sell, accompanied by transfer of 
 possession (9 Low. [U. S.] 272). It does not 
 arise on a transfer by a father to his son 
 subject to a payment by the son of a life 
 rent to the father, and of the father's debts 
 (8 Low. [U. S.] 5, 34, 324); nor where prop- 
 erty is required for public uses (1 Low. [U. 
 S.] 91). 
 
 LOGBOOK. A ship's journal. It contains 
 a minute account of the ship's course, with 
 a short history of every occurrence during 
 the voyage. 1 Marsh. Ins. 408. 
 
 LOG ROLLING. A name given to a legis- 
 lative practice of obtaining the passage of 
 several measures by a combination of mi- 
 norities. The original method was to em- 
 body the different measures in a single bill, 
 and pass the same by a united vote of the 
 minorities favoring each. This practice is 
 now rendered impossible by constitutional 
 provision in most of the states, that no bill 
 shall embrace more than one subject. The 
 term is now applied to the practice of agree- 
 ment by minorities favoring several bills to 
 vote for all. 
 
 LOGIA, or LOGIUM. A small house. 
 
 LOGOGRAPHUS. In Roman law. A pub- 
 lic clerk or accountant. 
 
 LOLLARDS. A body of primitive Wesley- 
 ans, who assumed importance about the 
 time of John Wycliffe (1360), and were 
 very successful in disseminating evangelical 
 truth; but, being implicated (apparently 
 against their will) in the insurrection of 
 the villeins in 1381, the statute De Haeretico 
 Gomburendo (2 Hen. IV. c. 15) was passed 
 against them, for their suppression. Brown. 
 
 LONG. See "Gambling Contract." 
 
 LONG INTEREST. See "Gambling Con- 
 tract." 
 
 LONG MARKET. See "Gambling Con- 
 tract." 
 
 LONG PARLIAMENT. The name usually 
 given to the parliament which met in No- 
 vember, 1640, under Charles I., and was dis- 
 
LONG QUINTO, THE 
 
 (565) 
 
 LORDS MARCHERS 
 
 solved by Cromwell on the 10th of April, 
 1653. The name "Long Parliament" is, how- 
 ever, also given to the parliament which 
 met in 1661, after the restoration of the 
 monarchy, and was dissolved on the 30th 
 of December, 1678. This latter parliament 
 is sometimes called, by way of distinction, 
 the "long parliament of Charles IL" Mozley 
 
 6 W. 
 
 LONG QUINTO, THE. An expression used 
 to denote part second of the Year Book 
 which gives reports of cases in 5 Edw. IV. 
 
 LONG VACATION. The recess of the Eng- 
 lish courts from August 10th to October 24th. 
 
 LONGA PATIENTIATRAHITUR AD CON- 
 sensum. Long sufferance is construed as 
 consent. Pleta, lib. 4, c. 26, § 4. 
 
 LONGA POSSESSIO EST PACIS JUS. 
 
 Long possession is the law of peace. Co. 
 Litt. 6. 
 
 LONGA POSSESSIO JUS PARIT. Long 
 possession begets right. Fleta, lib. 3, c. 15, 
 § 6. 
 
 LONGA POSSESSIO PARIT JUS POSSI- 
 dendi, et tollit actionem vero domino. Long 
 IKJSsession produces the right of possession, 
 and takes away from the true owner his ac- 
 tion. Co. Litt 110. 
 
 LONGUM TEMPUS, ET LONGUS USUS 
 qui excedit memoria hominum, sufficit pro 
 jure. Long time, and long use beyond the 
 memory of man, suffices for right. Co. Litt. 
 115. 
 
 LOPWOOD. A right in the inhabitants of 
 a parish, within a manor In England, to lop 
 for fuel, at certain periods of the year, the 
 branches of trees growing upon the waste 
 lands of the manor. 
 
 LOQUELA (Lat.) In practice. An imparl- 
 ance, loguela sine die, a respite in law to an 
 indefinite time. Formerly by loquela was 
 meant the allegations of fact mutually made 
 on either side, now denominated the "plead- 
 ings." Steph. PI. 29. 
 
 LOQUENDUM UT VULGUS; SENTIEN- 
 dum ut docti. We should speak as the com- 
 mon people; we should think as the learned. 
 
 7 Coke, 11. 
 
 LORD. 
 
 In Feudal Law. The superior of whom 
 
 land is held by feudal tenure. 
 
 In English Law. A title belonging to 
 
 the degree of baron, but sometimes applied 
 to all persons of nobility. 1 Bl. Comm. 396. 
 
 LORD ADVOCATE. The chief public pros- 
 ecutor of Scotland. 2 Alls. Crim. Pr. 84. 
 
 LORD CHIEF BARON. The chief judge of 
 the English court of exchequer, prior to the 
 judicature acts. 
 
 LORD CHIEF JUSTICE. See "Justice." 
 
 LORD HIGH CHANCELLOR. See "Chan- 
 cellor, The Lord High." 
 
 LORD HIGH STEWARD. In England, 
 when a person is impeached, or when a 
 peer is tried on indictment for treason or 
 felony before the house of lords, one of the 
 lords is appointed lord high steward, and 
 acts as speaker pro tempore. Sweet. 
 
 LORD HIGH TREASURER. An officer 
 formerly existing in England, who had the 
 charge of the royal revenues and customs 
 duties, and of leasing the crown lands. His 
 functions are now vested in the lords com- 
 missioners of the treasury. Mozley & "W. 
 
 LORD IN GROSS. In feudal law. He who 
 is lord, not by reason of any manor, but 
 as the king in respect of his crown, etc. 
 "Very lord" is he who is immediate lord to 
 his tenant; and "very tenant," he who holds 
 immediately of that lord. So that, where 
 there is lord paramount, lord mesne, and ten- 
 ant, the lord paramount is not very lord to 
 the tenant. Wharton. 
 
 LORD JUSTICE CLERK. The second judi- 
 cial officer in Scotland. 
 
 LORD KEEPER. Originally another name 
 for the lord chancellor. After Henry II. 's 
 reign they were sometimes divided, but now 
 there cannot be a lord chancellor and lord 
 keeper at the same time, for by St. 5 Eliz. 
 c. 18, they are declared to be the same of- 
 fice. Com. Dig. "Chancery" (B 1). 
 
 LORD MAYOR'S COURT. InEnglishlaw. 
 One of the chief courts of special and local 
 jurisdiction in London. It is a court of the 
 queen, held before the lord mayor and alder- 
 men. Its practice and procedure are amend- 
 ed, and its powers enlarged, by 20 & 21 
 Vict. c. 157. In this court, the recorder, or, 
 in his absence, the common Serjeant, pre- 
 sides as judge; and from its judgments error 
 may be brought in the exchequer chamber. 
 3 Steph. Comm. 449, note (1). 
 
 LORD OF A IVIANOR. The grantee or 
 owner of a manor. 
 
 LORD ORDINARY. In Scotch law. A judge 
 of sessions officiating for the time being as 
 the judge of first instance. 
 
 LORDS APPELLANTS. Five peers who 
 for a time superseded Richard II. in his 
 government, and whom, after a brief con- 
 trol of the government, he in turn super- 
 seded in 1397, and put the survivors of 
 them to death. Richard II.'s eighteen com- 
 missioners (twelve peers and six common- 
 ers) took their place, as an embryo privy 
 council acting with full powers, during the 
 parliamentary recess. Brown. 
 
 LORD'S DAY. Sunday. Co. Litt. 135. 
 
 LORDS IVIARCHERS. Those noblemen 
 who lived on the marches of Wales or Scot- 
 land, who in times past had their laws and 
 power of life and death, like petty kings. 
 Abolished by 27 Hen. VIII. c. 26, and 6 
 Edw. VI. c. 10. Wharton. 
 
LORDS OF ERECTION 
 
 (566) 
 
 LOTTERY 
 
 LORDS OF ERECTION. On the reforma- 
 tion in Scotland, the king, as proprietor of 
 benefices formerly held by abbots and priors, 
 gave them out in temporal lordships to 
 favorites, who were termed "lords of erec- 
 tion." Wharton. 
 
 LORDS OF PARLIAMENT. Those who 
 have seats in the house of lords. During 
 bankruptcy, peers are disqualified from sit- 
 ting or voting in the house of lords. 34 & 
 35 Vict. c. 50. Wharton. 
 
 LORDS ORDAINERS. Lords appointed in 
 1312, in the reign of Edward II., for the 
 control of the sovereign and the court party, 
 and for the general reform and better gov- 
 ernment of the country. Brown. 
 
 LORDS SPIRITUAL. The archbishops and 
 bishops who have seats in the house of lords. 
 
 LO R DS T E M PO R A L. Those lay peers who 
 have seats in the house of lords. 
 
 LORDSHIP. Dominion, manor, seigniory, 
 domain ; also a title of honor used to a noble- 
 man not being a duke. It is also the cus- 
 tomary titulary appellation of the judges 
 and some other persons in authority and of- 
 fice. Wharton. 
 
 LOSS. In insurance. The destruction of 
 or damage to the insured subject by the 
 perils insured against, according to the ex- 
 press provisions and construction of the 
 contract. 
 
 These accidents, or misfortunes, or perils, 
 as they are usually denominated, are all dis- 
 tinctly enumerated in the policy. And no 
 .loss, however great or unforeseen, can be a 
 loss within the policy unless it be the direct 
 and immediate conseciuence of one or more 
 of these perils. Marsh. Ins. 1, c. 12. 
 
 Loss under a life policy is simply the 
 death of the subject by a cause the risk of 
 which is not expressly excepted in the pol- 
 icy, and where the loss is not fraudulent, 
 as where one assured, who assures the life 
 of another for his own benefit, procures the 
 death. 
 
 Loss in insurance against fire must, under 
 the usual form of policy, be by the partial 
 or total destruction or damage of the thing 
 insured by fire. 
 
 In maritime insurance, in which loss by 
 fire is one of the risks usually included, the 
 loss insured against may be absolutely or 
 constructively total, or a partial or general 
 average loss, or a particular average. 
 
 A partial loss is any loss or damage short 
 of, or not amounting to, a total loss; for if 
 it be not the latter, it must be the former. 
 See 4 Mass. 374; 6 Mass. 102, 122, 317; 12 
 Mass. 170, 288; 8 Johns. (N. Y.) 237; 10 
 Johns. (N. Y.) 487; 5 Bin. (Pa.) 595; 2 
 Serg. & R. (Pa.) 553. 
 
 A total loss is such destruction of, or dam- 
 age to, the thing insured that it is of little 
 or no value to the owner. 
 
 Partial losses are sometimes denominated 
 average losses, because they are often in 
 the nature of those losses which are the 
 subject of average contributions; and they 
 
 are distinguished into general and particu- 
 lar averages. See "Average." 
 
 Total losses, in maritime insurance, are 
 absolutely such when the entire thing per- 
 ishes, or becomes of no value. Construc- 
 tively, a loss may become total where the 
 value remaining is of such a small amount 
 that the whole may be surrendered. See 
 "Abandonment." 
 
 Consult Phil. Ins. ; Arnold, Ins. ; Pars. Mar. 
 Law. See "Total Loss." 
 
 LOST, OR NOT LOST. A phrase in poli- 
 cies of insurance, signifying the contract to 
 be retrospective and applicable to any loss 
 within the specified risk, provided the same 
 is not already known to either of the par- 
 ties, and that neither has any knowledge or 
 information not equally obvious or known to 
 the other. The clause has been adopted only 
 in maritime insurance; though a fire or life 
 policy is not unfrequently retrospective, or, 
 under a different phraseology, by a provision 
 that the risk is to commence at some time 
 prior to its date. 1 Phil. Ins. § 925. 
 
 LOST PAPERS. Papers which have been 
 destroyed (107 Mass. 546), or so mislaid 
 that they cannot be found after diligent 
 search (1 Vt. 470; 9 Gray [Mass.] 351). 
 
 LOT. That which fortuitously determines 
 what we are to acquire. 
 
 When it can be certainly known what are 
 our rights, we ought never to resort to a 
 decision by lot; but when it is impossible 
 to tell what actually belongs to us, as if an 
 estate is divided into three parts, and one 
 part given to each of three persons, the 
 proper way to ascertain each one's part is to 
 draw lots. Wolff. Dr. Nat. § 669. 
 
 LOT AND SCOT. In English law. Cer- 
 tain duties which must be paid by those who 
 claim to exercise the elective franchise with- 
 in certain cities and boroughs, before they 
 are entitled to vote. It is said that the prac- 
 tice became uniform to refer to the poor rate 
 as a register of "scot and lot" voters; so that 
 the term, when employed to define a right of 
 election, meant only the payment by a pa- 
 rishioner of the sum to which he was as- 
 sessed on the poor rate. Brown. 
 
 LOT OF GROUND. A small piece of land 
 in a town or city, usually employed for 
 building, a yard, a garden, or such other 
 urban use. 2 Ohio St. 124; 25 Ark. 101. 
 Lots are "in-lots," or those within the 
 boundary of the city or town, and "out-lots," 
 or those which are out of such boundary, 
 and which are used by some of the inhab- 
 itants of such town or city. 
 
 LOTHERWITE, or LEYERWIT. In old 
 English law. A liberty or privilege to take 
 amends for lying with a bondwoman without 
 
 license. 
 
 LOTTERY. A scheme for the distribution 
 of prizes by lot to persons buying chances. 
 49 Ala. 396. A scheme whereby one, on pay- 
 ing money or other valuable thing to an- 
 
L'OU LE LEY DONE, ETC. 
 
 (S67) 
 
 LUCTUOSA HAEREDITAS 
 
 other, becomes entitled to receive from him 
 such a return in value or nothing as some 
 formula of chance may determine. Bish. St. 
 Crimes, § 952. 
 
 A lottery has been distinguished from a 
 mere bet or wager in that the latter is execu- 
 tory on both sides, and determined by an 
 independent event; while in case of the for- 
 mer, a price is paid for a chance of a prize, 
 and it is determined by the manager of the 
 game, according to a prearranged scheme, 
 whether he who pays the money is to have 
 a prize. 137 Mass. 250. 
 
 A gift enterprise {q. v.) is a lottery (37 
 Tenn. 507), as is any enterprise by which 
 prizes are paid by lot to persons paying to 
 become members of an association (8 N. Y. 
 228; 33 N. H. 329; 59 111. 160). 
 
 L'OU LE LEY DONE CHOSE, LA CEO 
 done remedie a vener a ceo. Where the law 
 gives a right, it gives a remedy to recover. 
 2 Rolle, 17. 
 
 LOUAGE (Fr.) This Is the contract of 
 hiring and letting in French law, and may 
 be either of things or of labor. The varie- 
 ties of each are the following: 
 
 (1) Letting of things; bail a layer being 
 the letting of houses; hail a ferme being the 
 letting of lands. 
 
 (2) Letting of labor; loyer being the let- 
 ting of personal service; bail a cheptel being 
 the letting of animals. Brown. 
 
 LOU ORES (Law Fr.) London. 
 
 LOVE DAY. The day on which any dis- 
 pute between neighbors was amicably set- 
 tled, or a day on which one neighbor helped 
 another without hire. Wharton. 
 
 LOW JUSTICE. In old European law. 
 Jurisdiction of petty offenses, as distin- 
 guished from "high justice" (g. v.) 
 
 LOW-WATER MARK. That part of the 
 shore of the sea to which the waters recede 
 when the tide is lowest 
 
 The ordinary low-water mark, independ- 
 ent of spring or neap tides on the ocean, 
 or of drought or freshet in respect to rivers. 
 60 Pa. St. 343. See "High-Water Mark." 
 
 LOWBOTE. Recompense for the death of 
 one killed in an affray. 
 
 LOYAL. Legal, or according to law; as, 
 loyal matrimony, a lawful marriage. 
 
 "Uncore n'est loyal a homme de faire un 
 tort," it is never lawful for a man to do a 
 wrong. Dyer, fol. 36, § 38. "Et per curiam 
 n'est loyal," and it was held by the court 
 that it was not lawful. T. Jones, 24. Also 
 spelled loayl. Dyer, fol. 36, § 38; Law Fr. 
 & Lat. Diet. The Norman spelling is "loyse" 
 Kelham. 
 
 Faithful to a prince or superior; true to 
 plighted faith or duty. Webster. 
 
 LOYALTY. Adherence to law; faithful- 
 ness to the existing government. 
 
 LUBRICUM LINGUAE NON FACILETRA- 
 hendum est in poenam. The slipperiness of 
 
 the tongue, i. e., its liability to err, ought 
 not lightly to be subjected to punishment. 
 Cro. Car. 117. 
 
 LUCID INTERVALS. In medical juris- 
 prudence. Periods in which a lunatic is so 
 far free from his disease that the ordinary 
 legal consequences of insanity do not apply 
 to acts done therein. 
 
 LUCRATIVA CAUSA (Lat.) In Roman 
 law. A consideration which is voluntary; 
 that is to say, a gratuitous gift, or such like. 
 It was opposed to onerosa causa, which de- 
 noted a valuable consideration. It was a 
 principle of the Roman law that two lucra- 
 tive causes could not concur in the same 
 person as regarded the same thing; that is 
 to say, that, when the same thing was be- 
 queathed to a person by two different testa- 
 tors, he could not have the thing (or its 
 value) twice over. Brown. 
 
 LUCRATIVA USUCAPIO (Lat.) This spe- 
 cies of usucapio was permitted in Roman 
 law only in the case of persons taking pos- 
 session of property upon the decease of its 
 late owner, and in exclusion or deforcement 
 of the heir, whence it was called "usucapio 
 pro haerede." The adjective "lucrativa" de- 
 noted that property was acquired by this 
 usucapio without any consideration or pay- 
 ment for it by way of purchase; and, as the 
 possessor who so acquired the property was 
 a mala fide possessor, his acquisition, or 
 iisucfijiio. was called also "improba," i. e., 
 dishonest; but this dishonesty was tolerat- 
 ed (until abolished by Hadrian) as an in- 
 centive to force the Tiaeres to take posses- 
 sion, in order that the debts might be paid 
 and the sacrifices performed; and, as a fur- 
 ther incentive to the haeres, this usucapio 
 was complete in one year. Brown. 
 
 LUCRATIVE SUCCESSION. In Scotch 
 law. The passive title of praecepHo haered- 
 itatis, by which, if an heir apparent re- 
 ceive gratuitously a part, however small, of 
 the heritage which would come to him as 
 heir, he is liable for all grantor's precon- 
 tracted debts. Brsk. Inst. 3. 8. 87-89; Stair, 
 Inst. 3. 7. 
 
 LUCRI CAUSA (Lat. for the sake of gain), 
 In criminal law. A term descriptive of the 
 intent of deriving personal gain with which 
 property is taken in cases of larceny, rob- 
 bery, and other crimes against property. It 
 is generally held not to be essential (34 
 Minn. 221; 52 Ala. 411; 17 Tex. 521), though 
 the CQntrary has been held (1 McAll. [U. S.] 
 196). 
 
 LUCRUM CESSANS. In Scotch law. A 
 cessation of gain. Opposed to damnum emer- 
 gens, an actual loss. 
 
 LUCRUM FACERE EX PUPILLI TUTE- 
 la tutor non debet. A guardian ought not 
 to make money out of the guardianship of 
 his ward. 1 Johns. Ch. (N. Y.) 527, 535. 
 
 LUCTUOSA HAEREDITAS. A mournful 
 inheritance. See "Haereditas Luctuosa." 
 
LUGGAGE 
 
 (568) 
 
 LYTAE 
 
 LUGGAGE. This term is synonymous with 
 "baggage;" the latter being in more com- 
 mon use in this country, while the former 
 seems to be almost exclusively used in Eng- 
 land. See "Baggage." 
 
 LUMEN. In the civil law. Light; an 
 easement of light. The plural form was 
 lumina. 
 
 LUNACY. See "Insanity." 
 
 LUNATIC. One who is insane. See "In- 
 sanity." ' 
 
 LUNATICUS, QUI GAUDET IN LUCIDIS 
 intervallis. He is a lunatic who enjoys lucid 
 intervals. 1 Story, Cont. (4th Ed.) 70. 
 
 LUPANATRIX. In Roman law. A bawd. 
 
 . LUPINUM CAPUT GERERE (Lat.) To be 
 outlawed, and have one's head exposed, like 
 a wolf's, with a reward to him who should 
 take it. Cowell. 
 
 LUXURY. Excess and extravagance, which 
 was formerly an offense against the public 
 economy, but is not now punishable. 1 Jao. 
 I. c. 25. 
 
 LYEF GELD. In Saxon law. Leave mon- 
 ey; a small sum paid by customary tenant 
 for leave to plough, etc. Cowell; Somn. 
 Gavelkind, p. 27. 
 
 LYING IN FRANCHISE. Things derelict, 
 
 such as waifs, wrecks, estrays, and the like, 
 which may be seized without suit or action. 
 3 Steph. Comm. 258. 
 
 LYING IN GRANT. Capable of being pass- 
 ed by grant without livery of seisin. 
 
 Incorporeal rights and things which can- 
 not be transferred by livery of possession, 
 but which exist only in idea, in contempla- 
 tion of law, are said to lie in grant, and 
 pass by the mere delivery of the deed. 
 
 LYING IN LIVERY. Incapable of being 
 passed by grant without livery. 
 
 LYNCH LAW. A common phrase used to 
 express the vengeance of a mob inflicting an 
 injury and committing an outrage upon a 
 person suspected of some offense. In Eng- 
 land this is called "Lidford Law." 
 
 LYNDHURST'S (LORD) ACT. This stat- 
 ute (5 & 6 Wm. IV. c. 54) renders marriages 
 within the prohibited degrees absolutely null 
 and void. Theretofore such marriages were 
 voidable merely. 
 
 LYON, KING OF ARMS. In Scotch law. 
 The chief herald. 
 
 LYTAE. In the old Roman law. A name 
 given to students of the civil law in the 
 fourth year of their course, from their be- 
 ing supposed capable of solving any diffi- 
 culty in law. Tayl. Civ. Law, 39. 
 
M 
 
 (569) 
 
 MAGISTER AD FACULTATES 
 
 M 
 
 M. Persons convicted of manslaughter, in 
 England, were formerly marked with this 
 letter on the brawn of the thumb. 
 
 This letter is sometimes put on the face of 
 treasury notes of the United States, and sig- 
 nifies that the treasury note bears interest 
 at the rate of one mill per centum, and not 
 one per centum interest. 13 Pet. (U. S. ) 
 176. 
 
 « 
 
 MACE BEARER. In English law. An of- 
 ficer attending the court of session. 
 
 MACE PROOF. Secure against arrest. 
 
 MACEDONIAN DECREE. In Roman law. 
 A decree of the Roman senate, which de- 
 rived its name from that of a certain usurer, 
 who was the cause of its being made, in 
 consequence of his exactions. 
 
 It was intended to protect sons who lived 
 under the paternal jurisdiction from the un- 
 conscionable contracts which they some- 
 times made on the expectations after their 
 fathers' deaths; another, and perhaps the 
 principal, object, was to cast odium on the 
 rapacious creditors. It declared such con- 
 tracts void. Dig. 14. 6. 1; Domat, Civ. Law, 
 liv. 1, tit. 6, § 4; Ponbl. Eq. bk. 1, c. 2, § 12, 
 note. See "Catching Bargain;" "Post Obit." 
 
 MACEGRIEF, or MACEGREF. In old Eng- 
 lish law. One who bought stolen meat, know- 
 ing it to be stolen. Spelman. 
 
 M AC E R. A mace bearer ; an oflScer attend- 
 ing the court of session in Scotland. 
 
 MACHINATION. The act by which some 
 plot or conspiracy is contrived or set on 
 foot; an artful design. 
 
 MACHINE. In patent law. Any contriv- 
 ance which is used to regulate or modify 
 the relations between force, motion, and 
 weight. 
 
 In its broadest signification, this term is 
 applied to any contrivance which is used to 
 regulate or modify the relations between 
 force, motion, and weight. "The term 'ma- 
 chine' includes every mechanical device or 
 combination of mechanical powers and de- 
 vices to perform some function and produce 
 a certain effect or result." 15 How. (U. S.) 
 267. 
 
 What are sometimes called the "simple 
 machines" are six in number: The lever, 
 the pulley, the wheel and axle, the wedge, 
 the screw, and the inclined plane. These 
 are sometimes known as the mechanical pow- 
 ers, though neither these nor any other ma- 
 chinery can ever constitute or create power. 
 They can only economize, control, direct, and 
 render it useful. 
 
 Machines, as generally seen and under- 
 stood, are compounded of these simple ma- 
 chines in some of their shapes and modifi- 
 
 cations. Such a combination as, when in op- 
 eration, will produce some specific final re- 
 sult, is regarded as an entire machine. It 
 is so treated in the patent law; for, although 
 a new machine, or a new improvement of a 
 machine, is an invention, and although only 
 one invention can be included in a single 
 patent, still, several different contrivances, 
 each of which is in one sense a machine, 
 may all be separately claimed in a single 
 patent, provided they all contribute to im- 
 prove or to constitute one machine, and are 
 intended to produce a single ultimate result; 
 and a new combination of machines is pat- 
 entable, whether the machines themselves be 
 new or old. 3 Wash. C. C. (U. S.) 69; 1 
 Story (U. S.) 273, 568; 2 Story (U. S.) 609; 
 1 Mason (U. S.) 474; 1 Sumn. (U. S.) 482; 
 3 Wheat. (U. S.) 454. 
 
 MACHINERY. This term is said to be 
 more comprehensive than "machine,'' includ- 
 mg the appurtenances necessary to its work- 
 ing. Ill Mass. 540. 
 
 MACTATOR. A murderer. 
 
 MADE KNOWN. Words used as a return 
 to a scire facias when it has been served on 
 the defendant. 
 
 MAEC BURGH (Saxon). Family. 
 
 MAEGBOTE.or MAEGBOT. In Saxon law. 
 A recompense or satisfaction for the slaying 
 or murder of a kinsman. Spelman. 
 
 MAGIS (Lat.) More. 
 
 MAGIS DE BONO GUAM DE MALO LEX 
 intendit. The law favors a good rather than 
 a bad construction. Co. Litt. 78b. Where 
 the words used in an agreement are suscep- 
 tible of two meanings, the one agreeable to, 
 the other against, the law, the former is 
 adopted. Thus, a bond conditioned "to as- 
 sign all offices" will be construed to apply to 
 such offices only as are assignable. Chit. 
 Cont. 78. 
 
 MAGIS DIGNUM TRAHIT AD SE MINUS 
 dignum. The more worthy draws to itself 
 the less worthy. Y. B. 20 Hen. VI. 2, arg. 
 
 MAGISTER (Lat.) A master; a ruler; one 
 whose learning and position make him su- 
 perior to others. Thus, one who has at- 
 tained to a high degree or eminence in sci- 
 ence and literature is called a "master;" as, 
 master of arts. 
 
 MAGISTER AD FACULTATES (Lat.) In 
 English ecclesiastical law. The title of an 
 officer who grants dispensations; as, to mar- 
 ry, to eat flesh on days prohibited, and thQ 
 like. Bac. Abr. "Ecclesiastical Courts" (A 
 5). 
 
MAGISTER CANCELLARIAE 
 
 (570) 
 
 MAGNA CHARTA 
 
 MAGISTER CANCELLARIAE. In old Eng- 
 lish law. Master in chancery. 
 
 MAGISTER EQUITUM. 
 
 Master of the horse. 
 
 In Roman law. 
 
 MAGISTER LIBELLORUM. In Roman 
 l«.w. Master of requests. 
 
 MAGISTER NAVIS (Lat.) In civil law. 
 Master of a. ship; he to whom the whole care 
 of a ship is given up, whether appointed by 
 the owner, or charterer, or master. Calv. 
 Lex.; Story, Ag. § 36. 
 
 MAGISTER RERUM USUS. Use is the 
 master of things. Co. Litt. 229b. Usage is 
 a principal guide in practice. 
 
 MAGISTER RERUM USUS; MAGISTRA 
 rerum experlentia. Use is the master of 
 things; experience is the mistress of things. 
 Co. Litt. 69, 229; Wingate, Max. 752. 
 
 MAGISTER SOCIETATIS (Lat.) In civil 
 law. Managing partner. Vicat; Calv. Lex. 
 Especially used of an officer employed in the 
 business of collecting revenues, who had 
 power to call together the tything men ((Je-l 
 oumands), as it were a senate, and lay mat- 
 ters before them, and keep account of all 
 receipts, etc. He had, generally, an agent 
 in the province, who was also sometimes 
 called magister sooietatis. Id.; Story, Partn. 
 § 95. 
 
 MAGISTERIAL. Pertaining to a magis- 
 trate. 
 
 MAGISTRACY. In its most enlarged sig- 
 nification, this term includes all officers, leg- 
 islative, executive, and judicial. For exam- 
 ple, in most of the state constitutions will 
 be found this provision : "The powers of the 
 government are divided into three distinct 
 departments, and each of these is confided to 
 a separate magistracy, to wit, those which 
 are legislative, to one; those which are ex- 
 ecutive, to another; and those which are 
 judiciary, to another." In a more confined 
 sense. It signifies the body of officers whose 
 duty it is to put the laws in force; as, judg- 
 es, justices of the peace, and the like. In a 
 still narrower sense, it is employed to desig- 
 nate the body of justices of the peace. It is 
 also used for the office of a magistrate. 
 
 MAGISTRALIA BREVIA (Lat.) W.rits 
 adapted to special cases, and so called be- 
 cause drawn by the maste]fs In chancery. 1 
 Spence, Eq. Jur. 239. For the difference be- 
 tween these and judicial writs, see Bracton, 
 413b. 
 
 MAGISTRATE. A public civil officer, in- 
 vested with some part of the legislative, ex- 
 ecutive, or judicial power given by the con- 
 stitution. 
 
 The president of the United States is the 
 chief magistrate of this nation; the govern- 
 ors are the chief magistrates of their re- 
 spective states. 
 
 In a narrower sense, an inferior judicial 
 officer, as a justice of the peace. The term 
 generally applies to judicial officers having 
 
 power to issue warrants tor the arrest of 
 persons charged with crime, but the use of 
 the term has been held not to necessarily im- 
 ply such a power. 32 Ark. 124. 
 
 MAGISTRATE'S COURT. The court of a 
 magistrate (g. v.) 
 
 In South Carolina. A court having ex- 
 clusive jurisdiction in matters of contract of 
 and under twenty dollars. 
 
 MAG I STRATUS. In civil law. A magis- 
 trate. Calv. Lex. 
 
 MAGNA ASSISA. The grand assize. 
 
 MAGNA ASSISA ELIGEJMDA. See "De 
 Magna, etc." 
 
 MAGNA AVENA. Great beasts (oxen, etc.) 
 
 MAGNA CENTUM. The great hundred, 
 or six score. Wharton. 
 
 MAGNA CHARTA. The great charter of 
 English liberties, so called, but which was 
 really a compact between the king and his 
 barons, and almost exclusively for the ben- 
 efit of the latter, though confirming the an- 
 cient liberties of Englishmen in some few 
 particulars, was wrung from King John by 
 his barons assembled in arms, on the 15th 
 of June, 1215, and was given by the king's 
 hand, as a confirmation of his own act, on 
 the little island in the Thames, within the 
 county of Buckinghamshire, which is still 
 called "Magna Gharta Island." 
 
 The preliminary interview was held In the 
 meadow of Runnliig Mede, or Runny Mede 
 (from Saxon rune, council), that is, council 
 meadow,' which had been used constantly for 
 national assembles, and which was situated 
 on the southwest side of the Thames, be- 
 tween Staines and "Windsor. Though such 
 formalities were observed, the provisions of 
 the charter were disregarded by John and 
 succeeding kings, each of whom, when wish- 
 ing to do a popular thing, confirmed this 
 charter. There were thirty-two confirma- 
 tions between 1215 and 1416, the most cele- 
 brated of which were those by Hen. III. 
 (1225) and Bdw. I., which last confirmation 
 was sealed with the great seal of England 
 at Ghent, on the 5th of November, 1297, 
 The Magna Gharta printed in all the books 
 as of 9 Hen. III. Is really a transcript of the 
 roll of parliament of 25 Edw. I. There were 
 many originals of Magna Gharta made, two 
 of which are preserved in the British Mu- 
 seum. 
 
 Magna Gharta consists of thirty-seven 
 chapters, the subject matter of which Is 
 various. Chapter 1 provides that the Angli- 
 can church shall be free, and possess its 
 rights unimpaired, probably referring chiefly 
 to immunity from papal jurisdiction. Chap- 
 ter 2 fixes relief which shall be paid by 
 king's tenant of full age. Chapter 3 relates 
 to heirs and their being in ward. Chapter 
 4. Guardians of wards within age are by 
 this chapter restrained from waste of ward's 
 estate, "vasto hominum et rerum," waste of 
 men and of things, which shows that serfs 
 were regarded as slaves even by this much- 
 
MAGNA CHARTA 
 
 (571), 
 
 MAGNA CHARTA 
 
 boasted charter; and as serfs and freemen 
 were at this time the divisions of society, 
 and as freemen included, almost without ex- 
 ception, the nobility alone, we can see some- 
 what how much this charter deserves its 
 name. Chapter 5 relates to the land and oth- 
 er property of heirs, and the delivering them 
 up when the heirs are of age. Chapter 6 re- 
 lates to the marriage of heirs. Chapter 7 
 provides that widow shall have quarantine of 
 forty days in her husband's chief house, and 
 shall have her dower set out to her at once, 
 without paying anything for it, and in 
 meanwhile to have reasonable estovers; the 
 dower to be one-third of lands of husband, 
 unless wife was endowed of less at the 
 church door; widow not to be compelled to 
 marry, but to find surety that she will not 
 marry without consent of the lord of whom 
 she holds. Marriage settlements have now in 
 England taken the place, in great measure, 
 of dower. Chapter 8. The goods and chat- 
 tels of crown debtor to be exhausted before 
 his rents and lands are distrained; the sure- 
 ty not to be called upon if the principal can 
 pay. If sureties pay the debt, they to have 
 the rents and lands of debtor till the debt is 
 satisfied. Chapter 9 secures to London and 
 other cities and boroughs and town barons 
 of the five ports, and all other ports, to have 
 their ancient liberties. Chapter 10 prohib- 
 its excessive distress for more services or 
 rent than was due. Chapter 11 provides that 
 court of common pleas should not follow the 
 court of the king, but should be held in a 
 certain place. They have been, accordingly, 
 located at Westminster. Chapter 12 declares 
 the manner of taking assizes of novel dis- 
 seisin and mort d'ancestor. These were ac- 
 tions to recover lost seisin (g. v.), now abol- 
 ished. Chapter 13 relates to assizes darein 
 presentment brought by ecclesiastics to try 
 right to present to ecclesiastical benefice. 
 Abolished. Chapter 14 provides that amerce- 
 ment of a freeman for a fault shall be pro- 
 portionate to his crime, and not excessive, 
 and that the villein of any other than the 
 king shall be amerced in same manner, his 
 farm, utensils, etc., being preserved to him 
 (salvo wanagio sua) ; for otherwise he could 
 not cultivate lord's land. Chapter 15 and 
 chapter 16 relate to making of bridges, and 
 keeping in repair of sewers and sea walls. 
 This is now regulated by local parochial law. 
 Chapter 17 forbids sheriffs and coroners to 
 hold pleas of the crown. Pleas of the crown 
 are criminal cases which it is desirable 
 should not be tried by an inferior and per- 
 haps ignorant magistrate. Chapter 18 pro- 
 vides that, if any one holding a lay fee from 
 crown die, the king's bailiff, on showing let- 
 ters patent of summons for debt from the 
 king, may attach all his goods and chattels, 
 so that nothing be moved away till the debt 
 to crown be paid off clearly, the residue to 
 go to executors to perform the testament of 
 the dead; and if there be no debt owing to 
 crown, all the chattels of the deceased to 
 go to executors, reserving, however, to the 
 wife and children their reasonable parts. 
 Debts to the government have precedence in 
 United States, as well as in England. A man 
 
 can now in England will away his whole 
 personal property from wife and children, 
 but not in some of the United States. See 
 Gen. St. Mass. 1560. Chapter 19 relates to 
 purveyance of king's house. Chapter 20 re- 
 lates to the castle guard. Chapter 21 relates 
 to taking horses, carts, and wood for use of 
 royal castles. The three last chapters are 
 now obsolete. Chapter 22 provides that the 
 lands of felons shall go to the king for a 
 year and a day; afterwards to the lord of 
 the fee. So in Prance. The day is added 
 to prevent dispute as to whether the year is 
 exclusive or Inclusive of its last day. Chap- 
 ter 23 provides that the wears shall be pulled 
 down in the Thames and Medway, and 
 throughout England, except on the seacoast. 
 These wears destroyed fish, and interrupted 
 the fioating of wood and the like down 
 stream. Chapter 24 relates to the writ of 
 praecipe in capite for lords against their ten- 
 ants offering wrong, etc. Now abolished. 
 Chapter 25 provides a uniform measure. See 
 5 & 6 Wm. IV. c. 63. Chapter 26 relates to 
 inquisitions of life and member, which are 
 to be granted freely. Now abolished. Chap- 
 ter 27 relates to knight service and other 
 ancient tenures, now abolished. Chapter 2S 
 relates to accusations, which must be under 
 oath. Chapter 29 provides that "no free- 
 man shall be taken, or imprisoned, or dis- 
 seised from his freehold, or liberties, or im- 
 munities, nor outlawed, nor exiled, nor in 
 any manner destroyed, nor will we come up- 
 on him or send against him, except by legal 
 judgment of his peers or the law of the 
 lana. Wle will sell or deny justice to none, 
 nor put off right or justice." This clause is 
 very much celebrated, as confirming the 
 right to trial by jury. By common law, the 
 twelve jurors must be unanimous. Lord 
 Campbell, in England, recently introduced a 
 bill changing this, and, in certain cases, al- 
 lowing the majority to decide. Chapter 30 
 relates to merchant strangers, who are to be 
 civilly treated, and, unless previously pro- 
 hibited, are to have free passage through, 
 and exit from, and dwelling in, England, 
 without any manner of extortions, except in 
 time of war. If they are of a country at war 
 with England, and found in England at the 
 beginning of the war, they are to be kept 
 safely until it is found out how English 
 merchants are treated in their country, and 
 then are to be treated accordingly. Chapter 
 31 relates to escheats. Chapter 32 relates to 
 the power of alienation in a freeman, which 
 is limited. Chapter 33 relates to patrons of 
 abbeys, etc. Chapter 34 provides that no 
 appeal shall be brought by a woman except 
 for death of her husband. This was because 
 the defendant could not defend himself 
 against a woman in single combat. The 
 crime of murder or homicide is now inquired 
 into by indictment. Chapter 35 relates to 
 rights of holding county courts, etc. Ob- 
 solete. Chapter 36 provides that a gift of 
 lands in mortmain shall be void, and lands 
 so given go to lord of fee. Chapter 37 re- 
 lates to escuage and subsidy. Chapter 38 
 confirms every article of the charter. 
 Magna Charta is said by some to have been 
 
MAGNA CHARTA, ETC. 
 
 (572) 
 
 MAINPERKORS 
 
 so called because larger than the Charta de 
 Foresta, which was given about the same 
 time. Spelman. But see Cowell. Magna 
 Cliarta is mentioned casually by Bracton, 
 Fleta, and Britton. Glanville is supposed to 
 have written before Magna Cliarta. The Mir- 
 ror of Justices (chapter 315 et seq.) has a 
 chapter on its defects. See 2 Inst; Barr. 
 Obs. St.; 4 Bl. Comm. 423. See a copy of 
 Magna Cliarta in 1 Laws S. C, edited by 
 Judge Cooper (page 78). In the Penny Mag- 
 azine for the year 1833 (page 229), there is 
 a copy of the original seal of King John af- 
 fixed to this instrument; a specimen of afao 
 simile of the writings of Magna Charta, begin- 
 ning at the passage, Hullns liber homo capie- 
 tiir vet imprisonctur, etc. A copy of both may 
 be found in the Magasin Pittoresque for the 
 year 1834 (pages 52, 53). See 8 Enc. Brit. 
 722; 6 Enc. Brit. 332; Wharton. 
 
 MAGNA CHARTA AND CHARTA DE 
 foresta are called les deux grand charters. 
 Magna Charta and the Charter of the Forest 
 are called the two great charters. 2 Inst. 
 570. 
 
 MAGNA CULPA DOLUS EST. Great neg- 
 lect is equivalent to fraud. Dig. 50. 16. 226; 
 2 Spears (S. C.) 256; 1 Bouv. Inst, note 646. 
 
 MAGNA NEGLIGENTIA CULPA EST; 
 magna culpa dolus est. Gross negligence is 
 a fault; gross fault is a fraud. Dig. 50. 16. 
 226. Culpa is an intermediate degree of neg- 
 ligence between negligentia, or lack of ener- 
 getic care, and dolus, or fraud, seeming to ap- 
 ,proach nearly to our "negligence" in mean- 
 ing. 
 
 MAGNA SERJEANTIA. In old English 
 law. Grand serjeanty. Fleta, lib. 2, c. 4, § 1. 
 
 MAGNUM CAPE. Grand cape (q. v.) 
 
 MAGNUM CONCILIUM. In old English 
 law. The great council; the general council 
 of the realm; afterwards called "parlia- 
 ment." 1 Bl. Comm. 148; 1 Reeve, Hist. 
 Eng. Law. 62; Spelman. 
 
 The king's great council of barons and 
 prelates. Spelman; Crabb, Hist. Eng. Law, 
 228. 
 
 MAGNUS ROTULUS STATUTORUM. The 
 
 great statute roll. The first of the English 
 statute rolls, beginning with Magna Charta, 
 and ending with Edward III. Hale, Hist. 
 Com. Law, 16, 17. 
 
 MAHEMIUM EST HOMICIDIUM INCHO- 
 atum. Mayhem is incipient homicide. 3 
 Inst. lis. 
 
 MAIDEN RENTS. In old English law. A 
 fine paid to lords of some manors, on the 
 marriage of tenants, originally given in con- 
 sideration of the lord's relinquishing his 
 customary right of lying the first night with 
 the bride of a tenant. Cowell. 
 
 MAI HEM. See "Mayjiem;" "Maim." 
 
 MAIHEMATUS. Maimed. 
 
 MAIHEMIUM,orMAIHEM. Mayhem (g.u.) 
 
 MAIHEMIUM EST INTER CRIMINA MA- 
 jora minlnnum, et inter minora maximum. 
 
 Mayhem is the least of great crimes, and 
 the greatest of small. Co. Litt. 127. 
 
 MAIHEMIUM EST MEMBRI MUTILATIO, 
 et dici poterit, ubi aliquis in aliqua parte 
 sui corporis effectus sit inutilis ad pugnan- 
 dum. Mayhem is the mutilation of a mem- 
 ber, and can be said to take place when a 
 man is injured in any part of his body so as 
 to be useless in fight. Co. Litt. 126. 
 
 MAIL (Fr. malle, a trunk). Originally used 
 in reference to the bag or valise which pos- 
 tilions had behind them, and in which they 
 carried letters. In modern usage it is a gen- 
 eral term to express the carriage of letters 
 by public authority. 6 Daly (N. Y.) 558. It 
 is used also in reference to the whole or any 
 part of the matter so carried. 41 Fed. 130. 
 
 M A I L E. In old English law. A small piece 
 of money; a rent or tribute. 
 
 MAILS AND DUTIES. In Scotch law. 
 Rents of an estate. Stair, Inst. 2. 12. 32; 2 
 Ross, Lect. 235, 381, 431-439. 
 
 MAIM. In criminal law. To deprive a per- 
 son of such part of his body as to render 
 him less able in fighting or defending him- 
 self than he would have otherwise been. See 
 "Mayhem." 
 
 MAI NAD. Perjury. Cowell. 
 
 MAINE PORT. A small tribute, common- 
 ly of loaves of bread, which in some places 
 the parishioners paid to the rector in lieu of 
 small tithes. Cowell. 
 
 MAINOUR. In criminal law. The thing 
 stolen found in the hands of the thief who 
 has stolen it. 
 
 Hence, when a man is found with prop- 
 erty which he has stolen, he is said to be 
 taken with the mainour, that is, it is found 
 in his hands. 
 
 Formerly there was a distinction made be- 
 tween a larceny, when the thing stolen was 
 found in the hands of the criminal, and 
 when the proof depended upon other circum- 
 stances not quite so irrefragable. The for- 
 mer properly was termed pris ove mayno- 
 vere, or ove mainer, or • mainour, as it is 
 generally written. Barr. Obs. St. 315, 316, 
 note. 
 
 MAINOVRE, or MAINOEUVRE. A tres- 
 pass committed by hand. See 7 Rich. II. c. 4. 
 
 IVIAINPERNABLE. Capable of being 
 bailed; one for whom bail may be taken; 
 bailable. 
 
 MAINPERNORS. In English law. Those 
 persons to whom a man is delivered out of 
 custody or prison, on their becoming bound 
 for his appearance. 
 
 Mainpernors differ from bail. A man's 
 bail may imprison or surrender him up be- 
 fore the stipulated day of appearance; main- 
 
MAINPRISE 
 
 (573) 
 
 MAJORES 
 
 pernors can do neither, but are merely sure- 
 ties for his appearance at the day. Bail are 
 only sureties that the party be answerable 
 for all the special matter for which they 
 stipulate; mainpernors are bound to pro- 
 duce him to answer all charges whatsoever. 
 6 Mod. 231; 7 Mod. 77, 85, 98; 3 Bl. Comm. 
 128. See Dane, Abr. 
 
 MAINPRISE. In English law. The tak- 
 ing a man into friendly custody, who might 
 otherwise be committed to prison, upon se- 
 curity given for his appearance at a time 
 and place assigned. Wood, Inst. bk. 4, c. 4. 
 
 MAINSWORN. Forsworn, by making false 
 oath with hand (main) on book. Used in 
 the North of England. Brownl. & G. 4 ; Hob. 
 125. 
 
 MAINTAINED. In pleading. A technical 
 word indispensable in an indictment for 
 maintenance. 1 Wils. 325. 
 
 MAINTAINORS. In criminal law. Those 
 who maintain or support a cause depending 
 between others, not being retained as coun- 
 sel or attorney. For this they may be fined 
 and imprisoned. 2 Swift, Dig. 328; 4 Bl. 
 Comm. 124; Bac. Abr. "Barrator." 
 
 MAINTENANCE. Aid, support, assist- 
 ance; the support which one person, who is 
 bound by law to do so, gives to another for 
 his living; for example, a father is bound 
 to find maintenance for his children; and a 
 child is required by law to maintain his fa- 
 ther or mother, when they cannot support 
 themselves, and he has ability to maintain 
 them. 1 Bouv. Inst, notes 284-286. 
 
 In Criminal Law. A malicious, or, at 
 
 least, officious, interference in a suit in 
 which the offender has no interest, to assist 
 one of the parties to it against the other, 
 with money or advice to prosecute or defend 
 the action without any authority of law. 1 
 Russ. Crimes, 176. See 3 Cow. (N. Y.) 623. 
 
 The intermeddling of a stranger in a suit 
 for the purpose of stirring up strife and con- 
 tinuing the litigation. 2 Pars. Cont. 266. 
 See 4 Term R. 340; 6 Bing. 299; 4 Q. B. 
 883. 
 
 There must be assistance actually ren- 
 dered (1 Hempst. [Ark.] 300), though the 
 suit need not be pending (13 Ired. [N. C.j 
 201), and under the modern doctrine, the 
 assistance must be either in giving or hir- 
 ing legal advice, or the bearing part of the 
 expenses. 
 
 But there are many acts in the nature of 
 maintenance which become justifiable from 
 the circumstances under which they are 
 done. They may be justified, first, because 
 the party has an interest in the thing in va- 
 riance, as when he has a bare contingency 
 In the lands in question, which possibly 
 may never come in esse (Bac. Abr. "Mainte- 
 nance." And see 11 Mees. & W. 675; 9 Mete. 
 [Mass.] 489; 13 Mete. [Mass.] 262; 1 Me. 
 292; 6 Me. 361; 11 Me. Ill) ; second, because 
 the party is of kindred or affinity, as father, 
 son, or heir apparent, or husband or wife (3 
 Cow. [N. Y.I 623) ; third, because the re- 
 
 lation of landlord and tenant or master and 
 servant subsists between the, party to the 
 suit and the person who assists him; fourth, 
 because the money is given out of charity 
 (1 Bailey [S. C] 401); fifth, because the 
 person assisting the party to the suit is an 
 attorney or counsellor; the assistance to be 
 rendered must, however, be strictly profes- 
 sional, for a lawyer is not more justified in 
 giving his client money than another man 
 (1 Russ. Crimes, 179; Bac. Abr. "Mainte- 
 nance;" Broke, Abr. "Maintenance"). See 
 "Champerty." 
 
 MAINZIE (Scotch). Mayhem. 
 
 MAISON DE DIEU (Fr. house of God). A 
 hospital; an almshouse; a monastery. St. 39 
 Eliz. c. 5. 
 
 MAIRE. 
 
 In Old English Law. A mayor; an of- 
 ficer classed with justices and sheriffs. 
 
 ■ In Old Scotch Law. An officer to 
 
 whom process was directed. Otherwise call- 
 ed "inair of fie" (fee), and classed with the 
 serjand. Skene de Verb. Sign. 
 
 MAJESTAS. In Roman law. The mag- 
 esty or prerogative of the sovereign or state. 
 
 MAJESTY. A term used of kings and em- 
 perors as a title of honor. It sometimes 
 means power; as when we say, the majesty 
 of the people. See Wolff. Inst. § 998. 
 
 MAJOR. One who has attained his full 
 age, and has acquired all his civil rights: 
 one who is no longer a minor; an adult. 
 
 In Military Law. The officer next in 
 
 rank above a captain. 
 
 MAJOR ANNUS. The greater year; the 
 bissextile year, consisting of 366 days. Braf- 
 ton, fol. 359b. 
 
 MAJOR-GENERAL. In military law. An 
 officer next in rank above a brigadier gen- 
 eral. He commands a division consisting of 
 several brigades, or even an army. 
 
 MAJOR HAEREDITAS VENIT UNICUI- 
 que nostrum a jure at legibus quam a paren- 
 tibus. A greater inheritance comes to every 
 one of us from right and the laws than from 
 parents. 2 Inst. 56. 
 
 MAJOR NUMERUS IN SE CONTINET 
 minorem. The greater number contains in 
 itself the less. Bracton, 16. 
 
 MAJORA REGALIA. See "Regalia." 
 
 MAJORE POENA AFFECTUS QUAM 
 legibus statuta est, non est infamis. One af- 
 fected with a greater punishment than is pro- 
 vided by law is not infamous. 4 Inst. 66. 
 
 MAJORES. 
 
 In Roman Law and Genealogical Ta- 
 bles. The male ascendants beyond the sixth 
 degree. 
 
 In Old English Law. Greater persons ; 
 
 persons of higher condition or estate. 
 
MAJORI CONTINET, ETC. 
 
 (S74) MALEFICIA PROPOSITIS, ETC. 
 
 MAJORI CONTINET IN SE MINUS. The 
 
 greater includes the less. 19 Viner, Abr. 
 379. 
 
 MAJORI SUMMAE MINOR INEST. The 
 
 lesser is Included in the greater sum. 2 
 Kent, Comm. 618; Story, Ag. § 172. 
 
 MAJORITY. The state or condition of a 
 person who has arrived at full age. He is 
 then said to he a "major," in opposition to 
 "minor," which is his condition during in- 
 fancy. 
 
 The greater number; more than all the 
 opponents. 
 
 MAJUS DIGNUM TRAHIT AD SE MINUS 
 dignum. The more worthy or the greater 
 draws to it the less worthy or the lesser. 5 
 Viner, Abr. 584, 586; Co. Lltt. 43, 355b; 2 
 Inst. 307; Finch, Law, 22. 
 
 MAJUS EST DELICTUM SEIPSUM OC- 
 cidere quam alium. It is a greater crime to 
 kill one's self than another. 
 
 MAJUS JUS. In old practice. Greater 
 right, -or more right. A plea in the old real 
 actions. 1 Reeve, Hist. Eng. Law, 476. Ma- 
 jus jus merum, more mere right. Bracton, 
 fol. 31. 
 
 MAKE. To perform or execute; as, to 
 make his law is to perform that which a man 
 had bound himself to do; that is, to clear 
 himself of an action commenced against him, 
 by, his oath and the oath of his neighbors. 
 Old Nat. Brev. 161. To make a contract is 
 to execute the same. To make default Is to 
 fail to appear in proper trial. To make oath 
 is to swear according to the form prescribed 
 by law. To make money on an execution 
 is to collect the same. It is also used in- 
 transitively of persons and things, to have 
 effect, to tend; e. g., "That case makes for 
 me." Hardr. 133; Webster. See "Facias." 
 
 MAKER. A term applied to one who 
 makes a promissory note, and promises to 
 pay it when due. 
 
 He who makes a bill of exchange is called 
 the "drawer;" and frequently in common 
 parlance and in books of reports we find the 
 word "drawer" inaccurately applied to the 
 maker of a promissory note. See "Promis- 
 sory Note." 
 
 MAKING HIS LAW. A phrase used to 
 denote the act of a person who wages his 
 law. Bac. Abr. "Wager of Law." 
 
 MALA (Lat). Bad. 
 
 MALA FIDES (Lat.) Bad faith. It is op- 
 posed to bona fides, good faith. 
 
 MALA GRAMMATICA NON VITIAT 
 chartam; sed in expositione instrumentorum 
 mala grammatica quoad fieri possit evitanda 
 est. Bad grammar does not vitiate a deed; 
 but in the construction of instruments, bad 
 grammar, as far as it can be done, is to be 
 avoided. 6 Coke, 39; 9 Coke, 48; Viner, Abr. 
 "Grammar" (A); Lofft, 441; Broom, Leg. 
 Max. (3d London Ed.) 612. 
 
 MALA IN SE. That which is wrong In it- 
 self, without regard to statutory prohibi- 
 tion, because of its palpable and proximate 
 injury to the public peace, order, or morals. 
 
 A distinction was formerly made, in re- 
 spect of contracts, between mala prohiMta 
 and mala in se; but that distinction has been 
 exploded, and it is now established that 
 when the provisions of an act of the legisla- 
 ture have for their object the protection of 
 the public, it makes no difference, with re- 
 spect to contracts, whether the thing be pro- 
 hibited absolutely or under a penalty. 5 
 Barn. & Aid. 335, 340; 10 Barn. & C. 98; 3 
 Starkie, 61; 13 Pick. (Mass.) 518; 2 Bing. 
 N. C. 636, 646. The distinction is, however, 
 important in criminal law in some cases 
 with reference to the question of intent. 1 
 Bish. Grim. Law, § 2157. 
 
 Thus, one who kills another by accident 
 in committing a misdemeanor mala in se is 
 guilty of manslaughter, but otherwise if the 
 misdemeanor was mala prohibita. 1 Clark 
 & Marshall, Crimes, 20. 
 
 Crimes mala in se include all common-la,w 
 offenses, for the common law punishes no 
 act not in itself wrong. See 114 Mass. 323. 
 
 MALA PRAXIS. Malpractice (g. v.) 
 I 
 
 MALA PROHIBITA. That Which is wrong 
 only because it is prohibited by statute. 1 
 Bl. Comm! 57. See "Mala in Se." 
 
 MALANDRINUS. In old English law. A 
 thief. 
 
 MALBERGE. A hill where the people as- 
 sembled at a court, like the English assizes, 
 which- by the Scotch and Irish were called 
 "parley hills." Du Cange. 
 
 MALE. Of the masculine sex; of the sex 
 that begets young; the sex opposed to the fe- 
 male. 
 
 MALE CREDITUS. In old English law. 
 Unfavorably thought of; in bad repute or 
 credit. Bracton, fols. 116, 154. 
 
 MALEDICTA EXPOSITIO QUAE COR- 
 
 rumpit textum. It is a cursed construction 
 which corrupts the text. 2 Coke, 24; 4 Coke, 
 35; 11 Coke, 34; Wingate, Max. 26. 
 
 MALEDICTION (Lat.) In ecclesiastical 
 law. A curse which was anciently an- 
 nexed to donations of lands made to church- 
 es and religious houses, against those who 
 should violate their rights. 
 
 MALEFACTOR (Lat.) He who has been 
 guilty of some crime; in another sense, one 
 who has been convicted of having committed 
 a crime. 
 
 MALEFICIA NON DEBENT REMANERE 
 impunita, et impunitas continuum affectum 
 tribuit delinquent!. Evil deeds ought not to 
 remain unpunished, and impunity affords 
 continual incitement to the delinquent. 4 
 Coke, 45. 
 
 MALEFICIA PROPOSITIS DISTINGUUN- 
 tur. Evil deeds are distinguished from evil 
 purposes. Jenk. Cent. Cas. 290. 
 
MALEFICIUM 
 
 (S7S) 
 
 MALITIA SUPPLET AETATEM 
 
 MALEFICIUM(Lat.) Incivillaw. Waste; 
 damage; torts; injury. Dig. 5. 18. 1. 
 
 MALESON, or MALISON. Acurse. Bailey. 
 
 MALFEASANCE. The unjust performance 
 ef some act which the party had no right, 
 or which he had contracted not, to do. It 
 differs from misfeasance and nonfeasance ( q. 
 V.) See 1 Chit. Prac. 9; 1 Chit. PI. 134. 
 
 MALFETRIA. In Spanish law. Offense. 
 White, New Recop. bk. 2, tit. 19, c. 1, § 1. 
 
 MALICE. 
 
 In Crimes. In its broadest legal sense, 
 
 the term is substantially synonymous with 
 "criminal intent," and means the state of 
 mind of a person, irrespective of his mo- 
 tive, whenever he consciously violates the 
 law. In this sense, every person who is sui 
 juris, and who, without justification or ex- 
 cuse, willfully does an act which is prohib- 
 ited and made punishable by law as a crime, 
 does the act maliciously. 1 Clark & Mar- 
 shall, Crimes, 139. 
 
 Malice, in its legal sense, characterizes all 
 acts done with an evil disposition, a wrong 
 and unlawful motive and purpose; the will- 
 ful doing an injurious act without lawful 
 excuse. 9 Mete. (Mass.) 93. 
 
 Malice implies not only willfulness, but an 
 absence of lawful excuse. 12 Fla. 117. 
 
 In relation to particular crimes, the term 
 is sometimes used in a narrower sense. 
 Thus, as applied to the offense of malicious 
 mischief, it implies a sense of resentment or 
 ill will towards the owner of the property 
 injured. 3 Cush. (Mass.) 558. 
 
 Malice is either express or implied. Ex- 
 press malice is actual malice, and exists 
 where a person actually contemplates the 
 injury or wrong which he inflicts. Implied 
 malice, otherwise called "constructive mal- 
 ice," or "malice in law," is that which is im- 
 puted by the law from the nature of the act 
 done, irrespective of the actual intent of the 
 party. See 10 N. Y. 120. 
 
 In Torts. Generally, malice implies no 
 
 more than an absence of legal excuse (4 
 Wend. [N. Y.] 13); a mind not sufficiently 
 cautious before it inflicts injury upon an- 
 other (11 Serg. & R. [Pa.] 39) ; but in some 
 connections, as, for example, to authorize the 
 allowance of punitive damages, there must 
 be either actual ill will, or a wanton disre- 
 gard of consequences (37 Mich. 34; 77 111. 
 280). 
 
 Malice, to render one liable in punitive 
 damages, contemplates not merely an in- 
 jurious act, but an act conceived in a spirit 
 of mischief, or of willful indifference to 
 civil obligations. See 91 U. S. 489. 
 
 Specific ill will is not essential (27 Mo. 
 28 ) ; but a general wanton desire to annoy 
 is sufficient to constitute malice (2 Hilt. [N. 
 Y.] 40). 
 
 MALICE AFORETHOUGHT. Wicked pur- 
 pose. These words in the description of 
 murder do not imply deliberation, or the 
 lapse of considerable time between the ma- 
 licious intent to take and the actual exe- 
 
 cution of that intent, but rather denote pur- 
 pose and design, in contradistinction to ac- 
 cident and mischance. 5 Cush. (Mass.) 306. 
 And see 8 Car. & P. 616; 2 Mason (U. S.) 
 60; 1 Dev. & B. (N. C.) 121, 163; 6 Blackf. 
 (Ind.) 299; 3 Ala. (N. S.) 497. They do 
 not imply evil design against a particular 
 person, but evil design in general, the dic- 
 tate of a wicked, depraved, and malignant 
 heart. 49 N. H. 399. 
 
 The term implies more than "malice" (1 
 Clark & Marshall, Crimes, 492). It include.? 
 not only a willful doing of wrong without 
 lawful excuse, but an evil purpose, general 
 or particular therein. 2 Moody, 40. See 9 
 Yerg. (Tenn.) 342. 
 
 MALICE PREPENSE. Malice aforethought 
 (g. V.) 
 
 MALICIOUS. Done with malice (<?. v.) 
 
 MALICIOUS ARREST. A wanton arrest 
 made without probable cause by a regular 
 process and proceeding. See "Malicious 
 Prosecution." 
 
 MALICIOUS MISCHIEF. The wanton or 
 reckless destruction of property. 
 
 The word "malicious!" is not sufficiently 
 defined as the willfully doing of any act 
 prohibited by law, and for which the de- 
 fendant has no lawful excuse. In order to 
 a conviction of the offense of malicious mis- 
 chief, the jury must be satisfied that the in- 
 jury was done either out of a spirit of wan- 
 ton cruelty, or of wicked revenge. Jacob, 
 "Mischief," "Malicious;" Alls. Sc. Cr. Law, 
 448; 3 Cush. (Mass.) 558; 2 Mete. (Mass.) 
 21; 3 Dev. & B. (N. C.) 130; 5 Ired. (N. 
 C.) 364; 8 Leigh (Va.) 719; 3 Me. 177. Au- 
 thorities are divided as to whether wanton- 
 ness or general malice is sufficient. That it 
 is not, see 79 N. C. 656; 44 Ala. 380; 49 
 Miss. 331. Contra, 28 Ga. 380; 44 N. H. 392. 
 
 MALICIOUS PROSECUTION. A judicial 
 proceeding instituted without probable cause 
 (97 U. S. 642; 59 Ind. 500), and with ma- 
 licious intent (7 111. App. 181; 30 N. Y. 625). 
 
 While malice may be inferred by the jury 
 from absence of probable cause, the presence 
 of malice in fact is essential. 44 Cal. 144. 
 
 At common law, the malicious prosecution 
 of a civil action was actionable (Co. Litt. 
 161), but in most of the states only the 
 malicious institution of a criminal proceed- 
 ing is the subject of an action (4 N. J. Law, 
 330). 
 
 MALIGNARE. To malign or slander; also 
 to maim. 
 
 MALITIA (Lat.) Malice. 4B1. Comm. 199. 
 
 MALITIA EST ACIDA; EST MALI ANIMI 
 affectus. Malice is sour; it is the quality of 
 a bad mind. 2 Bulst. 49. 
 
 I MALITIA PRAECOGITATA. Malice afore- 
 thought. 4 Bl. Comm. 198. 
 
 MALITIA SUPPLET AETATEM. Malice 
 supplies age. Dyer, 104; 1 Bl. Comm. 464; 
 
MALITIIS HOMINUM, ETC. 
 
 (576) 
 
 MANAGING OWNER OF SHIP 
 
 4 Bl. Comm. 22, 23, 312; Broom, Leg. Max. 
 (3d London Ed.) 284. See "Malice." 
 
 MALITIIS HOMINUM EST OBVIANDUM. 
 
 The wicked or malicious designs of men 
 must be thwarted. 4 Coke, 15b. 
 
 MALLUM. In old European law. A court 
 of the higher kind (placitum majus) , in 
 which the more important business of the 
 county was dispatched by the count or earl 
 (comes). Spelman. A public national as- 
 sembly. 1 Robertson, Hist. Chas. V. Ap- 
 pend, note xl. 
 
 MALO ANIMO. With evil intent. 
 MALO SENSU. In an evil sense. 
 
 MALPRACTICE. Bad or unskillful prac- 
 tice in a physician or other professional per- 
 son, whereby the health of the patient is in- 
 jured. 
 
 Physicians and surgeons impliedly con- 
 tract that they are reasonably and ordinarily 
 qualified to practice the rnedical profession, 
 and for a failure to possess and exercise such 
 qualifications they are liable. 17 Ind. 115; 
 21 Minn. 464; 75 N. Y. 12. 
 
 Willful malpractice takes place when the 
 physician purposely administers medicines 
 or performs an operation which he knows 
 and expects will result in damage or death 
 to the individual under his care; as in the 
 case of criminal abortion. Elwell, Malprac. 
 243 et seq.; 2 Barb. (N. Y.) 216. 
 
 Negligent malpractice comprehends those 
 cases where there is no criminal or dishonest 
 object, but gross negligence of that atten- 
 tion which the situation of the patient re- 
 quires; as, if a physician should administer 
 medicines, while in a state of intoxication, 
 from which injury would arise to his pa- 
 tient. 
 
 Ignorant malpractice is the administra- 
 tion of medicines calculated to do injury, 
 which do harm, and which a well-educated 
 and scientific medical man would know were 
 not proper in the case. Elwell, Malprac. 198 
 at seq.; 7 Barn. & C. 493, 497; 6 Bing. 440; 
 6 Mass. 134; 5 Car. & P. 333; 1 Moody & R. 
 405; 5 Cox, C. C. 587. 
 
 MALT TAX, or MALT SCOT. In English 
 law. An excise duty on malt. 
 
 MALUM HOMINUM EST OBVIANDUM. 
 
 The malicious plans of men must be avoided. 
 4 Coke, 15. 
 
 MALUM IN SE. An act wrong in itself. 
 The plural form is mala in se (q. v.) 
 
 MALUM NON HABET EFFICIENTEM, 
 
 sed d'eflclentem causam. Evil has not an 
 
 efficient, but a deficient, cause. 3 Inst. 
 Proeme. 
 
 MALUM NON PRAESUMITUR. Evil is 
 not presumed. 4 Coke, 72; Branch, Princ. 
 
 MALUM PROHIBITUM. A thing wrong 
 only beca.use prohibited by law. The plural 
 form is mala prohiMta (q. v.) 
 
 MALUM QUO COMMUNIUS EO PEJUS. 
 
 The more common the evil, the worse. 
 Branch, Princ. 
 
 MALUS USUS EST ABOLENDUS. An 
 
 evil custom is to be abolished. Co. Litt. 
 141; Broom, Leg. Max. (3d London Ed.) 
 827; Litt. § 212; 5 Q. B. 701; 12 Q. B. 845; 
 2 Mylne & K. 449. 
 
 MALVEILLES. Ill will. In some ancient 
 records, this word signifies malicious prac- 
 tices, Qr crimes and misdemeanors. 
 
 MALVEIS PROCURORS. Such as used to 
 pack juries, by the nomination of either 
 party in a cause, or other practice. Art. 
 Sup. Chart, c. x. Cowell. 
 
 MALVERSATION. In French law. This 
 word is applied to all punishable faults com- 
 mitted in the exercise of an office, such as 
 corruptions, exactions, extortions, and lar- 
 ceny. Merlin, Report. 
 
 MAN. A human being; a person of the 
 male sex; a male of the human species 
 above the age of puberty. 
 
 In its most extended sense, the term in- 
 cludes not only the adult male sex of the 
 human species, hut women and children. 
 Examples: "Of offenses against man, some 
 are more immediately against the king, oth- 
 ers more immediately against the subject." 
 Hawk. P. C. bk. 1, c. 2, § 1. "Offenses 
 against the life of man come under the gen- 
 eral name of 'homicide,' which in our law 
 signifies the killing of a man by a man." 
 Id. bk. 1, c. 8, § 2. 
 
 It was considered in the civil or Roman 
 law that, although "man" and "person" are 
 synonymous in grammar, they had a differ- 
 ent acceptation in law. All persons were 
 men, but not all men — ^for example, slaves — 
 were persons, but things. See Barr. Obs. 
 St. 216, note. 
 
 MAN OF STRAW. See "Straw Men." 
 
 MANAGER. A person appointed or elect- 
 ed ta manage the affairs of another. A 
 term applied to those officers of a corpora- 
 tion who are authorized to manage its af- 
 fairs. 1 Bouv. Inst, note 190; 17 Mass. 29. 
 
 In England and Canada, the chief execu- 
 tive officer of a branch bank is called a "man- 
 ager." His duties are those of our presi- 
 dents and cashiers combined. His signature 
 is necessary to every contract binding on 
 the bank, except entries in the pass-books 
 of customers. He indorses bills, signs bills 
 of exchange and drafts, and conducts the 
 correspondence of the bank. He Is under 
 the control of the board of directors of the 
 bank, and there is usually a local or branch 
 board of directors, at which he acts as pre- 
 siding officer. Sewell, Bank. 
 
 One of the persons appointed on the part 
 of the house of representatives to prosecute 
 impeachments before the senate. 
 
 MANAGING OWNER OF SHIP. The man- 
 aging owner of a ship is one of several co- 
 owners, to whom the others, or those of 
 
MANAGIUM 
 
 (577) 
 
 MANDANS 
 
 them who join in the adventure, have dele- 
 gated the management of the ship. He has 
 authority to do all things usual and neces- 
 sary ill the management of the shii) and the 
 delivery of the cargo, to enable her to prose- 
 cute her voyage and earn freight, with the 
 right to appoint an agent for the purpose. 6 
 Q. B. Div. 93; L. R. 1 C. P. 649. 
 
 MANAGIUM. A mansion house or dwell- 
 ing place. Cowell. 
 
 MANAS MEDIAE. Men of low degree. 
 
 MANBOTE. A compensation paid the re- 
 lations of a murdered man by the murderer 
 or his friends. 
 
 MANCEPS. In Roman law. A purchaser; 
 one who took the articles sold in his hand 
 {qui manu cepit) ; a formality observed in 
 certain sales; a farmer of the public taxes. 
 Calv. Lex.; Adams, Rom. Ant. 55. 
 
 MANCHE PRESENT. A bribe; a present 
 from the donor's own hand. 
 
 MANCIPARE. In the Roman law. To sell, 
 alienate, or make over to another; to sell 
 with certain formalities. 
 
 To sell a person; one of the forms ob- 
 served in the process of emancipation. 
 
 MANCIPATIO (Lat. from manoipare, q. v.) 
 In the Roman law. A kind of sale in the 
 presence of five witnesses, accompanied with 
 delivery of possession or seisin; the pur- 
 chaser taking the thing sold in his hand. 
 It took place among Roman citizens only, 
 and was confined to certain property called 
 res maiwipi or manclpia. Calv. Lex.; Adams, 
 Rom. Ant. 55, 58. 
 
 The imaginary sale of a son in the cere- 
 mony of emancipation; so called because the 
 natural father gave over (maticipabat, i. e., 
 manu tradebat) his son to the purchaser, add- 
 ing these words, Mmtciipo HM liuiic filium qui 
 meus est. Adams, Rom. Ant. 52 ; Cooper, Just. 
 Inst, notes, *442, 443. 
 
 MANCIPI RES (Lat.) In old Roman law. 
 A name given to one of the leading divisions 
 of private property, the precise meaning of 
 which is not settled. XJlpian defines or de- 
 scribes it as embracing estates in Italy 
 (praedia in Italico solo) which were acquired 
 by mancipation, usucapion, or adjudication, 
 those rights of country estates called servi- 
 tudes, slaves, and working animals. Calv. 
 Lex. Gibbon explains it to mean things 
 originally taken in war (manu capti), and 
 which were sold in the particular form 
 called mancipatio, in order to assure the pur- 
 chaser that they had been the property of 
 an enemy, and not of a fellow citizen. 3 
 Gibb. Rom. Bmp. (Am. Ed. 1844) 176. 
 
 MANCIPIUM. The power acquired over a 
 freeman by the mancipatio. 
 
 To form a clear conception of the true im- 
 port of the word in the Roman jurispru- 
 dence, it is necessary to advert to the four 
 distinct powers which were exercised by the 
 pater-familias, viz.: The manus, or martial 
 
 power; the mancipium, resulting from the 
 mancipatio, or alienatio per aes et libram, 
 of a freeman; the dominica potestas, the 
 power of the master over his slaves, and the 
 patria potestas, the paternal power. When 
 the pater-familias sold his son, rciium dare, 
 mancipare, the paternal power was succeeded 
 by the mancipium, or the power acquired by 
 the purchaser over the person whom he held 
 in mancipio, and whose condition was as- 
 similated to that of a slave. What is most 
 remarkable is that, on the emancipation 
 from the mancipium, he fell back into the 
 paternal power, which was not entirely ex- 
 hausted until he had been sold three times 
 by the pater-familias. Si pater filium ter 
 venum duit, filius a patre liber esto. Gains 
 speaks of the mancipatio as imaginaria quae- 
 dam venditio, because in his time it was only 
 resorted to for the purpose of adoption or 
 emancipation. See "Adoption;" "Pater-Fa- 
 milias;" 1 Ortolan, 112 et seq. 
 
 MANCOMUNAL. In Spanish law. An ob- 
 ligation is said to be mancomunal when one 
 person assumes the contract or debt of an- 
 other, and makes himself liable to pay or 
 fulfill it. Schmidt, Civ. Law, 120. 
 
 MANDAMIENTO. In Spanish law. Com- 
 mission; authority or power of attorney; a 
 contract of good faith, by which one person 
 commits to the gratuitous charge of another 
 his affairs, and the latter accepts the charge. 
 White, New Recop. bk. 2, tit. 12, c. 1. 
 
 MANDAMUS. In practice. This is a high 
 prerogative writ, usually issuing out of the 
 highest court of general jurisdiction in a 
 state, in the name of the sovereignty, di- 
 rected to any natural person, corporation, 
 or inferior court of judicature within its ju- 
 risdiction, requiring them to do some par- 
 ticular thing therein specified, and which 
 appertains to their office or duty. 3 Bl. 
 Comm. 110; 4 Bac. Abr. 495; Opinion of Mar- 
 shall, C. J., 1 Cranch (U. S.) 137, 168. 
 
 It is a proper remedy to compel the per- 
 formance of a specific act where the act is 
 ministerial in its character (12 Pet. [U. S.] 
 524; 34 Pa. St. 293; 26 Ga. 665; 7 Iowa, 186, 
 390) ; but where the act is of a discretionary 
 (6 How. [U. S.] 92; 11 How. \V. S.] 272; 
 
 17 How. [U. S.] 284; 12 Gush. [Mass.] 403; 
 20 Tex. 60; 10 Cal. 376; 5 Har. [Del.] 108; 
 12 Md. 329; 4 Mich. 187; 5 Ohio St. 528) or 
 judicial nature (14 La. Ann. 60; 7 Cal. 130; 
 
 18 B. Mon. [Ky.] 423; 7 El. & Bl. 366), it 
 will lie only to compel action generally (11 
 Cal. 42; 30 Ala. [N. S.] 49; 28 Mo. 259); 
 and where the necessity of acting is a mat- 
 ter of discretion, it will not lie even to com- 
 pel action (6 How. [U. S.] 92; 5 Iowa, 380). 
 
 The writ of mandamus is either alterna- 
 tive or peremptory. The former usually is- 
 sued at the commencement of the suit, com- 
 manding in the alternative that defendant do 
 the specified act, or show cause why he 
 should not, and the latter, issued after hear- 
 ing, commanding the performance of the de- 
 cree without alternative. 
 
 MANDANS. In civil law. The employing 
 
MANDANT 
 
 (S78) 
 
 MANIA 
 
 party in a contract of mandate. One who 
 gives a thing in charge to another; one who 
 requires, requests, or employs another to do 
 some act for him. Inst. 3. 27. 1. et seq. 
 
 MANDANT. The bailor in a contract of 
 mandate. 
 
 MANDATA LICITA STRICTAM RECIPI- 
 unt interpretationem, sed illicita latam et 
 extensam. Lawful commands receive a strict 
 interpretation, but unlawful, a wide or broad 
 construction. Bac. Max. reg. 16. 
 
 MANDATAIRE. In French law. A man- 
 datary. 
 
 MANDATARIUS TERMINOS SIBl POSI- 
 tos transgredi non potest. A mandatary can- 
 not exceed the bounds of his authority. 
 Jenk. Cent. Cas. 53. 
 
 MANDATARY, or MANDATARIUS. One 
 
 who undertakes to perform a mandate. 
 Jones, Bailm. 53. 
 
 MANDATE. 
 
 In Practice. A judicial command or 
 
 precept issued by a court or magistrate, di- 
 recting the proper officer to enforce a judg- 
 ment, sentence, or decree. Commonly ap- 
 plied to the precept issued by an appellate 
 court after decision of the cause, command- 
 ing the lower court to proceed therein. 
 
 In Contracts. A bailment of property 
 
 in regard to which the bailee engages to do 
 some act without reward. Story, Bailm. § 
 137. 
 
 The contract of mandate in the civil law is 
 not limited to personal property, nor does it 
 require a delivery of personal property when 
 It relates to that. Both, de Mand. note 1; 
 Civ. Code La. arts. 2954-2964. It is, however, 
 restricted to things of a personal nature at 
 common law, and of these there must be 
 a delivery, actual or constructive. Story, 
 Bailm. § 142; 3 Strob. (S. C.) 343. 
 
 Mandates and deposits closely resemble 
 each other; the distinction being that in 
 mandates the care and service are the prin- 
 cipal, and the custody the accessory; while 
 in deposits the custody is the principal thing 
 and the care and service are merely acces- 
 sory. Story, Bailm. § 140. 
 
 In Civil Law. The instructions which 
 
 the emperor addressed to a public func- 
 tionary, and which were to serve as rules 
 for his conduct. These mandates resembled 
 those of the proconsuls, the mandata juris- 
 dictio, and were ordinarily binding on the 
 legates or lieutenants of the emperor of 
 the imperial provinces, and there they had 
 the authority of the principal edicts. Sa- 
 vigny. Dr. Rom. c. 3, § 24, note 4. 
 
 MANDATO. In Spanish law. The contract 
 of mandate. Escriche, Die. Raz.; Schmidt, 
 Civ. Law, 197. 
 
 MANDATOR. The person who consigns 
 property to another under a contract of man- 
 date. Story, Bailm. § 138. 
 
 MANDATORY. Containing a command; 
 
 peremptory. As applied to statutes, a provi- 
 sion is mandatory if proceedings in disre- 
 gard of It are absolutely void. 1 Duer (N 
 Y.) 79. 
 
 MANDATORY INJUNCTION. One wnich 
 commands the doing of some affirmative act 
 by the person to whom it is directed. See 
 14 Abb. Pr. (N. Y.) 106; 25 Fed. 654; High 
 Inj. § 478. 
 
 MANDATL|M. In the civil law. Mandate 
 
 ('/. f.) 
 
 MANDATUM NISI GRATUITUM NUL- 
 lum est. Unless a mandate is gratuitous, it 
 is not a mandate. Dig. 17. 1. 1. 4; Inst. 3. 
 27; 1 Bouv. Inst, note 1070. 
 
 MANDAVI BALLIVO. In English practice. 
 The return made by a sheriff when he has 
 committed the execution of a writ to a bailiff 
 of a liberty, who has the right to execute the 
 writ. 
 
 MAN ENS (pi. manentes; Law Lat. from ma- 
 iiere, to remain or stay.) In Saxon and old 
 English law. A kind of tenant inhabiting 
 a manse (mansi incola) ; an agricultural ten- 
 ant (qui hydan colit). Spelman. The ceorls 
 are mentioned in the later Anglo-Saxon char- 
 ters, under the name of manentes. 1 Spence 
 Ch. 50. 
 
 MAN ERA. In Spanish law. Manner or 
 mode. Las Partidas, pt. 4, tit. 4, lib. 2. 
 
 MANERIUM DICITUR A MANENDO, SE- 
 cundum excellentiam, sedes magna, fixa, et 
 stabilis. A manor is so called from manendo, 
 according to its excellence, a seat, great, 
 fixed, and firm. Co. Litt. 58. 
 
 MANHOOD. In feudal law. A term denot- 
 ing the ceremony of doing homage by the 
 vassal to his lord. The formula used was 
 devenio vester homo, I become your man. 2 
 Bl. Comm. 54. See "Homage." 
 
 MANIA. In medical jurisprudence. This 
 is the most common of all the forms of re- 
 cent insanity, and consists of one or both 
 of the following conditions, viz., intellectu- 
 al aberration, and morbid or affective obliq- 
 uity. 
 
 In other words, the maniac either misap- 
 prehends the true relations between persons 
 and things, in consequence of which he 
 adopts notions manifestly absurd, and be- 
 lieves in occurrences that never did and 
 never could take place, or his sentiments, 
 affections, and emotions are so perverted 
 that whatever excites their activity is viewed 
 through a distorting medium; or, which is 
 the most common fact, both these conditions 
 may exist together, in which case their rela- 
 tive share in the disease may differ in such 
 a degree that one or the other may scarcely 
 be perceived at all. According as the intel- 
 lectual or moral element prevails, the disease 
 is called "intellectual" or "moral" mania. 
 Whether the former is ever entirely want- 
 ing has been stoutly questioned, less from 
 any dearth of facts than from some fancied 
 
MANIA A POTU 
 
 (579) 
 
 MANOR 
 
 metaphysical incongruity. The logical con- 
 sequence of the doubt is that, in the absence 
 of intellectual disturbance, there is really no 
 insanity, — the moral disorders proceeding 
 rather from unbridled passions than any 
 pathological condition. Against all such rea- 
 soning it will be sufficient here to oppose 
 the very common fact that in every collec- 
 tion of the insane may be found many who 
 exhibit no intellectual aberration, but in 
 whom moral disorders of the most flagrant 
 kind present a marked contrast to the pre- 
 vious character and habits of life. 
 
 Both forms of mania may be either gen- 
 eral or partial. In the latter, the patient 
 has adopted some notion having a very lim- 
 ited influence upon his mental movements, 
 while outside of that no appearance of im- 
 pairment or irregularity can be discerned. 
 Pure "monomania," as this form of insanity 
 has been often called, — that is, a mania con- 
 fined to a certain point, the understanding 
 being perfectly sound in every other respect, 
 — is, no doubt, a veritable fact, but one of 
 very rare occurrence. The peculiar notions 
 of the insane, constituting insane belief, are 
 of two kinds, — "delusions" and "hallucina- 
 tions." By the former is meant a firm be- 
 lief in something impossible, either in the 
 nature of things or in the circumstances of 
 the case, or, if possible, highly improbable, 
 and associated in the mind of the patient 
 with consequences that have to it only a 
 fanciful relation. By "hallucination" is 
 meant an impression supposed by the pa- 
 tient, contrary to all proof or possibility, to 
 have been received thrpugh one of the senses. 
 For instance, the belief that one is Jesus 
 Christ or the pope of Rome is a delusion; the 
 belief that one hears voices speaking from 
 the walls of the room, or sees armies con- 
 tending in the clouds, is a hallucination. 
 The latter implies some morbid activity of 
 the perceptive powers; the former is a mis- 
 take of the intellect exclusively. 
 
 MANIA A POTU. See "Delirium Tremens." 
 
 MANIFEST. 
 
 In Commercial Law. A written instru- 
 ment containing a true account of the cargo 
 of a ship or a commercial vessel. 
 
 As to the requirements of the United 
 States laws in respect to manifests, see 1 
 Story, U. S. Laws, 593, 594. 
 
 The want of a manifest, where one is re- 
 quired, and also the making a false manifest, 
 are grave offenses. 
 
 In Evidence. That which is clear and 
 
 requires no ^roof ; that which is notorious. 
 
 MANIFESTA PROBATIONE NON INDI- 
 gent. Manifest things require no proof. 7 
 Coke, 40b. 
 
 MANIFESTO. A solemn declaration, by 
 the constituted authorities of a nation, 
 which contains the reasons for its public 
 acts towards another. 
 
 On the declaration of war, a manifesto is 
 usually issued, in which the nation declar- 
 ing the war states the reasons for so doing. 
 
 Vattel, lib. 3, c. 4, § 64; Wolff. Dr. Nat. § 
 1187. 
 
 MANKIND. Persons of the male sex; the 
 human species. St. 25 Hen. VIII., c. 6, 
 makes it felony to commit sodomy with man- 
 kind or beast. Females as well as males are 
 included under the term "mankind." Fortes- 
 cue, 91; Bac. Abr. "Sodomy." 
 
 MANNER AND FORM. In pleading. After 
 traversing any allegation in pleading, it is 
 usual to say, "in manner and form as he 
 has in his declaration in that behalf .alleged," 
 which is as much as to include in the 
 traverse not only the mere fact opposed to 
 it, but that in the manner and form in which 
 it is stated by the other party. These words, 
 however, only put in issue the substantial 
 statement of the manner of the fact trav- 
 ersed, and do not extend to the time, place, 
 or other circumstances attending it, .if they 
 were not originally material and necessary 
 to be proved as laid. 3 Bouv. Inst. 297. 
 See "Modo et Forma." 
 
 MANN I RE. To cite any person to appear 
 in court and stand in judgment there. It 
 is different from bannire; for, though both 
 of them are citations, this is by the ad- 
 verse party, and that is by the judge. Du 
 Gauge. 
 
 MANNOPUS (Lat.) An ancient word, 
 which signifies goods taken in the hands of 
 an apprehended thief. 
 
 MANOR. This word is derived from the 
 French manoir, and signifies a house, resi- 
 dence, or habitation. At present its mean- 
 ing is more enlarged, and includes not 
 only a dwelling house, but also lands. See 
 Co. Litt. 58, 108; 2 Rolle, Abr. 121; Merlin, 
 Repert, "Manoir." See Sergeant, Land Laws 
 Pa. 195. 
 
 In English Law. A tract of land orig- 
 inally granted by the king to a person of 
 rank, part of which (terrae tenementales) 
 were given by the grantee or lord of the 
 manor to his followers; the rest he retained, 
 under the name of his desmesnes {terrae 
 dominicales) . That which remained uncul- 
 tivated was called the "lord's waste," and 
 served for public roads, and commons of 
 pasture for the lord and his tenants. The 
 whole fee was called a "lordship," or "bar- 
 ony," and the court appendant to the manor 
 the "court baron." The tenants, in respect 
 to their relation to this court and to each 
 other, were called pares curiae; in relation 
 to the tenure of their lands, copyholder {g. 
 v.), as holding by a copy of the record in 
 the lord's court. 
 
 The franchise of a manor, i. e., the right to 
 jurisdiction and rents and services of copy- 
 holders. Cowell. No new manors were cre- 
 ated in England after the prohibition of sub- 
 infeudation by St. Quia Bmptores, in 1290. 
 1 Washb. Real Prop. 30. 
 
 In American Law. A manor is a tract 
 
 held of a proprietor by a fee-farm rent in 
 money or in kind, and descending to oldest 
 
MANQUELLER 
 
 (S80) 
 
 MANUS 
 
 son of proprietor, who in New York is called 
 a "patroon." 
 
 "Manor" is derived originally either from 
 Latin manendo, remaining, or from British 
 maer, stones, being the place marked out or 
 inclosed by stones. Webster. 
 
 MANQUELLER (Saxon). A murderer. 
 
 MAN RENT, or MAN RED. In Scotch law. 
 The service of a man or vassal. A bond of 
 manrent was an instrument by which a per- 
 son, in order to secure the protection of 
 some powerful lord, bound himself, "in man- 
 rent and service, to be leil and trew man 
 and servant," specifying the service. 
 
 MANSE. Habitation; farm and land. Spel- 
 man. Parsonage or vicarage house. Par. 
 Ant. 431; Jacob. So in Scotland. Bell, Diet. 
 
 MANSER. A bastard. Cowell. 
 
 MANSION HOUSE. Any house of dwell- 
 ing, in the law of burglary, etc. 3 Inst. 64. 
 
 The term "mansion hotfse," in its common 
 sense, not only includes tiie dwelling house, 
 but also all the buildings within the curti- 
 lage, as the dairy house, the cow house, the 
 stable, etc.; though not under the same roof 
 nor contiguous. Burn, Inst. ''Burglary;" 1 
 Thomas, Co. Litt. 215, 216; 1 Hale, P. C. 558; 
 4 Bl. Comm. 225. See 3 Serg. & R. (Pa.) 
 199; 4 Strob. (S. C.) 372; 13 Bost. Law Rep. 
 157; 4 Call. (Va.) 109; 14 Mees. & W. 181; 
 4 C. B. 105. 
 
 MANSLAUGHTER. Manslaughter is homi- 
 cide committed without excuse or justifica- 
 tion, and without malice aforethought, ex- 
 pressed or implied. 1 Hawk. P. C. c. 30, §§ 
 2, 3; Steph. Dig. Crim. Law, art. 223. 
 
 Voluntary manslaughter is an intentional 
 homicide in sudden passion or heat of blood 
 caused by reasonable provocation, and not 
 with malice aforethought. 1 Hale, P. C. 466. 
 
 To constitute voluntary manslaughter, (1) 
 the killing must be intentional; (2) it must 
 be without malice; (3) the provocation must 
 be so great as to reasonably excite passion 
 in an ordinary man, and cause him to act 
 rashly and without reflection, and so imme- 
 diate as not to afford reasonable cooling 
 time. 
 
 Involuntary manslaughter is homicide 
 committed unintentionally, but without ex- 
 cuse, and not under such circumstances as 
 to raise the implication of malice. 23 Iowa, 
 154; 62 Mich. 29. It may arise (1) from the 
 doing of a criminal act not amounting to a 
 felony, nor naturally tending to cause death 
 or great bodily harm; (2) from the doing 
 of a lawful act with gross negligence; (3) 
 from the omission to perform a legal duty 
 under circumstances showing gross negli- 
 gence. 
 
 By statutes in the various states, the de- 
 grees of manslaughter and the elements of 
 each degree have been variously altered. 
 
 MANSUETUS. Tame. See "Animals." 
 
 MANSUM CAPITALE. The manor house. 
 
 MANTHEOFF (Saxon). A horse thief. 
 
 MANU BREVI (Lat.) In civil law. With 
 a short hand. A term used in the civil law, 
 signifying shortly; directly; by the shortest 
 course; without circuity. Calv. Lex. 
 
 MANU FORTI. With strong hand. Used 
 in writs of trespass. 
 
 MANU LONG A. In civil law. With a long 
 hand; indirectly or circuitously. Calv. Lex. 
 
 MANUCAPTIO. A writ which lay to ad- 
 mit to bail one taken on suspicion of felony, 
 and who could riot be admitted to bail by 
 the sheriff. 
 
 MANUCAPTORS. Mainpernors {g.v.) 
 
 MANUFACTURING CORPORATIONS. 
 
 Such as are engaged in "the production of 
 some article, thing, or object, by skill or 
 labor, out of raw material, or from matter 
 which has already been subjected to natural 
 forces." 99 N. Y. 184. 
 
 It has been held to include a company for 
 the manufacture and supply of illuminating 
 gas (89 N. Y. 409); but otherwise as to a 
 company supplying natural gas (108 Pa. 
 111). It includes a company preparing ice 
 by artificial refrigeration, but not one cut- 
 ting and storing natural ice. 99 N. Y. 181. 
 It includes a company engaged in refining 
 oil (101 Mass. 385) ; a milling company (17 
 111. 54) ; but not a mining company (106 
 Mass. 131), nor a dry-dock company engaged 
 in repairing vessels (92 N. Y. 487). A com- 
 pany engaged in publishing a newspaper is 
 not a manufacturing company (51 N. J. 
 Law, 75; 60 Minn. 82; 18 Nat. Bankr. Reg. 
 319) ; but a book and job printing company 
 is (47 N. J. Law, 36; 51 N. J. Law, 75; 6 
 Nat. Bankr. Reg. 238). 
 
 A company dealing in the articles of its 
 manufacture is not engaged exclusively in 
 manufacturing. 66 Minn. 234. 
 
 MANUMISSION. The act of releasing 
 from the power of another; the act of giving 
 liberty to a slave. 
 
 In the Roman Law. It was a generic 
 
 expression, equally applicable to the enfran- 
 chisement from the manus, the mancipium, 
 the dominica potestas, and the patria potes- 
 tas. 
 
 MANUNG, or MONUNG. In old English 
 law. The district within the jurisdiction of 
 a reeve, apparently so called from his power 
 to exercise therein one of his chief functions, 
 viz., to exact (amanian) all fines. 
 
 MANURABLE. In old English law. Ca- 
 pable of being had or held in hand; capable 
 of manual occupation; capable of being cul- 
 tivated; capable of being touched; tangible; 
 corporeal. Hale, Anal. § 24. 
 
 MANUS (Lat. hand). Anciently signified 
 the person taking an oath as a compurgator. 
 The use of this word probably came from 
 the party laying his hand on the New Tes- 
 tament. Manus signifies, among the civil- 
 ians, power, and is frequently used as 
 synonymous with potestas. Lee. Elm. § 94. 
 
MANUS MORTUA 
 
 (S81) 
 
 MARINER 
 
 MANUS MORTUA. A dead hand; mort- 
 main. Spelman. 
 
 MANUSCRIPT. An unpublished writing, 
 or one that has been published without the 
 consent of the person entitled to control it. 
 
 MANUTENENTIA. In old English law. 
 Maintenance. 
 
 MANWORTH. In old English law. The 
 price or value of a man's life or head. Cow- 
 ell. 
 
 MARAUDER. One who, while employed 
 in the army as a soldier, commits a lar- 
 ceny or robbery in the neighborhood of the 
 camp, or while wandering away from the 
 army. Merlin, Repert. See Halleck, Int. 
 Law; Lieber, Buerrilla Parties. 
 
 MARC-BANCO. The name of a coin. The 
 marc-banco of Hamburg, as money of ac- 
 count, at the custom house, is deemed and 
 taken to be of the value of thirty-five cents. 
 Act March 3, 1843. 
 
 MARCH. In Scotch law. A boundary line. 
 Bell, Diet.; Ersk. Inst. 2. 6. 4. 
 
 MARCHERS. In old English law. Nobles 
 who lived on the Marches, and had their own 
 laws, and power over life and death, as if 
 they were petty princes. Camden; Jacob. 
 Abolished by St. 27 Hen. VIII. c. 26, 1 Bdw. 
 VI. c. 10, and 1 & 2 Philip & M. c. 15. They 
 were also called "Lords Marchers." 
 
 MARCHES. In old English law. Bounda- 
 ries or frontiers of a state. 
 
 MARCH ETA. 
 
 In Old Scotch Law. A custom for the 
 
 lord of a fee to lie the first night with the 
 bride of his tenant. Abolished by Malcolm 
 III. Spelman; 2 Bl. Comm. 83. 
 
 A fine paid by the tenant for the remission 
 of such right, originally a mark or half a 
 mark of silver. Spelman. 
 
 In Old English Law. A fine paid for 
 
 leave to marry, or to bestow a daughter in 
 marriage. Cowell. 
 
 The etymology of the term is variously 
 traced from Scotch march, a horse, Latin 
 marca, a mark, and British merch, a maid. 
 The first of these is approved by Skene. 
 
 MARCHIONESS. A dignity in a woman 
 corresponding to that of marquis in a man, 
 and obtained either by creation or by mar- 
 riage with a marquis. Wharton. 
 
 MARESCALLUS (from German, march, 
 horse, and schalch, master). A groom of 
 the stables, who also took care of the dis- 
 eases of the horses. Du Cange. 
 
 An officer of the imperial stable, magister 
 equorum. Du Cange. 
 
 A military officer, whose duty it was to 
 keep watch on the enemy, to choose place of 
 encampment, to arrange or marshal the army 
 in order of battle, and, as master of the 
 horse, to commence the battle. This office 
 was second to that of comes stalmli, or con- 
 stable. Du Cange. 
 
 An officer of the court of exchequer. 51 
 Hen. III. 5. 
 
 An officer of a manor, who oversaw the 
 hospitalities (mansionarius) . Du Cange; 
 Fleta, lib. 2, c. 74. 
 
 Maresoallus aulae. An officer of the royal 
 household, who had charge of the person of 
 the monarch and peace of the palace. Du 
 Cange. 
 
 MARETUM (Lat.) Marshy ground over- 
 flowed by the sea or great rivers. Co. Litt. 5. 
 
 MARGIN. See "Gambling Contract." 
 
 MARINARIUS(LawLat.) An ancient word 
 which signified a mariner or seaman. In 
 England, marinarius capitaneus was the ad- 
 miral or warden of the ports. 
 
 MARINE. Belonging to the sea; relating 
 to the sea; naval. A soldier employed, or 
 liable to be employed, on vessels of war, un- 
 der the command of an officer of marines, 
 who acts under the direction of the com- 
 mander of the slip. See "Marine Corps." 
 It is also used as a general term to denote 
 the whole naval power of a state or coun- 
 try. 
 
 MARINE CONTRACT. One whicli relates 
 to business done or transacted upon the sea 
 and in seaports, and over which the courts 
 of admiralty have jurisdiction concurrent 
 with the courts of common law. See "Mari- 
 time Contract;" Pars. Mar. Law; 2 Gall. (U. 
 S.) 398. 
 
 MARINE CORPS. A body of officers and 
 soldiers under an organization separate and 
 distinct from that of the army, and intended 
 for service, in detached portions, on board of 
 ships of war. 
 
 MARINE INSURANCE. A contract of in- 
 demnity by which one party, for a stipu- 
 lated premium, undertakes to indemnify the 
 other, to the extent of the amount insured, 
 against all perils of the sea, or certain enu- 
 merated perils, to which his ship, cargo, and 
 freight, or some of them, may be exposed 
 during a certain voyage, or a fixed period 
 of time. 
 
 MARINE INTEREST. A compensation 
 paid for the use of money loaned on bot- 
 tomry or respondentia. Provided the money 
 be loaned and put at risk, there is no fixed 
 limit to the rate which may be lawfully 
 charged by the lender; but courts of ad- 
 miralty, in enforcing the contract, will miti- 
 gate the rate when it is extortionate and un- 
 conscionable. 
 
 MARINE LEAGUE. A measure equal to 
 the twentieth part of a degree of latitude. 
 Bouch. Inst, note 1845. It is generally con- 
 ceded that a nation has exclusive territorial 
 jurisdiction upon the high seas for a marine 
 league from its own shores. 1 Kent, Comm. 
 29. 
 
 MARINER. One whose occupation it is to 
 navigate vessels upon the sea. Surgeons, 
 engineers, clerks, stewards, cooks, porters. 
 
MARIS ET FOEMINAE, ETC, 
 
 (582) 
 
 MARITIME TORT 
 
 and chamber maids, on passenger steamers, 
 when necessary for the service of the ship 
 or crew, are also deemed mariners, and per- 
 mitted as such to sue in the admiralty for 
 their wages. 1 Conkl. Adm. 107. See "Sea- 
 man." 
 
 MARIS ET FOEMINAE CONJUNCTIO 
 est de jure naturae. The union of male and 
 female is founded on the law of nature. 7 
 Coke, 13. 
 
 MARITAGIO AMISSO PER DEFALTAM. 
 An obsolete writ for the tenant in frank 
 marriage to recover lands, etc., of which he 
 was deforced. 
 
 MARITAGIUM (Lat.) A portion given 
 with a daughter in marriage. 
 
 During the existence of the feudal law, 
 it was the right which the lord of the fee 
 had, under certain tenures, to dispose of 
 the daughters of his vassal in marriage. 
 Beames, Glanv. 138, note; Bracton, 21a; 
 Spelman; 2 Bl. Comm. 69; Co. Litt. 21b, 76a. 
 
 MARITAGIUM EST AUT LIBERUM AUT 
 servitio obligatum; llberum maritaglum dici- 
 tur ubi donator vult quod terra sic data 
 quieta sit et libera ab omni seculari servitio. 
 A marriage portion is either free or bound 
 to service; it is called "frank marriage" 
 when the giver wills that land thus given 
 be exempt from all secular service. Co. 
 Litt. 21. 
 
 MARITAGIUM HABERE. To have the 
 free disposal of an heiress in marriage. 
 
 MARITAL. That which belongs to mar- 
 riage; as, marital rights, marital duties. 
 
 MARITAL PORTION. In Louisiana. The 
 name given to that part of the deceased hus- 
 band's estate to which the widow is entitled. 
 Civ. Code La. 334, art. 55; 3 Mart. (La.; N. 
 S.) 1. 
 
 MARITAL RIGHTS. The rights of a hus- 
 band. Chiefly applied to the right of sexual 
 intercourse. 
 
 MARITIMA ANGLIAE. In old English law. 
 The emolument or revenue coming to the 
 king from the sea, which the sheriffs an- 
 ciently collected, but which was afterwards 
 granted to the admiral. Spelman. 
 
 MARITIMA INCREMENTA. In old Eng- 
 lish law. Marine increases; lands gained 
 from the sea. Hale de Jur. Mar. pt. 1, c. 4. 
 
 MARITIME. Pertaining to the sea. Ordi- 
 dinarily, the term is synonymous with "ma- 
 rine." 
 
 MARITIME CAUSE. A cause arising from 
 a maritime contract, whether made at sea 
 or on land. 
 
 The term includes such causes as relate 
 to the business, commerce, or navigation of 
 the sea; as charter parties, bills of lading, 
 and other contracts of affreightment; bot- 
 tomry and respondentia contracts; and con- 
 tracts for maritime services in repairing. 
 
 supplying, and navigating ships and vessels; 
 contracts and quasi contracts respecting 
 averages, contributions, and jettisons, when 
 the party prosecuting has a maritime lien; 
 and also those arising from torts and in- 
 juries committed on the high seas, or on 
 other navigable waters within the admiralty 
 jurisdiction. 
 
 MARITIME CONTRACT. One which re- 
 lates to the business of navigation upon the 
 sea, or to business appertaining to com- 
 merce or navigation to be transacted or 
 done upon the sea, or in seaports, and over 
 which courts of admiralty have jurisdiction 
 concurrent with the courts of common law. 
 
 Such contracts, according to the civilians, 
 include, among others, charter parties, bills 
 of lading, marine hypothecations, contracts 
 for services in building, repairing, supply- 
 ing, and navigating ships, contracts respect- 
 ing averages, jettisons, etc. 
 
 In an early opinion by Story, J., these 
 views were generally adopted (2 Gall. [U. 
 S.] 398), but it has been since held that the 
 contract for building a vessel is not a mari- 
 time contract (20 How. [U. S.] 393; 22 
 How. [U. S.] 129). 
 
 MARITIME COURT. A court of admiralty 
 jurisdiction. 
 
 MARITIME INTEREST. Marine interest 
 (3. V.) 
 
 MARITIME LAW. That system of law 
 which particularly relates to the affairs and 
 business of the sea, to ships, their crews and 
 navigation, and to the marine conveyance 
 of persons and property. See 21 Wall. (U. 
 S.) 558. 
 
 MARITIME LIEN. See "Lien." 
 
 MARITIME LOAN. A contract or agree- 
 ment by which one, who is the lender, lends 
 to another, who is the borrower, a certain 
 sum of money, upon condition that, if the 
 thing upon which the loan has been made 
 should be lost by any peril of the sea, or 
 vis major, the lender shall not be repaid un- 
 less what remains shalj be equal to the 
 sum borrowed; and if the thing arrive in 
 safety, or in case it shall not have been in- 
 jured but by its own defects, or the fault 
 of the master or mariners, the borrower 
 shall be bound to return the sum borrowed, 
 together with a certain sum agreed upon as 
 the price of the hazard incurred. Braerig. 
 Mar. Loans, c. 1, § 2. See "Bottomry;" 
 "Gross Adventure;" "Marine Interest;" "Re- 
 spondentia." 
 
 MARITIME PROFIT. A term used by 
 French writers to signify any profit derived 
 from a maritime loan. 
 
 MARITIMESTATE. In English law. The 
 officers and enlisted men of the English 
 navy. 
 
 MARITIME TORT. One committed on the 
 high seas, or otherwise with admiralty juris- 
 diction. 
 
MARK 
 
 (583) 
 
 MARRIAGE LICENSE 
 
 MARK. A sign, traced on paper or parch- 
 ment, which stands in the place of a sig- 
 nature; usually made by persons who cannot 
 write. It is most often the sign of the cross, 
 made in a little space left between the 
 Christian name and surname. 2 Bl. Comm. 
 305; 2 Curt. 324; Moody & M. 516; 12 Pet. 
 (U. S.) 150; 7 Bing. 457; 2 Ves. Sr. 455; 1 
 Ves. & B. 362 ; 1 Ves. Jr. 11. A mark is now 
 held to be a good signature, though the 
 party was able to write. 8 Adol. & B. 94; 
 3 Nev. & P. 228; 3 Curt. 752; 5 Johns. (N. 
 Y.) 144; 2 Bradf. Sur. (N. Y.) 385; 24 Pa. 
 St. 502; 29 Pa. St 221; 19 Mo. 609; 21 Mo. 
 17; 18 Ga. 396; 16 B. Mon. (Ky.) 102; 1 
 Jarm. Wills (Perkins Ed.) 69, 112, note; 
 
 1 Williams, Bx'rs, 63. See St. Pa. 1848. 
 
 MARKET (Lat. nierx, merchandise; an- 
 ciently, mercat). A public place and ap- 
 pointed time for buying and selling. A pub- 
 lic place, appointed by public authority, 
 where all sorts of things necessary for the 
 subsistence or for the convenience of life 
 are sold. 14 N. Y. 356. All fairs are mar- 
 kets, but not vice versa. Bracton, lib. 2, c. 
 24; Co. Litt. 22; 2 Inst. 401; 4 Inst. 272. 
 Markets are generally regulated by local 
 laws. 
 
 The franchise by which a town holds a 
 market, which can only be by royal grant 
 or immemorial usage. 21 Barb. (N. Y.) 296, 
 
 2 Bl. Comm. 37. 
 
 By the term "market" is also understood 
 the demand there is for any particular ar- 
 ticle; as, the cotton market in Europe is 
 dull. See 15 Viner, Abr. 42; Comyn, Dig. 
 
 MARKET GELD. The toll of a market. 
 
 MARKET OVERT. An open or public mar- 
 ket; that is, a place appointed by law or 
 custom for the sale of goods and chattels 
 at stated times in public. "An open, public, 
 and legally constituted market." Jervis, C. 
 J., 9 J. Scott, 601. 
 
 The market place is the only market overt 
 out of London; but in London every shop is 
 a market overt. 5 Coke, 83; F. Moore, 300. 
 In London, every day except Sunday is mar- 
 ket day. In the country, particular days are 
 fixed for market days. 2 Bl. Comm. 449. 
 
 The term is of importance in English 
 law, because of the protection afforded pur- 
 chasers in good faith in market overt. 5 
 Coke, 83. 
 
 MARKET PRICE. See "Market Value." 
 
 MARKET TOWNS. Those towns which 
 are entitled to hold markets. 1 Steph. 
 Comm. (7th Ed.) 130. 
 
 MARKET VALUE. The price established 
 by public sales, or sales in the way of or- 
 dinary business. 99 Mass. 345. 
 
 MARKETZELD, or MARKET GELD. The 
 toll of a market. 
 
 MARKETABLE TITLE. A title which is 
 not only good, but as to which there is no 
 reasonable doubt as to matter of either law 
 or fact. Such a title as dealers in real es- 
 
 tate, banks, etc., would be willing to invest 
 in. 46 Hun (N. Y.) 638. 
 
 MARKSMAN. In practice and conveyanc- 
 ing. One who makes his mark; a person 
 who cannot write, and only makes his mark 
 In executing instruments. Archb. N. P. 13; 
 2 Chit. 92. 
 
 MARLBRIDGE, STATUTE OF. An impor- 
 tant English statute (52 Hen. III. [1267]) 
 relating to the tenures of real property, and 
 to procedure. It derived its name from the 
 town in Wiltshire in which parliament sat 
 when it was enacted, now known as Marl- 
 borough. Compare 2 Reeve, Hist. Eng. Law, 
 62; Crabb, Com. Law, 156; Barr. Obs. St. 66. 
 
 MARQUE AND REPRISAL. See "Letter 
 of Marque and Reprisal." 
 
 MARQUIS. A nobleman next in rank to a 
 duke. 
 
 MARRIAGE. Marriage, as distinguished 
 from the agreement to marry, and the act of 
 becoming married, is the civil status of one 
 man and one woman united in law for the 
 discharge to each other and the community 
 of the duties legally incumbent on husband 
 and wife. See Bish. Mar. & Div. § 3. 
 
 Marriage is generally referred to as a con- 
 tract, but, under modern doctrine, its con- 
 tractual nature is confined to the formation 
 of the relation, such formation being wholly 
 a matter of contract. But, when formed, 
 marriage is not a contract, but a status. 30 
 Ga. 176; 3 Heisk. (Tenn.) 307; 53 Mo. 578; 
 9 Ind. 37. 
 
 As applied to the act of becoming married, 
 marriage is the acts, whether of private con- 
 tract or ofiicial or religious ceremonial, by 
 which a man and a woman lawfully enter 
 into the married state. 
 
 MARRIAGE ARTICLES. Articles of agree- 
 ment between parties contemplating mar- 
 riage, in accordance with which the mar- 
 riage settlement is afterwards to be drawn 
 up. They are to be binding in case of mar- 
 riage. They must be in writing, by statute 
 of frauds. Burton, Real Prop. 484; Crabb, 
 Real Prop. § 1809; 4 Cruise, Dig. 274, 323. 
 See 2 Washb. Real Prop. Append. 
 
 MARRIAGE BROKERAGE. The act by 
 which a person interferes, for a considera- 
 tion to be received by him, between a man 
 and a woman, for the purpose of promoting 
 a niarriage between them. The money paid 
 for such service is also known by this name. 
 
 It is a doctrine of the courts of equity 
 that all marriage brokage contracts are ut- 
 terly void, as against public policy, and are, 
 therefore, incapable of confirmation. 1 
 Fonbl. Eq. bk. 1, c. 4, § 10, note (s) ; 2 
 Story, Eq. Jur. § 263; Newland, Cont. 469. 
 But where a party is established in business 
 as a marriage broker, one dealing with him 
 is not //( pari delicto, and can recover back 
 money deposited on a contract. 124 N. Y. 
 156. 
 
 MARRIAGE LICENSE. A license required 
 
MARRIAGE PORTION 
 
 (584) 
 
 MASTER AT COMMON DAW 
 
 in some states to be obtained from a public 
 officer by persons intending to marry. 
 
 MARRIAGE PORTION. That property 
 which is given to a woman on her marriage. 
 See "Dowry." 
 
 MARRIAGE, PROMISE OF. A promise of 
 marriage is a contract entered into between 
 a man and woman that they will marry each 
 other. 
 
 MARRIAGE &ETTLEMENT. An agree- 
 ment made by the parties in contemplation 
 of marriage, by which the title to certain 
 property is changed, and the property to 
 sorae extent becomes inalienable. 1 Rice, 
 Bq. (S. C.) 315. See 2 Hill Ch. (S. C.) 3; 
 8 Leigh (Va.) 29; 1 Dev. & B. Bq. (N. C.) 
 389; 2 Dev. & B. Eq. (S. C.) 103; 1 Baldw. 
 (U. S.) 344; 15 Mass. 106; 1 Yeates (Pa.) 
 221; 7 Pet. (U. S.) 348; 4 Bouv. Inst, note 
 3947. See 2 Washb. Real Prop. Append. 
 
 MARSHAL. An officer of the United States, 
 whose duty it is to execute the process of 
 the courts of the United States. His duties 
 within the district for which he is appointed 
 are very similar to those of a sheriff. See 
 U. S. St. at Large, Index; Sergeant, Const. 
 Law, c. 25; 2 Dall. (U. S.) 402; Burr's 
 Trial, 365; 1 Mason (U. S.) 100; 2 Gall. (U. 
 S.) 101; 4 Cranch (U. S.) 96; 7 Cranch (U. 
 ■S.) 276; 9 Cranch (U: S.) 86, 212; 6 Wheat. 
 (U. S.) 194; 9 Wheat. (U. S.) 645. 
 
 MARSHALING. Arranging; putting in 
 proper order; e. g., "the law will marshal 
 words, ut res magis valeat." Hill, B., Hardr. 
 92. So to marshal assets. See "Assets." Soto 
 marshal coat armor. Thls^ now belong^ to 
 heralds. Wharton. 
 
 MARSHALING ASSETS. Such an arrange- 
 ment of different funds as will enable all 
 parties having equities therein to receive 
 their due proportions, notwithstanding the 
 intervening interests of particular persons 
 to prior satisfaction out of a part of the 
 funds. 1 Story, Bq. 558. The doctrine does 
 not apply unless there are two funds in ex- 
 istence to which claim is made by several 
 having diverse rights. L. R. 3 Bq. 668. But 
 it is immaterial what is the nature of the 
 property which constitutes the fund. 
 
 MARSHALING SECURITIES. Anarrange- 
 ment of creditors into classes with respect 
 to their satisfaction out of the assets of the 
 common debtor in such manner as to compel 
 the creditor having a right of resort to two 
 or more different funds to satisfy his claim 
 first from the fund to which no other cred- 
 itor has a right to resort. 1 Story, Bq. 633. 
 
 MARSHALSEA. In English law. A pris- 
 on belonging to the king's bench. It has 
 now been consolidated with others, under 
 the name of the queen's prison. 
 
 MARSHALSEA, COURT OF. A court orig- 
 inally held before the steward and marshal 
 of the royal household. 
 
 It was instituted to administer justice be- 
 
 tween the servants of the king's household, 
 that they might not be drawn into other 
 courts, and their services lost. It was an- 
 ciently ambulatory; but Charles I. erected a 
 court of record, by the name of curia palatii. 
 to be held before the steward of the house- 
 hold, etc., to hold pleas of all personal ac- 
 tions which should arise within twelve miles 
 of the royal palace at Whitehall, not In- 
 cluding the city of London. This court was 
 held weekly, to determine causes involving 
 less than twenty pounds, together with the 
 ancient court of Marshalsea, in the borough 
 of Southwark. A writ of error lay thence 
 to the king's bench. Both courts were abol- 
 ished by St. 12 & 13 Vict. c. 101, § 13. See 
 Jacob; Whishaw. 
 
 MARTE SUO DECURRERE (Lat. to run 
 by its. own force). A term applied in the 
 civil law to a suit when It ran its course to 
 the end, without any impediment. Calv. 
 Lex.; Brissonius. 
 
 MARTIAL LAW. That military rule and 
 authority which exists in time of war, and 
 is conferred by the laws of war, in relation 
 to persons and things under and within the 
 scope of active military operations, in carry- 
 ing on the war, and which extinguishes or 
 suspends civil rights and the remedies found- 
 ed upon them, for the time being, so far as 
 it may appear to be necessary in order to 
 the full accomplishment of the purposes of 
 the war. Prof. Joel Parker, in N. A. Rev., 
 Oct., 1861. 
 
 The application of military government to 
 persons and property within the scope of it, 
 according to the laws and usages of war, to 
 the exclusion of the municipal government, 
 in all respects where the latter would im- 
 pair the efficiency of military rule and mili- 
 tary action. Id. 
 
 MASS A. In the civil law. A mass; raw 
 material. 
 
 MAST. To fatten with mast (acorns, etc.) 
 1 Leon. 186. 
 
 MAST SELLING. In old English law. The 
 practice of selling the goods of dead seamen 
 at the mast. Held void. 7 Mod. 141. 
 
 MASTER. One who has control over an 
 apprentice. 
 
 A master stands in relation to his appren- 
 tices in loco parentis, and is bound to fulfill 
 that relation, which the law generally en- 
 forces. He is also entitled to be obeyed by 
 his apprentices as if they were his children. 
 Bouv. Inst. Index. See "Apprenticeship." 
 
 One who is employed in teaching children; 
 known, generally, as a "schoolmaster." 
 
 One who has in his employment one or 
 more persons hired by contract to serve him, 
 either as domestic or common laborers. 
 
 MASTER AT COMMON LAW. In English 
 law. An officer of the superior courts of 
 common law (each court having five), whose 
 principal duties, when attending court, con- 
 sists in taking affidavits sworn in court, in 
 
MASTER IN CHANCERY 
 
 (S8S) 
 
 MATHEMATICAL EVIDENCE 
 
 administering oaths to attorneys on their 
 admission, and in certifying to the court, in 
 cases of doubt or difficulty, what the prac- 
 tice of the court Is. Their principal duties 
 out of court consist in taxing attorneys' 
 costs, in computing principal and interest on 
 bills ' of exchange, promissory notes, and 
 other documents, under rules to compute, 
 in examining witnesses who are going 
 abroad for the purpose of obtaining their 
 testimony, in hearing and determining rules 
 referred to them by the court in the place 
 of the court itself, and in reporting to the 
 court their conclusions with reference to 
 the rules so referred to them. Holthouse. 
 
 MASTER IN CHANCERY (anciently MAS- 
 ten of the chancery) (Law Lat. magister can- 
 cellariae). In equity practice. An important 
 officer of courts of equity, who acts as as- 
 sistant to the chancellor or judge, and whose 
 principal duty consists In inquiring into vari- 
 ous matters referred to him for the purpose, 
 and reporting thereon to the court. Whar- 
 ton; Holthouse. In England, there are 
 twelve of these masters, of whom the mas- 
 ter of the rolls is the chief. 
 
 These officers were originally the chief 
 clerks of the chancery {clerici de prima for- 
 ma), who acted as the assessors or council 
 of the lord chancellor (collaterales et socii 
 cancellarii) . 2 Reeve, Hist. Eng. Law, 251. 
 According to Mr. Spence, they obtained the 
 title of "masters" in the reign of Edward 
 III. 1 Spence, Ch. 360. But they appear to 
 have had the title of praeceptores at a much 
 earlier period. 2 Reeve, Hist. Eng. Law, ubi 
 supra; Crabb, Hist. Eng. Law, 184. 
 
 MASTER OF A SHIP. In maritime law. 
 The commander or first officer of a mer- 
 chant ship; a captain. 
 
 MASTER OF THE CROWN OFFICE. lii 
 
 English law. The queen's coroner and at- 
 torney in the criminal department of the 
 court of queen's bench, who prosecutes at 
 the relation of some private person, or com- 
 mon informer, the crown being the nominal 
 prosecutor. Wharton. 
 
 MASTER OF THE ROLLS (Law Lat. 
 magister rotulorum). In English law. An as- 
 sistant judge of the court of chancery, who 
 holds a separate court ranking next to that 
 of the lord chancellor, and has the keeping 
 of the rolls and grants which pass the great 
 seal, and the records of the chancery. He 
 was originally appointed only for the super- 
 intendence of the writs and records apper- 
 taining to the common-law department of 
 the court, and is still properly the chief of 
 the masters in chancery. 3 Steph. Comm. 
 417; Wharton. 
 
 MATE. In maritime law. The officer next 
 in rank to the master on board a merchant 
 ship or vessel. 
 
 In such vessels there is always one mate, 
 and sometimes a second, third, and fourth 
 mate, according to the vessel's size, and the 
 trade in which she may be engaged. When 
 the word "mate" is used without qualifica- 
 tion, it always denotes the first mate; and 
 
 the others are designated as above. On 
 large ships the mate is frequently styled 
 "first officer," and the second and third 
 mates, "second" and "third" officers. Par- 
 ish, Sea Off. Man. 83-140. 
 
 MATER-FAMILIAS. . In civil law. The 
 mother of a family; the mistress of a fam- 
 ily. 
 
 A chaste woman, married or single. Calv. 
 Lex. 
 
 MATERIA (LatT 
 
 In the Civil Law. Materials; as dis- 
 tinguished from species, or the form given 
 by labor and skill. Dig. 41. 1. 7. 7-12 ; Fleta, 
 lib. 3, c. 2, § 14. 
 
 Materials (wood) for building, as distin- 
 guished from "lignum." Dig. 32. 55. pr. 
 
 In English Law. Matter; substance; 
 
 subject matter. 3 Bl. Comm. 322. 
 
 MATERIAL. 
 
 (1) That which enters into the erection 
 or repair of any structure. It does not in- 
 clude tools or facilities used. 71 Pa. St. 293. 
 
 (2) That which is essential or important. 
 
 M AT E R I A L I TY. The property of substan- 
 tial Importance or influence, especially as 
 distinguished from formal requirement. Ca- 
 pability of properly influencing the result of 
 the trial. 
 
 MATERIALMEN. Persons who furnish 
 materials to be used in the erection of build- 
 ings, ships, etc. 
 
 By the general American law, material- 
 men have a lien on a foreign ship (9 Wheat. 
 [U. S.] 409), but not on a domestic ship (20 
 How. [U. S.] 393). By statute, materialmen 
 have a lien on a building. See "Mechanic's 
 Lien." 
 
 MATERNA MATERNIS (Lat. from the 
 mother to the mother's). In French law. 
 A term denoting the descent of property of 
 a deceased person derived from his mother 
 to the relations on the mother's side. 
 
 MATERNAL. That which belongs to, or 
 comes from, the mother; as, maternal au- 
 thority, maternal relation, maternal estate, 
 maternal line. See "Line." 
 
 MATERNAL PROPERTY. That which 
 comes from the mother of the party, and 
 other ascendants of the maternal stock. 
 Domat, Llv. Prel. tit. 3, § 2, note 12. 
 
 MATERNITY. The state or condition of a 
 mother. 
 
 It is either legitimate or natural. The 
 former is the condition of the mother who 
 has given birth to legitimate children: 
 while the latter is the condition of her who 
 has given birth to illegitimate children. Ma- 
 ternity is always certain; while the pa- 
 ternity is only presumed. 
 
 MATHEMATICAL EVIDENCE. That evi- 
 dence which is established by a demonstra- 
 tion. It is used In contradistinction to 
 "moral evidence." 
 
MATIMA 
 
 (586) 
 
 MAXIM 
 
 MATIMA. A godmother. 
 
 MATRICIDE. The murder of a mother; 
 or one who has slain his mother. 
 
 MATRICULA. In civil law. A register in 
 which are inscribed the names of persons 
 who become members of an association or 
 society. Dig. 50. 3. 1. In the ancient church 
 there were matricula clericorum, which was 
 a catalogue of the officiating clergy, and 
 matricula pauperum, a list of the poor to 
 be relieved; hence, to be entered in the uni- 
 versity is to be matriculated. 
 
 MATRIMONIA DEBENT ESSE LIBERA. 
 
 Marriages ought to be free. Halk. Max. 86; 
 2 Kent, Comm. 102. 
 
 MATRIMONIAL CAUSES. In the English 
 ecclesiastical courts there are five kinds of 
 causes which are classed under this head, 
 viz.: Causes for a malicious jactitation; 
 suits for nullity of marriage, on account of 
 fraud, incest, or other bar to the marriage 
 (2 Hagg. Consist. 423); suits for restitution 
 of conjugal rights; suits for divorces on ac- 
 count of cruelty or adultery, or causes which 
 have arisen since the marriage; suits for 
 alimony. 
 
 MATRIMONIUM. In civil law. A legal 
 marriage. A marriage celebrated in con- 
 formity with the rules of the civil law was 
 called justum matrimonium; the husband 
 vir, the wife uxor. It was exclusively con- 
 fined to Roman citizens, and to those to 
 whom the connuMum had been conceded. 
 It alone produced the paternal power over 
 the children, and the marital power — manus 
 — over the wife. The farreum, the coemptio, 
 or the usus was indispensable for the forma- 
 tion of this marriage. See "Pater-Familias." 
 
 MATRIMONIUM SUBSEQUENS TOLLIT 
 peccatum praecedens. A subsequent mar- 
 riage cures preceding criminality. 
 
 MATRIMONY. The nuptial state. 
 
 MATRIX. In civil law. The protocol or 
 first draft of a legal instrument, from which 
 all copies must be taken. See 16 S. W. 53. 
 
 MATRON. A woman who is a mother. 
 See "Jury Women." 
 
 MATTER EN LEY NE SERRA MISE EN 
 bouche del jurors. Matter of laws shall not 
 be put into the mouth of jurors. Jenk. Cent. 
 Cas. 180. 
 
 MATTER IN CONTROVERSY. The sub- 
 ject of litigation; the amount demanded in 
 an action. 1 Serg. & R. (Pa.) 269. 
 
 MATTER IN DEED. Such matter as may 
 be proved or established by a deed or special- 
 ty. Matter of fact, in contradistinction to 
 matter of law. Co. Litt. 320; Steph. PI. 197. 
 
 MATTER IN ISSUE. The issue (g. «.) 
 
 MATTER IN PAIS (literally, matter in the 
 country). Matter of fact, as distinguished 
 
 from matter of law or matter of record. See 
 "In Pais." 
 
 MATTER OF COURSE. See "Of Course." 
 
 MATTER OF FACT. In pleading. Matter 
 the existence or truth of which is determined 
 by the senses, or by reasoning based upon 
 their evidence. The decision of such mat- 
 ters is referred to the jury. Hob. 127; 1 
 Greenl. Bv. § 49. 
 
 MATTER OF FORM. See "Form." 
 
 MATTER OF LAW. Matter the truth or 
 falsity of which is determined by the estab- 
 lished rules of law or reasoning based on 
 them. 70 N. C. 167. 
 
 MATTER OF RECORD. Those facts which 
 may be proved by the production of a record. 
 It differs from matter in deed, which con- 
 sists of facts which may be proved by 
 specialty. See "Record." 
 
 MATTER OF SUBSTANCE. See "Sub- 
 stance." 
 
 MATTERS OF SUBSISTENCE FOR MAN. 
 
 Comprehends all articles or things, whether 
 animal or vegetable, living or dead, . which 
 are used for food, and whether they are con- 
 sumed in the form in which they are bought 
 from the producer, or are only consumed 
 after undergoing a process of preparation, 
 which is greater or less, according to the 
 character of the article. 19 Grat. (Va.) 813. 
 
 MATURIORA SUNT VOTA MULIERUM 
 quam virorum. The wishes of women are of 
 quicker growth than those of men; i. e., wo- 
 men arrive at maturity earlier than men. 
 6 Coke, 71a; Bracton, 86b. 
 
 MATURITY. 
 
 becomes due. 
 
 The time when a bill or note 
 
 M AXI M.* An established principle or prop- 
 osition; a principle of law universally ad- 
 mitted, as being just and consonant with 
 reason. 
 
 Maxims in law are somewhat like axioms 
 in geometry. 1 Bl. Comm. 68. They are 
 principles and authorities, and part of the 
 general customs or common law of the land, 
 and are of the same strength as acts of par- 
 liament, when the judges have determined 
 what is a maxim; which belongs to the 
 judges and not the jury. Termes de la Ley; 
 Doctor & Stud. Dial. 1, c. 8. Maxims of the 
 law are holden for law, and all other cases 
 that may be applied to them shall be taken 
 for granted. Co. Litt. 11, 67. See Plowd. 
 27b. 
 
 The application of the maxim to the case 
 before the court is generally the only diffi- 
 culty. The true method of making the ap- 
 plication is to ascertain how the maxim 
 arose, and to consider whether the case to 
 which it is applied is of the same character, 
 or whether it is an exception to an appar- 
 ently general rule. 
 
 •The most important of the maxims of law will be 
 found alphabetically aiTaDged through this bool;. 
 
MAXIME ITA DICTA, ETC. 
 
 (587) 
 
 MEDIATOR 
 
 MAXIME ITA DICTA QUIA MAXIMA EST 
 ejus dignitas et certisslma auctoritas, atque 
 quod maxime omnibus probetur. A maxim is 
 so called because Its dignity is chlefest, and 
 its authority the most certain, and because 
 universally approved by all. Co. Lltt. 11. 
 
 MAXIME PACI SUNT CONTRARIA, VIS 
 et injuria. The greatest enemies to peace 
 are force and wrong. Co. Litt. 161. 
 
 MAXIMUS ERRORIS POPULUS MAGIS- 
 ter. The people is the greatest master of 
 error. 
 
 MAY. Is permitted to ; has liberty to. The 
 term is ordinarily permissive (52 N. Y. 96; 
 107 Mass. 196), but in order to carry out 
 the intention of a statute (2 Pet. [U. S.] 
 64), or of a contract (84 111. 471; 44 Conn. 
 534), it will be held to be mandatory. 
 
 MAYHEM. In criminal law. The act of 
 unlawfully and violently depriving another 
 of the use of such of his members as may 
 render him less able, in fighting, either to 
 defend himself or annoy his adversary. 8 
 Car. & P. 167; 4 Bl. Comm. 205. The cutting 
 or disabling, or weakening, a man's hand 
 or finger, or striking out his eye or fore 
 tooth, or depriving him of those parts' the 
 loss of which abates his courage, are held 
 to be mayhems. But cutting off the ear or 
 nose, or the like, are not held to be may- 
 hems at common law. 4 Bl. Comm. 205. 
 The offense has been extended by statute to 
 these and other injuries. See 87 N. C. 509; 
 70 Iowa, 505. 
 
 MAYHEMAVIT. Maimed. This is a term 
 of art which cannot be supplied in pleadings 
 by any other word, as mutilavit, truncavit, 
 etc. 3 Thomas, Co. Litt. 548; 7 Mass. 247. 
 
 MAYNOVER (from Pr. moj/M, hand). Any- 
 thing produced by manual labor. 
 
 MAYOR (Lat. major; meyr, miret, or maer, 
 one that keeps guard). The chief governor 
 or executive magistrate of a city. The old 
 word was "portgreve." The word "mayor" 
 first occurs in 1189, when Richard I. sub- 
 stituted a mayor for the two bailiffs of Lon- 
 don. The word is common in Bracton. 
 Bracton, 57. In London, York, and Dublin, 
 he is called "lord mayor." Wharton. 
 
 MAYOR'S COURT. The name of a court 
 usually established in cities, composed of a 
 mayor, recorder, and aldermen, generally 
 having jurisdiction of offenses committed 
 within the city, and of other matters special- 
 ly given them by the statute. 
 
 MAYORALTY. The office or dignity of a 
 mayor. 
 
 MAYORAZGO. In Spanish law. A species 
 of entail known to Spanish law. 1 White, 
 New Recop. 119. 
 
 MEAL RENT. A rent formerly paid in 
 meal. 
 
 MEAN. See "Mesne." 
 
 MEANDER. To wind, as a river or stream. 
 Webster. 
 
 The winding or bend of a stream. 
 
 To survey a stream according to its mean- 
 ders or windings. Rev. St. Wis. c. 34, § 1; 2 
 Wis. 317. 
 
 MEASE, or MESE (Norman French). A 
 house. Litt. §§ 74, 251. 
 
 MEASON DUE. A corruption fo Maisoii 
 de Dieu. 
 
 MEASURE. A means or standard for com- 
 puting amount; a certain quantity of some- 
 thing, taken for a unit, and which expresses 
 a relation with other quantities of the same 
 thing. 
 
 MEASURE OF DAMAGES. In practice. 
 
 The rules by which the damage sustained is 
 to be estimated or measured; the quantum 
 of damage allowed by law. 
 
 MECHANIC'S LIEN. A statutory lien in 
 favor of persons who have performed labor 
 or furnished material for the erection or re- 
 pair of any building, upon the building and 
 the land on which it is situated. 
 
 MEDFEE. In old English law. A bribe or 
 reward; a compensation given in exchange, 
 where the things exchanged were not of 
 equal value. Cowell. 
 
 MEDIA ANNATA. In Spanish law. Half- 
 yearly profits of land. 5 Tex. 34, 79. 
 
 MEDIA NOX. Midnight. 
 
 MEDIAE ET INFIRMAE MANUS HOMI- 
 nes. Men of a middle and base condition. 
 Blount. 
 
 MEDIATE POWERS. Those incident to 
 primary powers, given by a principal to his 
 agent. For example, the general authority 
 given to collect, receive, and pay debts due 
 by or to the principal is a primary power. 
 In order to accomplish this, it is frequently 
 required to settle accounts, adjust disputed 
 claims, resist those which are unjust, and 
 answer and defencj suits. These subordinate 
 powers are sometimes called "mediate pow- 
 ers." Story, Ag. § 58. See 1 Campb. 43, 
 note; 4 Campb. 163; 6 Serg. & R. (Pa.) 149. 
 
 MEDIATE TESTIMONY. Secondary evi- 
 dence (g. V.) 
 
 MEDIATION. The act of some mutual 
 friend of two contending parties, who brings 
 them to agree, compromise, or settle their 
 disputes. Vattel, Dr. des Gens, liv. 2, c. IS, 
 § 328. 
 
 MED! ATO R. One who interposes between 
 two contending parties, with their consent, 
 for the purpose of assisting them in settling 
 their differences. Sometimes this term is 
 applied to an officer who is appointed by a 
 sovereign nation to promote the settlement 
 of disputes between two other nations. See 
 "Minister." 
 
MEDIATORS OF QUESTIONS 
 
 (588) 
 
 MELIUS EST, ETC. 
 
 MEDIATORS OF QUESTIONS. In Eng- 
 lish law. Six persons authorized by statute 
 (27 Edw. III. St. 2, c. 24), who, upon any 
 question arising among merchants relating 
 to unmerchantable wbol, or undue packing, 
 etc., might, before the mayor and officers of 
 the staple, upon their oath certify and settle 
 the same; to whose determination therein 
 the parties concerned were to submit. Cow- 
 ell. 
 
 MEDICAL EVIDENCE. Testimony given 
 by physicians or surgeons in their profes- 
 sional capacity as experts, or derived from 
 the statements of writers of medical or sur- 
 gical worlts. 
 
 This kind of evidence was first recognized 
 by Charles V. of Germany, and incorporated 
 in the "Caroline Code," framed at Ratlsbon 
 in 1532, wherein it was ordained that the 
 opinion of medical men — at first surgeons 
 only — should be received in cases of death 
 by violent or unnatural means, when sus- 
 picion existed of a criminal agency. The 
 publication of this code encouraged the mem- 
 bers of the medical profession to renewed 
 activity, tending greatly to advance their 
 sciences and the cause of justice generally. 
 Many books soon appeared on the subject of 
 medical jurisprudence, and, the importance 
 of medical evidence was more fully under- 
 stood. Elwell, Malprac. 285. 
 
 MEDICINE CHEST. A box containing an 
 assortment of medicines. 
 
 Statutory provisions in the United States 
 require all vessels above a certain size to 
 keep a medicine chest. 1 Story, U. S. Laws, 
 106; 2 Story, U. S. Laws, 971. 
 
 MEDIETAS LINGUAE. In old practice. 
 Moiety of tongue; half-tongue. Applied to 
 a jury impaneled in a cause consisting the 
 one-half of natives, and the other half of 
 foreigners. 
 
 MEDIO ACQUIETANDO. A judicial writ 
 to distrain a lord for the acquitting of a 
 mesne lord from a rent, which he had ac- 
 knowledged in court not to belong to him. 
 Reg. Jur. 129. 
 
 MEDITATIO FUGAE. In Scotch law. Con- 
 templation of flight; intention to abscond. 2 
 Kames, Eq. 14, 15. 
 
 MEDIUM TEMPUS. In old English law. 
 Meantime; mesne profits. Cowell. 
 
 MEDLETUM. In old English law. A mix- 
 ing together; a medley or melee; an affray 
 or sudden encounter; an offense suddenly 
 committed in an affray. The English word 
 "medley" is preserved in the term "chance 
 medley." An intermeddling, without vio- 
 lence, in any matter of business. Spelman. 
 
 MEDLEY. An affray; a sudden or casual 
 fighting; a hand to hand battle; a melee. 
 See "Chance Medley;" "Chaud Medley." 
 
 MEDSCEAT. In old English law. Abribe; 
 hush money. 
 
 MEGBOTE. A recompense for the mur- 
 der of a relative. 
 
 iviEIGNE. A family. 
 
 MEINDRE AGE. Lesser age; minority. 
 
 MEJORADO. In Spanish law. Preferred; 
 advanced. White, New Recop. lib. 3, tit. 10, 
 c. 1, § 4. 
 
 MELANCHOLIA. In medical jurispru- 
 dence. A name given by the ancients to a 
 species of partial intellectual mania, now 
 more generally known by the name of "mon- 
 omania." It bore this name because it was 
 supposed to be always attended by dejection 
 of mind and gloomy ideas. See "Mania." 
 
 MELDFEOH (Saxon). A fee paid to an 
 informer. 
 
 MELIOR (Lat.) Better. 
 
 MELIOR EST CAUSA POSSIDENTIS. The 
 
 cause of the possessor is preferable. Dig. 50. 
 17. 126. 2. 
 
 MELIOR EST CONDITIO DEFENDENTIS. 
 
 The cause of the defendant is the better. 
 Broom, Leg. Max. (3d London Ed.) 639, 642; 
 Dig. 50. 17. 126. 2; Hob. 199; 1 Mass. 66. 
 
 MELIOR EST CONDITIO POSSIDENTIS 
 at re! quam actoris. Better is the condition 
 of the possessor and that of the defendant 
 than that of the plaintiff. 4 Inst. 180; 
 Vaughan, 58, 60; Hob. 103. 
 
 MELIOR EST CONDITIO POSSIDENTIS, 
 ubi neuter jus habet. Better Is the condition 
 of the possessor where neither of the two has 
 a right. Jenk. Cent. Cas. 118. 
 
 MELIOR EST JUSTITIA VERE PRAEVE- 
 
 nlens quam severe puniens. That justice 
 which justly prevents a crime is better than 
 that which severely punishes it. 
 
 MELIORATIONS. In Scotch law. Improve- 
 ments of an estate, other than mere repairs; 
 betterments. 1 Bell, Comm. 73. 
 
 MELIOREM CONDITIONEM ECCLESIAE 
 suae facere potest praelatus, deteriorem ne- 
 quaquam. A bishop can make the condition 
 of his own church better, but by no means 
 worse. Co. Litt. 101. 
 
 MELIOREM CONDITIONEM SUUM FAC- 
 ^re potest minor, deteriorem nequaquam. 
 A minor can improve or make his condition 
 better, but never worse. Co. Litt. 337b. 
 
 MELIUS EST IN TEMPORE OCCURRE- 
 re, quam post causam vulneratum remedium 
 quaerere. It is better to restrain or meet a 
 thing in time, than to seek a remedy after a 
 wrong has been inflicted. 2 Inst. 299. 
 
MELIUS EST JUS, ETC. 
 
 (589) 
 
 MEMORY 
 
 MELIUS EST JUS DEFICIENS QUAM 
 jus incertum. Law that is deficient is better 
 than law that is uncertain. Lofft, 395. 
 
 MELIUS EST OMNIA MALA RATI QUAM 
 consent! re. It is better to suffer every wrong 
 or ill than to consent to it. 3 Inst. 23. 
 
 MELIUS EST PETERE PONTES QUAM 
 sectarl rivulos. It is better to go to the 
 fountain head than to follow little stream- 
 lets. 
 
 MELIUS EST RECURRERE QUAM MALO 
 currere. It is better to recede than to pro- 
 ceed wrongly. 4 Inst. 176. 
 
 MELIUS INQUIRENDUM VEL INQUI- 
 rendo. In old English practice. A writ which, 
 in certain cases, issued after an imperfect 
 inquisition returned on a capias utUgatum 
 in outlawry. This vieUus inquirendum com- 
 manded the sheriff to summon another in- 
 quest in order that the value, etc., of lands, 
 etc., might be better or more correctly as- 
 certained. 
 
 MEMBER. A limb of the body useful in 
 self-defense. Memhrum est pars corporis 
 Itaiens destinatum operationem in corpore. 
 Co. Litt. 126a. 
 
 An individual who belongs to a firm, part- 
 nership, company, or corporation. 
 
 One who belongs to a legislative body, or 
 other branch of the government; as, a mem- 
 ber of the house of representatives; a mem- 
 ber of the court. 
 
 MEMBER OF CONGRESS. A member of 
 the senate or house of representatives of 
 the United States. 
 
 MEMBERS. In English law. Places where 
 a custom house has been kept of old time, 
 with officers or deputies in attendance; and 
 they are lawful places of exportation or im- 
 portation. 1 Chit. Com. I.,aw, 726. 
 
 MEMBRANA (Lat.) In civil and old Eng- 
 lish law. Parchment; a skin of parchment. 
 Vocat.; Du Cange. The English rolls were 
 composed of several skins, sometimes as 
 many as forty-seven. Hale, Hist. Com. Law, 
 17. 
 
 MEMORANDUM (Lat. from memorare, to 
 remember). A note to assist the memory. 
 32 Conn. 509. An Informal instrument re- 
 cording some fact or agreement; so called 
 from its beginning, when it was made in 
 Latin. It is sometimes commenced with this 
 word, though written in English; as, "Mem- 
 orandum, that it is agreed;" or it is headed 
 with the words, "Be it remembered that," 
 
 6tc. 
 
 In English Practice. The commence- 
 ment of a record in king's bench, now writ- 
 ten in English, "Be it remembered," and 
 which gives name to the whole clause. 
 
 It is only used in proceedings by bill, and 
 not in proceedings by original, and was in- 
 troduced to ' call attention to what was con- 
 sidered the bye-business of the court. 2 
 Tidd, Prac. 775. Memorandum is applied, 
 
 also, to other forms and documents in Eng- 
 lish practice; e. g., "memorandum in error," 
 a document alleging error in fact, and ac- 
 companied by an affidavit of such matter of 
 fact. 15 & 16 Vict. c. 76, § 158. Also, a 
 "memorandum of appearance," etc., in the 
 general sense of an informal instrument, re- 
 cording some fact or agreement. 
 
 A writing required by the statute of 
 frauds. Vide "Note or Memorandum." 
 
 In Insurance. A clause in a policy lim- 
 iting the liability of the insurer. 
 
 MEMORANDUM CHECK. It is not un- 
 usual among merchants, when one makes a 
 temporary loan to another, to give the lend- 
 er a check on a bank, with the express or 
 implied agreement that it shall be redeemed 
 by the maker himself, and that it shall not 
 be presented at the bank for payment; such 
 understanding being denoted by the word 
 "memorandum" upon it. If passed to a third 
 person, it will be valid in his hands like any 
 other check. 4 Duer (N. Y.) 122; 11 Paige, 
 Ch. (N. Y.) 612. 
 
 MEMORANDUM CLAUSE. In a policy of 
 marine insurance, the memorandum clause 
 is a clause inserted to prevent the under- 
 writers from being liable for injury to goods 
 of a peculiarly perishable nature, and for 
 minor damages. It begins as follows: "N. 
 B. Corn, fish, salt, fruit, flour, and seed are 
 warranted free from average, unless general, 
 or the ship be stranded;" meaning that the 
 underwriters are not to be liable for damage 
 to these articles caused by sea water, orthe 
 like. 
 
 MEMORANDUM OF ALTERATION. For- 
 merly, in England, where a patent was 
 granted for two inventions, one of which 
 was not new or not useful, the whole patent 
 was bad, and the same rule applied when a 
 material part of a patent for a single inven- 
 tion had either of those defects. To remedy 
 this, St. 5 & 6 Wm. IV. c. 83, empowers a 
 patentee (with the fiat of the attorney gen- 
 eral) to enter a disclaimer {q. v.) or a mem- 
 orandum of an alteration in the title or 
 specification of the patent, not being of such 
 a nature as to extend the exclusive right 
 granted by the patent, and thereupon the 
 memorandum is deemed to be part of the let- 
 ters patent or the specification. Johns. Pat. 
 151; St. 15 & 16 Vict. c. 83, § 39. 
 
 MEMORANDUM OF ASSOCIATION. A 
 
 document by the registration of which a 
 company is formed under the English com- 
 panies act of 1862. 
 
 MEMORIAL. A petition or representation 
 made by one or more individuals to a legis- 
 lative or other body. When such instru- 
 ment is addressed to a court, it is called a 
 "petition." 
 
 MEMORITER (Lat.) From memory. 
 
 MEMORY. Understanding; a capacity to 
 make contracts, a will, or to commit a crime, 
 so far as intention is necessary. 
 
 Memory is sometimes employed' to express 
 
MEMORY, TIME OF 
 
 (590) 
 
 MERCHANDISE 
 
 the capacity of the understanding, and some- 
 times its power. When we speak of "a re- 
 tentive memory, we use it in the former 
 sense; when of a ready memory, in the lat- 
 ter. Shelf. Lun. Introd. 29, 30. 
 
 The reputation, good or had, which a man 
 leaves at his death. 
 
 This memory, when good, is highly prized 
 by the relations of the deceased, and it is 
 therefore libellous to throw a shade over the 
 memory of the dead, when the writing has a 
 tendency to create a breach of the peace, by 
 inciting the friends and relations of the de- 
 ceased to avenge the insult offered to the 
 family. 4 Term R. 126; 5 Coke, 125; Hawk. 
 P. C. bk. 1, c. 73, § 1. 
 
 MEMORY, TIME OF. According to the 
 English common law, which has been al- 
 tered by 2 & 3 Wm. IV. c. 71, the time of 
 memory commenced from the reign of Rich- 
 ard I., A. D. 1189. 2 Bl. Comm. 31. 
 
 But proof of a regular usage for twenty 
 years, not explained or contradicted, is evi- 
 dence upon which many public and private 
 rights are held, and sufficient for a jury in 
 finding the existence of an immemorial cus- 
 tom or prescription. 2 Saund. 175a, 175d; 
 Peake, Bv. 336; 2 Price, 450; 4 Price, 198. 
 
 MEN OF STRAW. S«e "Straw Men." 
 
 MENACE. A threat; a declaration of an 
 intention to cause evil to happen to another. 
 
 When menaces to do an injury to another 
 have been made, the party making them 
 may, in general, be held to bail to keep the 
 peace; and when followed by any inconven- 
 ience or loss, the injured party has a civil 
 action against the wrongdoer. Comyn, Dig. 
 "Battery" (D); Viner, Abr.; Bac. Abr. "As- 
 sault;" Co. Litt. 161a, 162b, 253h; 2 Lutw. 
 1428. 
 
 MENIAL. This term is applied to servants 
 who live under their master's roof. See St. 
 2 Hen. IV. c. 21. 
 
 MENS (Lat) Mind. 
 
 MENS LEGISLATORIS. The intent of the 
 legislators. 
 
 MENS REA (Lat.) A guilty mind. 
 
 MENS TESTATORIS IN TESTAMENTIS 
 spectanda est. In wills, the intention of the 
 testator is to be regarded. Jenk. Cent. Cas. 
 277. 
 
 MENSA (Lat.) An obsolete term, compre- 
 hending all goods and necessaries for liveli- 
 hoods. 
 
 MENSA ET THORO. See "Divorce." 
 
 MENSOR. In the civil law. A surveyor. 
 
 MENSULARIUS. In the civil law. A 
 money changer. 
 
 MENSURA. A measure. 
 
 MENSURA DOMINI REGIS. "The meas- 
 ure Of our lord the king." The standard of 
 
 weights and measures, established under 
 King Richard I., 1197. 1 Bl. Comm. 275. 
 
 MENTAL RESERVATION. A silent ex- 
 ception to the general words of a promise or 
 agreement not expressed, on account of a 
 general understanding on the subject. But 
 the word has been applied to an exception 
 existing in the mind of the one party only, 
 and has been degraded to signify a dishonest 
 excuse for evading or infringing a promise. 
 Wharton. 
 
 MENTIRI (Lat.) To lie; to assert a false- 
 hood. Calv. Lex.; 3 Bulst. 260. 
 
 MENTIRI EST CONTRA MENTEM IRE. 
 To lie is to go against the mind. 3 Bulst. 
 260. 
 
 MENTITION. The act of lying; a false- 
 hood. 
 
 MERA NOCTIS. Midnight. 
 
 MERCANTILE LAW. That branch of law 
 which defines and enforces the rights, duties, 
 and liabilities arising out of mercantile 
 transactions and relations. See "Law Mer- 
 chant." 
 
 MERCANTILE PAPER. Commercial pa- 
 per (g. V.) 
 
 MERCANTILE PARTNERSHIP. One form- 
 ed for trading purposes. 
 
 MERCAT. A market. An old form of the 
 latter word common in Scotch law, formed 
 from the Latin mercatum. 
 
 MERCATIVE. Belonging to trade. 
 
 MERCATUM (Lat.) A market. Du Cange. 
 A contract of sale. Id. Supplies for an 
 army (commeatus) . Id. See Bracton, 56; 
 Pleta, lib. 4, c. 28, §§ 13, 14. 
 
 MERCEN-LAGE. The law of the Merci- 
 ans. One of the three principal systems of 
 laws which prevailed in England about the 
 beginning of the eleventh century. It was 
 observed in many of the midland counties, 
 and those bordering on the principality of 
 Wales. 1 Bl. Comm. 65. 
 
 MERCENARIUS. A mercenary. 
 
 MERGES (Lat.) In civil law. Reward of 
 labor in money or other things. As distin- 
 guished from pensis, it means the rent of 
 farms {praedia rustici). Calv. Lex. 
 
 MERCHANDISE (Lat. merx). A term in- 
 cluding all those things which merchants 
 sell, either wholesale or retail; as, dry 
 goods, hardware, groceries, drugs, etc. It is 
 usually applied to personal chattels only, 
 and to those which are not required for food 
 or immediate support, but such as remain 
 after having been used, or which are used 
 only by a slow consumption. See Pardessus, 
 note 8; Dig. 13. 3. 1; Id. 19. 4. 1; Id. 50. 16. 
 66; 8 Pet. (U. S.) 277; 6 Wend. (N. Y.) 335. 
 
 Mere evidences of yalue, as bank bills, are 
 not merchandise. "The fact that a thing is 
 
MERCHANDISE MARKS ACT 1862 (591) 
 
 MERGER 
 
 sometimes bought and sold does not make it 
 merchandise." Story, J., 2 Story, C. C. (U. 
 S.) 10, 53, 54. See 2 Mass. 467; 20 Pick. 
 (Mass.) 9; 3 Met^. (Mass.) 367; 2 Pars. 
 Cont. 331, note (w). 
 
 Nor is baggage (6 Fed. 413), tools or fa- 
 cilities (26 Ind. 294), or animals kept for 
 use; though otherwise if they were imported 
 for purpose of sale only (22 Vt. 655). 
 
 MERCHANDISE MARKS ACT 1862. St. 
 25 & 26 Vict. c. 88. Its principal provision 
 Is that making it a misdemeanor to forge or 
 falsely apply any trade-mark or indication 
 of quality, or to sell any goods falsely 
 marked. 
 
 MERCHANT (Lat. mercator; merx). A 
 man who traffics or carries on trade with 
 foreign countries, or who exports and im- 
 ports goods, and sells them by wholesale. 
 Webster; Lex. Merc. 23. These are known 
 by the name of "shipping merchants." See 
 Comyn, Dig.; Dyer, 279b; Bac. Abr. 
 
 "Merchants," in the statute of limitations, 
 means not merely those trading beyond sea, 
 as formerly held (1 Chanc. Cas. 152; 1 Watts 
 & S. [Pa.] 469); but whether it includes 
 common retail tradesmen, quaere (1 Mod. 
 238; 4 Scott, N. R. 819; 2 Pars. Cont. 369, 
 370. See, also, 5 Cranch [U. S.] 15; 6 Pet. 
 [U. S.] 151; 12 Pet. [U. S.] 300; 5 Mason 
 [U. S.] 505). 
 
 According to an old authofity, there are 
 four species of merchants, namely, merchant 
 adventurers, merchants dormant, merchant 
 travelers, and merchant , residents. 2 
 Brownl. 99. See, generally, 9 Salk. 445; 
 Bac. Abr.; Comyn, Dig.; 1 Bl. Comm. 75, 
 260; 1 Pardessus, Dr. Com. note 78; 2 Show. 
 326; Bracton, 334. 
 
 One whose business it is to buy and sell 
 merchandise. This applies to all persons 
 who habitually trade in merchandise. 1 
 Watts & S. (Pa.) 469; 2 Salk. 445. 
 
 The term does not include those who buy 
 goods for the purpose of manufacture and 
 subsequent sale. 33 Mo. 424. A commercial 
 traveler is not a merchant (58 Miss. 478), 
 nor is a farmer who raises produce for the 
 market (3 T. B. Mon. [Ky.] 330), nor a spec- 
 ulator in stocks (8 Ben. [U. S.] 563). 
 
 MERCHANTS' SHIPPING ACTS. English 
 statutes for the amelioration of the condi- 
 tion of seamen on merchant vessels, and the 
 general improvement of shipping, and vest- 
 ing a control of merchant shipping in the 
 iDoard of trade to tjiat end. 
 
 MERCHET. Marcheta (g. r.) 
 
 MERCIAMENT. An amerciament. 
 
 MERCIMONIATUS ANGLIAE. In old rec- 
 ords. The impost of England upon mer- 
 •chandise. Cowell. 
 
 MERCIS APPELLATIO AD RES MOBIL- 
 ■es tarvtum pertinet. The term "merchan- 
 dise" ' belongs to movable things only. Dig. 
 !50. 16. 66. 
 
 MERCIS APPELLATIONE HOMINES 
 non continere. Under the name of "mer- 
 chandise," men are not included. Dig. 50. 16. 
 207. 
 
 MERCY (Law Pr. iiierci; Lat. vihcrlrirr- 
 diii). 
 
 In Practice. The arbitrament of the 
 
 king or judge in punishing offenses not di- 
 rectly censured by law. 2 Hen. VI. c. 2; 
 Jacob. So, to he in mercy signifies to be liable 
 to punishment at the discretion of the judge. 
 
 In Criminal Law. The total or partial 
 
 remission of a punishment to which a con- 
 vict is subject. When the whole punishment 
 is remitted, it is called a "pardon;" when 
 only a part of the punishment is remitted, 
 it is frequently a "conditional pardon;" or, 
 before sentence, it is called "clemency" or 
 "mercy." See Rutherforth, Inst. 224 ; 1 Kent, 
 Comm. 265; 3 Story, Const. § 1488. 
 
 As to the construction of "mercy" in the 
 exception to the Sunday laws in favor of 
 deeds of necessity and mercy, see 2 Pars. 
 Cont. 262, notes. 
 
 MERE (Pr.) Mother. This word is fre- 
 quently used; as, in ventre sa mere, which 
 signifies a child unborn, or in the womb. 
 
 MERE MOTION. See "Ex Mero Motu." 
 
 MERE RIGHT. An abstract right of prop- 
 erty without possession or right thereto. 2 
 Bl. Comm. 197. 
 
 MERE STONE. A boundary stone. 
 
 MERETRICIOUS. Illicit, as applied to 
 sexual relations. 
 
 MERGER. The absorption of a thing of 
 lesser importance by a greater, whereby the 
 lesser ceases to exist, but the greater is not 
 increased. 
 
 In Estates. When a greater estate 
 
 and less coincide and meet in one and the 
 same person, without any intermediate es- 
 tate, the less is immediately merged, that is, 
 sunk or drowned, in the latter. Por exam- 
 ple, if there be a tenant for years, and the 
 reversion in fee simple descends to or is pur- 
 chased by him, the term of years is merged 
 in the inheritance, and no longer exists; but 
 th€y must be to one and the same person, 
 at one and the same time, in one and the 
 same right. 2 Bl. Comm. 177; Latch, 153; 
 Poph. 166; 6 Madd. 119; 1 Johns. Ch. (N. 
 Y.) 417; 3 Johns. Ch. (N. Y.) 53; 3 Mass. 
 172. 
 
 Of Rights. Rights or demands merged 
 
 in a judgment for their enforcement (65 
 Ind. 243; 25 Pa. St. 200; 41 Mo. 205), or in 
 a security of a higher nature (10 Iowa, 443; 
 14 Mo. 450). Rights are also said to be 
 merged when the same person who is bound 
 to pay is also entitled to receive. This is 
 more properly called a "confusion of rights," 
 or "extinguishment." 
 
 In Torts. Where a person, in commit- 
 ting a felony, also commits a tort against a 
 private person, the wrong was, under the old 
 law, sunk in the felony, and, by modern law, 
 is suspended until after the felon's convic- 
 
MERIDIES 
 
 (S92) 
 
 MESSIS SEMENTEM, ETC: 
 
 tion. 1 Chit. Prac. 10. The rule is gener- 
 ally changed by statute. 
 
 In Crimes. At common law, if an act 
 
 included several offenses of different degree 
 (i. e., misdemeanors and felony), the mis- 
 demeanors merged in the felony (5 Mass. 
 106; 1 Mich. 217; 26 N. J. Law, 213); but 
 if the offenses were of the same grade, there 
 was no merger, and the prosecution might 
 elect on which to prosecute (48 Me. 238; 4 
 Wend. [N. Y.] 265; 93 Fed. 452). 
 
 The doctrine of merger of offenses is now 
 repudiated in England (11 Q. B. 929), and 
 in some of the United States (57 Conn. 461; 
 51 Minn. 382). 
 
 MERIDIES. Noon. 
 
 MERITS. The strict legal rights of the 
 parties, as distinguished from matters of 
 practice and matters resting in the discre- 
 tion of the court. 4 How. Pr. (N. Y.) 329; 
 Id. 432; 2 Daly (N. Y.) 203. 
 
 A cause of action or defense on the merits 
 is one resting on matters of substance, not 
 on form or technicality. See 12 Wis. 588. 
 A judgment on the merits is one decisive of 
 some strictly legal right of the party. 12 
 Minn. 357; 26 S. C. 119. 
 
 MERITS, AFFIDAVIT OF. See "Affidavit 
 of Merits." 
 
 MERO MOTU. See "Ex Mero Motu." 
 
 MERTON, STATUTE OF. An ancient Eng- 
 lish ordinance or statute (20 Hen. HI. 
 [1253]), which took its name from the place 
 in the county of Surrey where parliament 
 sat when it was enacted. 2 Inst. 79; Barr. 
 Obs. St. 41, 46; Hale, Hist. Com. Law, 9, 10, 
 18. 
 
 ME RUM (Lat.) In old English law. Mere; 
 naked or abstract. Merum jus, mere right. 
 Bracton, fol. 31. Majus jus merum, more 
 mere right. Id. See "Mere Right." 
 
 MERX EST QUIDQUID VENDI POTEST. 
 
 Merchandise is whatever can be sold. 3 
 Mete. (Mass.) 365. See "Merchandise." 
 
 MES. tof. mo. CO. gar. ter. pra. pas. bos. 
 brue. mora, 
 
 Junca. maris, alne. rus. re. sectare priora. 
 
 A rhyming couplet artificially constructed 
 by the old practitioners in real actions, for 
 the more easy remembrance of the rule re- 
 quiring the various parcels of land which 
 might be demanded in a writ of right to 
 be named in a certain order. It consists of 
 the first syllables of the following words; 
 Messvagium, tof turn, molendinum, columbare, 
 gardiiium, terra, pratwn, pastura, hoscus, brue- 
 ra mora, Jvncaria, mariscus, alnetum., rus- 
 cnria, reditus (in English, messuage, toft, 
 mill, dovehouse, garden, land,, meadow, pas- 
 ture, wood, heath, moor, rush ground, marsh, 
 alder ground, broom ground, rent) ; the 
 words sectare priora (follow the first sylla- 
 bles) denoting how it was to be read. Pitzh. 
 Nat. Brev. 2 (C). In the register, the com- 
 plementary syllables are written over each 
 of the abbreviations. Reg. Orig. 2. 
 
 MESAGUIM. A messuage. 
 
 MESCROYANT. Used in our ancient 
 books. An unbeliever. 
 
 MESE. An ancient word used to signify 
 "house;" probably from the French maison. 
 It is said that by this word the buildings, 
 curtilage, orchards, and gardens will pass. 
 Co. Litt. 56. 
 
 MESNALITY. The estate of a mesne ten- 
 ant. 
 
 MESNE. Intermediate; the middle be- 
 tween two extremes; that part between the 
 commencement and the end, as it relates to 
 time. 
 
 In England, the word "mesne" also ap- 
 plies to a dignity; those persons who hold 
 lordships or manors of some superior, who 
 is called "lord paramount," and grant the 
 same to inferior persons, are called "mesne 
 lords." 
 
 MESNE LORD. A middle or Intermediate 
 lord. 2 Bl. Comm. 59; 1 Steph. Comm. 168, 
 174. See "Mesne." 
 
 MESNE PROCESS. In practice. All writs 
 necessary to a suit between its beginning 
 and end, that is, between primary process or 
 summons and final process, or execution, 
 whether for the plaintiff, against the defend- 
 ant, or for either against any party whose 
 presence is necessary to the suit. 
 
 MESNE PROFITS. The value of land dur- 
 ing the period of a wrongful possession 
 thereof; that is to say, from the time of 
 wrongful en,try to dispossession. 3 Bl. 
 Comm. 205. 
 
 The net rental value or value of the use 
 and occupation of premises during the period 
 of a wrongful occupation. 101 N. Y. 13. 
 
 MESNE, WRIT OF. The name of an an- 
 cient writ, which lies when the lord para- 
 mount distrains on the tenant paravail. The 
 latter shall have a writ of mesne against the 
 lord who is mesne. Fitzh. Nat. Brev. 316. 
 
 MESQUE (Law Fr.) Except; unless. Fet. 
 Assaver, § 23. 
 
 MESS BRIEF. In Danish law. A certifi- 
 cate of admeasurement granted by compe- 
 tent authority at home port of vessel. Ja- 
 cobsen, Sea Laws, 50. 
 
 MESSENGER. An employe or officer whose 
 duty is to bear messages or communications. 
 
 In English Law. An officer who takes 
 
 possession of an insolvent or' bankrupt es- 
 tate. 
 
 MESSENGER ASSOCIATION. An associ- 
 ation engaged in the business of furnishing 
 messengers for hire to any who may desire 
 them. Such associations are held to be com- 
 mon carriers. 31 Abb. N. C. 147; 6 Misc. 
 Rep. (N. Y.) 534. 
 
 MESSIS SEMENTEM SEQUITUR. The 
 harvest follows the sowing. Ersk. Inst. 174. 
 26; Bell, Diet. 
 
MESSUAGE 
 
 (593) 
 
 MIDDLEMAN 
 
 MESSUAGE. A term used in conveyanc- 
 ing, and nearly synonymous with "dwelling 
 house." A grant of a messuage with the ap- 
 purtenances will not only pass a house, but 
 all the buildings attached or belonging to it, 
 as also its curtilage, garden, and orchard, 
 together with the close on which the house 
 is built. Co. Litt. 5b; 2 Saund. 400; Ham- 
 mond, N. P. 189; 4 Cruise, Dig. 321; 2 Term 
 R. 502; 4 Blackf. (Ind.) 331. But see the 
 cases cited in 9 Barn. & C. 681. This term, 
 it is said, includes a church. 11 Coke, 26; 
 2 Bsp. 528; 1 Salk. 256; 8 Barn. & C. 25. 
 And see 3 Wils. 141; 2 W. Bl. 726; 4 Mees. 
 & W. 567; 2 Bing. (N. C.) 617; 1 Saund. 6. 
 
 META (Lat.) The goal of a Roman race- 
 course; a mark or object about which the 
 chariots turned, and where the course ended. 
 
 In Old English Law. A boundary line ; 
 
 a border or terminus. Properly, a visible 
 object, standing upon the line, as a stone or 
 tree, and showing where it ended; a butt. 
 See "Butts and Bounds." Bmidae et metae, 
 et rationaiiles divisae quae ponuntur in 
 terminus et flniius agrirum, ad distinguen- 
 dum praedia et dominia vicinorum, bounds 
 and metes and reasonable divisions which 
 are set on the borders and limits of lands, 
 in order to distinguish the estates and prop- 
 erties of neighbors. Bracton, fols. 166b, 167; 
 Pleta, lib. 2, c. 41, § 30. Pro metis et termi- 
 nis ponendis. Mag. Rot. 3 Hen. III. rot. 14b. 
 
 METALLUM (Lat.) In the Roman law. 
 Metal; a mine. 
 
 Labor in mines, as a punishment for 
 crime. Dig. 40. 5. 24. 5; Calv. Lex. 
 
 METATUS (Law Lat.) In old European 
 law. A dwelling; a seat; a station; quar- 
 ters; the place where one lives or stays. 
 Spelman. 
 
 METAYER SYSTEM. A system of agri- 
 cultural holdings, under which the land is 
 divided, in small farms, among single fami- 
 lies, the landlord generally supplying the 
 stock which the agricultural system of the 
 country is considered to require, and receiv- 
 ing, in lieu of rent and profit, a fixed propor- 
 tion of the produce. This proportion, which 
 is generally paid in kind, is usually one-half. 
 1 Mill. Pol. Econ. 296, 363; 2 Smith, Wealth 
 of Nations, 3, c. 2; "Wharton. 
 
 METECORN. A measure of corn given 
 by a lord to customary tenants as a reward 
 for labor. 
 
 METEGAVEL. A rent paid in victuals. 
 
 METES AND BOUNDS. The boundary 
 lines of land, with their terminal points and 
 angles. Courses and distances control, un- 
 less there is matter of more certain descrip- 
 tion, e. g., natural monuments. 42 Me. 209. 
 A joint tenant cannot convey by metes and 
 bounds. 1 Hilliard, Real Prop. 582. See 
 "Boundary." 
 
 M ETHEL (Saxon). Speech. 
 
 METHOD. See "Process." 
 
 METROPOLIS (Graeco-Lat. and Eng.) A 
 
 mother city; one from which a colony was 
 sent out. Calv. Lex. 
 The capital of a province. Id. 
 
 METROPOLITAN. In English law. One 
 of the titles of an archbishop. Derived from 
 the circumstance that archbishops were con- 
 secrated at first in the metropolis of a prov- 
 ince. ■ 4 Inst. 94. 
 
 METUS (Lat.) A reasonable fear of an 
 intolerable evil, as of loss of life or limb, 
 such as may fall upon a brave man (virum 
 constantem). 1 Bl. Comm. 131; Calv. Lex. 
 And this kind ot fear alone will invalidate 
 a contract as entered into through duress. 
 Calv. Lex. 
 
 In a more general sense, fear. 
 
 MEU (Law Fr.) Moved; commenced, as 
 a suit. Kelham; Britt, c. 126. 
 
 MEUBLES. In French law. Movables (5. 
 V.) Meuiles meublans, household utensils 
 and ornaments. 
 
 MEtJM EST PROMITTERE, NON DIM- 
 ittere. It is mine to promise, not to dis- 
 charge. 2 Rolle, 39. 
 
 MICHAELMAS TERM. In English law. 
 One of the four terms of the courts. It be- 
 gins on the 2d day of November, and ends 
 on the 25th of November. It was formerly a 
 movable term. St. 11 Geo. IV. and 1 Wm. 
 IV. c. 70. 
 
 MICHEL GEMOT, or MICEL GEMOTE 
 (Saxon, great meeting or assembly). One of 
 the names of the general council immemori- 
 ally held in England. 1 Bl. Comm. 147. 
 
 One of the great councils of king and no- 
 blemen in Saxon times. 
 
 These great councils were severally called 
 wittena gemotes, afterwards micel synods, 
 and micel gemotes. Cowell (Ed. 1727) ; Cun- 
 ningham. See "Michel Synoth." 
 
 MICHEL SYNOTH (Saxon, great council). 
 One of the names of the general council im- 
 memorially held in England. 1 Bl. Comm. 
 147. 
 
 The Saxon kings usually called a "synod," 
 or mixed council, consisting both of ecclesi- 
 astics and the nobility, three times a year, 
 which was not properly called a "parliament" 
 till Henry III.'s time. Cowell (Ed. 1727) ; 
 Cunningham. 
 
 MICHERY. Theft; dishonesty. 
 
 MIDDLE THREAD (Law Lat. medium /?- 
 lum; Law Pr. fil de myleu). An imaginary 
 line drawn through the middle of a stream 
 in the direction of its length. Story, J., 3 
 Sumn. 170, 178. 
 
 MIDDLEMAN. One who has been em- 
 ployed as an agent by a principal, and who 
 has employed a subagent under him by au- 
 thority of the principal, either express or im- 
 plied. He is not, in general, liable for the 
 wrongful acts of the subagent, the principal 
 being alone responsible. 3Campb.4; 6 Term 
 R. 411; 14 East, 605. 
 
 A person who is employed both by the 
 
MIESES 
 
 (594) 
 
 MINA 
 
 seller and purchaser of goods, or by the pur- 
 chaser alone, to receive them into his posses- 
 sion, for the purpose of doing something in 
 or about them. 
 
 MIESES (Spanish). Crops. 
 
 MIDWIFE. In medical jurisprudence. A 
 woman who practises midwifery; a woman 
 who pursues the business of an accoucheuse. 
 
 MILE. A length of a thousand paces, or 
 seventeen hundred and sixty yards, or five 
 thousand two hundred and eighty feet. It 
 contains eight furlongs, every furlong being 
 forty poles, and each pole sixteen feet six 
 inches. 2 Starkie, 89. 
 
 MILEAGE. A compensation of so much 
 per mile allowed to officers travelling on the 
 public business, or to any person authorita- 
 tively summoned in respect to a matter of 
 public importance, as to a witness. 
 
 MILES. 
 
 In Civil Law. A soldier. Yel a "mili- 
 
 iia" ant a "multitudine," aut a numero, 
 "inille hominnm." Vocat. 
 
 In Old English Law. A knight, be- 
 cause military service was part of the feudal 
 tenure. Also, a tenant by military service, 
 not a knight. 1 Bl. Comm. 404; Seld. Tit. 
 Hon. 334. 
 
 MILITARY CAUSES. In English law. 
 Causes of action or injuries cognizable in 
 tlie court military, or court of chivalry. 3 
 Bl. Comm. 103. 
 
 MILITARY COURTS. In English law. In- 
 clude the ancient court of chivalry and mod- 
 ern court-martial (g. c.) 3 Bl. Comm. 68, 
 103. 
 
 MILITARY FEUDS. The genuine or orig- 
 inal feuds which were in the hands of mili- 
 tary men, who performed military duty for 
 their tenures. 
 
 MILITARY LANDS. In American law. 
 Lands granted to soldiers for military serv- 
 ices. U. S. Dig. "Military and Bounty 
 Lands." 
 
 MILITARY LAW. A system of regula- 
 tions for the government of an army. 1 Kent, 
 Comm. 377, note. 
 
 That branch of the laws which respects 
 military discipline and the government of 
 persons employed in the military service. De 
 Hart, Courts-Martial, 16. 
 
 Military law is to be distinguished from 
 martial law. Martial law extends to all per- 
 sons; military law to all military persons 
 only, and not to those in a civil capacity. 
 Martial law supersedes and suspends the 
 civil law, but military law is superadded 
 and subordinate to the civil law. See 2 Kent, 
 Comm. 10; 34 Me. 126. 
 
 Jhe body of the military law of the United 
 States is contained in the act of April 30, 
 1806. and the amendatory acts. 
 
 MILITARY OFFENSES. Those offenses 
 which are cognizable by the courts military. 
 
 as insubordination, sleeping on guard, deser- 
 tion, etc. 
 
 MILITARY STATE. The soldiery of the 
 kingdom of Great Britain. 
 
 MILITARY TENURES. The various ten- 
 ures by knight service, grand serjeanty, corn- 
 age, etc., are frequently called "military ten- 
 ures," from the nature of the services which 
 they involve. 1 Steph. Comm. 204. 
 
 MILITARY TESTAMENT. In English law. 
 A nuncupative will, — that is, one made by 
 word of mouth, — ^by which a soldier may dis- 
 pose of his goods, pay, and other personal 
 chattels, without the forms and solemnities 
 which the law requires in other cases. St. 1 
 Vict. c. 26, § 11. 
 
 MILITES. Knights, and, in Scotch law, 
 freeholders. 
 
 MILITIA. A body of persons enlisted and 
 trained to military duty, but not kept In 
 service, being subject only to service on call, 
 as in case of invasion, insurrection, or riot. 
 94 111. 120. 
 
 MILL. A complicated engine or machine 
 for grinding and reducing to fine particles 
 grain, fruit, or other substance, or for per- 
 forming other operations by means of wheels 
 and a circular motion. 
 
 The house or building that contains the 
 machinery for grinding, etc'. Webster. 
 
 MILLBANK PRISON. Formerly called the 
 "Penitentiary at Millbank." A prison at 
 Westminster, for convicts under sentence of 
 transportation, until the sentence or order 
 shall be executed, or the convict be entitled 
 to freedom, or be removed to some other 
 place of confinement. This prison is placed 
 under the inspectors of prisons appointed by 
 the secretary of state, who are a body corpo^ 
 rate, "The Inspectors of the Millbank Pris- 
 on." The inspectors make regulations for the 
 government thereof, subject to the approba- 
 tion of the secretary of state, and yearly re- 
 ports to him, to be laid before parliament. 
 The secretary also appoints a governor, chap- 
 lain, medical officer, matron, etc. Wharton. 
 
 MILLEATE, or MILL LEAT. A trench to 
 convey water to or from a mill. St. 7 Jac. I. 
 c. 19. 
 
 MILLED MONEY. This term means mere- 
 ly coined money, and it is not necessary 
 that it should be marked or rolled on the 
 edges. Leach, C. C. 708. 
 
 MILREIS. The name of a coin. The mil- 
 reis of Portugal is taken as money of ac; 
 count, at the custom house, to be of tie value 
 of one hundred and twelve cents. The mil- 
 reis of Azores is deemed of the value of 
 eighty-three and one-third cents. The mil- 
 reis of Madeira is deemed of the value of 
 one hundred cents. Act March 3, 1843 (5 U. 
 S. St. at Large, 625). 
 
 MINA (Law Lat.) In old English law. A 
 measure of corn or grain. Cowell; Spelman. 
 
MINARE 
 
 (595) 
 
 MINISTERIAL 
 
 MINARE (Law Lat.) In old records. To 
 mine or dig mines. Cowell. Minator, a min- 
 er. Id. 
 
 To drive. Spelman. Minator carucae, a 
 plough driver. Cowell. 
 
 MINATUR INNOCENTIBUS QUI PAR- 
 cit nocentibus. He threatens the Innocent 
 who spares the guilty. 4 Coke, 45. 
 
 MIND AND MEMORY. A testator must 
 have a sound and disposing mind and mem- 
 ory. In other words, he "ought to he ca- 
 pable of making his will with an understand- 
 ing of the nature of the business in which he 
 is engaged, a recollection of the property he 
 means to dispose of, of the persons who are 
 the object of his bounty, and the manner in 
 which it is to be distributed between them." 
 Washington, J., 3 Wash. C. C. (U. S.) 585, 
 586; 4 Wash. C. C. (U. S.) 262; 1 Green, Ch. 
 (N. J.) 82, 85; 2 Green, Ch. (N. J.) 563, 604; 
 26 Wend. (N. Y.) 255, 306, 311, 312; 8 Conn. 
 265; 9 Conn. 105. 
 
 MINERALS (Law Lat. minera, a vein of 
 metal). All fossil bodies or matters dug out 
 of mines or quarries, whence anything may 
 he dug; such as beds of stone which may be 
 quarried. 14 Mees. & W. 859, in construing 
 55 Geo. III. c. 18; Broom, Leg. Max. 175*, 
 176*. 
 
 Any natural production, formed by the ac- 
 tion of chemical aflSnities, and organized 
 When becoming solid by the powers of crys- 
 tallization. Webster. But see 5 Watts (Pa.) 
 34; 1 Crabb, Real Prop. 95. 
 
 MINERATOR. In old records. A miner. 
 
 MINIMA POENA CORPORALIS EST MA- 
 jor qualibet pecunfaria. The smallest bod- 
 ily punishment is greater than any pecuniary 
 one. 2 Inst. 220. 
 
 MINIME MUTANDA SUNT QUAE CER- 
 tam habuerunt interpretationem. Things 
 which have had a certain interpretation are 
 to be altered as little as possible. Co. Litt. 
 365. 
 
 MINIMENT. An old form of muniments 
 (g. f.) Blount. 
 
 MINIMUM EST NIHILO PROXIMUM. 
 
 The least is next to nothing. Bac. Arg. Low's 
 Case of Tenures. 
 
 MINING PARTNERSHIP. An association 
 between the tenants in common of a mine, 
 who work it together, and divide the profits 
 in proportion to their several interests. 1 
 Mont. 224; 23 Cal. 198. 
 
 It has been said not to be a true partner- 
 ship, but rather a cross between a tenancy 
 in common and a partnership proper (Bates, 
 Partn. § 14. And see 35 Cal. 365), for the 
 reason that it has no delictus personarum. 
 102 U. S. 641; 52 Cal. 540. 
 
 MINISTER. 
 
 In Governmental Law. An officer who 
 
 is placed near the sovereign, and is invested 
 Tdth the administration of some one of the 
 principal branches of the government. 
 
 Ministers are responsible to the king or 
 other supreme magistrate who has appointed 
 them. 4 Conn. 134. 
 
 In Ecclesiastical Law. One ordained 
 
 by some church to preach the Gospel. 
 
 Ministers are authorized In the United 
 States, generally, to solemnize marriage, and 
 are liable to fines and penalties for marrying 
 minors contrary to the local regulations. As 
 to the right of ministers or parsons, see 3 
 Am. Jur. 268; Shep. Touch. (Anthon Ed.) 
 564; 2 Mass. 500; 10 Mass. 97; 14 Mass. 333; 
 11 Me. 487. 
 
 in International Law. An officer ap- 
 pointed by the government of one nation, 
 with the consent of two other nations who 
 have a matter in dispute, with a view by his 
 interference and good office to have such mat- 
 ter settled. 
 
 A name given to public functionaries who 
 represent their country with foreign govern- 
 ments, including ambassadors, envoys, and 
 residents. 
 
 A custom of recent origin has introduced 
 a new kind of ministers, without any par- 
 ticular determination of character. These 
 are simply called "ministers," to indicate 
 that they are invested with the general char- 
 acter of a sovereign's mandatories, without 
 any particular assignment of rank or charac- 
 ter. 
 
 The minister represents his government in 
 a vague and indeterminate manner, "whicl^ 
 cannot be equal to the first degree, and he 
 possesses all the rights essential to a public 
 minister. 
 
 There are also "ministers plenipotentiary," 
 who, as they possess full powers, are of much 
 greater distinction i than simple ministers. 
 These, also, are without any particular at- 
 tribution of rank and character, but by cus- 
 tom are now placed immediately below the 
 ambassador, or on a level with the envoy ex- 
 traordinary. Vattel, liv. 4, c. 6, § 74; 1 Kent, 
 Comm. (10th Ed.) 48; Merlin, Repert. 
 
 Formerly no distinction was made in the 
 different classes of public ministers, but the 
 modern usage of Europe introduced some dis- 
 tinctions in this respect, which, on account of 
 a want of precision, became the source of 
 controversy. To obviate these, the congress 
 of Vienna, and that of Aix-Ia-Chapelle, put 
 an end to these disputes by classing minis- 
 ters as follows: (1) Ambassadors and papal 
 legates or nuncios; (2) envoys, ministers, or 
 others accredited to sovereigns (aupres des 
 souverains) ; (3) ministers resident, accredit- 
 ed to sovereigns; (4) Charges d' Affaires, ac- 
 credited to the minister of foreign affairs. 
 Recez du Congres de Vienne, du 19 Mars, 
 1815; Protocol du Congres d'Aix-la-Chapelle, 
 du 21 Novembre, 1818; Wheaton, Int. Law, 
 pt. 3, c. 1, § 6. See "Ambassador." 
 
 MINISTERIAL. That which is done un- 
 der the authority of a superior; opposed to 
 judicial; as, the sheriff is a ministerial officer 
 bound to obey the judicial commands of the 
 court. 
 
 When an officer acts in both a judicial and 
 ministerial capacity, he may be compelled to 
 perform ministerial acts in a particular way; 
 
MINISTERIAL POWERS 
 
 (596) 
 
 MINUTES 
 
 but when lie acts in a judicial capacity, he 
 can only be required to proceed; the manner 
 of doing so is left entirely to his judgment. 
 10 Me. 377; B&c. Abr. "Justices of the Peace" 
 (E); 1 Conn. 295; 3 Conn. 107; 9 Conn. 275; 
 12 Conn. 464. See "Mandamus." 
 
 MINISTERIAL POWERS. A phrase used 
 in English conveyancing to denote powers 
 given for the good, not of the donee himself 
 exclusively, or of the donee himself necessa- 
 rily at all, but for the good of several per- 
 sons, including or not including the donee 
 also. They are so called because the donee 
 of them is as a minister or servant in his ex- 
 ercise of them. 
 
 MINISTERIAL TRUSTS. Those which de- 
 mand no further exercise of reason or un- 
 derstanding than every intelligent agent 
 must necessarily employ; as, to convey an 
 estate. They are a species of special trusts, 
 distinguished from discretionary trusts, 
 which necessarily require much exercise of 
 the understanding. 2 Bouv. Inst, note 1896. 
 Called, also, "instrumental trusts." 
 
 MINISTRANT. The party cross-examin- 
 ing a witness was so called, under the old 
 system of the ecclesiastical courts. 
 
 MINISTRI REGIS (Lat.) In old English 
 law. Ministers of the king, applied to the 
 judges of the realm, and to all those who 
 hold ministerial olEces in the government. 2 
 Inst. 208. 
 
 MINOR (Lat. less; younger). A minor; 
 one, not a major, t. e., not twenty-one. 2 Inst. 
 291; Co. Litt. 88, 128, 172b; 6 Coke, 67; 3 
 Bulst. 143; Bracton, 340b; Fleta, lib. 2, c. 60; 
 i 26. 
 
 Of less consideration; lower. Calv. Lex. 
 "Major" and "minor" belong rather to civil 
 law. The common-law terms are "adult" and 
 "infant." 
 
 MINOR AETAS (Lat.) Minority or infan- 
 cy. Cro. Car. 516. Literally, lesser age. 
 
 MINOR 17 ANNIS, NON ADMITTITUR 
 fore executorem. A minor under seventeen 
 years of age is not admitted to be an execu- 
 tor. 6 Coke, 67. 
 
 MINOR ANTE TEMPUS AGERE NON 
 potest in casu proprietatis, nee etiam conve- 
 nire. A minor before majority cannot act in 
 a case of property, nor even agree. 2 Inst. 
 291. 
 
 MINOR FACT. In the law of evidence. A 
 relative, collateral, or subordinate fact; a 
 circumstance. Wills, Circ. Ev. 27; Burrill, 
 Circ. Ev. p. 121, note 582. 
 
 MINOR JURARE NON POTEST. A minor 
 cannot make oath. Co. Litt. 172b. An infant 
 cannot be sworn on a jury. Litt. 289. 
 
 MINOR MINOREM CUSTODIRE NON 
 debet; alios etllm praesumitur male regere 
 qui seipsum regere nescit. A minor ought 
 not to be guardian of a minor, for he is pre- 
 
 sumed to govern others ill who does not 
 know how to govern himself. Co. Litt. 88. 
 
 MINOR NON TENETUR RESPONDERE 
 durante minori aetati; nisi in causa dotis, 
 propter favorem. A minor is not bound to 
 answer during his minority, except as a mat- 
 ter of favor in a cause of dower. 3 Bulst 
 143. 
 
 MINOR, QUI INFRA AETATEM 12 AN- 
 norum fuerit, utiagari non potest, nee extra 
 legem poni, quia ante talem aetatem, non 
 est sub lege aliqua, nee in decenna. A minor 
 who is under twelve years of age cannot be 
 outlawed, nor placed without the laws, be- 
 cause, before such age, he is not under any 
 laws, nor in a decennary. Co. Litt. 128. 
 
 MINORITY. The state or condition of a 
 minor; infancy. 
 
 The lesser number of votes of a delibera- 
 tive assembly; opposed to "majority" (g. v.) 
 
 MINT. The place designated by law where 
 money is coined by authority of the govern- 
 ment. 
 
 MINTAGE. The charge at the mint for 
 coining. 
 
 MINUS SOLVIT, QUI TARDIUS SOLV- 
 it; nam et tempore minus solvitur. He does 
 not pay who pays too late; for, from the de- 
 lay, he is judged not to pay. Dig. 50. 16. 
 12. 1. 
 
 MINUTE. 
 
 1 nMeasures. In divisions of the circle 
 
 or angular measures, a minute is equal to 
 sixty seconds, or one-sixtieth part of a de- 
 gree. 
 
 In the computation of time, a minute is 
 equal to sixty seconds, or the sixtieth part of 
 an hour. See "Measure." 
 
 In Practice. A memorandum of what 
 
 takes place in court, made by authority of 
 the court. From these minutes the record is 
 afterwards made up. 
 
 TouUier says they are so called because 
 the writing in which they were originally 
 was small; that the word is derived frqm 
 the Latin minuta fscriptura), in opposition 
 to copies which were delivered to the parties, 
 and which were always written in a larger 
 hand. 8 Toullier, Dr. Civ. note 413. 
 
 Minutes are not considered as any part of 
 the record. 1 Ohio, 268. See 23 Pick. (Mass.) 
 184, though in some states, notably New 
 York, they are by statute made part of the 
 judgment-roll. Code Crim. Proc. N. T. § 485. 
 
 MINUTE BOOK. A book kept by the clerk 
 or prothonotary of a court, in which minutes 
 of its proceedings are entered. 
 
 MINUTE TITHES. Small tithes, usually 
 belonging to the vicar; e. g., eggs, honey, 
 wax, etc. 3 Sum, Ecc. Law, 680; 6 & 7 Wm. 
 IV. c. 71, §§ 17, 18, 27. 
 
 MINUTES. 
 
 In Scotch Practice. A pleading put in- 
 
MINUTIO 
 
 (597) 
 
 MISER A.BILE DEPOSITUM 
 
 to writing before the lord ordinary, as the 
 ground of his judgment. Bell, Diet. 
 
 In business Law. Memoranda or notes 
 
 of a transaction or proceeding. Thus, the 
 record of the proceedings at a meeting of di- 
 rectors or shareholders of a company is call- 
 ed the "minutes." 
 
 MINUTIO. In the civil law. Diminution. 
 
 MIRROR DES JUSTICES. The Mirror of 
 Justices, a treatise written during the reign 
 of Edward II. Andrew Home is its reputed 
 author. It was first published in 1642, and 
 in 1768 it was translated into English by 
 William Hughes. Some diversity of opinion 
 seems to exist as to its merits. Pref. to 9 
 and 10 Coke. As to the history of this cele- 
 brated book, see St. Armand's Essays on the 
 Legislative Power of England, 58, 59. 
 
 MISA. 
 
 In Old English Law. The mise or is- 
 sue in a writ of right. Spelman. 
 
 — — In Old Records. A compact or agree- 
 ment; a form of compromise. Cowell. 
 
 MISADVENTURE. An accident by which 
 an injury occurs to another. 
 
 When applied to homicide, misadventure is 
 the act of a man who, in the performance of 
 a lawful act, without any intention to do 
 harm, and after using proper precaution to 
 prevent danger, unfortunately kills another 
 person. The act upon which the death en- 
 sues must be neither malum in sc nor malum 
 prohiliitum. The usual examples under this 
 head are: (1) When the death ensues from 
 innocent recreations; (2) from moderate and 
 lawful correction in foro domestico; (3) 
 from acts lawful and indifferent in them- 
 selves, done with proper and ordinary cau- 
 tion. 4 Bl. Comm. 182; 1 Bast, P. C. 221. 
 See "Homicide;" "Manslaughter." 
 
 MISALLEGE. To cite falsely as a proof or 
 argument. 
 
 MISAPPROPRIATION. Wrongful conver- 
 sion of property by one to whom it has been 
 intrusted. Steph. Dig. Grim. Law, 275. 
 
 MISBEHAVIOR. Improper or unlawful 
 conduct. See 2 Mart. (La.; N. S.) 683. 
 
 Generally applied to a breach of duty or 
 propriety by an oiBcer, witness, juror, etc., 
 not amounting to a crime. 
 
 MISCARRIAGE. 
 
 In Medical Jurisprudence. The expul- 
 sion of the ovum or embryo from the uterus 
 within the first six weeks after conception. 
 Between that time, and before the expiration 
 of the sixth month, when the child may pos- 
 sibly live, it is termed "abortion." When the 
 delivery takes place soon after the sixth 
 month, it is denominated "premature labor." 
 But the criminal act of destroying the foetus 
 at any time before birth is termed, in law, 
 "procuring miscarriage." Chit. Med. Jur. 
 410; 2 Dungl. Hum. Phys. 364. See "Abor- 
 tion." 
 
 In Practice. A term used In the stat- 
 
 ute of frauds to denote that species of wrong- 
 ful act for the consequences of which the 
 wrongdoer would be responsible at law in a 
 civil action. 2 Barn. & Aid. 613; 2 Day 
 (Conn.) 457; 63 N. C. 198; Browne, St. 
 Frauds, § 155. 
 
 MISCASTING. An error in auditing and 
 numbering. It does not include any pretend- 
 ed miscasting or misvaluing. 4 Bouv. Inst, 
 note 4128. 
 
 MISCEGENATION. Marriage between per- 
 sons of different races. 
 
 MISCOGNIZANT. Ignorant, or not know- 
 ing. St. 32 Hen. VIII. c. 9. Little used. 
 
 MISCONTINUANCE. In practice. A con- 
 tinuance of a suit by undue process. Its ef- 
 fect is the same as a discontinuance. 2 Hawk. 
 P. C. 299; Kitch. Cts. 231; Jenk. Cent. Cas. 
 57. 
 
 MISCREANT. In Old English law. An 
 apostate; an unbeliever; one who totally re- 
 nounced Christianity. 4 Bl. Comm. 44. 
 
 MISDEMEAN. In old English law. To 
 use improperly; to abuse.' "If he misdemean 
 an authority." Pinch, Law, bk. 1, c. 3, 
 No. 63. 
 
 MISDEMEANANT. A person guilty of a 
 misdemeanor. 
 
 MISDEMEANOR. Every offense inferior 
 to felony. See "Felony." 
 
 MISE (Lat. mittere, through the French 
 mettre, to place). 
 
 In Pleading. The issue in a writ of 
 
 right. The tenant in a writ of right is said 
 to "join the mise on the mere right" when 
 he pleads that his title is better than th6 de- 
 mandant's. 2 Wm. Saund. 45h, 45i. It was , 
 equivalent to the general issue; and every- 
 thing except collateral warranty might be 
 given in evidence under it by the tenant. 
 Booth, Real Actions, 98, 114; 3 Wils. 420; 7 
 Wheat. (U. S.) 31; 3 Pet. (U. S.) 133; 7 
 Cow. (N. Y.) 52; 10 Grat. (Va.) 350. The 
 prayee in aid, on coming into court, joined 
 in the mlse together with the tenant. 2 Wm. 
 Saund. 45d, note. It was the more common 
 practice, however, for the demandant to trav- 
 erse the tenant's plea when the cause could 
 be tried by a common jury instead of the 
 grand assize. 
 
 In Practice. Expenses. It is so com- 
 monly used in the entries of judgments, in 
 personal actions; as, when the plaintiff re- 
 covers, the judgment is quod recuperet dam- 
 na sua, that he recover his damages, and pro 
 mises et custagiis, for costs and charges, so 
 much, etc. 
 
 MISERA EST SERVITUS, UBI JUS EST 
 vagum aut incertum. It is a miserable slav- 
 ery where the law is vague or uncertain. 4 
 Inst. 246; 9 Johns. (N. Y.) 427; 11 Pet. (U. 
 S.) 286. 
 
 MISERABILE DEPOSITUM (Lat.) In civ- 
 il law. The name of an involuntary deposit. 
 
MISERERE 
 
 (598) 
 
 MISSIO 
 
 made under pressing necessity; as, for in- 
 stance, shipwreck, fire, or other inevitable ca- 
 lamity. Poth. Proc. Civ. pt. 5, c. 1, § 1; Code 
 La. art. 2935. 
 
 MISERERE. The name and first word of 
 one of the penitential psalms (Ps. li., 1), 
 being that which was commonly used to be 
 given by the ordinary to such condemned 
 malefactors as were allowed the benefit of 
 clergy; whence it is also called the "psalm 
 of mercy." Wharton. 
 
 MISERICORDIA (Lat.) An arbitrary or 
 discretionary amercement. 
 
 To be in mercy is to be liable to such pun- 
 ishment as the judge may, in his discretion, 
 inflict. According to Spelman, misericordia 
 is so called because the party is in mercy, 
 and to distinguish this fine from redemp- 
 tions, or heavy fines. Spelman. See Co. Litt. 
 126b; Madd. c. 14. 
 
 MISERICORDIA COMMUNIS. In old Eng- 
 lish law. A fine on the whole community. 
 
 MISFEASANCE. The performance of an 
 act Which might lawfully be done. In an im- 
 proper manner, by which another person re- 
 ceives an injury. 
 
 It differs from malfeasance or nonfeasance. 
 See, generally, 2 VIner, Abr. 35; 2 Kent, 
 Comm. 443 ; Doct. Plac. 62 ; Story, Bailm. § 9. 
 
 It seems to be settled that there Is a dis- 
 tinction between misfeasance and nonfea- 
 sance in the case of mandates. In cases of 
 nonfeasance, the mandatary is not generally 
 liable, because, his undertaking being gratui- 
 tous, there is no consideration to support it; 
 but in cases of misfeasance the common law 
 gives a remedy for the injury done, and to 
 the extent of that injury. 5 Term R. 143; 4 
 Johns. (N. Y.) 81; 2 Johns. Cas. (N. Y.) 92; 
 1 Esp. 74; 2 Ld. Raym. 909; Story, Bailm. § 
 165; Bouv. Inst. Index. 
 
 MISFORTUNE. An adverse event not im- 
 mediately dependent on the action or will of 
 him who suffers from it, and of such a char- 
 acter that no prudent man would take it into 
 his calculation in reference to the interest of 
 himself or of others. 
 
 Homicide by misfortune. See "Bicusable 
 Homicide." 
 
 MISJOINDER. An improper joinder, wheth- 
 er of actions, causes of action, offenses, par- 
 ties, etc. See "Joinder." 
 
 MISKENNING (Fr. mis, wrong, and Saxon 
 cennan, summon). A wrongful citation; a 
 variance in a plea. 1 Mon. Angl. 237; Chart. 
 Hen. II.; Jacob; Du Cange. 
 
 MISNOMER. The use of a wrong name in 
 designating any person in any Instrument or 
 proceeding. In contracts and deeds, a mis- 
 nomer is generally immaterial if the person 
 intended can be ascertained. 11 Coke, 20; 1 
 Ld. Raym. 304. 
 
 In a pleading, misnomer of a party is 
 ground of abatement, while misnomer of a 
 third person is or is not a fatal variance, ac- 
 cordingly as it is or is not material. See 
 "Idem Sonans." 
 
 MISPLEADING. Pleading incorrectly, or 
 omitting anything in pleading which is es- 
 sential to the support or defense of an ac- 
 tion, is so called. 
 
 Pleading "Not guilty" to an action of debt 
 is an example of the first; setting out a de- 
 fective title is an example of the second. See 
 3 Salk. 365. 
 
 It comprehends misdeclaring, whether the 
 error is in separate counts, or in the mis- 
 joining of counts. 22 "Wend. (N. Y.) 369 
 375. 
 
 MISPRISION. In criminal law. A term 
 used to signify every considerable mlsde-, 
 meaner which has not a certain name given 
 to it by law. 3 Inst. 36. 
 
 The concealment of a crime. 
 
 Misprision of felony is the like conceal- 
 ment of felony, without giving any degree of 
 maintenance to the felon (Act Cong. April 
 30, 1790, § 6; 1 Story, U. S. Laws, 84) ; for if 
 any aid be given him, the party becomes an 
 accessory after the fact. 
 
 Misprision of treason is the concealment of 
 treason by being merely passive. Act Cong. 
 April 30, 1790 (1 Story, U. S. Laws, 83; 1 
 Bast, P. C. 139). If any assistance be given 
 to the traitor, it makes the party a principal, 
 as there are no accessories in treason. 
 
 Negative misprision consists in the con- 
 cealment of something which ought to be re- 
 vealed. 
 
 Positive misprision consists in the com- 
 mission of something which ought not to be 
 done. 4 Bl. Comm. c. 9. 
 
 MISRECITAL. The incorrect recital of a 
 matter of fact, either in an agreement or a 
 plea. Under the latter term is here under- 
 stood the declaration' and all the subsequent 
 pleadings. See "Recital." 
 
 MISREPRESENTATION. The assertion of- 
 that which is not true. 
 
 The nature of misrepresentations to entitle 
 a party injured thereby varies with the na- 
 ture of the relief sought, but in general the 
 misrepresentation for which relief will be 
 granted must be a willfully false statement 
 respecting a matter of fact (not of law or 
 opinion), which was reasonably calculated to 
 mislead the party to his prejudice in respect 
 to the business in hand, and which did actu- 
 ally have that effect. 
 
 MISSILIA (Lat. from inittcrc. to send or 
 throw). In the Roman law. Gifts or liber- 
 alities, which the praetors and consuls were 
 in the habit of throwing among the people. 
 Inst. 2. 1. 45. 
 
 MISSING SHIP. A ship which has been 
 at sea and unheard from (or so long a time 
 as to give rise to the presumption that she 
 has perished with all on board. 
 
 There is no precise time fixed as to when 
 the presumption is to arise; and this must 
 depend upon the circumstances of each case. 
 2 Strange, 1199; Park, Ins. 63; Marsh. Ins. 
 488; 2 Johns. (N. Y.) 150; 1 Gaines (N. Y.) 
 525; Holt, 242. 
 
 MISSIO (Lat. from mittere, to send or 
 
MISSIVES 
 
 (599) 
 
 MIXED PROPERTY 
 
 put). In the civil law. A sending or put- 
 ting. Missio in hona, a putting the creditor 
 in possession of the debtor's property. 1 
 Mackeld. Civ. Law, 378, § 344; 4 Reeve, 
 Hist. Eng. Law, 20; 2 Karnes, Eq. 208. 
 
 Missio judicum in consilium, a sending out 
 of the indices (or jury) to make up their 
 sentence. Halifax, Anal. bk. 3, c. 13, No. 31. 
 
 MISSIVES. In Scotch practice. Writings 
 passed between parties as evidence of a 
 transaction. Bell, Diet. 
 
 MISSTAICUS (Lat.) In old records. A 
 messenger. 
 
 MISTAKE. An erroneous conception or 
 belief in respect to matter of either fact or 
 law, arising from ignorance, surprise, impo- 
 sition, or misplaced confidence. See Story, 
 Eq. Jur. § 110. 
 
 That result of ignorance of law or fact 
 which has misled a person to commit that 
 which, if he had not been in error, he would 
 not have done. Jeremy, Eq. Jur. bk. 2, pt. 2, 
 p. 358. 
 
 Distinction between "mistake" and "igno- 
 rance," see "Ignorance." 
 
 MISTERY. An old form oi mystery (17. ;.) 
 
 MISTRESS. The style of the wife of an 
 esquire or gentleman. 
 
 MISTRIAL. A trial which is erroneous 
 on account of some defect in the persons 
 trying, as if the jury come from the wrong 
 county, or because there was no issue 
 formed, as if no plea be entered, or some 
 other defect of jurisdiction. 3 Croke, 284; 
 2 Maule & S. 270. 
 
 MISUSER. An unlawful use of a right. 
 
 In cases of public ofiices and franchises, a 
 misuser is sufficient to cause the right to be 
 forfeited. 2 Bl. Comm. 153; 5 Pick. (Mass.) 
 163. 
 
 MITIGATION. Reduction; diminution; 
 lessening of the amount of a penalty or pun- 
 ishment. 
 
 Circumstances which do not amount to a 
 justification or excuse of the act committed 
 may yet be properly considered in mitiga- 
 tion of the punishment; as, for example, the 
 fact that one who stole a loaf of bread was 
 starving. 
 
 In actions for the recovery of damages, 
 matters may often be given in evidence in 
 mitigation of damages which are no answer 
 to the action itself. See "Damages;" "Char- 
 acter." 
 
 MITIOR SENSUS. See "In Mitiori Sen- 
 
 MITIUS IMPERANTI MELIUS PARETUR. 
 
 The more mildly one commands, the better is 
 he obeyed. 3 Inst. 24. 
 
 MITTENDO MANUSCRIPTUM PEDIS 
 finis. An abolished judicial writ addressed 
 to the treasurer and chamberlain of the ex- 
 chequer to search for and transmit the foot 
 of a fine acknowledged before justices in eyre 
 into the common pleas. Reg. Orlg. 14. 
 
 MITTER (Law Fr.) To put, to send, or to 
 pass; as, mitter V estate, to pass the estate; 
 mitter le droit, to pass a right. 2 Bl. Comm. 
 324; Bac. Abr. "Release" (C) ; Co, Litt. 193, 
 273b. Mitter a large, to put or set at large. 
 
 MITTER AVANT (Law Pr.) In old prac- 
 tice. To put before; to present before a 
 court; to produce in court. Mist avant un 
 fait, produced a deed. Y. B. M. 5 Edw. IIL 
 119. 
 
 MITTIMUS. 
 
 In Old English Law. A writ inclosing 
 
 a record sent to be tried in a county palatine. 
 It derives its name from the Latin word mil 
 timns, "we send." It is the jury process of 
 these counties, and commands the proper of- 
 ficer of the county palatine to command the 
 sheriff to summon the jury for the trial of the 
 cause, and to raturn the record, etc. 1 Mart. 
 (La.) 278; 2 Mart. (La.) 88. 
 
 In Criminal Practice. A precept in 
 
 writing, under the hand and seal of a justice 
 of the peace, or other competent officer, di- 
 rected to the jailer or keeper of a prison, 
 commanding him to receive and safely keep 
 a person charged with an offense therein 
 named, until he shall be delivered by due 
 course of law. Co. Litt. 590. 
 
 MIXED ACTION. In practice. An action 
 partaking of the nature both of a real and 
 of a personal action, by which real property 
 is demanded, and also damages for a wrong 
 sustained. An ejectment is of this nature. 4 
 Bouv. Inst, note 3650. See "Action." 
 
 MIXED CONTRACT. In civil law. Aeon- 
 tract in which one of the parties confers a 
 benefit on the other, and requires of the lat- 
 ter something of less value than what he 
 has given; as, a legacy charged with some- 
 thing of less value than the legacy itself. 
 Poth. Obi. note 12. 
 
 MIXED GOVERN MENTi A government 
 established with some of the powers of a 
 monarchical, aristocratical, and democratical 
 government. 
 
 MIXED JURY. A bilingual jury; a jury of 
 the half-tongue. 
 
 Also a jury composed partly of negroes and 
 partly of white men. 
 
 MIXED LARCENY. Compound larceny. 
 See "Larceny." 
 
 MIXED LAWS. A name sometimes given 
 to those which concern both persons and 
 property. 
 
 MIXED PRESUMPTIONS. Presumptions 
 partaking of the nature both of presumptions 
 of law and presumptions of fact; i. e., pre- 
 sumptions of fact recognized by law. 
 
 MIXED PROPERTY. That kind of prop- 
 erty which is not altogether real nor per- 
 sonal, but a compound of both. Heirlooms, 
 tombstones, monuments in a church, and title 
 deeds to an estate, are of this nature. 1 Bl. 
 Comm. 428; 3 Barn. & Adol. 174; 4 Bing. 106. 
 
MIXED SUBJECTS, ETC. 
 
 (600) 
 
 MODUS 
 
 MIXED SUBJECTS OF PROPERTY. Such 
 as fall within the definition of things real, 
 but which are attended, nevertheless, with 
 some of the legal qualities of things person- 
 al, as emblements, fixtures, and shares in 
 public undertakings, connected with land. 
 Besides these, there are others which, though 
 things personal in point of definition, are, 
 in respect of some of their legal qualities, 
 of the nature of things real; such are ani- 
 mals, ferae naturae, charters and deeds, court 
 rolls, and other evidences of the land, togeth- 
 er with the chests in which they are con- 
 tained, ancient family pictures, ornaments, 
 tombstones, coats of armor, with pennons 
 and other ensigns, and especially heirlooms. 
 Wharton. 
 
 MIXED TITHES. In ecclesiastical law. 
 "Those which arise not immediately from the 
 ground, but from those things which are 
 nourished by the ground;" e. g., colts, chick- 
 ens, calves, milk, eggs, etc. 3 Bum, Bcc. 
 Law, 380; 2 Bl. Comm. 24. 
 
 MIXED WAR. A mixed war is one which 
 is made on one side by public authority, and 
 on the other by mere private persons. 1 Hill 
 (N. Y.) 377, 415. 
 
 MIXTION. The putting of different goods 
 or chattels together in such a manner that 
 they can no longer be separated; as, putting 
 the wines of two different persons into the 
 same barrel, the grain of several persons in- 
 to the same bag, and the like. 
 
 The intermixture may be occasioned by the 
 willful act of the party, or owner of one of 
 the articles, by the willful act of a stranger, 
 by the negligence of the owner or a stranger, 
 or by accident. See "Confusion." 
 
 MIXTUM IMPERIUM (Lat.) In old Eng- 
 lish law. Mixed authority; a kind of civil 
 power. A term applied by Lord Hale to the 
 "power" of certaip, subordinate civil magis- 
 trates, as distinct from "jurisdiction." Hale, 
 Anal. § 11. 
 
 MOB. An unorganized assemblage of many 
 persons bent on unlawful violence; a riot 
 involving a multitude. Abbott. 
 
 MOBBING AND RIOTING. In Scotch law. 
 A general term, including all those convoca- 
 tions of the lieges for violent and unlawful 
 purposes which are attended with injury to 
 the persons or property of the lieges, or ter- 
 ror and alarm to the neighborhood in which 
 it takes place. The two phrases are usually 
 placed together; but, nevertheless, they have 
 distinct meanings, and are sometimes used 
 separately In legal language, — the word 
 "mobbing" being peculiarly applicable to the 
 unlawful assemblage and violence of a num- 
 ber of persons, and that of "rioting" to the 
 outrageous behavior of a single individual. 
 Alls. Crim. Law, c. 23, p. 509. 
 
 MOBILIA. See "Movables." 
 
 MOBILIA NON HABET SITUM. Mova- 
 ables have no situs. 4 Johns. Ch. (N. Y.) 
 472. 
 
 MOBILIA PERSONAM SEQUUNTUR; 
 Immobllia situm. Movable things follow the 
 person; immovable, their locality. Story,' 
 Confl. Laws (3d Ed.) 638. 639. 
 
 MOBILIA SEQUUNTUR PERSONAM. 
 
 Movables follow the person. Story, Confl. 
 Laws (3d Ed.) 638, 639; Broom, Leg. Max 
 (3d London Ed.) 462. 
 
 MODERAMEN INCULPATAE TUTELAE 
 (Lat.) In Roman law. The regulation of 
 justifiable defense. A term used to express 
 that degree of force in defense of the person 
 or property which a person might safely use, 
 although it should occasion the death of the 
 aggressor. Calv. Lex.; Bell, Diet. 
 
 MODERATA MISERICORDIA. A writ 
 founded on Magna Charta, which lies for him 
 who is amerced in a court, not of record, for 
 any transgression beyond the quality or quan- 
 tity of the offense. It is addressed to the 
 lord of the court, or his bailiff, commanding 
 him to take a moderate amerciament of the 
 parties. New Nat. Brev. 167 ; Fitzh. Nat. 
 Brev. 76. 
 
 MODERATE CASTIGAVIT. In- pleading. 
 The name of a plea in trespass by which the 
 defendant justifies an assault and battery, be- 
 cause he moderately corrected the plaintiff, 
 whom he had a right to correct. 2 Chit. PI. 
 576; 2 Bos. & P. 224; 15 Mass. 347; 2 Phil. 
 Ev. 147; Bac. Abr. "Assault" (C). 
 
 This plea ought to disclose, in general 
 terms, the cause which rendered the correc- 
 tion expedient. 3 Salk. 47. 
 
 MODERATOR. A person appointed to pre- 
 side at a popular meeting. Sometimes he is 
 called a "chairman." The presiding officer of 
 town meetings In New England is so called. 
 
 MODICA CIRCUMSTANTIA FACTI JUS 
 mutat. A small circumstance attending an 
 act may change the law. 
 
 MODIUS (Lat.) In old English law. A 
 bushel. Cowell; Spelman. 
 
 A larger measure, of uncertain quantity. 
 Id. 
 
 A measure of land. Id. 
 
 MO DO ET FORMA (Lat. in manner and 
 form). In pleading. Technical words used 
 to put in issue such concomitants of the prin- 
 cipal matters as time, place, etc., where these 
 circumstances were material. Their use when 
 these circumstances were Immaterial was 
 purely formal. The words were translated 
 literally, when pleadings began to be made in 
 English, by "in manner and form." See 
 Lawes, PI. 120; Gould, PI. c. 6, § 22; Steph. 
 PI. 213; Dane, Abr. Index; Viner, Abr. "Mo- 
 do et Forma." 
 
 MODUS. 
 
 In Civil Law. Manner; means; way. 
 
 Ainsworth. A rythmic song. Du Cange. 
 
 In Old Conveyancing. Manner; e. g., 
 
 the manner in which an estate should be 
 held, etc. A qualification, whether in restrlc- 
 
MODUS DE NON DECIMANDO (601) 
 
 MOMENTUM 
 
 tlon or enlargement of the terms of the in- 
 strument; especially with relation to the 
 kind of grant called "donatio," — the making 
 those quasi heirs who were not in fact heirs, 
 according to the ordinary form of such con- 
 veyances. And this m.odvs or qualification of 
 the ordinary form hecame so common as to 
 give rise to the maxim, modus et conventio 
 vincunt legem. Co. Litt. 19a; Bracton, 17b; 
 1 Reeve, Hist. Eng. Law, 293. A considera- 
 tion. Bracton, 17, 18.. 
 
 In Ecclesiastical Law. A peculiar man- 
 ner of tithing, growing out of custom. See 
 "Modus Decimandi." 
 
 MODUS DE NON DECIMANDO. In eccle- 
 siastical law. A custom or prescription not 
 to pay tithes, which is not good, except in 
 case of abbey lands. 2 Bl. Comm. 31, note. 
 
 MODUS DE NON DECIMANDO NON VA- 
 let. A modv.s (prescription) not to pay tithes 
 is void. Lofft, 427; Cro. Bliz. 511; 2 Bl. 
 Comm. 31. 
 
 MODUS DECIMANDI. In ecclesiastical 
 law. A peculiar manner of tithing, arising 
 from immemorial usage, and differing from 
 the payment of one-tenth of the annual in- 
 crease. 
 
 To be a good modus, the custom must be, 
 first, certain and invariable; second, benefi- 
 cial to the parson; third, a custom to pay 
 something different from the thing com- 
 pounded for; fourth, of the same sjecies; 
 fifth, the thing substituted must be in its na- 
 ture as durable as the tithes themselves; 
 sixth, it must not be too large, — that would 
 be a rank modus. 2 Bl. Comm. 30. See 2 & 
 3 Wm. IV. c. 100; 13 Mees. & W. 822. 
 
 MODUS ET CONVENTIO VINCUNT LE- 
 gem. The form of agreement and the con- 
 vention of the parties overrule the law. 2 
 Coke, 73. 
 
 MODUS HABILIS. A good or valid man- 
 ner. 
 
 MODUS LEGEM DAT DONATIONI. The 
 
 manner gives law to a gift. Co. Litt. 19a; 
 Broom, Leg. Max. (3d London Ed.) 615. 
 
 MODUS LEVANDI FINES. The manner 
 of levying fines; the title of a short statute 
 in French, passed in the eighteenth year of 
 Edward I. 2 Inst. 510; 2 Bl. Comm. 349. 
 
 MODUS TENENDI. The manner of hold- 
 ing; i. e., the different species of tenures by 
 which estates are held. 
 
 MODUS TRANSFERRENDI. The manner 
 of transferring. 
 
 MODUS VACANDI. The manner of vacat- 
 ing. How and why an estate has been relin- 
 quished or surrendered by a vassal to his 
 lord might well be referred to by this phrase. 
 See Tray. Lat. Max. s. v. 
 
 MODUS VIVENDI. In international law. 
 An agreement between nations not rising to 
 the dignity of a treaty, regulating their con- 
 duct in respect to a particular matter. Or- 
 
 dinarily applied to agreements to preserve 
 the status quo pending the negotiation of a 
 final treaty. 
 
 MOERDA. The secret killing of another; 
 murder. 4 Bl. Comm. 194. 
 
 MOHATRA. In French law. The name of 
 a fraudulent contract made to cover a usuri- 
 ous loan of money. 
 
 It takes place when an individual buys 
 merchandise from another on a credit at a 
 high price, to sell it immediately to the first 
 seller, or to a third person who acts as his 
 agent, at a much less price for cash. 16 
 Toullier, Dr. Civ. note 44; 1 Bouv. Inst, note 
 1118. 
 
 MOIETY. The half of anything; as, if a 
 testator bequeath one moiety of his estate to 
 A., and the other to B., each shall take an 
 equal part. Joint tenants are said to hold by 
 moieties. Litt. 125; 3 C. B. 274, 283. 
 
 MOLESTATION. In Scotch law. The 
 name of an action competent to the proprie- 
 tor of a landed estate against those who dis- 
 turb his possession. It is chiefly used in 
 questions of commonty, or of controverted 
 marches. Ersk. Inst. 4. 1. 48. 
 
 MOLITURA. Toll paid for grinding at a 
 mill; multure. Not used. 
 
 MOLITURA LIBERA. Free grinding; a 
 liberty to have a mill without paying tolls to 
 the lord. Jacob. 
 
 MOLLITER MANUS IMPOSUIT (Lat.) He 
 laid his hands on gently. 
 
 In Pleading. Technical words in a 
 
 plea in justification of a trespass to the per- 
 son, that defendant used no more force than 
 was reasonably necessary (20 Johns. [N. Y.] 
 427; 4 Denio [N. Y.] 448; 2 Strob. [S. C] 
 232; 17 Ohio, 454), in defense of property (3 
 Cush. [Mass.] 154; 3 Ohio St. 159; 9 Barb. 
 [N. Y.] 652; 23 Pa. St. 424. See 19 N. H. 
 562; 25 Ala. [N. S.] 41; 4 Cush. [Mass.] 
 597), or the prevention of crime (2 Chit. PI. 
 574). 
 
 MOLMUTIAN LAWS. The laws ot Dun- 
 vallo Molmutlus, a legendary or mythical 
 king of the Britons, who is supposed to have 
 begun his reign about 400 B. C. These laws 
 were famous in the land till the Conquest. 
 Tomlins; Mozley & W. 
 
 MOMENTUM. In the civil law. An in- 
 stant; an indivisible portion of time. Calv. 
 Lex. 
 
 A portion of time that might be measured, 
 a division or subdivision of an hour, an- 
 swering in some degree to the modern "min- 
 ute," but of longer duration. According to 
 Accursius, ten moments {m,omenta) made a 
 point (punctum), and four points an hour. 
 Calv. Lex. Hence, no doubt, the rule stated 
 in Bracton, that an hour consists of forty 
 moments (hora fit ex quadraginta momen- 
 tis), which has been so far misunderstood 
 
MONARCHY 
 
 (602) 
 
 MONIER 
 
 as to be pronounced a misprint. Bracton, 
 fols. 264, 359b; Plata, lib. 5, c. 5, § 31. 
 
 MONARCHY. That government which is 
 ruled, really or theoretically, by one man, 
 who is wholly set apart from all other mem- 
 bers of the state. 
 
 MONASTERIUM (Graeco-Lat. and Law 
 Lat.) In civil and old English law. A mon- 
 astery; a church. Nov. 5; Spelman. Hence, 
 according to Spelman, the Saxon w/ynster 
 and munster, and probably, also, the Law 
 French monstre. 
 
 MONETA (Lat.) In civil and old English 
 law. Money. Said to be derived from mo- 
 nere, to warn, because by the impression 
 upon it we are warned whose it is, that 
 is, by whom coined, and what is its value. 
 Falsa moneta, counterfeit money. Code, 9. 
 24. Monetam contcrfactam. Mem. in Scacc. 
 M. 22 Edw. I. De moneta et Cliambio domiiii 
 regis, of the money and exchange of the lord 
 the king. Bracton, fol. 117. 
 
 MONETA EST JUSTUM MEDIUM ET 
 mensura rerum commutabilium, nam per me- 
 dium monetae fit omnium rerum conven- 
 iens, et justa aestimatio. Money is the just 
 medium and measure of all commutable 
 things, for by the medium of money a con- 
 venient and just estimation of all things is 
 made. See 1 Bouv. Inst, note 922. 
 
 MONETANDI JUS COMPREHENDITUR 
 in regalibus quae nunquam a regio sceptre 
 abdicantur. The right of coining is compre- 
 hended amongst those rights of royalty which 
 are never relinquished by the kingly sceptre. 
 Dav. 18. 
 
 MONEY. In a strict sense, gold and silver 
 coin. Const. V. S. art. 1, §§ 8, 10. See 44 
 Tex. 622. 
 
 In a broader sense, the common medium of 
 exchange in a civilized nation. 45 Tex. 309; 
 5 Humph. (Tenn.) 15. 
 
 The term is used to designate the whole 
 volume of the medium of exchange, recog- 
 nized by law or the custom of merchants. 34 
 Fed. 681. It is generally held to include 
 banknotes. 3 Mass. 403; 71 Ala. 544; 47 Wis. 
 557. But see, contra, 3 Conn. 534. 
 
 As used in wills, it has been construed as 
 Synonymous with personalty, to effect the in- 
 tent of the testator. Jarm. Wills, c. 24. 
 
 MONEY CLAIMS. In English practice. 
 Under the judicature act of 1875, claims for 
 the price of goods sold, for money lent, for 
 arrears of rent, etc., and other claims where 
 money is directly payable on a contract ex- 
 press or implied, as opposed to the cases 
 where money is claimed by way of damages 
 for some independent wrong, whether by 
 breach of contract or otherwise. These "mon- 
 ey claims" correspond very nearly to the 
 "money counts" hitherto in use. Mozley & W. 
 
 MONEY COUNTS. In pleading. The com- 
 mon counts in an action of assumpsit. 
 They are so called because they are found- 
 
 ed on express or implied promises to pay 
 money in consideration of a precedent debt. 
 They are of four descriptions, the indebitatis 
 assumpsit, the quantum meruit, the quantum 
 valebant, and the account stated. 
 
 MONEY DEMAND. A demand which is 
 certain beforehand, or ascertainable by cal- 
 culation. 
 
 MONEY HAD AND RECEIVED. In plead- 
 ing. The technical designation of a form of 
 declaration in assumpsit, wherein the plain- 
 tiff declares that the defendant had and re- 
 ceived certain money, etc. 
 
 An action of assumpsit will lie, without re- 
 gard to privity of contract, to recover money 
 to which the plaintiff is entitled, and which 
 in justice and equity, when no rule of policy 
 or strict law prevents it, the defendant ought 
 to refund to the plaintiff, and which he can- 
 not with a good conscience retain, on a count 
 for money had and received. 6 Serg. & R. 
 (Pa.) 369; 10 Serg. & R. (Pa.) 219; 1 Dall. 
 (Pa.) 148; 2 Dall. (Pa.) 154; 3 J. J. Marsh. 
 (Ky.) 175; 1 Har. (N. J.) 447; 1 Har. & G. 
 (Md.) 258; 7 Mass. 288; 6 Wend. (N. Y.) 
 290; 13 Wend. (N. Y.) 488; Add. Cont. 230. 
 
 MONEY JUDGMENT. One which requires 
 the payment of money, as distinguished from 
 one directing some act to be done. 
 
 MONEY LENT. In pleading. The tech- 
 nical name of a declaration in an action of 
 assumpsit for that the defendant promised to 
 pay the plaintiff for money lent. 
 
 To recover, the plaintiff must prove that 
 the defendant received his money, but it is 
 not indispensable that it should be originally 
 lent. If, for example, money has been ad- 
 vanced upon a special contract, which has 
 been abandoned and rescinded, and which 
 cannot be enforced, the law raises an implied 
 promise from the person who holds the mon- 
 ey to pay it back as money lent. 7 Bing. 266; 
 3 Mees. & W. 434; 9 Mees. & W. 729. See 1 
 N. Chip. (Vt.) 214; 3 J. J. Marsh. (Ky.) 37. 
 
 MONEY MADE. The return on execution 
 that the amount has been collected thereons 
 
 MONEY OF ADIEU. In French law. Ear- 
 nest money. So called because given at part- 
 ing, in completion of the bargain. Poth. 
 Sale, 507. Arrhes is the usual French word 
 for earnest money; "money of adieu"' is a 
 provincialism found in the province of Or- 
 leans. 
 
 MONEY PAID. In pleading. The technical 
 name of a declaration in assumpsit, in which 
 the plaintiff declares for money paid for the 
 use of the defendant. 
 
 MONEYED CORPORATION. In New York 
 law, one having the power to make loans up- 
 on pledges or deposits, or to make contracts 
 of insurance. 1 Rev. St. N. Y. 731; 3 N. Y. 
 479. 
 
 MONIER, or MONEYER (Law Lat. vmm- 
 tarius) . In old English law. A minister of 
 the mint, who made and coined the king's 
 
MONITION 
 
 (603) 
 
 MONOPOLY 
 
 money. There were several of these moniers 
 or workmen; "some to shear the money, 
 some to forge it, others to beat it broad, 
 some to round it, and some to stamp or 
 coin it." Cowell, voc. "Moniers;" "Mint." 
 
 A banker;' one who dealt in money. Cow- 
 ell. 
 
 MONITION. In practice. A process in the 
 nature of a summons, which is used in the 
 civil law, and in those courts which derive 
 their practice from the civil law. 
 
 A general monition is a citation or sum- 
 mons to all persons interested, or, as is com- 
 monly said, to the whole world, to appear 
 and show cause why the libel filed in the case 
 should not be sustained, and the prayer of 
 relief granted. This is adopted in prize cas- 
 es, admiralty suits for forfeitures, and other 
 suits in rem, when no particular individuals 
 are summoned to answer. In such cases, the 
 taking possession of the property libelled, 
 and this general citation or monition, served 
 according to law, are considered constructive 
 notice to the world of the pendency of the 
 suit; and the judgment rendered thereupon 
 is conclusive upon the title of the property 
 which may be affected. In form, the moni- 
 tion is substantially a warrant of the court, 
 in an admiralty cause, directed to the marshal 
 or his deputy, commanding him, in the name 
 of the president of the United States, to give 
 public notice, by advertisements in such news- 
 papers as the court may select, and by notifi- 
 cations to be posted in put)lic places, that a 
 libel has been filed in a certain admiralty 
 cause pending, and of the time and place ap- 
 pointed for the trial. A brief statement of 
 the allegations In the libel is usually con- 
 tained in the monition. The monition is 
 served in the manner directed In the war- 
 rant. 
 
 ■ A mixed monition is one which contains 
 directions for a general monition to all per- 
 sons interested, and a special summons to 
 particular persons named in the warrant. 
 This is served by newspaper advertisements, 
 by notifications posted in public places, and 
 by delivery of a copy attested by the officer 
 to each person specially named, or by leaving 
 it at his usual place of residence. 
 
 A special monition is a similar warrant, 
 directed to the marshal or his deputy, requir- 
 ing him to give special notice to certain per- 
 sons, named in the warrant, of the pendency 
 of the suit, the grounds of it, and the time 
 and place of trial. It is served by delivery 
 of a copy of the warrant, attested by the of- 
 ficer, to each one of the adverse parties, or 
 by leaving the same at his usual place of 
 residence; but the service should be personal, 
 if possible. Gierke, Prax. tit. 21; Dunl. Adm. 
 Prac. 135. See Conkl. Adm.; Pars. Mar. Law. 
 
 MONITORY LETTER. In ecclesiastical 
 law. The process of an official, a bishop, or 
 other prelate having jurisdiction, issued to 
 compel, by ecclesiastical censures, those who 
 know of a crime, or other matter which re- 
 quires to be explained, to come and reveal it. 
 Merlin, Repert. 
 
 MONOCRACY. A government by one per- 
 son only. 
 
 MONOCRAT. A monarch who governs 
 alone; an absolute governor. 
 
 MONOGAMY. The state of having only 
 one husband or one wife at a time. , 
 
 A marriage contracted between one man 
 and one woman, in exclusion of all the rest 
 of mankind. The terra is used In opposition 
 to "bigamy" and "polygamy." Wolff. Dr. Nat. 
 § 857. 
 
 MONOGRAM. A character or cipher com- 
 posed of one or more letters Interwoven, be- 
 ing an abbreviation of a name. 
 
 A signature made by a monogram would 
 perhaps be binding provided it could be prov- 
 ed to have been made and intended as a sig- 
 nature. 1 Denio (N. Y.) 471. 
 
 There seems to be no reason why such a 
 signature should not be as binding as one 
 which Is altogether Illegible. 
 
 MONOMACHY. Single combat. 
 
 MONOMANIA. In medical jurisprudence. 
 Insanity only upon a particular subject, and 
 with a single delusion of the mind. 
 
 The most simple form of this disorder Is 
 that In which the patient has imbibed some 
 single notion, contrary to common sense, and 
 to his own experience, and which seems, and 
 no doubt really is, dependent on errors of 
 sensation. It Is supposed the mind in other 
 respects retains Its intellectual powers. In 
 order to avoid any civil act done or criminal 
 responsibility incurred, it must manifestly 
 appear that the act in question was the ef- 
 fect of monomania. Cyc. Prac. Med. "Sound- 
 ness and Unsoundness of Mind;" Ray, Ins. § 
 203; 13 Ves. 89; 3 Brown, Ch. 444; 1 Add. 
 Ecc. 283; 2 Add. Ecc. 402; Hagg. 18; 2 Add. 
 79, 94, 209; 5 Car. & P. 168; Burrows, Ins. 
 484, 485. See "Delusion;" "Mania." 
 
 MONOMANIACS. Persons who are insane 
 upon some one or more subjects, and appar- 
 ently sane upon all others. 2 Redf. Sur. (N. 
 Y.) 34, 37. 
 
 MONOPOLIA DICITUR, CUM UNUS SO- 
 lus aliquod genus mercaturae universum 
 emit, pretium ad suum libitum statuens. 
 It is said to be a monopoly when one person 
 alone buys up the whole of one kind of com- 
 modity, fixing a price at his own pleasure. 
 11 Coke, 86. 
 
 MONOPOLIUM (Graeco-Lat.) The sole 
 power, right, or privilege of sale; monopoly; 
 a monopoly. Calv. Lex.; Code, 4. 59; Grotius 
 de .lure Belli, lib. 2. c. 12, S 16. 
 
 MONOPOLY (from Lat. mnnnpnlhim, q. ;■.) 
 The exclusive privilege of selling any com- 
 modity. Defined In English law to be "a 
 license or privilege allowed by the king for 
 the sole buying and selling, making, work- 
 ing, or using of anything whatsoever, where- 
 by the subject in general is restrained from 
 
MONSTER 
 
 (604) 
 
 MOOT 
 
 that liberty of manufacturing or trading 
 which he had before." 4 Bl. Comm. 159; 4 
 Steph. Comm. 291. 
 Any exclusive right or privilege. 
 
 MONSTER. An animal which has a con- 
 formation contrary to the order of nature. 2 
 Dungl. Hum. Phys. 422. 
 
 A monster, although born of a woman In 
 lawful wedlock, cannot inherit. Those who 
 have, however, the essential parts of the hu- 
 man form, and have m.erely some defect of 
 conformation, are capable of inheriting, if 
 otherwise qualified. 2 Bl. Comm. 246; 1 
 Beck, Med. Jur. 366; Co. Litt. 7, 8; Dig. 1. 5. 
 14; 1 Swift, System, 331; Fred. Code, pt. 1, 
 bk. 1, tit. 4, § 4. 
 
 No living human birth, however much it 
 may differ from human shape, can be law- 
 fully destroyed. Traill, Med. Jur. 47. See 
 Briand, Med. Leg. pt. 1, c. 6, art. 2, § 3; 1 
 Podere, Med. Leg. §§ 402-405. 
 
 MONSTRANS DE DROIT (Pr. showing of 
 right) . A common-law process by which res- 
 titution of personal or real property is ob- 
 tained from the crown by a subject. Chi]t. 
 Prerog. Cr. 345; 3 Bl. Comm. 256. By this 
 process, when the facts of the title of the 
 crown are already on record, the facts on 
 which the plaintiff relies, not inconsistent 
 with such record, are shown, and judgment 
 of the court prayed thereon. The judgment, 
 if against the crown, is that of ouster le 
 main, which vests possession in the sub- 
 ject without execution. Bac. Abr. "Prerog- 
 ative" (E); 1 And. 181; 5 Leigh (Va.) 512; 
 12 Grat. (Va.) 564. 
 
 MONSTRANS DE FAIT (Pr. showing of a 
 deed). A profert. Bac. Abr. "Pleas" (I 12, 
 note 1). 
 
 MONSTRAVERUNT, WRIT OF. In Eng- 
 lish law. A writ which lies for the tenants 
 of ancient demesne who hold by free char- 
 ter, and not for those tenants who hold by 
 copy of court roll, or by the rod, according 
 to the custom of the manor. Pitzh. Nat. 
 Brev. 31. 
 
 MONTES PIETATIS, or MONTS DE Pl- 
 ate. Institutions established by public au- 
 thority for lending money upon pledge of 
 goods. 
 
 In these establishments a fund is provided, 
 with suitable warehouses, and all necessary 
 accommodations. They are managed by di- 
 rectors. When the money for which the 
 goods pledged is not returned in proper time, 
 the goods are sold to reimburse the institu- 
 tions. They are found principally on the con- 
 tinent of Europe. With us, private persons, 
 called "pawnbrokers," perform this oflSce, — 
 sometimes with doubtful fidelity. See Bell, 
 Inst. 5. 2. 2. 
 
 MONTH. A space of time variously com- 
 puted, as it is applied to astronomical, civil 
 or solar, or lunar months. 
 
 The astronomical month contains one- 
 twelfth part of the time employed by the sun 
 in going through the zodiac. In law, when 
 
 a month -simply is mentioned, it is never un- 
 derstood to mean an astronomical month. 
 
 The civil, solar or calendar month is that 
 which agrees with the Gregorian calendar; 
 and these months are knpwn by the names of 
 January, February, March, etc. They are 
 composed of unequal portions of time. There 
 are seven of thirty-one days each, four of 
 thirty, and one which is sometimes composed 
 of twenty-eight days, and In leap years of 
 twenty-nine. 
 
 The lunar month consists of twenty-eight 
 days. 
 
 By the law of England, a month means or- 
 dinarily, in common contracts, as in leases, a 
 lunar month. A contract, therefore, made 
 for a lease of land for twelve months would 
 mean a lease for forty-eight weeks only. 2 
 Bl. Comm. 141; 6 Coke, 62; 6 Term R. 224; 1 
 Maule & S. Ill; 1 Bing. 307. A distinction 
 has been made between "twelve months" and 
 "a, twelve-months." The latter has been held 
 to mean a year. 6 Coke, 61. 
 
 But in mercantile contracts in England, 
 and for any purpose in the United States, a 
 month simply signifies a . calendar month 
 Chit. Bills, 406; 3 Brod. & B. 187; 1 Maule & 
 S. Ill; Story, Bills, § 143; Story, Partn. § 
 213; 2 Mass. 170; 4 Mass. 460; 6 Watts & S. 
 (Pa.) 179; 1 Johns. Gas. (N. Y.) 99; 4 Wend. 
 (N. Y.) 512; 15 Johns. (N. Y.) 358; 2 Cow. 
 (N. Y.) 518, 605; 2 Call. (Pa.) 302; 4 DaU. 
 (Pa.) 143; 4 Mass. 461; 4 Bibb (Ky.) 105. 
 
 In England, in the ecclesiastical law, 
 months are computed by the calendar. 3 
 Burrows, 1455; 1 Maule & S. 111. 
 
 MONUMENT. A thing intended to trans- 
 mit to posterity the memory of some one. A 
 tomb where a dead body has been deposited. 
 
 In this sense it differs from a "cenotaph," 
 which is an empty tomb. Dig. 11. 7. 2. 6; 
 Id. 11. 7. 2. 42. 
 
 A permanent landmark, whether natural or 
 artificial, established for the purpose of indi- 
 cating a boundary. 
 
 MONUMENTA QUAE NOS RECOROA 
 vocamus sunt veritatis et vetustatis vestigia. 
 Monuments, which we call "records," are th« 
 vestiges of truth and antiquity. Co. Utt 
 118. 
 
 MOORING. In maritime law. The secur- 
 ing of a vessel by a hawser or chain, or other- 
 wise, to the shore, or to the bottom by a 
 cable and anchor. The being "moored in 
 safety," under a policy of insurance, is being 
 moored in port, or at the usual place for 
 landing and taking in cargo, free from any 
 immediate impending peril insured against. 
 1 Phil. Ins. 968; 3 Johns. (N. Y.) 88; 11 
 Johns. (N. Y.) 358; 2 Strange, 1243; 5 Mart. 
 (La.) 637; 6 Mass. 313; Code de Comm. 152. 
 
 MOOT (from Saxon gemot, meeting togeth- 
 er). In English law. A term used in the 
 inns of court, signifying the exercise of argu- 
 ing imaginary cases, which young barristers 
 and students used to perform at certain 
 times, the better to be enabled by this prac- 
 
MOOT COURT 
 
 (60S) 
 
 MORGEN 
 
 tice to defend their clients' cases. Orlg. Jur. 
 212. 
 
 To plead a mock cause. Also spelled 
 "meet," from Saxon motain, to meet; the 
 sense of debate being from meeting, encoun- 
 tering. A moot question is one which has 
 not been decided. 
 
 MOOT COURT. A court where moot ques- 
 tions are argued. Webster. 
 
 In law schools this is one of the methods 
 of instruction. An undecided point of law 
 is argued by students appointed as counsel 
 on either side of the cause, one or more of 
 the professors sitting as judge in presence of 
 the school. The argument is conducted as 
 in cases reserved for hearing before the full 
 bench. 
 
 MOOT HILL. Hill of meeting (gemot), on 
 which the Britons used to hold their courts, 
 the judge sitting on the eminence, the par- 
 ties, etc., on an elevated platform below. 
 Bnc. Lond. 
 
 MOOT MAN. One of those who used to ar- 
 gue the reader's cases in the Inns of court. 
 
 MORA (Lat.) In the civil law. Delay; de- 
 fault; neglect; culpable delay or default. 
 Calv. Lex. 
 
 MORA REPROBATUR IN LEGE. Delay is 
 disapproved of in law. Jenk. Cent. Cas. 51. 
 
 MORAL CERTAINTY. That degree of cer- 
 tainty which will justify a jury in grounding 
 on It their verdict. It is only probability; 
 but it is called "certainty," because every 
 sane man assents to it necessarily, from a 
 habit produced by the necessity of acting. 
 Nothing else but a strong presumption 
 grounded on probable reasons, and which 
 very seldom fails and deceives us. Puffen- 
 dorff. Law Nat. bk. 1, c. 2, § 11. A reason- 
 able and moral certainty; a certainty that 
 convinces and directs the understanding, and 
 satisfies the reason and judgment, of those 
 who are bound to act conscientiously upon it. 
 A certainty beyond a reasonable doubt. 
 Shaw, C. J., Com. v. Webster, Bemis' Report 
 of the trial, 469, 470. Such a certainty "as 
 convinces beyond all reasonable doubt." 
 Parke, B., Best, Pres. 257, note; 6 Rich. Eq. 
 (S. C.) 217. 
 
 MORAL FRAUD. Fraud involving actual 
 turpitude, as distinguished from mere con- 
 structive fraud. 
 
 MORAL OBLIGATION. A duty which one 
 owes, and which he ought to perform, but 
 which he is not legally bound to fulfill. 
 
 These obligations are of two kinds: (1) 
 Those founded on a natural right; as, the ob- 
 ligation to be charitable, which can never be 
 enforced by law. (2) Those which are sup- 
 ported by a good or valuable antecedent con- 
 sideration; as, where a man owes a debt bar- 
 red by the act of limitations, this cannot be 
 recovered by law, though it subsists in moral- 
 
 ity and conscience; but if the debtor promise 
 to pay it, the moral obligation is a sufficient 
 consideration for the promise, and the credit- 
 or may maintain an action of assumpsit to 
 recover the money. 1 Bouv. Inst, note 623. 
 See "Consideration." 
 
 MORARI (Lat.) In old English law. To 
 delay; to pause or rest. Moratur in lege, 
 (he) rests or pauses in law; (he) demurs. 
 
 MORBOSUS (Lat. from morbus). In the 
 civil law. Diseased. Sea Dig. 21. 1. 1-16. 
 
 MORBUS SONTICUS (Lat.) In the civil 
 law. A sickness which rendered a man in- 
 capable of attending to any business {qui 
 cuique rei nocet) . Dig. 50. 16. 113; IMackeld. 
 Civ. Law, 137, § 127, note. A sickness of the 
 severer kind, having the power of causing 
 great pain. A. Gellius, Noet. Att. lib. 20, c. 1. 
 A sickness which excused a nonappearance 
 in court. Calv. Lex.; Adams, Rom. Ant. 245, 
 272. Bracton uses this term in treating of 
 the law of essoins, but gives it the meaning 
 of an incurable disease. Bracton, fol. 344b. 
 
 MORE COLON ICO (Lat.) In old plead- 
 ing. In husbandlike manner. Towns. PI 
 198. 
 
 MORE OR LESS. Words, in a conveyance 
 of lands or contract to convey lands, import- 
 ing that the quantity is uncertain and not 
 warranted, and that no right of either party 
 under the contract shall be affected by a de- 
 ficiency or excess in the quantity. 17 Ves. 
 394; Powell, Powers, 397. So In contracts of 
 sale generally. 2 Barn. & Adol. 106. 
 
 MORGANATIC MARRIAGE. A lawful and 
 inseparable conjunction of a single man of 
 noble and illustrious birth with a single wo- 
 man of an inferior or plebeian station, upon 
 this condition, that neither the wife nor chil- 
 dren should partake of the title, arms, or 
 di-gnity of the husband, nor succeed to his 
 inheritance, but should have a certain allow- 
 ance assigned to them by the morganatic 
 contract. 
 
 This relation was frequently contracted 
 during the middle ages. The marriage cere- 
 mony was regularly performed, the union 
 was for life and indissoluble, and the chil- 
 dren were considered legitimate, though they 
 could not inherit. Fred. Code, bk. 2, art. 3; 
 Poth. du Mar. 1, c. 2, § 2; Shelf. Mar. & Div. 
 10; Pruss. Code, art. 835. 
 
 MORGANGIVA, or MORGENGEBA (Law 
 Lat.; LiOTnh. morgingap; Sa.xon,inorgan gyfe; 
 from margin, morning, and gat, a gift). In 
 old European law. A gift made to a wife on 
 the morning of the nuptial day; a species 
 of dower, which Spelman compares to the 
 English dower ad ostium ecclesiae. This 
 word occurs in the laws of the Burgiindians, 
 Alemanni, Rlpuarians, and Lombards, and 
 also in the laws of Canute. LL. Canuti, c. 
 71. Spelman. 
 
 MORGEN (Anglo-Dutch). In old New 
 
MORS 
 
 (606) 
 
 MORTGAGEE 
 
 York law. A measure of land, equal to 
 about two acres. O'Callaghan's New Nether- 
 lands, vol. 2, Append. 593. 
 
 MORS (Lat.) Death. 
 
 MORS DICITUR ULTIMUM SUPPLICI- 
 um. Death is denominated the extreme pen- 
 alty. 3 Inst. 212. 
 
 MORS OMNIA SOLVIT. Death dissolves 
 all things. 
 
 MORT CIVILE. In French law. Civil 
 death, as upon conviction for felony. It was 
 nominally abolished by a law of the 31st of 
 May, 1854, but something very similar to it, 
 in effect, at least, still remains. Thus, the 
 property of the condemned, possessed by him 
 at the date of his conviction, goes and be- 
 longs to his successors {heritiers) , as in case 
 of an intestacy, and his future acquired prop- 
 erty goes to the state by right of its preroga- 
 tive (par droit de desherence) , but the state 
 may, as a matter of grace, make it over in 
 whole or in part to the widow and children. 
 Brown. 
 
 MORT D'ANCESTOR. An ancient and 
 now almost obsolete remedy in the English 
 law. An assize of mort d'ancestor was a writ 
 which was sued out where, after the decease 
 of a man's ancestor, a stranger abated, and 
 entered into the estate. Co. Litt. 159. The 
 remedy in such case is now to bring eject- 
 ment. 
 
 MORTALITY. This word, in its ordinary 
 sense, never means violent death, but death 
 arising from natural causes. 5 Barn. & Aid. 
 110; 3 Barn. & C. 793. 
 
 MORTALITY (or MORTUARY) TABLES. 
 
 Tables showing the duration of human life, 
 as based on observation and records of vital 
 statistics. The records of deaths kept at 
 certain places for long periods form the basis 
 of the tables more commonly known as "Car- 
 lisle Tables," or "Northampton Tables" (q.v.) 
 
 MORTGAGE. The conveyance of an es- 
 tate or property by way of pledge for the se- 
 curity of debt, and to become void on pay- 
 ment of it. 4 Kent, Comm. 136. 
 
 An estate created by a conveyance absolute 
 in its form, but intended to secure the per- 
 formance of some act, such as the payment 
 of money, and the like, by the grantor or 
 some other person, and to become void if the 
 act is performed agreeably to the terms pre- 
 scribed at the time of making such convey- 
 ance. 1 Washb. Real Prop. 475. ^ 
 
 By the law of several states, a mortgage is 
 no longer a conveyance by which an estate 
 passes, but a mere pledge creating only a 
 lien. Holmes, Mortg. § 1. 
 
 Two general theories prevail as to the na, 
 ture of the estate created by mortgage. The 
 common-law theory that a mortgage passes 
 title to the mortgagee subject to defeat by 
 +he performance of the condition subsequent 
 has been adopted in Alabama (69 Ala. 442), 
 Arkansas (65 Ark. 174), Connecticut (19 
 
 Conn. 218), Illinois (1 Scam. 140), Maine (2 
 Me. 132), Maryland (6 Gill & J. 72), Massa- 
 chusetts (5 Mass. 120), New Hampshire (5 
 N. H. 420), North Carolina (66 N. C. 477), 
 Ohio (10 Ohio, 71), Pennsylvania (77 Pa. St. 
 250), Rhode Island (6 R. I. 542), Tennessee 
 (10 Humph. 214), and Virginia (4 Rand. 
 245). 
 
 The common-law theory, in a somewhat 
 modified form, prevails in Delaware ( 1 Houst. 
 320), Mississippi (24 Miss. 368), Missouri 
 (10 Mo. 229), New Jersey (40 N. J. Law, 
 417), and Vermont (44 Vt. 294). 
 
 The equitable doctrine that a mortgage 
 conveys only a lien is adopted in California 
 (2 Cal. 491; 64 Cal. 514), Colorado (Laws 
 1887, § 263, p. 174), Florida (17 Fla. 698), 
 Georgia (76 Ga. 384), Idaho (Rev. St. 1887, 
 § 3350), Indiana (27 Ind. 472), Iowa (39 
 Iowa, 268), Kansas (35 Kan. 120), Ken- 
 tucky (14 Bush, 788), Michigan (65 Mich. 
 598), Minnesota (12 Minn. 330), Montana (6 
 Mont. 596), > Nebraska (14 Neb. 246), Ne- 
 vada (1 Nev. 179), New York (54 N. Y. 599), 
 North Dakota (Rev. Code, § 1733), Oregon 
 (11 Or. 534), South Carolina (27 S. C. 309), 
 South Dakota (Rev. Code 1877, § 1733), 
 Utah (Comp. Laws 1876, p. 478), Washing- 
 ton (3 Wash. T. 318), Wisconsin (7 Wis. 
 566). 1 Pingrey, Mbrtg. 16. 
 
 Both real and personal property may be 
 mortgaged, and in substantially the "same 
 manner, except that, a mortgage being in its 
 nature a transfer of title, the laws respecting 
 the necessity of possession of personal prop- 
 erty and the nature of instruments of trans- 
 fer, being different, require the transfer to be 
 made differently in the two cases. See 
 "Chattel Mortgage." 
 
 A mortgage may in form be either a con- 
 veyance with provision for a defeasance, or a 
 conveyance absolute in form, with a collat- 
 teral agreement for a defeasance. 15 Johns. 
 (N. Y.) 555; 2 Me. 152; 12 Mass. 456. 
 
 An equitable mortgage is one in which the 
 mortgagor does not actually convey the prop- 
 erty, but does some act by which he mani- 
 fests his determination to bind the same as a 
 security. See "Equitable Mortgage." 
 
 A legal mortgage is a conveyance of prop- 
 erty intended by the parties at the time of 
 making it to be a security for the perform- 
 ance of some prescribed act. 1 Washb. Real 
 Prop. 479. 
 
 MORTGAGE OF GOODS. A conveyance 
 of goods in gage, or mortgage, by which the 
 whole legal title passes conditionally to the 
 mbrtgagee; and if the goods are not re- 
 deemed at the time stipulated, the title be- 
 comes absolute in law, although equity will 
 interfere to compel a redemption. Story, 
 Bailm. § 287. It is distinguished from a 
 pledge by the circumstance that possession 
 by the pledgee is not, or may not be, essen- 
 tial to create or to support the title. Id. See 
 2 Kent, Comm. 522-532; 4 Kent, Comm. 138. 
 
 MORTGAGEE. He to whom a mortgage is 
 made. See "Mortgage." 
 
MORTGAGOR 
 
 (607) 
 
 MOVABLES 
 
 MORTGAGOR. He who makes a mort- 
 gage. See "Mortgage." 
 
 WORTH (Saxon). Murder, answering ex- 
 actly to the French "assassinat" or "muertre 
 de guet-apens." 
 
 MORTHLAGA. A murderer. Cowell. 
 
 WORTH LAG E. Murder. Cowell. 
 
 WORTIFICATION. In Scotch law. A term 
 nearly synonymous with "mortmain." 
 
 MORTIS CAUSA (Lat.) By reason of 
 death; in contemplation of death. Thus used 
 in the phrase, donatio mortis causa (q. v.) 
 
 MORTIS WOWENTUM EST ULTIMUM 
 vitae momentum. The last moment of life 
 is the moment of death. 4 Bradf. Sur. (N. 
 Y.) 245, 250. 
 
 MORTMAIN. A term applied to denote the 
 possession of lands or tenements by any cor- 
 poration, sole or aggregate, ecclesiastical or 
 temporal. These purchases having been 
 chiefly made by religious houses, in conse- 
 quence of which lands became perpetually in- 
 herent in one dead hand, this has occasioned 
 the general appellation of "mortmain" to be 
 applied to such alienations. 2 Bl. Comm. 
 268; Co. Litt. 2b; Ersk. Inst. 2. 4. 10; Barr. 
 Obs. St. 27, 97. See Story, Eq. Jur. § 1137; 
 Shelf. Mortm. 
 
 MORTMAIN ACTS. These acts had for 
 their object to prevent lands getting into the 
 possession or control of religious corpora- 
 tions, or, as the name indicates, in mortua 
 manu. After numerous prior acts dating 
 from the reign of Edward I., it was enacted 
 by St. 9 Geo. II. c. 36 (called the "Mortmain 
 Act" paf excellence) , that no lands should be 
 given to charities unless certain requisites 
 should be observed. Brown. 
 
 MORTUARY. In ecclesiastical law. A bur- 
 ial place. A kind of ecclesiastical heriot, 
 being a customary gift of the second-best liv- 
 ing animal belonging to the deceased, claim- 
 ed by and due to the minister in many par- 
 ishes, on the death of his parishioners, 
 whether buried in the church yard or not. 
 These mortuaries, like lay herlots, were orig- 
 inally voluntary bequests to the church in 
 lieu of tithes or ecclesiastical dues neglected 
 in lifetime. See "Soulscot." They were re- 
 duced to a certain amount by 21 Hen. VIII. 
 c. 6. They were sometimes payable to the 
 lord. Par. Ant. 470. The mortuary seems to 
 have been carried to church with the corpse, 
 and was therefore sometimes called corpse 
 present. 2 Burn, Ecc. Law, 563. Anciently, 
 a parishioner could not make a valid will 
 without an assignment of a sufficient mortu- 
 ary or gift to the church. 2 Bl. Comm. 427. 
 
 MORTUUM VADIUM. A mortgage. 
 
 MORTUUS (Lat.) Dead. Ainsworth. So 
 in sheriff's return mortuus est, he is dead. 
 0. Bridg. 469; Brooke, Abr. "Retorne de 
 Briefe," pi. 125 ; 19 VIner, Abr. "Return," lib. 
 2, pi. 12. 
 
 MORTUUS EXITUS NON EST EXITAS. 
 
 To be dead-born is not to be born. Co. Litt. 
 29. See 2 Paige, Ch. (N. Y.) 35; Domat, liv. 
 prel. tit. 2, § 1, note 4, 6; 2 Bouv. Inst, notes 
 1721, 1935. 
 
 MOS RETINENDUS EST FIDELISSIMAE 
 vetustatis. A custom of the truest antiquity 
 is to be retained. 4 Coke, 78. 
 
 MOSTRENCOS. In Spanish law. Strayed 
 goods; estrays. White, New Recop. bk. 2, 
 tit. 2, c. 6. 
 
 MOT BELL (Saxon). Meeting bell; a bell 
 used by the Saxons to summon the people to 
 the folc mote. Spelman. See "Pole Mote." 
 
 MOTWORTHY (Old Eng.) A common 
 councilman. Cowell, voc. "Concionator." 
 
 MOTE (Saxon). A meeting; an assembly. 
 Used in composition, as burgmote, folkmote, 
 etc. 
 
 MOTEER. The customary payment at the 
 court (mote) of a feudal lord. 
 
 MOTION. In practice. An application to 
 a court by one of the parties in a cause, or 
 his counsel, in order to obtain some rule or 
 order of court which he thinks becomes 
 necessary in the progress of the cause, or to 
 get relieved in a summary manner from 
 some matter which would work injustice. 
 Properly, an oral application for a rule or 
 order (41 Cal. 650), but the term is now gen- 
 erally applied to applications, whether writ- 
 ten or oral. 
 
 MOTIVE (from Lat. movrre, to move or 
 stir). In the law of evidence. That which 
 moves or influences the mind or will; an 
 emotion, passion, or desire which incites or 
 impels to action. 
 
 In Criminal Evidence. An unlawful 
 
 desire or emotion, awakened by the percep- 
 tion or contemplation of some external ob- 
 ject, or end to be attained by action. This 
 ultimate object is, in fact, the cause or spring 
 of the motive itself, and has sometimes been 
 called the "exterior" or "external" motive, 
 as distinguished from the desire or passion 
 it creates, which is termed the "interior" or 
 "internal" motive. See 3 Benth. Jud. Ev. 183. 
 It is, in other words, the inducement, or 
 that which leads or tempts the mind to in- 
 dulge the criminal desire. Burrill, Circ. Ev. 
 283, 284. 
 
 MOURNING. The apparel worn at funer- 
 als, and for a time afterwards, in order to 
 manifest grief for the death of some one, and 
 to honor his memory. 
 
 The expenses paid for such apparel. 
 
 It has been held, in England, that a de- 
 mand for mourning furnished to the widow 
 and family of the testator is not a funeral 
 expense. 2 Car. & P. 207. See 14 Ves. 346; 
 1 Ves. & B. 364. See 2 Bell, Comm. 156. 
 
 MOVABLES. Such subjects of property as 
 attend a man's person wherever he goes. In 
 contradistinction to things immovable. 
 
 Things movable by their nature are such 
 
MOVENT 
 
 (608) 
 
 MQLTIFARIOUSNESS 
 
 as may be carried from one place to another; 
 whether they move themselves, as cattle, or 
 cannot be removed without an extraneous 
 power, as inanimate things. So in the civil 
 law mobilia; but this term did not properly 
 include living movables, which were termed 
 moventia. Calv. Lex. But these words, mo- 
 bilia and moventia, are also used synony- 
 mously, and in the general sense of "mov- 
 ables." Id. Movables are further distin- 
 guished into such as are in possession, or 
 which are in the power of the owner, as a 
 horse in actual use, a piece of furniture in a 
 man's own house, or such as are in the pos- 
 session of another, and can only be recovered 
 by action, which are therefore said to be in 
 action, as a debt. See "Personal Property;" 
 Ponbl. Bq. Index; Powell, Mortg. Index; 2 
 Bl. Comm. 384; Civ. Code La. arts. 464-472; 
 1 Bouv. Inst, note 462; 2 Steph. Comm. 67; 
 Shep. Touch- 447; 1 P. Wms. 267. 
 
 In a will, "movables" is used in its largest 
 sense, but will not pass growing crop, nor 
 building materials on ground. 2 Williams, 
 Ex'rs, 1014; 3 A. K. Marsh. (Ky.) 123; 1 
 Yeates (Pa.) 101; 2 Ball. (Pa.) 142. 
 
 In Scotch Law. Every right which a 
 
 man can hold which is not heritable. Op- 
 posed to "heritage." Bell, Diet. 
 
 MOVENT. One who moves; one who 
 makes a motion before a court; the applicant 
 for a rule or order. 
 
 MOVING FOR AN ARGUMENT. Making 
 a motion on a day which is not motion day, 
 in virtue of having argued a special case; 
 used in the exchequer after it became obso- 
 lete in the queen's bench. Wharton. 
 
 MUEBLES. In Spanish law. Movables; 
 all sorts of I personal property. White, New 
 Recop. bk. 1. tit. 3, c. 1, § 2. 
 
 MUIRBURN. In Scotch law. The offense 
 of setting fire to a muir or moor. 1 Brown, 
 Ch. 78, 116. 
 
 MULATTO. A person born of one white 
 and one black parent. 7 Mass. 88; 2 Bailey 
 (S. C.) 558. 
 
 M U LCT. A fine imposed on the conviction 
 of an offense. 
 
 An imposition laid on ships or goods by 
 a company of trade for the maintenance of 
 consuls and the like. It is obsolete in the 
 latter sense, and but seldom used in the for- 
 mer. 
 
 MULCTA DAMNUM FAMAE NON IRRO- 
 gat. A fine does not impose a loss of repu- 
 tation. Code, 1. 54; Calv. Lex. 
 
 MULIER. Of ancient time, "mulier" was 
 taken for a wife, as it is commonly used for 
 a woman, and sometimes for a widow; but it 
 has been held that a virgin is included under 
 the name "mulier." Co. Litt. 170, 243; 2 Bl. 
 Comm. 248. 
 
 The term is used always in contradistinc- 
 tion to a bastard, mulier being always legiti- 
 mate (Co. Litt. 243), and seems to be a word 
 corrupted from melior, or the French meil- 
 
 leur, signifying lawful issue born in wedlock. 
 But by Glanville, lawful issue are said to be 
 mulier, not from m,eHor, but because begot- 
 ten e miiliere, and not ex concubina, for he 
 calls such issue fitios muUeratos, opposing 
 them to bastards. Glanv. lib. 7, c. 1. If the 
 said lands "should, according to the queen's 
 lawes, descend to the right heire, then in 
 right it ought to descend to him, as next 
 heire being mulierlie borne, and the other 
 not so borne." Holinshead, Chron. Ireland, 
 an. 1558. 
 
 MULIER PUISNE (Law Pr.) When a man 
 has a bastard son, and afterwards marries 
 the mother, and by her has also a legitimate 
 son, the elder son is bastard eigne, and the 
 younger son is mulier puisne. 
 
 MULTA CONCEDUNTUR PER OBLIQU- 
 um quae non conceduntur de directo. Many 
 things are conceded indirectly which are not 
 allowed directly. 6 Coke, 47. 
 
 MULTA FIDEM PROMISSA LEVANT. 
 
 Many promises lessen confidence. 11 Cush. 
 (Mass.) 350. 
 
 MULTA IGNORAMUS QUAE NOBIS NON 
 laterent si veterum lectio nobis fuit famll- 
 iaris. We are ignorant of many things which 
 would not be hidden from us if the reading of 
 old authors were familiar to us. 10 Coke, 73. 
 
 MULTA IN JURE COMMUNI CONTRA 
 rationem disputandi pro communi utilitate 
 Introducta sunt. Many things have been in- 
 troduced into the common law, with a view to 
 the public good, which are inconsistent with 
 s<Jund reason. Co. Litt. 70; Broom, Leg. 
 Max. (3d London Ed.) 150; 2 Coke, 75. See 
 3 Term R. 146; 7 Term R. 252. 
 
 MULTA MULTO EXERCITATIONE FA- 
 cilius quam regulls percipes. You will per- 
 ceive many things much more easily by prac- 
 tice than "by rules. 4 Inst. 50. 
 
 MULTA NON VETAT LEX, QUAE TA- 
 men taclte damnavlt. The law fails to for- 
 bid many things which yet it has silently con- 
 demned. 
 
 MULTA TRANSEUNT CUM UNIVERSI- 
 tate quae non per se transeunt. Many things 
 pass as a whole which would not pass sepa- 
 rately. Co. Litt. 12a. 
 
 MULTI MULTA; NEMO OMNIA NOVIT. 
 
 Many men know many things; no one knows 
 everything. 4 Inst. 348. 
 
 MULTI UTILIUS EST PAUCA IDONEA 
 effundere, quam multls inutilibus homines 
 gravarl. It is much more useful to pour 
 forth a few useful things than to oppress 
 men with many useless things. 4 C!oke, 20. 
 
 MULTIFARIOUSNESS. In equity plead- 
 ing. The demand in one bill of several mat- 
 ters of a distinct and independent nature 
 against several defendants. Cooper, Bq. PI. 
 182; 18 Ves. 80; 2 Mason (U. S.) 201; 4 Cow. 
 (N. Y.) 682; 2 Gray (Mass.) 467. 
 
 The uniting in one bill against a single de- 
 
MULTIPLE POINDING 
 
 (609) 
 
 MUNICIPAL CORPORATION 
 
 fendant several matters perfectly distinct 
 and unconnected. This latter is more prop- 
 erly called "misjoinder" (</. v.) 
 
 The subject admits of no general rules, but 
 the courts seem to consider the circum- 
 stances of each case with reference to avoid- 
 ing on one hand a multiplicity of suits, and 
 on the other inconvenience and hardship to 
 the defendants from being obliged to answer 
 matters with which they have, in great part, 
 no connection, and the complication and con- 
 fusion of evidence. 1 Mylne & C. 618 ; 5 Sim. 
 288; 3 Story, C. C. (U. S.) 25; 2 Gray 
 (Mass.) 471; Story, Eq. PI. §§ 274, 530. It 
 is to be taken advantage of by demurrer (2 
 Anstr. 469), or by plea and answer previous 
 to a hearing (Story, Eq. PI. 530, note), or by 
 .the court of its own accord at any time (1 
 Mylne & K. 546; 3 How. [U. S.] 412; 5 How. 
 [U. S.] 127). See, generally, Story, Eq. PI. 
 §§ 274-290, 530-540; 4 Bouv. Inst, note 4243. 
 
 MULTIPLE POINDING. In Scotch law. 
 Double distress; a name given to an action 
 which may be brought by a person in posses- 
 sion of goods claimed by different persons 
 pretending a right thereto, calling the claim- 
 ants and all others to settle their claims, so 
 that the party who sues may be liable only 
 "in once and single payment." Bell, Diet. ; 2 
 Bell, Comm. 299; Stair, Inst. 3. 1. 39. 
 
 MULTIPLEX ET INDISTINCTUM PARIT 
 confuslonem; et questiones quo simpllclores, 
 eo lucldiores. Multiplicity and indistinctness 
 produce confusion; the more simple ques- 
 tions are, the more lucid they are. Hob. 335. 
 
 MULTIPLICATA TRANSGRESSIONE 
 crescat poenae Inflictlo. The infliction of 
 punishment should be in proportion to the 
 increase of crime. 2 Inst. 479. 
 
 MULTIPLICITY (from Lat. miiltiijlcx, from 
 multus, many, and pUcare, to fold). A state 
 of being many. Webster. That quality of a 
 pleading which involves a variety of mat- 
 ters or particulars; undue variety. 2 Saund. 
 410. 
 
 A multiplying or increasing. Story, Eq. 
 PI. § 287. 
 
 MULTITUDE. The meaning of this word 
 is not very certain. By some it is said that, 
 to make a multitude, there must be ten per- 
 sons, at least, while others contend that the 
 law has not fixed any number. Co. Litt. 257. 
 
 MULTITUDINEM DECEM FACIUNT. 
 
 Ten make a multitude. Co. Litt. 247. 
 
 MULTITUDO ERRANTIUM NON PARIT 
 errori patrocinium. The multitude of those 
 who err is no protection for error. 11 Coke, 
 
 75. 
 
 MULTITUDO IMPERITORUM PERDIT 
 
 curiam. A multitude of Ignorant practition- 
 ers destroys a court. 2 Inst. 219. 
 
 MULTURE (Law Lat. multura, moUtura, 
 from molere, to grind). In old English law. 
 A grinding of grain at a mill; the grain 
 ground. 
 
 The toll or fee due for grinding grain. 2 
 Mon. Angl. 825; Cowell. Called mutter in 
 an old award. "28 Hen. IV., cited by Blount. 
 
 In Scotch Law. A duty paid for grind- 
 ing in any mill. 1 Forbes, Inst. pt. 2, p. 140. 
 A quantity of grain payable to the proprietor 
 of a mill for grinding grain. Bell, Diet. 
 
 MUND. Peace. 
 
 MUNDBRYE. A breach of the peace. 
 
 MUNERA. The name given to grants 
 made in the early feudal ages, which were 
 merely tenancies at will, or during the pleas- 
 ure of the grantor. Dalr. Feud. Prop. 198, 
 199; Wright, Ten. 19. 
 
 MUNICEPS (Lat. from munus, office, and 
 caper e, to take). In Roman law. Eligible 
 to office. 
 
 A freeman born in a municipality or town 
 other than Rome, who had come to Rome, 
 and, though a Roman citizen, yet was looked 
 down upon as a provincial, and not allowed 
 to hold the higher offices (dignitates.) 
 
 The inhabitants of a municipality entitled 
 to hold municipal offices. Vocat; Calv. Lex. 
 
 MUNICIPAL. Strictly, this word applies 
 only to what belongs to a city. 
 
 Among the Romans, cities were called mu- 
 nicipia. These cities voluntarily joined the 
 Roman republic in relation to their sover- 
 eignty only, retaining their laws, their liber- 
 ties, and their magistrates, who were thence 
 called "municipal magistrates." With us 
 this word has a more extensive meaning; for 
 example, we call "municipal law" not the law 
 of a city only, but the law of the state. 1 
 Bl. Comm. "Municipal" is used In contradis- 
 tinction to "international." Thus, we say, 
 an offense against the law of nations is an 
 international . offense, but one committed 
 against a particular state or separate com- 
 munity is a municipal offense. 
 
 MUNICIPAL AID. A contribution of mon- 
 ey, lands, municipal bonds, etc., by a munic- 
 ipality to some private enterprise deemed to 
 be of general benefit, to procure or encour- 
 age the construction thereof. 
 
 MUNICIPAL CORPORATION. A public 
 corporation, created by government for po- 
 litical purposes, and having subordinate and 
 local powers of legislation; e. g., a county, 
 town, city, etc. 2 Kent, Comm. 275; Angell 
 & A. Corp. 9, 29; 1 Baldw. (U. S.) 222. 
 
 An incorporation of persons, inhabitants of 
 a particular place, or connected with a par- 
 ticular district, enabling them to conduct its 
 local civil government. Glover, Mun. Corp. 1. 
 
 The incorporation, by authority of the gov- 
 ernment, of the inhabitants of a particular 
 place, and authorizing them, in their corpo- 
 rate capacity, to exercise certain specified 
 I)owers with respect to their local govern- 
 ment. Dill. Mun. Corp. § 2. 
 
 In modern usage, the term is somewhat 
 narrower, and is generally confined to bodies 
 politic, specially organized or chartered, and 
 excluding the ordinary political divisions of 
 the state. In this sense, it includes cities 
 
MUNICIPAL, ETC. 
 
 (610) 
 
 MURDER 
 
 and villages, but excludes counties, town- 
 ships, or school districts. 44 Wis. 489; 34 
 Iowa, 84; 52 Mo. 309. But see 36 Minn. 430. 
 
 In English Law. A body of persons in 
 
 a town having the powers of acting as one 
 person, of holding and transmitting prop- 
 erty, and of regulating the government of 
 the town. Such corporations existed in the 
 chief towns of England (as of other coun- 
 tries) from very early times, deriving their 
 authority from "incorporating" charters 
 granted by the crown. Wharton. 
 
 MUNICIPAL CORPORATIONS ACT. In 
 
 English law. A general statute (5 & 6 Wm. 
 IV. c. 76), passed in 1835, prescribing general 
 regulations for the incorporation and govern- 
 ment of boroughs. 
 
 MUNICIPAL COURTS. Courts whose ju- 
 risdiction extends only to the limits of a 
 municipality. They are sometimes so called 
 in the statutes creating them, but sometimes 
 have other designations. 
 
 MUNICIPAL LAW. In contradistinction to 
 international law is the system of law proper 
 to any single nation or state. It is the rule 
 or law by which a particular district, com- 
 munity, or nation is governed. 1 Bl. Comm. 
 44. 
 
 Municipal law contrasts with international 
 law, in that it is a system of law proper to a 
 single nation, state, or community. In any 
 one state, the municipal law of another state 
 is foreign law. A conflict of laws arises 
 where a case arising in one state involves 
 foreign persons or interests, and the foreign 
 and the domestic law do not agree as to the 
 proper rule to be applied. 
 
 The various provinces of municipal law are 
 characterized according to the subjects with 
 which they respectively treat; as, "criminal 
 or penal law," "civil law," "military law," 
 and the like. "Constitutional law," "com- 
 mercial law," "parliamentary law," and the 
 like, are departments of the generJil province 
 of civil law, as distinguished from criminal 
 and military law. 
 
 MUNICIPAL ORDINANCE. An ordinance 
 of a municipal corporation. 
 
 MUNICIPAL SECURITIES. Municipal se- 
 curities are evidences of municipal indebt- 
 edness issued by the municipality. 
 
 They are of two general classes: 
 
 (1) Municipal bonds, being written and 
 usually sealed obligations executed by the 
 proper officers of the municipality, binding 
 it to pay a specified sum at a particular time. 
 Such bonds are ordinarily negotiable. 
 
 (2) Municipal warrants, being instru- 
 ments generally in the form of a bill of ex- 
 change drawn by a municipal officer, upon 
 the treasurer directing him to pay a speci- : 
 fled amount to a person named, or to bearer. 
 
 MUNICIPALITY. The body of officers, 
 taken collectively, belonging to a city, who 
 are appointed to manage its affairs, and de- 
 fend its interests. 
 
 MUNICIPIUM (Lat. from munus, office or 
 honor, and capere, to take). 
 
 — '■ — In Roman Law. A foreign town to 
 which the freedom of the city of Rome was 
 granted, and whose inhabitants had the priv- 
 ilege of enjoying offices and honors there; a 
 free town. Butler, Hor. Jur. 29; Adams, 
 Rom. Ant. 47, 77. 
 
 A free or privileged town; one that had 
 the right of being governed by its own laws 
 and customs. Id. 77. Hence the Latin mjt- 
 iiicipalis, and English "municipal" ig. v.) 
 
 In Old English Law. A castle. Spel- 
 
 man. 
 
 MUNIMENTS. The instruments of writ- 
 ing and written evidences which the owner 
 of lands, possessions, or inheritances has^ by 
 which he is enabled to defend the title of his 
 estate. Termes de la Ley; 3 Inst. 170. 
 
 MUNUS. A gift; an office; a benefice, or 
 feud; a gladiatorial show or spectacle. Calv. 
 Lex.; Du Cange. 
 
 MUR, or MURE (Law Fr. from miirus). A 
 wall. Par mure ou par haye, by a wall or 
 by a hedge. Britt. c. 61. Mur abaiu, a wall 
 beaten or thrown down. Id. 
 
 MURAGE. A toll formerly levied in Eng- 
 land for repairing or building public walls. 
 St. Westminster I. c. 30. 
 
 MURAL MONUMENTS. Monuments made 
 in walls. 
 
 Owing to the difficulty or impossibility of 
 removing them, secondary evidence may be 
 given of inscriptions on walls, fixed tables, 
 gravestones, and the like. 2 Starkie, 274. 
 
 MURDER. In criminal law. The willful 
 killing of any subject whatever, with malice 
 aforethought, whether the person slain shall 
 be an Englishman or a foreigner. Hawk. P. 
 C. bk. 1, c. 13, § 3. Russell says, the killing 
 of any person under the king's peace, with 
 malice prepense or aforethought, either ex- 
 press or implied by law. 1 Russ. Crimes, 
 421; 5 Cush. (Mass.) 304. Wnen a person of 
 sound mind and discretion unlawfully kllleth 
 any reasonable creature in being, and under 
 the king's peace, with malice aforethought, 
 either express or implied. 3 Inst. 47. 
 
 This latter definition, which has been 
 adopted by Blackstone (4 Comm. 195), Chitty 
 (2 Crim. Law, 724), and others, has been 
 severely criticized. What, it has been asked, 
 are "sound memory and understanding?" 
 What has soundness of memory to do with 
 the act? Be it ever so imperfect, how does it 
 affect the guilt? If discretion is necessary, 
 can the crime ever be committed? For is it 
 not the highest indiscretion in a man to take 
 the life of another, and thereby expose his 
 own? If the person killed be an idiot or a 
 new-born infant, is he a reasonable creature? 
 Who is in the king's peace? What is malice 
 aforethought? Can there be any malice aft- 
 erthought? Livingston, Pen. Law, 186. It 
 is, however, apparent that some of the criti- 
 cisms are merely verbal, and others are an- 
 swered by the construction given in the vari- 
 
MURDRARE 
 
 (611) 
 
 MUTINY ACT 
 
 ous cases to the requirements of the defini- 
 tion. See, especially, 5 Gush. (Mass.) 304. 
 
 According to Coke's definition, there must 
 be: First, sound mind and memory in the 
 agent. By this is understood there must be 
 a will and legal discretion. Second, an act- 
 ual killing; but it is not necessary that it 
 should be caused by direct violence; it is 
 sufficient if the acts done apparently endan- 
 ger life, and eventually prove fatal. Hawk. 
 P. C. bk. 1, c. 31, § 4; 1 Hale, P. C. 431; 1 
 Ashm. (Pa.) 289; 9 Car. & P. 356; 2 Palmer, 
 545. Third, the party killed must have been 
 a reasonable being, alive and in the king's 
 peace. To constitute a birth, so as to make 
 the killing of a child murder, the whole body 
 must be detached from that of the mother; 
 but if it has come wholly forth, but is still 
 connected by the umbilical cord, such killing 
 will be murder. 2 Bouv. Inst, note 1722, 
 Foeticide would not be such a killing; he 
 must have been in rerum natura. Fourth, 
 malice, either express or implied. It is this 
 circumstance which distinguishes murder 
 from every description of homicide. See 
 "Malice." 
 
 In some of the states, by legislative enact- 
 ments, murder has been divided into degrees, 
 according to the degree of premeditation. 
 
 MURDRARE (Law Lat.) In old criminal 
 law. To murder. 3 Bl. Comm. 321. Mur- 
 dravit, murdered. A necessary word in old 
 indictments for miurder. 4 Bl. Comm. 307; 
 5 Coke, 122b; Lord Kenyon, 2 Bast, 30. 
 
 To hide, conceal, or stifle. NuUam veri- 
 tatem celabo, nee celari permittam, vel mur- 
 drari, I will conceal no truth, nor will I 
 permit it to be concealed or stifled. Fleta, 
 lib. 1, c. 18, § 4. Words of the oath of an 
 inquisitor or juror. And see Id. §§ 8, 10. 
 
 MURDRE (Law Fr.) Murder. LL. Gul. 
 Conq. lib. 26. 
 A fine so called. Id. See "Murdrum." 
 
 MURDRITOR (Law Lat. from murdrare, 
 q. V.) In old English law. A murderer. 
 Uurdritores, murderers. Bracton, fol. 115b. 
 
 MURDRUM. In old English law. During 
 the times of the Danes, and afterwards till 
 the reign of Edward III., murdrum was the 
 killing of a man in a secret manner, and in 
 that it differed from simple homicide. 
 
 When a man was thus killed, and he was 
 unknown, by the laws of Canute he was pre- 
 sumed to be a Dane, and the vlU was com- 
 pelled to pay forty marks for his death. 
 After the Conquest, a similar law was made 
 in favor of Frenchmen, which was abolished 
 by 3 Edw. III. 
 
 The fine formerly imposed in England 
 upon a person who had committed homicide 
 per infortunium or se defendendo. Prin. 
 Pen. Law, 219, note (r). 
 
 MURDRUM OPERATIC. The service of 
 work and labor done by inhabitants and ad- 
 joining tenants in building or repairing the 
 walls of a city or castle; their personal serv- 
 ice was commuted into murage (q. v.) Cow- 
 ell. 
 
 MURTHRUM. In old Scotch law. Murther 
 or murder. Skene de Verb. Sign. 
 
 MUSTER ROLL. In maritime law. A list 
 or account of a ship's company, required to 
 be kept by the master or other person hav- 
 ing care of the ship, containing the names, 
 ages, national character, and quality of every 
 person employed in the ship. Abb. Shipp. 
 191, 192; Jacobsen, Sea Laws, 161. 
 
 MUSTIZO. A name given to the issue of 
 an Indian and a negro.. Dudley (S. C.) 174. 
 
 MUTA CANUM (Law Lat.) In old Eng- 
 lish law. A pack of hounds. Spelman. See 
 2 How. St. Tr. 1164. 
 
 MUTATIO NOMINIS (Lat.) In the civil 
 law. Change of name. Code, 9. 25. 
 
 MUTATION. In French law. This term is 
 synonymous with "change," and is particular- 
 ly applied to designate the change which 
 takes place in the property of a thing in its 
 transmission from one person to another. 
 Permutation therefore happens when the 
 owner of the thing sells, exchanges, or gives 
 it. It is nearly synonymous with transfer. 
 Merlin, Repert. 
 
 MUTATION OF LIBEL. In practice. An 
 amendment allowed to a libel, by which there 
 is an alteration of the substance of the libel, 
 as by propounding a new cause of action, or 
 asking one thing instead of another. Dunl. 
 Adm. Prac. 213; Law, Ecc. Law, 165-167; 1 
 Paine (U. S.) 435; 1 Gall. (U. S.) 123; 1 
 Wheat. (U. S.) 261. 
 
 MUTATIS MUTANDIS (Lat.) The neces- 
 sary changes. This is a phrase of frequent 
 practical occurrence, meaning that matters 
 or things are generally the same, but to be 
 9,ltered when necessary, as to names, offices, 
 and the like. 
 
 MUTE (Lat. mtt*Ms). See "Standing Mute." 
 
 MUTILATION. In criminal law. The de- 
 priving a man of the use of any of those 
 limbs which may be useful to him in fight, 
 the loss of which amounts to mayhem. 1 Bl. 
 Comm. 130. 
 
 MUTINY. In criminal law. The unlawful 
 resistance of a superior officer, or the raising 
 of commotions and disturbances on board of 
 a ship against the authority of its command- 
 er, or in the army in opposition to the au- 
 thority of the officers; a sedition; a revolt. 
 
 MUTINY ACT. In English law. A statute, 
 annually passed, to punish mutiny and de- 
 sertion, and for the better payment of the 
 army and their quarters. It was first passed 
 April 12, 1689. See 22 Vict. cc. 4, 5. The 
 passage of this bill is the only provision for 
 the payment of the army, and, like our appro- 
 priation bills, it must be passed, or the 
 wheels of government will be stopped. There 
 is a similar act with regard to the navy. 1 
 Bl. Comm. 416, 417, note. 
 
MUTUAL 
 
 (612) 
 
 MYSTIC TESTAMENT 
 
 MUTUAL. Reciprocal; reciprocally giving 
 and receiving. Applied to contracts and rela- 
 tions by which reciprocal duties are imposed. 
 
 MUTUAL ACCOUNT. See "Account." 
 
 MUTUALCREDITS. Credits given by two 
 persons mutually, i. e., each giving credit to 
 the other. It Is a more extensive phrase 
 than "mutual debts." Thus, the sum cred- 
 ited by one may be due at once; that by the 
 other payable in futuro; yet the credits are 
 mutual, though the transaction would not 
 come within the meaning of mutual debts. 1 
 Atk. 230; 7 Term R. 378. And it Is not nec- 
 essary that there should be intent to trust 
 each other. Thus, where an acceptance of A. 
 came into the hands of B. who bought goods 
 of A., not knowing the acceptance to be In 
 B.'s hands, it was held a mutual credit. 3 
 Term R. 507, note; 4 Term R. 211; 3 Ves. 65; 
 8 Taunt. 156, 499; 1 Holt, 408; 2 Smith, Lead. 
 Cas. 179; 26 Barb. (N. Y.) 310; 4 Gray 
 (Mass.) 284. 
 
 MUTUAL INSURANCE. A form of life In- 
 surancei in which the insurer is an associa- 
 tion in which all the policy holders are mem- 
 bers, and the losses are met by assessments 
 levied upon the members either periodically, 
 or as the exigency arises. See 50 Miss. 662. 
 
 MUTUAL MISTAKE. See "Mistake." 
 
 1 MUTUAL PROMISES. Promises simulta- 
 neously made by two parties to each other, 
 each promise being the consideration of the 
 other. Hob. 88; 14 Mees. & W. 855; Add. 
 Cont. 22. If one of the promises be voidable, 
 it will yet be good consideration; but not if 
 void. Story, Cont. § 81 ; 2 Steph. Comm. 114. 
 
 MUTUALITY. Reciprocity; acting in re- 
 turn. Add. Cont 622; 26 Md. 37. See "Con- 
 sideration." 
 
 MUTUANT. The person who lends chat- 
 'tels in the contract of mutuum (q. v.) 
 
 MUTUARI. To borrow; mutuatus, a bor- 
 rowing. 2 Archb. Prac. 25. 
 
 MUTUARY. A person who borrows per- 
 sonal chattels to be consumed by him, and re- 
 turned to the lender in kind ; the person who 
 receives the benefit arising from the con- 
 tract of mutuum. Story, Ballm. § 47. 
 
 MUTUS (Lat.) In civil and old English 
 law. Dum>b; mute; a dumb person. Dig. 50. 
 17. 124; Inst. 3. 20. 7; Pleta, lib. 2, c. 56, § 
 19. Mutus et surdus, dumb and deaf. Cro. 
 Jac. 105. 
 
 MUTUUM. A loan of personal chattels to 
 be consumed by the borrower, and to be re- 
 turned to the lender in kind and quantity; 
 as, a loan of corn, wine, or money, which 
 are to be used or consumed, and are to be re- 
 placed by other corn, wine, or money. Story, 
 Bailm. § 228. See "Loan for Use." 
 
 MY (Law Fr.) Half; middle. En my leu, 
 in the middle place; in the middle. Britt c. 
 119. Per Tny et per tout, by the half or moi- 
 ety, and by all. 2 Bl. Comm. 182. 
 
 MYNUTE (Law Fr.) Midnight. Britt. 
 c. 80. 
 
 MYS (Law Fr. from mitter, to put). Put; 
 sent; put in or inserted. Mys a lour pe- 
 naunce, put to their penance. Britt. c. 4. 
 Mvs en ferges, put In irons. Id. c. 11. P'oles 
 mys en escrits, words put in writings. Id. c. 
 39. Que date soit mys del jour, that a date 
 be put in of the day. Id. M,ys en la gaole. 
 Id. c. 100. Mys en certaine, put in certain. 
 Dyer, 55b. 
 
 MYSTERY (said to be derived from the 
 French mestier, now written metier, a trade). 
 A trade, art, or occupation. 2 Inst. 668. 
 
 Masters frequently bind themselves in the 
 indentures with their apprentices to teach 
 them their art, trade, and mystery. See 
 Hawk. P. C. c. 23, § 11: 
 
 MYSTIC TESTAMENT. A will under seal 
 5 Mart. (La.) 182; 5 La. 395; 10 La. 328; 15 
 La. 88. 
 
 So called from the fact that it is sealed up 
 or enclosed by the testator before attestation. 
 Civ. Code La. arts. 1567, 1584. 
 
N E I 
 
 (613) 
 
 NATIONAL CORPORATIONS 
 
 N 
 
 N. E. I. An abbreviation for non est in- 
 ventus (q. V.) 
 
 N. L. An abbreviation of non liquet (q. v.) 
 
 NAIF (Law Fr. ; Law Lat. natiriis, a born 
 slave). A villein; a born slave (nee serfe). 
 Britt. c. 31; LL. Gul. Conq. lib. 33. 
 
 NAKED. As used in legal phrases, the 
 term means either without consideration or 
 legal formality, or without support or cor- 
 roboration. 
 
 NAKED CONFESSION. A confession of 
 crime unsupported by extrinsic evidence 
 showing the commission of the crime. 
 
 NAKED POWER. A power given to one 
 who has no interest or estate in the property 
 to which it relates. See 1 Caines Cas. (N. 
 Y.) 15. 
 
 NAKED TRUST. A passive trust. 
 
 NAM, or NAAM. 
 
 In Old English Law. The taking of a 
 
 pledge; a distress. A component part of the 
 word "withernam" (g. v.) 
 
 In Latin Phrases. For. Used as in- 
 troductory to the quotation of a maxim, and 
 sometimes erroneously treated as part of the 
 maxim itself. 
 
 NAMARE (Law Lat.) To take; to dis- 
 train. Spelman. The derivatives namptus 
 and namptum were also used. 
 
 NAMATO (Law Lat.) In old English and 
 Scotch law. A distraining or taking of a dis- 
 tress; an Impounding. Spelman. 
 
 The English, namation is given by Cowell 
 and Blount. 
 
 NAME. One or more words habitually 
 used to distinguish a particular individual. 
 
 The name of a person consists, among 
 Anglo-Saxon peoples, of one family name, 
 surname, or patronymic, by which all mem- 
 bers of the immediate family are known, and 
 one Christian, baptismal, or surname be- 
 stowed upon one by his parents, to distin- 
 guish him from others of the same family. 
 5 Robt. 599. 
 
 Only one Christian name is recognized in 
 law, and for all legal purposes the use of a 
 middle name is surplusage. 31 Minn. 385; 
 78 Iowa, 519; 39 Barb. (N. Y.) 479. 
 
 NAME AND ARMS CLAUSE. The popu- 
 lar name in English law for the clause, some- 
 times inserted in a will or settlement by 
 which property is given to a person, for the 
 purpose of imposing on him the condition 
 that he shall assume the surname and arms 
 of the testator or settlor, with a direction 
 that, if he neglects to assume or discontinues 
 the use of them, the estate shall devolve on 
 the next person in remainder, and a provi- 
 
 sion for preserving contingent remainders. 3 
 Dav. Free. Conv. 277. 
 
 NAMIUM. An old word- which signifies 
 the taking or distraining another person's 
 movable goods. 2 Inst. 140; 3 Bl. Comm. 
 149. A distress. Dalr. Feud. Prop. 113. 
 
 NAMIUM VETITUM. An unjust taking 
 of the cattle of another, and driving them to 
 an unlawful place, pretending damage done 
 by them. 3 Bl. Comm. 149. 
 
 NARR (an abbreviation of the word nar- 
 ratio). A declaration in a cause. 
 
 NARRATOR. A pleader who draws narrs. 
 Serviens narrator, a serjeant-at-law. Pleta, 
 lib. 2, c. 37. Obsolete. 
 
 NARROW SEAS. In English law. Those 
 seas which adjoin the coast of England. Bac. 
 Abr. "Prerogative" (B 3). 
 
 NASCITURUS (Lat. from nasci, to be 
 born). In the civil law. An unborn child; 
 a child to be born, or about to be born. 1 
 Kaufm. Mackeld. Civ. Law, 128, § 118; Tayl. 
 Civ. Law, 248. 
 
 NASTRE (Law Fr.) Born. Fols nastres, 
 born fools; idiots from birth. Britt. c. 34. 
 
 NATALE. The state or condition of a 
 man acquired by birth. 
 
 NATI ET NASCITURI (Lat.) Bom and 
 to be born. An expression including all 
 heirs, near and remote. Fleta, lib. 3, c. 8. 
 See Comb. 154. 
 
 NATIO (Lat.) In old records. A native 
 place. Cowell. 
 
 NATION. An independent body politic ; a 
 society of men united together for the pur- 
 pose of promoting their mutual safety and 
 advantage by the joint efforts of their com- 
 bined strength. 
 
 But every combination of men who govern 
 themselves independently of all others will 
 not be considered a nation. A body of pi- 
 rates, for example, who govern themselves, 
 are not a nation. To constitute a nation, an- 
 other ingredient is required. The body thus 
 formed must respect other nations in general, 
 and each of their members in particular. 
 Such a society has her affairs and her inter- 
 ests; she deliberates and takes resolutions in 
 common, — thus becoming a moral person, 
 who possesses an understanding and will pe- 
 culiar to herself, and is susceptible of obli- 
 gations and rights. Vattel, Prelim. §§ 1, 2; 
 5 Pet. (U. S.) 52. See 1 Idaho (N. S.) 612. 
 
 NATIONAL BANK. A bank incorporated 
 and existing under acts of congress. 
 
 NATIONAL CORPORATIONS (sometimes 
 
NATIONAL DOMAIN 
 
 (614) 
 
 NUTURAL FRUITS 
 
 called "federal corporations"). Those incor- 
 porated under acts of congress. 
 
 NATIONAL DOMAIN. See "Public Do- 
 main." 
 
 NATIONAL DOMICILE. Domicile consid- 
 ered with respect to the nation within which 
 one is domiciled, rather than with respect to 
 the particular locality. 
 
 N AT I O N A L I TY. Character, status, or con- 
 dition with reference to the rights and duties 
 of a person as a member of some one state or 
 nation, rather than another. 
 
 The term is in frequent use with regard to 
 ships. See, generally, "Citizen;" "Denizen;" 
 "Domicile ; " "Naturalization." 
 
 NATIVA (Law Lat.) In old English law. 
 A neife, or female villein. So called, because 
 for the most part bond by nativity. Co. 
 Litt. 122b. 
 
 NATIVE, or NATIVE CITIZEN. A natu- 
 ral-born subject. 1 Bl. Comm. 366. A per- 
 son born within the jurisdiction of the Unit- 
 ed States, whether after Declaration of Inde- 
 pendence or before, if he did not withdraw 
 before the adoption of the constitution; or 
 the child of a citizen born abroad, if his 
 parents have ever resided here; or the child 
 of an alien born abroad, if he be in the coun- 
 try at the time his father is naturalized. 8 
 Paige, Ch. (N. Y.) 433; Act Cong. Feb. 10, 
 1855; 2 Kent, Comm. (9th Ed.) 38 et seq. 
 
 NATIVI (Law Lat.) Vassals or feudal 
 tenants. So called, even before feuds be- 
 came hereditary. Wright, Ten. 14. 
 
 Villeins. Pleta, lib. 2, c. 51. See "Nativus." 
 
 NATIVITAS. In old English law. Villen- 
 age; that state in which men were born 
 slaves. 2 Mon. Angl. 643. Called by Britton 
 naifte. Britt. c. 31. 
 
 NATIVO HABENDO. A writ which lay 
 for a lord whose villein had run away, com- 
 manding the sheriff to apprehend the vil- 
 lein, and restore him to the lord. 
 
 NATIVUS. A born villein. 
 
 NATURA APPETIT PERFECTUM, ITA 
 et lex. Nature aspires to perfection, and so 
 does the law. Hob. 144. 
 
 NATURAFIDEJUSSIONISSITSTRICTIS- 
 simi juris et non durat, vel extendatur de re 
 ad rem, de persona ad personam, de sempore 
 ad tempus. The nature of the contract of 
 suretyship is strictissiini juris, and cannot 
 endure nor be extended from thing to thing, 
 from person to person, or from time to time, 
 Burge, Sur. 40. 
 
 NATURA NON FACIT SALTUM,iTA NEC 
 lex. Nature makes no leap, nor does the law. 
 Co. Litt. 238. 
 
 NATURA NON FACIT VACUUM; NEC 
 lex supervacuum. Nature makes no vacuum; 
 the law nothing purposeless. Co. Litt. 79. 
 
 NATURAE VIS MAXIMA; NATURA BIS 
 maxima. The force of nature is greatest; 
 nature is doubly great. 2 Inst. 564. 
 
 NATURAL AFFECTION. The affection 
 which a husband, a father, a brother, or other 
 near relative naturally feels towards those 
 who are so nearly allied to him sometimes 
 supplies the place of a valuable consideration 
 in contracts, and natural affection is a good 
 consideration in a deed. See "Bargain and 
 Sale;" "Covenant to Stand Seised to Uses." 
 
 NATURAL ALLEGIANCE. 
 
 In Englisli Law. That Tiind of alle- 
 giance which is due from all men born within 
 the king's dominions, immediately upon their 
 birth, which is intrinsic and perpetual, and 
 cannot be divested by any act of their own. 
 1 Bl. Comm. 369; 2 Kent, Comm. 42. 
 
 In American Law. The allegiance due 
 
 from citizens of the United States to their 
 native country, and also from naturalized 
 citizens, and which cannot be renounced 
 without the permission of government, to be 
 declared by law. 2 Kent, Comm. 43-49. 
 
 NATURAL-BORN SUBJECTS. In Eng- 
 lish law. Such persons as are born within 
 the dominions of the crown of England, or 
 rather within the allegiance of the king. 
 
 NATURAL CHILDREN. Bastards; chil- 
 dren born out of lawful wedlock. 
 
 In Civil Law. Children by procreation, 
 
 as distinguished from children by adoption. 
 
 In Louisiana. Illegitimate children 
 
 who have been adopted by the father. Civ. 
 Code La. art. 220. 
 
 NATURAL DAY. That space of time in- 
 cluded between the rising and the setting of 
 the sun. See "Day." 
 
 NATURAL EQUITY. That which is found- 
 ed in natural justice, in honesty and right, 
 and which arises ex aegvo et iono. 
 
 It corresponds precisely with the definition 
 of justice or natural law, which is a constant 
 and perpetual will to give to every man what 
 is his. This kind of equity embraces so wide 
 a range that human tribunals have never at- 
 tempted to enforce it. Every code of laws 
 has left many matters of natural justice or 
 equity wholly unprovided for, from the diffi- 
 culty of framing general rules to meet them, 
 from the almost impossibility of enforcing 
 them, and from the doubtful nature of the 
 policy of attempting to give a legal sanction 
 to duties of imperfect obligation, such as 
 charity, gratitude, or kindness. 4 Bouv. Inst, 
 note 3720. 
 
 NATURAL FOOL. An idiot; one born 
 without the reasoning powers, or a capacity 
 to acquire them. 
 
 NATURAL FRUITS. The natural produc- 
 tion of trees, bushes, and other plants, for the 
 use of men and animals, and for the repro- 
 duction of such trees, bushes, or plants. 
 
 This expression is used in contradistinc- 
 tion to artificial or figurative fruits. For ex- 
 ample, apples, peaches, and pears are natural 
 
NATURAL INFANCY 
 
 (615) 
 
 NAVAL COURTS 
 
 fruits; interest is the fruit of money, and 
 this is artificial. 
 
 NATURAL INFANCY. A period of nonre- 
 sponsible life, which ends with the seventh 
 year. 
 
 NATURAL LAW. The law of nature; the 
 divine will, or the dictate of right reason, 
 showing the moral deformity or moral neces- 
 sity there is in any act, according to its suit- 
 ableness or unsuitableness to a reasonable 
 nature. Sometimes used of the law of hu- 
 man reason, in contradistinction to the re- 
 vealed law, and sometimes of both, in contra- 
 distinction to positive law. 
 
 They are independent of any artificial con- 
 nections, and differ from mere presumptions 
 of law in this essential respect, that the lat- 
 ter depend on and are a branch of the par- 
 ticular system of jurisprudence to which 
 they belong; but mere natural presumptions 
 are derived wholly by means of the common 
 experience of mankind, without the aid or 
 control of any particular rule of law, but 
 simply from the course of nature and the 
 habits of society. These presumptions fall 
 within the exclusive province of the jury, 
 who are to pass upon the facts. 3 Bouv. Inst, 
 note 3064; Greenl. Ev. § 44. 
 
 NATURAL LIBERTY. The power of act- 
 ing as one thinks fit, without any restraint or 
 control, unless by the law of nature. 1 Bl. 
 Comm. 125. 
 
 NATURAL LIFE. The period between 
 birth and natural death, as distinguished 
 from civil death (g. v.) 
 
 NATURAL OBLIGATION. One which in 
 honor and conscience binds the person who 
 has contracted it, but which cannot be en- 
 forced in a court of justice. Poth. notes 173, 
 191. See "Obligation." 
 
 NATURAL PERSONS. Such as are form- 
 ed by the Deity, as distinguished from arti- 
 ficial persons, or corporations, formed by hu- 
 man laws for purposes of society and govern- 
 ment. 
 
 NATURAL PRESUMPTIONS. In evi- 
 dence. Presumptions of fact; those which 
 depend upon their own form and efficacy in 
 generating belief or conviction in the mind, 
 as derived from those connections which are 
 pointed out by experience. 
 
 NATURAL YEAR. In old English law. 
 That period of time in which the sun was 
 supposed to revolve in its orbit, consisting of 
 three hundred and sixty-five days and one- 
 fourth of a day, or six hours. Bracton, fol. 
 359b. 
 
 NATURALE EST QUIDLIBET DISSOLVI 
 eo modo quo ligatur. It is natural for a thing 
 to be unbound in the same way in which it 
 was bound. Jenk. Cent. Cas. 66; 4 Denio (N. 
 Y.) 414, 417; Broom, Leg. Max. (3d London 
 Ed.) 785. 
 
 NATURALEZA. In Spanish law. The state 
 
 of a natural-born subject. White, New Re- 
 cop, bk. 1, tit. 5, c. 2. Called naturalidad. 
 
 NATURALIZATION. The process of con- 
 ferring citizenship on an alien. 
 
 NATURALIZED CITIZEN. One who, be- 
 ing born an alien, has lawfully become a 
 citizen of the United States under the consti- 
 tution and laws. 
 
 He has all the rights of a natural-born citi- 
 zen, except that of being eligible as president 
 or vice president of the United States. In 
 foreign countries he has a right to be treated 
 as such, and will be so considered even in the 
 country of his birth, at least for most pur- 
 poses. 1 Bos. & P. 430. See "Citizen." 
 
 NAUCLERUS (Lat.) Master or owner of 
 a vessel. Vicat; Calv. Lex. 
 
 NAUFRAGE. In French maritime law. 
 When, by the violent agitation of the waves, 
 the impetuosity of the winds, the storm, or 
 the lightning, a vessel is swallowed up, or so 
 shattered that there remain only the pieces, 
 the accident is called naufrage. 
 
 It differs from echouement, which is when 
 the vessel remains whole, but is grounded; 
 or from bris, which is when it strikes against 
 a rock or a coast; or from sombrer, which is 
 the sinking of a vessel in the sea when it is 
 swallowed up, and which may be caused by 
 any accident whatever. Pardessus, note 643. 
 See "Wreck." 
 
 NAUFRAGIUM (Lat.) Shipwreck. 
 
 NAUGHT. In old practice. Bad; defec- 
 tive. "The bar is naught." 1 Leon. 77. "The 
 avowry is naught." 5 Mod. 73. "The plea is 
 undoubtedly naught." 10 Mod. 329. See 11 
 Mod. 179. Sometimes written "naughty." 
 Brownl. & G. 97. 
 
 NAULAGE. The freight of passengers in 
 a ship. Johnson; Webster. 
 
 NAULUM (Lat.) Freight or passage money. 
 1 Pars. Mar. Law, 124, note; Dig. 1. 6. 1, qui 
 potiores in pignore. 
 
 NAUTA (Lat.) One who charters iexercet) 
 a ship. L. 1, § 1, ff. nautae, caupo; Calv. Lex. 
 Any one who is on board a vessel for the pur- 
 pose of navigating her. 3 Sumn. (U. S.) 
 213; Vicat; 2 Emerig. 448; Poth. ad Pand. 
 lib. 4, tit. 9, note 2; Id. lib. 47, tit. 5, notes 
 1-3, 8, 10. A carrier by water. 2 Ld. Raym. 
 917. 
 
 NAUTICAL ASSESSORS. Persons experi- 
 enced in navigation, who are called upon by 
 an admiralty judge to sit with him in cases 
 involving questions of correct navigation, 
 and advise him thereon. 2 Curt. C. C. (U. 
 S.) 369. 
 
 NAVAGIUM. A duty on certain tenants 
 to carry their lord's goods in a ship. 1 Mon. 
 Angl. 922. 
 
 NAVAL. Appertaining to the navy {g. v.) 
 
 NAVAL COURTS. Courts held abroad in 
 
NAVAL COURTS-MARTIAL, 
 
 (616) 
 
 NE EXEAT 
 
 certain cases to inquire into complaints by 
 the master or seamen of a British ship, or as 
 to the wreck or abandonment of a British 
 ship. A naval court consists of three, four, 
 or five members, being oflScers in her ma- 
 jesty's navy, consular officers, masters of 
 British merchant ships, or British mer- 
 chants. It has power to supersede the mas- 
 ter of the ship with reference to which the 
 inquiry is held, to discharge any of the sea- 
 men, to decide questions as to wages, send 
 home offenders for trial (Merch. Ship. Act 
 1854, § 260), or try certain offenses in a sum- 
 mary manner (Merch. Ship. Act 1855, § 28). 
 
 NAVAL COURTS-MARTIAL. Tribunals 
 for the trial of offenses arising in the man- 
 agement of public war vessels. 
 
 NAVAL LAW. A system of regulations 
 for the government of the navy. 1 Kent, 
 Comm. 377, note. Consult Act April 3, 1800; 
 Act Dec. 21, 1861; Act July 16, 1862; Homans, 
 Nav. Laws; De Hart, Courts-Martial. 
 
 NAVAL OFFICER. An officer of the cus- 
 toms of the United States. 
 
 His office relates to the estimating duties, 
 countersigning permits, clearances, etc., cer- 
 tifying the collectors' returns, and similar 
 duties. 
 
 NAVARCHUS, or NAVICULARIUS (Lat.) 
 In civil law. The master of an armed ship. 
 Navicularms also denotes the master of a 
 ship ipatronus) generally; also, a carrier by 
 water (exercitor navis). Calv. Lex. 
 
 NAVIGABLE. Capable of being navigated. 
 In English law, only waters in which the tide 
 flows are navigable in the technical sense. 5 
 Taunt. 705; Davies, 149. 
 
 In American law, any water is navigable 
 which is used as a means of useful com- 
 merce. 112 111. 611; 42 Minn. 532; 110 N. Y. 
 380. 
 
 The navigation need not be by boats. Wa- 
 ters used for floating rafts or logs are public 
 highways for that purpose. 31 Mich. 336 ; 58 
 N. H. 304; 72 N. Y. 211. 
 
 The capacity for navigation need not be 
 perennial. 42 Wis. 203; 17 Ore. 165. Nor 
 need it be continuous through the entire 
 length of the stream. 31 Me. 9. 
 
 The Niagara river has been held navigable, 
 notwithstanding the obstruction of the falls. 
 37 Hun (N. Y.) 537. 
 
 "Those only are navigable waters where 
 the public pass and repass upon them with 
 vessels or boats in the prosecution of useful 
 occupations. There must be some commerce 
 or navigation which is essentially valuable. 
 A hunter or fisherman, by drawing hi^ boat 
 through the waters of a brook or shallow 
 creek, does not create navigation, or consti- 
 tute their waters channels of commerce. 20 
 Conn. 217. 
 
 NAVIGATION ACT. St. 12 Car. II. c. 78. 
 It was repealed by 6 Geo. IV. cc. 109, 110, 114. 
 See 16 & 17 Vict. c. 107; 17 & 18 Vict. c. 120. 
 
 N AVI RE (Pr.) In French law. A ship. 
 Emerig. Tr. des Assur. c. 6, § 1. 
 
 NAVIS (Lat.) A ship; a vessel. Dig. 21. 
 2. 44; Id. 47. 9. 
 
 NAVIS BONA (Lat.) A good ship; one that 
 was staunch and strong, well caulked, and 
 stiffened to bear the sea, obedient to her 
 helm, swift, and not unduly affected by the 
 wind. Calv. Lex., citing Seneca, lib. 5, p. 77. 
 
 NAVY. The whole shipping, taken collect- 
 ively, belonging to the government of an in- 
 dependent nation, and appropriated for the 
 purposes of naval warfare. It does not in- 
 clude ships belonging to private individuals, 
 nor (in the United States, at least) revenue 
 vessels or transports in the service of the 
 war department. See Brightly, Dig. U. S. 
 Laws. 
 
 NAZERANNA. A sum paid to government 
 as an acknowledgment for a grant of lands, 
 or any public office. Enc. Lond. 
 
 NE ADMITTAS (Lat.) The name of a writ, 
 so called from the first words of the Latin 
 form, by which the bishop is "forbidden to 
 admit" to a benefice the other party's clerk 
 during the pendency of a guare impedit. It 
 ought to be issued within six months after 
 avoidance of the benefice, before title to pre- 
 sent has devolved upon the bishop by lapse, 
 or it will be useless. Pitzh. Nat. Brev. 37; 
 Reg. Orig. 31; 3 Bl. Comm. 248; 1 Burn, Bee. 
 Law, 31. 
 
 NE BAILA PAS. He did not deliver. In 
 pleading. A plea in detinue, by which the 
 defendant denies the delivery to him of the 
 thing sued for. 
 
 NE DISTURBA PAS. In pleading. The 
 general issue in guare impedit. Hob. 162. 
 See Rast. Entr. 517; Winch, Entr. 703. 
 
 NE DONA PAS, NON DEBIT. In plead- 
 ing. The general issue in formedon. It is 
 in the following formula: "And the said C. 
 D., by J. K., his attorney, comes and defends 
 the right, when, etc., and says that the said 
 E. P. did not give the said manor, with the 
 appurtenances, or any part thereof, to the 
 said G. B. and the heirs of his body issuing, 
 in manner and form as the said A. B. hath in 
 his count above alleged. And of this the said 
 C. D. puts himself upon' the country." 10 
 Wentw. PI. 182. 
 
 NE EXEAT. 
 
 In Old English Law. A high preroga- 
 tive writ, generally called ne exeat regno, is- 
 sued out of chancery to forbid a subject 
 from leaving the realm. Originally it was 
 issued for political reasons only. 1 Bl. Comm. 
 162, 319. 
 
 In Modern Law. The name of a writ 
 
 issued by a court of chancery, directed to 
 the sheriff, reciting that the defendant in 
 the case is indebted to the complainant, and 
 that he designs going quickly into parts 
 without the state, to the damage of the com- 
 
NE GIST PAS EN BOUCHE (617) 
 
 NECESSARIES 
 
 plainant, and then commanding him to cause 
 the defendant to give bail in a certain sum 
 that he will not leave the state without leave 
 of the court, and for want of such bail that 
 he, the sheriff, do commit the defendant to 
 prison. 
 
 The writ has been abolished In most of 
 the United States. 
 
 NE GIST PAS EN BOUCHE (Law Fr.) It 
 does not lie in the mouth. A common phrase 
 in the old books. Y. B. M. 3 Edw. II. 50. 
 
 NE LUMINIBUS OFFICIATUR (Lat.) In 
 civil law. The name of a servitude which re- 
 strains the owner of a house from making 
 such erections as obstruct the light of the 
 adjoining house. Dig. 8. 4. IB. 17. 
 
 NE RECIPIATUR (Lat. that it be not re- 
 ceived). A caveat or words of caution given 
 to a law officer, by a party in a cause, not to 
 receive the next proceedings of his oppo- 
 nent. 1 Sellon, Prac. 8. 
 
 NE RECTOR PROSTERNET ARBORES 
 
 (Law Lat.) St. 35 Edw. I. § 2, prohibiting 
 rectors, i. e., parsons, from cutting down the 
 trees in church yards. In 1 Keb. 557, it was 
 extended to prohibit them from opening new 
 mines, and working the minerals therein. 
 Brown. 
 
 NE. RELESSA PAS (Law Pr.) The name 
 of a replication to a plea of release, by 
 which the plaintiff insists he "did not re- 
 lease." 2 Bulst. 55. 
 
 NE UNJUSTE VEXES (Lat.) In old Eng- 
 lish law. The name of a writ which issued 
 to relieve a tenant upon whom his lord had 
 distrained for more services than he was 
 bound to perform. 
 
 It was a prohibition to the lord, not un- 
 justly to distrain or vex his tenant. Fitzh. 
 Nat. Brev. 
 
 NE UNGUES ACCt)UPLE (Law Fr.) In 
 pleading. A plea by which the party denies 
 that he ever was lawfully married to the 
 person to whom it refers. See the form, 2 
 Wils. 118; 10 Wentw. PI. 158; 2 H. Bl. 145; 3 
 Chit. PI. 599. 
 
 NE UNGUES EXEtUTOR. In pleading. 
 A plea by which the party who uses It de- 
 nies that the plaintiff is an executor, as he 
 claims to be; or that the defendant is execu- 
 tor, as the plaintiff in his declaration 
 charges him to be. 1 Chit. PI.' 484; 1 Saund. 
 274, note 3; Comyn, Dig. "Pleader" (2 D 2); 
 2 Chit. PI. 498. 
 
 NE UNGUES SEISIE QUE DOWER. In 
 
 pleading. A plea by which a defendant de- 
 nies the right of a widow who sues for and 
 demands her dower in lands, etc., late of her 
 husband, because the husband was not, on 
 the day of her marriage with him, or at any 
 time afterwards, seised of such estate, so 
 that she could be endowed of the same. See 
 2 Saund. 329; 10 Wentw. PI. 159; 3 Chit. PI. 
 598, and the authorities there cited. 
 
 NE UNGUES SON RECEIVER. In plead- 
 ing. The name of a plea in an action of 
 account render, by which the defendant af- 
 firms that he never was receiver of the 
 plaintiff. 12 Viner, Abr. 183. 
 
 NE VARIETUR (Lat. that it be not chang- 
 ed). A form sometimes written by notaries 
 public upon bills or notes, for the purpose of 
 identifying them. This does not destroy 
 their negotiability. 8 Wheat. (U. S.) 338. 
 
 NEAT, or NET. The exact weight of an 
 article, without the bag, box, keg, or other 
 thing in which it may be enveloped. 
 
 NEAT CATTLE. Oxen or heifers. The 
 term is not as broad as "beeves." 36 Tex. 
 324. 
 
 NEAT LAND. Land let out to the yeo- 
 manry. Cowell. 
 
 NEATNESS. In pleading. The statement 
 in apt and appropriate words of all the 
 necessary facts, and no more. Lawes, PI. 
 62. 
 
 NEC CURIA DEFICERET IN JUSTITIA 
 exhibenda. Nor should the court be deficient 
 in showing justice. 4 Inst. 63. 
 
 NEC TEMPUS NEC LOCUS OCCURRIT 
 
 regl. Neither time nor place bars the king. 
 Jenk. Cent. Cas. 190. 
 
 NEC VENIAM EFFUSO SANGUINE, CA- 
 SUS habet. Where blood is spilled, the case 
 is unpardonable. 3 Inst. 57. 
 
 NEC VENIAM, LAESO NUMINE, CASUS 
 habet. Where the Divinity is insulted, the 
 case i's unpardonable. Jenk. Cent. Cas. 167. 
 
 NEGATION. The act of killing. 
 
 NECESSARIES. Such things are as prop- 
 er and necessary for the sustenance of man. 
 
 As used to describe those things for which 
 an infant may lawfully contract, necessaries 
 are such articles, suitable to the infant's sta- 
 tion in life, as are needful to supply the 
 personal requirements of the infant, wheth- 
 er of body or mind. 12 Mete. (Mass.) 561. 
 It includes board and lodging (23 Vt. 378), 
 medical attendance (42 Conn. 203), or educa- 
 tion suitable to the infant's station in life 
 (16 Vt. 683). It does not includfe services 
 essential to the improvement or protection 
 of his property rights (12 Mete. [Mass.] 559; 
 32 N. H. 345), but does include services es- 
 sential to secure or protect his personal 
 rights (68 Hun [N. Y.] 589; 12 Kan. 463). 
 
 As used to describe those things for which 
 a wife may pledge her husband's credit, it 
 has a slightly narrower significance, exclud- 
 ing instruction (40 Conn. 75), and including 
 only those things which are presently need- 
 ful for the present support of the wife (63 
 Mo. App. 191), or to maintain her personal 
 rights (50 111. App. 27) ; but the nature of 
 the support for which she is entitled to con- 
 tract depends on the husband's means and 
 station in life (114 Mass. 429). 
 
 As used to describe those things for which 
 
NECESSARIUM ETC. 
 
 (618) 
 
 KEGATIVE EASEMENT 
 
 a master may hypothecate the ship, it in- 
 cludes such articles fit and proper for the 
 ship as the owner would, in the exercise of 
 reasonable prudence, have ordered, if pres- 
 ent. Maude & P. Shipp, 71. 
 
 NECESSARIUM EST QUOD NON Po- 
 test aliter se habere. That is necessary 
 which cannot be otherwise. , 
 
 NECESSARIUS (Lat.) Necessary; un- 
 avoidable; indispensable; not admitting of 
 choice or the action of the will; needful. 
 See "Necessity." 
 
 NECESSARY DEPOSITS. See "Deposit." 
 
 NECESSARY DOMICILE. That kind of 
 domicile which exists by operation of law, 
 as distinguished from' voluntary domicile or 
 domicile of choice. Phillim. Dom. 27-97. 
 
 NECESSARY INTROMISSION. In Scotch 
 law. That kind of intromission or interfer- 
 ence where a husband or wife continues in 
 possession of the other's goods after their 
 decease, for preservation. Wharton. 
 
 NECESSARY REPAIRS. Include not only 
 those absolutely indispensable to the safety 
 of the ship, but such as are reasonably fit 
 and proper under the circumstances. 3 
 Sumn. (U. S.) 237. 
 
 NECESSITAS. 
 
 sity; vis major. 
 
 In the civil law. Neces- 
 
 NECESSITAS CULPABILIS. Culpable or 
 blameworthy necessity; that kind of neces- 
 sity which excuses a man who kills another 
 se defendendo. So called by Lord Bacon to 
 distinguish it from the necessity of killing 
 a thief or malefactor. Bac. Com. Law, c. 5; 
 4 Bl. Comm. 187. 
 
 NECESSITAS EST LEX TEMPORIS ET 
 loci. Necessity is the law of a particular 
 time and place. 8 Coke, 69; Hale, P. C. 54. 
 
 NECESSITAS EXCUSAT AUT EXTENU- 
 at delictum in capitalibus, quod non operatur 
 idem in civilibus. Necessity excuses or ex- 
 tenuates delinquency in capital cases, but 
 not in civil. See "Necessity." 
 
 NECESSITAS FACIT LICITUM QUOD 
 alias non est licitum. Necessity makes that 
 lawful which otherwise is unlawful. 10 
 Coke, 61. 
 
 NECESSITAS INDUCIT PRIVILEGIUM 
 quoad jura privata. With regard to private 
 rights, necessity privileges. Bac. Max. 
 reg. 5. 
 
 NECESSITAS NON HABET LEGEM. Ne- 
 cessity has no law. Plowd. 18. See "Ne- 
 essity." 15 Viner, Abr. 534; 22 Viner, Abr. 
 540. 
 
 NECESSITAS PUBLICA MAJOR EST 
 quam privata. Public necessity is greater 
 than private. Bac. Max. reg. 5; Noy, Max. 
 (9th Ed.) 34; Broom, Leg. Max. (3d London 
 Ed.) 18. 
 
 NECESSITAS, QUOD COGIT, DEFENDIT. 
 
 Necessity defends what it compels. Hale, 
 P. C. 54. 
 
 NECESSITAS SUB LEGE NON CONTI- 
 netur, quia quod alias non est licitum necessi- 
 tas facit licitum. Necessity is not restrain- 
 ed by law; since what otherwise is not law- 
 ful, necessity makes lawful. 2 Inst. 326; 
 Fleta, lib. 5, c. 23, § 14. 
 
 NECESSITAS VINCIT LEGEM. Necessi- 
 ty overcomes the law. Hob. 144. 
 
 NECESSITAS VINCIT LEGEM; LEGUM 
 vincula irridet. Necessity overcomes law; 
 it derides the fetters of law. Hob. 144. 
 
 NECESSITY (hSLt. necessitas) . Irresistible 
 power; compulsive force, physical or moral. 
 Webster. 
 
 The influence or operation of superior pow- 
 er or irresistible force; the influence of a 
 cause which cannot be avoided nor con- 
 trolled. 
 
 A constraint upon the will, whereby a man 
 is urged to do that which his judgment dis- 
 approves, and which, it is to be presumed, 
 his will (if left to itself) would reject. It 
 is highly just and equitable, therefore, that 
 a man should be excused for those acts 
 which are done through unavoidable force 
 and compulsion. 4 Bl. Comm. 27. 
 
 NECK VERSE. A cant term for the verse 
 which the ordinary gave a malefactor who 
 prayed his clergy to read, and by reading 
 which he escaped hanging. The first verse 
 of the 51st' Psalm, being thai ordinarily giv- 
 en, was called the "neck verse." 
 
 N EFAS (Lat.) That which is against right 
 or the divine law (fas). A wicked or impi- 
 ous thing or act. Calv. Lex. 
 
 NEFASTUS (Lat.) In Roman law. A term 
 applied to a day on which it was unlawful 
 to administer justice. Adams, Rom. Ant. 129. 
 
 NEGATIO CONCLUSIONIS EST ERROR 
 in lege. The denial of a conclusion is error 
 in law. Wingate, Max. 268. 
 
 NEGATIO DESTRUIT NEGATIONEM, ET 
 ambae faciunt affirmationem. A negative 
 destroys a negative, and both make an af- 
 firmative. Co. Litt. 146. 
 
 NEGATIO DUPLEX EST AFFIRMATIO. 
 
 'A double negative is an aflirmative. 
 
 negative' AVERMENT. In pleading. 
 An averment in some of the pleadings in a 
 case in which a negative is asserted. 
 
 NEGATIVE CONDITION. One where the 
 thing which is the subject of it must not 
 happen. 1 Bouv. Inst, note 751. 
 
 NEGATIVE COVENANT. One in negative 
 form, whereby the covenantor binds himself 
 not to do a particular thing. 
 
 NEGATIVE EASEMENT. One which con- 
 sists in a prohibition upon the owner of the 
 
NEGATIVE PREGNANT 
 
 (619) 
 
 NEGOTIORUM GESTOR 
 
 servient estate of some act which would he 
 detrimental to the dominant estate. 
 
 NEGATIVE PREGNANT. In pleading. 
 Such a form of negative expression as may 
 imply or carry within it an affirmative. 
 Thus, where a defendant pleaded a license 
 from the plaintiff's dfiughter, and the plain- 
 tiff rejoined that he did not enter by her 
 license, the rejoinder was objected to suc- 
 cessfully as a negative pregnant. Cro. Jac. 
 87. The fault here lies in the ambiguity 
 of the rejoinder, since it does not appear 
 whether the plaintiff denies that the license 
 was given, or that the defendant entered by 
 the license. Steph. PI. 381. 
 
 This ambiguity constitutes the fault (Hob. 
 295), which, however, does not appear to be 
 of much account in modern pleading (1 Lev. 
 88; Comyn, Dig. "Pleader" [R 6] ; Gould, PI. 
 c. 6. § 36). 
 
 NEGATIVE STATUTE. One which is en- 
 acted in negative terms, and which so con- 
 trols the common law that it has no force in 
 opposition to the statute. Bac. Abr. "Stat- 
 utes" (G); Brooke, Abr. "Parliament," pi. 72. 
 
 NEGLIGENCE. The breach of a legal non- 
 contractual duty to use care, with no precise 
 intention of producing a particular injury 
 thereby. See Shear. & R. Neg. § 3; Bevin, 
 Emp. Liab. 
 
 An inadvertent imperfection by a respon- 
 sible human agent in the discharge of a 
 legal duty, which produces, in an orderly 
 and natural sequence, a damage to another. 
 Whart. Neg. § 3. 
 
 Any lack of carefulness in one's conduct, 
 whether in doing, or in abstaining from do- 
 ing, wherefrom by reason of its not filling 
 the full measure of the law's requirement in 
 the particular circumstances there comes to 
 another a legal injury. Bish. Non-Conf. 
 Law, § 436. 
 
 Negligence has been defined as the doing 
 or omission of something which a reason- 
 ably prudent person would not have done or 
 omitted under the circumstances (95 U. S. 
 439) ; but this is rather a statement of what 
 constitutes proper care, and moreover 
 omits the element of a duty imposed by law 
 which is broken by the negligent act or 
 omission (Pollock, 'Torts, 352). 
 
 NEGLIGENT ESCAPE. The omission on 
 the part of a gaoler to take such care of a 
 prisoner as he is bound to take, when in 
 consequence thereof the prisoner departs 
 from his confinement without the knowledge 
 or consent of the gaoler, and eludes pursuit. 
 
 For a negligent escape, the sheriff or keep- 
 er of the prison is liable to punishment, in 
 a criminal case; and in a civil case he is 
 liable to an action for damages at the suit 
 of the plaintiff. In both cases the prisoner 
 may be retaken. 3 Bl. Comm. 415. See 
 "Escape." 
 
 NEGLIGENTIA (Lat. from iiepligere, to 
 neglect). In the civil law. Negligence, want 
 or omission of care or attention; inattention. ' 
 This term hardly seems to correspond with 
 
 what is called in English simple "negli- 
 gence," since it took a high degree of it to 
 constitute culpa, or fault. Magna negligen- 
 tia culpa cut. Dig. 50. 16. 226. See "Culpa." 
 
 NEGLIGENTIA SEMPER HABET INFOR- 
 tuniam comitem. Negligence always has 
 misfortune for a companion. Co. Litt. 246; 
 Shep. Touch. 476. 
 
 NEGOTIABILITY. In mercantile law. 
 Transferable quality. That quality of bills 
 of exchange and promissory notes, which 
 renders them transferable from one person 
 to another, and from possessing which, they 
 are emphatically termed "negotiable paper." 
 3 Kent, Comm. 74, 77, 89, et seq. See Story, 
 Bills, § 60. 
 
 NEGOTIABLE INSTRUMENT. Any writ- 
 ten instrument which may be transferred 
 by indorsement and delivery, or by delivery 
 alone, so as to give the indorsee the legal 
 title, and enable him to sue in his own name. 
 15 Mo. 337. 
 
 In a narrower sense, those instruments 
 the indorsee of which, under the law mer- 
 chant, takes free of certain equities and de- 
 fenses between the original parties. 
 
 NEGOTIABLE WORDS. See "Words of 
 Negotiability." 
 
 NEGOTIATION. The deliberation which 
 takes place between the parties touching a 
 proposed agreement. 
 
 That which transpires in the negotiation 
 makes no part of the agreement, unless in- 
 troduced into it. It is a general rule that 
 no evidence can be given to add, diminish, 
 contradict, or alter a written instrument. 
 1 Dall. (Pa.) 426; 4 Dall. (Pa.) 340; 3 Serg. 
 & R. (Pa.) 609. 
 
 In Mercantile Law. The act by which 
 
 a bill of exchange or promissory note is put 
 into circulation by being passed by one of 
 the original parties to another person. 
 
 Until an accommodation bill or note has 
 been negotiated, there is no contract which 
 can be enforced on the note; the contract, 
 either express or implied, that the party ac- 
 commodated will indemnify the other, is, 
 till then, conditional. 2 Man. & G. 911. 
 
 NEGOTIORUM GESTIO (Lat.) In the civ- 
 il law. Literally, a doing of business or 
 businesses; a species of spontaneous agency, 
 or an interference by one in the affairs of 
 another, in his absence, from benevolence 
 or friendship, and without authority. 2 
 Kent, Comm. 616, note; Inst. 3. 28. 1; Dig. 
 3. 5. 
 
 The intervention of a person acting with- 
 out authority in transacting the affairs of 
 another. 
 
 NEGOTIORUM GESTOR (Lat.) In civil 
 law. One who spontaneously, and without 
 authority, undertakes to act for another, 
 during his absence, in his affairs. 
 
 In cases of this sort, as he acts wholly 
 without authority, there can, strictly speak- 
 ing, be no contract; but the civil law raises 
 a quasi mandate by implication for the bene- 
 
NEGRO 
 
 (620) 
 
 NEMO DEBET, ETC. 
 
 fit of the owner in many such eases. Mack- 
 eld. Civ. Law, § 460; 2 Kent, Comm, 616, 
 note; Story, Bailm. §§ 82, 189. 
 
 NEGRO. Generally a person belonging to 
 the African race, and having such a propor- 
 tion of African blood as will identify him 
 with that race. 5 Jones, Law (N. C.) 11; 80 
 Va. 544. 
 
 It has been held to mean a tlack man and 
 not to include a mulatto. 18 Ala. 20. 
 
 NEIF. In old English law. A woman 
 who was born a villein, or a bond woman. 
 
 N'EIGHBORHOOD. The immediately adja- 
 cent locality. See 27 Mo. App. 584; 63 N. 
 H. 246. 
 
 NEMBDA (Teut.) In Swedish and Gothic 
 law. A jury. 3 Bl. Comm. 349, 359; Barr. 
 Obs. St. 18, note (z). 
 
 NEMINE CONTRADICENTE (usually ab- 
 breviated nem. con.) Words used to sig- 
 nify the unanimous consent of the house to 
 which they are applied. In England, they 
 are used in the house of commons; in the 
 house of lords, the words used to convey 
 the same idea are nemine dissentiente. 
 
 NEMINEM OPORTET ESSE SAPIENTIO- 
 rem legibus. No man need be wiser than 
 the laws. Co. Litt. 97. 
 
 NEMO ADMITTENDUS EST INHABILI- 
 tare seipsum. No one is allowed to incapaci- 
 tate himself. Jenk. Cent. Cas. 40. But see 
 "To Stultify;" 5 Whart. (Pa.) 371; 2 Kent, 
 Comm. 451, note. 
 
 NEMO AGIT IN SEIPSUM. No man acts 
 against himself (Jenk. Cent. Cas. 40) ; there- 
 fore no man can be a judge in his own cause 
 (Broom, Leg. Max. [3d London Ed.] 201, 
 note; 4 Bing. 151; 2 Exch. 595; 18 C. B. 253; 
 2 Barn. & Aid. 822). 
 
 NEMO ALIENAE REI, SINE SATISDA- 
 tione, defensor idoneus Intel ligitur. No man 
 is considered a competent defender of an- 
 other's property, without security. 1 Curt. 
 C. C. (U. S.) 202. 
 
 NEMO ALIENO NOMINE LEGE AGERE 
 potest. No man can sue at law in the name 
 of another. Dig. 50. 17. 123. 
 
 NEMO ALIQUAM PARTEM RECTE IN- 
 telligere potest, antequam totum iterum 
 atque iterum perlegit. No one can properly 
 understand any part of a thing till he has 
 read through the whole again and again. 3 
 Coke, 59. 
 
 NEMO ALLEGANS SUAM TURPITUDI- 
 nem, audiendus est. No one alleging his own 
 turpitude is to be heard as a witness. 4 
 Inst. 279; 3 Story (U. S.) 514, 516. 
 
 NEMO BIS PUNITUR PRO EODEM DE- 
 licto. No one can be punished twice for the 
 same crime or misdemeanor. 2 Hawk. P. C. 
 377; 4 Bl. Comm. 315. 
 
 NEMO COGITATIONIS POENAM PATI- 
 tur. No one suffers punishment on account 
 of his thoughts. Tray. Lat. Max. 362. 
 
 NEMO COGITUR REM SUAM VENDERE, 
 etiam justo pretio. No one is bound to sell 
 his property, even for a just price. But see 
 "Eminent Domain." 
 
 NEMO CONTRA FACTUM SUUM VE- 
 nire potest. No man can contradict his own 
 deed. 2 Inst. 66. 
 
 NEMO DAMNUM FACIT, NISI QUI ID 
 fecit quod facere jus non habet. No one is 
 considered as doing damage unless he who 
 is doing what he has no right to do. Dig. 
 50. 17. 151. 
 
 NEMO DARE POTEST QUOD NON HA- 
 bet. No man can give that which he has not. 
 Fleta, lib. 3, c. 15, § 8. 
 
 NEMO DAT QUI NON HABET. No one 
 
 can give who does not possess. Jenk. Cent. 
 Cas. 250. 
 
 NEMO DE DOMO SUA EXTRAHI DE- 
 bet. A citizen cannot be taken by force from 
 his house to be conducted before a judge or 
 to prison. Dig. 50. 17. 103. This maxim in 
 favor of Roman liberty is much the same as 
 tliat every man's house is his castle. Broom, 
 Leg. Max. (3d London Ed.) 384. 
 
 NEMO DEBET ALIENA JACTURA LO- 
 cupletari. No one ought to gain by an- 
 other's loss. 2 Kent, Comm. 336. 
 
 NEMO DEBET BIS PUNIRI PRO UNO 
 delicto. No one ought to be punished twice 
 for the same offense. 4 Coke, 43; 11 Coke, 
 59b. 
 
 NEMO DEBET BIS VEXARI PRO [UNA 
 et] eadem causa. No one should be twice 
 harassed for the same cause. 2 Johns. (N. 
 Y.) 24, 27, 182; 13 Johns. (N. Y.) 153; 8 
 Wend. (N. Y.) 10, 38; 2 Hall (N. Y.) 454; 3 
 Hill (N. Y.) 420; 6 Hill (N. Y.) 133; 2 Barb. 
 (N. Y.) 285; 6 Barb. (N. Y.) 32; 5 Pet. (U. 
 S.) 61; 1 Archb. Prac. (Chit. Ed.) 476; 2 
 Mass. 355; 17 Mass. 425. 
 
 NEMO DEBET BIS VEXARI, SI CON- 
 stat curiae quod sit pro una et eadem causa. 
 No man ought to be twice punished, if it 
 appear to the court that it Is for one and 
 the same cause. 5 Coke, 61; Broom, Leg. 
 Max. (3d London Ed.) 294. 
 
 NEMO DEBET ESSE JUDEX IN PRO- 
 pria causa. No one should be judge in his 
 own cause. 12 Coke, 114; Broom, Leg. Max. 
 (3d London Ed.) 111. 
 
 NEMO DEBET IMMISCERE SE REI 
 allenae ad se nihil pertinent!. No one should 
 interfere in what no way concerns him. 
 Jenk. Cent. Cas. 18. , 
 
 NEMO DEBET IN COMMUNIONE INVI- 
 tus tenerl. No one should be retained in a 
 partnership against his will. 2 Sandf. Ch. 
 (N. Y.) 568, 593; 1 Johns. (N. Y.) 106, 114. 
 
NEMO DEBET, ETC. 
 
 (621) 
 
 NEMO POTEST, ETC. 
 
 NEMO DEBET LOCUPLETARI EX AL- 
 
 terius incommodo. No one ought to be made 
 rich out of another's loss. Jenk. Cent. Cas. 
 4; 10 Barb. (N. Y.) 626, 633. 
 
 NEMO DEBET REM SUAM SINE FACTO 
 aut defectu suo amittere. No one should lose 
 his property without his act or negligence. 
 Co. Litt. 263. 
 
 NEMO DUOBUS UTATUR OFFICIIS. No 
 
 one should fill two offices. 4 Inst. 100. 
 
 NEMO EJUSDEM TENEMENTI SIMUL 
 potest esse haeres et dominus. No one can 
 be at the same time heir and lord of the 
 isame fief. 1 Reeve, Hist. Eng. Law, 106. 
 
 NEMO ENIM ALIQUAM PARTEM REC- 
 te intelligere possit antequam totum iterum 
 atque iterum perlegerit. No one is able right- 
 ly to understand one part before he has 
 again and again read througli the whole. 
 Broom, Leg. Max. 593. 
 
 NEMO EST HAERES VIVENTIS. No one 
 is an heir to the living. Co. Lltt. 22b ; 2 Bl. 
 Comm. 70, 107, 208; Viner, Abr. "Abeyance;" 
 2 Bouv. Inst. 1694, 1832; 2 Johns. (N. Y.) 36. 
 
 NEMO EST SUPRA LEGES. No one is 
 above the law. LofEt, 142. 
 
 NEMO EX ALTERIUS FACTO PRAE- 
 
 gravari debet. No man ought to be burden- 
 ed in consequence of another's act. 2 Kent, 
 Comm. 646; Poth. Obi. (Evans' Ed.) 133. 
 
 NEMO EX CONSILIO OBLIGATUR. No 
 
 man is bound for the advice he gives. Story, 
 Bailm, § 155. 
 
 NEMO EX DOLO SUO PROPRIO RELE- 
 vetur, aut auxilium capiat. Let no one be 
 relieved or gain an advantage by his own 
 fraud. A civil-law maxim. 
 
 NEMO EX PROPRIO DOLO CONSEQUI- 
 tur actionem. No one acquires a right of ac- 
 tion from his own wrong. Broom, Leg. Max. 
 (3d London Ed.) 270. 
 
 NEMO EX SUO DELICTO MELIOREM 
 suam conditionem facere potest. No one can 
 improve his condition by his own wrong. 
 Dig. 50. 17. 134. 1. 
 
 NEMO IN PROPRIA CAUSA TESTIS ES- 
 
 se debet. No one can be a witness in his 
 own cause. But to this rule there are many 
 exceptions. 1 Bl. Comm. 443; 3 Bl. Comm. 
 370. 
 
 NEMO INAUDITUS CONDEMNARI DE- 
 bet, si non sit contumax. No man ought to 
 be condemned unheard, unless he be con- 
 tumacious. Jenk. Cent. Cas. 18. 
 
 NEMO JUS SIBI DICERE POTEST. No 
 
 one can declare the law for himself. No 
 one is entitled to take the law into his own 
 hands. Tray. Lat. Max. 366. 
 
 NEMO MILITANS DEO IMPLICETUR 
 secularlbus negotils. No man warring for 
 
 God should be troubled by secular business. 
 Co. Lltt. 70. 
 
 NEMO NASCITUR ARTIFEX. No one is 
 born an artificer. Co. Litt. 97. 
 
 NEMO PATRIAM IN QUA NATUS EST 
 exuere, nee ligeantiae debitum ejurare pos- 
 sit. No man can renounce the country in 
 which he was born, nor adjure the obliga- 
 tion of his allegiance. Co. Litt. 129a; 3 
 Pet. (U. S.) 155; Broom, Leg. Max. (3d Lon- 
 don Ed.) 72. See "Allegiance;" "Expatria- 
 tion;" "Naturalization." 
 
 NEMO PLUS COMMODI HEREDI SUO 
 relinquit quam ipse habuit. No one leaves a 
 greater benefit to his heir than he had him- 
 self. Dig. 50. 17. 120. 
 
 NEMO PLUS JURIS AD ALIENUM 
 transferre potest, quam ipse habet. One Can- 
 not transfer to another a larger right than 
 he himself has. Co. Lltt. 309b; Wingate, 
 Max. 56; 2 Kent, Comm. 324; 1 Story, Cont. 
 (4th Ed.) 417, note; 5 Coke, 113; 10 Pet. 
 (U. S.) 161, 175. 
 
 NEMO POTEST CONTRA RECORDUM 
 verificare per patriam. No one can verify by 
 the country against a record. The issue 
 upon a record cannot be tried by a jury. 2 
 Inst. 380. 
 
 NEMO POTEST ESSE DOMINUS ET 
 
 haeres. No one can be both owner and heir. 
 Hale, Hist. Com. Law, c. 7. 
 
 NEMO POTEST ESSE SIMUL ACTOR ET 
 judex. No one can be at the same time 
 judge and suitor. Broom, Leg. Max. (3d 
 London Ed.) 112; 13 Q. B. 327; 17 Q. B. 
 1; 15 C. B. 796; 1 C. B. (N. S.) 323. 
 
 NEMO POTEST ESSE TENENS ET DO- 
 
 minus. No man can be at the same time ten- 
 ant and landlord (of the same tenement). 
 Gilb. Ten. 102. 
 
 NEMO POTEST FACERE PER ALIUM 
 quod per se non potest. No one can do that 
 by another which he cannot do by himself. 
 Jenk. Cent. Cas. 237. 
 
 NEMO POTEST FACERE PER OBLIQ- 
 uum quod non potest facere per directum. 
 No one can do that indirectly which can- 
 not be done directly. 1 Eden, 512. 
 
 NEMO POTEST MUTARE CONSILIUM 
 suum in alterius injuriam. No one can change 
 his purpose to the injury of another. Dig. 
 50. 17. 75; Broom, Leg. Max. (3d London 
 Ed.) 33; 7 Jojins. (N. Y.) 477. 
 
 NEMO POTEST PLUS JURIS AD ALIUM 
 transferre quam ipse habet. No one can 
 transfer a greater right to another than he 
 himself has. Co. Litt. 309; Wingate, Max. 
 56. 
 
 NEMO POTEST SIBI DEBERE. No one 
 
 can owe to himself. See "Confusion of 
 Rights." 
 
NEMO PRAESENS, ETC. 
 
 (622) 
 
 NEUTRALITY 
 
 NEMO PRAESENS NISI INTELLIGAT. 
 
 One is not present unless he understands. 
 See "Presence." 
 
 NEMO PRAESUMITUR ALIENAM POS- 
 teritatem suae praetulisse. No one is pre- 
 sumed to have preferred another's posterity 
 to his own. Wingate, Max. 285. 
 
 NEMO PRAESUMITUR DONARE. No 
 
 one is presumed to give. 
 
 NEMO PRAESUMITUR ESSE IMMEMOR 
 suae aeternae salutis, et maxime in artlculo 
 mortis. No man is presumed to he forgetful 
 of his eternal welfare, and particularly at 
 the point of death. 6 Coke, 76. 
 
 NEMO PRAESUMITUR LUDERE IN EX- 
 tremis. No one is presumed to trifle at the 
 point of death. 
 
 NEMO PRAESUMITUR MALUS. 
 is presumed to be had. 
 
 No one 
 
 NEMO PROHIBETUR PLURES NEGO- 
 tiationes sive antes exercere. No one is re- 
 strained from exercising several kinds of 
 business or arts. 11 Coke, 54. 
 
 NEMO PROHIBETUR PLURIBUS DE- 
 fensionibus uti. No one is restrained from 
 using several defenses. Co. Litt. 304; Win- 
 gate, Max. 479. 
 
 NEMO PRUDENS PUNIT UT PRAETER- 
 ita revocentur, sed ut futura praeveniantur. 
 
 No wise one punishes that things done may 
 be revoked, but that future wrongs may be 
 prevented. 3 Bulst. 17. 
 
 NEMO PUNITUR PRO ALIENO DELIC- 
 
 to. No one is to be punished for the crime 
 or wrong of another. Wingate, Max. 336. 
 
 NEMO PUNITUR SINE INJURIA, FAC- 
 to, seu defalto. No one is punished unless 
 for some wrong, act, or default. 2 Inst. 287. 
 
 NEMO, QUI CONDEMNARE POTEST, 
 absolvere non potest. No one who may con- 
 demn is unable to acquit. Dig. 50. 17. 37. 
 
 NEMO SIBI ESSE JUDEX VEL SUIS JUS 
 dicere debet. No man ought to be his own 
 judge, or to administer justice in cases 
 where his relations are concerned: 12 Coke, 
 113; Code, 3. 5. 1; Broom, Leg. Max. (3d 
 London Ed.) 111. 
 
 NEMO SINE ACTIONE EXPERITUR, ET 
 hoc non sine breve sive libello conventional!. 
 No one goes to law without an action, and 
 no one can bring an action without a writ 
 or bill. Bracton. 112. 
 
 NEMO TENETUR AD IMPOSSIBILE. No 
 
 one is bound to an impossibility. Jenk. 
 Cent. Cas. 7. 
 
 NEMO TENETUR ARMARE ADVERSA- 
 rum contra se. No one is bound to arm his 
 adversary. Wingate, Max. 665. 
 
 NEMO TENETUR DIVINARE. No one is 
 bound to foretell. 4 Coke, 28; 10 Coke, 55a. 
 
 NEMO TENETUR EDERE INSTRUMEN- 
 ta contra se. No man is bound to produce 
 writings against himself. Bell, Diet. 
 
 NEMO TENETUR INFORMARE QUI NES- 
 cit sed quisquis scice quod informat. No one 
 who is ignorant of a thing is bound to give 
 information of it, but every one is bound to 
 know that which he gives information of. 
 Branch, Princ; Lane, Exch. 110. ' 
 
 NEMO TENETUR JURARE IN SUAM 
 turpitudinem. No one is bound to testify to 
 his own baseness. 
 
 NEMO TENETUR PRODERE SEIPSUM. 
 No one is bound to betray himself. In other 
 words, no one can be compelled to criminate 
 himself. Broom, Leg. Max. 968. 
 
 NEMO TENETUR SEIPSUM ACCUSARE. 
 No one is bound to accuse himself. Win- 
 gate, Max. 486; Broom, Leg. Max. (3d Lon- 
 don Ed.) 871; 1 Bl. Comm. 443; 14 Mees. & 
 W. 286. 
 
 NEMO TENETUR SEIPSUM INFORTU- 
 niis et periculis exponere. No one is bound 
 to expose himself to misfortune and dan- 
 gers. Co. Litt. 253. 
 
 NEMO UNQUAM JUDICET .IN SE. No 
 
 one can ever be a judge in his own cause. 
 
 NEMO UNQUAM VIR MAGNUS FUIT 
 sine aliquo divino afflatu. No one was ever 
 a great man without some divine inspira- 
 tion. Cicero. 
 
 NEMO VIDETUR FRAUDARE EOS QUI 
 sciunt, et consentiunt. No one is considered 
 as deceiving those who know and consent. 
 Dig. 20. 17. 145. 
 
 NEMY, or NEMI (Law Pr.) Not. 
 come lieire, not as heir. Litt. § 3. 
 
 Nemy 
 
 NEPHEW. The son of a brother or sister. 
 Ambl. 514; 1 Jac. 207. 
 
 The Latin nepos. from which "nephew" is 
 derived, was used in the civil law for nephew, 
 but more properly for grandson; and we ac- 
 cordingly find neveu, the original form of 
 nephew, in the sense of grandson. Britton, 
 c. 119. 
 
 NEPUOY (Old Scotch). In Scotch law. 
 A grandson. Skene de Verb. Sign. voc. 
 "Eneya." 
 
 NETHER HOUSE OF PARLIAMENT. The 
 
 house of commons was so called in the time 
 of Henry VIII. 
 
 NEUTRALITY. The state of a nation 
 which takes no part between two or more 
 other nations at war with each other. 
 
 Neutrality consists in the observance of 
 a strict and honest impartiality, so as not to 
 afford advantage in the war to either party, 
 and particularly in so far restraining its 
 trade to the accustomed course which is 
 
NEVER INDEBTED 
 
 (b23) 
 
 NEXI 
 
 held in time of peace as not to render as- 
 sistance to one of the belligerents in escap- 
 ing the effects of the other's hostilities. 
 Even a loan of money to one of the belliger- 
 ent parties is considered a violation of neu- 
 trality. 9 J. B. Moore, 586. A fraudulent 
 neutrality is considered as no neutrality. 
 
 NEVER INDEBTED (Law Lat. miiiquitm 
 indebitatus). In English practice. A form of 
 plea in actions of debt on simple contract, 
 substituted by the late pleading rules in 
 place of the plea of nil debet (q. i\) Reg. 
 Hillary Term, 4 Wm. IV.; Steph. PI. 156. 
 The substance of it is that the defendant 
 "never was indebted in manner and form as 
 in the declaration alleged." Id. It Is made 
 the proper form of plea in cases where the 
 defendant means to deny, in point of fact, 
 the existence of any express contract to the 
 effect alleged in the declaration, or to deny 
 the matters of fact from which such contract 
 would, by law, be implied. Wharton. 
 
 NEW ASSIGNMENT. A restatement of 
 the cause of action by the plaintiff, with 
 more particularity and certainty, but con- 
 sistently with the general statement in the 
 declaration. Steph. PI. 241; 20 Johns. (N. 
 Y.) 43. 
 
 Its purpose is to avoid the effect of an 
 evasive plea which apparently answers the 
 declaration, though it does not really apply 
 to the matter which the plaintiff had in view. 
 1 Wm. Saund. 299b, note 6. Thus, if a de- 
 fendant has committed two assaults on the 
 plaintiff, one of which Is justifiable, and the 
 other not, as the declaration may not distin- 
 guish one from the other, the defendant may 
 justify, and the plaintiff, not being able 
 either to traverse, demur, or confess and 
 avoid, must make a new assignment. 
 
 NEW FOR OLD. A term used in the law 
 of insurance in cases of adjustment of a loss 
 when it has been but partial. In making 
 such adjustment, the rule is to apply the old 
 materials towards the payment of the new, 
 by deducting the value of them from the 
 gross amount of the expenses for repairs, and 
 to allow the deduction of one-third new for 
 old upon the balance. See 1 Cow. (N. Y.) 
 265; 4 Cow. (N. Y.) 245; 4 Ohio, 284; 7 Pick. 
 (Mass.) 259; 14 Pick. (Mass.) 141. 
 
 NEW INN. An inn of chancery. See 
 "Inns of Chancery." 
 
 NEW MATTER. In pleading. Matter ex- 
 trinsic to the matter in the pleading to 
 which the party introducing the same an- 
 swers or replies. 7 Hun (N. Y.) 482. 
 
 Pacts different from those alleged in the 
 ■complaint, and not embraced within the ju- 
 dicial inquiry into their truth. 16 S. C. 586. 
 
 Thus, payment (16 N. Y. 297; 25 Ohio St. 
 ■276), fraud in obtaining the instrument 
 «ued on (20 Minn. 411), or limitations (57 
 Iowa, 307) constitute new matter. 
 
 NEW PROMISE. A contract made after 
 the original promise has, for some cause. 
 
 been rendered invalid, by which the promiser 
 agrees to fulfill such original promise. 
 
 NEW STYLE. The modern system of 
 computing time was introduced Into Great 
 Britain A. D. 1752, the 3d of September of 
 that year being reckoned as the 14th. 
 
 NEW TRIAL. In practice. A rehearing of 
 the legal rights of the parties, upon disputed 
 facts, before another jury, granted by the 
 trial court, or a reviewing on application of 
 the party dissatisfied with the result of the 
 previous trial, upon a proper case being pre- 
 sented for the purpose. 4 Chit. Prac. 30; 2 
 Graham & W. New Tr. 32. 
 
 NEW TRIAL PAPER. In English prac- 
 tice. A paper containing a list of causes 
 in which rules nisi have been obtained for 
 a new trial, or for entering a verdict in place 
 of a nonsuit, or for entering judgment non 
 obstante veredicto, or for otherwise varying 
 or setting aside proceedings which have 
 taken place at nisi prius. These are called 
 on for argument in the order in which they 
 stand in the paper, on days appointed by 
 the judges for the purpose. Brown. 
 
 NEW WORK. In the civil law. An edi- 
 fice or other work newly commenced on any 
 ground whatever. Civ. Code La. art. 852. 
 
 NEWLY-DISCOVERED EVIDENCE. Proof 
 of some new material fact in a case, ascer- 
 tained since the decision. 
 
 To constitute such newly-discovered evi- 
 dence as Is ground for a new trial, the evi- 
 dence must be new and material, not merely 
 impeaching (125 111. 122; 24 Pick. [Mass.] 
 246; 67 Barb. [N. Y.] 411; 36 Minn. 323), nor 
 cumulative (20 Conn. 306;. 43 Barb. [N. Y.] 
 203). It must have been discovered since 
 the former trial (39 Me. 263; 37 How. Pr. 
 [N. Y.] 524), and reasonable diligence must 
 have been used, without success, to discover 
 it in time for the trial (113 111. 82; 34 Minn. 
 351; 35 Hun [N. Y.] 95). 
 
 NEWSPAPER. A printed publication, is- 
 sued in numbers at stated intervals, con- 
 veying intelligence of passing events. The 
 term "newspaper" is commonly applied to 
 such publications only as are issued in a 
 single sheet, and at short intervals, as daily 
 or weekly. 4 Op. Attys. Gen. TJ. S. 10; 7 
 Exch. 97. 
 
 As used in statutes regulating the publica- 
 tion of legal notices, etc., a newspaper must 
 contain matter of general interest; a journal 
 confined to the interests of a single trade 
 or profession not being within the term. 25 
 Minn. 147. But see 75 111. 51. But where, 
 though the main body of the paper is de- 
 voted to some special interest, there is in 
 each issue one or more columns of general 
 news and reading matter and advertise- 
 ments confined to no one calling or trade, the 
 publication is a newspaper. 126 111. 219 
 (law journal) ; 38 Minn. 349 (religious week- 
 ly) ; 43 N. Y. Supp. 720 (dally mercantile 
 journal). 
 
 NEXI. In Roman law. Persons bound 
 
NEXT FRIEND 
 
 (624) 
 
 NIHIL CAPIAT, ETC. 
 
 (nexi) ; that is, insolvents, wbo might be 
 held in bondage by their creditors until their 
 debts were discharged. Vicat; Heinec. Ant. 
 Rom. lib. 3, tit. 330; Calv. Lex.; Mackeld. 
 Civ. Law, § 486a. 
 
 NEXT FRIEND. One who, without being 
 regularly appointed guardian, acts for the 
 benefit of an infant, married woman, or oth- 
 er person not sui juris. Same as proohein 
 
 ami (g. v.) 
 
 NEXT OF KIN. The next of kin of a de- 
 ceased person are his nearest blood rela- 
 tives. It has been held that the next of kin 
 included all blood relatives who took under 
 the statute of distrilDution (28 How. Pr. [N. 
 Y.] 417); but the more modern holding is 
 that it includes only the nearest in blood, 
 excluding some who may be within the stat- 
 ute (150 Mass. 225). It includes relatives 
 of the half blood. 
 
 The term does not include a surviving 
 husband or wife, they not being related by 
 blood. 113 Mass. 431; 44 111. 446; 69 N. Y. 
 36. 
 
 NEXUM (Lat.) In Roman law. The trans- 
 fer of the ownership of a thing, or the trans- 
 fer of a thing to a creditor as a security. 
 
 In one sense, nexum includes mancipium; 
 in another sense, mancipium and nexum are 
 opposed, in the same way as sale and mort- 
 gage or pledge are opposed. The formal 
 part of both transactions consisted in a 
 transfer per aes et Ubram. The person who 
 became nexus by the effect of a nexum 
 placed himself in a servile condition, not 
 becoming a slave, his ingenuitas being only in 
 suspense, and was said to be nexum inire. The 
 phrases nexi datio, nexi liieratio, respective- 
 ly express the contracting and the release 
 from the obligation. 
 
 NICHIL. An old form of nihil (q. v.) 
 
 NIECE. The daughter of a brother or sis- 
 ter. Ambl. 514; 1 Jac. 207. 
 
 NIEFE. In old English law. A woman 
 born in vassalage. 
 
 NIENT (Law Fr.) Nothing; not; null. 
 
 NIENT COMPRISE (Law Fr. not includ- 
 ed). An exception taken to a petition be- 
 cause the thing desired is not contained in 
 that deed or proceeding whereon the peti- 
 tion is founded. Tomlins. 
 
 NIENT CULPABLE (Law Fr. not guilty). 
 The name of a plea used to deny any charge 
 of a criminal nature, or of a tort. 
 
 NIENT DEDIRE (Law Fr. to say nothing). 
 Words used to signify that judgment be 
 rendered against a party because he does 
 not deny the cause of action; i. e., by de- 
 fault. 
 
 When a fair and impartial trial cannot be 
 had in the county where the venue is laid, 
 the practice in the English courts is, on an 
 affidavit of the circumstances, to change it 
 in transitory actions; or, in local actions, 
 they will give leave to enter a suggestion 
 
 on the roll, with a nient dedire, ia order to 
 have the trial in another county. 1 Tidd, 
 Prac. (8th Ed.) 655. 
 
 NIENT LE FAIT (Law Fr.) In pleading. 
 The same as non est factum, a plea by which 
 the defendant asserts that the deed declared 
 upon is not his deed. 
 
 NIENT SEISI. In old pleading. Not seis- 
 ed. The general plea in the writ of annuity. 
 Crabb, Hist. Eng. Law, 424. 
 
 NIGER LIBER. The black book of regis- 
 ter in the exchequer; chartularies of ab- 
 beys, cathedrals, etc. 
 
 NIGHT. That space of time during which 
 the sun is below the horizon of the earth, 
 except that short space which precedes its 
 rising and follows its setting, during which, 
 by its light, the countenance of a man may 
 be discerned. At common law, the night, for 
 the purpose of burglary, does not begin until 
 after and ceases when there is daylight 
 enough to discern a man's countenance. 1 
 Hale, P. C. 550; 4 Bl. Comm. 224; 10 N. H. 
 105; 42 Vt. 629. See "Daytime." 
 
 NIGHT MAGISTRATE. A constable of the 
 night; the head of a watch house. 
 
 NIGHT WALKERS. Persons who sleep by 
 day and walk by night (5 Edw. III. c. 14); 
 that is, persons of suspicious appearance 
 and demeanor, who walk by night. 
 
 Watchmen may undoubtedly arrest them; 
 and it is said that private persons may also 
 do so. 2 Hawk. P. C. 120. But see 3 Taunt. 
 14; Hammond, N. P. 135; 15 Viner, Abr. 555; 
 Dane, Abr. Index. 
 
 NIGRUM NUNQUAM EXCEDERE DE- 
 bet rubrum. The black should never go be- 
 yond the red; i. e., the text of a statute 
 should never be read in a sense more com- 
 prehensive than the rubric, or title. Tray. 
 Lat. Max. 373. 
 
 NIHIL, NICHIL, or NIL (Lat.) Nothing. 
 
 In Practice. A return made by a sher- 
 iff to a writ of scire facias, that the bail or 
 defendants have nothing (tiihil hahent) by 
 which he can make known to them. 2 Tidd, 
 Prac. 1124. 
 
 A return formerly made to process of at- 
 tachment and distringas to compel the ap- 
 pearance of a defendant. 3 Bl. Comm. 282. 
 
 A return or answer formerly made by a 
 sheriff, on being apposed (that is, interrogat- 
 ed) in the exchequer concerning illeviable 
 debts, that they were worth nothing. Cow- 
 ell. 
 
 In American Law. A return to an at- 
 tachment in garnishee process. 4 Pa. St. 
 232. 
 
 NIHIL ALIUD POTEST REX GUAM 
 quod de jure potest. The king can do noth- 
 ing but what he can do justly. 11 Coke, 74. 
 
 NIHIL CAPIAT PER BREVE (Lat. that he 
 take nothing by his writ). In practice. The 
 form of judgment against the plaintift In an 
 
NIHIL CONSENSUI, ETC. 
 
 (62S) 
 
 NIL AGIT EXEMPLUM, ETC. 
 
 action, either in bar or in abatement. When 
 the plaintiff has commenced his proceedings 
 by bill, the judgment is nihil capiat per Mi- 
 lam. Co. Litt. 363. 
 
 NIHIL CONSENSUI TAM CONTRARIUM 
 est quam vis atque metus. Nothing is so con- 
 trary to consent as force and fear. Dig. 50. 
 17. 116. 
 
 NIHIL DAT QUI NON HABET. He gives 
 nothing who has nothing. 
 
 NIHIL DE RE ACCRESCIT El QUI NIHIL 
 in re quando jus accresceret habet. Nothing 
 accrues to him who, when the right accrues, 
 has nothing in the subject matter. Co. Litt. 
 18S. 
 
 NIHIL DIGIT (Lat. he says nothing). The 
 name of the judgment rendered against a 
 defendant who fails to put in a plea or an- 
 swer to the plaintiff's declaration by the day 
 assigned. In such a case, judgment is given 
 against the defendant of course, as he says 
 nothing why It should not. See 15 Viner, 
 Abr. 556; Dane, Abr. Index. 
 
 NIHIL EST ENIM LIBERALS QUOD NON 
 idem justum. For there is nothing generous 
 which is not at the same time just. 2 Kent. 
 Comm. 441, note (a). 
 
 NIHIL EST MAGIS RATIONI GONSENTA- 
 neum quam eodem mode quodque dissclvere 
 quo conflatum est. Nothing is more conso- 
 nant to reason than that everything should 
 be dissolved in the same way in which it 
 was made. Shep. Touch. 323. 
 
 NIHIL FAGIT ERROR NOMINIS GUM DE 
 corpore constat. An error in the name is 
 nothing when there is certainty as to the 
 thing. 11 Coke, 21; 2 Kent, Comm. 292. 
 
 NIHIL HABET (Lat. he has nothing). The 
 name of a return made by a sheriff, marshal, 
 or other proper officer, to a scire facias or 
 other writ, when he has not been able to 
 serve it on the defendant. 5 Whart. (Pa.) 
 367. 
 
 Two returns of nihil are, in general, equiv- 
 alent to a service. Yelv. 112; 1 Cow. (N. Y.) 
 70; 1 Law Rep. (N. C.) 491; 4 Blackf. (Ind.) 
 188; 2 Bin. (Pa.) 40. 
 
 NIHIL HABET FORUM EX SGENA. The 
 
 court has nothing to do with what is not be- 
 fore it. 
 
 NIHIL IN LEGE INTOLERABILIUS EST, 
 eandem rem diverso jure censeri. Nothing 
 in law is more intolerable than that the same 
 case should be subject (in different courts) 
 to different views of the law. 4 Coke, 93. 
 
 NIHIL INFRA REGNUM SUBDITOS MA- 
 gis conservat in tranquilitate et concordia 
 quam debita legum administratio. Nothing 
 preserves in tranquillity and concord those 
 who are subjected to the same government 
 better than a due administration of the laws. 
 2 Inst. 158. 
 
 NIHIL INIQUIUS QUAM AEQUITATEM 
 nimis intendere. Nothing is more unjust 
 than to extend equity too far. Halk. Max. 
 103. 
 
 NIHIL MAGIS JUSTUM EST QUAM 
 quod necessarium est. Nothing is more just 
 than what is necessary. Dav. 12. 
 
 NIHIL NEQUAM EST PRAESUMENDUM. 
 Nothing wicked is to be presumed. 2 P. 
 Wms. 583. 
 
 NIHIL PERFEGTUM EST DUM ALIQUID 
 restat agendum. Nothing is perfect while 
 something remains to be done. 9 Coke, 9. 
 
 NIHIL PETI POTEST ANTE ID TEM- 
 pus, quo per rerum naturam persolvi possit. 
 
 Nothing can be demanded before that time 
 when, in the nature of things, it can be paid. 
 Dig. 50. 17. 186. 
 
 NIHIL POSSUMUS GONTRA VERITA- 
 
 tem. We can do nothing against truth. Doc- 
 tor & Stud. dial. 2, c. 6. 
 
 NIHIL PRAESCRIBITUR NISI QUOD 
 
 possidetur. There is no prescription for that 
 which is not possessed. 5 Barn. & Aid. 277. 
 
 NIHIL QUOD EST GONTRA RATIONEM 
 est licitum. Nothing against reason is law- 
 ful. Co. Litt. 97. 
 
 NIHIL QUOD EST INGONVENIENS EST 
 licitum. Nothing inconvenient is lawful. 4 
 H. L. Cas. 145, 195. 
 
 NIHIL SIMUL INVENTUM EST ET PER- 
 fectum. Nothing is invented and perfected 
 at the same moment. Co. Litt. 230; 2 Bl. 
 Comm. 298, note. 
 
 NIHIL TAM CONVENIENS EST NATU- 
 rali aequltati quam unumquodque dissolvi eo 
 ligamine quo ligatum est. Nothing is so con- 
 sonant to natural equity as that each thing 
 should be dissolved by the same means by 
 which it was bound. 2 Inst. 360; Broom, 
 Leg. Max. (3d London Ed.) 785. See Shep. 
 Touch. 323. 
 
 NIHIL TAM CONVENIENS EST NATU- 
 rali aequitati, quam voluntatem domini vo- 
 lentis rem suam in alium transferre, ratam 
 haberi. Nothing is more conformable to nat- 
 ural equity than to confirm the will of an 
 owner who desires to transfer his property 
 to another. Inst. 2. 1. 40; 1 Coke, 100. 
 
 NIHIL TAM NATURALE EST, QUAM EO 
 genere quidque dissclvere, quo colligatum 
 est. Nothing is so natural as that an obliga- 
 tion should be dissolved by the same princi- 
 ples which were observed in contracting it. 
 Dig. 50. 17. 35. See 1 Coke, 100; 2 Inst. 359. 
 
 NIHILTAM PROPRIUM IMPERIO QUAM 
 leglbus vivere. Nothing is so becoming to 
 authority as to live according to the law. 
 Fleta, lib. 1, c. 17, § 11; 2 Inst. 63. 
 
 NIL AGIT EXEMPLUM LITEM QUOD 
 lite resolvit. An example does no good which 
 
NIL DEBET 
 
 (626) 
 
 NISI PRIUS WRIT 
 
 settles one ctuestion by another. 15 Wend. 
 (N. Y.) 44, 49. 
 
 NIL DEBET (Lat. he owes nothing). In 
 pleading. The general issue in debt on sim- 
 ple contract. It is in the following form: 
 "And the said C. D., by E. P., his attorney, 
 comes and defends the wrbng and injury, 
 when, etc., and says that he does not owe the 
 said sum of money above demanded, or any 
 part thereof, in manner and form as the said 
 A. B. hath above complained. And of this 
 the said C. D. puts himself upon the coun- 
 try." When, in debt on specialty, the deed 
 is the only Inducement to the action, the 
 general issue is nil debet. Steph. PI. 174, 
 note; 8 Johns. (N. Y.) 83; Dane, Abr. Index. 
 
 NIL FACIT ERROR NOMINIS SI DE COR- 
 pore constat. An error in the name is im- 
 material if the body is certain. Broom, Leg. 
 Max. (3d London Ed.) 566; 11 C. B. 406. 
 
 NIL HABUIT IN TENEMENTIS (Lat.) In 
 pleading. A plea by which the defendant, 
 who is sued by his landlord in debt for rent 
 upon a lease, but by deed indented, denies 
 ■his landlord's title to the premises, alleging 
 ■"that he has no Interest in the tenements." 
 2 Lilly, Abr. 214; 12 Viner, Abr. 184; 15 
 Viner, Abr. 556. 
 
 NIL SINE PRUDENTl FECIT RATIONE 
 vetustas. Antiquity did nothing without a 
 good reason. Co. Litt. 65. 
 
 NIL TEMERE NOVANDUM. Nothing 
 should be rashly changed. Jenk. Cent. Gas. 
 163. 
 
 NIMIA CERTITUDO CERTITUDINEM IP- 
 sam destrult. Too great certainty destroys 
 certainty itself. Lofft, 244. 
 
 NIMIA SUBTILITAS IN JURE REPRO- 
 batur. Too much subtlety in law is dis- 
 countenanced. Wingate, Max. 26. 
 
 NIMIASUBTILITAS INJURE REPROBA- 
 tur, et talis certitudo certitudinem confundlt. 
 Too great subtlety is disapproved of in law ; 
 for such nice pretense of certainty confounds 
 true and legal certainty. Broom, Leg. Max. 
 (3d London Ed.) 175; 4 Coke, 5. 
 
 NIMIUM ALTERCANDO, VERITAS AMIT- 
 titur. By too much altercation, truth is lost. 
 Hob. 344. 
 
 N I M IVl E R. A thief ; a pilferer. 
 
 NISI (Lat. unless). A word frequently af- 
 fixed to the words "order," "rule," etc., to 
 indicate that such order or rule is condition- 
 al, being operative unless the party shall 
 show cause to the contrary. 
 
 NISI PRIUS (Lat. unless before). In prac- 
 tice. For the purpose of holding trials by 
 jury. Important words in the writ (venire) 
 directing the sheriff to summon jurors for 
 the trial of causes depending in the superior 
 courts of law in England, which have come 
 to be adopted, both in England and the 
 United States, to denote those courts or 
 terms of court held for the trial of civil 
 causes with the presence and aid of a jury. 
 
 The origin of the use of the term Is to be 
 traced to a period anterior to the institution 
 of the commission of nisi prius in its more 
 modern form. By Magna Oharta it was pro- 
 vided that the common pleas should be held 
 in one place, and should not follow the per- 
 son of the king; and by another clause, that 
 assizes of novel disseisin and of mart d'an- 
 cestor, which were the two commonest forms 
 of actions to recover land. Should be held in 
 the various counties before the justices in 
 eyre. A practice obtained very early, there- 
 fore, in the trial of trifling causes, to con- 
 tinue the cause in the superior court from 
 term to term, provided the justices in eyre 
 did not sooner (nisi justiciarii diu) come in- 
 to the county where the cause of action arose, 
 in which case they had jurisdiction when 
 they so came. Bracton, lib. 3, c. 1, § 11. By 
 the statute of nisi prius (13 Edw. I. c. 30, en- 
 forced by 14 Edw. III. c. 16), justices of as- 
 size were empowered to try common issues 
 in trespass and other suits, and return them, 
 when tried, to the superior court, where 
 judgment was given. The clause was then 
 left out of the continuance and inserted in 
 the venire, thus: "Praecipimiis HM quod ve- 
 nire facias coram justiciaris nostris apud 
 Westm. in Octabis Hcti MichaeUs, nisi talis 
 et talis, tali die et loco, ad partes illas vener- 
 int, duodecim," etc. We command you that 
 you cause to come before our justices at 
 Westminster, on the octave of Saint Micha- 
 el, unless such and such a one, on such a 
 day and place, shall come to those parts, 
 twelve, etc. Under the provisions of 42 Edw. 
 III. c. 11, the clause is omitted from the ve- 
 nire, and the jury is respited in the court 
 above, while the sheriff summons them to 
 appear before the justices, upon a habeas 
 corpora juratorum, or, in the king's bench, 
 a distringas. See Sellon, Prac. Introd. Ixv.; 
 1 Spence, Bq. Jur. 116; 3 Bl. Comm. 352-354; 
 1 Reeve, Hist. Eng. Law, 245, 382. 
 
 See, also, "Assize;" "Courts of Assize and 
 Nisi Prius;" "Jury." 
 
 NISI PRIUS ROLL. In practice. The tran- 
 script of a case made from the record of 
 the superior court in which the action is 
 commenced, for use in the nisi prius court. 
 
 It includes a history of all the proceed- 
 ings in the case, including the declaration, 
 plea, replication, rejoinder, issue, etc. It 
 must be presented in proper manner to the 
 nisi prius court. When a verdict has been 
 obtained and entered on this record, it be- 
 comes the posted, and is returned to the su- 
 perior court. 
 
 NISI PRIUS WRIT. The old name of the 
 writ of venire, which originally, in pursu- 
 ance of the statute of Westminster II., con- 
 tained the nisi prius clause. Reg. Jud. 28, 75; 
 Cowell. The clause, however, as it appears 
 in the forms, was not in the original nisi 
 prius form, but in the alternative, the jury 
 being directed to be summoned to come be- 
 fore the justices at Westminster, etc., or be- 
 fore the justices of assize if they should 
 sooner come to the place of trial, on the day 
 designated. The emphatic Latin words were 
 
NO AWARD 
 
 (627) 
 
 NOMEN GENERALISSIMUM 
 
 not nisi prius, but vel si prius. See Reg. 
 Jud. ubi supra. 
 
 NO AWARD. The name of a plea to an 
 action or award. 2 Ala. 520; 1 N. Chip. 
 (Vt.) 131; 3 Johns. (N. Y.) 367. 
 
 NO BILL. Words frequently indorsed on 
 a bill of indictment by the grand jury when 
 they have not sufficient cause for finding a 
 true bill. They are equivalent to "Not 
 found," or "Ignoramus" (g. v.) 2 Nott & 
 McC. (S. C.) 558-. 
 
 NOBILE OFFICIUM. In Scotch law. An 
 «quitable power of the court of sessions, by 
 which it is able, to a certain extent, to give 
 relief when none is possible at law. Stair, 
 Inst. bk. 4, tit. 3, § 1; Ersk. Inst. 1. 3, 22; 
 Bell, Diet. 
 
 NOBILES MAGIS PLECTUNTUR PECU- 
 nia; plebes vero in corporo. The higher 
 •classes are more punished in money; but the 
 lower in person. 3 Inst. 220. ■ 
 
 NOBILES SUNT QUI AI^MA GENTILITIA 
 antecessorum suorum proferre possunt. The 
 gentry are those who are able to produce 
 armorial bearings derived by descent from 
 their own ancestors. 2 Inst. 595. 
 
 NOBILIORES ET BENIGNIORES PRE- 
 sumptlones in dubiis sunt praeferendae. 
 When doubts arise, the most generous and 
 benign presumptions are to be preferred. 
 Reg. Jur. 
 
 NOBILITAS EST DUPLEX,— SUPERIOR 
 €t inferior. There are two sorts of nobili- 
 ty, — the higher and the lower. 2 Inst. 583. 
 
 NOBILITY. A division of the civil state, 
 comprising persons exalted to some title or 
 •dignity. It is the opposite of "commonalty," 
 and in England includes dukes, marquises, 
 «arls, viscounts, and barons. 1 Bl. Comm. 
 396. 
 
 NOCENT (from Lat. "nocere"). Guilty. 
 "The nocent person." 1 Vern. 429. 
 
 NOCTANTER. By night. An abolished 
 writ which issued out of chancery, and re- 
 turned to the queen's bench, for the prostra- 
 tion of inclosures, etc. 
 
 NOCTES and NOCTEM DE FIRMA. En- 
 tertainment of meat and drink for so many 
 nights. Domesday Book. 
 
 NOCUMENTUM (Lat. harm, nuisance). In 
 old English law. A thing done whereby an- 
 other man is annoyed in his free lands or 
 ' tenements. ' Also, the assize or writ lying 
 tor the same. Fitzh. Nat. Brev. 183; Old 
 Nat. Brev. 108, 109. Manw. For. Laws, c. 17, 
 divides nocumentum into generate, com- 
 mune, speciale. Reg. Grig. 197, 199; Coke, 
 Will Case. Nocumentum was also divided 
 into damnosum, for which no action lay, it 
 being done by an irresponsible agent, and 
 injuriosum et damnosum, for which there 
 were several remedies. Bracton, 221; Fleta, 
 lib. 4, c. 26, § 2. 
 
 NOLENS VOLENS (Lat.) Whether willing 
 or unwilling. 
 
 NOLlSSEIVlENT(Fr.frommo»6). In French 
 marine law. Affreightment. Ord. Mar. liv. 
 3, tit. 1. 
 
 NOLLE (Lat.) To be unwilling; to will 
 not do a thing; to refuse to do a thing. 
 Used, In the civil law, to denote a voluntary 
 act under full knowledge. Calv. Lex. A 
 distinction was made between nolle and non 
 velle. Id. Ejus est nolle, qui potest velle (q. 
 
 V.) 
 
 NOLLE PROSEQUI. In practice. An en- 
 try made on the record, by which the prose- 
 cutor or plaintiff declares that he will pro- 
 ceed no further. It was formerly used in 
 both civil and criminal proceedings, but in 
 the former is now superseded by the practice 
 of discontinuance. 
 
 NOLO CONTENDERE. I will not con- 
 tend. A plea to an indictment on which the 
 defendant might be sentenced, but which did 
 not estop him in a civil proceeding for the 
 same cause. 
 
 NOMEN (Lat.) 
 
 In CIvilLaw. A name of a person or 
 
 thing. In a stricter sense, the name which 
 declared the gens or family, as, Porcius, 
 Cornelius; the cognomen being the name 
 which marked the individual, as, Cato, Mar- 
 cus; agnomen, a name added to the cogno- 
 men for the purpose of description. The 
 name of the person himself; e. g., nomen 
 curiis addere. The name denoting the con- 
 dition of a person or class; e. g., nomen libe- 
 rorum, condition of children. Cause or rea- 
 son (pro causa aut ratione); e. g., nomine 
 culpae, by reason of fault. A mark or sign 
 of anything, corporeal or incorporeal. No- 
 men nKiirenniiii, i. c, God. Debt, or obliga- 
 tion of debt; a debtor. See Vicat; Calv. Lex. 
 
 In Old English Law. A name; the 
 
 Christian name, e. g., John, as distinguished 
 from the family name. It is also called 
 praenomen. Fleta, lib. 4, c. 10, §§ 7, 9; Law 
 Fr. & Lat. Diet. 
 
 In Scotch Law. Nomen deMti, right to 
 
 payment of a debt. 
 
 NOMEN COLLECTIVUM (Lat.) A word 
 in the singular number, which is to be un- 
 derstood in the plural in certain cases. 
 
 Misdemeanor, for example, is a word of 
 this kind, and when in the singular may be 
 taken as nomen collectivum, and including 
 several offenses. 2' Barn. & Adol. 75. "Heir," 
 in the singular, sometimes includes all the 
 heirs. "Felony" is not such a term. 
 
 NOMEN EST QUASI REI NOTAMEN. A 
 
 name is, as it were, the note of a thing. 11 
 Coke, 20. 
 
 NOMEN GENERALE (Lat.) A general 
 name; the name of a genus. Fleta, lib. 4, 
 c. 19, § 1. 
 
 NOMEN GENERALISSIMUM (Lat.) A 
 most universal or comprehensive term; e. g., 
 
NOMEN JURIS 
 
 (628) 
 
 NOMOGRAPHY 
 
 land. 2 Bl. Comm. 19; 3 Bl. Comm. 172; 
 Taylor. So, "goods." 2 Williams, Ex'rs, 1014. 
 
 NOMEN JURIS. A name of the law; a le- 
 gal name or designation; a technical legal 
 term. 2 Swinton, 429. 
 
 NOMEN NON SUFFICIT SI RES NON 
 sit de jure aut de facto. A name does not 
 suffice if the thing do not exist hy law or by 
 fact. 4 Coke, 107. 
 
 NOMINA SI NESCIS PERIT COGNITIO 
 rerum. If you know not the names of things, 
 the knowledge of things themselves perishes. 
 Co. Litt. 86. 
 
 NOMINA SUNT MUTABILIA, RES AU- 
 tem immobiles. Names are mutable, but 
 things immutable. 6 Coke, 66. 
 
 NOMINA SUNT NOTAE RERUM. Names 
 are the notes of things. 11 Coke, 20. 
 
 NOMINA SUNT SYMBOLA RERUM. 
 
 Names are the symbols of things. 
 
 NOMINA VILLARUM (Lat.) Names of 
 the villages. The name of a return made by 
 the sheriffs of England into the exchequer, 
 in the reign of Edward II. of the names of 
 all the villages and their possessors in every 
 county. Cowell; Blount. 
 
 NOMINAL. Existing in name only; for- 
 mal, and not substantial. 
 
 NOMINAL DAMAGES. In practice. A 
 trifling sum awarded where a breach of duty 
 or an infraction of the plaintiff's right is 
 shown, but no serious loss is proved to have 
 been sustained. See "Injuria Absque Dam- 
 no." 
 
 NOMINAL PARTNER. One who is ap- 
 parently or ostensibly a member of a firm, 
 but who is not really so. 
 
 The term "ostensible partner" has been 
 used in the sense of nominal partner (67 
 Tex. 383), but it is better to confine the term 
 "ostensible partner" to one who is really a 
 partner, and known as such, and apply 
 "nominal partner" to one who is not really 
 a partner, but only apparently so. 
 
 NOMINAL PLAINTIFF. One who is nam- 
 ed as the plaintiff in an action, but who has 
 no interest in it, having assigned the cause 
 or right of action to another, for whose use 
 it is brought. 
 
 NOMINARE (Lat. from raoTOera, name). To 
 name; to nominate; to appoint. Calv. Lex. 
 
 NOMINATE. To appoint. Applied in this 
 sense to the designation by a person of one 
 to act as fiduciary or personal representa- 
 tive. Thus it Is the customary term in 
 designating the executor by a testator. 
 
 To make a candidate for election. See 
 "Candidate." 
 
 NOMINATE CONTRACT. A contract dis- 
 tinguished by a particular name, the use of 
 which name determines the rights of all the 
 parties to the contract; as, purchase and 
 
 sale, hiring, partnership, loan for' use, de- 
 posit, and the like. The law thus super- 
 sedes the necessity for special stipulations, 
 and creates an obligation in the one party 
 to perform, and a right in the other to de- 
 mand, whatever is necessary to the explica- 
 tion of that contract. In Roman law there 
 were twelve nominate contracts, with a par- 
 ticular action for each. Bell, Diet. "Nomi- 
 nate and Innominate;" Mackeld. Civ. Law 
 §§ 395, 408; Dig. 2, 14. 7. 1. 
 
 NOMINATING AND REDUCING. A mode 
 of obtaining a panel of special jurors in 
 England, from which to select the jury to 
 try a particular action. The proceeding 
 takes place before the under sheriff or sec- 
 ondary, and in the presence of the parties' 
 solicitors. Numbers denoting the persons 
 on the sheriff's list are put into a box and 
 drawn until forty-eight unchallenged per- 
 sons have been nominated. Each party 
 strikes off twelve, and the remaining twen 
 ty-four are returned as the "panel" (q. v.) 
 This practice is now only employed by order 
 of the court or judge. Smith, Actions, 130; 
 Juries Act 1870, § 17; Rapalje & L. 
 
 NOMINATIVUS PENDENS (Lat.) Anom- 
 inative case grammatically unconnected with 
 the rest of the sentence in which it stands. 
 The opening words in the ordinary form of 
 a deed inter partes, "This indenture," etc., 
 down to "whereas," though an intelligible 
 and convenient part of the deed, are of this 
 kind. Wharton. 
 
 NOMINE POENAE (Lat. in the nature of 
 a penalty). 
 
 In Civil Law. A condition annexed to 
 
 heirship by the will of the deceased person. 
 Domat, Civ. Law; Halifax, Anal. 
 
 At Common Law. A penalty fixed by 
 
 covenant in a lease for nonperformance of 
 its conditions. 2 Lilly, Abr. 221. 
 
 It is usually a gross sum of money, though 
 it may be anything else, appointed to be 
 paid by the tenant to the reversioner, if the 
 duties are in arrear, in addition to the du- 
 ties themselves. Hammond, N. P. 411, 412. 
 
 NOMINEE. One who has been nominated. 
 See "Nominate." 
 
 NOMOCANON. 
 
 (1) A collection of canons and imperial 
 laws relative or conformable thereto. The 
 first nomocanon was made by Johannes Scho- 
 lasticus in 554. Photius, patriarch of Con- 
 stantinople, in 883, compiled another nomo- 
 canon, or collation of the civil laws with the 
 canons; this is the most celebrated. Bal- 
 samon wrote a commentary upon it in 1180. 
 
 (2) A collection of the ancient canons of 
 the apostles, councils, and fathers, without 
 any regard to imperial constitutions. Such 
 is the nomocanon by M. Cotelier. Enc. Lond. 
 
 NOMOGRAPHER. One who writes on the 
 subject of laws. 
 
 NOMOGRAPHY. 
 
 tion of laws. 
 
 A treatise or descrlp- 
 
NOMOTHETA 
 
 (629) 
 
 NON DAMNIFICATUS 
 
 NOMOTHETA. A lawgiver; such as So- 
 lon and Lycurgus among the Greeks, and 
 Caesar, Pompey, and Sylla among the Ro- 
 mans. Calv. Lex. 
 
 NON (Lat.) Not; no. 
 
 NON ACCEPTAVIT (Lat. he did not ac- 
 cept). In pleading. The name of a plea to 
 an action of assumpsit brought against the 
 drawee of a bill of exchange upon a supposed 
 acceptance by him. See 4 Man. & G. 561. 
 
 NON ACCIPI DEBENT VERBA IN DEM- 
 onstratlonem falsam, quae competunt In iim- 
 itatlonem veram. Words ought not to be ac- 
 cepted to import a false description, which 
 may have eilect by way of true limitation. 
 Bac. Max. reg. 13; 2 Pars. Cont. 62-65; 
 Broom. Leg. Max. (3d London Ed.) 573; 3 
 Barn. & Adol. 459; 4 Bxch. 604; 3 Taunt. 147. 
 
 NON ALIO MODO PUNIATUR ALIQUIS, 
 quam secundum quod se habet condemnatio. 
 A person may not be punished differently 
 than according to what the sentence enjoins. 
 3 Inst. 217. 
 
 NON ALITER A SIGNIFICATIONE VER- 
 borum recedi oportet quam cum manlfestum 
 est, allud senslsse testatorem. We must 
 never depart from the signification of words, 
 unless it is evident that they are not con 
 formable to the will of the testator. Dig. 
 32. 69. pr.; Broom. Leg. Max. (3d London Ed.) 
 500; 2 De Gex., M. & ^. 313. 
 
 NON ASSUMPSIT (Lat. he did not under- 
 take). In pleading. The general Issue in 
 an action of assidiipsit. 
 
 Its form is: "And the said C. D., by E. P., 
 his attorney, comes and defends the wrong 
 and injury, when, etc., and says that he did 
 not undertake or promise, in manner and 
 form as the said A. B. hath above complain- 
 ed. And of this he puts himself upon the 
 country." 
 
 NON ASSUMPSIT INFRA SEX ANNOS. 
 (Lat. he has not undertaken within six 
 years). In pleading. The plea by which, 
 when pleadings were In Latin, the defendant 
 alleged that the obligation was not under- 
 taken and the right of action had not ac- 
 crued within six years, the period of limita- 
 tion of the right to bring suit. 
 
 NON AUDITUR PERIRE VOLENS. One 
 
 who wishes to perish ought not to be heard. 
 Best, Ev. § 385. 
 
 NON BIS IN IDEM. In civil law. A phrase 
 which signifies that no one shall be twice 
 tried for the same oifense; that is, that when 
 a party accused has been once tried by a 
 tribunal In the last resort, and either con- 
 victed or acquitted, he shall not again be 
 tried. Code, 9. 2. 9. 11; Merlin, Repert. See 
 ■"Jeopardy." 
 
 NON CEPIT MODO ET FORMA (Lat. he 
 ■did not take in manner and form). In 
 pleading. The plea which raises the gen- 
 eral issue in an action of replevin. 
 
 Its form is: "And the said C. D., by E. 
 P., his attorney, comes and defends the 
 wrong and injury, when, etc., and says that 
 he did not take the said cattle (or, goods 
 and chattels, according to the subject of the 
 action) in the said declaration mentioned, 
 or any of them, in manner and form as the 
 said A. B. hath above complained. And of 
 this the said C. D. puts himself upon the 
 country." 
 
 It denies the taking the things, and hav- 
 ing them in the place specified in the declara- 
 tion, both of which are material in this ac- 
 tion. Steph. PI. 183, 184; 1 Chit. PI. 490. 
 
 NON COMPOS MENTIS ( Lat. not of sound 
 mind, memory, or understanding). A gener- 
 ic term, including all the species of mad- 
 ness, whether it arise from idiocy, sick- 
 ness, lunacy, or drunkenness. Co. Lltt. 247; 
 
 4 Coke, 124; 1 Phil. 100; 4 Comyn, Dig. 613; 
 
 5 Comyn, Dig. 186; Shelf. Lun. 1. See "Id- 
 iocy;" "Insanity." 
 
 NON CONCEDANTUR CITATIONES PRI- 
 usquam exprlmatur super qua re fieri decet 
 citatio. Summonses or citations should not 
 be granted before it is expressed upon what 
 ground a citation ought to be issued. 12 
 Coke, 47. 
 
 NON CONCESSIT (Lat. he did not grant). 
 In English law. The name of a plea by 
 which the defendant denies that the crown 
 granted to the plaintiff by letters patent the 
 rights which he claims as a concession from 
 the king; as, for example, when a plaintiff 
 sues another for the infringement of his 
 patent right, the defendant may deny that 
 the crown has granted him such a right. 
 
 It does not deny the grant of a patent, but 
 of the patent as described in the plaintiff's 
 declaration. 3 Burrows, 1544; 6 Coke, 15b. 
 
 NON CONSENTIT QUI ERRAT. He who 
 errs does not consent. 1 Bouv. Inst, note 
 581; Bracton, 44. 
 
 NON CONSTAT (Lat. it does not appear). 
 Words frequently used, particularly in argu- 
 ment, to express dissatisfaction with the 
 Conclusions of the other party; as, it was 
 moved in arrest of judgment that the decla- 
 ration was not good, because non constat 
 whether A. B. was seventeen years of age 
 when the action was commenced. Swinb. 
 pt. 4, § 22, p. 331. 
 
 NON CULPABILIS (Lat.) In pleading. 
 Not guilty. It is usually abbreviated non 
 cut. 16 Viner, Abr. 1; 2 Gabbett, Crim. Law, 
 317. 
 
 NON DAMNIFICATUS (Lat. not injured). 
 In pleading. A plea to an action of debt on 
 a bond of indemnity, by which the defend- 
 ant asserts that the plaintiff has received 
 no damage. 1 Bos. & P. 640, note (a); 1 
 Taunt. 428; 1 Saund. 116, note 1; 2 Saund. 
 81; 7 Wentw. PI. 615, 616; 1 H. Bl. 253; 2 
 Lilly, Abr. 224; 14 Johns. (N. Y.),177; 5 
 Johns. (N. Y.) 42; 20 Johns. (N. Y.) 153; 3 
 Cow. (N. Y.) 313; 10 Wheat. (U. S.) 396, 
 405; 3 Halst. (N. J.) 1. 
 
NON DAT QUI NON HABET 
 
 (630) 
 
 NON EST FACTUM 
 
 NON DAT QUI NON HABET. He gives 
 nothing who has nothing. Broom, Leg. Max. 
 (3d London Ed.) 417. 
 
 NON DEBEO MELIORIS CONDITIONIS 
 esse, quam auctor mens a quo jus in me tran- 
 sit. I ought not to be in better condition 
 than he to whose rights I succeed. Dig. 50. 
 17. 175. 1. 
 
 NON DEBET ADDUCI EXCEPTIO EJUS 
 rei cujus petitur dissolutio. A plea of the 
 same matter the dissolution of which is 
 sought ought not to be made. Bac. Max. 
 rag. 2; Broom, Leg. Max. (3d London Ed.) 
 157; 3 P. Wms. 317; 1 Ld. Raym. 57; 2 Ld. 
 Raym. 1433. 
 
 NON DEBET ALII NOCERE, QUOD IN- 
 ter alios actum est. A person ought not to 
 be prejudiced by what has been done be- 
 tween others. Dig. 12. 2. 10. 
 
 NON DEBET ALTERI PER ALTERUIVI 
 intqua conditio infepri. A burdensome con- 
 dition ought not to be brought upon one man 
 by the act of another. Dig. 50. 17. 74. 
 
 NON DEBET, GUI PLUS LICET, QUOD 
 
 minus est, non licere. He who is permitted 
 to do the greater may with greater reason 
 do the less. Dig. 50. 17. 21; Broom, Leg. 
 Max. (3d London Ed.) 165. 
 
 NON DEBET DICI TENDERE IN PRAE- 
 judicium ecciesiasticae liberatatis quod pro 
 rege et republica necessarium videtur. That 
 which seems necessary for the king and the 
 state ought not to be said to tend to the 
 prejudice of spiritual liberty. 2 Inst. 625. 
 
 NON DEBIT ACTORI LICERE, QUOD 
 
 reo non permittitur. That which is not per- 
 mitted to the defendant ought not to be to 
 the plaintiff. Dig. 50. 17. 41. 
 
 NON DECET HOIVIINES DEDERE CAUSA 
 non cognita. It is unbecoming to surrender 
 men when no cause is shown. 4 Johns. Ch. 
 (N. Y.) 106, 114; 3 Wheeler, Cr. R. (N. Y.) 
 473, 482'. 
 
 NON DECIPiTUR QUI SCIT SE DECIPI. 
 
 He is not deceived who knows himself to be 
 deceived. 5 Coke, 60. 
 
 NON DEDIT. In pleading. The general is- 
 sue in formedon. See "Ne Dona Pas, non 
 Debit." 
 
 NON DEFINITUR IN JURE QUID SIT 
 conatus. What an attempt is, is not defined 
 in law. 6 Coke. 42. 
 
 NON DEMISIT (Lat. he did not demise). 
 In pleading. A plea proper to be pleaded to 
 an action of debt for rent, when the plaintiff 
 declares on a parol lease. Gilb. Debt, 436, 
 438; Buller, N. P. 177; 1 Chit. PI. 477. 
 
 It cannot be pleaded when the demise is 
 stated to have been by indenture. 12 Viner, 
 Abr. 178; Comyn, Dig. "Pleader" (2 W 48). 
 
 NON DETINET (Lat. he does not detain). 
 In pleading. The general issue in an action 
 of detinue. Its form is as follows: "And 
 
 the said C. D., by E. P., his attorney, comes 
 and defends the wrong and injury, when, 
 etc., and says that he does not detain the 
 said goods and chattels (or "deeds and writ- 
 ings," according to the subject of the ac- 
 tion) in the said declaration specified, or 
 any part thereof, in manner and form as the 
 said A. B. hath above complained. And of 
 this the said C. D. puts himself upon the 
 country." 
 
 NON DIFFERUNT QUAE CONCORDANT 
 re, tametsi non in verbis iisdem. Those- 
 things which agree in substance, though not 
 in the same words, do not differ. Jenk. 
 Cent. Cas. 70. 
 
 NON DUBITATUR, ETSI SPECIALITER 
 venditor evictionem non promiserit, re evic- 
 ta, ex empto competere actionem. It is cer- 
 tain that, although the vendor has not given 
 a special guaranty, an action ex empto lies 
 against him, if the purchaser is evicted. 
 Code, 8. 45. 6. But see Doctor & Stud. bk. 
 2, c. 47; Broom, Leg. Max. (3d London Ed.) 
 690. 
 
 NON EFFICIT AFFECTUS NISI SEQUA- 
 tur effectus. The intention amounts to noth- 
 ing unless some effect follows. 1 Rolle, 226. 
 
 NON ERIT ALIA LEX ROIVIAE, ALIA 
 Atliaenis; alia nunc, alia posthac; sed et 
 omnes gentes, et omni tempore, una lex, et 
 sempiterna, et immortalis continebit. There- 
 will not be one law at Rome, another at 
 Athens; one law now, another hereafter; 
 but one eternal and immortal law shall bind 
 together all nations throughout all time. 
 Cicero, Prag. de Repub. lib. 3; 3 Kent, 
 Comm. 1. 
 
 NON EST ARCTIUS VINCULUIVI INTER 
 homines quam jusjurandum. There is no- 
 stronger link among men than an oath. 
 Jenk. Cent. Cas. 126. 
 
 NON EST CERTANDUM DE REGULIS 
 juris. There is no disputing about rules of 
 law. 
 
 NON EST CONSONUIVl RATIONI, QUOD 
 cognitio accessorii in curia christianitatis 
 impediatur, ubi cognitio causae principalis ad 
 forum ecclesiasticum noscitur pertinere. It 
 is unreasonable that the cognizance of an 
 accessory matter should be impeded in an 
 ecclesiastical court, when the cognizance of 
 the principal cause is admitted to appertain 
 to an ecclesiastical court. 12 Coke, 65. 
 
 NON EST DISPUTANDUIVl CONTRA 
 principia negantem. There is no disputing 
 against a man denying principles. Co. Litt. 
 343. 
 
 NON EST FACTUM (Lat is not his deed).. 
 In pleading. A plea to an action of debt on 
 a bond or other specialty. 
 
 Its form is: "And the said C. D., by E. 
 P., his attorney, comes and defends the- 
 wrong and injury, when, etc., and says that 
 the said supposed writing obligatory (or 
 "indenture," or "articles of agreement," ac- 
 
NON EST INVENTUS 
 
 (631) 
 
 NON LIQUET 
 
 cording to the subject of the action) is not 
 his deed. And of this he puts himself upon 
 the country." 6 Rand. (Va.) 86; 1 Litt. 
 (Ky.) 158. 
 
 NON EST 'INVENTUS (Lat. I have not 
 found him). In practice. The sheriff's re- 
 turn to a writ requiring him to arrest the 
 person of the defendant, which signifies that 
 he is not to be found within his jurisdiction. 
 The return is usually abbreviated N. E. I. 
 Chit. Prac. 
 
 NON EST JUSTUM ALIQUEM ANTENA- 
 tum post mortem facere bastardum, qui toto 
 tempore vitae suae pro legitlmo habebatur. 
 It is not just to make an elder born a bas- 
 tard after his death, who during his lifetime 
 was accounted legitimate. 12 Coke, 44. 
 
 NON EST NOVUM UT PRIORES LEGIS 
 ad posteriores trahantur. It is not a new 
 thing that prior statutes shall give place to 
 later ones. Dig. 1. 3. 26; Id. 1. 1. 4; Broom, 
 Leg. Max. (3d London Ed.) 27. 
 
 NON EST RECEDENDUM A COMMUNI 
 observanti. There should be no departure 
 from a common observance. 2 Coke, 74. 
 
 NON EST REGULA QUIN FALLAT. 
 
 There is no rule but what may fail. Olf. 
 Exec. 212. 
 
 NON EST SINGULIS CONCEDENDUM, 
 quod per magistratum publice possit fieri, ne 
 occasio sit majoris tumultus faciendi. That 
 is not to be conceded to private persons 
 which can be publicly done by the magis- 
 trate, lest it be the occasion of greater tu- 
 mults. Dig. 50. 17. 176. 
 
 NON EX OPINIONIBUS SINGULORUIVI, 
 sed ex communi usu, nomina exaudiri de- 
 bent. Names of things ought to be under- 
 stood according to common usage, not ac- 
 cording to the opinions of individuals. Dig. 
 33. 10. 7. 2. 
 
 NON FACIAS IVIALUIVl, UT INDE VE- 
 niat bonum. You are not to do evil that 
 good may come of it. 11 Coke, 74a. 
 
 NON FECIT (Lat. he did not make it). 
 The name of a plea, for example, in an ac- 
 tion of assumpsit on a promissory note. 3 
 Man. & G. 446. 
 
 NON FECIT VASTUM CONTRA PROHI- 
 bitionem (Lat. he did not commit waste 
 against the prohibition). In pleading. The 
 name of a plea to an action founded on a 
 writ of estrepement, that the defendant did 
 not commit waste contrary to the prohibi- 
 tion. 3 Bl. Comm. 226, 227. 
 
 NON IMPEDIT CLAUSULA DEROGATO- 
 ria, quo minus ab eadem potestate res dis- 
 solvantur a quibus constltuuntur. A deroga- 
 tory clause does not prevent things or acts 
 from being dissolved by the same power by 
 which they were originally made. Bac. Max. 
 reg. 19. 
 
 NON IMPEDIVIT (Lat. he did not im- 
 
 pede). In pleading. The plea of the gener- 
 al issue in quare impedit. 3 Bl. Comm. 
 305; 3 Wooddeson, Lect. 36. In law French, 
 ne disturba pas. 
 
 NON IIVIPLACITANDO ALIQUEIVI DE 
 libero tenemento sine brevi. A writ to pro- 
 hibit bailiffs, etc., from distraining or im- 
 pleading any man touching his freehold 
 without the king's writ. Reg. Grig. 171. 
 
 NON IN LEGENDO SED IN INTELLl- 
 gendo leges consistunt. The laws consist 
 not in being read, but in being understood. 
 8 Coke, 167. 
 
 NON INFREGIT CONVENTIONEM (Lat. 
 he has not broken the covenant). In plead- 
 ing. A plea in an action of covenant. This 
 plea is not a general issue; it merely denies 
 that the defendant has broken the covenants 
 on which he is sued. It being in the nega^ 
 tive, it cannot be used where the breach is 
 also in the negative. Bac. Abr. "Covenant" 
 (L); 3 Lev. 19; 2 Taunt. 278; 1 Aik. (Vt.) 
 150; 4 Dall. (Pa.) 436; 7 Cow. (N. Y.) 71. 
 
 NON INTERFUI. I was riot present. A 
 reporter's note. T. Jones, 10. 
 
 NON INTROMITTANT CLAUSE. In Eng- 
 lish law. A clause of a charter of a munic- 
 ipal borough, whereby the borough is ex- 
 empted from the jurisdiction of the justices 
 of the peace for the county. 
 
 NON INTROMITTENDO, QUANDO BRE- 
 ve praecipe in capite subdole impetratur. A 
 writ addressed to the justices of the bench, 
 or in eyre, commanding them not to give one 
 who, under color of entitling the king to 
 land, etc., as holding of him in capite, had 
 deceitfully obtained the writ called "praecipe 
 in capite," any benefit thereof, but to put 
 him to his writ of right. Reg. Grig. 4. 
 
 NON JURIDICUS. Not judicial. See 
 "Dies Non." 
 
 NON JUS EX REGULA, SED REGULA 
 ex jure. The law does not arise from the 
 rule, or maxim, but the rule from the law. 
 Tray. Lat. Max. 384. 
 
 NON JUS, SED SEISINA FACIT STIPI- 
 
 tem. Not right, but seisin, makes a stock 
 from which the inheritance must descend. 
 Fleta, lib. 6, cc. 14, 2, § 2; Noy, Max. (9th 
 Ed.) 72, note (b) ; Broom, Leg. Max. (3d 
 London Ed.) 466; 2 Bl. Comm. 209; 1 Steph. 
 Comm. 365, 368, 394; 4 Kent, Comm. 388, 
 389; 4 Scott, N. R. 468. 
 
 NON LICET QUOD DISPENDIO LICET. 
 
 That which is permitted only at a loss is not 
 permitted to be done. Co. Litt. 127. 
 
 NON LIQUET (Lat. it is not clear). In 
 civil law. Words by which the judges {in- 
 dices) in a Roman trial were accustomed to 
 free themselves from the necessity of de- 
 ciding a cause when the rights of the par- 
 ties were doubtful. On the tablets which 
 were given to the judges wherewith to in- 
 
NON MERCHANDIZANDA, ETC. (632) 
 
 NON PROS 
 
 dlcate their judgment, was written "N. L." 
 Vlcat. 
 
 , NON MERCHANDIZANDA VICTUALIA. 
 An ancient writ addressed to justices of as- 
 size, to Inquire whether the magistrates of 
 a town sold victuals In gross or by retsiil 
 during the time of their being in office, 
 which was contrary to an obsolete statute; 
 and to punish them if they did. Reg. Orlg. 
 184. 
 
 NON MOLESTANDO. A writ that lay for 
 a person who was molested contrary to the 
 king's protection granted to him. Reg. Orig. 
 184. 
 
 NON NASCI, ET NATUM MORI, PARIA 
 sunt. Not to be born, and to be dead born, 
 are the same. 
 
 NON OBLIGAT LEX NISI PROMUL- 
 gata. A law is not obligatory unless it be 
 promulgated. 
 
 NON OBSERVATA FORMA, INFERTUR 
 adnullatio actus. When the form Is not ob- 
 served, it is inferred that the act is annulled. 
 12 Coke, 7. 
 
 NON OBSTANTE. In English law. These 
 words, which literally signify "notwith- 
 standing," are used to express the act of the 
 English king by which he dispenses with the 
 law, that is, authorizes its violation. 
 
 He cannot by his license or dispensation 
 make an offense dispunishable which is ma- 
 lum in se; but in certain matters which are 
 m.ala prohi'bita he may, to certain persons 
 and on special occasions, grant a non ob- 
 stante. Vaughan, 330-359; Lev., 217; Sid. 6, 
 7; 12 Coke, 18; Bac. Abr, "Prerogative" (D 
 7). See "Judgment." 
 
 NON OBSTANTE VEREDICTO. Notwith- 
 standing the verdict. See "Judgment." 
 
 NON OFFICIT CONATUS NISI SEQUA- 
 tur effectus. An attempt does not harm un- 
 less a consequence follow. 11 Coke, 98. 
 
 NON OMITTAS (Lat. more fully, non 
 omittas propter Ubertatem, do not omit on 
 account of the liberty or franchise). In 
 practice. A writ which lies when the sheriff 
 returns on writ to him directed, that he hath 
 sent to the bailiff of such a franchise, which 
 hath return of writs, and he hath not served 
 the writ; then the plaintiff shall have this 
 writ directed to the sheriff, that he "omit 
 not on account of any franchise," but him- 
 self enter into the franchise, and execute the 
 king's writ. Termes de la Ley. 
 
 This clause is now usually inserted in all 
 processes addressed to sheriffs. Wharton; 2 
 Wm. IV. c. 39; 3 Chit. St., 494; 3 Chit. Prac. 
 190, 310. 
 
 NON OMNE DAMNUM INDUCIT INJU- 
 riam. Not every loss produces an injury, i. 
 c, gives a right of action. See 3 Bl. Comm. 
 219; 1 Smith. Lead. Cas. 131; Broom, Leg. 
 Max. 93; 2 Bouv. Inst, note 2211. 
 
 NON OMNE QUOD LICET HONESTUM 
 
 est. It Is not everything which is permitted 
 that is honorable. Dig. 50. 17. 144. 
 
 NON OMNIUM QUAE A MAJORIBUS 
 nostrls constltuta sunt ratio redd! potest. A 
 reason cannot always be given for the in- 
 stitutions of our ancestors. 4 Coke, 78; 
 Broom, Leg. Max. (3d London Ed.) 149; 
 Branch, Princ. 
 
 NON PERTINET AD JUDICEM SECU- 
 larem cognoscere de lis quae sunt mere spir- 
 Itualla annexa. It belongs not to the secu- 
 lar judge to take cognizance of things which 
 are merely spiritual. 2 Inst. 488. 
 
 NON PONENDIS IN ASSISIS ET JURA- 
 tis. A writ formerly granted for freeing and 
 discharging persons from serving on assizes 
 and juries. Pitzh. Nat. Brev. 165. 
 
 NON POSSESSORI INCUMBIT NECES- 
 sitas proband! possessiones ad se pertinere. 
 It is not incumbent on the possessor of prop- 
 erty to prove his right to his possessions. 
 Code, 4. 19. 2; Broom, Leg. Max. (3d Lon- 
 don Ed.) 639. 
 
 NON POTEST ADDUCI EXCEPTIO 
 ejusdem rei cujus petitur dissolutlo. A plea 
 of the same matter, the dissolution of which 
 is sought by the action, cannot be brought 
 forward. Bac. Max. reg. 2. When an ac- 
 tion is brought to annul a proceeding, the 
 defendant cannot plead such proceeding in 
 bar. Broom, Leg. Max. (3d London Ed.) 
 154; Wingate, Max. 647; 3 P. Wms. 317." 
 
 NON POTEST PROBARI QUOD PROBA- 
 tum non re(evat. That cannot be proved 
 which, proved, is irrelevant. See 1 Exch. 
 91, 92. 102. 
 
 NON POTEST QUIS SINE BREVI 
 
 agere. No one can sue without a writ. Ple- 
 ta, lib. 2, c. 13, § 4. 
 
 NON POTEST REX GRATIAM FACERE 
 cum Injuria et damno aiiorum. The king 
 cannot confer a favor which occasions In- 
 jury and loss to others. 3 Inst. 236; Broom, 
 Leg. Max. (3d London Ed.) 60; Vaughan, 
 338; 2 Bl. & BI. 874. 
 
 NON POTEST REX SUBDITUM RENI- 
 
 tentem onerare impositionibus. The king 
 cannot load a subject with imposition against 
 his consent. 2 Inst. 61. 
 
 NON POTEST VIDERI PESISSE HA- 
 
 bere, qui nunquam habuit. He cannot be 
 considered as having ceased to have a thing, 
 who never had it. Dig. 50. 17. 208. 
 
 NON PRAESTAT IMPEDIMENTUM 
 quod de jure non sortitur effectum. A thing 
 which has no effect in law is not an impedi- 
 ment. Jenk. Cent. Cas. 162; Wingate, Max. 
 
 727. 
 
 NON PROS. An abbreviation of non pro- 
 sequitur, he does not pursue. Where the 
 plaintiff, at any stage of the proceedings, 
 falls to prosecute his action, or any part of 
 
NON QUOD DICTUM, ETC. 
 
 (633) 
 
 NON VERBIS SED, ETC. 
 
 it, in due time, the defendant enters non 
 prosequitur, and signs final judgment, and 
 obtains costs against ttie plaintiff, wlio is 
 said to be non pros'd. 2 Archb. Prac. (Chit. 
 Ed.) 1409; 3 Bl. Comm. 296; 1 Tidd, Prac. 
 458; Graham, Prac. 763; 3 Chit. Prac. 10; 1 
 Penn. Prac. 84; Gaines, Prac. 102. The name 
 non pros, is applied to the judgment so ren- 
 dered against the plaintiff. 1 Sellon, Prac, 
 and authorities above cited. 
 
 NON QUOD DICTUM EST, SED QUOD 
 factum est, inspicitur. Not what is said, but 
 what is done, is to be regarded. Co. Lltt. 
 36; 6 Bing. 310; 1 Mete. (Mass.) 353; 11 
 Gush. (Mass.) 536. 
 
 NON REFERT AN QUIS ASSENSUM 
 suum praefert verbis, an rebus ipsis et fac- 
 tis. It is immaterial whether a man gives 
 his assent by words or by acts and deeds. 
 10 Coke. 52. 
 
 NON REFERT QUID EX AEQUIPOL- 
 lentlbus fiat. It matters not what becomes 
 of equipollent expressions. 5 Coke, 122. 
 
 NON REFERT QUID NOTUIV1 SIT JUDI- 
 ci, si notum non sit in forma judicii. It mat- 
 ters not what is known to the judge, if it is 
 not known to him judicially. 3 Bulst. 115. 
 
 NON REFERT VERBIS AN FACTIS FIT 
 revocatio. It matters not whether a revoca- 
 tion be by words or by acts. Cro. Gar. 49; 
 Branch, Princ. 
 
 NON REMOTA CAUSA SED PROXIIVIA 
 spectatur. See "Causa Proxima, etc." 
 
 NON RESPONDEBIT MINOR, NISI IN 
 causa dotis, et hoc pro favore doti. A minor 
 shall not answer unless in a case of dower, 
 and this in favor of dower. 4 Coke, 71. 
 
 NON REUS NISI MENS SIT REA. Not 
 guilty unless the intent be guilty. 1 Story, 
 Gont. (4th Ed.) 87. 
 
 NON SANAE MENTIS (Lat.) Of unsound 
 mind. Pleta, lib. 6, c. 40, § 1. 
 
 NON SANE MEMORY. Unsound memory; 
 unsound mSnd. A term essentially law 
 French. See "Memory." 
 
 NON SEQUITUR (Lat.) It does not fol- 
 low. 
 
 NON SOLENT QUAE ABUNDANT VITI- 
 are scripturas. Surplusage does not usual- 
 ly vitiate writings. Dig. 50. 17. 94; Broom, 
 Leg. Max. (3d London Ed.) 559, note. 
 
 NON SOLUM QUID LICET, SED QUID 
 est conveniens considerandum, quia nihif 
 quod inconveniens est licitum. Not only 
 what is permitted, but what is convenient, is 
 to be considered, because what is incon- 
 venient is illegal. Co. Lift. 66a. 
 
 NON SOLVENDO PECUNIAM AD QUAM 
 clericus mulctatur pro non residentia. A 
 writ prohibiting an ordinary to take a pe- 
 cuniary mulct imposed on a clerk of the 
 sovereign for nonresidence. Reg. tVrits. 59. 
 
 NON SUBMISSIT (Lat.) The name of a 
 plea to an action of debt, or a bond to per- 
 form an award, by which the defendant 
 pleads that he did not submit Bac. Abr. 
 "Arbitration, etc." (G). 
 
 NON SUI JURIS (Lat.) The opposite of 
 
 sui juris (q. v.) 
 
 NON SUM INFORMATUS. See "Judg- 
 ment." 
 
 NON SUNT LONGA UBI NIHIL EST 
 quod demere possls. There is no prolixity 
 where there is nothing that can be omitted. 
 Vaughan, 138. 
 
 NON TEMERE CREDERE, EST NERVUS 
 sapientae. Not to believe rashly is the nerve 
 of wisdom. 5 Coke, 114. 
 
 NON TENENT INSIMUL (Lat. they do 
 not hold together). In pleading. A plea to 
 an action in partition, by which the defend- 
 ant denies that he holds the property which 
 is the subject of the suit, together with the 
 complainant or plaintiff. 
 
 NON TENUIT (Lat. he did not hold). In 
 pleading. The name of a plea in bar in re- 
 plevin, when the plaintiff has avowed for 
 rent arrear, by which the plaintiff avows 
 that he did not hold in manner and form as 
 the avowry alleges. 
 
 NON VALEBIT FELONIS GENERATIO, 
 nee ad haereditatem paternam vel mater- 
 nam; si autem ante feloniam generationem 
 fecerit, talis generatio succedit in haeredi- 
 tate patris vel matris a quo non fuerit fe- 
 lonia perpetrata. The offspring of a felon 
 cannot succeed either to a maternal or pater- 
 nal inheritance; but, if he had offspring be- 
 fore the felony, such offspring may succeed 
 as to the inheritance of the father or mother 
 by whom the felony was not committed. 3 
 Coke, 41. 
 
 NON VALENTIA AGERE (Law Lat.) In- 
 ability to sue. 5 Bell, App. Gas. 172. 
 
 NON VALET CONFIRMATIO, NISI ILLE, 
 qui confirmat, sit in possessione rei vel ju- 
 ris unde fieri debet confirmatio; et eodem 
 modo, nisi ille cui confirmatio fit sit in pos- 
 sessione. Confirmation is not valid unless 
 he who confirms is either in possession of 
 the thing itself, or of the right of which 
 confirmation is to be made, and, in like man- 
 ner, unless he to whom confirmation is made 
 is in possession. Go. Lift. 295. 
 
 NON VALET EXCEPTIO EJUSDEM REI 
 cujus petitur dissolutio. A plea of that of 
 which the dissolution is sought is not valid. 
 2 Eden, 134. 
 
 NON VALET IMPEDIMENTUM QUOD 
 de jure non sortitur affectum. An impedi- 
 ment is of no avail which by law has no ef- 
 fect. 4 Coke, 31a. 
 
 NON VERBIS SED IPSIS REBUS, LE- 
 ges imponimus. Not upon words, but upon 
 things themselves, do we impose law. Code, 
 6. 43. 2. 
 
NON VID 5NTUR, ETC. 
 
 (634) 
 
 NONSUIT 
 
 NON VIDENTUR QUI ERRANT CON- 
 sentire. He who errs is not considered as 
 consenting. Dig. 50. 17. 116; Broom, Leg. 
 Max. (3d London Ed.) 240; 3 Kent, Comm. 
 477; 14 Ga. 207. 
 
 NON VIDENTUR REM AMITTERE QUI- 
 bus propria non fuit. They are not consid- 
 ered as losing a thing whose own it was not. 
 Dig. 50. 1'7. 85. 
 
 NON VIDETUR CONSENSUM RETIN- 
 uisse si quis ex praescripto minantis aliquid 
 immutavit. He does not appear to have re- 
 tained his consent, who has changed any- 
 thing at the command of a party threaten- 
 ing. Bac. Max. reg. 22; Broom, Leg. Max. 
 (3d London Ed.) 254. 
 
 NON VIDETUR PERFECTE CUJUSQUE 
 id esse, quod ex casu auferri potest. That 
 does not truly belong to any one which can 
 be taken from him upon occasion. Dig. 50. 
 17. 159. 1. 
 
 NON VIDETUR QUISQUAIVl ID CAPERE, 
 quod ei necesse est alii restltuere. One is 
 
 not considered as acquiring property in a 
 thing which he is bound to restore. Die. 50 
 17. 51. 
 
 NON VIDETUR VIM FACERE, QUI 
 jure suo utitur, et ordinaria actione experi- 
 tur. He is not judged to use force who ex- 
 ercises his own right, and proceeds by ordi- 
 nary action. Dig. 50. 17. 155. 1. 
 
 NON VOLET CONFIRMATIO, NISI ILLE, 
 qui confirmat, sit in possessione rel vel juris 
 unde fieri debet confirmatio; et eodem mo- 
 do, nisi llle cui confirmatio fit, sit in posses- 
 sione. Confirmation is not valid unless he 
 who confirms Is either in possession of the 
 thing itself, or of the right of which con- 
 firmation is to be made, and, in like man- 
 ner, unless he to whom confirmation is made 
 is in possession. Co. Litt. 295. 
 
 NONACCESS. The nonexistence of sex- 
 ual intercourse between husband and wife is 
 generally expressed by the words "nonac- 
 cess of the husband to the wife;" which ex- 
 pressions, in a case of bastardy, are under- 
 stood to mean the same thing. 2 Starkie, 
 Bv. 218. note. See "Access." 
 
 NONAGE. By this term is understood 
 that period of life from the birth till the 
 arrival of twenty-one years. In another 
 sense, it means under the proper age to be of 
 ability to do a particular thing; as, when 
 nonage is applied to one under the age of 
 fourteen, who is unable to marry. See "Age." 
 
 NONAGIUM, or NONAGE. A ninth part of 
 movables which was paid to the clergy on 
 the death of persons in their parish, and 
 claimed on pretense of being distributed to 
 pious uses. Blount. 
 
 NONAPPARENT EASEMENT. A discon- 
 tinuous easement. See "Apparent Base- 
 ment." 
 
 NONCLAIM. An omission or neglect by 
 
 one entitled to make a demand within the 
 time limited by law; as, when a continual 
 claim ought to be made, a neglect to make 
 such claim within a year and a day. 
 
 NONCONFORMISTS. In English law. A 
 name given to certain dissenters from the, 
 rites and ceremonies of the church of Eng- 
 land. 
 
 NONCONTINUOUS EASEIVIENT. A non- 
 apparent or discontinuous easement. See 
 "Apparent Easement." 
 
 NONES. In the Roman calendar. The 
 fifth, and, in March, May, July, and October 
 the seventh, day of the month. So called be- 
 cause, counting inclusively, they were nine 
 days from the ides. Adams, Rom. Ant. 355, 
 357. See "Ides." 
 
 NONFEASANCE. The neglect or failure 
 of a person to do some act which he ought 
 to do. The term is not generally used to de- 
 note a breach of contract, but rather the fail- 
 ure to perform a duty towards the public 
 whereby some individual sustains special 
 damage, as where a sheriif fails to execute a 
 writ. 3 Bl. Comm. 165; Broom, Com. Law, 
 655. 
 
 When a legislative act requires a person 
 to do a thing, its nonfeasance will subject 
 the party to punishment; as, if a statute re- 
 quire the supervisors of the highways to re- 
 pair such highways, the neglect to repair 
 them may be punished. See 1 Russ. Crimes, 
 48. See, also, "Mandate." 
 
 NONISSUABLE PLEAS. Those upon 
 which a decision would not determine the 
 action upon the merits, as a plea in abate- 
 ment. 1 Chit. Archb. Prac. (12th Ed.) 249. 
 
 NONJOINDER. Omission of a necessary 
 or proper party. See "Joinder." 
 
 NONJURORS. In English law. Persons 
 who refuse to take the oaths, required by 
 law, to support the government. See 1 Dall. 
 (Pa.) 170. 
 
 NONPLEVIN. In old English law. A 
 neglect to replevin land taken into the 
 hands of the king upon default, within fif- 
 teen days, by which seisin was lost, as by 
 default. Heugh. de Magna Charta, c. 8. By 9 
 Edw. III. c. 2, no man shall lose his land by 
 nonplevin. 
 
 NONRESIDENCE. In ecclesiastical law. 
 The absence of spiritual per*)ns from their 
 benefices. 
 
 NONRESIDENTIO PRO CLERICO RE- 
 
 gis. A writ, addressed to a bishop, charg- 
 ing him not to molest a clerk employeij in 
 the royal service, by reason of his nonresi- 
 dence; in which case he is to be discharged. 
 Reg. Grig. 58. 
 
 NONSENSE. That which in a written 
 agreement or will is unintelligible. 
 
 NONSUIT. A judgment given against the 
 plaintiff when he is unable to prove his case. 
 
NONSUMMONS, ETC. 
 
 (635) 
 
 NOTA 
 
 or, when he neglects or refuses to proceed to 
 tTial, judgment of nonsuit dismisses the ac- 
 tion, hut does not determine the issues. 
 
 Voluntary nonsuit is an abandonment of 
 his cause by the plaintiff either before the 
 trial is commenced, or during the presenta- 
 tion of his case. 
 
 Involuntary nonsuit is judgment of non- 
 suit ordered by the court where plaintiff 
 fails to appear, or where he has given no 
 evidence on which a verdict in his favor 
 could be rendered. 
 
 NONSUMMONS, WAGER OF LAW OF. 
 
 The mode in which a tenant or defendant in 
 a real action pleaded, when the summons 
 which followed the original was not served 
 within the proper time. SI Eliz. c. 3, § 2; 
 2 Saund. 45. 
 
 NONTENURE. In pleading. A plea in a 
 real action, by which the defendant asserted 
 that he did not hold the land, or at least 
 some part of it, as mentioned in the plain- 
 tiff's declaration (1 Mod. 250); in which 
 case the writ abates as to the part with 
 reference to which the plea is sustained 
 (8 Cranch [U.S.] 242). It may be pleaded 
 with or without a disclaimer. It was a 
 dilatory plea, though not strictly in abate- 
 ment (2 Saund. 44, note 4; Dyer, 210; Booth, 
 Real Actions. 179; 3 Mass. 312: 11 Mass. 
 216), but might be pleaded as to part along 
 with a plea in bar as to the rest (1 Lutw. 
 716; Rast. Bntr. 231a, 231b), and was sub- 
 sequently considered as a plea in bar (14 
 Mass. 239; 1 Me. 54; 2 N. H. 10; Bac. Abr. 
 "Pleas" [19]). 
 
 NONTERM. The vacation between two 
 terms of a court. 
 
 NONTERMINUS. The vacation between 
 term and term, formerly called the time or 
 days of the king's peace. 
 
 NONUSER. Neglect to make use of a 
 franchise, privilege, or right. See 23 Pick. 
 (Mass.) 141. 
 
 NOOK OF LAND (Law Lat. reo/ca, or noca- 
 ta terrae). In old records. A measure or 
 description of land, of uncertain quantity. 
 Blount observes that he had seen an old deed 
 of Sir Walter de Pedwardyn, wherein twelve 
 acres and a half were granted for a noke of 
 land, but he thought the quantity was not 
 certain. 
 
 NORTHAMPTON TABLES. Longevity 
 and annuity tables compiled from bills of 
 mortality kept in All Saints parish, Eng- 
 land, in 1735-1780. 
 
 NOSCITUR A SOCIIS. It is known from 
 its associates. The meaning of a word may 
 be ascertained by reference to the meaning 
 of words associated with it. Broom, Leg. 
 Max. (3d London Ed.) 523; 9 East, 267; 13 
 East, 531; 6 Taunt. 294; 1 Vent. 225; 1 
 Barn. & C. 644; Arg. 10 Barn. & C. 496, 
 519; 18 C. B. 102, 893; 5 Man. & G. 639, 
 667; 3 C. B. 437; 5 C. B. 380; 4 Bxch. 511, 
 519; 5 Exch. 294; 11 Exch. 113; 3 Term R. 
 
 87; 8 Term R. 118; 1 N. Y. 47, 69; 11 Barb. 
 (N. Y.) 43, 63; 20 Barb. (N. Y.) 644. 
 
 NOSCITUR EX SOCIO, QUI NON COG- 
 noscitur ex se. He who cannot be known 
 from himself may be known from his asso- 
 ciate. F. Moore, 817; 1 Vent. 225; 3 Term 
 R. 87; 9 East, 267; 13 East, 531; 6 Taunt. 
 294; 1 Barn. & C. 644. 
 
 NOSOCOML In civil law. Persons whO' 
 have the management and care of hospitals 
 for paupers. Clef Lois Rom. mot "Admin- 
 istrateurs." 
 
 NOT FOUND. Words indorsed on a bill 
 of indictment by a grand jury, when they 
 have not sufficient evidence to find a true 
 bill. See "Ignoramus." 
 
 NOT GUILTY. 
 
 In Pleading. The general issue in 
 
 several sorts of actions of tort. 
 
 In Criminal Law. The general trav- 
 erse of the accusation by the accused. 
 
 NOT POSSESSED. In pleading. A plea 
 sometimes used in actions of trover, when 
 the defendant was not possessed of the 
 goods at the commencement of the action. 
 3 Man. & G. 101, 103. 
 
 NOT PROVEN. In Scotch criminal law. 
 It is a peculiarity of the Scotch jury system 
 in criminal trials that it admits a verdict of 
 "Not proven," corresponding to the yon 
 liquet of the lioman law. The legal effect 
 of this is equivalent to "Not guilty;" for a 
 prisoner in whose case it is pronounced can- 
 not be tried again. According to the homely 
 but expressive maxim of the law, no man 
 can be made to thole an assize twice. But, 
 although the verdict of "Not proven" is 
 so far tantamount to an acquittal that the 
 party cannot be tried a second time, it falls 
 very far short of it with regard to the effect 
 upon his reputation and character. He goes 
 away from the bar of the court with an 
 indelible stigma upon his fame. There 
 stands recorded against him the opinion of 
 a jury that the evidence respecting his guilt 
 was so strong that they did not dare to 
 pronounce a verdict of acquittal. So that 
 many of the evil consequences of a convic- 
 tion follow, although the jury refuse to con- 
 vict. When Sir Nicholas Throckmorton was 
 tried and acquitted by an English jury in 
 1554, he said: "It is better to be tried than 
 to live suspected." But in Scotland a man 
 may be not only tried, but acquitted, and 
 yet live suspected, owing to the sinister in- 
 fluence of a verdict of "Not proven." For- 
 syth, Hist. Trial by Jury, 334-339. 
 
 NOTA (Lat.) 
 
 In Civil Law. A mark or brand put 
 
 upon a person by the law. 1 Mackeld. Civ. 
 Law, 134, 135. 
 
 In Old English Conveyancing. A note 
 
 or memorandum of a charter or deed, drawn 
 up preparatory to the execution of the char- 
 ter itself. Si autem dicant testes quod prae- 
 sentes fuerint confectioni notae in quam 
 
NOTAE 
 
 (636) 
 
 NOTICE TO ADMIT 
 
 utraque pars consentit, donator et donatori- 
 us, hoc sufficit ad proiationem, licet prae- 
 sentes non essent uM cTiarta scripta fuit el 
 assignata [signata']? But if the witnesses 
 say that they were present at the making of 
 the note, to which each party agreed, donor 
 and donee, this is sufficient for proof, though 
 they were not present when the charter was 
 written and sealed. Bracton, fol.-398; Fleta, 
 lib. 6, c. 34, § 2. 
 A promissory note. 11 Mod. 340. 
 
 NOTAE (Lat.) In civil and old European 
 law. Shorthand characters or marks of con- 
 traction, in which one person wrote what 
 was said by another, or in which the em- 
 perors' secretaries took down what they dic- 
 tated. Spelman; Calv. Lex. See "Notari- 
 us." 
 
 NOTARE INFAMIA (Lat.) In the civil 
 law. To mark or brand with infamy, or 
 disgrace. Dig. 3. 2. For a description of 
 the persons who were so branded (de Ms qui 
 notantur infamia), see Id. 
 
 NOTARIAL. Belonging to a notary; made 
 or done by a notary. 
 
 NOTARIUS. 
 
 In Civil Law. One who took notes or 
 
 draughts in shorthand of what was said by 
 another, or of proceedings in the senate or 
 in a court. One who draughted written 
 , instruments, wills, conveyances, etc. Vicat; 
 Calv. Lex. 
 
 ^In English Law. A notary. Law Pr. 
 
 & Lat. Diet.; Cowell. 
 
 NOTARY, or NOTARY PUBLIC. An offi- 
 cer appointed by the executive or other ap- 
 pointing power, under the laws of different 
 states, having power generally to attest writ- 
 ings for the purpose of establishing their 
 authenticity, to administer oaths, etc. 
 
 NOTATION. In English probate practice, 
 notation is the act of making a memo- 
 randum of some special circumstance on a 
 probate or letters of administration. Thus, 
 where a grant is made for the whole person- 
 al estate of the deceased within the United 
 Kingdom, which can only be done in the 
 case of a person dying domiciled in England, 
 the fact of his having been so domiciled is 
 noted on the grant. Coote, Prob. Prac. 36. 
 
 NOTE OF A FINE. The fourth step of 
 the proceedings in acknowledging a fine, 
 which is only an abstract of the writ of cov- 
 enant and the concord, naming the parties, 
 the parcel of land, and the agreement, and 
 €nrolled of record in the proper office. 2 Bl. 
 Comm. 351, Append, note iv. § 3; 1 Steph. 
 Comm. 518. 
 
 NOTE OF ALLOWANCE. This was a 
 note delivered by a' master to a party to a 
 cause, who alleged that there was error in 
 law in the record and proceedings, allowing 
 him to bring error. See Com. Law Prac. 
 Act 1852, § 149. 
 
 NOTE OF HAND. A popular name for a 
 promissory note. 
 
 NOTE OF PROTEST. A note or minute 
 of the protest, made by the notary, at time 
 of protest on the bill, to be completed or 
 filled out at his leisure. Byles, Bills (5th 
 Ed.) 9. 
 
 NOTHUS (Lat.) A natural child, or a 
 person of spurious birth. 
 
 NOTICE. Information, whether actual or 
 presumptive, and whether direct or indirect, 
 respecting a matter of fact. 
 
 Notice is either (1) actual, consisting of 
 information actually received, or (2) con- 
 structive, consisting of facts which, by im- 
 plication of law, constitute notice without 
 regard to whether they actually impart in- 
 formation. 
 
 Actual notice is either (a) express, con- 
 sisting of direct positive knowledge of the 
 fact in question, or (b) implied, consisting of 
 information sufficient to put one on inquiry 
 as to the fact in question. 
 
 "Notice" is a broader term than "knowl- 
 edge," which includes only express actual 
 notice. 81 Ala. 140; 79 Me. 195. 
 
 NOTICE OF APPEARANCE. A notice by 
 defendant to plaintiff that he appears in the 
 action, or by an attorney that he appears for 
 defendant. See "Appearance." 
 
 NOTICE OF DISHONOR. A notice given 
 to a drawer or indorser of a bill, or an in- 
 dorser of a negotiable note, by a subsequent 
 party, that it has been dishonored either by 
 nonaoceptance in the case of a bill, or by 
 nonpayment in the case of an accepted bill 
 or a note. 
 
 NOTICE OF JUDGMENT. A written no- 
 tice of the entry of judgment required in 
 some states to be given to the judgment debt- 
 or to start the running of time to appeal. 
 
 NOTICE OF LIS PENDENS. 
 
 Pendens." 
 
 See "Lis 
 
 NOTICE OF MOTION. A notice in writ- 
 ing to the adverse party, to an action that a 
 specified motion will be made at a time stat- 
 ed. 
 
 NOTICE OF PROTEST. A notice given to 
 the drawer or indorser of a bill, or to an in- 
 dorser of a note, by a prior party, that the 
 bill has been protested for refusal of pay- 
 ment or acceptance. See "Notice of Dis- 
 honor." 
 
 NOTICE OF TRIAL. A notice by one par- 
 ty to his adversary that he will bring the 
 cause on for trial at the next term of court. 
 
 NOTICE TO ADMIT. In the practice of 
 the English high court, either party to an 
 action may call on the other party by notice 
 to admit the existence and execution of any 
 document, in order to save the expense of 
 proving it at the trial; and the party refus- 
 ing to admit must bear the costs of proving 
 it unless the judge certifies that the refusal 
 to admit was reasonable. No costs of prov- 
 ing a document will in general be allowed. 
 
NOTICE TO PLEAD 
 
 (637) 
 
 NOVATION 
 
 unless such a notice is given. Rules of 
 Court, xxxii. 2, 
 
 NOTICE TO PLEAD. Written notice to 
 defendant, requiring him to plead within 
 a certain time. It must always be given be- 
 fore plaintiff can sign judgment for want 
 Of a plea. 1 Chit. Archb. Prac. (Prent. Ed.) 
 221. Notice to plead, indorsed on the decla- 
 ration, or delivered separately, is sufficient 
 without demanding plea or rule to plead, in 
 England, by statute. See 3 Chit. St. 515. 
 
 NOTICE TO PRODUCE PAPERS. In 
 
 practice. When it is intended to give 
 secondary evidence of a written instrument 
 or paper which is in the possession of the 
 opposite party, it is, in general, requisite to 
 give him notice to produce the same on the 
 trial of the cause, before such secondary 
 evidence can be admitted. 
 
 NOTICE TO QUIT. A request by a land- 
 lord to his tenant to quit the leased premises, 
 and give possession thereof to the landlord 
 at a time therein mentioned. 3 Wend. (N. 
 Y.) 357; 7 Halst. (N. J.) 99. 
 
 NOTING. A term denoting the act of a 
 notary in minuting on a bill of exchange, 
 after it has been presented for acceptance 
 or payment, the initals of his name, the date 
 of the day, month, and year when such pre- 
 sentment was made, and the reason, if any 
 has been assigned, for nonacceptance or non- 
 payment, together with his charge. The 
 noting is not indispensable, it being only a 
 part of the protest; it will not supply the 
 protest. 4 Term R. 175. 
 
 NOTIO (Lat. from noscere,to know). In the 
 civil law. The power of hearing and trying 
 a matter of fact; the power or authority of 
 a judex; the power of hearing causes and 
 of pronouncing sentence, without any degree 
 of jurisdiction. Halifax, Anal. bk. 3, c. 8, 
 Nos. 3, 6; Calv. Lex. 
 
 In a more general sense, notio included 
 both cognitio (cognizance) and jurisdictio 
 (jurisdiction). Dig. 50. 16. 99, pr.; Calv. 
 Lex. 
 
 NOTITIA (Lat. from notus, known, or nos- 
 cere, to know). In the civil law. Knowl- 
 edge; information; intelligence. 
 
 In Old Practice. Notice. Inde notitiam 
 
 habuit, had notice thereof. 1 Ld. Raym. 70, 
 71. Notitia non debet claudicare, notice 
 ought not to be lame or Imperfect. 6 Coke, 
 29b. 
 
 NOTITIA DICITUR A NOSCENDO; ET 
 
 notitia non debet claudicare. Notice is call- 
 ed from a knowledge being had; and notice 
 ought not to halt, i. e., be imperfect. 6 
 Coke, 29. 
 
 NOTORIAL. The Scotch form of "nota- 
 rial" (g. V.) Bell, Diet. 
 
 NOTOUR. In Scotch law. Open; notori- 
 ous. A notour bankrupt is a debtor who, 
 being under diligence by horning and cap- 
 tion of his creditor, retires to sanctuary, or 
 
 absconds, or defends by force, and is after- 
 wards found Insolvent by court of sessions. 
 Bell, Diet.; Burton, Law of Scotland, 601. 
 
 NOVA CONSTITUTIO FUTURIS FOR- 
 mam imponere debet, non praeteritls. A 
 new enactment ought to Impose form upon 
 what is to come, not upon what is past. 2 
 Inst. 292; Broom, Leg. Max. (3d London 
 Ed.) 33, 36; T. Jones, 108; 2 Show. 16; 6 
 Mees. & W. 285; 7 Mees. & W. 536; 2 Mass. 
 122; 2 Gall. (U. S.) 139; 2 N. Y. 245; 7 
 Johns. (N. Y.) 503 et seq., — where this rule 
 is fully considered and the authorities re- 
 viewed. 
 
 NOVA CUSTOMA. An imposition or du- 
 ty. See "Antiqua Custuma." 
 
 NOVA STATUTA. New statutes. A term 
 including all statutes passed in the reign of 
 Edw. III. and subsequently. 
 
 NOVAE NAR RATION ES. "New counts 
 or tallys." A book of such pleadings as were 
 then in use, published in the reign of Edw. 
 III. 3 Bl. Comm. 297; 3 Reeve, Hist. Eng. 
 Law, 151. 
 
 NOVALE (Lat.) Land newly ploughed, 
 or that had not been tilled before within the 
 memory of man. Cowell; Spelman. 
 
 NOVALIS (Lat. from noviis, new). In the 
 civil law. Land that rested a year after the 
 first ploughing. Dig. 50. 16. 30. 2. 
 
 NOVATIO (Lat. from novare, to make new, 
 from novus, new). In the civil law. Liter- 
 ally, a making new. A change of a former 
 debt or obligation into another of the same 
 or a different kind, either by a change of the 
 persons, called delegatio, or by a change 
 in the obligation, the persons continu- 
 ing the same. Inst. 3. 30. 3; Dig. 46. 2; 
 Code, 8. 42; Halifax, Anal. bk. 2, c. 20, No. 
 8; Heinec. Elem. Jur. Civ. lib. 3, tit. 30, 
 § 1011 et seq. This term, translated or con- 
 verted into "novation," is extensively used 
 in modern civil law, and in the jurispru- 
 dence of Holland, Spain, Prance, Scotland, 
 and the state of Louisiana. Burge, Sur. 166. 
 Called in Pleta, innovatio. Fleta, lib. 2, c. 
 60, § 12. 
 
 NOVATIO NON PRAESUMITUR. A no- 
 vation Is not presumed. Halk. Max. 104. 
 
 NOVATION. The substitution of a new 
 obligation for an old, which is thereby ex- 
 tinguished. 57 Wis. 534. The term is of 
 civil-law origin, and is rarely used in the 
 common law. 
 
 Novation is of three sorts: 
 
 (1) Where the debtor and creditor re- 
 main the same, but a new debt takes the 
 place of the old one. Here, either the sub- 
 ject matter of the debt may be changed, or 
 the conditions of time, place, etc., of pay- 
 ment. 
 
 (2) Where the debt remains the same, but 
 a new debtor is substituted for the old. This 
 novation may be made without the inter- 
 vention or privity of the old debtor (in this 
 
NOVEL ASSIGNMENT 
 
 (638' 
 
 NOXIA 
 
 case the new agreement is called expromis- 
 sio, and the new debtor expromissor) , or by 
 the debtor's transmission of his debt to 
 another, who accepts the obligation, and is 
 himself accepted by the creditor. This 
 transaction is called delegatio. Domat lays 
 down the essential distinction between a 
 delegation and any other novation, thus: 
 That the former demands the consent of all 
 three parties, but the latter that only of the 
 two parties to the new debt. 
 
 (3) Where the debt remains the same, but 
 a new creditor is substituted for the old. 
 This also is called delegatio, for the reason 
 adduced above, to wit, that all three parties 
 must assent to the new bargain. It differs 
 from the oessio nominis of the civil law 
 by completely cancelling the old debt, while 
 the cessio nominis leaves the creditor a 
 -claim for any balance due, after assignment. 
 See Civ. Code Cal. §§ 1530, 1532. 
 
 To constitute a novation there must be 
 (1) a valid pre-existing obligation; (2) con- 
 sent of capable parties; (3) express inten- 
 tion to innovate. 
 
 The release of the old obligation is a suf- 
 ficient consideration. 37 Ohio St. 279. 
 
 NOVEL ASSIGNMENT. See "New As- 
 signment."- 
 
 NOVEL DISSEISIN. See "Assize of Nov- 
 el Disseisin." 
 
 NOVELLAE LEONIS. The ordinances of 
 Emperor Leo, which were made from the 
 year 887 till the year 893, are so called. 
 These Novels changed many rules of the Jus- 
 tinian law. This collection contains one 
 hundred and thirteen Novels, written orig- 
 inally in Greek, and afterwards, in 1560, 
 translated into Latin by Agilaeus. 
 
 NOVELS, or NOVELLAE CONSTITU- 
 tlones. In civil law. The name given to 
 the constitutions or laws of Justinian and 
 his immediate successors, which were pro- 
 mulgated soon after the Code of Justinian. 
 
 It appears to have been the intention of 
 Justinian, after the completion of the second 
 and revised edition of the Code, to supply 
 what had not been foreseen in the preceding 
 laws, together with any necessary amend- 
 ments or alterations, not by revising the 
 Code, but by supplementary laws. Such 
 laws he promulgated from time to time; but 
 no official compilation of them is known to 
 have been made until after his death, when 
 "his laws, one hundred and fifty-nine in num- 
 ber, with those of the reigns of Justin II. 
 and Tiberias, nine in number, were collect- 
 ed, together with some local edicts, under 
 this name. They belong to various times be- 
 tween 535 and 565 A. D. 
 
 NOVERINT UNIVERSI PER PRAE- 
 «entes (Law Lat.) Know all men by these 
 presents. Words with which deeds, obliga- 
 tions, letters of attorney, and other instru- 
 ments were formerly commenced. Litt. § 
 445; West, Symb. pars 1, lib. 2, §§ 102, 518, 
 522-525. 
 
 NOVI OPERIS NUNCIATIO (Lat.) In the 
 civil law. A protest against or prohibition of 
 a new work. Where a person began to build 
 up or to pull down something (which was 
 technically called novum opus, a new work), 
 another person, who feared that his right 
 would be impaired thereby, might extrajudi- 
 cially hinder the completion of the work, by 
 protesting before the workmen on the spot, 
 or before some one present representing the 
 owner, against the prosecution of the work, 
 and forbidding the same. Dig. 39. 1; Id. 
 43. 24; Code, 8. 11. See "Opus Novum." 
 
 NOVIGILD. In Saxon law. A pecuniary 
 satisfaction for an injury, amounting to nine 
 times the value of the thing for which it was 
 paid. Spelman. 
 
 NOVITAS NON TAM UTILITATE PRO- 
 dest quam novltate perturbat. Novelty bene- 
 fits not so much by its utility as it disturbs 
 by its novelty. Jenk. Cent. Cas. 167. 
 
 NOVITER PERVENTA, or NOVITER AD 
 notitlam perventa. In ecclesiastical proce- 
 dure. Facts "newly come" to the knowledge 
 of a party to a cause. Leave to plead facts 
 noviter perventa is generally given, in a 
 proper case, even after the pleadings are 
 closed. Phillim. Ecc. Law, 1257; Rog. Ece. 
 Law, 723. 
 
 NOVODAMUS (Law Lat.) In old Scotch 
 law. We give anew. The name given to a 
 charter or clause in a charter, granting a re- 
 newal of a right. Bell, Diet. 
 
 NOVUM JUDICIUM NON DAT NOVUM 
 jus, sad declarat antiquum. A new judg- 
 ment does not make a new law, but declares 
 the old. 10 Coke, 42. 
 
 NOVUM OPUS (Lat.) In the civil law. A 
 new work. See "Novi Operis Nunciatio;" 
 "Opus Novum." 
 
 NOVUS HOMO (Lat. a new man). This 
 term is applied to a man who has been par- 
 doned of a crime, by which he is restored to 
 society and is rehabilitated. 
 
 NOXA (Lat.) In civil law. Damage re- 
 sulting from an offense committed by an 
 irresponsible agent; the offense itself; the 
 punishment for the offense; the slave or ani- 
 mal who did the offense, and who is deliv- 
 ered up to the person aggrieved (datur 
 noxae) unless the owner choose to pay the 
 damage. The right of action is against who- 
 ever becomes the possessor of the slave or 
 animal (noxa caput seguitur). Vicat; Calv. 
 Lex. 
 
 NOXA SEQUITUR CAPUT. The injury 
 (i. e., liability to make good an injury caused 
 by a slave) follows the head or person, i. e., 
 attaches to his master. Heinec. Elem. Jur. 
 Civ. lib. 4, tit. 8, § 1231. 
 
 NOXALIS ACTIO. See "Actio Noxalis." 
 
 NOXIA (Lat.) In the civil law. An of- 
 fense committed or damage done by a slave. 
 Inst. 4. 8. 1. 
 
NUBILIS 
 
 (639) 
 
 NUL CHARTER, ETC. 
 
 NUBILIS (Lat.) In civil law. One who 
 Is of a proper age to be married. Dig. 32. 51. 
 
 NUDA (Lat.) Bare or mere. Nuda pa- 
 tientia, mere sufferance. Nuda possessio, 
 mere possession. 
 
 NUDA PACTIO OBLIGATIONEM NON 
 parit. A naked promise does not create an 
 obligation. Dig. 2. 14. 7. 4; Code, 4. 65. 27; 
 Broom, Leg. Max. (3d London Ed.) 670; 
 Brisson. "Nudus." 
 
 NUDA RATIO ET NUDA PACTIO NON 
 llgant allquem debitorem. Naked reason 
 and naked promise do not bind any debtor. 
 Fleta, lib. 2, c. 60, § 25. 
 
 NUDE. Naked. Figuratively, this word 
 is applied to various subjects. 
 
 A nude contract, nudum pactum, Is one 
 without a consideration. Nude matter is a 
 bare allegation of a thing done, without any 
 evidence of it. 
 
 NUDUM PACTUM. A contract made with- 
 out consideration. See "Consideration." 
 
 It is a mere agreement, without the requi- 
 sites necessary to confer upon it a legal ob- 
 ligation to perform. 3 McLean (U. S.) 330; 
 2 Denio (N. Y.) 403; 6 Ired. (N. C.) 480; 1 
 Strobh. (S. C.) 329; 1 Ga. 294; 1 Doug. 
 (Mich.) 188. The term, and the rule which 
 decides upon the nullity of its effects, are 
 borrowed from the civil law; yet the com- 
 mon law has not in any degree been in- 
 fluenced by the notions of the civil law in de- 
 fining what constitutes a nudum pactum. 
 Dig 19. 5. 5- See, on this subject, a learned 
 note in Fonbl. Eq. 335, and 2 Kent, Comm. 
 364. Toullier defines nudum pactum to be 
 an agreement not executed by one of the 
 parties. Toullier, Dr. Civ. torn. 6, note 13, 
 page 10. 
 
 It is of no consequence whether the agree- 
 ment be oral or written (7 Term R. 350; 7 
 Brown, Pari. Cas. 550; 4 Johns. [N. Y.] 235; 
 5 Mass. 301, 392; 2 Day [Conn.] 22); but a 
 contract under seal cannot be held a nudum 
 pactum for lack of consideration, since the 
 seal imports consideration (2 Barn. & Aid. 
 551). See "Consideration;" 2 HI. Comm. 
 445; 16 Viner, Abr. 16. 
 
 NUDUM PACTUM EST UBl NULLA 
 subest causa propter conventionem; sed ubi 
 subest causa, fit obllgatio, et parit actio- 
 nem. Nudum pactum is where there is no 
 consideration for the undertaking or agree- 
 ment; but when there is a consideration, 
 an obligation is created, and an action arises. 
 Dig. 2. 14. 7. 4; 2 Bl. Comm. 445; Broom, 
 Leg. Max. (3d London Ed.) 669; Plowd. 309; 
 1. Powell, Cont. 330 et seq.; 3 Burrows, 1670 
 et seq.; Viner, Abr. "Nudum Pactum" (A); 
 1 Fonbl. Eq. (5th Ed.) 335a. 
 
 NUDUM PACTUM EX QUO NON ORI- 
 tur actio. Nudum pactum is that upon which 
 no action arises. Code, 2. 3. 10; Id. 5. 14. 1; 
 Broom, Leg. Max. (3d London Ed.) 676. 
 
 NUISANCE. A nuisance is anything that 
 
 unlawfully worketh hurt, inconvenience, or 
 damage. 3 Bl. Comm. 216. 
 
 Any offensive erection, which, from its 
 nature, may be an annoyance, and from its 
 situation actually becomes so, is a nuisance. 
 Tayl. Landl. & Ten. § 201. 
 
 Public Nuisance. Such an inconven- 
 ience or troublesome offense as annoys the 
 whole community in general, and not mere- 
 ly some particular person. 4 Bl. Comm. 
 166. Such an annoyance as infringes on 
 rights common to the public. 7 Mich. 432. 
 Some considerable portion of the community 
 must be affected, for while that is a public 
 nuisance which injures generally such citi- 
 zens as may be so circumstanced as to come 
 within its influence (43 N. J. Eq. 478; 8 
 Cow. [N. Y.] 146), it must be in a public 
 place, where members of the community are 
 liable to come within its influence (7 Blackf. 
 [Ind.] 534; 34 Tex. 230; 36 N. J. Law, 283). 
 The test is not the number of persons an- 
 noyed, but the possibility of invasion of the 
 public rights. 5 Rand. (Va.) 691. 
 
 Private Nuisance. Anything done or 
 
 maintained whereby special annoyance or in- 
 jury is done to another. 
 
 A public nuisance may be private, as well, 
 and such have been termed "mixed nui- 
 sances." Wood, Nuisance, § 17. 
 
 The exact amount of annoyance or incon- 
 venience necessary to constitute a private 
 nuisance has never been settled. In gen- 
 eral terms, the injury should cause an in- 
 convenience "materially interfering with the 
 ordinary comfort, physically, of human ex- 
 istence; not merely according to elegant or 
 dainty modes and habits of living, but ac- 
 cording to plain, sober, and simple notions." 
 4 Eng. Law & Eq. 15. 
 
 The filling of the air with smoke or nox- 
 ious vapor, to the detriment of health (11 
 Mo. 517; 12 L. T. [N. S.] 776), or with 
 noisome odors (20 N. J. Eq. 201; 23 N. J. 
 Eq. 251), the production of great noise and 
 clangor in a quiet neighborhood (14 Mo. 
 App. 590), the maintenance of excessive 
 heat, rendering adjoining premises uninhab- 
 itable (46 Ala. 381), the keeping of explo- 
 sives or inflammable substances (35 N. J. 
 Law, 17 ) , are well-recognized forms of pri- 
 vate nuisance. 
 
 NUISANCE, ASSISE OF. See "Assize of 
 Nuisance." 
 
 NUL. No; none. A law French negative 
 particle, commencing many phrases. 
 
 NUL AGARD (Law Pr. no award). In 
 pleading. A plea to an action on an arbitra- 
 tion bond, when the defendant avers that 
 there was no legal award made. 3 Burrows, 
 1730; 2 Strange, 923. 
 
 NUL CHARTER, NUL VENTE, NE NUL 
 done vault perpetualment, si le donor n'est 
 seise al temps de contracts de deux droits, 
 sc. del droit de possession et del droit de 
 propertie. Nr grant, no sale, no gift is valid 
 forever, uiiless the donor, at the time of the 
 contract, is seised of two rights, namely, the 
 right of possession, and the right of prop- 
 erty. Co. Lift. 266. 
 
NUL DISSEISIN 
 
 (640) 
 
 NULLUM CRIMEN, ETC. 
 
 NUL DISSEISIN. In pleading. No dis- 
 seisin. A plea In a real action, by whlcli the 
 defendant denies that there was any dis- 
 seisin. It Is a species of the general Issue. 
 
 NUL NE DOIT S'ENRICHIR AUX DE- 
 pens des autres. No one ought to enrich 
 himself at the expense of others. 
 
 NUL PRENDRA ADVANTAGE DE SON 
 tort demesne. No one shall take advantage 
 of his own wrong. Broom, Leg. Max. (3d 
 London Ed.) 265. 
 
 I NUL SANS DAMAGE AVERA ERROR 
 ou attaint. No one shall have error or at- 
 taint unless he has sustained damage. Jenk. 
 Cent. Cas. 323. 
 
 NUL TIEL CORPORATION. No such cor- 
 poration exists. The form of a plea deny- 
 ing the existence of an alleged corporation. 
 
 NUL TIEL RECORD (Fr. no such record). 
 In pleading. A plea which is proper when 
 it is proposed to rely upon facts which dis- 
 prove the existence of the record on which 
 the plaintiff founds his action. 
 
 Any matters may be Introduced under It 
 which tend to destroy the validity of the rec- 
 ord as a record, provided they do not contra- 
 dict the recitals of the record Itself. 10 Ohio, 
 100. It Is frequently used to enable the de- 
 fendant to deny the jurisdiction of the court 
 from which the alleged record emanates. 2 
 McLean, C. C. (U. S.) 129; 22 Wend. (N. Y.) 
 293. 
 
 It is said to be the proper plea to an ac- 
 tion on a foreign judgment, especially if of 
 a sister state, in the United States (2 Leigh 
 [Va.] 72; 6 Leigh [Va.] 570; 17 Vt. 302; 6 
 Pick. [Mass.] 232; 11 Miss. 210; 1 Pa. St. 
 499; 2 South. [S. C] 778; 2 Breese [111.] 2), 
 though it is held that nil debet Is sufficient 
 (33 Me. 268; 3 J. J. Marsh. [Ky.] 600), es- 
 pecially if the judgment be that of a justice 
 of the peace (3 Har. [N. J.] 408). See 
 "Conflict of Laws." 
 
 NUL TORT (Law Fr. no wrong). In 
 pleading. A plea to a real action, by which 
 the defendant denies that he committed any 
 wrong. It is a species of general issue. 
 
 NUL WASTE. In pleading. The general 
 Issue in an action of waste. 3 Inst. 700a, 
 708a. The plea of nul waste admits noth-. 
 ing, but puts the whole declaration In is- 
 sue; and in support of this plea the defend- 
 ant may give in evidence anything which 
 proves that the act charged is no waste, as 
 that it happened by tempest, lightning, and 
 the like. Co. Litt. 283a; 3 Wm. Saund. 238, 
 note 5. 
 
 NULL. Properly, that which does not ex- 
 ist; that which is not in the nature of 
 things. In a figurative sense, it signifies 
 that which has no- more effect than if it did 
 not exist. 8 Toullier, Dr. Civ. note 320. 
 
 NULLA BONA (Law Lat. no goods). The 
 return made to a writ of /Jert facias by the 
 sheriff, when he has not found any goods of 
 
 the defendant on which he could levy. 3 
 Bouv. Inst, note 3393. 
 
 NULLA CURIA QUAE RECORDUM NON' 
 habet potest imponere finem, neque aliquem 
 mandare career!, quia ista spectant tantum- 
 modo ad curias de recordo. No court which 
 has not a record can impose a fine, or com- 
 mit any person to prison, because those 
 powers belong only to courts of record. 8 
 Coke, 60. 
 
 NULLA EIVIPTIO SINE PRETIO ESSE 
 potest. There can be no sale without a 
 price. 4 Pick. (Mass.) 189. 
 
 NULLA IMPOSSIBILIA AUT INHONES- 
 ta sunt praesumenda; vera autem et hon- 
 esta et possibllia. No impossible or dishon- 
 orable things are to be presumed, but things 
 true, honorable, and possible. Co. Lltt. 78. 
 
 NULLA PACTIONE EFFICI POTEST NE 
 dolus praestetur. By no agreement can it 
 be effected that there shall be no accounta- 
 bility for fraud. Dig. 2. 14. 27. 3; Broom, 
 Leg. Max. (3d London Ed.) 622, 118, note; 
 5 Maule & S. 466. 
 
 NULLA VIRTUS, NULLA SCIENTIA, LO- 
 cum suum et dignitatem conservare potest 
 sine modestia. Without modesty, no virtue, 
 no knowledge, can preserve its place and dig- 
 nity. Co. Litt. 394. 
 
 NULLE REGLE SANS FAUTE. There is 
 no rule without a fault. 
 
 NULLE TERRE SANS SEIGNEUR. No 
 
 land without a lord. Guyot, Inst. Feud. c. 
 28. 
 
 NULLI ENIIVl RES SUA SERVIT JURE 
 servitutis. No one can have a servitude 
 over his own property. Dig. 8. 2. 26; 17 
 Mass. 443; 2 Bouv. Inst, note 1600. 
 
 NULLITY. An act or proceeding which 
 has absolutely no legal effect whatever. See 
 Chit. Cont. 228. 
 
 NULLIUS FILIUS (Lat.) The son of no 
 one; a bastard. 
 
 NULLIUS HOIVIINIS AUCTORITASAPUD 
 nos valere debet, ut meliora non sequeremur 
 si quis attulerit. The authority of no man 
 ought to avail with us, that we should not 
 follow better opinions should any one pre- 
 sent them. Co. Litt. 383b. 
 
 NULLIUS JURIS, In old English law. 
 Of no legal force. Fleta, lib. 2, c. 60, § 24. 
 
 NULLUM ARBITRIUM (Lat.) In plead- 
 ing. The name of a plea to an action on an 
 arbitration bond for not fulfilling the award, 
 by which the defendant asserts that there is 
 no award. 
 
 NULLUM CRIMEN MAJUS EST INOBE- 
 
 dientia. No crime is greater than disobe- 
 dience. Jenk. Cent. Cas. 77. 
 
NULLUM EXEMPLUM, ETC. 
 
 (641) 
 
 NUNCIUS 
 
 NULLUM EXEMPLUM EST IDEM OM- 
 nibus. No example is the same for all pur- 
 poses. Co. Litt. 212a. 
 
 NULLUM FECERUNT ARBITRIUM 
 (Lat.) In pleading. The name of a plea to 
 an action of debt upon an obligation for the 
 performance of an award, by which the de- 
 fendant denies that he submitted to arbitra- 
 tion, etc. Bac. Abr. "Arbiter, etc." (G). 
 
 NULLUM INIQUUM EST PRAESUMEN- 
 dum in jure. Nothing unjust is to be pre- 
 sumed in law. 4 Coke, 72. 
 
 NULLUM MATRIMONIUM, IBI NULLA 
 dos. No marriage, no dower. 4 Barb. (N. 
 Y.) 192, 194. 
 
 NULLUM SIMILE EST IDEM. Nothing 
 which is like another is the same, i. e., no 
 likeness is exact identity. 2 Story, C. C. 
 (U. S.) 512; Story, Partn. 90; Co. Litt. 3a; 
 2 Bl. Comm. 162. 
 
 NULLUM SIMILE EST IDEM NISI QUA- 
 tuor pedibus currit. No like is identical, 
 unless it run on all fours. Co. Litt. 3. 
 
 NULLUM SIMILE QUATUOR PEDIBUS 
 currit. No simile runs upon four feet, or, 
 as ordinarily expressed, "on all fours." Co. 
 Litt. 3a; Eunom. Dial. 2, p. 155; 1 Story, C. 
 C. 143. 
 
 NULLUM TEMPUS ACT. St. 3 Geo. III. 
 c. 16. " See 32 Geo. III. c. 58, and 7 Wm. III. 
 c. 3. It was so called because the right of 
 the crown to sue, etc., was limited by it to 
 sixty years, in contradiction to the max- 
 im. Nullum tempus occurrit regi. 3 Chit. St. 
 63. 
 
 NULLUM TEMPUS AUT LOCUS OC- 
 currit regi. No time or place affects the 
 king. 2 Inst. 273; Jenk. Cent. Cas. 83; 
 Broom, Leg. Max. 65. 
 
 NULLUM TEMPUS OCCURRIT REGI. 
 Lapse of time does not bar the right of the 
 crown. 2 Inst. 273; 1 Bl. Comm. 247; Broom, 
 Leg. Max. (3d London Ed.) 62; Hob. 347; 
 2 Steph. Comm. 504; 1 Mass. 355; 2 Brock. 
 C. C. (U. S.) 393; 18 Johns. (N. Y.) 227; 10 
 Barb. (N. Y.) 139. 
 
 NULLUM TEMPUS OCCURRIT REI- 
 publicae. Lapse of time does not bar the 
 commonwealth. 11 Grat. (Va.) 572; Hil- 
 liard. Real Prop. 173; 8 Tex. 410; 16 Tex. 
 305; 5 McLean, C. C. (U. S.) 133; 19 Mo. 
 667. 
 
 NULLUS ALIUS GUAM REX POSSIT 
 episcopo demandare inquisitionem facien- 
 dam. No other than the king can command 
 the bishop to make an inquisition. Co. Litt. 
 134. 
 
 NULLUS COMMODUM CAPERE Po- 
 test de injuria sua propria. No one shall 
 take advantage of his own wrong. Co. Litt. 
 148b; Broom, Leg. Max. (3d London Ed.) 
 265; 4 Bing. N. C. 395; 4 Barn. & Aid. 409; 
 10 Mees. & W. 309; 11 Mees. & "W. 680. 
 
 NULLUS DEBET AGERE DE DOLO, UBI 
 
 alia actio subest. Where another form of 
 action is given, no one ought to sue in the 
 action de dolo. 7 Coke, 92. 
 
 NULLUS DICITUR ACCESSORIUS POST 
 feioniam sed ille qui novit principaiem feio- 
 niam fecisse, et iiium receptavit at com- 
 fortavit. No one is called an accessory aft- 
 er the fact but he who knew the principal to 
 have committed a felony, and received and 
 comforted him. 3 Inst. 138. 
 
 NULLUS DICITUR FELO PRINCIPALIS 
 nisi actor, aut qui praesens est, abettans aut 
 auxilians actorem ad feioniam faciendam. 
 No one shall be called a principal felon ex- 
 cept the party actually committing the fel- 
 ony, or the party present aiding and abetting 
 in its commission. 3 Inst. 138. 
 
 NULLUS IDONEUS TESTIS IN RE SUA 
 
 intelligitur. No one is understood to be a 
 
 competent witness in his own cause. Dig. 
 22. 5. 10; 1 Sumn. (U. S.) 328, 344. 
 
 NULLUS JUS ALIENUM FORISFACERE 
 potest. No man can forfeit another's right. 
 Pleta, lib. 1, c. 28, § 11. 
 
 NULLUS RECEDAT E CURIA CANCEL- 
 laria sine remedio. No one ought to depart 
 out of the court of chancery without a rem- 
 edy. Y. B. 4 Hen. VII. 4. 
 
 NULLUS VIDETUR DOLO FACERE QUI 
 suo jure utitur. No man is to be esteemed 
 a wrongdoer who avails himself of his legal 
 right. Dig. 50. 17. 55; Broom, Leg. Max. 
 (3d London Ed.) 124, 118, note (q) ; 14 
 Wend. (N. Y.) 339, 492. 
 
 NUMBER. A collection of units. 
 
 NUMERATA PECUNIA (Lat.) In civil 
 law. Money counted or paid; money given 
 in payment by count. L. 3, 10, C. de non 
 
 numerat. pec-nn.; Vicat. 
 
 NUMMATA TERRAE (Law Lat.) In old 
 records. A quantity of land, thought to con- 
 tain an acre. Cowell. 
 
 NUNC PRO TUNC (Lat. now for then). 
 A phrase used to express that a thing is 
 done at one time as if or with the same ef- 
 fect as if performed at another. 
 
 NUNCIATIO. In civil law. A formal 
 proclamation or protest. It may be by acts 
 (realis) or by words. Mackeld. Civ. Law, § 
 237. Thus, nunciatio novi operis was an in- 
 junction which one man could place on the 
 erection of a new building, etc., near him, 
 until the case was tried by the praetor. Id.; 
 Calv. Lex. An information against a crim- 
 inal. Calv. Lex. 
 
 NUNCIO. The name given to the pope's 
 ambassador. Nuncios are ordinary or ex- 
 traordinary; the former are sent upon usual 
 missions, the latter upon special occasions. 
 
 NUNCIUS. In international law. A mes- 
 senger; a minister; the pope's legate, com- 
 monly called a "nuncio." 
 
NUNCUPATE 
 
 (642) 
 
 NYMPHOMANIA 
 
 NUNCUPATE. To declare publicly and 
 solemnly. 
 
 NUNCUPATIVE WILL. An oral will, de- 
 clared by a testator, in extremis, before wit- 
 nesses, and afterwards reduced to writing. 
 4 > Kent, Comm. 576; 2 Bl. Comm. 500; 1 
 Jarm. Wills (Perkins Ed.) 130-136. See 1 
 "Wm. IV. c. 20; 1 Vict. c. 26, §§ 9, 11; 11 
 Bng. Law & Bq. 596, — by which the privi- 
 lege of making a nuncupative will is only 
 allowed to soldiers and seamen in actual 
 service. So in almost all the states. See, in 
 general, 27 Ala. (N. S.) 296, 596; 26 N. H. 
 372; 9 N. Y. 196; 10 Grat. (Va.) 548; 27 
 Miss. 119, 725; 2 R. I. 133; 4 Bradf. Sur. (N. 
 Y.) 154; 22 Ga. 293, 603; 12 La. Ann. 114, 
 •603; 1 Sneed (Tenn.) 616; 1 Williams, Bx'rs, 
 .59; Swinb. Wills; Ayliffe, Pand. 359; Roberts, 
 Wills; 2 Bouv. Inst, note 436; 1 Brown, Civ. 
 Law, 288. > 
 
 NUNDINAE (Law Lat.) In civil and old 
 English law. Fair or fairs. Dion. Halic. 
 lib. 2, p. 98; Vicat; Law Pr. & Lat. Diet. 
 
 NUNQUAM (Lat.) Never. Nunquam fuit 
 J)alUvus ejus, vel mercaior, vel denariorum 
 suorum receptor, vel administrator, never 
 was his bailiff or merchant, or receiver of 
 his moneys, or his administrator (manager). 
 Fleta, liti. 2, c. 70, § 9. 
 
 NUNQUAM CRESCIT EX POST FACTO 
 praeteriti delicti aestimatio. The quality 
 of a past offense is never aggravated by that 
 which happens subsequent. Dig. 50. 17. 138. 
 1; Bac. Max. reg. 8; Broom, Leg. Max. (3d 
 London Ed.) 41. 
 
 NUNQUAM DECURRITURAD EXTRAOR- 
 dinarium sed ubi deficit ordinarium. We are 
 never to recur to what is extraordinary till 
 what is ordinary fails. 4 Inst. 84. 
 
 NUNQUAM FICTIO SINE LEGE. 
 
 is no fiction without law. 
 
 There 
 
 NUNQUAM INDEBITATUS (Lat. never 
 Indebted). In pleading. A plea to an ac- 
 tion of inde'bitatus assumpsit, by which the 
 defendant asserts that he is not indebted to 
 the plaintiff. 6 Car. & P. 545; 1 Mees. & W. 
 542; 1 Q. B. 77. 
 
 NUNQUAIVI NIMIS DICITUR QUOD NUN- 
 quam satis dicitur. What is never suffi- 
 ciently said is never said too much. Co. 
 Liit. 375. 
 
 NUNQUAM PRAESCRIBITUR IN FALSO. 
 
 There is never prescription in case of false- 
 hood (crimen falsi). Bell, Diet. 
 
 NUNQUAM RES HUMANAE PROSPERE 
 succedunt ubi negliguntur divinae. Human 
 things never prosper when divine things are 
 neglected. Co. Lift. 95; Wingate, Max. 2. 
 
 NUNTIUS, or N UNCI US. In old English 
 practice. One who made excuse for absence 
 of one summoned; an apparitor, beadle, or 
 sergeant. Cowell. A messenger or legate, 
 e. g., pope's nuncio. Jacob. Essoniator was 
 sometimes wrongly used for mmtius in the 
 first sense. Bracton, fol. 345, § 2. 
 
 NUPER OBIIT (Lat. he or she lately- 
 died). In practice. The name of a writ 
 which in the English law lies for a sister 
 co-heiress dispossessed by her coparcener of 
 lands and tenements whereof their father, 
 brother, or any common ancestor died seised 
 of an estate in fee simple. Termes de la 
 Ley; Pitzh. Nat. Brev. 197. 
 
 NUPTIAE (Lat. from nuiere, to cover or 
 veil). In the civil law. Marriage; nuptials; 
 the union of man and woman; companion- 
 ship for all life (conjunctio maris et femi- 
 nae, et consortium omnis vitae). Dig. 23. 2. 
 1. See Code, 5. 4. Justinian uses nuptiae 
 and matrimonium as synonymous. Inst. 1. 
 9. 1. Properly, the nuptial ceremony. Calv. 
 Lex.; Tayl. Civ. Law, 269, 274. See "Consen- 
 sus Non, etc." 
 
 NUPTIAE SECUNDAE (Lat.) In the canon 
 law. A second marriage; any marriage 
 after the first. The canon law put a mark 
 of disapprobation upon nuptiae secundae, 
 for so they termed every marriage after 
 the first. No Ijenediction could be pro- 
 nounced, nor could any priest be present at 
 the celebration of them. Corvin. Jus. Canon. 
 108, 109, 110; Launc. Inst. Jur. Can. lib. 2, 
 tit. 16; 4 Reeve, Hist. Eng. Law, 63. 
 
 NUPTIAl. Of or pertaining to the mari- 
 tal relation. 
 
 NUPTIAS NON CONCUBITUS, SED CON- 
 
 sensus facit. Not cohabitation, but consent, 
 makes the marriage. Dig. 50. 17. 30; 1 Bouv. 
 Inst, note 239; Co. Litt. 33. 
 
 NURTURE. The rearing and care of chil- 
 dren. 
 
 NUSANCE. The old form of "nuisance." 
 Hale, Anal. § xlii. 
 
 NUTAUNTRE, NUTANDER, or NUIC- 
 tander (Law Pr.) By night. Ou nutauntre ou 
 de jour, by night or by day. Britt. c. 47; 
 Y. B. P. 10 Edw. IH. 37. 
 
 NUYT, or NUTE (LawPr.) Night. Britt. 
 c. 80. 
 
 NYMPHOMANIA. Erotic insanity mani- 
 fested in a female. It is said to be distin- 
 guished from erotomania, in that it pro- 
 ceeds from some sexual disorder as an ex- 
 citing cause. Wharton. 
 
o c 
 
 (643) 
 
 OATHWORTHY 
 
 o 
 
 O. C. In the civil law. An abbreviation 
 for "ope consilio" (q. v.) 
 
 O. Nl. It was tlie course of the English 
 exchequer, as soon as the sheriff entered in- 
 to and made up his account for issues, amer- 
 ciaments, etc., to mark upon each head "0. 
 Ni.," which denoted oiicniliir, nisi Jiabeat 
 iufflcientem exonerationem, and presently he 
 became the king's debtor, and a debet was 
 set upon his head; whereupon the parties 
 paravaile became debtors to the sheriff, and 
 were discharged against the king, etc. 4 
 Inst. 116. But sheriffs now account to the 
 commissioners for auditing the public ac- 
 counts. Wharton. 
 
 OATH. An outward pledge given by the 
 person taking it that his attestation or prom- 
 ise is made under an immediate sense of 
 his responsibility to God. Tyler, Oaths, 15. 
 
 The term has been variously defined: As, 
 ■"a solemn invocation of the vengeance of 
 the Deity upon the witness if he do not de- 
 clare the whole truth, so far as he knows 
 it." 1 Starkie, Bv. 22. Or, "a religious as- 
 severation by which a person renounces the 
 mercy and imprecates the vengeance of 
 Heaven if he do not speak the truth." 2 
 Leach, C. C. 482. Or, as "a religious act by 
 which the party invokes God not only to 
 -witness the truth and sincerity of his prom- 
 ise, but also to avenge his imposture or vio- 
 lated faith, or, in other words, to punish 
 his perjury if he shall be guilty of it." 10 
 Toullier, Dr. Civ. notes 343-348; Puffendorff, 
 bk. 4, c. 2, § 4. The essential idea of an 
 oath would seem to be, however, that of a 
 recognition of God's authority by the party 
 taking it, and an undertaking to accomplish 
 the transaction to which it refers as required 
 by His laws. 
 
 In its broadest sense, the term is used to 
 include all forms of attestation by which a 
 party signifies that he is bound in conscience 
 to perform the act faithfully and truly. In 
 a more restricted sense, it excludes all those 
 forms of attestation or promise which are 
 not accompanied by an imprecation. 
 
 Assertory Oaths. Those required by 
 
 law other than in judicial proceedings, and 
 upon induction to office, such, for example, 
 as custom-house oaths. 
 
 Promissory Oaths. Oaths taken by 
 
 authority of law, by which the party de- 
 clares that he will fulfill certain duties there- 
 in mentioned; as, the oath which an alien 
 takes, on becoming naturalized, that he will 
 support the constitution of the United States; 
 the oath which a judge takes that he will 
 perform the duties of his office. The breach 
 of this does not involve the party in the 
 legal crime or punishment of perjury. 3 
 Zab. (N. J.) 49. 
 
 Extrajudicial Oaths. Those taken 
 
 -without authority of law. Though binding 
 
 in foro conscientiae, they do not, when false, 
 render the party liable to punishment for 
 perjury. 
 
 Judicial Oaths. Those administered 
 
 in judicial proceedings. 
 
 OATH AGAINST BRIBERY. One which 
 could have have administered to a voter at 
 an election for members of parliament. Abol- 
 ished by 17 & 18 Vict. c. 102. Wharton. 
 
 OATH DECISORY. In civil law. An oath 
 which one of the parties defers or refers 
 back to the other for the decision of the 
 cause. 
 
 OATH EX OFFICIO. The oath by which 
 a clergyman charged with a criminal of- 
 fense was formerly allowed to swear him- 
 self to be Innocent; also the oath by which 
 the compurgators swore that they believed 
 in his innocence. 3 Bl. Comm. 101, 447; 
 Mozley & W. 
 
 OATH IN LITEM. An oath which, in the 
 civil law, was deferred to the complainant as 
 to the value of the thing in dispute, on fail- 
 ure of other proof, particularly when there 
 was a fraud on the part of the defendant, 
 and he suppressed proof in his possession. 
 See Greenl. Ev. § 348; Tait, Ev. 280; 1 Vern. 
 207; 1 Eq. Gas. Abr. 229; 1 Me. 27; 1 Yeates 
 (Pa.) 34; 12 Viner, Abr. 24. 
 
 OATH OF CALUMNY. In civil law. An 
 oath which a plaintiff was obliged to take 
 that he was not actuated by a spirit of chi- 
 canery in commencing his action, but that 
 he had bona fide a good cause of action. 
 Poth. ad Pand. lib. 5, tits. 16, 17, § 124. This 
 oath is somewhat similar to our affidavit of 
 a cause of action. See Dunl. Adm. Prac. 
 289, 290. 
 
 OATH PURGATORY. An oath by which 
 one destroys the presumptions which were 
 against him, for he is then said to purge 
 himself when he removes the suspicions 
 which were against him; as, when a man is 
 in contempt for not attending court as a wit- 
 ness, he may purge himself of the contempt 
 by swearing to a fact which is an ample ex- 
 cuse. See "Purgation." 
 
 OATH RITE. The form used at the tak- 
 ing of an oath. 
 
 OATH SUPPLETORY. In civil and ec- 
 clesiastical law. An oath required by the 
 judge from either party in a cause, upon 
 half proof already made, which, being joined 
 to half proof, supplies the evidence required 
 to enable the judge to pass upon the subject. 
 See Strange, 80; 3 Bl. Comm. 270. 
 
 OATHWORTHY. Worthy of making an 
 oath; credible. 
 
OB 
 
 (644) 
 
 OBLIGATION 
 
 OB. On account of; for. A few Latin 
 phrases and maxims commence with this 
 word, but in is more commonly used. 
 
 OB CAUSAM ALIQUAM A RE MARI- 
 tima ortam. For some cause arising out of 
 a maritime matter. 1 Pet. Adm. (U. S.) 
 92. Said to be Selden's translation of the 
 French definition of admiralty jurisdiction, 
 "pour le fait de la mer." Id. 
 
 OB CONTINENTIAM DELICTI. On ac- 
 count of contiguity to the offense; a ground 
 for extending the operation of a decree of 
 maritime condemnation. Thus, the cargo of 
 a vessel condemned for carrying dispatches 
 for the enemy may be condemned o6 conti- 
 nentiam delicti. 6 Rob. Aifm. 440. 
 
 OB CONTINGENTIAM. In Scotch law. 
 On account of connection; by reason of sim- 
 ilarity. A ground for the consolidation of 
 actions. 7 Bell, App. Gas. 163. 
 
 OB FAVOREM MERCATORUM. In favor 
 of merchants. Fleta,- lib. 2, c. 63, § 12. 
 
 OB INFAMIAM NON SOLET JUXTA LE- 
 gem terrae aliquis per legem apparentem se 
 purgare, nisi prius convictus fuerit vel con- 
 fessus in curia. On account of evil report, 
 it is not usual, according to the law of the 
 land, for any person to purge himself, unless 
 he have been previously convicted, or con- 
 fessed in court. Glanv. lib. 14, c. 2. 
 
 OB TURPEIVI CAUSAM. For a base or 
 Immoral cause or consideration. 
 
 OBAERATUS. In Roman law. A debtor 
 who was obliged to serve his creditor till his 
 debt was discharged. 
 
 OBEDIENTIA EST LEGIS ESSENTIA. 
 
 Obedience is the essence of the law. 11 Coke, 
 100. 
 
 OBIIT SINE PROLE (Lat.) (He) died 
 without issue. Y. B. M. 1 Edw. II. 1. 
 
 OBIT. That particular solemnity or of- 
 fice for the dead which the Roman Catholic 
 church appoints to be read or performed 
 over the body of a deceased member of that 
 communion before interment; also, the of- 
 fice which, upon the anniversary of his 
 death, was frequently used as a commemo- 
 ration or observance of the day. 2 Cro. 51; 
 Dyer, 313. 
 
 OBITER (Lat. from oMre, to pass). By the 
 way; in passing. "This point was not the 
 principal question in the case of Clere and 
 Brooke, but the law concerning it is deliv- 
 ered obiter only, and in the course of argu- 
 ment, by Justice Manwoode." 2 Bl. Comm. 
 238. 
 
 OBITER DICTUM. See "Dictum." 
 
 OBJECT OF ACTION. The thing sought 
 to be attained by the action; the remedy de- 
 manded, or relief prayed for. It differs from 
 the subject of the action, which is the sub- 
 ject matter out of which the cause of action 
 arose. 18 Kan. 406. 
 
 OBJECTS OF A POWER. A name given 
 to the members of a class among whom one 
 is empowered to appoint the power. 
 
 OBJECTION. The act by which a party 
 questions the propriety of evidence offered or 
 proceedings proposed to be had in the course 
 of the trial. 
 
 OBLATI ACTIO (Lat.) In the civil law. 
 An action given to a party against another 
 who had offered to him a stolen thing, which 
 was found in his possession. Inst. 3. 1. 4. 
 
 OBLATIO (Lat.) In civil law. A tender 
 of money in payment of debt made by debtor 
 to creditor. L. 9, C. de solut. Whatever is 
 offered to the church by the pious. Calv. 
 Lex.; Vicat. 
 
 OBLIGACION (Law Fr.) Obligation. 
 
 Ohligacion est un lien de droit,, obligation is 
 a bond of law. Britt. c. 28. See "Obliga- 
 tion." 
 
 OB LI GAT lO. In Roman law. A legal 
 bond which obliges us to the performance of 
 something in accordance with the law of 
 the land. Ortolan, Inst. 2, § 1179. 
 
 It corresponded nearly to our word "con- 
 tract." Justinian says, "Obligatio est juris 
 vinculum, quo necessitate adstringimur ali- 
 cujus solvendae rei, secundum nostrae civi- 
 tatis jura." Pr. Just, 3. 13. 
 
 The Romans considered that obligations 
 derived their validity solely from positive 
 law. At first the only ones recognized were 
 those established in special cases in accord- 
 ance with the forms prescribed by the strict 
 jus civilis. In the course of time, however, 
 the praetorian jurisdiction, in mitigation of 
 the primitive rigor of the law, introduced 
 new modes of contracting obligations, and 
 provided the means of enforcing them; 
 hence the twofold division made by Justin- 
 ian of obligationes civiles, and obligationes 
 praetoriae. Inst. 1. 3. 13. But there was a 
 third class, the obligationes naturales, which 
 derived their validity from the law of na- 
 ture and nations, or the natural reason of 
 mankind. These had not the binding force 
 of the other classes, not being capable of en- 
 forcement by action, and are, therefore, not 
 noticed by Justinian in his classification; 
 but they had, nevertheless, a certain efficacy 
 even in the civil law. For Instance, though 
 a debt founded upon a natural obligation 
 could not be recovered by an action, yet If it 
 was voluntarily paid by the debtor, he could 
 not recover it back, as he might do in the 
 case of money paid by mistake, etc., where 
 no natural obligation existed. L. 38, pr. D. 
 12. 6. And see Ortolan, Inst. 2, § 1180. 
 
 The second classification of obligations 
 made by Justinian has regard to the way in 
 which they arise. They were, in this aspect, 
 either ex contractu or quasi ex contractu, or 
 ex maleficio or quasi ex m,aleflcio. Inst. 2. 
 3, 13. 
 
 OBLIGATION (Lat. obligo; ligo, to bind). 
 A legal bond, whereby constraint is laid up- 
 on a person or group of persons to act or 
 forbear on behalf of another person or 
 
OBLIGATION 
 
 (645) 
 
 OBLIGATION 
 
 group. Savigny, Obi. §§ 2-4; Anson, Cont. 
 §2. 
 
 Secondarily applied to an instrument 
 whereby one binds himself, under penalty, to 
 an act or forbearance (2 Serg. & R. [Pa.] 
 502; 6 Vt. 40), and sometimes in modern 
 usage to all written contracts (22 Ohio St. 
 111). 
 
 Absolute Obligation. One which gives 
 
 no alternative to the obligor, but requires 
 fulfillment according to the engagement. 
 
 Accessory Obligation. One which is 
 
 dependent on the principal obligation. For 
 example, if I sell you a house and lot of 
 ground, the principal obligation on my part 
 is to make you a title for it; the accessory 
 obligation is to deliver you all the title pa- 
 pers which I have relating to it, to take 
 care of the estate till it is delivered to you, 
 and the like. 
 
 Alternative Obligation. Where a per- 
 son engages to do or to give several things 
 in such a manner that the payment of one 
 will acquit him of all. 
 
 Civil Obligation. One which has a 
 
 binding operation in law, and which gives 
 to the obligee the right of enforcing it in 
 a court of justice. In other words, it is an 
 engagement binding on the obligor. 4 Wheat. 
 (U. S.) 197; 12 Wheat. (U. S.) 318, 337. 
 
 Civil obligations are divided into express 
 and implied, pure and conditional, primitive 
 and secondary, principal and accessory, abso- 
 lute and alternative, determinate and inde- 
 terminate, divisible and indivisible, single 
 and penal, and joint and several. They are 
 also purely personal, purely real, or mixed. 
 
 Conditional Obligation. One the exe- 
 cution of which is suspended by a condition 
 which has not been accomplished, and sub- 
 ject to which it has been contracted. 
 
 Determinate Obligation. One which 
 
 has for its object a certain thing; as, an ob- 
 ligation to deliver a certain horse, named 
 ■"Bucephalus." In this case, the obligation 
 can only be discharged by ' delivering the 
 Identical horse. 
 
 Divisible Obligation. One which, be- 
 ing a unit, may nevertheless be lawfully di- 
 vided with or without the consent of the 
 parties. 
 
 Express or Conventional Obligations. 
 
 Those by which the obligor binds himself in 
 express terms to perform his obligation. 
 
 Imperfect Obligations. Those which 
 
 are not binding on us as between man and 
 man, and for the nonperformance of which 
 we are accountable to God only, such as 
 charity or gratitude. In this sense, an obli- 
 gation is a mere duty. Poth. Obi. art., prel. 
 note 1. 
 
 Implied Obligation. One which arises 
 
 by operation of law; as, for example, if I 
 send you daily a loaf of bread, without any 
 express authority, and you make use of it 
 in your family, the law raises an obligation 
 on your part to pay me the value of the 
 ■bread. 
 
 Indeterminate Obligation. One where 
 
 the obligor binds himself to deliver one of a 
 
 certain species; as, to deliver a horse, where 
 the delivery of any horse will discharge the 
 obligation. 
 
 Indivisible Obligation. One which is 
 
 not susceptible of division; as, for exam- 
 ple, if I promise to pay you one hundred dol- 
 lars, you cannot assign one-half of this to 
 another, so as to give him a right of action 
 against me for his share. See "Divisible." 
 
 Joint Obligation. One by which sev- 
 eral obligors promise to the obligee to per- 
 form the obligation. When the obligation is 
 only joint, and the obligors do not promise 
 separately to fulfill their engagement, they 
 must be all sued, if living, to compel the 
 performance; or, if any be dead, the sur- 
 vivors must all be sued. See "Parties." 
 
 Natural or Moral Obligation. One 
 
 which cannot be enforced by action, but 
 which is binding on the party who makes it 
 in conscience and according to natural jus- 
 tice. 
 
 As, for instance, when the action is barred 
 by the act of limitation, a natural obliga- 
 tion still subsists, although the civil obliga- 
 tion is extinguished. 5 Bin. (Pa.) 573. Al- 
 though natural obligations cannot be en- 
 forced by action, they have the following 
 effect: First, no suit will lie to recover 
 back what has been paid or given in com- 
 pliance with a natural obligation (1 Term 
 R. 285; 1 Dall. [Pa.] 184); second, a natu- 
 ral obligation is a sufficient consideration 
 for a new contract (2 Bin. [Pa.] 591; 5 Bin. 
 [Pa.] 33; Yelv. 41a, note 1; Cowp. 290; 2 
 Bl. Comm. 445; 3 Bos. & P. 249, note; 2 
 East, 506; 3 Taunt. 311; 5 Taunt. 36; 3 Pick. 
 [Mass.] 207; Chit. Cont. 10). See "Consid- 
 eration." 
 
 Penal Obligation. One to which is at- 
 tached a penal clause, which is to be en- 
 forced if the principal obligation be not per- 
 formed. See "Damages." 
 
 Perfect Obligation. One which gives 
 
 a right to another to require us to give him 
 something, or not to do something. These 
 obligations are either natural or moral, or 
 they are civil. 
 
 Personal Obligation. One by which 
 
 the obligor binds himself to perform an act, 
 without directly binding his property for its 
 performance. 
 
 It also denotes an obligation in which the 
 obligor binds himself only, not including his 
 heirs or representatives. 
 
 Primitive Obligation. This obligation, 
 
 which, in one sense, may also be called a 
 "principal obligation," is one which is con- 
 tracted with a design that it should itself 
 be the first fulfilled. 
 
 Principal Obligation. One which is 
 
 the most important object of the engagement 
 of the contracting parties. 
 
 Pure (or Simple) Obligation. ' One 
 
 which is not suspended by any condition, 
 either because it has been contracted without 
 condition, or, having been contracted with 
 one, it has been fulfilled. 
 
 Real Obligation. One by which real 
 
 estate, and not the person, is liable to the 
 obligee for the performance. 
 
 A familiar example will explain this: 
 
OBLIGATION OF CONTRACT 
 
 (646) 
 
 OBSOLETE 
 
 When an estate owes an easement as a right 
 of way, it is the thing, and not the owner, 
 who owes the easement. Another instance 
 occurs when a person buys an estate which 
 has been mortgaged, subject to the mort- 
 gage. He is not liable for the debt, though 
 his estate is. In these cases the owner has 
 an interest only because he is seised of the 
 servient estate or the mortgaged premises, 
 and he may discharge himself by abandon- 
 ing or parting with the property. The ob- 
 ligation is both personal and real when the 
 obligor has bound himself and pledged his 
 estate for the fulfillment of his obligations. 
 
 Secondary Obligation. One which is 
 
 contracted and is to be performed in case 
 the primitive cannot be. For example, if I 
 sell you my house, I bind myself to give a 
 title; but if I find I cannot, as the title is in 
 another, then my secondary obligation is to 
 pay you damages for my nonperformance of 
 my obligation. 
 
 Several Obligation. One by which 
 
 one individual, or, if there be more, several 
 individuals, bind themselves separately to 
 perform the engagement. In this case, each 
 obligor may be sued separately; and if one 
 or more be dead, their respective executors 
 may be sued. See "Parties." 
 
 Single Obligation. One without any 
 
 penalty; as, where I simply promise to pay 
 you one hundred dollars. This is called a 
 "single bill," when it is under seal. 
 
 OBLIGATION OF CONTRACT. The duty 
 imposed by law on the partiep to a contract 
 to perform the same. 4 Wheat. (U. S.) 197. 
 
 The remedy by which the contract can be 
 enforced is deemed a part of its obligation, 
 within the constitutional prohibition of its 
 impairment, to the extent that its adequacy 
 must be maintained (47 N. Y. 157; 97 U. S. 
 293), but the mere form of the remedy (157 
 U. S. 219), or the rules of evidence (108 
 Mo. 303), are not. 
 
 OBLIGATORY WRITING. 
 
 Obligatory." 
 
 See "Writing 
 
 OBLIGEE. The person in favor of whom 
 an obligation is contracted. 
 
 OBLIGOR. The person who has engaged 
 to perform some obligation. Code La. art. 
 3522, No. 12. One who makes a bond. 
 
 OBLIQUUS (Lat.) 
 _ In the Old Law of Descents. Ob- 
 lique; cross; transverse; collateral. The 
 opposite of reeUis, right, or upright. Fleta, 
 lib. 5, c. 7, § 2. 
 
 In the Law of Evidence. Indirect; 
 
 circumstantial. Vinn. Juris. Cont. lib. 4, c. 
 25. 
 
 OBLITERATION. The destruction of 
 words in an instrument by erasure, blotting, 
 or striking out. They need not be complete- 
 ly effaced. The term is most commonly ap- 
 plied to wills which may be revoked by ob- 
 literation. 29 Car. II. c. 3, § 6. 
 
 OBLOQUY. Censure; odium; reproach. 
 See 70 Cal. 275. 
 
 OBRA (Spanish; from Lat. opera). In 
 Spanish law. Work. Obras, work? or trades"; 
 those which men carry on in houses or cov- 
 ered places. White, New Recop. pk. 1, tit. 5, 
 c. 3, § 6. 
 
 OBREPTIO (Lat. from obrepere, to creep 
 upon). The obtaining a thing by fraud or 
 surprise. Calv. Lex. Called, in Scotch law, 
 "obreption." 
 
 OBREPTION. Acquisition of escheats, 
 etc., from sovereign, by making false repre- 
 sentations. Bell, Diet. "Subreption;" Calv. 
 Lex. 
 
 OBROGARE (Lat. from ob, and rogare, to 
 pass a law). In the civil law. To pass a 
 law contrary to a former law, or to some 
 clause of it; to change a former law in 
 some part of it. Calv. Lex. ; Tayl. Civ. Law, > 
 155. 
 
 OBROGATION. The annulling a law, in 
 whole or in part, by passing a law contrary 
 to it; the alteration of a law. Vicat; Calv. 
 Lex. 
 
 OBSCENITY. In criminal law. Such inde- 
 cency as is calculated to promote the viola- 
 tion of the law and the general corruption 
 of morals. It may consist in written or 
 spoken words, conduct, pictures, or efiSgies. 
 It need not be couched in obscene or vulgar 
 terms if the idea conveyed tends to produce 
 indecency. 16 Blatchf. (U. S.) 362. 
 
 OBSERVE. In civii law. To perform 
 that which has been prescribed by some law 
 or usage. Dig. 1. 3. 32. 
 
 OBSES (Lat.) In the law of war. A host- 
 age. Grotius de Jure Belli, lib. 3, c. 20, § 52. 
 Obsides, hostages. Id.; Magna Carta Johan. 
 c. 49. 
 
 OBSESSUM (Lat. from obsidere, to besiege 
 or block up). In the law of war. Besieged. 
 Oppidum obsessum, a town besieged. Gro- 
 tius de Jure Belli, lib. 3, c. 1, § 5; 1 Kent, 
 Comml 144. 
 
 OBSIGNARE (Lat.) In the civil law. To 
 seal up, as money that had been tendered 
 and refused. Heinec. Elem. Jur. Civ. lib. 3, 
 tit. 30, § 1007. 
 
 OBSOLETE. Fallen into disuse. A term 
 applied to laws which, by change in condi- 
 tions or subject matter, or by long neglect, 
 have lost their eiBcacy without be^ng re- 
 pealed. 
 
 A positive statute, unrepealed, can never 
 be repealed by nonuser alone. 4 Yeates 
 (Pa.) 181, 215; 1 P. A. Browne (Pa. App.) 
 28; 13 Serg. & R. (Pa.) 447. The disuse of 
 a law is at most only presumptive evidence 
 that society has consented to such a re- 
 peal. However this presumption may oper- 
 ate on an unwritten law, it cannot, in gen- 
 eral, act upon one which remains as a leg- 
 islative act on the statute book, because no 
 presumption can set aside a certainty. A 
 written law may indeed become obsolete 
 when the object to which it was intended 
 
OBSTA PRINCIPIIS 
 
 (647) 
 
 OCTABIS 
 
 to apply, or the occasion for which it was 
 enacted, no longer exists. 1 P. A. Browne 
 (Pa. App.) 28. "It must be a very strong 
 case," says Chief Justice Tilghman, "to jus- 
 tify the court in deciding that an act stand- 
 ing on the statute book, unrepealed, is obso- 
 lete and invalid. I will not say that such 
 case may not exist where there has been a 
 nonuser for a great number of years, where, 
 from a change of times and manners, an 
 ancient sleeping statute would do great 
 mischief if suddenly brought into action, 
 where a long practice inconsistent with it 
 has prevailed, and specially where, from 
 other and later statutes, it might be Inferred 
 that in the apprehension of the legislature 
 the old one was not in force." 13 Serg. & 
 R. (Pa.) 452; Rutherforth, Inst. bk. 2, c. 6, 
 § 19; Merlin, Report. "Desuetude." 
 
 OBSTA PRINCIPIIS. Withstand or resist 
 beginnings. 
 
 OBSTANTE. Withstanding; hindering. 
 See "Non Obstante." 
 
 OBSTRICTION. Obligation; bond. 
 
 OBTEMPERANDUM EST CONSUETUDI- 
 
 nl rationabili tanquam leg!. A reasonable 
 custom is to be obeyed like law. 4 Coke, 38. 
 
 OBTORTO COLLO (Lat.) In Roman law. 
 Taking by the neck or collar; as a plaintiff 
 was allowed to drag a reluctant defendant 
 to court. Adams, Rom. Ant. 242; Gilb. For. 
 Rom. 20. 
 
 OBTULIT SE (Lat. offered himself). In 
 old practice. The emphatic words of entry 
 on the record where one party offered him- 
 self in court against the other, and the lat- 
 ter did not appear. 1 Reeve, Hist. Bng. 
 Law, 417. 
 
 OBVENTIO (Lat. oliveiiire. to fall in). 
 
 In Civil Law. Rent or profit accru- 
 ing from a thing, or from industry. It is 
 generally used in the plural. 
 
 In Old English Law. The revenue of 
 
 spiritual living, so called. Cowell. Also, in 
 the plural, offerings. 2 Inst. 661. 
 
 OCASION, or OCCASION (Spanish). In 
 Spanish law. Accident. Las Partidas, pt. 3, 
 tit. 32, lib. 21; White, New Recop. bk. 2, tit. 
 9, c. 2. 
 
 OCCASIO (Law Lat.) In old English law. 
 Molestation; trouble; hindrance; vexation by 
 suit, "pelman; Carta de Poresta, c. 12; 
 Barr. Obs. St. 38, 39, note (k). 
 
 OCCASIONARE (Law Lat.) In old prac- 
 tice. To trouble or molest; to vex or harass 
 with litigation. Spelman; Fleta, lib. 2, c. 66, 
 § 20; Cart. Conf. 49 Hen. III. 
 
 OCCASIONES (Law Lat.) In old English 
 law. Assarts. Spelman. 
 
 OCCISION (Law Fr. from Lat. oocisio, from 
 occidere, to kill). A killing or slaying. Mur- 
 dre est occision de home. Britt. c. 6. 
 
 OCCULTATIO (Lat.) In old English law. 
 
 A hiding. Occultatio thesauri inventi fraud- 
 alosa, the fraudulent concealment ot treas- 
 ure trove. Bracton, fol. 119b; 3 Inst. 133. 
 
 OCCUPANCY. The taking possession of 
 those things corporeal which are without an 
 owner, with an intention of appropriating 
 them to one's own use. 
 
 Pothier defines it to be the title by which 
 one acquires property in a thing which be- 
 longs to nobody, by taking possession of it 
 with design of acquiring it. Tr. du Dr. de 
 Propriete, note 20. The Civil Code of Louisi- 
 ana (article 3375), nearly following Pothier, 
 defines occupancy to be "a mode of acquiring 
 property by which a thing which belongs to 
 nobody becomes the property of the person 
 who took possession of it with an intention 
 of acquiring a right of ownership in it." 
 
 Sometimes used in the sense of actual pos- 
 session of things corporeal. 
 
 "Occupancy and possession, when applied 
 to land, are synonymous." 21 111. 178. 
 
 A distinction is sometimes made in the 
 use of "occupation" to indicate mere pos- 
 session and "occupancy" for the acquirement 
 of title by the taking of possession (Abbott), 
 but it is not generally observed. 
 
 OCCUPANT, or OCCUPIER. One who 
 
 has the actual use or possession of a thing. 
 Occupancy implies the exclusion of every one 
 else from enjoyment. 25 Barb. (N. Y.) 54. 
 
 Tenant in possession. 11 Abb. Pr. (N. Y.) 
 97, 101. 
 
 OCCUPANTIS FIUNT DERELICTA. 
 
 Things abandoned become the property of 
 the first occupant. 1 Pet. Adm. (U. S.) 53. 
 
 OCCUPARE (Lat.) In the civil law. To 
 seize or take possession of; to enter upon a 
 vacant possession; to take possession before 
 another. Calv. Lex. 
 
 OCCU PATIO (Lat. from ocaiparr, to occu- 
 py). In the civil law. A taking possession 
 of a thing which before belonged to nobody 
 (quod ante nullius est) ; as of wild beasts 
 and other wild animals, property and per- 
 sons captured in war, gems and other things 
 found upon the seashore, etc. Inst. 2. 1. 12, 
 17. 18. See Fleta, lib. 3, c. 2. 
 
 OCCUPATION. See "Occupancy." 
 
 OCCUPAVIT (Lat.) In old practice. The 
 name of a writ which lies to recover the 
 possession of lands when they have been 
 taken from the possession of the owner by 
 occupation. 
 
 OCHIERN (Scotch; Law Lat. opetlinrhis). 
 In old Scotch law. A name of dignity and 
 of a freeholder. Skene de Verb. Sign. 
 
 OCHLOCRACY. A government where the 
 authority is in the hands of the multitude; 
 the abuse of a democracy. Vaumene, Diet, 
 du Language Politique. 
 
 OCTABIS (Law Lat. from octq, eight). In 
 old practice. The octave. Fleta, lib. 2, c. 
 35. See "Octave." 
 
OCTAVE 
 
 (648) 
 
 OFFICER 
 
 OCTAVE (Law Lat. utas). In old Eng- 
 lish practice. The eighth day inclusive after 
 a feast. 3 Bl. Comm. 277. 
 
 OCTO TALES (Lat. eight such). If, when 
 a trial at bar is called on, the number of 
 jurors in attendance is too small, the trial 
 must be adjourned, and a decern or ooto tales 
 awarded, according to the number deficient; 
 as, at common law, namely, a writ to the 
 sheriff to summon eight more such men as 
 were originally summoned. 3 Bl. Comm. 364. 
 
 OCTROI (Fr.) In old French law. Orig- 
 inally, a duty, which, by the permission of 
 the seigneur, any city was accustomed to 
 collect on liquors and some other goods, 
 brought within its precincts, for the con- 
 eumption of the inhabitants. Afterwards ap- 
 propriated to the use of the king. Steph. 
 Lect. p. 361. 
 
 ODHALL RIGHT. The same as "allo- 
 dial." 
 
 ODIO ET ATIA. See "De Odio et Atia." 
 
 ODIOSA ET INHONESTA NON SUNT IN 
 lege praesumanda. Odious and dishonest 
 acts are not presumed in law. Co. Litt. 78; 
 6 Wend. (N. Y.) 228, 231; IS N. Y. 295, 300. 
 
 ODIOSA NON PRAESUMUNTUR. Odi- 
 ous things are not presumed. Burr. Sett. 
 Cas. 190. 
 
 OECONOMICUS. An executor. 
 
 OECONOMUS (Lat.) In the civil law. A 
 manager or administrator. Calv. Lex. 
 
 OEPS, or OES (Law Fr.) Use. A nostre 
 oeps, to our use. Britt. c. 21; St. Westmin- 
 ster I. c. 48. A son oeps demesne. Dyer 5 
 See "Opus." 
 
 OF COUNSEL. A term applied to the 
 counsel employed by a party in a cause, or 
 whose name appears upon the papers. De- 
 rived probably from the Latin a consiliis (q. 
 V.) and expressed by the Law Latin de con- 
 silio (Law French de counsel). Dyer, 34b, 
 38. The modern phrase "of counsel for" a 
 party was formerly expressed "of counsel 
 with." "The counselltfr should give his coun- 
 sel to him with whom he is of counsel." 5 
 Coke, 20. 
 
 OF COURSE. A term applied to those 
 acts in the course of a judicial proceeding 
 which may be done without leave of court, 
 or which will be granted by the court on 
 application without inquiry. 
 
 OF NEW. A Scotch expression, closely 
 translated from the Latin "de novo" (q. v.) 
 
 OFFA EXECRATA (Law Lat.) In old 
 English law. The morsel of execration; the 
 corsned {q. v.) 1 Reeve, Hist. Bng. Law, 21 
 
 OFFENSE. In criminal law. The doing 
 that which a penal law forbids to be done, 
 or omitting to do what it commands. In 
 this sense, it is nearly synonymous with 
 "crime." In a more confined sense, it may 
 
 be considered as having the same meaning 
 with "misdemeanor;" but it differs from it 
 in this, that it is not indictable, but punish- 
 able summarily by the forfeiture of a pen- 
 alty. 1 Chit. Prac. 14. 
 
 OFFICE. A right to exercise a function 
 or employment, and take the fees and emol- 
 uments belonging to it. 3 Serg. & R. (Pa.) 
 149; 23 Ind. 449; 36 Miss. 273. 
 
 The term is ordinarily used with respect to 
 the power conferred on individuals to exer- 
 cise public functions, and in this connection 
 "public office" is a more discriminating 
 term. An "office" in this sense implies a 
 delegation of a part of the sovereign power 
 to an individual. See 3 Me. 481. 
 
 The office exists and survives as an entity 
 apart from the incumbent (28 Cal. 382; 29 
 Ohio St. 347), but it has been said that the 
 essence of the office is the power and juris- 
 diction of the officer (62 Pa. St. 343). 
 
 Offices are either civil or military. Civil 
 offices are either executive, judicial, or legis- 
 lative. 
 
 OFFICE COPY. A copy of a writing or 
 record made and certified or authenticated by 
 the officer legally intrusted with its custody 
 or control. Such a copy is admissible in ev- 
 idence to prove the original. 1 Greenl. Ev. 
 § 507. 
 
 OFFICE FOUND. 
 
 In English Law. When an inquisi- 
 tion is made to the king's use of anything, 
 by virtue of office of him who inquires, and 
 the inquisition is found, it is said to be 
 "office found." 
 
 In American Law. An action by the 
 
 state or national government, or its proper 
 officer, for the enforcement of escheat. 
 
 OFFICE GRANT. A conveyance made by 
 a public officer in certain cases, where the 
 owner is either unwilling or unable to exe- 
 cute the requisite deeds to pass title. See 3 
 Washb. Real Prop. *537. 
 
 OFFICER. The incumbent of an office. 
 The term is ordinarily -applied to the in- 
 cumbent of a public office, though it may be 
 otherwise applied, as to the officer of a cor- 
 poration. 
 
 A public officer is one occupying a public 
 office, to whom a portion of the sovereign 
 power is delegated, and whose duties are 
 continuous in their nature, and prescribed 
 by law. 
 
 The distinction between an officer and a 
 government employe is that the duties of 
 the former are fixed by law, and not by con- 
 tract. 22 Conn. 379; 36 Miss. 273; 42 N. Y. 
 Super. Ct. 481. 
 
 Executive Officers. Those whose du- 
 ties are mainly to cause the laws to be exe- 
 cuted. For example, the president of the 
 United States of America, and the several 
 governors of the different states, are execu- 
 tive officers. Their duties are pointed out 
 in the national constitution, and in the con- 
 stitutions of the several states. 
 
 Legislative Officers. Those whose du- 
 
OFFICER DE FACTO 
 
 (649) 
 
 Ol^IGARCHY 
 
 ties relate mainly to the enactment of laws, 
 such as members of congress and of the sev- 
 eral state legislatures. 
 
 These officers are confined in their duties, 
 by the constitution, generally to<make laws; 
 though sometimes, in cases of impeachment, 
 one of the houses of the legislature exercises 
 judicial functions somewhat similar to those 
 of a grand jury, by presenting to the other 
 articles of impeachment, and the other house 
 acts as a court in trying such impeachments. 
 The legislatures have, besides, the power to 
 inquire into the conduct of their members, 
 judge of their elections, and the like. 
 
 Judicial Officers. Those whose duties 
 
 are to decide controversies between indi- 
 viduals, and accusations made in the name 
 of the public against persons charged with a 
 violation of the law. 
 
 IVIinisterial Officers. Those whose duty 
 
 it is to execute the mandates, lawfully is- 
 sued, of their superiors. 
 
 IVlllitary Officers. Those who have 
 
 command in the army. 
 
 Naval Officers. Those who are in 
 
 command in the navy. 
 
 OFFICER DE FACTO. One whose acts, 
 though not those of a lawful officer, the law 
 upon principles of policy and justice will 
 hold valid so far as they involve the inter- 
 ests of the public and third persons, where 
 the duties of the office were exercised, (1) 
 without a known appointment or election, 
 but under such circumstances of reputation 
 or acquiescence as were calculated to in- 
 duce people, without inquiry, to submit to 
 or invoke his action, supposing him to be 
 the officer he assumed to be; (2) under 
 color of a known and valid appointment or 
 election, but where the officer had failed 
 to conform to some precedent requirement 
 or condition, as to take an oath, give a bond, 
 or the like; (3) under color of a known 
 election or appointment void because the 
 officer was not eligible, or because there 
 was a want of power in the electing or ap- 
 pointing body, or, by reason of some defect 
 or irregularity in its exercise, such ineligi- 
 bility, want of power or defect, being un- 
 known to the public; (4) under color of 
 an election or appointment by or pursuant 
 to a public unconstitutional law before the 
 same is adjudged to be such. 38 Conn. 449. 
 The most generally accepted of the short 
 definitions of the term is that of Lord Ellen- 
 borough: "An officer de facto is one who 
 has the reputation of being the officer he 
 assumes to be, and yet is not a good officer 
 in point of law." 6 East, 356. 
 
 OFFICER DE JURE. One having the 
 legal right to an office; generally applied to 
 such officers when not in possession of the 
 office. 
 
 OFFICIA JUDICIALIA NON CONCEDAN- 
 tur antequam vacant. Judicial offices ought 
 not to be granted before they are vacant. 
 11 Coke, 4. 
 
 OFFICIA MAGISTRATUS NON DEBENT 
 esse venalia. The offices of magistrates 
 ought not to be sold. Co. Lift. 234. 
 
 OFFICIAL. An officer ((/. v.) 
 
 In Old Civil Law. The person who 
 
 was the minister of, or attendant upon, a 
 
 magistrate. 
 In Canon Law. The person to whom 
 
 the bishop generally commits the charge of 
 
 his spiritual jurisdiction bears this name. 
 
 Wood, Inst. 30, 505; Merlin, Repert. 
 
 OFFICIAL BOND. The bond of a public 
 officer; though more loosely it is often ap- 
 plied to any bond legally required of one 
 exercising a given function, e. fir., an execu- 
 tor's or trustee's bond. 
 
 OFFICIAL USE. An active use. Whar- 
 ton. 
 
 OFFICIARIIS NON FACIENDIS VEL 
 amovendis. A writ addressed to the magis- 
 trates of a corporation, requiring them not 
 to make such a man an officer, or to put one 
 out of the office he has until inquiry is 
 made of his manners, etc. Reg. Grig. 126. 
 
 OFFICINA JUSTITIAE. The workshop 
 or office of justice. 
 
 In English Law. The chancery is so 
 
 called, because all writs issue from it, under 
 the great seal, returnable into the courts of 
 common law. See "Court of Chancery." 
 
 OFFICIOUS WILL. A testament by which 
 a testator leaves his property to his family. 
 Sandars, Just. Inst. 207. See "Inofficious 
 Testament." 
 
 OFFICIT CONATUS SI EFFECTUS SEQ- 
 uatur. The attempt becomes of consequence, 
 if the effect follows. 
 
 OFFICIUM NEMINI DEBET ESSE DAM- 
 nosum. An office ought to be injurious to 
 no one. Bell, Diet. 
 
 OIR (Spanish; from Lat. audire, to hear). 
 In Spanish law. To hear; to take cogni- 
 zance. White, New Recop. bk. 3, tit. 1, c. 7. 
 
 OLD STYLE. See "New Style." 
 
 OLD TENURES. The title of a small 
 tract, which, as its title denotes, contains an 
 account of the various tenures by which land 
 was holden in the reign of Edward III. 
 This tract was published in 1719, with notes 
 and additions, with the eleventh edition of 
 the First Institutes, and reprinted in 8vo, 
 in 1764, by Serjeant Hawkins, in a Selection 
 of Coke's Law Tracts. 
 
 OLERON, LAWS OF. A maritime code 
 promulgated by Eleanor, duchess of Guienne, 
 mother of Richard I., at the Isle of Oleron, — 
 whence their name. They were modified and 
 enacted in England under Richard I., and 
 again promulgated under Henry III. and Ed- 
 ward III., and are constantly quoted in pro- 
 ceedings before the admiralty courts, as are 
 also the Rhodian Laws. Co. Lift. 2. See 
 Code, § 25. 
 
 OLIGARCHY (Gr. the government of a 
 few). A name given to designate the power 
 which a few citizens of a state have usurped. 
 
OLOGRAPH 
 
 (6S0) 
 
 OMNIA, ETC. 
 
 which ought by the constitution to reside 
 in the people. Among the Romans, the gov- 
 ernment degenerated several times into an 
 oligarchy; for example, under the decemvirs, 
 when they became the only magistrates in 
 the commonwealth. 
 
 OLOGRAPH. A term which signifies that 
 an instrument is wholly written by the par- 
 ty from whom it emanates. See Civ. Code 
 La. art. 1581; Civ. Code, 970; 5 Toullier, Dr. 
 Civ. note 357; 1 Stuart, K. B. 327; 2 Bouv. 
 Inst, note 2139. 
 
 OM, or OMME (Law Fr.) Man; a man or 
 person. Corrupted forms of "home" (g. v.) 
 Kelham. 
 
 OME BUENO (Spanish). In Spanish law. 
 A good man ; a substantial person. Las. Par- 
 tidas, pt. 5, tit. 13, lib. 38. 
 
 OMISSIO (Lat. from orai^ere). Omission; 
 a leaving out. 
 
 OMISSIO EORUM QUAE TACITE IN- 
 sunt nihil operatur. The omission of those 
 things which are silently expressed is of no 
 consequence. ' 2 Bulst. 131. 
 
 OMISSION. Neglect to perform an act 
 required by law. 
 
 OMISSIS OMNIBUS ALMS NEGOTIIS 
 
 (Lat.) Laying aside all other businesses. 9 
 East, 347. 
 
 OMNE ACTUM AB INTENTIONS AGEN- 
 tis est judicandum. Every act is to be esti- 
 mated by the intention of the doer. Branch, 
 Princ. 
 
 OMNE CRIMEN EBRIETAS ET INCEN- 
 dit et detegit. Drunkenness inflames and 
 reveals every crime. Co. Litt. 247. 
 
 OMNE JUS AUT CONSENSUS FECIT, 
 aut necessitas constituit, aut firmavit con- 
 suetude. All law has either been derived 
 from the consent of the people, established 
 by necessity, or confirmed by custom. Dig. 
 1. 3. 40; Broom, Leg. Max. (3d London Ed.) 
 616, note. 
 
 OMNE MAGIS DIGNUM TRAHIT AD SE 
 minus dignum sit antiquius. Every worthier 
 thing draws to it the less worthy, though the 
 latter be more ancient. Co. Litt. 355. 
 
 OMNE MAGNUM EXEMPLUM HABET 
 aliquid ex iniquo, quod publica utiiitate com- 
 pensatur. Every great example has some 
 portion of evil, which is compensated by its 
 public utility. Hob. 279. 
 
 OMNE MAJUS CONTINET IN SE Mi- 
 nus. The greater contains in itself the less. 
 5 Coke, 115a; Wingate, Max. 206; Story, Ag. 
 § 172; Broom, Leg. Max. (3d London Ed.) 
 173. 
 
 OMNE MAJUS DIGNUM CONTINET IN 
 se minus dignum. The more worthy con- 
 tains in itself the less worthy. Co. Litt. 143. 
 
 OMNE MAJUS MINUS IN SE COMPLECI- 
 tur. Every greater embraces in itself the 
 minor. Jenk. Cent. Cas. 208. 
 
 OMNE PRINCIPALE TRAHIT AD SE 
 accessorium. Every principal thing draws 
 to Itself the accessory. 17 Mass. 425; 1 
 Johns. (N. Y.) 580. 
 
 OMNE QUOD INAEDIFICATUR SOLO 
 cedit. Everything belongs to the soil which 
 is bujlt upon it. Dig. 41. L 7. 10; Id. 47. 3. 
 1; Inst. 2. 1. 29; Broom, Leg. Max. (3d Lon- 
 don Ed.) 355; Fleta, lib. 3, c. 2, § 12. 
 
 OMNE SACRAMENTUM DEBET ESSE 
 de certa sclentia. Every oath ought to be 
 founded on certain knowledge. 4 Inst. 279. 
 
 OMNE TESTAMENTUM MORTE CON- 
 summatum est. Every will is consummat- 
 ed by death. 3 Coke, 29b; 4 Coke, 61b; 2 
 Bl. Comm. 500; Shep. Touch. 401. 
 
 OMNES ACTIONES IN MUNDO INFRA 
 certa tempora habent limitationem. All ac- 
 tions in the world are limited within cer- 
 tain periods. Bracton, 52. 
 
 OMNES HOMINES AUT LIBERI SUNT 
 aut servi. All men are freemen or slaves., 
 Inst. 1. 3. pr.; Fleta, lib. 1, c. 1, § 2. 
 
 OMNES LICENTIAM HABERE HISQUAE 
 pre se Indulta sunt, renunciare. All shall 
 have liberty to renounce those things which 
 have been established in their favor. Code, 
 2. 3. 29; Id. 1. 3. 51; Broom, Leg. Max. (3d 
 London Ed.) 625. 
 
 OMNES PRUDENTES, ILLA ADMITTERE 
 sclent quae probantur iis qui in arte sua 
 bene versati sunt. All prudent men are ac- 
 customed to admit those things which are 
 approved by those who are well versed in 
 the art. 7 Coke, 19. 
 
 OMNES SORORES SUNT QUASI UNUS 
 haeres de una haereditate. All sisters are, 
 as it were, one heir to one inheritance. Co. 
 Litt. 67. 
 
 OMNIA DELICTA IN APERTO LEVIORA 
 sunt. AH crimes committed openly are con- 
 sidered lighter. 8 Coke, 127. 
 
 -OMNIA PERFORMAVIT (Lat. he has done 
 all). In pleading. A good plea in bar where 
 all the covenants are in the affirmative. 1 
 Me. 189. 
 
 OMNIA PRAESUMUNTUR CONTRA 
 
 spoliatorem. All things are presumed 
 against a wrongdoer. Broom, Leg. Max. (3d 
 London Ed.) 843. 
 
 OMNIA PRAESUMUNTUR LEGITIME 
 facta donee probetur In contrarium. All 
 things are presumed to be done legitimately 
 until the contrary is proved. Co. Litt. 232. 
 
 OMNIA PRAESUMUNTUR RITE ESSE 
 acta. All things are presumed to be done 
 in due form. Co. Litt. 6. 
 
OMNIA PRAESDMUNTUR, ETC. (651) 
 
 OMNIUM RERUM, ETC. 
 
 OMNIA PRAESUMUNTUR RITE ET SO- 
 lemniter esse acta. All things are presum- 
 ed to have been rightly and regularly done. 
 Co. Litt. 232b; Broom, Leg. Max. (3d London 
 Ed.) 847; 12 C. B. 788; 3 Exch. 191; 6 Exch. 
 716. Omnia rite esse acta praesumuntur. 
 11 Cush. (Mass.) 441; 2 Ohio St. 246, 247; 
 
 4 Ohio St. 148; 6 Ohio St. 293. 
 
 OMNIA PRAESUMUNTUR RITE ET SO- 
 lemniter esse acta donee probetur in contra- 
 rium. All things are presumed to have been 
 done regularly and with due formality until 
 the contrary is proved. Broom, Leg. Max. 
 (3d London Ed.) 157, 849; 3 Bing. 381; 2 
 Campb. 44; 1 Cromp. & M. 461; 17 C. B. 183; 
 
 5 Barn. & Adol. 550; 12 Mees. & W. 251; 12 
 Wheat. (U. S.) 69, 70. 
 
 OMNIA PRAESUMUNTUR SOLEMNITER 
 esse acta. All things are presumed to have 
 been done rightly. Co. Litt. 6. 
 
 OMNIA QUAE JURE CONTRAHUNTUR, 
 contrario jure pereunt. Obligations con- 
 tracted under a law are destroyed by a law 
 to the contrary. Dig. 50. 17. 100. 
 
 OMNIA QUAE SUNT UXORIS SUNT 
 ipslus viri. All things which are the wife's 
 belong to the husband. Co. Litt. 112; 2 
 Kent, Comm. 130, 143. 
 
 OMNIBUS AD QUOS PRAESENTES 
 literae pervenerint, salutem. To all to whom 
 the present letters shall come, greeting. A 
 form of address with which charters and 
 deeds were anciently commenced. 
 
 OMNIS ACTIO EST LOQUELA. Every 
 action is a complaint. Co. Litt. 292. 
 
 OMNIS CONCLUSIO BONI ET VERI JU- 
 dicii sequitur ex bonis et veris praemissis et 
 dictis juratorum. Every conclusion of a 
 good and true judgment arises from good 
 and true premises, and the verdicts of jurors. 
 Co. Litt. 226. 
 
 OMNIS CONSENSUS TOLLIT ERRO- 
 rem. Every consent removes error. 2 Inst. 
 123. 
 
 OMNIS DEFINITIO IN JURE CIVILI 
 periculosa est, parum est enim ut non sub- 
 verti possit. Every definition in the civil 
 law is dangerous, for there is very little that 
 cannot be overthrown. There is no rule in 
 the civil law which is not liable to some ex- 
 ception; and the least difference in the facts 
 of the case renders its application useless. 
 Dig. 50. 17. 202; 2 Wooddeson, Lect. 196. 
 
 OIVINIS DEFINITIO IN JURE PERICULO- 
 sa est; parum est enim ut non subverti pos- 
 set. Every definition in law is perilous, for 
 it is within an ace of being subverted. Dig. 
 50.' 17. 202; 2 Wooddeson, Lect. 196. 
 
 OMNIS EXCEPTIO EST IPSA QUOQUE 
 regula. An exception is in itself also a rule. 
 
 OMNIS INDEMNATUS PRO INNOXIS 
 legibus habetur. Every uneondemned per- 
 
 son is held by the law as innocent. Lofft, 
 121. 
 
 OMNIS INNOVATIO PLUS NOVITATE 
 perturbat quam utilitate prodest. Every in- 
 novation disturbs more by its novelty than 
 it benefits by its utility. 2 Bulst. 338; 1 
 Salk. 20. 
 
 OMNIS INTERPRETATIO SI FIERI Po- 
 test ita fienda est in instrumentis, ut omnes 
 contrarietates amoveantur. The interpreta- 
 tion of instruments is to be made, if they 
 will admit of it, so that all contradictions 
 may be removed. Jenk. Cent. Cas. 96. 
 
 OMNIS INTERPRETATIO VEL DECLAR- 
 at, vel extendit, vel restringlt. Every inter- 
 pretation either declares, extends, or re- 
 strains. 
 
 OMNIS NOVA CONSTITUTIO FUTURIS 
 formam imponere debet, non praeteritis. 
 Every new statute ought to prescribe a form 
 to future, not to past, acts. Bracton, fol. 
 228; 2 Inst. 95. 
 
 OMNIS PERSONA EST HOMO, SED NON 
 vicissln. Every person is a man, but not 
 every man a person. Calv. Lex. 
 
 OMNIS PRIVATIO PRAESUPPONIT 
 habitum. Every privation presupposes for- 
 mer enjoyment. Co. Litt. 339. 
 
 OMNIS QUERELA ET OMNIS ACTIO IN- 
 jurlarum limitata est infra certa tempora. 
 Every plaint and every action for injuries 
 is limited within certain times. Co. Litt. 
 114. 
 
 OMNIS RATIHABITIO RETRO TRAHI- 
 
 tur et mandate aequiparatur. Every sub- 
 sectuent ratification has a retrospective ef- 
 fect, and is equivalent to a prior command. 
 Co. Litt. 207a; Story, Ag. (4th Ed.) 102; 
 Broom, Leg. Max. (3d London Ed.) 715; 2 
 Bouv. Inst. 25; 4 Bouv. Inst. 26; 8 Wheat. 
 (U. S.) 363; 7 Exch. 726; 10 Exch. 845; 9 
 C. B. 532, 607; 14 C. B. 53. 
 
 OMNIS REGULA SUAS PATITUR EX- 
 ceptiones. Every rule of law is liable to its 
 own exceptions. 
 
 OMNIUM (Lat.) In mercantile law. A 
 term used to express the aggregate value 
 of the different stocks in which a loan is 
 usually funded. 2 Esp. 361; 7 Term R. 630. 
 
 OMNIUM CONTRIBUTIONE SARCIA- 
 tur quod pro omnibus datum est. What is 
 given for all shall be compensated for by the 
 contribution of all. 4 Bing. 121; 2 Marsh. 
 309. 
 
 OMNIUM RERUM QUARUM USUS EST, 
 potest esse abusus, virtute solo excepta. 
 There may be an abuse of everything of 
 which there is a use, virtue only excepted. 
 Dav. 79. 
 
ON ACCOUNT, ETC. 
 
 (652) 
 
 OPENING 
 
 ON ACCOUNT OF WHOM IT MAY CON- 
 cern, or For whom it may concern. A clause 
 in policies of insurance, under which all are 
 insured who have an insurable interest at 
 the time of effecting the insurance, and who 
 were then contemplated by the party effect- 
 ing the insurance. 2 Pars. Mar. Law, 30. / 
 
 ON CALL. On demand. 22 Grat. (Va.) 609. 
 
 ON DEMAND. When requested. A prom- 
 issory note payable "on demand" is payable 
 immediately without demand, i. e., is always 
 due. 
 
 ONCE IN JEOPARDY. See "Jeopardy." 
 
 ONE HUNDRED THOUSAND POUNDS 
 clause. A precautionary stipulation insert- 
 ed in a deed making a good tenant to the 
 praecipe in a common recovery. See 1 Prest. 
 Conv; 110. 
 
 ONERANDO PRO ftATA PORTIONIS. A 
 
 writ that lay for a joint tenant or tenant in 
 common who was distrained for more rent 
 than his proportion of the land comes to. 
 Reg. Grig. 182. 
 
 ONERARI NON CLat. ought not to be 
 burdened). In pleading. The name of a 
 plea by which the defendant says that he 
 ought not to be charged. It is used in an 
 action of debt. 1 Saund. 290, note (a). 
 
 ONERATUR NISI. See "O. Ni." 
 
 ONERIS FERENDI (Lat. of bearing a 
 burden). In civil law. The name of a serv- 
 itude by which the wall or pillar of one 
 house is bound to sustain the weight of the 
 buildings of the neighbor. 
 
 The owner of the servient building is 
 bound to repair and keep it sufficiently 
 strong for the weight it has to bear. Dig. 
 8. 2. 23; 2 Bouv. Inst, note 1627. 
 
 ONEROUS. A contract, lease, share, or 
 other right is said to be "onerous" when the 
 obligations attaching to It counterbalance 
 or exceed the advantage to be derived from 
 it, either absolutely or with reference to 
 the particular possessor. Rapalje & L. 
 
 ONEROUS CAUSE. 
 
 uable consideration. 
 
 In civil law. A val- 
 
 ONEROUS CONTRACT. In civil law. 
 One made for a consideration given or prom- 
 ised, however small. Civ. Code La. art. 1767. 
 
 ONEROUS DEED. In Scotch law. A 
 deed given for valuable consideration. Bell, 
 Diet. See "Consideration." 
 
 ONEROUSGIFT. The gift of a thing sub- 
 ject to certain charges imposed by the giver 
 on the donee. Poth. Obi. 
 
 ONOMASTIC. A term applied to a sig- 
 nature which is in a different handwriting 
 from the body of the instrument. 2 Benth. 
 Jud. Bv. 460, 461. 
 
 ONUS PROBANDI (Lat.) In evidence. 
 The burden of proof. 
 
 OPE CONSILIO (Lat.) By aid and coun- 
 sel. A civil law term applied to accessaries, 
 similar in import to the "aiding and abet- 
 ting" of the common law. Often written 
 "ope et consilio." 
 
 OPEN A CREDIT. To accept or pay the 
 draft of a correspondent who has not fur- 
 nished funds. Pardessus, note 296. 
 
 OPEN ACCOUNT. A running or unset- 
 tled account. 
 
 OPEN CORPORATION. One in which all 
 members have a vote to choose officers, as 
 distinguished from a "close corporation," 
 wherein the officers fill vacancies. 3 Bland, 
 Ch. (Md.) 416, note. 
 
 The latter term in common use means 
 that all stock is closely held, usually by a 
 few persons, so that no one else can, by 
 purchase of shares, obtain a voice in the 
 policy of the corporation. 
 
 OPEN COURT. A court formally opened 
 and engaged in the transaction of all judicial 
 functions. 
 
 A court to which all persons have free 
 access, as spectators while they conduct them- 
 selves in an orderly manner. 
 
 The term is used in the first sense as dis- 
 tinguishing a court from a judge sitting in 
 chambers or informally for the transaction 
 of such matters as may be thus transacted. 
 See "Chambers;" "Court." 
 
 In the second sense, all courts in the Unit- 
 ed States are open; but in England, former- 
 ly, while the parties and probably their wit- 
 nesses were admitted freely in the courts, all 
 other persons were required to pay in order 
 to obtain admittance. St. 13 Bdw. I. cc. 42, 
 44; Barr. Obs. St. 126, 127. See Princ. Pen. 
 Law, 165. 
 
 OPEN DOORS. In Scotch law. "Letters 
 of open doors" are process which empower 
 the messenger or officer of the law to break 
 open doors of houses or rooms in which the 
 debtor has placed his goods. Bell, Diet. 
 
 OPEN LAW. The trial by duel or ordeal. 
 See "Lex Manifesta." 
 
 OPEN POLICY. An open policy is one in 
 which the amount of the interest of the in- 
 sured is not fixed by the policy, and is to be 
 ascertained in case of loss. See "Policy." 
 
 OPEN THEFT. In Saxon law The same 
 with the Latin furtum manifestum (g. v.) 
 
 OPENING. 
 
 In American Practice. The begin- 
 ning; the commencement; the first address 
 of the counsel. The opening is made Imme- 
 diately upon the impanelling of the jury. It 
 embraces the reading of such of the plead- 
 ings as may be necessary, and a brief out- 
 line of the case as the party expects to prove 
 it, where there is a trial, or of the argu- 
 ment, where It is addressed to the court. 
 
 In English Practice. The address 
 
 made immediately after the evidence is 
 closed. Such address usually states, first, 
 the full extent of the plaintiff's claims, and^ 
 
OPENING A COMMISSION 
 
 (6S3) 
 
 OPINION 
 
 the circumstances under whicli they are 
 "made, to show that they are just and reason- 
 able; second, at least an outline of the evi- 
 dence by which those claims are to be es- 
 tablished; third, the legal grounds and au- 
 thorities in favor of the claim or of the 
 proposed evidence; fourth, an anticipation 
 of the expected defense, and statement of 
 the grounds on which it is futile, either in 
 law or justice, and the reasons why it ought 
 to fail. But the court will sometimes re- 
 strict counsel from an anticipation of the 
 defense. 3 Chit. Prao. 881; 3 Bouv. Inst, 
 note 3044 et seq. 
 
 OPENING A COMMISSION. An entering 
 upon the duties under a commission, or 
 commencing to act under a commission, is 
 so termed. Thus, the judges of assize and 
 nisi prius derive their authority to act un- 
 der or by virtue of commissions directed to 
 them for that purpose; and, when they com- 
 mence acting under the powers so committed 
 to them, they are said to open the commis- 
 sions; and the day on which they so com- 
 mence their proceedings is thence termed 
 the "commission day of the assizes." Brown. 
 
 OPENING A, JUDGMENT. Taking off the 
 bar of finality so as to permit the recon- 
 sideration of the judgment and of the cause 
 on which it was founded. It does not abro- 
 gate the judgment, as does "vacation of 
 judgment." 
 
 OPENING A POLICY OF INSURANCE. 
 
 The question has been made whether, and in 
 what cases, if any, the valuation in a valued 
 policy shall be opened. The valuation, being a 
 part of the agreement of the parties, is not 
 to be set aside as between them in any case. 
 The question Is, how shall it be treated where 
 only a part of the subject insured and valued 
 is put at a risk, and also in the settlement 
 of a particular average? and the answer is 
 the same in both cases, viz., when the pro- 
 portion or rate per centum put at risk or 
 loss is ascertained, the agreed valuation of 
 the whole is to be applied to the part put at 
 risk, or the proportion lost, pro rata. 2 
 Phil. Ins. 1203. 
 
 OPENING A RULE. The act of restoring 
 or recalling a rule which has been made 
 absolute to its conditional state, as a rule 
 nisi, so as to readmit of cause being shown 
 against the rule. Thus, when a rule to show 
 cause has been made absolute under a mis- 
 taken impression that no counsel had been 
 instructed to show cause against it, it is 
 usual for the party at whose instance the 
 rule was obtained to consent to have the 
 rule opened, by which all the proceedings 
 subsequent to the day when cause ought to 
 have been shown against it are in effect 
 nullified, and the rule is then argued in the 
 ordinary way. Brown. 
 
 OPENING BIDDINGS. Ordering a resale. 
 When estates are sold under decree of equity 
 to the highest bidder, the court will, on no- 
 tic of an offer of a sufficient advance on the 
 price obtained, open the biddings, i. e., order 
 a resale; but this will not generally be done 
 
 after the confirmation of the certificate of 
 the highest bidder. So, by analogy, a resale 
 has been ordered of an estate sold under 
 bankruptcy. Sugd. Vend. 90; 22 Barb. (N. 
 Y.) 167; 8 Md. 322; 9 Md. 228; 13 Grat. 
 (Va.) 639; 4 Wis. 242; 31 Miss. 514. 
 
 OPENING THE PLEADINGS. Making 
 an opening statement to the jury of the is- 
 sues at the beginning of a trial. 
 
 OPERARIUS (Law Lat. from opus, work). 
 In old English law. A workman or laborer. 
 Pleta, lib. 2, c. 73, § 4. 
 
 OPERATION OF LAW. A term applied 
 to indicate the manner in which a party ac-- 
 quires rights without any act of his own, as, 
 the right to an estate of one who dies in- 
 testate is cast upon the heir at law, by opera- 
 tion of law. When a lessee for life enfeoffs 
 him in reversion, or when the lessee and les- 
 sor join in a feoffment, or when a lessee for 
 life or years accepts a new lease or demise 
 from the lessor, there is a surrender of the 
 first lease by operation of law. 5 Barn. & 
 C. 269; 9 Barn. & C. 298; 2 Barn. & Adol. 
 119; 5 Taunt. 518. See "Descent;" "Pur- 
 chase." 
 
 OPERATIVE. A workman; one employed 
 to perform labor for another. See 2 Cush. 
 (Mass.) 371. 
 
 OPERATIVE PART." In a written instru- 
 ment, that which carries out the main ob- 
 ject of the instrument, as distinguished from 
 the recitals, formal conclusion, etc. Some- 
 times everything that follows the recitals is 
 called the operative part. 
 
 OPERATIVE WORDS. Those by which 
 the purpose of an instrument is effected. 
 Generally applied to those words in a deed 
 by which an estate is passed, viz., "grant," 
 "quitclaim," "demise," "bargain and sell," 
 etc. 
 
 OPERIS NOVI NUNTIATIO. In the civil 
 law. A protest or warning against (of) a 
 new work. Dig. 39. 1. 
 
 OPINIO EST DUPLEX, SCILICET, 
 opinio vulgaris, orta inter graves et discre- 
 tes, et quae vultum veritatis habet, et opinio 
 tantum orta inter leves et vulgares hom- 
 ines, absque specie veritatis. Opinion is of 
 two kinds, namely, common opinion, which 
 springs up among grave and discreet men, 
 and which has the appearance of truth, and 
 opinion which springs up only among light 
 and foolish men, without the semblance of 
 truth. 4 Coke, 107. 
 
 OPINIO QUAE FAVET TESTAMENTO 
 est tenenda. That opinion is to be followed 
 which favors the will. 
 
 OPINION. 
 
 In Evidence. An inference or conclu- 
 sion stated by a witness, as distinguished 
 from a statement of matters of fact. 
 
 In Practice. The statement of rea- 
 sons delivered by a judge or court for giv- 
 ing the judgment which is pronounced upon 
 
OPORTET 
 
 (654) 
 
 OPUS MAGNIPICIUM 
 
 a case. The judgment itself is sometimes 
 called an opinion, and sometimes the opin- 
 ion is spoken of as the judgment of the 
 court. 
 
 A declaration, usually in writing, made by 
 a counsel to his client of what the law is, 
 according to his judgment, on a statement 
 of facts ' submitted to him. 
 
 An opinion is in both the above cases a 
 decision of what principles of law are to be 
 applied in the particular case, with the dif- 
 ference that judicial opinions pronounced 
 by the court are law and of authority, while 
 the opinions of counsel, however eminent, 
 are merely advice to his client or argument 
 to the court. 
 
 OPORTET (Lat.) It behooves; it is need- 
 ful or necessary. Oportebit (the future 
 form) had, in the civil law, the sense of 
 oportet. Dig. 50. 16. 8. And as to the 
 meaning of oportere, see Dig. 50. 16. 
 
 OPORTET QUOD CERTA RES DEDUCA- 
 tur in donationem. It is necessary that a 
 certain thing be brought into the gift, or 
 taade the subject of the conveyance. Brac- 
 ton, fol. 15b. 
 
 OPORTET QUOD CERTA RES DEDUCA- 
 
 tur in judicium. A thing, to be brought to 
 judgment, must be certain or definite. Jenk, 
 Cent. Cas. 84; Bracton, fol. 15b. 
 
 OPORTET QUOD CERTA SIT RES 
 quae venditur. A thing, to be sold, must be 
 certain or definite. 
 
 OPORTET QUOD CERTAE PERSONAE, 
 terrae, et certi status, compreliendantur in 
 declaratione usuum. It is necessary that 
 certain persons, lands, and estates be compre- 
 hended in a declaration of uses. 9 CJoke, 9. 
 
 OPP'. A contraction of oMuUt or optulit, 
 in the old books. A. opp' see versus B. quar- 
 to die, A. offered himself against B. on the 
 fourth day. Fleta, lib. 2, c. 65, § 11; Id. c. 
 ■67, § 2. 
 
 OPPIDUIVI (Lat.) A town. Dig. 50. 16. 
 ■239. 7. 
 
 OPPIGNERARE (Lat.) In the civil law. 
 To pledge. Calv. Lex. 
 
 OPPOSE R (Law Lat. oppositor). In old 
 English law. An officer in the court of ex- 
 chequer. See "Foreign Apposer." -Some- 
 times treated as a corrupted form of appo- 
 ser' (q. V.J, but there are good reasons for 
 ■considering it as the genuine word. 
 
 OPPOSITA JUXTA SE POSITA IVIAGIS 
 
 elucescunt. Opposites placed next each 
 •other appear in a clearer light. 4 Bac. 
 Works, 256, 258, 353. 
 
 OPPOSITION. In bankruptcy practice. 
 The act of a creditor who declares his dis- 
 sent to a debtor's being discharged under the 
 "bankrupt laws. 
 
 OPPRESSION. The act of an officer in 
 inflicting upon any person, with improper 
 motive, any bodily harm, imprisonment, or 
 
 other injury, not constituting extortion. 
 Steph. Dig. art. 119; 4 Q. B. 475. 
 
 OPTIMA ENIIVI EST LEGIS INTERPRES 
 consuetude. Usage is the best interpreter 
 of law. 2 Inst. IS; Broom, Leg. Max. (3d 
 London Ed.) 823. 
 
 OPTIMA EST LEX, QUAE MINIMUM 
 relinquit arbitrio judicis. That is the best 
 system of law which confides as little as pos- 
 sible to the discretion of the judge. Bac. 
 Aph. 46. 
 
 OPTIMA STATUTI INTERPRETATRIX 
 est (omnibus particulis ejusdem inspectis) 
 ipsum statutum. The best interpretress of 
 a statute is (all the separate parts being con- 
 sidered) the statute itself. 8 Coke, 117; 
 Wingate, Max. 239, max. 68. 
 
 OPTIMAM ESSE LEGEM, QUAE MINI- 
 mum relinquit arbitrio judicis; id quod cer- 
 titudo ejus praestat. That law is the best 
 which leaves the least discretion to the 
 judge; and this is an advantage which re- 
 sults from its certainty. Bac. Aph. 8. 
 
 OPTIMUS INTERPRES RERUM USUS. 
 
 Usage is the best interpreter of things. 2 
 Inst. 282. 
 
 OPTIMUS I NTERPRETANDI MODUS 
 es^ sic legis interpretare ut leges legibus 
 accordant. The best mode of interpreting 
 laws is to make them accord. 8 Coke, 169. 
 
 OPTIMUS JUDEX, QUI MINIMUM SIBI. 
 He is the best judge who relies as little as 
 possible on his own discretion. Bac. Aph. 
 46. 
 
 OPTIMUS LEGUM INTERPRES CON- 
 suetudo. Custom is the best interpreter of 
 laws. 4 Inst. 75; 2 Pars. Cont. 53. 
 
 OPTION. A right of choice or election. 
 Sometimes applied specifically to contracts 
 whereby one purchases the right for a cer- 
 tain time, at his election, to demand and 
 receive or to deliver property at a stated 
 price. See "Gambling Contract." 
 
 OPTIONAL WRIT. An original writ in 
 the alternative, commanding either to do a 
 thing, or show cause why it has not been 
 done. 3 Bl. Comm. 274; Finch, Law, 257. 
 
 OPTULIT. An old form of ohtuVit, used in 
 Bracton. Bracton, fols. 354, 354b. 
 
 OPUS (Lat. and Law Lat.) In civil and 
 old English law. 'Work; labor; benefit; 
 advantage. This word seems to have been 
 framed from the Law French oeps (q. r.) 
 
 A thing made or done by labor. 
 
 OPUS LOCATUM (Lat.) In civil law. A 
 work, /. e., the result of work, let to another 
 to be used. A work, i. e., something to be 
 completed by work, hired to be done by an- 
 other. Vicat, "Opus," "Locare;" L. 51, § 1, 
 D. "Locat.;" L. 1, § 1, D. ad leg. Rhod. 
 
 OPUS MAGNIFICIUM (or MANIFICIUM) 
 (from Lat. opus, work; manus, hand). In 
 
OPUS NOVUM 
 
 (6SS) 
 
 ORDERS OF THE DAY 
 
 old English law. Manual labor. Pleta, lib. 
 %, c. 48, § 3. 
 
 OPUS NOVUM. In civil law. A new 
 work. A new (i. e., late or recent) con- 
 struction on land, or alteration in works 
 already there. Dig. 39. 1. 1. 11. 
 
 OR. Ordinarily a disjunctive particle. To 
 further the intent of the parties, however, 
 it has often been construed as conjunctive. 
 98 U. S. 143; 30 Ohio St. 407; 36 Wis. 466; 
 3 Gill (Md.) 492; 1 Yeates (Pa.) 316; 14 
 Daly (N. Y.) 361. 
 
 It is sometimes used also to introduce a 
 synonymous or further expression in ex- 
 planation of what precedes, pi U. S. 362; 8 
 Mass. 59. 
 
 ORACULUM (Lat.) In civil law. The 
 name of a kind of decision given by the Ro- 
 man emperors. 
 
 ORAL. Spoken, in contradistinction to 
 written; as, oral evidence, which is evidence 
 delivered verbally by a witness. 
 
 ORANDO PRO REGE ET REGNO. An 
 
 ancient writ which issued, while there was 
 no standing collect for a sitting parliament, 
 to pray for the peace and good government 
 of the realm. 
 
 ORATOR. 
 
 In Chancery Practice. The party 
 
 -who files a bill. 
 
 In Roman Law. An advocate. Code, 
 
 1. 3. 33. 1. 
 
 ORATRIX. The feminine form of "ora- 
 tor." 
 
 ORCINUS LIBERTUS (Lat.) In Roman 
 law. A freedman who obtained his liberty 
 T)y the direct operation of the will or tes- 
 tament of his deceased master was so called, 
 being the freedman of the deceased (orci- 
 ■nus), not of the Uaeres. Brown. 
 
 ORDAIN. To ordain is to make an ordi- 
 nance, to enact a law. 
 
 The preamble to the constitution of the 
 XTnited States declares that the people "do 
 ordain and establish this constitution for the 
 United States of America." The third article 
 •of the same constitution declares that "the 
 judicial power shall be vested in one su- 
 preme court, and in such inferior courts as 
 the congress may from time to time ordain 
 and establish." See 1 Wheat. (U.S.) 304, 
 :324; 4 Wheat. (U. S.) 316, 402. 
 
 ORDEAL. An ancient superstitious mode 
 ■of trial. 
 
 When in a criminal case the accused was 
 :arraigned, he might select the mode of trial 
 either by God and his country, — that is, by 
 .jury,— or by God only, — that is, by ordeal. 
 
 The trial by ordeal was either by fire or 
 by water. Those who were tried by the for- 
 mer passed barefooted and blindfolded over 
 nine hot, glowing ploughshares, or were to 
 •carry burning irons in their hands, and ac- 
 ■cordingly as they escaped or not they were 
 acquitted or condemned. The water ordeal 
 
 was perforrded either in hot or cold water. 
 In cold water, the parties suspected were ad- 
 judged innocent if their bodies were not 
 borne up by the water contrary to the course 
 of nature; and if, after putting their bare 
 arms or legs into scalding water, they came 
 out unhurt, they were taken to be innocent 
 of the crllne. It was supposed that God 
 would, by the mere contrivance of man, ex- 
 ercise his power in favor of the innocent. 4 
 Bl. Comm. 342; 2 Am. Jur. 280. For a de- 
 tailed account of the trial by ordeal, see Her- 
 bert, Ant. Inns of Court, 146. 
 
 ORDEFFE. A liberty whereby one claims 
 ore found on his own land. 
 
 ORDENAMIENTO (Spanish). In Spanish 
 law. An order emanating from the sover- 
 eign, and differing from a cedula only in 
 form, and in the mode of its promulgation. 
 Schmidt, Civ. Law, Introd. 93, note. 
 
 ORDENAMIENTO DE ALCALA (Span- 
 ish). A collection of Spanish law, promul- 
 gated by the Cortes in the year 1348. 
 Schmidt, Civ. Law, Introd. 75. 
 
 ORDER. Command; direction. 
 
 An informal bill of exchange or letter of 
 request requiring the party to whom it is 
 addressed to deliver property of the persdn 
 making the order to some one therein de- 
 scribed. 
 
 A designation of the person to whom a 
 bill of exchange or negotiable promissory 
 note is to be paid. 
 
 This order, in the case of negotiable paper, 
 is usually by indorsement, and may be either 
 express, as, "Pay to C. D.," or implied mere- 
 ly, as by writing A. B. (the payee's name). 
 See "Indorsement." 
 
 In French Law. The act by which 
 
 the rank of preferences" of claims, among 
 creditors who have liens over the price 
 which arises out of the sale of an immovable 
 subject, is ascertained. Dalloz. 
 
 In Governmental Law. By this expres- 
 sion is understood the several bodies which 
 compose the state. In ancient Rome, for ex- 
 ample, there were three distinct orders, 
 namely, that of the senators, that of the pa- 
 tricians, and that of the plebeians. In the 
 United States there are no orders of men; 
 all men are equal in the eye of the law. See 
 "Rank." 
 
 ORDER NISI. A conditional order, which 
 is to be confirmed unless something be done, 
 which has been required, by a time specified. 
 Eden, Inj. 122. See "Nisi." 
 
 ORDER OF FILIATION. The judgment 
 rendered in a bastardy proceeding, whereby 
 a certain man is adjudged the father of a 
 bastard child. 
 
 ORDERS OF THE DAY. Any member of 
 the English house of commons who wishes 
 to propose any question, or to "move the 
 house," as it is termed, must, in order to 
 give the house due notice of his intention, 
 state the form or nature of his motion on a 
 previous day, and have it entered in a 
 
ORDINANCE 
 
 (656) 
 
 ORDINES MAJORES, ETC. 
 
 book termed the "order book;" and the mo- 
 tions so entered, the house arranges, shall be 
 considered on particular days, and such mo- 
 tions or matters, when the day arrives for 
 their being considered, are then termed the 
 "orders of the day." Brown; May, Pari. 
 Prac. 
 
 ORDINANCE. 
 
 In Modern Usage. A law passed by 
 
 the legislative body of a municipal corpora- 
 tion for the government of such municipal- 
 ity. 117 Ind. 221. 
 
 In Old Law. The term was applied to 
 
 laws of other than municipal bodies. 
 
 The following account of the difference be- 
 tween a statute and an ordinance is ex- 
 tracted from Bac. Abr. "Statute" (A) : 
 "Where the proceeding consisted only of a 
 petition from parliament and an answer from 
 the king,; these were entered on the parlia- 
 ment roll; and if the matter was of a public 
 nature, the whole was then styled an 'ordi- 
 nance.' If, however, the petition and an- 
 swer were not only of a public, but a novel, 
 nature, they were then formed into an act 
 by the king, with the aid of his council and 
 judges, and entered on the statute roll." 
 See Co. Litt. 159b, Butler's note; 3 Reeve, 
 Hist. Eng. Law, 146. 
 
 According to Lord Coke, the difference be- 
 tween a statute and an ordinance is that the 
 latter has not had the assent of the king, 
 lords, and commons, but is made merely by 
 two of these powers. 4 Inst. 25. See Barr. 
 Obs. St. 41, note (x). 
 
 It is distinguished from a "resolution" by 
 the same body by the fact that an ordinance 
 prescribes a permanent rule of government, 
 while a resolution is of a temporary charac- 
 ter. 11 Ohio St. 96; 114 Ind. 336. 
 
 Certain enactments in the nature of con- 
 stitutions have also been referred to as or- 
 dinances, as, for example, the "ordinance for 
 the government of the Nor+hwest Territory." 
 passed by congress in 1787. 
 
 ORDINANCE OF THE FOREST. In 
 
 English law. A statute made touching mat- 
 ters and causes of the forest. 33 & 34 Edw. I. 
 
 ORDINANDI LEX. The law of proce- 
 dure, as distinguished from the substantial 
 part of the law. 
 
 ORDINARIUS ITA DICITUR QUIA HA- 
 bet ordinariam jurisdictlonem, in jure pro- 
 prlo, et non propter deputatlonem. The 
 ordinary is so called because he has an or- 
 dinary jurisdiction in his own right, and not 
 a deputed one. Co. Litt. 96. 
 
 ORDINARY. In ecclesiastical law. An 
 officer who has original jurisdiction in his 
 own right, and not by 'deputation. 
 
 In England, the ordinary is an officer who 
 has immediate jurisdiction in ecclesiastical 
 causes. Co. Litt. 344. 
 
 In the United States, the ordinary pos- 
 sesses, in those states where such officer ex- 
 ists, powers vested in him by the constitu- 
 tion and acts of the legislature. In South 
 Carolina, the ordinary is a judicial officer. 
 1 Const. (S. C.) 267; 2 Const. (S. C.) 384. 
 
 ORDINARY CARE. Such a degree of 
 care, skill and diligence as men of ordinary 
 prudence, under similar circumstances, usu- 
 ally employ (31 Pa. St. 512; 3 Mass. 132; 2 
 Wis. 316; 23 Conn. 443; 28 Vt. 150; 9 N. Y. 
 416), and is to be determined with refer- 
 ence to all the attendant circumstances of 
 the transaction (35 N. Y. 27; 47 Super. Ct 
 292, 296). 
 
 ORDINARY CONVE^YANCES. Those deeds 
 of transfer which are entered into between 
 two or more persons, without an assurance 
 in a superior court of justice. 
 
 ORDINARY COURSE OF BUSINESS. The 
 
 rules or questions prevailing in business 
 generally, or in a particular business. See 
 
 14 Q. B. Div. 386. 
 
 O R D I N A RY DILIGENCE. The degree 
 which men of ordinary prudence generally 
 exercise. 
 
 ORDINARY NEGLIGENCE. Absence of 
 ordinary care iq. v.) 
 
 ORDINARY OF ASSIZE AND SESSIONS. 
 
 In old English law. A deputy of the bishop 
 of the diocese, anciently appointed to give 
 malefactors their neck verses, and judge 
 whether they read or not; also to perform 
 divine services for them, and assist in pre- 
 paring them for death. Wharton. 
 
 ORDINARY OF NEWGATE. The clergy- 
 man who is attendant upon condemned male- 
 factors in that prison to prepare them for 
 death. He records the behavior of such per- 
 sons. Formerly it was the custom of the 
 ordinary to publish a small pamphlet upon 
 the execution . of any remarkable criminal. 
 Wharton. 
 
 ORDINARY SKILL. Such skill as a per- 
 son conversant with the matter undertaken 
 might be reasonably supposed to have. 11 
 Mees. & W. 113; 20 Mart. (La.) 68, 75; 1 H. 
 Bl. 158, 161; 6 Ga. 213, 219; 8 B. Mon. (Ky.) 
 515; 3 Barb. (N. Y.) 380; 13 Johns. (N. Y.) 
 211; 4 Burrows, 2060; 3 Campb. 17, 19; 7 
 Car. & P. 289; 6 Blng. 460; 2 Bing. (N. C.) 
 625; 16 Serg. & R. (Pa.) 368; 15 Mass. 316; 
 
 15 Pick. (Mass.) 440; 2 Cush. (Mass.) 316; 
 8 Car. & P. 479; 3 Campb. 451; 4 Barn. & C. 
 345. 
 
 ORDINATION. The act of conferring the 
 orders of the church upon an individual. 
 
 ORDINATIONE CONTRA SERVIENTES. 
 
 A writ that lay against a servant for leaving 
 his master contrary to the ordinance of St. 
 23 & 24 Edw. III. Reg. Grig. 189. 
 
 ORDINATUM EST (Lat.) It is ordered. 
 The initial words are of the record entry of 
 an order. 
 
 ORDINE PLACITANDI SERVATO, SERV- 
 atur et jus. The order of pleading being 
 preserved, the law is preserved. Co. Litt. 
 303. 
 
 ORDINES MAJORES ET MINORES. In 
 
 ecclesiastical law. The holy orders of priest. 
 
ORDINIS BENEFICIUM 
 
 (657) 
 
 ORIGINAL WRIT. 
 
 deacon, and subdeacon, any of which quali- 
 fied for presentation and admission to an ec- 
 clesiastical dignity or cure were called "or- 
 dines majores;" and the inferior orders of 
 chanters, psalmists, ostiary, reader, exorcist, 
 and acolyte were called "ordines minores." 
 Persons ordained to the ordines minores had 
 their prima tonsura, different from the ton- 
 sura clericalis. Cowell. 
 
 ORDINIS BENEFICIUM. See "Benefl- 
 cium Ordinis." 
 
 ORDINUM FUGITIVI. In old English 
 law. Those of the religious who deserted 
 their houses, and, throwing off the habits, re- 
 nounced their particular order in contempt 
 of their oath and other obligations. Par. 
 Ant. 388. 
 
 ORDQ ALBUS. The friars. Ordo Griscus, 
 the gray friars; ordo Niger, the black friars. 
 
 ORDO ATTACHIAMENTORUM. The or- 
 der of attachments. 
 
 ORDO JUDICIORUM. In the canon law. 
 The order of judgments; the rule by which 
 the due course of hearing each cause was 
 prescribed. 4 Reeve, Hist. Bng. Law, 17. 
 
 ORE TENUS (Lat.) Verbally; orally. 
 
 Formerly the pleadings of the parties were 
 ore tenus; and the practice is said to have 
 been retained till the reign of Edward III. 
 3 Reeve, Hist. Eng. Law, 95; Steph. PI. 29. 
 And see Bracton, 372b. 
 
 In chancery practice, a defendant may de- 
 mur at the bar ore tenus (3 P. Wms. 370) if 
 he has not sustained the demurrer on the 
 record (1 Swanst. 288; Mitf. PI. 176; 6 Ves. 
 779; 8 Ves. 405; 17 Ves. 215, 216). 
 
 ORFGILD (Saxon, orf, cattle, gild, pay- 
 ment. Also called "cheapgild"). A payment 
 for cattle, or the restoring them. Cowell. 
 
 A restitution made by the hundred or 
 county of any wrong done by one that was in 
 pledge. Lambard, Arch. 125, 126. 
 
 A penalty for taking away cattle. Blount. 
 
 ORGANIC LAW. The written or unwrit- 
 ten constitution; the underlying rules and 
 principles on which the government is es- 
 tablished. 
 
 ORGILD (Saxon). Without recompense; 
 as where no satisfaction was to be made for 
 the death of a man killed, so that he was 
 judged lawfully slain. Spelman. 
 
 ORIGINAL. That which is first in order; 
 an authentic instrument of something, and 
 which is to serve as a model or example to 
 be copied or imitated. It also means first, or 
 not deriving any authority from any other 
 source; as, original jurisdiction, original 
 writ, original bill, and the like. 
 
 ORIGINAL AND DERIVATIVE ESTATES. 
 
 An original is the first of several es- 
 tates, bearing to each other the relation of 
 a particular estate and a reversion. An orig- 
 inal estate is contrasted with a derivative es- 
 tate; and a derivative estate is a particular 
 
 Interest carved out of another estate of lar- 
 ger extent. Prest. Est. 125. 
 
 ORIGINAL BILL. In chancery practice. 
 A bill relating to a matter not before brought 
 before the court by the same parties, stand- 
 ing in the same interests. Mitf. Eq. PI. 33; 
 Willis, PI. 13 et seq. 
 
 Proceedings in a court of chancery are 
 either commenced by way of information, 
 when the matter concerns the state or those 
 under its protection, or by original petition 
 or bill, when the matter does not concern 
 the state or those under its protection. The 
 original bill states simply the cause of com- 
 plaint, and asks for relief. It is composed 
 of nine parts (Story, Eq. PI. 7, 8), and is the 
 foundation of all subsequent proceedings be- 
 fore the court (1 Daniell, Chanc. Prac. 351). 
 See "Bill." 
 
 ORIGINAL BILL IN THE NATURE OF 
 supplemental bill. A bill embracing in some 
 degree the qualities of both an original 
 and a supplemental bill. It is founded on 
 an event occurring after the filing of the 
 original bill, of such a nature that the suit 
 cannot be continued as to all the parties, 
 as by a supplemental bill. 
 
 ORIGINAL CHARTER. In Scotch law. 
 One by which the first grant of land is made. 
 On the other hand, a charter by progress Is 
 one renewing the grant in favor of the heir 
 or singular successor of the first or succeed- 
 ing vassals. Bell, Diet. 
 
 ORIGINAL CONVEYANCES (called, also, 
 primary conveyances). Those conveyances 
 by means whereof the benefit or estate is 
 created or first arises, viz., feoffment, gift, 
 grant, lease, exchange, partition. 2 Bl. 
 Comm. 309, 310*; 1 Steph. Comm. 466. 
 
 ORIGINAL JURISDICTION. See "Juris- 
 diction." 
 
 ORIGINAL PACKAGE. Within the mean- 
 ing of interstate commerce regulations, the 
 original unbroken package imported into a 
 state from another state or a foreign coun- 
 try before it becomes by sale or otherwise 
 part of the general mass of property in the 
 state. 135 U. S. 100. 
 
 ORIGINAL PROCESS. That process which 
 issues for defendant's appearance. See "Pro- 
 cess." 
 
 ORIGINAL WRIT. In English practice. 
 A mandatory letter issued in the king's 
 name, sealed with his great seal, and di- 
 rected to the sheriff of the county wherein 
 the injury was committed or supposed to 
 have been done, requiring him to command 
 the wrongdoer, or party accused, either to do 
 justice to the complainant, or else to appear 
 in court and answer the accusation against 
 him. This writ is deemed necessary to give 
 the courts of law jurisdiction. 
 
 In modem practice, however, it is often 
 dispensed with, by recourse, as usual, to fic- 
 tion, and a proceeding by bill is substituted. 
 In this country, our courts derive their juris- 
 
ORIGINALIA 
 
 (658) 
 
 OSWALD'S LAW HUNDRED 
 
 diction from the constitution, and require 
 no original writ to confer it. Improperly 
 speaking, the first writ which is issued in a 
 case is sometimes called an original writ; 
 but it is not so in the English sense of the 
 word. See 3 Bl. Comm. 273; Walk. Am. Law, 
 514. 
 
 , ORIGINALIA (Lat.) In English law. The 
 transcripts and other documents sent to the 
 office of the treasurer -remembrancer In ex- 
 chequer are called by this name to distin- 
 guish them from recorda, which contain the 
 judgments of the barons. 
 
 ORIGINE PROPRIA NEMINEM POSSE 
 voluntate sua eximi manifestum est. It is 
 manifest that no one by his own will can 
 renounce his origin (put ofE or discharge his 
 natural allegiance). Code, 10. 34. 4. See 1 
 Bl. Comm. c. 10; 20 Johns. (N. Y.) 313; 3 
 Pet. (U. S.) 122, 246; Broom, Leg. Max. (3d 
 London Ed.) 74. 
 
 ORIGO REI INSPICI DEBET. The origin 
 of a thing ought to be inquired into. 1 Coke, 
 99. 
 
 ORNEST. In old English law. The trial 
 by battle, which does not seem to have been 
 usual in England before the time of the Con- 
 queror,, though originating in the kingdoms 
 of the north, where it was practiced under 
 the name of "holmgang," from the custom 
 of fighting duels on a small island or holm. 
 Wharton. 
 
 ORPHAN. A minor or infant who has 
 lost both of his or her parents. Sometimes 
 the term is applied to such a person who has 
 lost only one of his or her parents. 3 Mer. 
 48; 2 Sim. & S. 93; Aso & M. Inst. bk. 1, tit. 
 2, c. 1. See 14 Hazz. Pa. Reg. 188, 189, for a 
 correspondence between the Hon. Joseph 
 Hopkinson and ex-President J. Q. Adams as 
 to the meaning of the word "orphan." See, 
 also, Hob. 247. 
 
 ORPHANS' COURT. In American law. 
 Courts of more or less extended probate ju- 
 risdiction. 
 
 ORPHANAGE. In English law. The share 
 reserved to an orphan by the custom of Lon- 
 don. . 
 
 By the custom of London, when a freeman 
 of that city dies, his estate is divided into 
 three parts, as follows: One-third part to 
 the widow; another to the children advanced 
 by him in his lifetime, which is called the 
 "orphanage;" and the other third part may 
 be by him disposed of by will. Now, how- 
 ever, a freeman may dispose of his estate as 
 he pleases; but in cases of intestacy, the 
 statute of distribution expressly excepts and 
 reserves the custom of London. Lovelace, 
 Wills, 102, 104; Bac. Abr. "Custom of Lon- 
 don" (C). 
 
 ORPHANAGE PART. That portion of an 
 intestate's effects which his children were 
 entitled to by the custom of London. This 
 custom appears to have been a remnant of 
 what was once a general law all over Eng- 
 land, namely, that a father should not by his 
 
 will bequeath the entirety of his personal es- 
 tate away from his family, but should leave 
 them a third part at least, called the "chil- 
 dren's part," corresponding to the "bairns' 
 part" or legitim of Scotch law, and also (al- 
 though not in amount) to the legitima quarto 
 of Roman law. Inst. 2. 18. This custom of 
 London was abolished by St. 19 & 20 Vict. c. 
 94. Brown. 
 
 ORPHANOTROPHI. In civil law. Persons 
 who have the charge of administering the 
 affairs of houses destined for the use of 
 orphans. Clef des Lois Rom. "Admiilistra- 
 teurs." 
 
 OR RAY (Law Pr. from oyer, to hear). 
 Shall hear. Orrount (plur.) Britt. c. 41. 
 
 ORWIGE, SINE WITA. In old English 
 law. Without war or feud, such security be- 
 ing provided by the laws, for homicides 
 under certain circumstancees, against the 
 foehth, or deadly feud, on the part of the 
 family of the slain. Anc. Inst. Eng. 
 
 OSTENDIT VOBIS (Law Lat.) In old 
 pleadings. Shows to you. Formal words 
 with which a demandant began his count. 
 Pleta, lib. 5, c. 38, § 2. 
 
 OSTENSIBLE PARTNER. One whose 
 name appears in a firm as a partner, and 
 who is really such. See "Nominal Partner." 
 
 OSTENSURUS (Law Lat.) To show. A 
 formal word in old writs. Reg. Grig. 36; 
 Pet. Assaver, § 21. 
 
 OSTENTUM (Lat.) In the civil law. A 
 monstrous or prodigious birth. Dig. 50. 16. 
 38. 
 
 OSTER (Law Fr.) To take away; to take 
 out or off. Oste del file, taken off the file. 
 Y. B. H. 20 Hen. VI. 1. 
 
 OSTER LA TOUAILLE (Old Pr.) In the 
 laws of Oleron. To deny a seaman his 
 mess. Article 13. Literally, to deny the 
 table cloth or victuals for three meals. 
 See 1 Pet. Adm. (U. S.) Append, xxvii.; 2 
 Pet. AdmJ; (U. S.) Append. Ixxxv. 
 
 OSTIA REGNI (Lat.) Gates of the king- 
 dom. The ports of the kingdom of England 
 are so called by Sir Matthew Hale. Hale de 
 Jur. Mar. pt. 2, c. 3. 
 
 OSTIUM ECCLESIAE (Law Lat.) In old 
 English law. The door or porch of the 
 church, where dower was anciently con- 
 ferred. See "Ad Ostium Bccleslae." 
 
 OSWALD'S LAW. The law by which was 
 effected the ejection of married priests, and 
 the introduction of monks into churches, by 
 Oswald, bishop of Worcester, about A. D. 964. 
 Wharton. 
 
 OSWALD'S LAW HUNDRED. An an- 
 cient hundred in Worcestershire, so called 
 from Bishop Oswald, who obtained it from 
 King Edgar, to be given to St. Mary's Church 
 in Worcester, It was exempt from the sher- 
 
OTHESWORTHE 
 
 (659) 
 
 OUTPARTERS 
 
 IfE's Jurisdiction, and oompreliends three 
 hundred hides of land. Camd. Brit. 
 
 OTHESWORTHE (Saxon, eoth, oath). 
 Worthy to make oath. Bracton, 185, 192. 
 
 OULTRE LE MERE (Law Fr.) Beyond 
 the sea. Y. B. P. 1 Edw. III. 27. 
 
 OURLOP. The lierwite or fine paid to the 
 lord by the inferior tenant when his daugh- 
 ter was debauched. Cowell. 
 
 OUSTER (Law Fr. outre, oiiltrc; 1,3.1. ultra, 
 beyond). Out; beyond; besides; farther; 
 also; over and more. Le ouster, the upper- 
 most. Over, — respondeat ouster, let him an- 
 swer over. Britt. c. 29. Ouster le mer, over 
 the sea. Jacob. Ouster eit, he went away. 
 6 Coke, 41b; 9 Coke, 120. 
 
 To put out; to oust. II oust, he put out or 
 ousted. Oustes, ousted. 6 Coke, 41b. 
 
 "Judgment of ouster," in some states, is 
 used to denote the judgment in quo warranto, 
 by which one is held not entitled to an of- 
 fice; in others to the judgment in summary 
 proceedings for possession of property. 
 
 In Torts. The actual turning out or 
 
 keeping excluded the party entitled to pos- 
 session of any real property corporeal. 
 
 OUSTER LE MAIN (Law Fr. to take out 
 of the hand). In old English law. A liv- 
 ery of lands out of the hands of the lord 
 after the tenant came of age. If the lord 
 refused to deliver such lands, the tenant 
 was entitled to a writ to recover the same 
 from the lord. This recovery out of the 
 hands of the lord was called ouster le main. 
 
 OUSTER LE MER. Beyond the sea; a 
 cause of excuse if a person, being summoned, 
 did not appear in court. Cowell. 
 
 OUT OF THE STATE. Beyond sea ((?. r.) 
 
 OUT OF TIME. In marine insurance. 
 Missing. Generally speaking, a ship may be 
 said to he missing or out of time when she 
 has not been heard of after the longest ordi- 
 nary time in which the voyage is safely per- 
 formed. 1 Arnould, Ins. 540; 2 Duer, Ins. 
 469, note. 
 
 OUTER BAR. In the English courts, bar- 
 risters at law have been divided into two 
 classes, viz., queen's counsel, who are admit- 
 ted within the bar of the courts, in seats 
 specially reserved for themselves, and junior 
 counsel, who sit without the bar; and the 
 latter are thence frequently termed barris- 
 ters of the "outer bar," or "utter bar," in 
 contradistinction to the former class. 
 
 OUTER HOUSE. The name given to the 
 great hall of the parliament house in Edin- 
 burgh, in which the lords ordinary of the 
 court of session sit as single judges to hear 
 causes. The term is used colloquially as 
 expressive of the business done there, in con- 
 tradistinction to the "Inner House," the 
 name given to the chambers in which the 
 first and second divisions of the court of ses- 
 sion hold their sittings. Bell, Diet. 
 
 OUTFANGTHEF. A liberty or privilege 
 in the ancient common law, whereby a lord 
 was enabled to call any man dwelling in his 
 manor, and taken for felony in another place 
 out of his fee, to judgment in his own court. 
 Du Cange. 
 
 OUTFIT. 
 
 In Maritime Law. That part of a 
 
 ship's apparel which ordinarily perishes or 
 is consumed in the course of her voyage. 
 Lowndes, Av. 11. 
 
 In the Diplomatic Service. An allow- 
 ance made by the government of the United 
 States to a minister plenipotentiary, or 
 charge des affaires, on going from the Unit- 
 ed States to any foreign country. 
 
 OUTHOUSES. Buildings adjoining or be- 
 longing to dwelling houses. 
 
 Buildings subservient to, yet distinct from, 
 the principal mansion house, located either 
 within or without the curtilage. 1 Bish. 
 Crim. Law, § 175; 4 Conn. 46; 4 Gill & J. 
 (Md.) 402; 2 Craw. & D. 479. 
 
 Any house standing out and apart from 
 houses where people reside, or where busi- 
 ness is transacted. 15 Tex. 260. 
 
 A building appurtenant to some main 
 building. A school house is not an out- 
 house. 10 Conn. 143. 
 
 OUTLAND. The Saxon thanes divided 
 their hereditary lands into inland, such as 
 lay nearest their dwelling, which they kept 
 to their own use, and outland, which lay be- 
 yond the demesnes, and was granted out to 
 tenants, at the will of the lord, like copy- 
 hold estates. This outland they subdivided 
 into two parts. One part they disposed 
 among those who attended their persons, 
 called "theodans," or lesser thanes; the other 
 part they allotted to their husbandmen, or 
 churls. Jacob. 
 
 OUTLAW. In English law. One who is 
 put out of the protection or aid of the law. 
 22 Viner, Abr. 316; 1 Phil. Ev. Index; Bac. 
 Abr. "Outlawry;" 2 Sellon, Prac. 277; Doct. 
 Plac. 331; 3 Bl. Comm. 283. 284. 
 
 OUTLAWED. Applied to debts, barred by 
 limitations. See 37 Me. 389. 
 
 OUTLAWRY. In English law. The act 
 of being put out of the protection of the law, 
 by process regularly sued out as;ainst a per- 
 son who is in contempt in refusing to be- 
 come amenable to the court having jurisdic- 
 tion. The proceedings themselves are also 
 called the "outlawry." 
 
 Outlawry may take place in criminal or in 
 civil cases. 3 Bl. Comm. 283; Co. Litt. 128; 
 4 Bouv. Inst, note 4196. 
 
 In the United States, outlawry in civil 
 cases is unknown, and if there are any cases 
 of outlawry in criminal cases, they are very 
 rare, Dane, Abr. e. 193a, 34. See Bac. Abr. 
 "Abatement" (B), "Outlawry;" Gilb. Hist. 
 196, 197; 2 Va. Cas. 244; 2 Dall. (Pa.) 92. 
 
 OUTPARTERS. A name given in old 
 English statutes to certain depredators 
 from Redesdale, on the northern border of 
 
OUTRAGE 
 
 (660) 
 
 OVES 
 
 England, who made incursions into Scot- 
 land, and brought back to their accomplices 
 at home (called Intakers) any booty they 
 had taken. Spelman voc. "Intakers;" St. 9 
 Hen. V. c. 8. 
 
 OUTRAGE. A grave injury, a serious 
 wrong. A generic word which is applied to 
 everything which is injurious in a great de- 
 gree to the honor or rights of another. 44 
 Iowa, 314. 
 
 OUTRIDERS. In English practice. Bail- 
 iffs employed by the sheriffs and their depu- 
 ties to ride to the farthest places of their 
 counties or hundreds, to summon such as 
 they thought good to attend their county or 
 hundred court. 
 
 OUTROPER. Old English. A person to 
 whom the business of selling by auction was 
 confined by statute. 2 H. Bl. 557. 
 
 OUTSETTER. Scotch. Publisher. 3 How. 
 St. Tr. 603. 
 
 OUTSIDERS. See "Gambling Contract." 
 
 OUTSUCKEN MULTURES. In Scotch 
 law. Out-town multures; multures, duties, 
 or tolls paid by persons voluntarily grinding 
 corn at any mill to which they are not 
 thirled, or bound by tenure. 1 Forbes, Inst. 
 pt. 2, p. 140; Bell, Diet. voc. "Multures." 
 
 OVELTY. In old English law. Equality 
 of service in subordinate tenures. 
 
 OVER. In conveyancing, the word "over" 
 is used to denote a cohtingent limitation in- 
 tended to take effect on the failure of a 
 prior estate. Thus, in what is commonly 
 called the "name and arms clause" in a will 
 or settlement, there is generally a proviso 
 that, if the devisee fails to comply with the 
 condition, the estate is to go to some one 
 else. This is a limitation or gift over. Wat- 
 son, Comp. Bq. 1110. 
 
 OVERCYTED, or OVERCYHSED. Proved 
 .guilty or convicted. Blount. 
 
 OVERDRAW. To obtain by bills or 
 «hecks upon an individual, bank, or other 
 Repository, a greater amount of funds than 
 the party who draws is entitled to. 
 
 OVERHERNISSA. In Saxon law. Contu- 
 macy or contempt of court. Leg. Aethel. c. 25. 
 
 OVERPLUS. What is left beyond a cer- 
 tain amount; the residue; the remainder of 
 a thing. The same as "surplus." 
 
 OVERREACHING CLAUSE. In a reset- 
 tlement, a clause which saves the powers of 
 sale and leasing annexed to the estate for 
 life created by the original settlement, when 
 it is desired to give the tenant for life the 
 same estate and powers under the resettle- 
 ment. The clause is so called because it pro- 
 vides that the resettlement shall be over- 
 reached by the exercise of the old powers. If 
 
 the resettlement were executed without a 
 provision to this effect, the estate of the ten- 
 ant for life and the annexed powers would be 
 subject to any charges for portions, etc., cre- 
 ated under the original settlement. 3 Dav. 
 Conv. 489; Rapalje & L. 
 
 OVERRULE. To annul; to make void. 
 
 This word is frequently used to signify 
 that a case has been decided directly oppo- 
 site to a former case. When this takes place, 
 the first-decided case is said to be over- 
 ruled as a precedent, and cannot any longer 
 be considered as of binding authority. 
 
 It also signifies that a majority of the 
 judges have decided against the opinion of 
 the minority, in which case the latter are 
 said to be overruled. 
 
 OVERSAMESSA. In old English law. A 
 forfeiture for contempt or neglect in not 
 pursuing a malefactor. 3 Inst. 116. 
 
 OVERSEERS OF HIGHWAYS. Officials 
 of the local divisions of government, as 
 towns, who supervise and direct the main- 
 tenance or construction of highways. 
 
 OVERSEERS OF THE POOR. Persons 
 appointed or elected to take care of the poor 
 with moneys furnished to them by the public 
 authority. 
 
 The duties of these officers are regulated 
 by local statutes. In general, the overseers 
 are bound to perform those duties, and the 
 neglect of them will subject them to an in- 
 dictment. See 1 Bl. Comm. 360; 16 Tiner, 
 Abr. 150; 1 Mass. 459; 3 Mass. 436; 1 Pen- 
 nington (N. J.) 6, 136; Comyn, Dig. "Justices 
 of the Peace" (B 63-65). 
 
 OVERSMAN. In Scotch law. A person 
 commonly named in a submission, to whom 
 power is given to determine in case the ar- 
 biters cannot agree in the sentence. Some- 
 times the nomination of the oversman is left 
 to the arbiters. In either case, the oversman 
 has no power to decide unless the arbiters 
 differ in opinion. Ersk. Inst. 4. 3. 16. The 
 office of an oversman very much resembles 
 that of an umpire. 
 
 OVERT, OVERTE, or OUVERTE (Law 
 Pr. and Eng.) Open. Pound overt, an open 
 or uncovered pound. 3 Bl. Comm. 12. Mar- 
 ket overt, open market. 2 Id. 449. Lettres 
 onvcrtes. open letters; letters patent (q. v.) 
 
 OVERT ACT (Law Lat. apertum factum). 
 In criminal law. An open, manifest act, 
 from which criminality may be implied. 
 Brande. An open act, which must be mani- 
 festly proved. 3 Inst. 12. 
 
 OVERVERT. In old English law. High 
 wood. See "Vert." 
 
 OVES (Lat. [pi. of oris], sheep). In the 
 civil law. Under a bequest of sheep (ovi- 
 hus), lambs and rams were not included. 
 Dig. 32. 65. 7; Id. 32. 81. 4. But under the 
 name of a flock of sheep (ovium grege), 
 both were included. Id. 32. 81. 5. 
 
OVESQUE 
 
 , (661) 
 
 OYEZ 
 
 OVESQUE (Law Fr.) With. Litt. § 240; 
 Britt. c. 38. 
 
 For. II voile av' argue ovesgue le lease, 
 he would have argued for the lease. Dyer, 
 126b. 
 
 OWEL, or OWELE (Law Fr. from Lat. 
 aequalis). Equal. En owele mayn, in equal 
 hand. Britt. c. 39. Owelment, equally. Id. 
 c. 119. 
 
 OWELTY. The difeerence which is paid 
 or secured by one coparcener to another for 
 the purpose of equalizing a partition. Litt. 
 § 251; Co. Litt. 169a; 1 Watts (Pa.) 265; 1 
 Whart. (Pa.) 292; Cruise, Dig. tit. 19, § 32; 
 1 Vern. 133; Plowd. 134; 16 Viner, Abr. 223, 
 pi. 3; Brooke, Abr. "Partition," § 5. 
 
 OWING. Something unpaid. A debt, for 
 example, is owing while it is unpaid, and 
 whether it be due or not. 
 
 OWLER. In English law. One guilty of 
 the offense of owling. 
 
 OWLING. In English law. The offense 
 of transporting wool or sheep out of the 
 kingdom. 
 
 The name is said to owe its origin to the 
 fact that this offense was carried on in the 
 night, when the owl was abroad. 
 
 OWNER. He who has dominion of a 
 thing, real or personal, corporeal or incor- 
 poreal, which he has a right to enjoy and do 
 with as he pleases, even to spoil or destroy 
 it, as far as the law permits, unless he be 
 prevented by some agreement or covenant 
 which restrains his right. 31 Cal. 649. 
 
 The term has no exact technical meaning. 
 Hare. Am. Const. Law, 355. 
 
 As applied to lands, it has been said to in- 
 clude all who had an interest therein, though 
 it fall short of ownership of the fee (38 
 Mich. 171; 2 Ohio St. 114), and it has been 
 applied both to the holder of the legal title 
 (6 Hun [N. Y.] 553) and of an equitable 
 estate (21 Minn. 107). 
 
 In like manner, as applied to personalty, 
 it has been held to Include one having a tem- 
 porary right of possession. 44 Conn. 298. 
 Such persons are ordinarily designated as 
 "special owner," In contradistinction from 
 "general owner," in whom is the full title. 
 See 10 Cush. (Mass.) 399; 50 Mich. 249. 
 
 OWNERSHIP. The right by which a 
 thing belongs to some one in particular to 
 the exclusion of all others. Civ. Code La. 
 art. 480. See "Owner." 
 
 OXFILD. A restitution anciently made 
 by a hundred or county for any wrong done 
 by one that was within the same. Lambard, 
 Arch. 125. 
 
 OXGANG (from Saxon, (/a«f;, going, and ox; 
 Law Lat. 'bovata). In old English law. So 
 much land as an ox could till. According to 
 some, fifteen acres. Co. Litt. 69a; Cromp. 
 Jur. 220. According to Balfour, the Scotch 
 oxengang, or oxgate, contained twelve acres; 
 but this does not correspond with ancient 
 charters. See Bell, Diet. "Ploughgate." 
 Skene says thirteen acres. Cowell. 
 
 OYER. The reading to a party of a writ- 
 ten instrument stated in the pleadings of the 
 opposite party. In modern practice, a copy 
 of the writing is ordered furnished on appli- 
 cation. See "Profert in Curia." 
 
 OYER AND TERMINER. See "Assize;" 
 "Court of Oyer and Terminer." 
 
 OYER DE RECORD. A petition made in 
 court that the judges, for better proofs, com- 
 pel the production of a record for inspection. 
 
 OYER ET TERMINER (Law Fr.) To 
 hear and determine. A oyer et terminer 
 toutes quereles, to hear and determine all 
 complaints. Britt. fol. 1. De oyr et de- 
 terminer. A.rt. Sup. Chart. 
 
 OYEZ (Fr. hear ye). The introduction to 
 any proclamation or advertisement by pub- 
 lic crier. It is wrongly and usually pro- 
 nounced "oh yes." 4 Bl. Comm. 340, note. 
 
P V H 
 
 (662) PACTUM CONSTITUTAE, ETC. 
 
 P. H. V. Pro Jiao vice, for this occasion. 
 
 PAAGE. A toll for passage through an- 
 other's land. 
 
 PACARE. In old records. To pay. 
 
 PACATIO. Payment. Mat. Par. A. D. 1248. 
 
 PACE. A measure of length, containing 
 two feet and a half. The geometrical pace 
 is five feet long. The common pace is the 
 length of a step; the geometrical is the 
 length of two steps, or the whole space pass- 
 ed over by the same foot from one step to 
 another. 
 
 PACEATUR (Lat.) Let him be freed or 
 discharged. 
 
 PACI SUNT MAXIME CONTRARIA, VIS 
 et injuria. Force and wrong are especially 
 contrary to peace. Co. Litt. 161. 
 
 PACIFICATION (Lat. paa;, peace, Ulcere, to 
 make). The act of making peace between 
 two countries which have been at war; the 
 restoration of public tranquillity. 
 
 PACK. To deceive by false appearances; 
 to counterfeit; to delude; as, packing a jury. 
 See "Jury;" Bac. Abr. "Juries" (M) ; 12 
 Conn. 262. 
 
 PACKED PARCELS. The name for a con- 
 signment of goods, consisting of one large 
 parcel made up of several small ones, each 
 bearing a different address, collected from 
 different persons by the immediate consign- 
 or (a carrier), who unites them into one for 
 his own profit, at the expense of the railway 
 by which they are sent, since the railway 
 company would have been paid more for the 
 carriage of the parcels singly than together. 
 
 PACT. In civil law. An agreement made 
 by two or more persons on the same subject, 
 in order to form some engagement, or to 
 dissolve or modify one already made. ,Gon- 
 ventio est duorum in idem placitum consensus 
 de re solvenda, id et facienda vel praestanda 
 Dig. 2. 14; Clef des Lois Rom.; Aylifte, Pand! 
 558; Merlin, Repert. "Facte." 
 
 PACTA CONVENTA,QUAE NEQUE CON- 
 tra leges, neque dole male inita sunt, omni 
 modo observanda sunt. Contracts which are 
 not illegal, and do not originate in fraud, 
 must in all respects be observed. Code, 2. 3. 
 29; Broom, Leg. Max. (3d London Ed.) 624. 
 
 PACTA DANT LEGEIVI CONTRACTUI. 
 
 Agreements give the law to the contract. 
 Halk. Max. 118. 
 
 PACTA PRIVATA JURI PUBLICO DE- 
 rogare non possunt. Private contracts can- 
 not derogate from the public law. 7 Coke, 
 23. 
 
 PACTA QUAE CONTRA LEGES CONSTI- 
 
 tutionesque vel contra bones mores fiunt, 
 nullam vim habere, indubitati juris est. It is 
 
 indubitable law that contracts against the 
 laws or good morals have no force. Code, 2. 
 3. 6; Broom, Leg. Max. (3d London Ed.) 620. 
 
 PACTA QUAE TURPEIVl CAUSAM CON- 
 tinent non sunt observanda. Contracts found- 
 ed upon an immoral consideration are not 
 to be observed. Dig. 2. 14. 27. 4; 2 Pet. 
 (U. S.) 539; Broom, Leg. Max. (3d London 
 Ed.) 658. 
 
 ■ PACT 10 (Lat. from powffere, to strike). In 
 civil law. A bargaining or agreeing of which 
 pactum (the agreement itself) was the re- 
 sult. Calv. Lex. It is used, however, as the 
 synonym of pactum. 
 
 PACTIONS. In international law. Con- 
 tracts between nations which are to be per- 
 formed by a single act, and of which execu- 
 tion is at an end at once. 1 Bouv. Inst, note 
 100. 
 
 PACTIS PRIVATORUM JURI PUBLICO 
 non derogatur. Private contracts do not 
 derogate from public law. Broom, Leg. Max. 
 (3d London Ed.) 621; per Dr. Lushington, 
 Arg. 4 Clark & P. 241; Arg. 3 Clark & F. 621. 
 
 PACTITIOUS. 
 
 agreement. 
 
 Settled or governed by 
 
 PACTO ALIQUOD LICITUM EST, QUID 
 sine pacto non admittitur. By a contract, 
 something is permitted, which, without it, 
 could not be admitted. Co. Litt. 166. 
 
 PACTUIVI (Lat.) In the civil law. A pact; 
 an agreement or convention without' specific 
 name, and without consideration, which, 
 however, might, in its nature, produce a civ- 
 il obligation. Heinec. Elem. Jur. Civ. lib. 3, 
 tit. 14, § 775. 
 
 A pact was distinguished from a contract 
 (contractus) , which had a specific name or 
 present consideratton, and carried with it a 
 civil obligation, both being a species of con- 
 ventio (convention), which was the general 
 term. Do ut des, I give that you may give, 
 was a contract. Dabo ut des, I will give that 
 you may give, was a pact. 
 
 PACTUM CONSTITUTAE PECUNIAE 
 
 (Lat.) In civil law. An agreement by which 
 a person appointed to his creditor a certain 
 day, or a certain time, at which he promised 
 to pay ; or it may be defined simply an agree- 
 ment by which a person promises a creditor 
 to pay him. 
 
 When a person by this pact promises his 
 own creditor to pay him, there arises a new 
 obligation, which does not destroy the for- 
 mer, by which he was already bound, but 
 which is accessory to it; and by this mul- 
 tiplicity of obligations the right of the cred- 
 
PACTUM DE NON PETANDO 
 
 (663) 
 
 ■PANDECTS 
 
 itor is strengthened. Poth. Obi. pt. 2, c. 6, 
 
 § 9. 
 
 There is a striking conformity between 
 the pactum constitutae pecuniae, as above de- 
 fined, and our indebUatus assumpsit. The 
 pactum constitutae pecuniae was a promise 
 to pay a subsisting debt, whether natural or 
 civil, made in such a manner as not to ex- 
 tinguish the preceding debt, and introduced 
 by the praetor to obviate some formal diffi- 
 culties. The action of indebitatus assumpsit 
 was brought upon a promise for the pay- 
 ment of a debt. It was not subject to the 
 wager of law and other technical difficulties 
 of the regular action of debt, but by such 
 promise the right to the action of debt was 
 not extinguished nor varied. 4 Coke, 91, 95. 
 See IH.Bl. 550-555, 850; Doug. 6, 7; 3 Wood, 
 Inst. 168, 169, note (c) ; 1 Viner, Abr. 270; 
 Brooke, Abr. "Action sur le Case" (pi. 7, 
 69, 72); Fitzh. Nat. Brev. 94 (a), note (a), 
 145 (g); 4 Bos. & P. 295; 1 Chit. Pi. 89; 
 TouUier, Dr. Civ. liv. 3, tit. 3, c. 4, notes 388, 
 596. 
 
 PACTUM DE NON PETANDO (Lat.) In 
 civil law. An agreement made between acred- 
 itor and his debtor that the former will not 
 demand from the latter the debt due. By this 
 agreement, the debtor is freed from his ob- 
 ligation. This is not unlike the "covenant 
 not to sue," of the common law. Wolff. Dr. 
 Nat. § 755.. 
 
 PACTUM DE QUOTA LITIS (Lat.) In 
 civil law. An agreement by which a cred- 
 itor of a sum difficult to recover promises a 
 portion — for example, one-third — to the per- 
 son who will undertake to recover it. In 
 general, attorneys will abstain from making 
 such a contract, yet it is not unlawful at 
 common law. 
 
 PADDER. A robber; a foot highwayman. 
 
 PAGA (Spanish). In Spanish law. Pay- 
 ment. Las Partidas, pt. 5, tit. 14, lib. 1, 
 Pagamento, satisfaction. 
 
 PAGODA. In commercial law. A denom- 
 ination of money in Bengal. In the compu- 
 tation .of ad valorem duties it is valued at 
 one dollar and ninety-four cents. Act March 
 2, 1799, § 61 (1 Story, V. S. Laws, 626). 
 
 PAGUS. A county. Jacob. 
 
 , PAINE FORTE ET DURE. See "Peine 
 Forte et Dure." 
 
 PAINS AND PENALTIES, BILLS OF. 
 
 See "Bill of Pains and Penalties." 
 
 PAIRING OFF. A legislative practice, 
 said to have originated in the time of Crom- 
 well, whereby legislators of opposite opinions 
 agree not to vote on a given measure. Usu- 
 ally resorted to in order to relieve a mem- 
 ber from the necessity of remaining constant- 
 ly present to await a vote. 
 
 PAIS, or PAYS. A French word, signify- 
 ing "country." In law, matter in pais is mat- 
 ter of fact, in opposition to matter of record; 
 
 a trial per pais is a trial by the country, — 
 that is, by a jury. See "In Pais." 
 
 PAIS, CONVEYANCES IN. In old Eng- 
 lish law. Ordinary conveyances between two 
 or more persons in the country, i. e., upon 
 the land to be transferred. 
 
 PALACE COURT. In English law. A 
 court which had jurisdiction of all personal 
 actions arising between any parties within 
 twelve miles of Whitehall, not including the 
 city of London. 
 
 It was erected in the time of Charles I., 
 and was held by the steward of the house- 
 hold, the knight marshal and steward of the 
 court, or his deputy. It had its sessions once 
 a week, in the borough of Southwark. It 
 was abolished by 12 & 13 Vict. c. 101, § 13. 
 
 PALAGIUM. A duty to lords of manors 
 .for exporting and importing vessels of wine 
 at any of their ports. Jacob. 
 
 PALATINE. Possessing royal privileges. 
 See "County Palatine." 
 
 PALATINE COURTS. Formerly the court 
 of common pleas at Lancaster, the chancery 
 court of Lancaster, and the court of pleas at 
 Durham, the second of which alone now ex- 
 ists. 
 
 PALATIUM (Lat.) A palace. The em- 
 peror's house in Rome was so called from 
 the Mans Palatinus on which it was built. 
 Adams, Rom. Ant. 613. 
 
 In Old English Law. A paling; a fence. 
 
 Pleta, lib. 4, c. 18, § 1. 
 
 PALEFRETUM (Law Lat.) In old Eng- 
 lish law. A palfrey. Pleta, lib. 2, c. 73, § 19. 
 
 PALINGMAN. In old English law. A 
 merchant denizen; one born within the Eng- 
 lish pale. Blount. 
 
 PALLIO COOPERIRE. In old English 
 law. An ancient custom, where children were 
 born out of wedlock, and their parents after- 
 wards intermarried. The children, together 
 with the father and mother, stood under a 
 cloth extended while the marriage was sol- 
 emnized. It was in the nature of adoption. 
 The children were legitimate by the civil, 
 but not by the common, law. Jacob. 
 
 PALMER'S ACT. A name given to the 
 English statute 19 & 20 Vict. c. 16, enabling 
 a person accused of a crime committed out 
 of the jurisdiction of the central criminal 
 court to be tried in that court. 
 
 PANDECTS. In civil law. The name of 
 an abridgment or compilation of the civil 
 law, made by Tribonian and others, by order 
 of the emperor Justinian, and to which he 
 gave the force of law A. D. 533. 
 
 It is also known by the name of the Di- 
 gest, because in his compilation the writings 
 of the jurists were reduced to order and 
 condensed quasi digestiae. The emperor, in 
 530, published an ordinance entitled De Gon- 
 cep'tione Digestorum, which was addressed to 
 Tribonian, and by which he was required to 
 
PANDECTS 
 
 (664) 
 
 PANDECTS 
 
 select some of the most distinguished law- 
 yers to assist him in composing a collection 
 of the best decisions of the ancient lawyers, 
 and compile them- in fifty books, without 
 confusion or contradiction. The instructions 
 of the emperor were to select what was use- 
 ful, to omit what was antiquated or superflu- 
 ous, to avoid contradictions, and, by the nec- 
 essary changes, to produce a complete body of 
 law. This work was a companion to the Code 
 of Justinian, and was to be governed in its 
 arrangement of topics by the method of the 
 Code. Justinian allowed the commissioners, 
 who were sixteen in number, ten years to 
 compile it; but the work was completed in 
 three years, and promulgated in 533. A list 
 of the writers from whose works the collec- 
 tion was made, and an account of the method 
 pursued by the commissioners, will be found 
 in Smith Diet. Gr. & R. Ant. The Digest, 
 although compiled in Constantinople, was 
 originally written in Latin, and afterwards 
 translated into Greek. 
 
 The Digest is divided in two different 
 ways: The first into fifty books, each book 
 into several titles, and each title into sev- 
 eral extracts or leges, and at the head of 
 each series of extracts is the name of l!he 
 lawyer from whose work they were taken. 
 
 The first book contains twenty-two titles. 
 The subject of the first is De Justicia et Jure, 
 of the division of persons and things, of mag- 
 istrates, etc. The second, divided into fifteep 
 titles, treats of the power of magistrates and 
 their jurisdiction, the manner of commenc- 
 ing suits, of agreements and compromises. 
 The third, composed of six titles, treats of 
 those who can and those who cannot sue, of 
 advocates and attorneys and syndics, and of 
 calumny. The fourth, divided into nine ti- 
 tles, treats of causes of restitution, of sub- 
 missions and arbitrations, of minors, car- 
 riers by water, innkeepers, and those who 
 have the care of the property of others. In 
 the fifth there are six titles, which treat of 
 jurisdiction and inofficious testaments. The 
 subject of the sixth, in which there are three 
 titles, is actions. The seventh, in nine titles, 
 embraces whatever concerns usufructs, per- 
 sonal servitudes, habitations, the uses of real 
 estate and its appurtenances, and of the sure- 
 ties required of the usufructuary. The eighth 
 book, in six titles, regulates urban and rural 
 servitudes. The ninth book, in four titles, 
 explains certain personal actions. The tenth, 
 in four titles, treats of mixed actions. The 
 object of the eleventh book, containing eight 
 titles, is to regulate interrogatories, the cas- 
 es of which the judge was to take cogni- 
 zance, fugitive slaves, of gamblers, of sur- 
 veyors who made false reports, and of fu- 
 nerals and funeral expenses. The twelfth 
 book, in seven titles, regulates personal ac- 
 tions in which the plaintiff claims the title 
 of a thing. The thirteenth, in seven titles, 
 and the fourteenth, in six titles, regulate cer- 
 tain actions. The fifteenth, in four titles, 
 treats of actions to which a father or master 
 is liable in consequence of the acts of his 
 children or slaves, and those to which he is 
 entitled, of the pecuUiim of children and 
 slaves, and of the actions on this right, "the 
 
 sixteenth, in three titles, contains the law 
 relating to the senatus consuUum Velleia- 
 num, of compensation or set-off, amd of the ac- 
 tion of deposit. The seventeenth, in two ti- 
 tles, expounds the law of mandates and part- 
 nership. The eighteenth book, in seven ti- 
 tles, explains the contract of sale. The nine- 
 teenth, in five titles, treats of the actions 
 which arise on a contract of sale. The law 
 relating to pawns, hypothecation, the prefer- 
 ence among creditors, and subrogation, occu- 
 py the twentieth book, which contains six ti- 
 tles. The twenty-first book explains, under 
 three titles, the edict of the ediles relating 
 to the sale of slaves and animals, then what 
 relates to evictions and warranties. The twen- 
 ty-second book, in six titles, treats of inter- 
 est, profits, and accessories of things, proofs, 
 presumptions, and of ignorance of law and 
 fact. The twenty-third, in five titles, con- 
 tains the law of marriage, and its accom- 
 panying agreements. The twenty-fourth, in 
 three titles, and the twenty-fifth, in seven 
 titles, regulates donations between husband 
 and wife, divorces, and their consequence. 
 The twenty-sixth and twenty-seventh, each 
 in two titles, contain the law relating to 
 tutorship and curatorship. The twenty- 
 eighth, in eight titles, and the twenty-ninth, 
 in seven, contain the law on last will and 
 testaments. The thirtieth, thirty-first, and 
 thirty-second, each divided into two titles, 
 contain the law of trusts and specific legar 
 cies. The thirty-third, thirty-fourth, and 
 thirty-fifth — the first divided into ten titles, 
 the second into nine titles, and the last into 
 three titles — treat of various kinds of lega- 
 cies. The thirty-sixth, containing four titles, 
 explains the senatus consuUum TreieUianum, 
 and the time when trusts become due. The 
 thirty-seventh book, containing fifteen titles, 
 has two objects, — to regulate successions, and 
 to declare the respect which children owe 
 their parents, and freedmen their patrons. 
 The thirty-eighth book, in seventeen titles, 
 treats of a variety of subjects, — of succes- 
 sions, and of the degree of kindred in suc- 
 cessions; of possession; and of heirs. The 
 thirty-ninth explains the means which the 
 law and the praetor take to prevent a threat- 
 ened injury, and donations inter vivos and 
 mortis causa. The fortieth, in sixteen titles, 
 treats of the state and condition of persons, 
 and of what relates to freedmen and liberty. 
 The different means of acquiring and losing 
 title to property are explained in the forty- 
 first book, in ten titles. The forty-second, 
 in eight titles, treats of the res judicata, and 
 of the seizure and sale of the property of a 
 debtor. Interdicts, or possessory actions, 
 are the object of the forty-third book, in 
 three titles. The forty-fourth contains an 
 enumeration of defenses which arise in con- 
 sequence of the res judicata, from the lapse 
 of time, prescription, and the like. This oc- 
 cupies six titles; the seventh treats of obli- 
 gations and actions. The forty-fifth speaks 
 of stipulations, by freedmen or by slaves. 
 It contains only three titles. The forty- 
 sixth, in eight titles, treats of securities, no- 
 vations and delegations, payments, releases, 
 and acceptilations. In the forty-seventh 
 
PANDECTS 
 
 (665) 
 
 PAPER OFFICE 
 
 book are explained the punishments inflicted 
 for private crimes, de privatis delictis, among 
 which are Included larcenies, slander, libels, 
 ofEenses against religion and public manners, 
 removing boundaries, and similar offenses. 
 The forty-eighth book treats of public 
 crimes, among which are enumerated those 
 of laesae-majestatis, adultery, murder, poi- 
 soning, parricide, extortion, and the like, 
 with rules for procedure in such cases. The 
 forty-ninth, in eighteen titles, treats of ap- 
 peals, of the rights of the public treasury, 
 of those who are in captivity, and of their 
 repurchase. The fiftieth and last book, in 
 seventeen titles, explains the rights of mu- 
 nicipalities, and then treats of a variety of 
 public ofiacers. 
 
 These fifty books are allotted in seven 
 parts: The first contains the first four books; 
 the second, from the fifth to the eleventh 
 book, inclusive; the third, from the twelfth 
 to the nineteenth, inclusive ; the fourth, from 
 the twentieth to the twenty-seventh, inclu- 
 sive; the fifth, from the twenty-eighth to 
 the thirty-sixth, inclusive; the sixth com- 
 mences with the thirty-seventh, and ends 
 with the forty-seventh book; and the sev- 
 enth, or last, is composed of the last six 
 books. 
 
 The division into digestum retus (book first 
 to and including title second of book twenty- 
 fourth), digestum infortiatum (title third of 
 book twenty-fourth, to and including book 
 thirty-eighth), and digestum novum (from 
 book thirty-ninth to the end), has reference 
 to the order in which these three parts ap- 
 peared. 
 
 The Pandects are more usually cited by 
 English and American jurists by numbers, 
 thus: Dig. 23. 3. 5. 6, meaning book 23, 
 title 3, law or fragment 5, section 6; some- 
 times, also, otherwise, as, D. 23. 3. fr. 5. 
 §6; or fr. 5. § 6. D. 23. 3. The old mode 
 of citing was by titles and initial words, 
 thus: D. de jure dotium, L. profectitia, § 
 si pater; or the same references in reverse 
 order. From this afterwards originated the 
 following: L. profectitia, 5. § si pater 6, D. 
 de jure dotium, and, lastly, L. 5. § 6. D. de 
 jure dotium, — which is the form commonly 
 used' by the continental jurists of Europe. 1 
 Mackeld. Civ. Law, pp. 54, 55, § 65. And see 
 Tayl. Civ. Law, 24, 25. The abbreviation ft. 
 was commonly used instead of Dig. or Pan- 
 dects. 
 
 The Pandects — as well, indeed, as all Jus- 
 tinian's laws, except some fragments of the 
 Code and Novels — were lost to all Europe 
 for a considerable period. During the pil- 
 lage of Amalfi, in the war between the two 
 soi-disant popes Innocent II. and Anaclet II., 
 a soldier discovered an old manuscript, 
 which attracted his attention by its envelope 
 of many colors. It was carried to the Em- 
 peror Clothaire, and proved to be the Pan- 
 dects of Justinian. The work was arranged 
 in its present order by Warner, a German, 
 whose Latin name is Irnerius, who was ap- 
 pointed by that emperor Professor of Roman 
 Law at Bologna. 1 Fournel, Hist, des Avo- 
 cats, 44, 46, 51. The style of the work is 
 very grave and pure, and contrasts in this 
 
 respect with that of the Code, which is very 
 far from classical. On the other hand, the 
 learning of the Digest stands rather in the 
 discussing of subtle questions of law, and 
 enumerations of the variety of opinions of 
 ancient lawyers thereupon, than in practical 
 matters of daily use, of which the Code so 
 simply and directly treats. See Ridley, 
 View, pt. 1, cc. 1, 2. 
 
 PANDOXARE (Law Lat.) In old records. 
 To brew. Cowell. 
 
 Pandoxatrix, an ale wife; a woman that 
 both brewed and sold ale and beer. Id. 
 
 PANEL (diminutive from either pane, 
 apart, or page, pagella) . 
 
 In Practice. A schedule or roll, con 
 
 taining the names of jurors summoned by 
 virtue of a writ of venire facias, and annexed 
 to the writ. It is returned into the court 
 whence the venire issued. Co. Litt. 158b; 3 
 Bl. Comm. 353. 
 
 In Scotch Law. The prisoner at the 
 
 bar, or person who takes his trial before the 
 court of justiciary for some crime. So 
 called from the time of his appearance. 
 Bell, Diet. Spelled, also, pannel. See "Im- 
 panel." ^ 
 
 PANIER. A waiter at table at English 
 bar dinners. 
 
 PAN IS (Lat.) In old English law. Bread; 
 loaf; a loaf. Fleta, lib. 2, c. 9. 
 
 PANNAGIUM EST PASTUS PORCORUM, 
 in nemoribus et in silvis, ut puta, de glandi- 
 bus, etc. A pannagium is a pasture of hogs, 
 in woods and forests, upon acorns, and so 
 forth. 1 Bulst. 7. 
 
 P A N N E L LAT 1 N . The act of impaneling 
 a jury. 
 
 PAPER BLOCKADE. A blockade pro- 
 claimed, but not maintained by a naval force 
 sufficient to render it effective. See "Block- 
 ade." 
 
 PAPER BOOK. In appellate practice. A 
 book or paper, usually printed, containing 
 a transcript or an abstract, as may be re- 
 quired, of all the evidence and proceedings 
 submitted to the appellate court. 
 
 PAPER DAYS. In English law. Days on 
 which special arguments are to take place. 
 Tuesdays and Fridays in term time are pa- 
 per days appointed by the court. Lee, Diet; 
 Archb. Prac. 101. 
 
 PAPER MONEY. The engagements to pay 
 money which are issued by governments and 
 banks, and which pass as money. Pardes- 
 sus. Dr. Com. note 9. Bank notes are gen- 
 erally considered as cash, and will answer 
 all the purposes of currency; but paper mon- 
 ey is not a legal tender if objected to. See 
 "Legal Tender." 
 
 PAPER OFFICE. In English law. An an- 
 cient office in the palace of Whitehall, where 
 all the public writings, matters of state and 
 council, proclamations, letters, intelligences. 
 
PAPER TITLE 
 
 (666) 
 
 PARCEL 
 
 negotiations of-the queen's ministers abroad, 
 and generally all the papers and dispatches 
 that pass through the offices of the secreta- 
 ries of state, are deposited. Also an office 
 or room in the court of queen's bench, where 
 the records belonging to that court are de- 
 posited; sometimes called "paper mill." 
 Wharton. 
 
 PAPER TITLE. A claim of title unfound- 
 ed in ,fact, but founded on a conveyance or 
 chain of conveyances showing an apparently 
 good title. 
 
 PAR. In common law. Equal. It is used 
 to denote a state of equality or equal value. 
 An equality of actual with nominal value. 
 9 Baxt. (Tenn.) 410. Bills of exchange, 
 stocks, and the like, are at par when they 
 sell for their nominal value; above par, or 
 below par, when they sell for more or less. 
 
 PAR DELICTUM (Lat) Bqualguilt. "This 
 is not a case of par delictum. It is oppres- 
 sion on one side, and submission on the 
 other. It never can be predicated as par de- 
 lictum when one holds the rod and the other 
 bows to it." 6 Maule & S. 165. See "In Pari 
 Delicto." 
 
 PAR IN PAREM IMPERIUM NON HA- 
 bet. An equal has no power over an equal. 
 Jenk. Cent. Cas. 174. Example, one of two 
 judges of the same court cannot commit the 
 other for contempt. 
 
 PAR OF EXCHANGE. The par of the 
 
 currencies of any two countries means the 
 equivalence of a certain amount of the cur- 
 rency of the one in the currency of the other, 
 supposing the currency of both to be of the 
 precise weight and purity fixed by their re- 
 spective mints. 26 Wend. (N. Y.) 224. The 
 exchange between the two countries is said 
 to be at par when bills are negotiated on 
 this footing, i. e., when a bill for £100 
 <irawn on London sells in Paris for 2,520 
 frs., and vice versa. Bowen, Pol. Boon. 321. 
 See 11 East, 267. 
 
 PAR ONERI. Equal to the damage. 
 
 PARACIUM. The tenure between par- 
 ceners, viz., that which the youngest owes 
 to the eldest without homage or service. 
 Domesday Book. 
 
 PARAGE. Equality of blood, name, or 
 dignity, but more especially of land in the 
 partition of an inheritance between coheirs. 
 Co. Litt. 166b. Hence "disparage," and "dis- 
 paragement." Blount. 
 
 In Feudal Law. Where heirs took of 
 
 the same stock and by same title, but from 
 right of primogeniture, or some other cause, 
 the shares were unequal, the younger was 
 said to hold of the elder, jure et titulo para- 
 ffii, by right and title of parage, being equal 
 in everything but the quantity, and owing no 
 liomage or fealty. Calv. Lex. 
 
 PA RAG I UM (Lat. par, equal, and agium). 
 1 Thomas, Co. Litt. 681. Equality. 
 
 In Ecclesiastical Law. The portion 
 
 which a woman gets on her marriage. Ay- 
 liflCe, Par. 336. 
 
 PARAGRAPH. A part or section of a stat- 
 ute, pleading, affidavit, etc., which contains 
 one article, the sense of which is complete. 
 Wharton. 
 
 PARAMOUNT {par, by, mounter, to as- 
 cend). Above; upwards. Kelham. Para- 
 mount especifle, above specified. Plowd, 
 209a. 
 
 That which is superior; usually applied to 
 the highest lord of the fee of lands, tene- 
 ments, or hereditaments. Fitzh. Nat. Brev. 
 135. Where A. lets lands to B. and he un- 
 derlets them, to C, in this case A. is the 
 paramount and B. is the mesne landlord. 2 
 Bl. Comm. 91; 1 Thomas, Co. Litt. 484, note 
 79, 485, note 81. The estate which is enti- 
 tled to the benefit of an easement is known 
 as the "paramount estate." 
 
 PARAPHERNA(Lat.) In civil law. Goods 
 brought by wife to husbani over and above 
 her dower (das). Vocat; Fleta, lib. 5, c. i23, 
 § 6; Mackeld. Civ. Law, § 529. 
 
 PARAPHERNAL. Belonging, or pertain- 
 ing to the parapherna. 
 
 PARAPHERNALIA. Apparel and orna- 
 ments of a wife, suitable to her rank and 
 degree. 2 Bl. Comm. 435. 
 
 PARAPHERNAUX,BIENS(Pr.) InFrench 
 law. All the wife's property which is not 
 subject to the regime dotal is called by this 
 name, and of these articles the wife has the 
 entire administration; but she may allow 
 the husband to enjoy them, and in that case 
 he is not liable to account. Brown. 
 
 PARASYNEXIS. In the ciVil law, a con- 
 venticle or unlawful meeting. 
 
 PARATITLA (Lat.) In civil law. An ab- 
 breviated explanation of some titles or books 
 of the Code or Digest. 
 
 PARATUM HABEO (Lat. I have ready). 
 In practice. A return made by the sheriff 
 to a capias ad respondendum, which signified 
 that he had the defendant ready to bring 
 into court. This was a fiction, where the 
 defendant was at large. Afterwards he was 
 required, by statute, to take bail from the 
 defendant, and he returned cepi corpus and 
 bail bond. But still he might be ruled to 
 bring in the body. 7 Pa. St. 535. 
 
 P A R ATU S EST VERIFICARE. In old 
 
 pleading. This he is ready to verify. 
 
 PARAVAIL. Jenant paravail is the low- 
 est tenant of the fee, or he who is the im- 
 mediate tenant to one who holds of another. 
 He is called tenant paravail because it is 
 presumed he has the avails or profits of the 
 land. Fitzh. Nat. Brev. 135; 2 Inst. 296. 
 
 PARCEL. A part of the estate. 1 Comyn, 
 Dig. "Abatement" (H 51), "Grant" (B 10). 
 
PARCEL, MAKERS 
 
 (667) 
 
 PARES 
 
 To parcel is to divide an estate. Bac. Abr. 
 "Conditions" (O). 
 
 A small bundle. It is the diminutive of 
 package. 1 Hughes (U. S.) 529. 
 
 The word "parcel" is not a suflScient de- 
 scription of the property alleged in an In- 
 dictment to have been stolen. The prisoner 
 was indicted for stealing "one parcel, of the 
 value of one shilling, of the goods," etc. 
 The parcel in question was taken from the 
 hold of a vessel, out of a box broken open 
 by the prisoner. Held an insuflacient de- 
 scription. 7 Cox, C. C. 13. 
 
 PARCEL MAKERS. Two officers in the 
 exchequer who formerly made the parcels 
 or items of the escheators' accounts, wherein 
 they charged them with everything they had 
 levied for the sovereign's use during the 
 term of their office, and delivered the same 
 to the auditors to make up their accounts 
 therewith. 
 
 PARCELS, BILL OF. An account of the 
 items composing a parcel or package of 
 goods, transmitted with them to the pur- 
 chaser. 
 
 PARCELLA TERRAE. A parcel of land. 
 
 PARCENARY. The state or condition of 
 holding title to lands jointly by parceners, 
 before the common inheritance has been 
 divided. See "Coparcenary, Estates in." 
 
 PARCENERS. The daughters of a man 
 or woman seised of lands and tenements in 
 fee simple or fee tail, on whom, after the 
 death of such ancestor, such lands and tene- 
 ments descend, and they enter. See "Copar- 
 ceners." 
 
 PARCHMENT (Pr.; Law 'La.t. pergamenum'). 
 Sheep skins dressed for writing; so called 
 because invented at Pergamus, in Asia Mi- 
 nor, by King Bumenes, when the exportation 
 of paper, which was made in Egypt only, 
 was forbidden by Ptolemy. 
 
 PARCO FRACTO (Lat.) In English law. 
 The name of a writ against one who violently 
 breaks a pound and takes from thence beasts 
 which, for some trespass done, or some other 
 just cause, were lawfully impounded. 
 
 PARC US (Lat.) A park. 
 
 PARDON. An act of grace, proceeding 
 from the power intrusted with the execution 
 of the laws, which exempts the individual on 
 whom it is bestowed from the punishment 
 the law inflicts for a crime he has commit- 
 ted. 7 Pet. (U. S.) 160. 
 
 Every pardon granted to the guilty is in 
 derogation of the law. If the pardon be 
 equitable, the law is bad; for where legisla- 
 tion and the administration of the law are 
 perfect, pardons must be a violation of the 
 law. But, as human actions are necessarily 
 imperfect, the pardoning power must be 
 vested somewhere, in order to prevent injus- 
 tice When it is ascertained that an error has 
 been committed. 
 
 (1) An absolute pardon is one which frees 
 
 the criminal without any condition what- 
 ever. 
 
 (2) A conditional pardon is one to which 
 a condition is annexed, performance of which 
 is necessary to the validity of the pardon. 
 1 Bailey (S. C.) 283; 10 Ark. 284; 1 McCord 
 (S. C.) 176; 1 Park. Cr. Cas. (N. Y.) 47. 
 
 (3) A general pardon, more properly call- 
 ed "amnesty" (g. v.), is one which extends 
 to all offenders of the same kind. It may be 
 express, as when a general declaration is 
 made that all offenders of a certain class 
 shall be pardoned, or implied, as in case of 
 the repeal of a penal statute. 2 Overt. 
 (Tenn.) 423. 
 
 "The distinction between pardon, amnes- 
 ty, and reprieve seems to be that pardon per- 
 manently discharges the individual desig- 
 nated from some or all special penal conse- 
 quences of his crime, but does not affect the 
 legal character of the offense committed; 
 while amnesty obliterates the effect, and de- 
 clares that government will not consider the 
 thing done punishable, and hence operates in 
 favor of all persons involved in it, whether 
 mentioned or not; and reprieve only tempo- 
 rarilyisuspends execution of punishment, leav- 
 ing the legal character of the act unchanged, 
 and the individual subject to its consequen- 
 ces in time to come." Abbott. 
 
 PARENS. A parent. This was the orig- 
 inal and proper sense of the word. 
 
 In the civil law, any relative in the direct 
 ascending line, either male or female. 
 
 PARENS EST NOMEN GENERALE AD 
 omne genus cognationis. Parent is a gen- 
 eral name for every kind of relationship. 
 Co. Litt. 80; Litt. § 108; Magna Carta Johan. 
 c. 50. 
 
 PARENS PATRIAE (Lat.) Father of his 
 country. In England, the king; in America, 
 the people. 3 Bl. Comm. 427; 2 Steph. Comm. 
 528; 4 Kent, Comm. 508, note; 17 How. (U. 
 S.) 393; Shelf. Ins. 12. 
 
 PARENTAGE. Kindred in the direct as- 
 cending line. See 2 Bouv. Inst, note 1955. 
 
 PARENTS. The lawful father and mother 
 of the party spoken of. 1 Murph. (N. C.) 
 336; 11 Serg. & R. (Pa.) 93. 
 
 The term "parent" differs from that of 
 "ancestor;" the latter embracing not only 
 the father and mother, but every person in 
 an ascending line. It differs also from 
 "predecessor," which is applied to corpo- 
 rators. Wood, Inst. 68; 7 Ves. 522; 1 Murph. 
 (N. C.) 336; 6 Bin. (Pa.) 255. See "Father." 
 
 By the civil law, grandfathers and grand- 
 mothers, and other ascendants, were, in cer- 
 tain cases, considered parents. Diet, de Jur. 
 "Parente." See 1 Ashm. (Pa.) 55; 2 Kent, 
 Comm. 159; 5 East, 223; Bouv. Inst. Index. 
 
 PARENTUM EST LIBEROS ALERE 
 etiam nothos. It is the duty of parents to 
 support their children, even when illegiti- 
 mate. Lofft, 222. 
 
 PARES (Lat.) A man's equals; his peers. 
 3 Bl. Comm. 349. 
 
PARES CURIAE 
 
 (668) 
 
 PARLIA.MENTUM INDOCTUM 
 
 PARES CURIAE (Lat.) In feudal law. 
 Those vassals who were bound to attend the 
 lord's court. Ersk. Inst. bk. 2, tit. 3, § 17; 
 1 Washb. Real Prop. 
 
 PARES REGNI. The peers of the realm. 
 
 PARI DELICTO (Lat.) In criminal law. 
 In a similar offense or crime; equal in guilt. 
 
 A 'person who is in pari delicto with anoth- 
 er differs from a particeps criminis in this, 
 that the former term always includes the 
 latter, but the latter does not always include 
 the former. 8 Bast, 381, 382; 124 N. Y. 156. 
 See "In Pari Delicto." 
 
 PARI MATERIA (Lat.) Of the same mat- 
 ter; on the same subject; as, laws pari ma- 
 teria must be construed with reference to 
 each other. Bac. Abr. "Statute" (13). 
 
 PARI PASSU (Lat.) By the same grada- 
 tion. Used especially of creditors who. In 
 marshalling assets, are entitled to receive 
 out of the same fund, without any precedence 
 over each other. 
 
 PARI RATI ONE (Lat.) For the like rea- 
 son; by like mode of reasoning. 
 
 PARIA COPULANTUR PARIBUS. 
 
 ilar things unite with similar. 
 
 Sim- 
 
 PARIBUS SENTENTIIS REUS ABSOL- 
 vitur. When opinions are equal, a defendant 
 is acquitted. 4 Inst. 64. 
 
 PARIENTES. In Spanish law. Relations. 
 White, New Recop. bk. 1, tit. 7, c. 5, § 2. / 
 
 PARIES. In the civil law. A wall. Dig. 
 50. 16. 157. 
 
 PARIES COMMUNIS. In the civil law. 
 A common wall; a party wall. Dig. 29. 2. 
 39. 
 
 PARISH. A district of country, of differ- 
 ent extents. 
 
 In Ecclesiastical Law. The territory 
 
 committed to the charge of a parson, or 
 vicar, or other minister. Ayliffe, Par. 404; 2 
 Bl. Comm. 112. 
 
 In Louisiana. Divisions corresponding 
 
 to counties. The state is divided into par- 
 ishes. 
 
 In New England. Divisions of a town, 
 
 orginally territorial, but which now consti- 
 tute quasi corporations, consisting of those 
 connected with a certain church. See 2 Mass. 
 501; 7 Mass. 447; 16 Mass. 457, 488, 492, et 
 seq.; 1 Pick. (Mass.) 91. 
 
 PARISH APPRENTICE. The children of 
 poor persons in England whO' are bound by 
 the overseers of the parish, with the consent 
 of two justices. 2 Steph. Comm. 230. 
 
 PARISH CONSTABLE. A petty constable 
 exercising his functions within a given par- 
 ish. Mozley & W. 
 
 PARISH COURT. In Louisiana. A court 
 established in each parish, having general 
 tirobate jurisdiction, and a limited civil ju- 
 risdiction. 
 
 PARISH OFFICERS. Church wardens, 
 overseers, and constables. 
 
 PARIUM EADEM EST RATIOJDEM JUS. 
 
 Of things equal, the reason is the same, and 
 the same is the law. 
 
 PARIUM JUDICIUM (Lat. the decision of 
 equals). The right of trial by one's peers, 
 i. e., by jury in the case of a commoner, by 
 the house of peers in the case of a peer. 
 
 PARK (Law Lat. parens). 
 
 In Oid Law. An inclosure. 2 Bl. 
 
 Comm. 38. A pound. Reg. Orig. 166; Cow- 
 ell. Pairlc is still retained in Ireland for 
 "pound." 
 
 In English Lafw. An inclosed chase 
 
 extending only over a man's own grounds. 
 13 Car. II. c. 10; Manw. For. Laws; Cromp. 
 Jur. fol. 148; 2 Bl. Comm. 38. 
 
 In American Law. A piece of ground 
 
 in a city or village set apart for ornament, 
 or to afford the benefit of air, exercise, or 
 amusement. 36 N. y. 120. 
 
 PARK BOTE. To be quit of Inclosing a 
 park, or any part thereof. 
 
 PARLE HILL (also called Parting Hill). 
 A hill where courts were held in old times. 
 Cowell. 
 
 PARLIAMENT (said to be derived from 
 parler la wient, to speak the mind, or parum 
 lamentum). In English law. The legisla- 
 tive branch of the government of Great Brit- 
 ain, consisting of the house of lords and the 
 house of commons. 
 
 PARLIAMENTARY AGENTS. Persons 
 (usually solicitors) who transact the tech- 
 nical Tausiness connected with passing pri- 
 vate bills through parliament. They are 
 required to sign a declaration and give se- 
 curity for compliance with the rules of par- 
 liament. 
 
 PARLIAMENTARY TAXES. Sufch taxes 
 as are imposed directly by act of parliament, 
 i. e., by the legislature itself, as distinguish- 
 ed from those which are imposed by private 
 individuals or bodies under the authority of 
 an act of parliament. Thus, a sewers rate, 
 not being imposed directly by act of parlia- 
 ment, but by certain persons termed "com- 
 missioners of sewers," is not a parliamentary 
 tax; whereas the income tax, which is di- 
 rectly imposed, and the amount also fixed, 
 by act of parliament, is a parliamentary tax. 
 
 PARLIAMENTUM DIABOLICUM. A par- 
 liament held at Coventry, 38 Hen. VI., where- 
 in Edward, Earl of March (afterwards King 
 Edward IV.), and many of the chief nobil- 
 ity were attainted, was so called; but the 
 acts then made were annulled by the suc- 
 ceeding parliament. Jacob. 
 
 PARLIAMENTUM INDOCTUM (Law Lat.) 
 Unlearned or lack learning parliament. A 
 name given to a parliament held at Cov- 
 entry in the sixth year of Henry IV., un- 
 der an ordinance requiring that no law- 
 yer should be chosen knight, citizen or bur- 
 
PARLIAMENTUM JNSANUM 
 
 (669) 
 
 PART OWNERS 
 
 gess; "by reason whereof," says Sir Ed- 
 ward Coke, "this parliament was fruitless, 
 and never a good law made thereat." 4 Inst. 
 48; 1 Bl. Comm. 177. 
 
 PARLIAMENTUM INSANUM. A parlia- 
 ment assembled at Oxford, 41 Hen. III., so 
 styled from the madness of their proceed- 
 ings, and because the lords came with armed 
 men to it, and contentions grew very high 
 between the king, lords, and commons, 
 whereby many extraordinary things were 
 done. Jacob. 
 
 PARLIAMENTUM RELIGIOSORUM. In 
 
 most convents there has been a common 
 room into which the brethren withdrew for 
 conversation; conferences there being term- 
 ed parliamentum. Likewise, the societies of 
 the two temples, or inns of court, call that 
 assembly of the benchers or governors where- 
 in they confer upon the common affairs of 
 their several houses a "parliament." Ja- 
 cob. 
 
 PAROCHIA EST LOCUS QUO DEGIT 
 
 populus alicujus ecclesiae. A parish is a 
 place in which the population of a certain 
 church resides. 5 Coke, 67. 
 
 PAROL (more properly parole, a French 
 word, meaning literally "word" or "speech"). 
 Oral; by word of mouth. 
 
 In Contracts. Verbal or merely writ- 
 ten, as distinguished from sealed. 1 Chit. 
 Cont. 1; 3 Johns. Cas. (N. Y.) 60. 
 
 In Evidence. Parol evidence is that 
 
 delivered verbally by witnesses in court. 
 
 PAROLE. 
 
 In International Law. The agreement 
 
 of persons who have been taken by an en- 
 emy that they will not again take up arms 
 against those who captured them, either for 
 a limited time or during the continuance of 
 the war. Vattel, liv. 3, c. 8, § 151. 
 
 In Criminal Law. A form of condi- 
 tional pardon, by which the convict is re- 
 leased before the expiration of his term, to 
 remain subject, during the remainder there- 
 of, to supervision by the public authorities, 
 and to return to imprisonment on violation 
 of the conditions of the parole. 
 
 PAROLS FONT PLEA. Words make the 
 plea. 5 Mod. 458; Y. B. 19 Hen. VI. 48. 
 
 PARRICIDE (from Lat. pater, father, and 
 cedere, to slay). In civil law. One who 
 murders his father; one who murders his 
 mother, his brother, his sister, or his chil- 
 dren. Merlin, Repert; Dig. 48. 9. 1. 3, 4. 
 
 The common law does not define the crime, 
 and makes no difference in punishment be- 
 tween it and other murders. 1 Hale, P. C. 
 380. 
 
 In colloquial use, the. term is applied ac- 
 cording to its derivative, rather than its civ- 
 il-law meaning, to the slayer of a father only. 
 
 PARRICIDIUM. In the civil law. Parri- 
 cide: the murder of a parent. Dig. 48. 9. 9. 
 
 PARS (Lat.) A party (to a suit). Pars 
 •actrix, a party plaintiff. Reg Orig. 9a; 
 
 Pleta, lib. 2, c. 63, § 11; Gierke, Prax. Cur. 
 Adm. tit. 4. Singularly translated in 
 Dyer (179a), part actress. Pars agens. 3 
 How. St. Tr. 863. 
 
 Pars rea, a party defendant. St. Marlb. c. 
 13. 
 
 PARS ENITIA (Lat.) In old English law. 
 The share of the eldest daughter where lands 
 were parted between daughters by lot, she 
 having her first choice after the division of 
 the inheritance. Co. Litt. 166b; Glanv. lib. 
 7, c. 3; Fleta, lib. 5, c. 10, § "In Divisionem." 
 
 PARS GRAVATA. In old practice. A par- 
 ty aggrieved; the party aggrieved. Hardr. 
 50; 3 Leon. 237. 
 
 PARS PRO TOTO. Part for the whole; 
 the name of a part used to represent the 
 whole; as the roof for the house, ten spears 
 for ten armed men, etc. 
 
 PARS RATIONABILIS (Lat. reasonable 
 part). That part of a man's goods which the 
 law gave to his wife and children. 2 Bl. 
 Comm. 492; Magna Charta; 9 Hen. III. c. 
 18; 2 Steph. Comm. 228, 254. 
 
 PARSON. In ecclesiastical law. One that 
 hath full possession of all the rights of a 
 parochial church. So called because the 
 church, which is an invisible body, is repre- 
 sented by his person. In England he is him- 
 self a body corporate, in order to protect and 
 defend the church (which he personates) by 
 a perpetual succession. Co. Litt. 300. 
 
 PARSON IMPARSONA (Lat.) A persona, 
 or parson, may be termed "impersonata," or 
 "impersonee," only in regard to the posses- 
 sion he hath of the rectory by the act of an- 
 other. Co. Litt. 300. One that is inducted 
 and in possession of a benefice, e. g., a dean 
 and chapter. Dyer, 40, 221. He that is in 
 possession of a church, be it presentative or 
 appropriate, and with whom the church is 
 full, — persona in this case meaning the pq,- 
 tron who gives the title, and persona imper- 
 sonata the parson to whom the benefice is 
 given in the patron's right. Reg. Jud. 24. 
 
 PART. A share; a purpart. This word is 
 also used in contradistinction to counter- 
 part. Covenants were formerly made in a 
 script and rescript, or part and counterpart. 
 
 PART AND PERTINENT. In Scotch law. 
 A term in a conveyance including lands or 
 servitudes held for forty years as part of, 
 or pertinent to, lands conveyed, natural 
 fruits before they are separated, woods and 
 parks, etc., but not steelbow stock, unless 
 the lands have been sold on a rental. Bell, 
 Diet; Ersk. Inst. 2. 5. 3. et seq. 
 
 PART OWNERS. Those who own a thing 
 together, or in common. 
 
 In Maritime Law. A term applied to 
 
 two or more persons who own a vessel to- 
 gether, and not as partners. 
 • In general, when a majority of the part 
 owners are desirous of employing such a ship 
 upon a particular voyage or adventure, they 
 have a right to do so upon giving security in 
 
PARTE NON COMPARENTE 
 
 (670) 
 
 PARTIES 
 
 the admiralty by stipulation to tlie minority, 
 if required, to bring her back and restore the 
 ship, or, in case of her loss, to pay them the 
 value of their respective shares. 4 Bouv. 
 Inst, note 3780; Abb. Shipp. 70; 3 Kent, 
 Comm. (4th Ed.) 151; Story, Partn. § 489; 
 11 Pet. (U., S.) 175. When the majority do 
 not choose to employ the ship, the minority 
 have the same right, upon giving similar se- 
 curity. 11 Pet. (U. S.) 175; 1 Hagg. Adm. 
 306; Jacobsen, Sea Laws, 442. 
 
 PARTE NON COMPARENTE (Lat.) The 
 party not having appeared. The condition 
 of a cause called "default." 
 
 PARTE QUACUMQUE INTEGRANTS 
 sublata, tollitur totum. An integral part be- 
 ing taken away, the whole is taken away. 8 
 Coke, 41. 
 
 PARTEM ALIQUAM RECTE INTELLI- 
 gere nemo potest, antequam totum, iterum 
 atque iterum, perlegerit. No one can rightly 
 understand any part until he has read the 
 whole again and again. 3 Coke, 52. 
 
 PARTES FINIS NIL HABERUNT (Lat. 
 the parties to the fine had nothing, i. e., 
 nothing which they could convey). In old 
 English pleading. The plea to a fine levied 
 by a stranger, and which only bound parties 
 and privies. 2 Bl. Comm. 356*; Hob. 334; 1 
 P. Wms. 520; 1 Wooddeson, Lect. 315. 
 
 PARTIAL LOSS. A loss of a part of a 
 thing, or of its value, as contrasted with a 
 total loss. 
 
 In Maritime Law. Where this happens 
 
 by damage to an article, it is also called a 
 particular average (g. v.) 
 
 PARTICEPS CRIMINIS. A sharer or par- 
 taker In crime. Applied, also, to persons 
 participating in an illegal or Immoral trans- 
 action or contract not criminal. One may 
 be particeps criminis, and not in pari delicto. 
 124 N. Y. 156. 
 
 PARTiCEPS PLURES SUNT QUASI 
 unum corpus In eo quod unum Jus habent, et 
 oportet quod corpus sit integrum, et quod 
 in nulla parte sit defectus. Many parceners 
 are as one body, inasmuch as they have one 
 right, "and it is necessary that the body be 
 perfect, and that there be a defect in no part. 
 • Co. Litt. 4. 
 
 PARTICULA (Law Lat.) In old English 
 law. Parcel. Perk. c. 10, §§ 674, 676^679. 
 
 PARTICULAR AVERAGE. Every. kind of 
 expense or damage, short of total loss, which 
 regards a particular concern, and which is 
 to be wholly borne by the proprietor of that 
 concern or Interest alone. 2 Phil. Ins. § 354; 
 1 Pars. Mar. Law, 284. See "Average." 
 
 PARTICULAR AVERMENT. See "Aver- 
 ment." 
 
 PARTICULAR CUSTOM. A custom which 
 only affects the inhabitants of some particu- 
 lar district. 
 
 To be good, a particular custom must have 
 
 been used so long that the memory of man 
 runneth not to the contrary; must have been 
 continued; must have been peaceable; must 
 be reasonable; must be certain; must be 
 consistent with itself; must be consistent 
 with other customs. 1 Bl. Comm. 74, 79'. 
 
 PARTICULAR ESTATE. An estate which 
 is carved out of a larger, and which pre- 
 cedes a remainder; as, an estate for years to 
 A., remainder to B. for life; or, an estate 
 for life to A., remainder to B. In tail. This 
 precedent estate is called the "particular es- 
 tate." 2 Bl. Comm. 165; 4 Kent, Comm. 226; 
 16 Viner, Abr. 216; 4 Comyn, Dig. 32; 5 
 Comyn, Dig. 346. See "Remainder." 
 
 PARTICULAR LIEN. A right which a per- 
 son has to retain property in respect of mon- 
 ey or labor expended on such particular 
 property. See "Lien." 
 
 PARTICULAR MALICE. Malice against a 
 particular-person. See "Malice." 
 
 PARTICULAR STATEMENT. In Pennsyl- 
 vania pleading and practice. A statement 
 particularly specifying the date of a prom- 
 ise, book account, note, bond (penal or 
 single), bill, or all of them, on which an ac- 
 tion is founded, and the amount believed by 
 the plaintiff to be due from the defendant. 
 6 Serg. & R. (Pa.) 21. It is founded on the 
 provisions of a statute passed March 21, 
 1806. See 4 Smith, Pa. Laws, 328. It is an 
 unmethodical declaration, not restricted to 
 any particular form. 2 Serg. & R. (Pa.) 
 537; 3 Serg. & R. (Pa.) 405; 8 Serg. & R. 
 (Pa.) 316, 567; 2 Browne (Pa.) 40. 
 
 PARTICULAR TENANT. The holder of a 
 particular estate (g. v.) 
 
 PARTICULARS. See "Bill of Particulars." 
 
 PARTICULARS OF CRIMINAL CHAR- 
 ges. A prosecutor, when a charge is general, 
 is frequently ordered to give the defendant 
 a statement of the acts charged, which is 
 called, in England, the "particulars" of the 
 charges. 
 
 In the United States, a bill of particulars 
 is often ordered for the same purpose. 
 
 PARTICULARS OF SALE. When proper- 
 ty such as land, houses, shares, reversions, 
 etc., is to be sold by auction, it is usually 
 described in a document called the "particu- 
 lars," copies of which are distributed among 
 Intending bidders. They should fairly and 
 accurately describe the property. Dart, Vend. 
 113; 1 Dav. Conv. 511. 
 
 PARTIES (Lat. pars, a part). Those who 
 take part In the performance of an act, as, 
 making a contract, carrying on an action. A 
 party in law may be said to be those united 
 In interest in the performance of an act. It 
 may then be composed of one or more per- 
 sons. "Parties" includes every party to an 
 act. It is also used to denote all the indi- 
 vidual separate persons engaged in the act, — 
 in which sense, however, a corporation may 
 be a party. 
 
 To Contracts. Those persons who en- 
 
PARTITION 
 
 (671) 
 
 PARTQRITION 
 
 gage themselves to do or not to do the mat- 
 ters and things contained in an agreement. 
 
 In Actions. The persons seeking re- 
 lief, and those against whom relief is sought, 
 in any action. Parties are either "of rec- 
 ord," being those in whose name the suit is 
 brought, or who are named as defendants, 
 and "not of record," those not so named, hut 
 who have a beneficial interest in the subject 
 matter. 6 Abb. Pr. (N. S.; N. Y.) 147. 
 
 PARTITION. The division which is made 
 between several persons of lands, tenements, 
 or hereditaments, or of goods and chattels, 
 which belong to them as coheirs or copro- 
 prietors. The term is more technically ap- 
 plied to the division of real estate made be- 
 tween coparceners, tenants in common, or 
 joint tenants. 
 
 Compulsory partition is that which takes 
 place by a judicial proceeding for that pur- 
 pose, without regard to the wishes of one or 
 more of the owners. 
 
 Voluntary partition is that made by the 
 owners by mutual consent. 
 
 PARTNER. One who is a member of a 
 partnership (q. v.) 
 
 Ostensible Partners. Those held out 
 
 and known as partners, and who in reality 
 are such. 
 
 Secret Partners. Those whose rela- 
 tion to the partnership is concealed. 
 
 Active Partners. Those who take an 
 
 active part in the conduct of the business. 
 They may be either ostensible or secret part- 
 ners. , ^ , 
 
 Silent Partners. Those who take no 
 
 active part in the management of the busi- 
 ness. They may be either ostensible or se- 
 cret partners. 
 
 Dormant Partners. Such as are both 
 
 secret and silent partners. The term is 
 sometimes applied, however, as meaning 
 merely a secret partner, and sometimes as 
 meaning a silent partner. Pars. Partn. § 31. 
 
 Nominal Partners. Such as are appar- 
 ently partners, but really are not. 
 
 General Partners. Those members of 
 
 a limited partnership whose liability is not 
 limited by special agreement. 
 
 Special Partners. Those members of 
 
 a limited partnership whose liability is lim- 
 ited. See "Partnership." Shumaker, Part- 
 nership, 124. 
 
 PARTNERSHIP. The relation subsisting 
 between two or more persons who have con- 
 tracted together to share as common owners 
 the profits of a business carried on by all or 
 any of them on behalf of all of them. Shu- 
 maker, Partnership, 2. 
 
 Elements: 
 
 The essential elements of a partnership 
 are (1) a contract between the partners; a 
 true partnership being always formed by 
 contract, not by operation of law. 138 111. 
 74; 43 Mo. 391; 63 Pa. St. 273. The so-called 
 partnership by estoppel or holding out is 
 only, an apparent exception; it not being a 
 true partnership inter se, but only a liabil- 
 ity of individuals to third persons as if they 
 we're partners. (2) A sharing of profits; but 
 
 the profits must be shared between the part- 
 ners as common owners thereof, not because 
 of a portion thereof being due to a party 
 as a debt. 8 H. L. Cas. 268; 5 Colo. 564; 30 
 Me. 384; 38 Cal. 205; 28 Ohio St. 319. But 
 community of ownership in the stock or cap- 
 ital by means of which profits are earned 
 is not essential. 15 Conn. 67. 
 
 Tests: 
 
 Profit sharing, therefore, is not a test, nor 
 is mutual agency, for mutual agency results 
 from partnership, not partnership from 
 agency. The true test is the intention of the 
 parties to share in the profits as common 
 owners. An agreement to share both profits 
 and losses is prima facie but not conclusive 
 evidence of intention to form a partnership 
 (97 111. 303), as is an agreement to share 
 profits with nothing said about losses (145 
 U. S. 611), or with a stipulation against the 
 liability of one of the parties for losses (18 
 Fed. 888) ; but not an agreement to share 
 gross returns (15 111. 31; 20 N. Y. 93), or 
 to share losses or expenses only (92 111. 103; 
 132 Mass. 423). The common ownership of 
 property does not create a partnership un- 
 less it be employed in business for common 
 profit. 27 Iowa, 131. 
 
 Classification : 
 
 Partnerships classified with reference to 
 the nature of the association are either (1) 
 ordinary partnerships, (2) limited partner- 
 ships, being those wherein the liability of 
 one or more partners is, by compliance with 
 certain statutory provisions, limited to the 
 amount of their contribution to the capital 
 stock, or (3) joint-stock companies, being 
 partnerships with a capital stock divided in- 
 to transferable shares. 
 
 Partnerships classified with reference to 
 their extent are either (1) universal part- 
 nerships, being those in which the parties 
 bring into the firm all their property, of 
 whatever nature, and employ all their serv- 
 ices for the common benefit, (2) general 
 partnerships, being those formed to transact 
 some general class of business, or (3) spe- 
 cial or particular partnerships, being those 
 formed for a particular transaction. 
 
 Partnerships classified with reference to 
 their business are either (1) trading or com- 
 mercial partnerships, being those whose 
 business consists in buying or preparing for 
 sale and selling commodities for profit, or 
 (2) nontrading partnerships. 
 
 PARTNERSHIP IN CO iVI IVI E N D A M . In 
 
 Louisiana law. Partnership in commendam 
 is formed by a contract by which one person 
 or partnership agrees to furnish another 
 person or partnership a certain amount, ei- 
 ther in property or money, to be employed 
 by the person or partnership to whom it is 
 furnished, in his or their own name or firm, 
 on condition of receiving a share in the 
 profits, in the proportion determined by the 
 contract, and of being liable to losses and 
 expenses to the amount furnished, and no 
 
 more. Civ. Code La. art. 2839. 
 
 PARTURITION. The act of giving birth 
 to a child. See "Birth." 
 
PARTUS 
 
 (672) 
 
 PASSENGER 
 
 PARTUS (Lat.) The child just before It 
 is born, or immediately after its birth; off- 
 spring. 
 
 PARTUS EX LEGITIMO THORO NON 
 certius noscit matrem quam genitorem suam. 
 The offspring of a legitimate bed knows not 
 his mother more certainly than his father. 
 Fortescue, c. 42. 
 
 PARTUS SEQUITUR VENTREM. The ofC- 
 spring follow the condition of the mother. 
 Inst. 2. 1. 19. This is the law in the case 
 of slaves and animals (1 Bouv. Inst, notes 
 167, 502), but with regard to freemen, chil- 
 dren follow the condition of the father. 
 
 PARTY. See "Parties." 
 
 PARTY JURY. A jury de medietate linguae 
 (q. V.) 
 
 PARTY STRUCTURE. A structure sepa- 
 rating buildings, stories, or rooms which be- 
 long to different owners, or which are ap- 
 proached by distinct staircases or separate 
 entrances from without, whether the same 
 be a partition, arch, floor, or other structure. 
 St. 18 & 19 Vict. c. 122, § 3. Mozley & W. 
 
 PARTY WALL. A wall erected on the line 
 between two adjoining estates, belonging to 
 different persons, for the use of both estates. 
 2 Bouv. Inst, note 1615. 
 
 It is ordinarily owned in common by the 
 adjoining owners, but may be divided longi- 
 tudinally or divided latitudlnally, the sec- 
 tions being subject to mutual easements, or 
 it may belong to one owner, and be subject 
 to an easement in favor of the other. 50 N. 
 Y. 646; 75 111. 118. 
 
 PA RUM CAVET NATURA. Nature takes 
 little heed. 2 Johns. Cas. (N. Y.) 127, 166. 
 
 PARUM CAVISSE VIDETUR. In Roman 
 law. He seems to have taken too little 
 care. A form used by judges in pronounc- 
 ing sentence. 
 
 PARUM DIFFERUNT QUAE RE CON- 
 cordant. Things differ but little which agree 
 in sjibstance. 2 Bulst. 86. 
 
 PARUM EST LATAM ESSE SENTEN- 
 tiam, nisi mandetur executioni. It is not 
 enough that sentence should be given, unless 
 it be committed to execution. Co. Litt. 289, 
 
 PARUM PROFICIT SCIRE QUID FIERI 
 debet, si non cognoscas quomodo sit factu- 
 rum. It avails little to know what ought to 
 be done, if you do not know how it is to be 
 done. 2 Inst. 503. 
 
 PARVA SERJANTIA (Law Lat.) In old 
 English law. Petty serjeanty. Pleta, lib. 1, 
 c. 11. Called also, parva serjanteria. Magna 
 Carta, 9 Hen. III. c. 27. 
 
 PARVUM CAPE. See "Petit Gape." 
 
 PAS (Pr.) Precedence. 
 
 PASCHA (Law Lat.; Law Pr. pasoTie). In 
 old English law and practice. Easter. De 
 
 termino PascJiae, of the term of Easter. 
 Bracton, fol. 246b. A die PascTiae in quin- 
 decim dies, from the day of Easter in fif- 
 teen days; after fifteen days of Easter. Reg. 
 Jud. 36; 3 Bl. Comm. Append. No. iii. § 3. 
 
 PASCUA SILVA (Lat.) In the civil law. 
 A feeding wood; a wood devoted to the feed- 
 ing of cattle (quae pastui pecudum destinata 
 est). Dig. 50. 16. 30. 5. 
 
 PASS. 
 
 In Practice. To proceed; to be en- 
 tered. A verdict or judgment is said "to 
 pass for" a party where it is delivered in his 
 favor. This term is directly taken from the 
 old French passer. 
 
 In Conveyancing. To go from one per- 
 son to another; to be transferred. "The 
 names of things by which they pass in as- 
 surances." Hale, Anal. § xxiv. "By what 
 names things pass." Id. § xxxv. 
 
 To convey or transfer. "To pass an es- 
 tate." "Effectual words to pass the inter- 
 est." Id. § xxxv. "The passing of estates." 
 Id. 
 
 PASSAGE MONEY. The sum claimable 
 for the conveyance of a person, with or with- 
 out luggage, on the water. 
 
 The difference between freight and passage 
 money is this, that the former is claimable 
 for the carriage of goods, and the latter for 
 the carriage of the person. The same rules 
 which govern the claim for freight affect 
 that for passage money. 3 Chit. Com. Law, 
 424; 1 Pet. Adm. (N. Y.) 126; 3 Johns. (N. 
 Y.) 335. See "Common Carriers of Passen- 
 gers." 
 
 PASSAGIO. An ancient writ addressed to 
 the keepers of the ports to permit a man 
 who had the king's leave to pass over sea. 
 Reg. Orig. 193. 
 
 PASSAGIUM (Law Lat; Law Pr. passage, 
 from passer, to pass). In old English law. 
 Passage; a passing over sea; a voyage 
 Reg. Orig. 193b. A term frequently used in 
 the law of essoins, in the days of the Cru- 
 sades. Bracton, fol. 339; Pleta, lib. 6, c. 8. 
 
 PASSATOR. He who has the interest or 
 command of the passage of a river; or a lord 
 to whom a duty is paid for passage. Whar- 
 ton. 
 
 PASSENGER. One who has taken a place 
 in a public conveyance for the purpose of 
 being transported from one place to another. 
 One who is so conveyed from one place to 
 another. 
 
 Though the relation of passenger and car- 
 rier is in a sense a matter of contract, on 
 account of the duty of the carrier to receive 
 all persons without discriminations, the Im- 
 plications of contract are broader than in 
 other cases. Thus, one is a passenger on 
 a train which he took by mistake. 64 Tex. 
 536; 40 Ind. 37. 
 
 One .who is carried gratuitously is a pas- 
 senger, as is one who has not yet paid his 
 fare (57 N. Y. Super. Ct. 348; 46 Mo. App. 
 555), but not one who designs evading pay- 
 
PASSIVE DEBTS 
 
 (673) 
 
 PATER 
 
 ment of fare (157, Mass. 377), even by using 
 a pass issued to another (107 Ind. 442). 
 
 An employe of the carrier not engaged in 
 the management of the particular train is a 
 passenger (69 Ga. 715; but see '95 N. Y. 267), 
 as is an employe of another carrier under 
 contract, as an express messenger (56 Ark. 
 594), or a postal clerk (95 N. Y. 562; 57 Fed. 
 165). 
 
 The relation of passenger and carrier be- 
 gins the moment one goes on the carrier's 
 premises to take passage on one of its trains 
 (58 Ga. 461; 36 Fed. 72; 40 Barb. [N. Y.] 
 546), and is not ended until the passenger 
 leaves the conveyance and the carrier's prem- 
 ises (55 Kan. 582; 146 Mass. 241; 9 Tex. Civ. 
 App. 599). 
 
 PASSIVE DEBTS. In the civil law. All 
 the sums of which one is a debtor, as dis- 
 tinguished from "active debt," — those which 
 are owed to one; the terms being used in 
 the same sense as "bills payable" and "bills 
 receivable." The term "passive debt" is al- 
 so used to indicate one upon which no Inter- 
 est is payable, as distinguished from "active 
 debt," — one which draws interest. 
 
 PASSIVE TRUST. See "Trust." 
 
 PASSIVE USE. A permissive use (q. v.) 
 
 PASSPORT (Fr. passer, to pass, port, har- 
 bor or gate). 
 
 In Maritime Law. A paper containing 
 
 a permission from the neutral state to the 
 captain or master of a ship or vessel to pro- 
 ceed on the voyage proposed. It usually con- 
 tains his name and residence, the name, 
 property, description, tonnage, and destina- 
 tion of the ship, the nature and quantity of 
 the cargo, the place from whence it comes, 
 and its destination, with such other matters 
 as the practice of the place requires. 
 
 It is also called a "sea brief," or "sea let- 
 ter." But Marshall distinguishes sea letter 
 from passport, which latter, he says, is in- 
 tended to protect the ship, while the former 
 relates to the cargo, destination, etc. See 
 Jacobsen, Sea Laws, 66, note. This docu- 
 ment is indispensably necessary in time of 
 war for the safety of every neutral vessel. 
 Marsh. Ins. bk. 1, c. 9, § 6, 317, 406b. 
 
 A Mediterranean pass or protection 
 against the Barbary powers. Jacobsen, Sea 
 Laws, 66, note; Act Cong. 1796. 
 
 In International Law. A document 
 
 granted in time of war to protect persons or 
 property from the general operation of hos- 
 tilities. Wheaton, Int. Law, 475; 1 Kent, 
 Comm. 161; 6 Wheat. (U. S.) 3. 
 
 An official letter of identification, given to 
 travelers in most countries of continental 
 Europe. These are intended to protect them 
 on their journey from all molestation while 
 they are obedient to the laws. Passports are 
 also granted by the secretary of state to per- 
 sons travelling abroad, certifying that they 
 are citizens of the United States. 9 Pet. (U. 
 S.) 692. See 1 Kent, Comm. 162, 182; Mer- 
 lin, Repert. 
 
 PASTO (Spanish; from Lat. pastiis, q. v.) 
 In Spanish law. Feeding; pasture; a right 
 
 of pasture. White, New Recop. bk. 2, tit. 1, 
 c. 6, § 4. 
 
 PASTURES. Lands upon which beasts 
 feed themselves. By a grant of pastures, the 
 land itself passes. 1 Thomas, Co. Litt. 202. 
 
 PASTUS. The procuration or provision 
 which feudal tenants were bound to make for 
 their lords at certain times, or as often as 
 they made a progress to their lands. It was 
 often cotiverted into money. Wharton. 
 
 PATEAT UNIVERSIS PER PRAESEN- 
 
 tes. Know all men by these presents. 
 
 PATENT. A grant of some privilege, prop- 
 erty, or authority, made by the government 
 or sovereign of a country to one or more in- 
 dividuals. Phil. Pat. 1. 
 
 As the term was originally used in Eng- 
 land, it signified certain written instruments 
 emanating from the king, and sealed with 
 the great seal. These instruments conferred 
 grants of lands, honors, or franchises; they 
 were called "letters patent," from being de- 
 livered open, and by way of contradistinction 
 from instruments like the French lettres de 
 cachet, which went out sealed. 
 
 In the United States the word "patent" is 
 sometimes understood to mean the title deed 
 by which a government, either state or feder- 
 al, conveys its lands. But in its more usug.1 
 acceptation it is understood as referring to 
 those instruments by which the United 
 States secures to inventors for a limited 
 time the exclusive use of their own inven- 
 tions. 
 
 PATENT AMBIGUITY. One arising from 
 the words of an instrument, and hence ob- 
 vious on its face before attempting to ap- 
 ply the words to the subject matter. See 
 "Latent Ambiguity." 
 
 PATENT OF PRECEDENCE. Letters pat- 
 ent granted, in England, to such barristers 
 as the crown thinks fit to honor with that 
 mark of distinction, whereby they are enti- 
 tled to such rank and preaudience as are as- 
 signed in their respective patents, which is 
 sometimes next after the attorney general, 
 but more usually next after her majesty's 
 counsel then being. These rank promiscu- 
 ously with the king's (or queen's) counsel, 
 but are not the sworn servants of the crown. 
 3 Bl. Comm. 28; 3 Steph. Comm. 274. 
 
 PATENT RIGHT. A right of exclusive 
 sale or manufacture secured by a patent. 
 
 PATENT ROLLS. In English law. Rolls 
 containing the records of letters patent 
 granted by the crown since the year 1516... 
 The earlier of these records are deposited 
 in the Tower, the others are in the Rolls' 
 Chapel. Hubback, Ev. Success. 616, 617, 
 where a particular description is given. 
 
 PATENT WRIT. In old practice. An open 
 writ; one not closed or sealed up. See 
 "Close Writs." 
 
 PATER (Lat.) A father; the fatKer. In 
 
PATER-FAMILIAS 
 
 (674) 
 
 PATRIA 
 
 the civil law, this word sometimes includ- 
 ed avus (grandfather). Dig. 50. 16. 201. 
 
 PATER-FAMILIAS (Lat.) In civil law. 
 One who was sui juris, and not subject to 
 the paternal power. 
 
 In order to give a correct idea of what 
 was understood in the Roman law by this 
 term, it is proper to refer briefly to the ar- 
 tificial organization of the Roman family, — 
 the greatest moral phenomenon in the his- 
 tory of the human race. The comprehen- 
 sive term familia embraced both persons and 
 property. Money, lands, houses, slaves, chil- 
 dren, all constituted part of this artificial 
 family, this juridical entity, this legal patri- 
 mony, the title to which was exclusively 
 vested in the chief or pater-familias, who 
 alone was capax dominii, and who belonged 
 to himself, sui juris. 
 
 The word pater-familias is by no means 
 equivalent to the modern expression father 
 of a family, but means "proprietor," in the 
 strongest sense of that term. It is he, qui 
 in domo dominium habet, in whom were 
 centered all property, all power, all author- 
 ity. He was, in a word, the lord and master, 
 whose authority was unlimited. No one but 
 he who was sui juris, who was pater-famili- 
 as, was capable of exercising any right of 
 property, or wielding any superiority or 
 power over anything, for nothing could be- 
 long to him who was himself alieni juris. 
 Hence the children of the filii-famiUas, as 
 well as those of slaves, belonged to the pa- 
 ter-familias. In the same manner, every- 
 thing that was acquired by the sons or slaves 
 formed a part of the familia, and, conse- 
 quently, belonged to its chief. This absolute 
 property and power of the pater-familias 
 only ceased with his life, unless he volun- 
 tarily parted with them by a sale; for the 
 alienation by sale is invariably the symbol 
 resorted to for the purpose of dissolving the 
 stern dominion of the pater-familias over 
 those belonging to the familia. Thus, both 
 emancipation and adoption are the results 
 of imaginary sales, — per imaginarias vendi- 
 tiones. As the daughter remained in the fam- 
 ily of her father, grandfather, or great- 
 grandfather, as the ease might be. notwith- 
 standing her marriage, it followed as a nec- 
 essary consequence that the child never be- 
 longed to the same family as its mother. 
 There is no civil relationship between them; 
 thev are natural relations — rnnnatf. — but 
 they are not legally related to each other. — 
 agnati. and therefore the child riever inher- 
 its from its mother, nor the mother from her 
 child. There was, however, a means by 
 which the wife might enter into the family 
 and subject herself to the power of her hus- 
 band, in manu mariti. and therebv establish 
 a legal relationship between Ijerself and her 
 husband. This marital power of the hus- 
 band over the wife was generally acquired 
 either coemptione, bv the purchase of the 
 wife by the husband from the pater-familias, 
 or usu, bv the prescription based on the pos- 
 session of one year, — the same by which the 
 title to movable. property was acquired ac- 
 cording to the principles governing the usu- 
 capio . (usu capere, to obtain by use). An- 
 
 other mode of obtaining the same end was 
 the confarreatio, a sacred ceremony perform- 
 ed by the breaking and eating of a small 
 cake, farreum, by the married couple. It 
 was supposed that by an observance of this 
 ceremony the marital power was produced 
 by the intervention of the gods. This sol- 
 emn mode of celebrating marriages was pe- 
 culiar to the patrician families. By means 
 of these fictions and ceremonies, the wife be- 
 came, in the eye of the law, the daughter of 
 her husband, and the sister of the children 
 to whom she gave birth, who would other- 
 wise have been strangers to her. Well might 
 Gains say, Fere nulli alii sunt homines qui 
 talem in liberos haieant potestatem, qualem 
 nos habemus. 
 
 This extraordinary organization of the Ro- 
 man family, and the unlimited powers and 
 authority vested in the pater-familias, con- 
 tinued until the reign of Justinian^ who, by 
 his 118th Novel, enacted on the 9th of Au- 
 gust, 544, abolished the distinction between 
 the agnatio and cognatio, and established the 
 order of inheritance, which, with some mod- 
 ifications, continues to exist at the present 
 day in all countries whose jurisprudence is 
 based on the civil law. See "Patria Po- 
 testas." 
 
 PATER IS EST QUEM NUPTIAE DE 
 
 monstrant. The father is he whom the mar- 
 riage points out. 1 Bl. Comm. 446; 7 Mart 
 (N. S.; La.) 548, 553; Dig. 2. 4. 5; 1 Bouv. 
 Inst, notes 273, 304, 322; Broom, Leg. Max, 
 (3d London Ed.) 458. 
 
 PATER PATRIAE. Father of the country. 
 See "Parens Patriae." 
 
 PATERNA PATERNIS (Lat. the father's 
 to the father's). In French law. An ex- 
 pression used to signify that, in a succession, 
 the property coming from the father of the 
 deceased descends to his paternal relations. 
 
 PATERNAL. That which belongs to the 
 father or comes from him; as, paternal pow- 
 er, paternal relation, paternal estate, pater- 
 nal line. See "Line." 
 
 PATERNAL POWER. The authority law- 
 fully exercised by parents over their chil- 
 dren. See "Father." 
 
 PATERNAL PROPERTY. That which de- 
 scends or comes from the father and other 
 ascendants or collaterals of the paternal 
 stock. Domat, tit. 3, § 2, note 11. 
 
 PATERNITY. The state or condition of a 
 father. 
 
 PATIBULATED. Hanged. 
 
 PATIBULUM. In old English law. A gal- 
 lows or gibbet. Fleta, lib. 2, c. 3, § 9. 
 
 PATIENS. In the civil law, the passive 
 party to a transaction. The correlative term 
 is agens. See "Agent and Patient." 
 
 PATRIA (Lat.) The country; the men of 
 the neighborhood competent to serve on a 
 jury; a jury. This word is nearly synony- 
 mous with pais (q. v.) 
 
PATRIA LABORIBUS, ETC. 
 
 (675) 
 
 PATRIA POTESTAS 
 
 PATRIA LABORIBUS ET EXPENSIS 
 non debet fatlgari. A jury ought not to be 
 harassed by labors and expenses. Jenk. Cent. 
 Cas. 6. 
 
 PATRIA POTESTAS (Lat.) In civil law. 
 The paternal power; the authority which the 
 law vests in the father over the persons and 
 property of his legitimate children. 
 
 One of the effects of marriage is the pa- 
 ternal authority over the children born in 
 wedlock. In the early period of the Ro- 
 man history, the paternal authority was un- 
 limited. The father had the absolute con- 
 trol over his children, and might even, as 
 the domestic magistrate of his family, con- 
 demn them to death. They could acquire 
 nothing except for the benefit of the pater- 
 familias (q. v.), and they were even liable to 
 be sold and reduced to slavery by the author 
 of their existence. But in the progress of 
 civilization, this stern rule was gradually 
 relaxed. The voice of nature and humanity 
 was listened to on behalf of the oppressed 
 children of a cruel and heartless father. A 
 passage in the 37th book (title 12, § 5) of 
 the Pandects informs us that, in the year 
 870 of Rome, the emperor Trajan compelled 
 a father to release his son from the paternal 
 authority, on account of cruel treatment. 
 The same emperor sentenced a father to 
 transportation because he had killed his son 
 in a hunting party, although the son had 
 been guilty of adultery with his stepmother; 
 for, says Marcianus, who reports the case, 
 patria potestas in pietate debet, non in atro- 
 citate, consistere. Ulpianus says that a fa- 
 ther is not permitted to kill his son without 
 a judgment from the prefect or the presi- 
 dent of the province. In the year 981 of 
 Rome, the emperor Alexander Severus ad- 
 dressed a constitution to a father, which is 
 found in book 8, tit. 47, § 3, of the Justinian 
 Code, in which he says: "Your paternal au- 
 thority authorizes you to chastise ^our son, 
 and, if he persists in his misconduct, you 
 may bring him before the president of the 
 province, who will sentence him to such pun- 
 ishment as you may desire." In the same 
 book and title of the Code we find a consti- 
 tution of the emperor Constantine, dated in 
 the year of Rome 1065, which inflicts the 
 punishment denounced against parricide on 
 the father who shall be convicted of having 
 killed his son. The power of selling the 
 child, which at first was unlimited, was also 
 much restricted, and finally altogether abol- 
 ished, by subsequent legislation, especially 
 during the empire. Paulus, who wrote about 
 the middle of the tenth century of Rome, in- 
 forms us that the father could only sell his 
 child in case of extreme poverty, — contem- 
 platione extremae necessitatis aut alimenta- 
 rum gratia. In 1039 of Rome, Diocletian and 
 Maximian declare in a rescript that it is be- 
 yond doubt (manifestissimi juris) that a fa- 
 ther can neither sell nor pledge nor donate 
 his children. Constantine, in 1059, permit- 
 ted the sale by the father of his child at its 
 birth, and when forced to do so by abject 
 poverty, — propter nimiam paupertatem eges- 
 tatemque victus; and the same law is re- 
 
 enacted in the Code of Justinian. Code, 4. 
 43. 2. 3. 
 
 The father, being bound to indemnify the 
 party who had been injured by the offenses 
 of his child, could release himself from this 
 responsibility by an abandonment of the 
 offender, in the same manner as the master 
 could abandon his slave for a similar pur- 
 pose, — noxali causa mancipare. This power 
 of abandonment continued to exist, with re- 
 gard to male children, up to the time of 
 Gains, in the year 925 of Rome. But by the 
 Institutes of Justinian it is forbidden. Inst. 
 4. 8. 7. 
 
 With regard to the rights of the father to 
 the property the child might acquire, it was 
 originally as extensive and absolute as if it 
 had been acquired by a slave. The child 
 could possess nothing nor acquire anything 
 that did not belong to the father. It is true, 
 the child might possess a pecuUum, but of 
 this he had only a precarious enjoyment, 
 subject to the will and pleasure of the father. 
 Under the first emperors, a distinction was 
 made in favor of the son as to such property 
 as had been acquired by him in the army, 
 which was called castrense pecuUum, to 
 which the son acquired a title in himself. 
 Constantine extended this rule by applying 
 it to such property as the child had acquired 
 by services in offices held in the state, or by 
 following a liberal profession. This was de- 
 nominated quasi castrense pecuUum. He also 
 created the pccidium advcntititim, which was 
 composed of all property inherited by the 
 son from his mother, whether by will or ab 
 intestat; but the father had the usufruct of 
 this peculiiim. Arcadius and Honorius ex- 
 tended it to everything the son acquired by 
 succession or donations from his grandfather 
 or mother or other ascendants in the mater- 
 nal line. Theodosius and Valentinian em- 
 braced in it whatever was given by one of 
 the spouses to the other, and Justinian in- 
 cluded in it everything acquired by the son, 
 except such as was produced by property be- 
 longing to the father himself. It is thus 
 seen that, by "the legislation of Justinian and 
 his predecessors, the paternal power with 
 regard to property was almost entirely de- 
 stroyed. 
 
 The pater familias had not only under his 
 paternal power his own children, but also 
 the children of his sons and grandsons, — in 
 fact, all his descendants in the male line; 
 and this authority continued in full force 
 and vigor, no matter what might be the age 
 of those subject to it. The highest offices in 
 the government did not release the incum- 
 bent from the paternal authority. The vic- 
 torious general or consul to whom the hon- 
 ors of a triumph were decreed by the senate 
 was subject to the paternal power in the 
 same manner and to the same extent as the 
 humblest citizen. It is to be observed, how- 
 ever, that the domestic subjection did not 
 interfere with the capacity of exercising the 
 highest public functions in the state. The 
 children of the daughter were not subject to 
 the paternal authority of her father, — they 
 entered into the family of her husband. Wo- 
 men could never exercise the paternal power. 
 
PATRIA POTESTAS, ETC. 
 
 (676) 
 
 PATRONUS 
 
 And even when a woman was herself sui 
 juris, she could not exercise the paternal 
 power. It is for this reason, Ulpian observes, 
 that the family of which a woman, sui juris, 
 was the head, mater-familias, commenced 
 and ended with her, — mulier autem familiae 
 suae et caput et finis est. 1 Ortolan, 191 et 
 seq. 
 
 The modern civil law has hardly preserved 
 any features of the old Roman jurisprudence 
 concerning the paternal power. Article 233 
 of the Louisiana Code provides, it is true, 
 that a child, whatever be its age, owes honor 
 and respect to its father and mother; and 
 the next article adds that the child remains 
 under the authority of the father and moth- 
 er until his majority or emancipation, and 
 that, in case of a difference of opinion be- 
 tween the parents, the authority of the fa- 
 ther shall prevail. In the succeeding article, 
 obedience is enjoined on the child to the or- 
 ders of the parents as long as he remains 
 subject to the paternal authority. But ar- 
 ticle 236 renders the foregoing rules in a 
 great measure nugatory, by declaring that 
 "a child under the age of puberty cannot 
 quit the paternal house without the permis- 
 sion of his father and mother, who have a 
 right to correct him, provided it be done 
 in a reasonable manner." So that the power 
 of correction ceases with the age of fourteen 
 for boys and twelve for girls. Nay, at these 
 ages the children may leave the paternal 
 roof in opposition to the will of their par- 
 ents. It is seen that, by the modern law, 
 the paternal authority is vested in both par- 
 ents, but practically it is generally exercised 
 by the father alone, for, wherever there is a 
 difference of opinion, his will prevails. The 
 great object to be attained by the exercise 
 of the paternal power is the education of the 
 children to prepare them for the battle of 
 life, to make them useful citizens and re- 
 spectable members of society. During the 
 marriage, the parents are entitled to the en- 
 joyment of the property of their minor chil- 
 dren, subject to the obligation of supporting 
 and educating them, and of paying the taxes, 
 making the necessary repairs, etc. Dona- 
 tions made to minors are accepted by their 
 parents or other ascendants. The father 
 has under his control all actions which it 
 may be necessary to bring for his minor 
 children during the marriage. When the 
 marriage is dissolved by the death of one of 
 the spouses, the paternal power ceases, and 
 the tutorship is opened; but the surviving 
 parent is the natural tutor, and can at his 
 death appoint a testamentary tutor to his 
 minor children. See "Pater-Familias." 
 
 PATRIA POTESTAS IN PIETATE DEB- 
 
 et, non in atrocitate consistere. Paternal pow- 
 er should consist in affection, not in atrocity. 
 
 PATRICIDE. One guilty of killing his 
 father. iSee "Parricide." 
 
 PATRICIUS. InRomanlaw. Anonheredi- 
 tary title of nobility conferred by the em- 
 peror. 
 
 PATRIMONIAL. A thing which comes 
 
 from the father, and, by extension, from the 
 mother or other ancestor. 
 
 PATRIMONIUM. In civil law. That which 
 is capable of being inherited. 
 
 Things capable of being possessed by a 
 single person exclusively of all others are, in 
 the Roman or civil law, said to be in patri- 
 monio; when incapable of being so possessed, 
 they are extra patrimonium. 
 
 Most things may be inherited; but there 
 are some which are said to be extra patri- 
 monium,, or which are not in commerce. 
 These are such as are common, as the light 
 of heaven, the air, the sea, and the like; 
 things public, as rivers, harbors, roads, 
 creeks, ports, arms of the sea, the seashore, 
 highways, bridges, and the like; things 
 which belong to cities and municipal corpo- 
 rations, as public squares, streets, market 
 houses, and the like. See 1 Bouv. Inst, notes 
 421-446. 
 
 PATRIMONY. Any kind of property; such 
 estate as has descended in the same family; 
 estates which have descended or been de- 
 vised in a direct line from the father, and, 
 by extension, from the mother or other an- 
 cestor. 
 
 The father's duty to take care of his chil- 
 dren. Swinb. Wills, pt. 3, § 18, note 31, p. 
 235. 
 
 PATRIM.US (Lat. from pater, father). In 
 the civil law. One who had a father living. 
 Calv. Lex.; Spelman. 
 
 PATRINUS (Law Lat. from pater, father). 
 In old ecclesiastical law. A godfather. 
 Spelman. 
 
 PATROCINIUM (Lat.) In the Roman law. 
 Patronage; protection; defense. The busi- 
 ness or duty of a patron or advocate. See 
 "Patronus." 
 
 PATRON. 
 
 In Ecclesiastical Law. He who has 
 
 the disposition and gift of an ecclesiastical 
 benefice. 
 
 In Roman Law. The former master of 
 
 a freedman. Dig. 2. 4. 8. 1. 
 
 PATRONAGE. The right of appointing to 
 office; as, the patronage of the president of 
 the United States, if abused, may endanger 
 the liberties of the people. 
 
 In Ecclesiastical Law. The right of 
 
 presentation to a church or ecclesiastical 
 benefice. 2 Bl. Comm. 21. 
 
 PATRONATUS (Lat. from patronus, g. v.) 
 — ^In tlie Roman Law. The condition, 
 relation, right, or duty of a patron. 
 In Ecclesiastical Law. Patronage (g.D.) 
 
 PATRONUM FACIUNT DOS, AEDIFICA 
 
 tio, fundus. Endowment, building, and land 
 make a patron. Dod. Adv. 7. 
 
 PATRONUS (Lat.) In Roman law. A 
 modification of the Latin word pater, father. 
 A denomination applied by Romulus to the 
 first senators of Rome, and which they al- 
 
PATROON 
 
 (677) 
 
 PAYABLE 
 
 ways afterwards bore. Romulus at first ap- 
 pointed a hundred of them. Seven years 
 afterwards, in consequence of the associa- 
 tion of Tatius to the Romans, a hundred 
 more were appointed, chosen from the Sa- 
 bines. Tarquinius Priscus increased the 
 number to three hundred. Those appointed 
 by Romulus and Tatius were called patres 
 majoriim gentium, and the others were called 
 patres minorum, gentium,. These and their 
 descendants constituted the nobility of 
 Rome. The rest of the people were ' called 
 the "plebeians," every one of whom was 
 obliged to choose one of these fathers as his 
 patron. The relation thus constituted involv- 
 ed important consequences. The plebeian, 
 who was called cliens (a client), was obliged 
 to furnish the means of maintenance to his 
 chosen patron, to furnish a portion for his 
 patron's daughters, to ransom him and his 
 sons. If captured by an enemy, and pay all 
 sums recovered against him by judgment of 
 the courts. The patron, on the other hand, 
 was obliged to watch over the interests of 
 his client, whether present or absent, to pro- 
 tect his person and property, and especially 
 to defend him in all actions. brought against 
 him for any cause. Neither could accuse or 
 bear testimony against the other, or give 
 contrary votes, etc. The contract was of a 
 sacred nature; the violation of it was a sort 
 of treason, and punishable as such. Accord- 
 ing to Cicero ( De Repub. ii. 9 ) , this relation 
 formed an integral part of the governmental 
 system, Et habuit pletem in clientelas prin- 
 cipum descriptum, which he affirms was emi- 
 nently useful. Blackstone traces the system 
 of vassalage to this ancient relation of pa- 
 tron and client. It was, in fact, of the same 
 nature as the feudal institutions of the mid- 
 dle ages, designed to maintaiti order in a 
 rising state by a combination of the oppos- 
 ing interests of the aristocracy and of the 
 common people, upon the principle of recip- 
 rocal bonds for mutual interests. Duma- 
 zeau, Barreau Romain, § iii. Ultimately, by 
 force of radical changes in the institution, 
 the word patronus came to signify nothing 
 more than an advocate. Id. iv. 
 
 PATROON. In old New York law. The 
 lord of a manor. 
 
 PATRUELIS (Lat.) In civil law. A cousin 
 german by the father's side; the son or 
 daughter of a father's brother. Dig. 38. 
 10. 1. 
 
 PATRUUS (Lat.) In civil law. An uncle 
 by the father's side; a father's brother. 
 Dig. 38. 10. 10. Patruus magnus is a grand- 
 father's brother, — grand-uncle. Patruus ma- 
 jor is a great-grandfather's brother. Patruus 
 maximus is a great-grandfather's father's 
 brother. 
 
 PAUPER. One so poor that he must be 
 supported at the public expense. 
 
 PAUPERIS (Lat.) In civil law. Poverty. 
 In a technical sense, damnum absque injuria, 
 i. e., a damage done without wrong on the 
 part of the doer; e. g., damage done by an 
 
 irrational being, as an animal. L. 1, § 3, D. 
 si quod paup. fee; Vicat; Calv. Lex. 
 
 PAVIAGE. A contribution or tax for pav- 
 ing streets or highways. 
 
 PAWN. A pledge. A pledge includes, in 
 Louisiana, a pawn and an antichresis; but 
 sometimes pawn is used as the general 
 word, including pledge and antichresis. 
 Civ. Code La. art. 3101; Hennen, Dig. 
 "Pledge." 
 
 PAWNBROKER. One whose business it 
 is to lend money, usually in small sums, 
 upon pawn or pledge. 
 
 PAWNEE. He who receives a pawn or 
 pledge. 
 
 PAWNOR. One who, being liable to an 
 engagement, gives to the person to whom 
 he Is liable a thing to be held as a security 
 tor the payment of his debt or the fulfill- 
 ment of his liability. 
 
 PAX (Lat.) In old English law. Peace; 
 the peace. A state of order and quiet, in 
 the preservation of which the whole com- 
 munity was concerned; otherwise called the 
 "king's peace" {pax regis), he being the 
 principal conservator of the peace of the 
 kingdom. 1 Bl. Comm. 268, 349, 350. . Quod . 
 pax nostra teneatur, that our peace be main- 
 tained. Magna Carta, 9 Hen. III. c. 35. 
 The term occurs also in feudal law. Feud. 
 Lib. 2, tits. 27, 53. 
 
 Freedom from molestation by another. 
 Fleta, lib, 2, c. 51, §§ 2, 3. 
 
 The privilege of a member of a legis- 
 lative assembly. See 1 Bl. Comm. 165. 
 
 PAX ECCLESIAE (Law Lat.) In old Eng- 
 lish law. The peace of the church. See 
 "Peace of God and the Church." 
 
 A particular privilege attached to a 
 church; sanctuary (q. v.) Crabb, Hist. Eng. 
 Law, 41; Cowell. 
 
 PAX REGIS (Lat.) The peace of the king. 
 That peace or security for life and goods 
 which the king promises to all persons un- 
 der his protection. Bracton, lib. 3, c. 11; 6 
 Rich. II. St. 1, c. 13. 
 
 In ancient times there were certain limits 
 which were known by this name. The pax 
 regis, or verge of the court, as It was after- 
 wards called, extended from the palace gate 
 to the distance of three miles, three fur- 
 longs, three acres, nine feet, nine palms, and 
 nine barleycorns (Crabb, Com. Law, 41) ; or 
 from the four sides of the king's residence, 
 four miles, three furlongs, nine acres in 
 breadth, nine feet, nine barleycorns, etc. 
 (LL. Bdw. Conf. c. 12, et LL. Hen. I.) 
 
 PA'VABLE. A sum of money is said to be 
 payable when a person is under an obliga- 
 tion to pay it. "Payable" may therefore 
 signify an obligation to pay at a future time, 
 but, when used without qualification, "pay- 
 able" means that the debt Is payable at once, 
 as opposed to "owing." 2 Ch. Div. 103. 
 
PAYEE 
 
 (678) 
 
 PECULIUM CASTRENSE 
 
 PAYEE. The person in whose favor a 
 note or bill of exchange is made payable. 
 
 PAYMENT. The fulfillment of a promise', 
 or the performance of an agreement. 
 
 The discharge in money of a sum due. 
 
 In its most general sense, the rendition by 
 the person under an obligation (68 Cal. 41) 
 to the person to whom the same is due, or one 
 lawfully authorized to represent him (6 How. 
 Pr. [N. Y.] 161), of the exact act or thing 
 required by such obligation (23 La. Ann. 84; 
 3 Duer [N. Y.] 441; 1 Cush. [Mass.] 76), 
 with the assent of both parties that the same 
 is rendered and received in satisfaction of 
 such obligation, and not for another pur- 
 pose (50 Mich. 112; 6 Heisk. [Tenn.-] 131). 
 
 In a more restricted sense, payment is the 
 rendition of a sum of money due. As so 
 used, payment In cash is implied, and the 
 giving of a note or check is not payment. 
 26 Conn. 487; 70 Iowa, 406; 42 N. Y. 538. 
 
 PAYMENT INTO COURT. Deposit of a 
 sum of money with a proper officer of court 
 for the benefit of the adverse party, and by 
 way of a continuing tender thereof to him 
 In answer to his claim. 
 
 PAYS. Country. Trial per pays, trial by 
 jury (the country). See "Pais." 
 
 PEACE (Law Fr. peas, pees; Lat. pax). 
 Quiet, orderly behavior; the quiet, orderly 
 behavior of the citizens or subjects of a 
 community towards one another, and to- 
 wards the government, which is said to be 
 broken by acts of a certain kind. See 
 "Breach of Peace." Defined in the old 
 books, "a quiet and harmless behaviour to- 
 ward the king and his people.", Lambard, 
 Eiren. lib. 1, c. 2; Cowell. 
 
 PEACE OF GOD AND THE CHURCH. The 
 
 freedom from suits at law between the terms. 
 Spelman; Jacob. 
 
 PECCATA CONTRA NAJURAM SUNT 
 gravissima. Offenses against nature are the 
 heaviest. 3 Inst. 20. 
 
 PECCATUM PECCATO ADDIT QUI CUL- 
 pae quam facit patrocinium defensionis ad- 
 jungit. He adds one offense to another who, 
 when he commits a crime, joins to it the pro- 
 tection of a defense. 5 Coke, 49. 
 
 PECK. A measure of capacity, equal to 
 two gallons. See "Measure." 
 
 PECORA (Lat.; pi. of peeiis). In the Ro- 
 man law. Cattle; beasts. The term in- 
 cluded all quadrupeds that fed In flocks. 
 Dig. 32. 65. 4. 
 
 PECULATION. 
 
 In Civil Law. The unlawful appropria- 
 tion, by a depositary of public funds, of the 
 property of the government intrusted to his 
 care, to his own use or that of others. Do- 
 mat, Supp. au. Dr. Pub. lib. 3, tit. 5. 
 
 In American Law. An offense defined 
 
 by statute in New York, essentially the 
 same as in the civil law. 
 
 PECULATUS. In the civil law. The of- 
 fense of stealing or embezzling the public 
 money. Hence the common English word 
 "peculation;" but "embezzlement" is the 
 proper legal term. 4 Bl. Comm. 121, 122. 
 
 PECULIAR. In ecclesiastical law. A par- 
 ish or church in England which has juris- 
 diction of ecclesiastical matters within itself, 
 and independent of the ordinary. 
 
 They may be either: 
 
 (1)' Royal, which include the sovereign's 
 free chapels. 
 
 (2) Of the archbishops, excluding the ju- 
 risdiction of the bishops and archdeacons. 
 
 (3) Of the bishops, excluding the jurisdic- 
 tion of the bishop of the diocese in which 
 they are situated. 
 
 (4) Of the bishops in their own diocese, 
 excluding archdiaconal jurisdiction. 
 
 (5) Of deans, deans and chapters, preben- 
 daries, and the like, excluding the bishop's 
 jurisdiction in consequence of ancient com- 
 positions. 
 
 The court of peculiars has jurisdiction of 
 causes arising in such of these peculiars as 
 are subject to the metropolitan of Canter- 
 bury. In other peculiars the jurisdiction is 
 exercised by commissaries. 1 Phillim. Bcc. 
 Law, 202, note 245; Skin. 589; 3 Bl. Comm. 
 65. 
 
 PECULIUM (Lat.) In civil law. The most 
 ancient kind of peculium was the peculium 
 profectitium of the Roman law, which signi- 
 fied that portion of the property acquired by 
 a son or slave which the father or master 
 allowed him, to be managed as he saw fit. 
 In modern civil law there are other kinds 
 of peculium, viz., peculium castrense, which 
 includes all movables given to a son by rela- 
 tives and friends on his going on a cam- 
 paign, all the presents of comrades, and his 
 military pay and the things bought With it; 
 peculium quasi castrense, which includes all 
 acquired by a son by performing the duties 
 of a public or spiritual office or of an 
 advocate, and also gifts from the reign- 
 ing prince; peculium, adventitium, which in- 
 cludes the property of son's mother and 
 relatives on that side of the house, and all 
 which comes to him on a second marriage 
 of his parents, and, in general, all his ac- 
 quisitions which do not come from his fa- 
 ther's property, and do not come under cast- 
 rense or quasi castrense peculium. 
 
 The peculium profectitium remains the 
 property of the father. The peculium cast- 
 rense and quasi castrense are entirely the 
 property of the son. The peculium adventi- 
 tium belongs to the son, but he cannot alien 
 it nor dispose of it by will; nor can the 
 father, unless under peculiar circumstances, 
 alien it without consent of son. Mackeld. 
 Civ. Law, §§ 557-559; Vicat; Inst. 2. 9. 1; 
 Dig. 15. 1. 5. 3; Both, ad Pand. lib. 50, tit. 
 17, c. 2, art. 3. 
 
 PECULIUM CASTRENSE. That property 
 which a minor son who was in the army 
 might hold by reason thereof, or which he 
 acquired in war. 
 
PECUNIA 
 
 (079) 
 
 PEDIS POSITIO 
 
 PECUNIA (Lat.) In civil law. Property, 
 real or personal, corporeal or incorporeal. 
 Things in general, omnes res. So the law of 
 the Twelve Tables said, uH quisque pater- 
 familias leyassct super pecuiiia tiitclare rei 
 suae, ita jus esto, in whatever manner a fa- 
 ther of a family may have disposed of his 
 property, or of the tutorship of his things, 
 let this disposition be law. 1 Lee. Elm. 288. 
 But Paulus (liber 5, D. de Verb. Signif.) 
 gives it a narrower sense than res, which he 
 says means what is not included within pat- 
 rimony; pecunia what is. Vicat. In a still 
 narrower sense, it means those things only 
 which have measure, weight, and number, 
 and most usually strictly money. Id. The 
 general sense of property occurs, also, in the 
 old English law. Leg. Edw. Confess, c. 10. 
 
 Flocks were the first riches of the an- 
 cients; and it is from pecus that the words 
 pecunia, peculium, and peculatus are derived. 
 In old English law, pecunia often retains the 
 force of pecus. So often in Domesday Book, 
 — pasture ibidem pecuniae villae, i. e., pas- 
 ture for cattle of the village. So vivae pe- 
 cuniae, live stock. Leg. Edw. Confess, c. 10; 
 Emendat. Willielmi Primi ad Leges Edw. 
 Confess.; Cowell. 
 
 PECUNIA CONSTITUTA. In Roman law. 
 Money owing (even upon a moral obliga- 
 tion) upon a day being fixed (constituta) for 
 its payment became recoverable upon the 
 implied promise to pay on that day, in an 
 action called "de pecunia constituta," the im- 
 plied promise not amounting (of course) to 
 a stipulatio. 
 
 PECUNIA DICITUR A PECUS, OMNES 
 enim veterum divitiae in animalibus consis- 
 tebant. Money (pecunia) is so called from 
 cattle (pecus), because all the wealth of our 
 ancestors consisted in cattle. Co. Litt. 207. 
 
 PECUNIA NONNUMERATA (Lat.) Mon- 
 ey not paid or numbered. The exceptio non- 
 numeratae pecuniae (plea of money not 
 paid) is allowed to the principal or surety 
 by the creditor. Calv. Lex. 
 
 PECUNIA NUMERATA (Lat.) Money giv- 
 en in payment of a debt. Properly used of 
 the creditor, who is properly said to num- 
 ber, i. e., count out, the money to the debtor 
 which he must pay, and improperly of the 
 debtor, who is said to number or count out 
 the money to the creditor, i. e., to pay it. 
 Vicat; Calv. Lex. 
 
 PECUNIA SEPULCHRALIS. Money an- 
 ciently paid to the priest at the opening of 
 a grave for the good of the deceased's soul. 
 
 PECUNIA TRAJECTITIA (Lat.) A loan 
 of money which, either itself or in the shape 
 of goods bought with it, is to be carried over 
 the sea, the lender to take the risk from the 
 commencement of voyage till arrival at port 
 of destination, and on that account to have 
 higher interest; which interest is not essen- 
 tial to the contract, but, if reserved, is 
 called foenus nauticum. Mackeld. Civ. Law, 
 § 398b. The term foenus nauticum is some- 
 times applied to the transaction as well as 
 
 the interest, making it coextensive with pe- 
 cunia trajectitia. 
 
 PECUNIARY. 
 
 money. 
 
 That which relates to 
 
 PECUNIARY CAUSES. Causes in ecclesi- 
 astical courts where satisfaction is sought 
 for withholding ecclesiastical dues, or the 
 doing or neglecting some act connected with 
 the church. 3 Bl. Comm. 88. For what 
 causes are ecclesiastical, see 2 Burn, Ecc. 
 Law, 39. 
 
 PECUNIARY LEGACY. A bequest of 
 money. 
 
 PECUNIARY LOSS. A loss of money, or 
 of that by which money or something of 
 money value may be acquired. 32 Barb. (N. 
 Y.) 33. 
 
 PECUS (Lat.; pi. pecudes). In the Roman 
 law. Cattle; a beast. Under a bequest of 
 pecudes were included oxen and other beasts 
 of burden. Dig. 32. 81. 2. 
 
 PEDAGIUM, or PEDAGE (Lat. from pes, 
 foot). Money paid for passing by foot or 
 horse through any forest or country. Pupilla 
 Oculi, p. 9, c. 7 ; Cassan de Coutum. Burgund. 
 p. 118; Rot. Vase. 22 Edw. III. m. 34. 
 
 PEDANEUS (Lat. from pes, foot). In the 
 Roman law. On, or at the foot; occupying 
 a low position. A term applied to the in- 
 dices appointed by the praetor to determine 
 causes; either from their not occupying a 
 tribunal or elevated seat, or because they 
 were occupied with small or less important 
 causes. See "Judex Pedaneus." 
 
 PEDAULUS (Lat. from pes, foot). In civil 
 law. A judge who sat at the foot of the 
 tribunal, /. c, on the lowest seats, ready to 
 try matters of little moment at command of 
 praetor. Calv. Lex.; Vicat. 
 
 PEDE PULVEROSUS. In old English and 
 Scotch law. Dusty foot. A term applied to 
 itinerant merchants, chapmen, or peddlers 
 who attended fairs. "Ane merchand or cre- 
 mar quha hes ne certaine dwelling place 
 quhair the dust may be dicht fra his feet or 
 schone." Skene de Verb. Sign. 
 
 PEDIGREE. A succession of degrees from 
 the origin. It is the state of the family as 
 far as regards the relationship of the dif- 
 ferent members, their births, marriages, and 
 deaths. This term is applied to persons or 
 families who trace their origin or descent. 
 
 PEDIS ABSCISSIO (Lat.) In old criminal 
 law. The cutting off a foot; a punishment 
 anciently Inflicted instead of death. Pleta, 
 lib. 1, c. 38. 
 
 PEDIS POSITIO (Lat. a planting or plac- 
 ing of the foot). A term used to denote an 
 actual corporal possession. Possessio est 
 quasi pedis positio, possession is, as it were, 
 a planting of the foot. 3 Coke, 42 ; 8 Johns, 
 (N. Y.) per Kent, C. J.; 5 Pa. Sfe, 303; 2 NeT 
 & M. 343. See "Pedis Possessio." 
 
PEDIS POSSESSIO 
 
 (680) 
 
 PENAL STATUTES 
 
 PEDIS POSSESSIO (Lat.) A foothold; an 
 actual possession. To constitute adverse 
 possession, there must be pedis possessio, or 
 a substantial inclosure. 2 Bouv. Inst, note 
 2193; 2 Nott. & McC. (S. C.) 343. 
 
 PEDLARS. Persons who travel about the 
 country with merchandise for the purpose of 
 selling it. 
 
 One is a pedlar who carries his goods 
 about the country for sale by public convey- 
 ance. 4 Barn. & A. 510. 
 
 One who solicits orders by sample for one 
 who ships the same from an established 
 place of business is not a pedlar. 34 Kan. 
 434. 
 
 Persons, except those peddling newspapers, 
 Bibles, or religious tracts, who sell, or offer 
 to sell, at retail, goods, wares, or other com- 
 modities, travelling from place to place, in 
 the street, or through different parts of the 
 country. Act Cong. July 1, 1862. 
 
 PEERS (Lat. pores). The vassals of a 
 lord; the freeholders of a neighborhood, be- 
 fore whom livery of seisin was to be made, 
 and before whom, as the jury of the county, 
 trials were had. 2 Bl. Comm. 316. Trial by 
 a man's peers or equals is one of the rights 
 reserved by Magna Gharta. 4 Bl. Comm. 
 349. These vassals were called pares curiae 
 (q. V.) 1 Washb. Real Prop. 23. One's 
 equals in rank and condition. 
 
 The nobility of England, who, though of 
 different ranks, viz., dukes, marquises, earls, 
 viscounts, and barons, yet are equal in their 
 privilege of sitting and voting in the house 
 of lords; hence they are called "peers of the 
 realm." They are created by writ summon- 
 ing them to attend the house of lords by the 
 title intended to be given, or by letters' pat- 
 ent directly conferring the dignity. The for- 
 mer is the more ancient way, but the grant 
 by patent is more certain. See Sullivan, 
 Lect. 19a; 1 Wooddeson, Lect. 37. 
 
 Peers are tried by their peers in cases of 
 treason, felony, and misprision of the same. 
 In cases of treason, felony, and breach of 
 the peace, they have no privilege from ar- 
 rest. 1 Bl. Comm. 401'*, note 11. 
 
 Bishops who sit in parliament are peers; 
 but the word "spiritual" is generally added: 
 e. g., "lords temporal and spiritual." 1 Bl. 
 Comm. 401'*, note 12. 
 
 PEERS OF FEES. Vassals or tenants of 
 the same lord, who were obliged to serve 
 and attend him in his courts, being equal in 
 function. These were termed "peers of fees," 
 because holding fees of the lord, or because 
 their business in court was to sit and judge, 
 under their lords, of disputes arising upon 
 fees; but, if there were too many in one 
 lordship, the lord usually chose twelve, who 
 had the title of peers, by way of distinction; 
 whence, it is said, we derive our common 
 juries and other peers. Cowell. 
 
 PEGGED. See "Gambling Contract." 
 
 PEINE FORTE ET DURE (Law Pr.) In 
 English law. A punishment formerly in- 
 flicted in England on a person who, being 
 arraigned of felony, refused to plead and 
 
 put himself on his trial, and stubbornly 
 stood mute; the purpose of standing mute 
 being, of course, to avoid the confiscation 
 of estate which would follow on convic- 
 tion. He was to be laid down, naked, on 
 his back, on the ground, his feet, head, 
 and loins covered, his arms and legs drawn 
 apart by cords, and as much weight of iron 
 or stone as he could bear placed on his " 
 chest. He was to have the next day three 
 morsels of barley bread, without drink; the 
 next, three draughts, as much each time as 
 he could drink, of the nearest stagnant 
 water to the prison, without bread; and 
 such was to be his diet on alternate days 
 till he died. It was vulgarly called "press- 
 ing to death." 2 Reeve, Hist. Eng. Law, 
 134; 4 Bl. Comm. 324; Cowell; Britt. c. 
 4, fol. ll*". This punishment was intro- 
 duced between 31 Edw. III. and 8 Hen. IV. 
 4 Bl. Comm. 324; Y. B. 8 Hen. IV. 1. Stand- 
 ing mute is now, by statute, in England, 
 equivalent to a confession or a verdict of 
 guilty. 12 Geo. III. c. 20. See "Standing 
 Mute." 
 
 The only instance in which this punish- 
 ment has ever been inflicted in this country 
 is that of Giles Cory, of Salem, who refused 
 to plead when arraigned for witchcraft. 
 Washb. Jud. Hist. 142; 1 Chand. Am. Crim. 
 Tr. 122. 
 
 PELLEX (Lat.) In the Roman law. A 
 concubine. Dig. 50. 16. 144. 
 
 PELLS, CLERK OF THE. An officer in 
 the English exchequer, who entered every 
 seller's bill on the parchment rolls, the roll 
 of receipts, and the roll of disbursements. 
 
 PENAL (from Lat. poenalis, from poena, 
 punishment or penalty). Enacting punish- 
 ment. Webster. Imposing a punishment or 
 penalty. See "Penal Statutes." 
 
 Connected with a penalty, either as the 
 object or consequence of an action. 
 
 PENAL ACTION. An action for recovery 
 of statute penalty; "penalty" in this case 
 being used in its narrowest sense of a pe- 
 cuniary punishment for a noncriminal act. 
 3 Steph. Comm. 535. See Hawk. P. C. "In- 
 formatio." It is distinguished from a pop- 
 ular or qui tarn action, in which the action 
 is brought by the informer, to whom part 
 of the penalty goes. A penal action or in- 
 formation is brought by an oflicer, and the 
 penalty goes to the king. 1 Chit. Gen. Prac. 
 25, note; 2 Archb. Prac. 188. 
 
 PENAL BILL. The old name for a bond 
 with condition, by which a person is bound 
 to pay a certain sum of money or do a cer- 
 tain act, or, in default thereof, pay a certain 
 sum of money by way of penalty. Jacob, 
 "Bill." 
 
 PENAL LAWS. Laws imposing a penal- 
 ty; the term being used, like "penalty," in 
 several senses. 
 
 PENAL STATUTES. Those which inflict 
 a penalty for the violation of some of their 
 provisions. 
 
PENAL SUM 
 
 (681) 
 
 PEPPERCORN 
 
 PENAL SUM. A sum payable as a pen- 
 alty. Usually applied to the sum fixed by a 
 bond to be paid on breach of its condition. 
 
 PENALTY. The punishment inflicted by 
 law for an illegal act. The term is used 
 loosely to embrace all the consequences vis- 
 ited by law on those who violate police regu- 
 lations. 26 Mich. 482. 
 
 In a narrower sense it is confined to pe- 
 cuniary penalties. "The terms fine, forfeit- 
 ure and penalty are often used loosely, and 
 even confusedly. But when a discrimina- 
 tion is made, the word 'penalty' is found to 
 be generic in its character, including both 
 fine and forfeiture." 4 Iowa, 300. 
 
 In its narrowest sense, it includes only 
 pecuniary punishment imposed by statute 
 for such unlawful acts as do not constitute 
 crimes or which are for this purpose re- 
 garded in other than their criminal aspect. 
 
 In Contracts. A clause in an agree- 
 ment, by which the obligor agrees to pay a 
 certain sum of money if he shall fail to ful- 
 fill the contract contained in another clause 
 of the same agreement. 
 
 A penal obligation differs from an alterna- 
 tive obligation, for this is but one in its 
 essence; while a penalty always includes 
 two distinct engagements, and when the first 
 is fulfilled the second is void. When a 
 breach has taken place, the obligor has his 
 option to require the fulfillment of the first 
 obligation, or the payment of the penalty, 
 in those cases which cannot be relieved in 
 equity, when the penalty is considered as 
 liquidated damages. 
 
 PENANCE. In ecclesiastical law. An ec- 
 clesiastical punishment infiicted by an ec- 
 clesiastical court for some spiritual offense. 
 Ayllffe, Par. 420. 
 
 PENDENCY. The state of being pending 
 or undecided. 
 
 PENDENS (Lat. from venders, to hang). 
 Hanging; pending. See "Lis Pendens." 
 
 PENDENTE LITE (Lat.) Pending the 
 continuance of an action while litigation 
 continues. See "Lis Pendens." 
 
 PENDENTE LITE NIHIL INNOVETUR. 
 
 During a litigation, nothing should be 
 changed. Co. Litt. 344. See 20 How. (U. 
 S.) 106; Cross, Liens, 140; 1 Story, Eq. 
 Jur. § 406; 2 Johns. Ch. (N. Y.) 441; 6 
 Barb. (N. Y.) 33. 
 
 PENDENTES (Lat.) In civil law. The 
 fruits of the earth not yet separated from 
 the ground; the fruits hanging by the 
 roots. Ersk. Inst. bk. 2, lib. 2, § 4. 
 
 PENDING. As applied to judicial proceed- 
 ings, remaining undecided (4 N. H. 386), 
 and an action has been held to be pending 
 till the judgment is satisfied (41 N. Y. 159). 
 
 PENETRATION. In criminal law. In 
 rape and some other sexual crimes, actual 
 carnal knowledge is requisite, but the slight- 
 est penetration is sufficient (102 N. Y. 234), 
 it being enough if any part of the virile 
 
 member be within the labia of the puden- 
 dum (1 Car. & K. 393). Rupture of the 
 hymeneal membrane is not requisite, though, 
 in the absence of such rupture, proof of 
 penetration should be clear. 8 Car. & P. 641. 
 
 PENITENTIARY. A prison in which per- 
 sons convicted of serious offenses (felonies), 
 or sentenced for long terms of imprison- 
 ment, are confined. 
 
 PENNYWEIGHT. A troy weight which 
 weighs twenty-four grains, or one-twentieth 
 part of an ounce. 
 
 PENSA (Law Lat. from Lat. pendere, to 
 weigh). 
 
 , In Old English Law. A weight. Ad 
 
 pensam, by weight. The ancient way of pay- 
 ing into the exchequer as much money for a 
 pound sterling as weighed twelve ounces 
 troy. Lowndes' Essay upon Coin, 4; Cowell. 
 This was distinguished from payment de 
 numero, by count. 
 
 In Old Records. A wey (weigh) of 
 
 salt or cheese, containing two hundred and 
 fifty-six pounds. Cowell. 
 
 PENSIO (Lat. from pendere). 
 
 In the Civil Law. A payment, proper- 
 ly, for the use of a thing. Calv. Lex. 
 
 A rent; a payment for the use and occu- 
 pation of another's house. Calv. Lex. 
 
 PENSION. A stated and certain allow- 
 ance granted by the government to an in- 
 dividual, or those who represent him, for 
 valuable services performed by him for the 
 country. It is sometimes loosely used in 
 the sense of "annuity." 
 
 In Spanish Law. Rent; a rent. White, 
 
 New Recop. bk. 2, c. 2, § 3. 
 
 PENSIONER. One who is supported by 
 an allowance at the will of another. It is 
 more usually applied to him who receives 
 an annuity or pension from the government. 
 
 PEONIA. In Spanfsh law. A portion of 
 land which was formerly given to a simple 
 soldier on the conquest of a country. It is 
 now a quantity of land of different size in 
 different provinces. In the Spanish posses- 
 sions in America, it measured fifty feet front 
 and one hundred feet deep. 2 White, Coll. 
 49; 12 Pet. (U. S.) 444, notes. 
 
 PEOPLE. A state; as, the people of the 
 state of New York. A nation in its collec- 
 tive and political capacity. 4 Term R. 783. 
 See 6 Pet. (U. S.) 467. 
 
 The word "people" occurs in a policy of 
 marine insurance. The Insurer insures 
 against "detainments of all kings, princes, 
 and people." He is not by this understood 
 to insure against any promiscuous or law- 
 less rabble which may be guilty of attack- 
 ing or detaining a ship. 2 Marsh. Ins. 508. 
 See "Body Politic;" "Nation." 
 
 PEPPERCORN. A dried pepper berry. In 
 England, the payment of a peppercorn is 
 sometimes stipulated where a nominal con- 
 sideration is intended. 
 
PER 
 
 (682) 
 
 PER METAS ET BUNDAS 
 
 PER. In Latin phrases. A preposition 
 meaning by or througli. 
 
 PER ANNUM (Lat.) By the year; for the 
 space of a yean Pleta, lib. 2, c. 71, §§ 3-12. 
 A common expression still in use. 
 
 PER AES ET LIBRAM (Lat. aes, brass, 
 libram, scale). In civil law. A sale was 
 said to be made per aes et libram when one 
 called Ubripens held a scale (libra), wTiich 
 the one buying struck with a brazen coin 
 (aes), and said, "I say, by the right of a 
 Roman, this thing is mine," and gave the 
 coin to the vendor, in presence of at least 
 three witnesses. This kind of sale was used 
 in the emancipation of a son or slave, and in 
 making a will. Calv. Lex. "Mancipatio;" Vi- 
 cat, "Mancipatio." 
 
 PER ALLUVIONEM (Lat), In civil law. 
 By alluvion, or the gradual and impercep- 
 tible increase arising from deposit by water. 
 Vocab. Jur. Utr. "Alluvlo;" Angell & A. Wa- 
 tercourses, 53-57. 
 
 PER ALLUVIONEM ID VIDETUR ADJI- 
 ci, quod ita paulatim adjucitur, ut intelli- 
 gere non possumus quantum quoquo mo- 
 mento temporis adjiciatur. That Is said to 
 be added by alluvion which is so added little 
 by little that we cannot tell how much is 
 added at any one moment of time. Dig. 41. 
 1. 7. 1; Hale de Jur. Mar. par. 1, c. 4; Pleta, 
 lib. 3, c. 2, § 6. 
 
 PER AND GUI. When a writ of entry is 
 brought against a second alienee or descend- 
 ant from the disseisor, it is said to be in the 
 per and cui, because the form of the writ is 
 that the tenant had not entry but by and 
 under a prior alienee, to whom the intruder 
 himself demised it. 2 Bl. Comm. 181. 
 
 PER AND POST. To come in in the per is 
 to claim by or through the person last en- 
 titled to an estate; as the heirs or assigns 
 of the grantee. To come in in the post is 
 to claim by a paramount and prior title; as 
 the lord by escheat. 
 
 PERANNULUM ET BACULUM (Lat.) In 
 ecclesiastical law. The symbolical investi- 
 ture of an ecclesiastical dignity was per an- 
 nulum et baculum, i. e., by staff and crosier. 
 1 Bl. Comm. 378, 379; 1 Burn, Bcc. Law, 209. 
 
 ■ PER AUTRE VIE (Law Pr.) Por or dur- 
 ing another's life. 
 
 PER AVERSIONEM (Lat.) In civil law. 
 By turning away. Applied to a sale not by 
 measure or weight, but for a single price for 
 the whole in gross; e. g., a sale of all the 
 wine' of a vineyard for a certain price. 
 Vocab. Jur. Utr. "Aversio." Some derive the 
 meaning of the phrase from a turning away 
 of the risk of a deficiency in the quantity 
 from the seller to the buyer;, others, from 
 turning away the head, i. e., failure to make 
 a particular examination; others think aver- 
 sio is for adversio. Calv. Lex. ; 2 Kent, Comm. 
 640; 4 Kent, Comm. 517. 
 
 PER BOUCHE (Pr. by the mouth). Oral. 
 
 PER CAPITA (Lat. by the head or polls). 
 When descendants take as individuals, and 
 not by right of representation (per stirpes), 
 they are said to take per capita. Por exam- 
 ple, if a legacy be given to the issue of A. B., 
 and A. B., at the time of his death, shall have 
 two children and two grandchildren, his es- 
 tate shall be divided into four parts, and the 
 children and grandchildren shall each have 
 one of them. 3 Ves. 257; 13 Ves. 3i4; 2 Bl. 
 Comm. 218; fe Cush. (Mass.) 158, 162; 2 
 Jarm. Wills (Perkins' Notes) 47; 3 Beav. 
 Rolls, 451; 4 Beav. Rolls, 239; 2 Steph. 
 Comm. 253; 3 Steph. Comm. 197; 2 Woodde- 
 son, Lect. 114. See "Capitation." 
 
 PER CONSEQUENS. By consequence; 
 consequently. Y. B. M. 9 Bdw. III. 8. 
 
 PER CONSIDERATIONEM CURIAE. In 
 
 old practice. By the consideration (judg- 
 ment) of the court. Y. B. M. 1 Edw. II. 2. 
 
 PER CURIAM (Lat. by the court). A 
 phrase which occurs in all the reports. It 
 is sometimes translated. See 3 Barb. (N. 
 Y.) 353. 
 
 PER EUNDEM. By the same. This phrase 
 is commonly used to express "by, or from 
 the mouth of, the same judge." So "per 
 eundem in eadem" means "by the same 
 judge in the same case." 
 
 PER EXTENSUM. In old practice. At 
 length. 
 
 PER FORM AM DON I (Lat. by the form of 
 the gift). According to the line of descent 
 prescribed in the conveyance of the ancestor 
 or donor of estate tail. 2 Bl. Comm. 113*; 
 3 Har. & J. (Md.) 323; 1 Washb. Real Prop. 
 74, 81. 
 
 PER FRAUDEM (Lat.) A replication to 
 a plea where something has been pleaded 
 which would be a discharge if it had been 
 honestly pleaded that such a thing has been 
 obtained by fraud; for example, where, on 
 debt on a statute, the defendant pleads a 
 prior action depending, if such action has 
 been commenced by fraud, the plaintiff may 
 reply per fraudem. 2 Chit. PI. *675. 
 
 PER INCURIAM. Through inadvertence. 
 35 Eng. Law & Eq. 302. 
 
 PER INFORTUNIUM (Lat. by misadven- 
 ture). In criminal law. Homicide per in- 
 fortunium, or by misadventure, is said to 
 take place when a man in doing a lawful act, 
 without any intent to hurt, unfortunately 
 kills another. Hawk. P. C. bk. 1, c. 11; 
 Post. Crim. Law, 258, 259; 3 Inst. 56. 
 
 PER LEGEM ANGLIAE. By the law of 
 
 England ; by the curtesy. Pleta, lib. 2, c. 54, 
 § 18. 
 
 PER LEGEM TERRAE. By the law of the 
 land. 
 
 PER METAS ET BUNDAS (Law Lat.) In 
 old English law. By metes and bounds. 
 
PER MINAS 
 
 (683) 
 
 PERAMBULATION 
 
 PER MINAS (Lat. by threats). When a 
 man is compelled to enter Into a contract by 
 threats or menaces, either for fear of loss of 
 life or mayhem, he may avoid it afterwards. 
 
 I Bl. Comm. 131; Bac. Abr. "Duress," "Mur- 
 der" (A). See "Duress." 
 
 PER MISADVENTURE (Lat. and Bng.) In 
 old English law. By mischance. 4 Bl. 
 Comm. 182. The same with per infortunium 
 (q. v.) 
 
 PER MY ET PER TOUT (Law Fr. by the 
 moiety, or half, and by the whole). The 
 mode in which joint tenants hold the joint 
 estate, the effect of which, technically con- 
 sidered, is that for purposes of tenure and 
 survivorship each is the holder of the whole, 
 hut for purposes of alienation each has only 
 his own share, which is presumed in law to 
 be equal. 1 Washb. Real Prop. 406; 2 Bl. 
 Comm. 182. 
 
 PER PROCURATION. By proxy^ by let- 
 ter of attorney. Used in connection with the 
 signature of an agent or attorney in fact. 
 It is notice that the agent has but a limited 
 authority to sign. Byles, Bills, 33. Com- 
 monly abbreviated "per proc." 
 
 The term is little used in the United 
 States, though it has been adopted by the 
 negotiable instrument laws. Neg. Inst. Law, 
 § 40. 
 
 PER QUAE SERVITIA. A real action by 
 which the grantee of a seigniory could com- 
 pel the tenants of the grantor to attorn to 
 himself. Shep. Touch. 254. It was abol- 
 ished by St. 3 & 4 Wm. IV. c. 27, § 35. 
 
 PER QUOD. By which. Used in common- 
 law pleading to introduce a conclusion. 
 Sometimes used as the name of the clause 
 averring special damages. 
 
 PER QUOD CONSORTIUM AMISIT (Lat. 
 by which he lost her company). If a man's 
 wife is so injured that thereby he 
 loses her company and assistance for any 
 time, he has a separate remedy by an 
 action of trespass (in the nature of an ac- 
 tion on the case) per quod consortium amisit, 
 in which he shall recover satisfaction in 
 damages. 3 Bl. Comm. 140; Cro. Jac. 501, 
 538; 1 Chit. Gen. Prac. 59. 
 
 PER QUOD SERVITIUM AMISIT (Lat. by 
 which he lost her or his service). Where a 
 servant has been so beaten or Injured that 
 his or her services are lost to the master, 
 the master has an action of trespass vi et 
 armis, per quod servitium amisit, in which 
 he must allege and prove the special dam- 
 age he has sustained. 3 Bl. Comm. 142. 
 This action is commonly brought by the 
 father for the seduction of his daughter, in 
 which case very slight evidence of the rela- 
 tion of master and servant is necessary; but 
 still some loss of service, or some expense, 
 must be shown. 5 East, 45; 6 East, 391; 11 
 Bast, 23; T. Raym. 459; 3 Wils. 18; 2 Term 
 R. 4; 5 Bos. & P. 466; Peake, 253; 1 Starkie, 
 287; 2 Starkie, 493; 3 Esp. 119; 5 Price, 641; 
 
 II Ga. 603; 15 Barb. (N. Y.) 279; 18 Barb. 
 
 (N. Y.) 212; 8 N. Y. 191; 11 N. Y. 343; 14 
 N. Y. 413; 20 Pa. St. 354; 5 Md. 211; 1 Wis. 
 209; 3 Sneed (Tenn.) 29. 
 
 PER RATIONES PERVENITUR AD LE- 
 
 gitimam rationem. By reasoning we come 
 to legal reason. Litt. § 386. 
 
 PER RERUM NATURAM, FACTUM NE- 
 gantis nulla probatio est. It is in the nature 
 of things that he who denies a fact is not 
 bound to give proof. 
 
 PER SALTUM (Lat.) By a leap or bound; 
 by a sudden movement; passing over cer- 
 tain proceedings. "The parties have pro- 
 ceeded per saltum." Lord Ellenborough, 8 
 East, 511. 
 
 PER SE. By itself; of itself. Fraud per 
 se. 3 Pick. (Mass.) 257. , 
 
 PER STIRPES (Lat. stirps, trunk or root 
 of a tree or race) . By or according to stocks 
 or roots; by right of representation. Gen. 
 St. Mass. 1860, c. 9, § 12; 6 Cush. (Mass.) 
 158, 162; 2 Bl. Comm. 217, 218; 2 Steph. 
 Comm. 253; 2 Wooddeson, Lect. 114, 115; 2 
 Kent, Comm. 425. 
 
 PER TOTAM CURIAM. By the whole 
 court. 
 
 PER TOUT ET NON PER MY (Law Fr.) 
 By the whole, and not by the moiety. 2 Bl. 
 Comm. 182. See "Per My et per Tout." 
 
 PER UNIVERSITATEM (Lat. by the 
 whole). Used of the acquisition of any prop- 
 erty as a whole, in opposition to an acquisi- 
 tion by parts; e. g., the acquisition of an in- 
 heritance, or of the separate property of the 
 son {peculium), etc. Calv. Lex. "Universi- 
 tas." 
 
 PER VADIUM ET SALVOS PLEGIOS. In 
 
 old practice. By gage and safe pledge. 
 Words in the old writ of attachment or 
 pone commanding the sheriff to summon the 
 defendant by gage (taking of his goods) 
 and safe pledges ( requiring sureties) for ap- 
 pearance. 3 Bl. Comm. 280. 
 
 PER VARIOS ACTUS, LEGEM EXPERI- 
 entia faclt. By various acts experience 
 frames the law. 4 Inst. 50. 
 
 PER VERBA DE FUTURO. By words of 
 the future (tense). 1 Bl. Comm. 439; 2 
 Kent, Comm. 87. 
 
 PER VERBA DE PRAESENTI. By words 
 of the present (tense). 1 Bl. Comm. 439. 
 
 PER VISUM ECCLESIAE. In old English 
 law. By view of the church; under the su- 
 pervision of the church. The disposition of 
 intestates' goods per visum ecclesiae was one 
 of the articles confirmed to the prelates by 
 King John's Magna Charta. 3 Bl. Comm. 96. 
 
 PER VIVAM VOCEM (Law Lat.) In old 
 English law. By the living voice; the same 
 with viva voce. Bracton, fol. 95. 
 
 PERAMBULATION. The act of walking 
 
PERAMBULATIONE, ETC. 
 
 (684) 
 
 PEREMPTORY MANDAMUS 
 
 over the boundaries of a district or piece of 
 land, either for the purpose of determining 
 them, or of preserving evidence of them. 
 Thus, in many parishes in England, it is the 
 custom for the parishioners to perambulate 
 the boundaries of the parish in rogation 
 week in every year. Such a custom entitles 
 them to enter any man's land and abate nui- 
 sances in their way. Phillim. Ecc. Law, 
 1867; Hunt, Boundaries, 103. See, also, 
 Britt. 124b. 
 
 PERAMBULATIONE FACIENDA, WRIT 
 
 de. In English law. The name of a writ 
 which is sued by consent of both parties 
 when they are in doubt as to the bounds 
 of their respective estates. It is directed to 
 the sheriff to make perambulation, and to 
 set the bounds and limits between them in 
 certainty. Pitzh. Nat. Brev. 309. 
 
 "The writ de perambulatione facienda is 
 not known to have been adopted in practice 
 in the United States," says Professor Green- 
 leaf (Greenl. Bv. § 146, note), "but in sev- 
 eral of the states, remedies somewhat sim- 
 ilar in principle have been provided by stat- 
 utes." 
 
 PERCENNARIUS (Law Lat.) In old Eng- 
 lish law. A parcener; one of several com- 
 moners. Pleta, lib. 4, c. 24, § 11. 
 
 PERCEPTION (from per and copere). The 
 taking possession of. For example, a lessee 
 or tenant before perception of the crops, i. e., 
 before harvesting them, has a right to offset 
 any loss which may happen to them against 
 the rent; but after the perception they are 
 entirely at his risk. Mackeld. Civ. Law, § 
 378. Used of money, it means the counting 
 out and payment of a debt. Also used for 
 food due to soldiers. Vicat. 
 
 PERCEPTURA (Law Lat.) In old records. 
 A wear; a place in a river made up with 
 banks, dams, etc., for the better convenience 
 of preserving and taking fish. Par. Ant. 120; 
 Cowell. 
 
 PERCH. The length of sixteen feet and a 
 half; a pole or rod of that length. Forty 
 perches in length and four in breadth make 
 an acre of land. 
 
 PERCOLATING WATERS. Plowing, seep- 
 ing, or moving subterraneous waters. 
 
 PERDONATIO UTLAGARIAE (Lat.) In 
 English law. A pardon for a man who, for 
 contempt in not yielding obedience to the 
 process of the king's courts, is outlawed, and 
 afterwards, of his own accord, surrenders. 
 
 PERDUELLIO (Lat.) In civil law. At 
 first, an honorable enmity to the republic; 
 afterwards, a traitorous enmity of a citizen; 
 consisting in being of a hostile disposition 
 towards the republic, e. g., treason aiming 
 at the supreme power, violating the privi- 
 leges of a Roman citizen by beating him, etc., 
 attempting anything against the person of 
 the emperor, and, in general, any open hos- 
 tility to the republic. Sometimes used for 
 the enemy or traitor himself. PerduelUo 
 
 was distinguished from cfimen imminutae 
 majestatis, as being an attempt against the 
 whole republic, punishable in comitia cen- 
 turiata, by crucifixion ?ind by infamy after 
 death. Calv. Lex.; Vieat. 
 
 PERDURABLE (old Pr. perdurable, eter- 
 nal, from Lat. per, intensive, and durabilis, 
 lasting). As applied to an estate, perdura- 
 ble signifies lasting long or forever. Thus, 
 a disseisor or tenant in fee upon condition 
 has as high and great an estate as the 
 rightful owner or tenant in fee simple abso- 
 lute, but not so perdurable. The term is 
 chiefly used with reference to the extinguish- 
 ment of rights by unity of seisin, which does 
 not take place unless both the right and the 
 land out of which it issues are held for equal- 
 ly high and perdurable estates. Co. Litt^ 
 313a, 313b; Gale, Easem. 582. 
 
 PEREGRIN I (Lat.) In civil law. Under 
 the denomination of peregrini were compre- 
 prehended all who did not enjoy any capac- 
 ity of the law, namely, slaves, alien ene- 
 mies, and such foreigners as belonged to 
 nations with which the Romans had not es- 
 tablished relations. Savigny, Dr. Rom. § 66. 
 
 PEREMPTORjUS (Lat. from periniere, to 
 destroy). In civil law. That which takes 
 away or destroys forever; hence, exceptia 
 peremptoria, a plea which is a perpetual bar. 
 See "Peremptory." Bracton, lib. 4, c. 20; 
 Pleta, lib. 6, c. 36, § 3; Calv. Lex. 
 
 PEREMPTORY. Absolute; positive. A 
 final determination to act, without hope of 
 renewing or altering. Joined to a substan- 
 tive, this word is frequently used in law; 
 as, peremptory action (Pitzh. Nat. Brev. 35, 
 38, 104, 108) ; peremptory nonsuit (Id. 5, 
 11) ; peremptory exception (Bracton, lib. 4, 
 c. 20); peremptory undertaking (3 Chit. 
 Prac. 112, 793); peremptory challenge of 
 jurors (Inst. 4. 13. 9; Code, 7. 50. 2; Id. 8. 36. 
 8; Dig. 5. 1. 70. 73). 
 
 PEREMPTORY CHALLENGE. A chal- 
 lenge without cause given, allowed to pris- 
 oner's counsel in criminal cases, up to a cer- 
 tain number of jurors. 11 Chit. Stat. 59, 
 689; 2 Harg. St. Tr. 808; 4 Harg. St. Tr. 
 1; Post. Grim. Law, 42; 4 Bl. Cdmm. 353*. 
 See "Challenge." 
 
 PEREMPTORY DEFENSE. A defense 
 which insists that the plaintiff never had the 
 right to institute the suit, or that, if he 
 had, the original right is extinguished or 
 determined. 4 Bouv. Inst, note 4206. 
 
 PEREMPTORY EXCEPTION. Any defense 
 which denies entirely the ground of action. 
 1 "White, New Recop. 283. So of a demur- 
 rer. 1 Tex. 364. 
 
 PEREMPTORY INSTRUCTION. A bind- 
 ing instruction by the court to the jury. 
 Usually the direction of a verdict. 
 
 PEREMPTORY MANDAMUS. A manda- 
 mus requiring a thing to be done abso- 
 lutely. It is usually granted after failure to 
 show satisfactory cause on an alternative 
 
PEREMPTORY NONSUIT 
 
 (685) 
 
 PERIOD 
 
 mandamus. No other return will be per- 
 mitted but absolute obedience. 3 Bl. Comm. 
 110*; Tapping, Mand. 400 et seq. See "Man- 
 damus." 
 
 PEREMPTORY NONSUIT. An involunta- 
 ry nonsuit. See "Nonsuit." 
 
 PEREMPTORY PAPER. A list of the 
 causes which were enlarged at the request of 
 the parties, or which stood over from press 
 ■of business in court to a day which was 
 specified in the paper, and which day was 
 peremptory. 
 
 PEREMPTORY PLEA. A plea which goes 
 to destroy the right of action itself; a plea 
 in bar or to the action. 3 Steph. Comm. 
 576; 3 Wooddeson, Lect. 57; 2 Saund. PI. & 
 Ev. 645; 3 Bouv. Inst, note 2891. 
 
 PEREMPTORY RULE. An absolute rule, 
 as distinguished from a rule nisi. 
 
 PEREMPTORY WRIT. An original writ, 
 •called from the words of the writ a "si te 
 fecerit securum," and which directed the 
 sheriff to cause the defendant to appear in 
 ■court without any option given him, provided 
 the plaintiff gave the sheriff security ef- 
 -fectually to prosecute his claim. The writ 
 was rarely used, and only where noth- 
 ing was specifically demanded, but only a 
 ■satisfaction in general; as in the case of 
 writs of trespass on the case, wherein no 
 debt or other specific thing was sued for, 
 l)ut only damages to be assessed by a jury. 
 Brown. 
 
 PERESEWAR (Old Scotch). In old Scotch 
 law. Pursuer; plaintiff or prosecutor. See 
 ■"Pursuer." 
 
 PERFECT. Complete. 
 
 This term is applied to rights and obliga- 
 tions in order to distinguish those which 
 may be enforced by law, which are called 
 ■"perfect," from those which cannot be so 
 enforced, which are said to be "imperfect." 
 :37 Ga. 128. 
 
 PERFECT OBLIGATION. One which is 
 ■enforceable by law. 
 
 PERFECT TITLE. A title which is good 
 Tjoth at law and in eequity. 21 Conn. 449. 
 
 PERFECT TRUST. An executed trust (g. 
 
 ■V.) 
 
 PERFECTING BAIL. Justification of bail. 
 See "Justifying Bail." 
 
 ''PERFECTUM EST GUI NIHIL DEEST 
 -secundum suae perfectionls vel naturae mo- 
 ■dum. That is perfect which wants nothing 
 according to the measure of its perfection 
 "Or nature. Hob. 151. 
 
 PERFIDY. The act of one who has en- 
 gaged his faith to do a thing, and does not 
 "do it, but does the contrary. Wolff. § 390. 
 
 PERFORMANCE. Such a fulfillment of an 
 "Obligation as puts an end thereto by leaving 
 •■nothing more to be done. 
 
 PERICULOSUM EST RES NOVAS ET IN- 
 
 usitatas Inducere. It is dangerous to intro- 
 duce new and unaccustomed things. Co. 
 Litt. 379. 
 
 PERICULOSUM EXISTIMO QUOD BOr 
 norum vivorum non comprobatur exemplo. i 
 think that dangerous which is not warranted 
 by the example of good men. 9 Coke, 97. 
 
 PERICULOSUS (Lat.) Dangerous. 
 
 PERICULUM (Lat.) In the civil law. Per- 
 il; danger; hazard; risk. 
 
 PERICULUM REI VENDITIAE, NON- 
 dum tradltae, est emptoris. The purchaser 
 runs the risk of the loss of a thing sold, 
 though not delivered. 1 Bouv. Inst, note 
 939; 2 Kent, Comm. 498, 499; 4 Barn. & C. 
 481, 941. 
 
 PERIL. Danger; the accident by which a 
 thing is lost. Lee. Elm. § 911. 
 
 In Insurance. The risk, contingency, 
 
 or cause of loss insured against in a policy 
 of Insurance. 
 
 PERILS OF THE RIVER. A term used in 
 respect to river navigation in the United 
 States, and having the same significance as 
 "perils of the sea." 8 Ala. 176. 
 
 PERILS OF THE SEA. One of the perils 
 insured against in marine insurance, and 
 from which bills of lading usually exempt 
 the carrier. It signifies "all marine casual- 
 ties resulting from the violent action of the 
 elements, as distinguished from their natural 
 silent influence on the fabric of the vessel; 
 casualties which may, and not consequences 
 which must, occur. L. R. 9 Q. B. 596. 
 
 Loss by foundering (3 Wheat. [U. S.] 168), 
 or stranding (57 Me. 170), injury to the ves- 
 sel by ice (15 Wall. [U. S.] 202), or to cargo 
 from water shipped In a storm (16 Me. 207), 
 or "loss of property overboard (16 Mo. 98), 
 are perils of the sea. But damages by rats 
 (1 Wils. 281) or worms (2 Mass. 429), or 
 the breakage of packages, are not. 
 
 PERINDE VALERE (Law Lat. to be equal- 
 ly valid). In English ecclesiastical law. 
 The name of a writ of dispensation granted 
 to a clerk who, being defective in his ca- 
 pacity to a benefice or other ecclesiastical 
 function, was, cle facto, admitted to it. So 
 called from the emphatic words of the Latin 
 form, the faculty being declared to be equal- 
 ly effectual to the party dispensed with as 
 if he had been actually capable of the thing 
 for which he was dispensed with, at the 
 time of his admission. St. 25 Hen. VIII. c. 
 21; Cowell. 
 
 PERIOD. A space of time; any portion 
 of complete time. 
 
 "The word 'period' has its etymological 
 meaning, but it also has a distinctive signifi- 
 cation, according to the subject with which 
 it may be used in connection. It may mean 
 any portion of complete time, from a thou- 
 sand years or less to the period of a day; 
 and when used to designate an act to be 
 done or to be begun, though its completion 
 
PERIPHRASIS 
 
 (686) 
 
 PERNOUR 
 
 may take an uncertain time, as for instance 
 the act of exportation, it must mean the day 
 on which the exportation commences, or it 
 would be an unmeaning and useless word in 
 its connection in the statute." Wayne, J., 20 
 How. (U. S.) 579. 
 
 PERIPHRASIS. Circumlocution; the use 
 of other words to express the sense of one. 
 
 Some words are so technical in their 
 meaning that, in charging offenses in in- 
 dictments, they must be used, or the indict- 
 ment will not be sustained. For example, 
 an indictment for treason must contain the 
 word "traitorously;" an indictment for bur- 
 glE^ry, 'burglariously;" and "feloniously" 
 must be introduced into every indictment for 
 felony. 1 Chit. Crim. Law, 242; 3 Inst. 15; 
 Carth. 319; 2 Hale, P. C. 172, 184; 4 Bl. 
 Comm. 307; Hawk. P. C. bk. 2, c. 25, § 55; 
 1 Bast, P. C. 115; Bao. Abr. "Indictment" 
 (G 1); Comyn, Dig. "Indictment" (G 6); 
 Cro. Car. c. 87. 
 
 PERISHABLE GOODS. Goods which are 
 lessened in value and become worse by being 
 kept. • 
 
 PERJURI SUNT QUI SERVITAS VERBIS 
 juramenti deciplunt auras eorem qui accipl- 
 unt. They are perjured who, preserving the 
 words of an oath, deceive the ears of those 
 who receive it. 3 Inst. 166. 
 
 PERJURY. Perjury at common law is the 
 willful and corrupt taking of a false oath 
 in a judicial proceeding in regard to a 
 matter material .to the issues. 1 Hawk. P. 
 C. c. 69, § 1; 4 Bl. Comm. 153. It is ex- 
 tended by statute in most jurisdictions to 
 false swearing in certain proceedings not 
 judicial. To constitute the-offense, (1) the 
 testimony must be false, or believed to be 
 false, or the witness must not know whether 
 it be true or false (42 Vt. 152; 17 N. H. 373) ; 
 (2) the taking of the false oath must be both 
 willful and corrupt; (3) the matter sworn 
 to must be- material to the issue or question 
 in controversy (12 Mass. 273; 54 Vt. 146); 
 (4) some form of oath or its equivalent must 
 have been duly administered by an author- 
 ized officer (86 N. Y. 154; 107 U. S. 671; 76 
 N. Y. 220); (5) the oath itself, as well as 
 the tSLCts sworn to, must have been material 
 (45 Mich. 543; 17 Ohio, 365); (6) to con- 
 stitute perjury in a judicial proceeding, the 
 court or tribunal must have Jurisdiction 
 (49 Me. 412; 8 Pick. [Mass.] 453; 96 Ky. 
 407). 
 
 PERMANENT TRESPASS. A trespass 
 consisting of trespasses of one and the same 
 kind, committed on several days, which are 
 in their nature capable of renewal or con- 
 tinuation, and are actually renewed or con- 
 tinued from day to day, so that t&e par- 
 ticular injury done on each particular day 
 cannot be distinguished from what was done 
 on another day. In declaring for such tre& 
 passes, they may be laid with a continu- 
 undo. 3 Bl. Comm. 212; Bac. Abr. "Tres- 
 pass" (B 2. I 2): 1 Saund. 24, note 1. See 
 "Continuando;" "Trespass." 
 
 PERMISSION. Leave or license to do any 
 act. It ordinarily implies consent actually 
 given (105 111. 558), but has been held to 
 mean "allow," by not prohibiting (9 Allen 
 [Mass.] 266). 
 
 PERMISSIVE. Allowed; that which may 
 be done; as, permissive waste, -which is the 
 permitting real estate to go to waste. 2 
 Bouv. Inst, note 2400. See "Waste." 
 
 PERMISSIVE USE. A passive use which 
 was resorted to before the statute of uses, 
 in order to avqid a harsh law; as that of 
 mortmain or a feudal forfeiture. It was a 
 mere invention in order to evade the law by 
 secrecy; as a conveyance to A. to the use 
 of B. A. simply held the possession, and B. 
 enjoyed the profits of the estate. 
 
 PERMISSIVE WASTE. Waste suffered by 
 omission of care, not by actual depreda- 
 tion. 
 
 PERMIT. A license or warrant to do some- 
 thing not forbidden by law; as, to land 
 goods imported into the United States, after 
 the duties have been paid or secured to be 
 paid. Act Cong. March 2, 1799, § 49, cl. 2. 
 See form of such a permit, Gordon, Dig. 
 Append. II. 46. 
 
 PERMUTATIO (Lat. from permutare, to 
 exchange). In the civil law. Exchange; 
 barter. Dig. 19. 4; Code, 4. 64. 
 
 PERMUTATION. In civil law. Exchange; 
 barter. 
 
 This contract is formed by the consent of 
 the parties; but delivery is indispensable, 
 for without it it is a mere agreement. Dig. 
 31. 77. 4; Code, 4. 64. '3. 
 
 Permutation differs from sale in this, that 
 in the former a delivery of the articles sold 
 must be made, while in the latter it is unnec- 
 essary. It agrees with the contract of sale, 
 however, in the following particulars: That 
 he to whom the delivery is made acquires 
 the right or faculty of prescribing (Dig. 41. 
 3. 4. 17) ; that the contracting parties are 
 bound to guaranty to each other the tiile of 
 the things delivered (Code, 4. 64. 1); and 
 that they are bound to take back the things 
 delivered when they have latent defects 
 which they have concealed (Dig. 21. 1. 63). 
 
 PERMUTIONE. A writ commanding an 
 ordinary to admit a clerk on exchange of 
 benefices. 
 
 PERNANCY (from Pr. prendre, to take). A 
 taking or receiving. 
 
 PERNOR (from Law Fr. parnour, or per- 
 nour, q. v.) A taker. Pernor of profits is 
 the taker or receiver of the profits of an 
 estate. Cowell. 
 
 PERNOR OF PROFITS. He who receives 
 the profits of lands, etc. A cestui que use, 
 who is legally entitled and actually does re- 
 ceive the profits, is the pernor of profits. 
 
 PERNOUR (Law Fr.) A taker, he per- 
 nour ou le detenour, the taker or the de- 
 tainer. Britt. c. 27. 
 
PERPETUA LEX, ETC. 
 
 (687) 
 
 PERSEQUI 
 
 PERPETUA LEX EST, NULLAM LEGEM 
 humanam ac positivam perpetuam esse; et 
 clausula quae abrogatlonem excludit ab ini- 
 tio non valet. It is a perpetual law that no 
 human or positive law can be perpetual; and 
 a clause in a law which precludes the power 
 of abrogation is void 06 initio. Bac. Max. 
 reg. 19; Broom, Leg. Max. (3d London Ed.) 
 27. 
 
 PERPETUAL. That which is to last with- 
 out limitation as to time; as, a perpetual 
 statute, which is one without limit as to 
 time, although not expressed to be so. 
 
 PERPETUAL CURACY. The office of a 
 curate, in a parish where there is no spirit- 
 ual rector or vicar, but where the curate is 
 appointed to officiate for the time by the im- 
 propriator. 2 Burn, Ecc. Law, 55. 
 
 The church of which the curate is per- 
 petual. 2 Ves. Sr. 425, 429. See 2 Steph. 
 Comm. 76; 2 Burn, Ecc. Law, 55; 9 Adol. & 
 B. 556. As to whether such curate may be 
 removed, see 2 Burn, Ecc. Law, 55. 
 
 PERPETUAL INJUNCTION. Opposed to 
 an injunction ad interim; an Injunction 
 which finally disposes of the suit, and is in- 
 definite in point of time. 
 
 PERPETUAL LEASE. A lease without 
 limitation as to term; a grant in fee, sub- 
 ject to a reserved rent. 
 
 PERPETUAL STATUTE. Repeal or ex- 
 piration at any future time. 
 
 PERPETUATING TESTIMONY. The act 
 
 by which testimony is reduced to writing 
 as prescribed by law, so that the same shall 
 be read in evidence in some suit or legal 
 proceedings to be thereafter instituted. 
 
 The origin of this practice may be traced 
 to the canon law (chapter 5, X ut lite non 
 contest fitd, etc.) Bockmer, note 4; 8 Toul- 
 lier, D-r. Civ. note 22. Statutes exist in 
 most of the states for this purpose. Equity 
 also furnishes means, to a limited extent, for 
 the same purpose. 
 
 PERPETUITY. Any limitation tending to 
 take the subject of it out of commerce for a 
 longer period than a life or lives in being, 
 and twenty-one years beyond, and, in case of 
 a posthumous child, a few months more, al- 
 lowing for the term of gestation. Rand. 
 Perp. 48. Such a limitation of property as 
 renders it unalienable beyond the period 
 allowed by law. Gilb. Uses (Sugd. Ed.) 260, 
 note. 
 
 An interest subject to a condition pre- 
 cedent, which condition is not to be ful- 
 filled within twenty-one years after some 
 life in being at the creation of the interest. 
 Gray, Perp. § 216. 
 
 Mr. Justice Powell, in 12 Mod. 278, distin- 
 guished perpetuities into two sorts, — abso- 
 lute and qualified; meaning thereby, as it 
 is apprehended, a distinction between a 
 plain, direct, and palpable perpetuity, and 
 the case where an estate is limited on a con- 
 tingency, which might happen within a rea- 
 sonable compass of time, but where the es- 
 
 tate nevertheless, from the nature of the 
 limitation, might be kept out of commerce 
 longer than was thought agreeable to the 
 policy of the common law. But this distinc- 
 tion would not now lead to a better under- 
 standing or explanation of the subject; for 
 whether an estate be so limited that it can- 
 not take effect until a period too much pro- 
 tracted, or whether on a contingency which 
 may happen within a moderate compass of 
 time, it equally falls within the line of per- 
 petuity, and the limitation is therefore void; 
 for it is not sufficient that an estate may 
 vest within the time allowed, but the rule 
 requires that it must. Rand. Perp. 49. See 
 Cruise, Dig. tit. 32, c. 23; 1 Belt, Supp. Ves. 
 406; 2 Ves. Jr. 357; 3 Saund. 388; Comyn, 
 Dig. "Chancery" (4 G 1) ; 3 Chanc. Gas. 1; 
 2 Bouv. Inst, note 1890. 
 
 PERPETUITY OF THE KING. That fic- 
 tion of the English law which, for certain 
 political purposes, ascribes to the king in 
 his political capacity the attribute of im- 
 mortality; for, though the reigning monarch 
 may die, yet by this fiction the king never 
 dies, i. e., the office is supposed to be reoc- 
 cupied for all political purposes immediately 
 on his death. 
 
 PERQUIRERE (Law Lat. from j)«r, through, 
 and gMoerere, to obtain). In feudal law. To 
 gain or acquire; to acquire by one's own 
 act; to purchase. Breve perquirere, to pur- 
 chase a writ. Cowell. 
 
 PERQUISITES. In its most extensive 
 sense, perquisites signifies anything gotten 
 by industry or purchased with money, dif- 
 ferent from that which descends from a fa- 
 ther or ancestor. Bracton, lib. 2, c. 30, note 
 3; Id. lib. 4, c. 22. In a more limited sense, 
 it means something gained by a place or 
 office beyond the regular salary or fee. 
 
 PERQUISITIO. Purchase. 2 Bl. Comm. 
 241. Acquisition by one's own act or agree- 
 ment, and not by descent. Id. See "Pur- 
 chase." 
 
 PERQUISITOR. A purchaser; one who 
 first acquired an estate to his family; one 
 who acquired an estate by sale, by gift, or 
 by any other method, except only that of 
 descent. 2 Bl. Comm. 220. 
 
 PERQUISITUM. Purchase. Bracton, fol. 
 65. Co. Litt. 3b, 18b. An estate acquired by 
 purchase, that is, by one's own act, and not 
 by descent; praedium quod quis non a patre 
 vel majoribus possidet, sed quo sua industria 
 vel pecuniis comparato gaudet. Spelman. 
 
 PERSECUTIO (Lat. from persegni, q. v.) 
 In the civil law. A following after; a pur- 
 suing at law; a suit or prosecution. 
 
 Properly, that kind of judicial proceeding " 
 before the praetor which was called "extraor- 
 dinary." Calv. Lex. 
 
 In a general sense, any judicial proceed- 
 ing, including not only actions {actiones) 
 properly so called, but other proceedings 
 also. Calv. Lex. 
 
 PERSEQUI (Lat.) In the civil law. To 
 
PERSON 
 
 (688) 
 
 PERSONAL COVENANT 
 
 follow after; to pursue or claim in form of 
 law. An action is called a jus persequendi. 
 See "Actio." 
 
 PERSON. A man considered according to 
 the rank he holds in society, with all the 
 rights to which the place he holds entitles 
 Tiim, and the duties which it imposes. 1 
 Bouv. Inst, note 137. 
 
 A corporation, which is an artificial per- 
 son. 1 Bl. Comm. 123; 4 Bing. 669; Wood- 
 deson, Lect. 116; 1 Mod. 164; 22 N. X 352; 
 10 111. 48; 32 Conn. 216; 118 U. S. 394. And 
 it has been held to include a partnership 
 association. 108 Pa. St. 147. It includes 
 both sexes. 136 Mass. 580., 
 
 PERSONA (Lat.) In civil law. Character, 
 In virtue of which certain rights belong to a 
 man, and certain duties are Imposed upon 
 liim. Thus, one man may unite many char- 
 acters (personae) ; as, for example, the 
 characters of father and son, of master and 
 servant. Mackeld. Civ. Law, § 117. 
 
 In its original signification, a mask; after- 
 ' wards, a man in reference to his condition 
 or character (staUis). Vicat. It is used 
 metaphorically of things, among which are 
 counted slaves. It is often opposed to res; 
 as, actio in personam and aofio in rem. 
 
 Power and right belonging to a person in 
 a certain character (pro jure et potestate 
 personae competente) . Vicat. Its use is 
 not confined to the living, but is extended 
 to the dead and to angels. Id. A statute in 
 a fountain whence water gushes. 
 
 PERSONA CONJUNCTA AEQUIPARA- 
 tur interesse proprio. The interest of a per- 
 sonal connection is sometimes regarded in 
 law as that of the individual himself. Bac. 
 Max. reg. 18; Broom, Leg. Max. (3d London 
 Ed.) 474. 
 
 PERSONA EST HOMO, CUM STATU 
 <1uodam consideratus. A person is a man 
 considered with reference to a certain status. 
 Heinec. Elem. Jur. Civ. lib. 1, tit. 3, § 75. 
 
 PERSONA NON GRATA. A person not 
 acceptable. Applied to diplomatic repre- 
 sentatives who are not acceptable at the 
 court to which they are accredited. 
 
 PERSONA REGIS MERGITUR PERSONA 
 ducis. The person of duke merges in that of 
 king. Jenk. Cent. Gas. 160. 
 
 PERSONA STANDI IN JUDICIO. Capaci- 
 ty of standing in court or in judgment; ca- 
 pacity to be a party to an action; capacity 
 ■or ability to sue. 
 
 A phrase probably derived from Bracton 
 (folios 155b, 196). See 15 Johns. (N. Y.) 
 «3. 
 
 PERSONABLE (Law Lat. personahilis, 
 from persona, capacity). In old English 
 law. Able to maintain a plea in court; hav- 
 ing capacity to sue. Cowell. Derived prob- 
 ably from the phrase persona standi in ju- 
 .dicio (q. v.) 
 
 Of capacity to take a thing granted or 
 given. Plowd. 27a, arg. But in the case 
 
 here cited, it is used as two words, "person 
 able." "There is a maxim that when a re- 
 mainder is appointed to one, he to whom it 
 is appointed ought at that time to be 'a per- 
 son able,' and to have capacity to take the 
 remainder, or else it shall be void." Id. 
 
 PERSONAE VICE FUNGITUR MUNICIP- 
 lum et decurla. Towns and boroughs act as 
 ■t persons. 23 Wend. (N. Y.) 103, 144. 
 
 PERSONAL. Belonging to the person. 
 
 This adjective is frequently employed in 
 connection with substantives, as personal 
 services (see 59 N. H. 551), personal goods 
 (see 5 Mason [U. S.] 356), etc. Personal 
 rights are those which belong to the person; 
 personal duties are those which are to be 
 performed in person. 
 
 PERSONAL ACTION. 
 
 In the Civil Law. An action in which 
 
 one person (the actor) sues another (the 
 reus) in respect of some obligation which 
 he is under to the actor either ex contractu. 
 or ex delicto. It will be seen that this in- 
 cludes all actions against a person, without 
 reference to the nature of the property in- 
 volved. In a limited sense of the ,woTar"ac- 
 tlon" in the civil law, it includes only per- 
 sonal actions, all others bein^ called "peti- 
 tions." See "Real Action." 
 
 At Common Law. An iction brought 
 
 for the recovery of personal! property, for 
 the enforcement of some contract or to re- 
 cover damages for its breach, or for the re- 
 covery of damages for the commission of 
 an injury to the person or property. Such 
 arise either upon contracts, as account, as- 
 sumpsit, covenant, debt, and detinue (g. v.), 
 or for wrongs, injuries, or torts, asNtrespass, 
 trespass on the case, replevin, troverVg. v.) 
 Other divisions of personal actions are^ade 
 in the various states; and in Vermont and 
 Connecticut an action is in use called the 
 "action of book debt." 71 Me. 287. See 
 "Action." 
 
 PERSONAL ASSETS. Chattels, money, 
 and other personal property belonging to a 
 bankrupt, insolvent, or decedent estate, 
 which go to the assignee or executor. 
 
 PERSONAL CHATTELS. Strictly and 
 properly speaking, things movable, which 
 may be annexed to or attendant on the per- 
 son of the owner, and carried about with 
 him from one part of the world to another. 
 2 Bl. Comm. 388*. See "Chattel." 
 
 PERSONAL CONTRACT. A contract as 
 to personal property. A covenant (or con- 
 tract) personal relates only to matters per- 
 sonal as distinguished from real, and is 
 binding on the covenantor (contractor) dur- 
 ing his life, and on his personal representa- 
 tives after his decease, in respect of assets. 
 Angell & A. Watercourses, 305; Co. Litt. 22. 
 
 PERSONAL COVENANT. A covenant 
 which binds only the covenantor and his 
 personal representatives in respect to assets, 
 and can be taken advantage of only by the 
 covenantee. 
 
 A covenant which must be performed by 
 
PERSONAL ESTATE 
 
 (689) 
 
 PERTINENT 
 
 the covenantor in person. Pitzh. Nat. Brev. 
 340. 
 
 All covenants are either personal or real, 
 but some confusion exists in regard to the 
 division between them. Thus, a covenant 
 may be personal as regards the covenantor, 
 and real as regards the covenantee; and dif- 
 ferent definitions have been given, accord- 
 ing to whether the rights and liabilities of 
 the covenantor or the covenantee have been 
 in consideration. It is apprehended, however, 
 that the prevalent modern usage is to hold 
 a covenant real, if it is real, — that is, runs 
 with the land, so as to apply to an assignee, 
 either as regards the covenantor or the cov- 
 enantee. See Piatt, Gov. 61; i Bl. Comm. 
 304, note, 305, note; 3 N. J. 260; 7 Gray 
 (Mass.) 83. 
 
 All covenants which relate to personalty 
 merely are of this class. 30 Miss. 145. 
 
 PERSONAL ESTATE. Personal property. 
 
 PERSONAL KNOWLEDGE. Knowledge 
 derived at first hand from actual sight or 
 hearing of the matter in question, and not 
 from hearsay. 
 
 PERSONAL LAW. As opposed to terri- 
 torial law, personal law is the law appli- 
 cable to persons not subject to the law of 
 the territory in which they reside. It is 
 only by permission of the territorial law 
 that personal law can exist at the present 
 day; e. g., it applies to British subjects resi- 
 dent in the Levant and in other Mohamme- 
 dan and barbarous countries. Under the 
 Roman Empire, it had a very wide applica- 
 tion. Brown. 
 
 PERSONAL LIBERTY. The right or pow- 
 er of locomotion, of changing situation, or 
 moving one's person to whatsoever place 
 one's own inclination may direct, without 
 imprisonment or restraint, unless by due 
 course of law. 1 Bl. Comm. 134. 
 
 PERSONAL PROPERTY. Chattels (g.^t).) 
 
 PERSONAL REPLEVIN. A proceeding 
 which succeeded to the court del nomine 
 replegiando, and was in turn succeeded by 
 the writ of habeas corpus. 
 
 PERSONAL REPRESENTATIVES. The 
 
 executors or administrators of the person de- 
 ceased. 6 Mod. 155; 5 Yes. 402; 1 Madd. 108. 
 In wills, these words are sometimes con- 
 strued to mean "next of kin." 2 Jarm. 
 Wills, 28; 1 Beav. Rolls, 46; 1 Russ. & M. 
 587. 
 
 PERSONAL RIGHTS. The right of per- 
 sonal security, comprising those of life, limb 
 body, health, reputation, and the right of 
 personal liberty. Wharton. 
 
 PERSONAL SECURITY. A person's legal 
 and uninterrupted enjoyment of his life, his 
 limbs, his body, his health, and his reputa- 
 tion. 1 Bl. Comm. 129. 
 
 PERSONAL SERVICE. Service of pro- 
 cess on one by actual delivery thereof to 
 him, as distinguished from substituted serv- 
 
 ice at his residence or constructive service 
 by publication. 
 
 PERSONAL SERVITUDES. Servitudes in 
 gross; i. e., belonging to a person, and not 
 appurtenant to an estate. 
 
 PERSONAL STATUTE. A law whose 
 principal, direct, and immediate object is to 
 regulate the condition of persons. 
 
 The term is not properly in use in the 
 common law, although Lord Mansfield, in 2 
 W. Bl. 234, applied it to those legislative 
 acts which respect personal transitory con- 
 tracts, but is occasionally used in the sense 
 given to it in civil law, and which is 
 adopted as its definition. It is a law, ordi- 
 nance, regulation, or custom, the disposi- 
 tion of which affects the person, and clothes 
 him with a capacity or incapacity which he 
 does not change with his abode. See 2 Kent, 
 Comm. (10th Ed.) 613. 
 
 PERSONAL THINGS. In the old books, 
 include personal rights and duties. 
 
 PERSONALIAPERSONAM SEQUUNTUR. 
 
 Personal things follow the person. 10 Cush. 
 (Mass.) 516. 
 
 PERSONALIS ACTIO. See "Actio." 
 
 PERSONALITER. In old English law. 
 Personally. 
 
 PERSONALITY. In foreign and modern 
 civil law. That quality of a law which con- 
 cerns the condition, state, and capacity of 
 persons. By the personality of laws, foreign 
 jurists generally mean all laws which con- 
 cern the condition, state, and capacity of 
 persons. Story, Confl. Laws, § 16. 
 
 PERSONALTY. Personal property. 
 
 PERSONATION. The offense of falsely 
 representing one's self as another person, 
 and thereby obtaining some material ad- 
 vantage. 
 
 PERSONE (Law Fr.) A parson. En mes- 
 me la manere est de persone de un esglise, 
 in the same manner is it with the parson of 
 a church. Britt. c. 48. 
 
 PERSONERO (Spanish). In Spanish law> 
 An attorney. So called, because he repre- 
 sents the person of another, either in or out 
 of court. Las Partidas, pt. 3, tit. 5, lib. 1. 
 
 PERSONNE (Pr.) A person. This term 
 is declared by the Civil Code of Louisiana to 
 be applicable to men and women, or to ei- 
 ther. Article 3522, No. 25. 
 
 PERSPICUA VERA NON SUNT PRO- 
 banda. Plain truths need not be proved. Co. 
 Litt. 16. 
 
 PERTICA, PERTICATA, or PARTICATA 
 
 (Law Lat. from pertica). In old Scotch law. 
 A perch. Skene de Verb. Sign. 
 
 PERTINENT (from Lat. pertineo, belong- 
 ing to). Which tends to prove or disprove- 
 the allegations of the parties. Willes, 319. 
 Matters which have no such tendency are- 
 called "impertinent." 8 Toullier, Dr. Civ^ 
 note 22. 
 
PERTINENTIAE (Law Lat. from pertir 
 nere, to belong). In old English law. Ap- 
 purtenances, or, as anciently written, "ap- 
 pertinances;" in Scotcli law, pertinents; 
 things belonging or incident to another 
 (principal) thing. Reg. Orig. 1; Fleta, lib. 
 3, c. 14, § 11. Appurtenances had sometimes 
 their o^n appurtenances, called pertineniiae 
 pertinentiarum. Thus, to the right of feed- 
 ing and pasture, themselves appurtenant to 
 a tenement, were appurtenant the right of 
 way, and free ingress and egress; haient 
 hujUsmodi pertinentiae suas pertinentias, 
 siout ad jus pascendi et ad pasturam pertinet 
 via et liber ingressus et egressus. Bracton, 
 fol. 232. See Fleta, lib. 4, c. 18, § 3. 
 
 PERTINENTS. In Scotch law. Appurte- 
 nances. "Parts and pertinents," "parts pen- 
 dicles and pertinents," are formal words in 
 old deeds and charters. 1 Forbes, Inst. pt. 
 2, pp. 112. 118. 
 
 PERTURBATION. This is a technical 
 word which signifies disturbance or infringe- 
 ment of a right. It is usually applied to 
 the disturbance of pews or seats in a church. 
 In the ecclesiastical courts, actions for these 
 disturbances are technically called "suits for 
 perturbation of seat." 1 Phillim. Ecc. Law, 
 323. See "Pew." 
 
 PERTURBATRIX. A woman who breaks 
 the peace. 
 
 PERVISE, or PARVISE. The palace yard 
 at Westminster. 
 
 A place where counsel used to advise 
 with their clients. 
 
 An afternoon exercise or moot for the in- 
 struction of students. Co well; Blount. 
 
 PESAGE. In England, a toll charged for 
 weighing avoirdupois goods other than wool. 
 2 Chit. Com. Law, 16. 
 
 PESQUISIDOR. In Spanish law. Coroner. 
 White, New Recop. bk. 1, tit. 1, § 3. 
 
 PESSIMI EXEMPLI. Of the worst ex- 
 ample. 
 
 PESSONA (Law Lat.) In old English law. 
 Mast, including acorns, nuts, and other sim- 
 ilar produce of trees. Bracton, fol. 222b. 
 
 PETENS (Lat.; Fr.petere, to demand). In 
 old English law. A demandant; the plain- 
 tiff in a real action. Bracton, fols. 102, 
 106b; Fleta, lib. 6, u. 6, § 1. 
 
 PETER FUNK SALE. A fraudulent auc- 
 tion sale. 27 Abb. N. C. (N. Y.) 378. 
 
 PETIT (sometimes corrupted into"petty"). 
 A French word signifying little, small. It 
 is frequently used; as, petit larceny, petit 
 jury, petit treason. 
 
 PETIT CAPE. When the tenant is sum- 
 moned on a plea of land, and comes on the 
 summons, and his appearance is recorded, 
 if at the day given him he prays the view, 
 and, having it given him, makes default, 
 then shall this writ issue from the king. 
 
 Old Nat. Brev. 162; Reg. Jud. fol. 2; Fleta, 
 lib. 2, c. 44. See "Grand Cape." 
 
 PETIT (or PETTY) JURY. The ordinary 
 jury of twelve, as opposed to the grand jury, 
 which was of a larger number, and whose 
 duty it was to find bills for the petit jury 
 to try. 3 Bl. Comm. 351*. 
 
 PETIT (or PETTY) LARCENY. In- old 
 
 English law, based on St. Westminster I. c. 
 15; larceny where the value of the property 
 stolen was twelve pence or less. The dis- 
 tinction between grand and petit larceny has 
 been abolished in England. 24 & 25 Vict, 
 c. 96, § 4. 
 
 In the United States there are statutes in 
 some states making a distinction between 
 grand and petty larceny based on the value 
 of the property stolen. 
 
 PETIT SERJEANTY. A tenure by which 
 lands are held of the crown by the service 
 of rendering yearly some small implement 
 of war, as a lance, an arrow, etc. 2 Bl. 
 Comm. 82. Though St. 12 Car. II. took away 
 the incidents of livery and primer seisin, 
 this tenure still remains a dignified branch 
 of socage tenure, from which it only differs 
 in name on account of its reference to war. 
 Such is the tenure of the grants to the dukes 
 of Marlborough and Wellington. 
 
 PETIT (or PETTY) TREASON. In Eng- 
 lish law. The killing of a master by his 
 servant, a husband by his wife, a superior 
 by a religious man. 4 Bl. Comm. 73. In 
 the United States this is like any other 
 murder. See "Treason." 
 
 PETITE ASSIZE. Used in contradistinc- 
 tion from the "grand assize," which was a 
 jury to decide on questions of property. 
 Petite assize, a jury to decide on questions 
 of possession. Britt. c. 42; Glanv. lib. 2, c. 
 6, 7; Home, Mir. lib. 2, c. "De Novel Dis- 
 seisin." 
 
 PETITIO (Lat. from pet ere, to ask or .de- 
 mand). 
 
 In the Civil Law. The plaintifE's or 
 
 actor's statement of his cause of action, in 
 an action in rem. Dig. 44. 7. 28; Calv. Lex. 
 
 In Old Engiisli Law. Petition or de- 
 mand; the count in a real action; the form 
 of words in which a title to land was stated 
 by the demandant, and which commenced 
 with the word peto (g. v.) 1 Reeve, Hist. 
 Eng. Law, 176. Obviously borrowed from 
 the civil law. 
 
 PETITION. An instrument of writing or 
 printing, containing a prayer from the. per- 
 son presenting it, called the "petitioner," to 
 the body or person to whom it is presented, 
 for the redress of some wrong, or the grant 
 of some favor which the latter has the right 
 to give. 48 Miss. 36. 
 
 In Practice. An application to a court 
 
 in writing; in contradistinction to a "mo- 
 tion," which may be viva voce. Shaw, C. J., 
 4 Mete. (Mass.) 376. A motion stated in 
 writing. 
 
 In Equity Practice. An application in 
 
 writing for an order of the court, stating 
 the circumstances upon which it is founded; 
 
PETITION DE DROIT 
 
 (691) 
 
 PETTY BAG OFFICE 
 
 a proceeding resorted to whenever the na- 
 ture of the application to the court requires 
 a fuller statement than can be conveniently 
 made in a notice of motion. 1 Barb. Ch. 
 (N. Y.) 578. See 3 Daniell, Chanc. Prac. 
 (Perkins' Ed.) 1801. 
 
 PETITION DE DROIT (Daw Pr.) In Eng- 
 lish practice. A petition of right; a form 
 of proceeding to obtain restitution from the 
 crown of either real or personal property, 
 being of use where the crown is in posses- 
 sion of any hereditaments or chattels, and 
 the petitioner suggests such a right as con- 
 troverts the title of the crown, grounded on 
 facts disclosed in the petition itself. 3 Bl. 
 Comm. 256; 8 Adol. & E. (N. S.) 208. 
 
 PETITION OF RIGHT. In English law. A 
 proceeding in chancery by which a subject 
 may recover property in the possession of 
 the king. 
 
 This is in the nature of aii action against 
 a subject, in which the petitioner sets out 
 his right to that which is demanded by him, 
 and prays the king to do him right and 
 justice; and, upon a due and lawful trial of 
 the right, to make him restitution. It is 
 called a "petition of right," because the king 
 Is bound of right to answer it, and let the 
 matter therein contained be determined in 
 a legal way, in like manner as causes be- 
 tween subject and subject. The petition is 
 presented to the king, who subscribes it 
 with these words, soit droit fait al partie, 
 and thereupon it is delivered to the chancel- 
 lor to be executed according to law. 4 Inst. 
 419, 422b; Mitf. Eq. PI. 30, 31; Cooper, Eq. 
 PI. 22, 23. 
 
 PETITION OF RIGHTS. A parliamentary 
 declaration of the liberties of the people, as- 
 sented to by King Charles I. in 1629. It is 
 to be distinguished from the bill of rights 
 (1689), which has passed into a permanent 
 constitutional statute. 
 
 PETITIONING CREDITOR. The creditor 
 at whose instance an adjudication of bank- 
 ruptcy is made against a bankrupt. 
 
 PETITOR (Lat. from petere, to demand). 
 In Roman law. A plaintiff or actor, par- 
 ticularly in an action in rem; a demand- 
 ant. Calv. Lex. Actor est qui agit in per- 
 sonam, petitor, qui agit in rem, an ocior is 
 one who prosecutes against a person, a de- 
 mandant one who prosecutes against a thing. 
 Cujac. Observ. lib. 7, c. 26. 
 
 PETITORY. That which demands or peti- 
 tions; that which has the quality of a prayer 
 or petition; a right to demand. 
 
 A petitory suit or action is understood to 
 be one in which the mere title to property 
 is to be enforced by means of a demand, pe- 
 tition, or other legal proceeding, as distin- 
 guished from a suit where only the right of 
 possession and not the mere right of prop- 
 erty is in controversy. 1 Kent, Comm. 371; 
 7 How. (U. S.) 846; 10 How. (U. S.) 257. 
 Admiralty suits touching property in ships 
 are either petitory, in which the mere title 
 to the property is litigated, or possessory, to 
 
 restore the possession to the party entitled 
 thereto. 
 
 The American courts of admiralty exer- 
 cised unquestioned jurisdiction in petitory 
 as well as possessory actions; but in Eng- 
 land the courts of law, some time after the 
 restoration in 1660, claimed exclusive cog- 
 nizance of mere questions of title, until the 
 statute of 3 & 4 Vict. c. 65. By that statute, 
 the court of admiralty was authorized to de- 
 cide all questions as to the title to or own- 
 ership of any ship or vessel, or the proceeds 
 thereof remaining in the registry in any 
 cause of possession, salvage, damage, wages, 
 or bottomry, instituted in such court after 
 the passing of that act. Ware, Dist. Ct. 232; 
 18 How. (U. S.) 267; 2 Curt. C. C. (U. S.) 
 426. 
 
 In Scotch Law. Actions in which dam- 
 ages are sought. , 
 
 This class embraces such actions as as- 
 sumpsit, debt, covenant, and detinue, at com- 
 mon law. See Patterson, Comp. 1058, note. 
 
 PETITORY SUIT (or ACTION). 
 
 In Admiralty Law. A suit in which 
 
 the mere title to property is litigated and 
 sought to be enforced, as distinguished from 
 a possessory action (q. v.) 5 Mason (U. S.) 
 465; 1 Kent, Comm. 371. 
 
 In Scotch Law. An action wherein the 
 
 pursuer (plaintiff) claims something as due 
 or belonging to him by the defender (de- 
 fendant). 1 Forbes, Inst. pt. 4, p. 163; Bell, 
 Diet. 
 
 PETO (Lat.) 
 
 In Roman Law. I request. A common 
 
 word by which a fideicommissum, or trust, 
 was created in a will. Inst. 2. 24. 3. 
 
 In Old English Law. I demand. The 
 
 word with which a demandant's count com- 
 menced. 
 
 PETRA (Lat.) In old English law. Stone. 
 Fleta, lib. 1, c. 20, § 114. 
 
 A stone. A weight of twelve pounds and 
 a half. Pleta, lib. 2, c. 12, § 1. 
 
 PETTIFOGGER. One who pretends to be 
 a lawyer, but possesses neither knowledge of 
 the law nor conscience. 
 
 An unprincipled practitioner of law, whose 
 business is confined to petty cases. See 40 
 Mich. 256. 'See, also, "Shyster." 
 
 PETTIFOGGING. Practicing the arts of 
 a pettifogger, like the raising of unprofes- 
 sional or dishonorable quibbles, practicing 
 petty deceptions on the court, attempting to 
 bring scandalous or Impertinent issues in- 
 to the trial, etc. 
 
 PETTY AVERAGE (called, also, "custom- 
 ary average"). Several petty charges which 
 are borne partly by the ship and partly by 
 the cargo, such as the expense of tonnage 
 beaconage, etc. Abb. Shipp. (7th Ed.) 404 
 2 Pars. Mar. Law, 312; 1 Bell, Comm. 567 
 2 Magens, 277. See "Average." 
 
 PETTY BAG OFFICE. In English law. An 
 office in the court of chancery, appropriated 
 for suits against attorneys and oflScers of 
 
PETTY CONSTABLE 
 
 (692) 
 
 PILLORY 
 
 the court, and for process and proceedings 
 by extent on statutes, recognizances ad quod 
 damnum, and the like. Termes de la Ley. 
 See "Hanaper Office." 
 
 PETTY CONSTABLE. The ordinary con- 
 stable, as distinguished from the high con- 
 stable of the hundred. 1 Bl. Comm. 355; 
 Bac. Law Tr. 181, "Office of Constable;" 
 WlUcock, Const, c. 1, § 1. For duties of 
 constable in America, see New England 
 Sheriff. 
 
 PEW. A seat in a church, separated from 
 all others, with a convenient place to stand 
 therein. It is derived from puye, and signi- 
 fies primarily an inclosed seat In a church. 
 L. R. 5 C. P. 224. 
 
 It is an incorporeal Interest in the real 
 property. And although a man has the ex- 
 clusive right to it, yet it seems he cannot 
 maintain trespass against a person entering 
 it (1 Term R. 430); but case is the proper 
 remedy (3 Barn. & Aid. 361; 8 Barn. & C. 
 294). 
 
 In Connecticut and Maine, pews are con- 
 sidered real estate. In Massachusetts and 
 New Hampshire, they are personal property. 
 Gen. St. Mass. c. 30, § 38; 1 Smith, St. 145. 
 The precise nature of such property does not 
 appear to be well settled in New York. 15 
 Wend. (N. Y.) 218; 16 Wend. (N. Y.) 28; 
 5 Cow. (N. Y.) 494. See 10 Mass. 323; 17 
 Mass. 438; 7 Pick. (Mass.) 138; 4 N. H. 180; 
 4 Ohio, 515; 4 Har. & McH. (Md.) 279; 
 Best, Pres. Ill; Crabb, Real Prop. §§ 481- 
 497; Washb. Easem. 
 
 PHYSICAL FACT. A fact the existence of 
 which may be perceived by the senses, such 
 as the sound of a pistol shot, a man running, 
 Impressions of feet on the ground. Burrill, 
 Clrc. Ev. 130. 
 
 PHYSICiAN. A person who has received 
 the degree' of doctor of medicine from an in- 
 corporated institution. 
 
 One lawfully engaged In the practice of 
 medicine. 
 
 The term is not limited to any of the 
 schools of practitioners recognized by law. 
 62 Wis. 289. 
 
 PIA FRAUS. A pious fraud. A term ap- 
 plied to evasions of the statute of mortmain, 
 and other frauds in the Interest of religious 
 institutions. 
 
 PICCAGE (Law Lat. pkcagium, from Fr. 
 piquer, to perforate, or pick). In old Eng- 
 lish law. Money paid at fairs for leave to 
 break the ground, to set up booths or stalls. 
 Cowell; Spelman. 
 
 PICKERY. In Scotch law. Stealing of 
 trifles, punishable arbitrarily. Bell, Diet.; 
 Tait, Inst. "Theft." 
 
 PICKPOCKET. A thief; one who in a 
 crowd or in other places steals from the 
 pockets or person of another, without put- 
 ting him in fear. This is generally punished 
 as simple larceny, but by some states lar- 
 ceny from the person, committed privily, 
 
 is made a distinct crime. Pen. Code Ga. § 
 175; Pen. Code Tex. art. 879. 
 
 PIEDPOUDRE. See "Court of Piedpoudre." 
 
 PIERAGE. Toll for using a marine pier. 
 Webster; Smart. 
 
 PIGNORATIO (Lat. from pignorare, to 
 pledge). In civil law. The obligation of 
 a pledge. L. 9. D. "De Pignor." Sealing up 
 (obsignatio). A shutting up of an animal 
 caught in one's field, and keeping-it till the 
 expenses and damage have been paid by its 
 master. New Dec. 1. 34. 13. 
 
 PIGNORATITIA ACTIO. See "Actio Pig- 
 noraticia." 
 
 PIGNORATIVE CONTRACT. In civil law. 
 A contract by which the owner of an estate 
 engages it to another for a sum of money, 
 and grants to him and his successors the 
 right to enjoy it until he shall be reimbursed, 
 voluntarily, that sum of money. Poth. Obi. 
 
 PIGNORIS CAPTIO (Lat.) In Roman law. 
 The name given to one of the legis actiones 
 of the Roman law. It consisted chiefly in 
 the taking of a pledge, and was, in fact, a 
 mode of execution. It was confined to spe- 
 cial cases determined by positive law or by 
 custom, such as taxes, duties, rents, etc., 
 and Is comparable in some respects to dis- 
 tresses at common law. The proceeding 
 took place In the presence of a praetor. 
 
 PI GNUS (Lat.) In civil law. Pledge, or 
 pawn; the contract of pledge; the right in 
 the thing pledged. 
 
 "It is derived," says Galus, "from pugnum, 
 the fist, because what is delivered in pledge 
 is delivered in hand." Dig. 50. 16. 238. 2. 
 This is one of several Instances of the fail- 
 ure of the Roman jurists when they at- 
 tempted etymological explanations of words. 
 The elements of pignus (pin) are contained 
 in the word pan(y)-o and its cognate forms. 
 See Smith. 
 
 Though pledge is distinguished from mort- 
 gage (hypotheca) , as being something de- 
 livered In hand, while mortgage is good 
 without possession, yet a pledge (pignus) 
 may also be good without possession. Do- , 
 mat. Civ. Law, bk. ill. tit. 1, § 5; Calv. Lex. 
 Pignus is properly applied to movables, hy- 
 potheca to immovables; but the distinction 
 is not always preserved. Id. 
 
 PILLAGE. The taking by violence of 
 private property by a victorious army from 
 the citizens or subjects of the enemy. This 
 in modern times is seldom allowed, and then 
 only when authorized by the commanding 
 or chief officer at the place where the pillage 
 is committed. The property thus violently 
 taken belongs, in general, to the common 
 soldiers. Dalloz, "Propriete," art. 3, § 5; 
 Wolff. § 1201. See "Booty;" "Prize." 
 
 PILLORY. An Instrument of punishment, 
 consisting of a wooden machine, in which 
 the neck of the culprit is Inserted, he being 
 ordinarily exposed In a public place while so 
 secured. 
 
PILOT 
 
 (693) 
 
 PIX 
 
 PILOT. An otficer serving on boai-d of a 
 ship during the course of a voyage, and hav- 
 ing the charge of the helm and of the ship's 
 route. An officer authorized by law, who is 
 taken on board at a particular place for the 
 purpose of conducting a ship through a 
 river, road, or channel, or from or into port. 
 10 Abb. Pr. (N. Y.) 30. 
 
 Pilots of the second description are estab- 
 lished by legislative enactments at the prin- 
 cipal seaports in this country, and have 
 rights, and are bound to perform duties, 
 agreeably to the provisions of the several 
 laws establishing them; the principal being 
 the obligation of every vessel entering the 
 port to take on a licensed pilot of the port, 
 usually the first who offers his services (118 
 U. S. 90; 12 Fed. 81; 10 Fed. 135), or pay 
 pilotage to the pilot so offering. 
 
 PILOTAGE. The compensation given to a 
 pilot for conducting a vessel in or out of 
 port. Poth. des Avaries, note 147. 
 
 Pilotage is a lien on the ship, when the 
 contract has been made by the master or 
 quasi master of the ship, or some other per- 
 son lawfully authorized to make it (1 Mason 
 [U. S.] 598; 32 Fed. 486), and the admiralty 
 court has jurisdiction when services have 
 been performed at sea (Id.; 10 Wheat. [U. 
 S.] 428; 6 Pet. [U. S.] 682; 10 Pet. [U. S.] 
 108). And see 1 Pet. Adm. Dec. (U. S.) 227. 
 
 PIMP TENURE. A very singular and 
 odious kind of tenure mentioned by the old 
 writers, "Wilhelmus Boppesfiort tenet di- 
 midian virgatam terrae per servitium ciis- 
 todiendi sex dnmisellas, soil, meretrices ad 
 usum domini regis." 12 Edw. I. 
 
 PIN MONEY. Money allowed by a man 
 to his wife to spend for ber own personal 
 comforts. 9 Beav. 55; 2 Clark & P. 654. 
 
 It has been conjectured that the term "pin 
 money" has been applied to signify the pro- 
 vision for a married woman, because an- 
 ciently there was a tax laid for providing 
 the English queen with pins. Barr. Obs. St. 
 181. 
 
 PINT. A liquid measure, containing half 
 a quart, or the eighth part of a gallon. 
 
 PIOUS USES. See "Charitable Uses." 
 
 PIPE. In English law. The name of a 
 roll in the exchequer, otherwise called the 
 "Great Roll." A measure, containing two 
 hogsheads. One hundred and twenty-six gal- 
 lons is also called a pipe. 
 
 PIPE LINES. A line or series of pipes 
 designed for the transportation of water, 
 gas, etc. 
 
 PIPOWDER, or PIEPOUDRE (Fr. pied- 
 poudre). In English law. The name of 
 a court held for fairs and markets. See 
 "Court of Piedpoudre." Pipowder courts 
 were formerly appointed to be held at fairs 
 in the town and borough of Westchester, 
 New York. Bolton, Hist. Westchester, i. 
 194. 
 
 PIRACY. 
 
 In Criminal Law. A robbery or forci- 
 ble depredation on the high seas, without 
 lawful authority, done animo furandi, in the 
 spirit and intention of universal hostility. 
 3 Wheat. (U. S.) 610; 5 Wheat. (U. S.) 153, 
 163; 3 Wash. C. C. (U. S.) 209. This is the 
 definition of this offense by the law of na- 
 tions. 1 Kent, Comm. 183. 
 
 "A pirate is one who roves the seas in 
 an armed vessel, without any commission 
 from any sovereign, and for the purpose of 
 seizing by force and appropriating to him- 
 self every vessel which he may meet." Trial 
 of Savannah Privateers, p. 371. 
 
 The commission upon the high seas of such 
 acts of robbery and depredation as would, if 
 committed on land, have amounted to a fel- 
 ony. 4 Bl. Comm. 72. 
 
 In Torts. By piracy is understood the 
 
 plagiarisms of a book, engraving, or other 
 work for which a copyright has been taken 
 out. 
 
 When a piracy has been made of such a 
 work, an injunction will be granted. 4 Ves. 
 681; 5 Ves. 709; 12 Ves. 270. See "Copy- 
 right." 
 
 PIRATA EST HOSTIS HUMANI GENE- 
 rls. A pirate is an enemy of the human race. 
 3 Inst. 113. 
 
 PIRATE. A sea robber, who, to enrich 
 himself, by subtlety or open force, setteth 
 upon merchants and others trading by sea, 
 despoiling them of their loading, and some- 
 times bereaving them of life, and sinking 
 their ships. Ridley, View, pt. 2, c. 1, § 3. 
 One guilty of the crime of piracy. Merlin, 
 Repert. See, for the etymology of this word, 
 Bac. Abr. "Piracy." 
 
 PIRATICALLY. In pleading. This is a 
 technical word, essential to charge the crime 
 of piracy in an indictment, which cannot be 
 supplied by another word or any circumlo- 
 cution. Hawk. P. C. bk. 1, c. 37, § 15; 3 
 Inst. 112; 1 Chit. Crim. Law, *244. 
 
 PISCARY. The right of fishing in the 
 waters of another. Bac. Abr.; 5 Comyn, 
 Dig. 366. See "Fishery." 
 
 PISTAREEN. A small Spanish coin. It 
 is not made current by the laws of the Unit- 
 ed States. 10 Pet. (U. S.) 618. 
 
 PIT. A hole dug in the earth, which was 
 filled with water, and in which women 
 thieves were drowned, instead of being 
 hung. The punishment of the pit was for- 
 merly common in Scotland. 
 
 PIT AND GALLOWS (Law Lat. fossa et 
 furca). In Scotch law. A privilege of in- 
 fiicting capital punishment for theft, given 
 by King Malcolm, by which a woman could 
 be drowned in a pit Ifossa) or a man hanged 
 on the gallows (furca). Bell, Diet.; Stair, 
 Inst. 277, § 62. 
 
 PIX (Lat.) A mode of testing coin. The 
 ascertaining whether coin is of the proper 
 standard is, in England, called "pixing" it; 
 and there are occasions on which resort is 
 
PIXIS 
 
 (694) 
 
 PLAGIARISM 
 
 had for this purpose to an ancient mode of 
 inquisition called the "trial of the pix," he- 
 fore a jury of members of the Goldsmith's 
 Company. 2 Steph. Comm. 540, note. 
 
 PIXIS (Law Lat.) In old pleading. A 
 box. Cro. Jac. 664. "Trover was brought de 
 una pixide, Anglice, a box full of bands," 
 etc. Id. A box for deeds and muniments. 
 Latch, 195. 
 
 PLACE. See "Venue." 
 
 PLACE OF BUSINESS. The place where 
 a man usually transacts his affairs or busi- 
 ness. 
 
 A place of business is a place actually oc- 
 cupied, either continually or at regular in- 
 tervals, by a person, or those in his employ- 
 ment, for the transaction of business; the 
 mere occasional transaction of business at a 
 place, not at stated periods, not being suf- 
 ficient. 8 Port. (Ala.) 155. 
 
 A place in the house of another, where 
 one is employed two or three days a week 
 in settling up his old business, is not a place 
 of business. 1 Pet. (U. S.) 578. 
 
 The term implies a particular place ap- 
 propriated exclusively to a local business. 
 38 Tex. 599. 
 
 When a man keeps a store, shop, counting 
 room, or office, independently and distinctly 
 from all other persons, that is deemed his 
 place of business; and when he usually 
 transacts his business at the counting house, 
 office, and the like, occupied and used by an- 
 other, that will also be considered his place 
 of business, if he has no independent place 
 of his own. But when he has no particular 
 right to use a place for such private pur- 
 pose, as in an insurance office, an exchange 
 room, a banking room, a post office, and the 
 like, where persons generally resort, these 
 will not be considered as the party's place 
 of business, although he may occasionally or 
 transiently transact business there. 1 Pet. 
 (U. S.) 582; 2 Pet. (U. S.) 121; 10 Johns. 
 (N. Y.) 501; 11 Johns. (N. Y.) 231; 16 Pick. 
 (Mass.) 392. 
 
 PLACE OF CONTRACT. See "Lex Loci." 
 
 PLACITA COM MUNI A (Lat.) Common 
 pleas. All civil actions between subject and 
 subject. 3 Bl. Comm. 38, 40*; Cowell, "Plea." 
 See "Placitum." 
 
 PLACITA CORONAE (Lat.) Pleas of the 
 crown. All trials for crimes and misde- 
 meanors, wherein the king is plaintiff, on 
 behalf of the people. 3 Bl. Comm. 40*; Cow- 
 ell, "Plea." 
 
 PLACITA DE TRANSGRESSIONE CON- 
 tra pacem regis, in regno Angllae vi et armis 
 facta, secundum legem et consuetudinem 
 Angliae sine brevi regis placitari non de- 
 bent. Pleas of trespass against the peace of 
 the king in the kingdom of England, made 
 with force and arms, ought not, by the law 
 and custom of England, to be pleaded with- 
 out the king's writ. 2 Inst. 311. 
 
 PLACITA JURIS (Lat.) Arbitrary rules 
 of law. Bac. Law Tr. 73; Bac. Max. reg. 12. 
 
 PLACITA NEGATIVA DUO EXITUM NON 
 faciunt. Two negative pleas do not form an 
 issue. Lofft, 415. 
 
 PLACITABILE (Law Lat.) In old Eng- 
 lish law. Pleadable. Spelman. 
 
 PLACkTAMENTUM (Law Lat.) In old rec- 
 ords. Tht) pleading of a cause. Spelman. 
 
 PLACITARE (Law Lat. from placitum, q. 
 V.) In old English law. To plead; to state 
 to a couit in form of law. Placitantur pla- 
 cita, pleas are pleaded. Bracton, fol. 106. 
 Plaoitavit (he) pleaded. Y. B. M. 1 Bdw. II. 
 
 To litigate; to make the subject of a plea 
 or action; to implead or prosecute. Breve 
 Gul. Cohq. apud Hale, Hist. Com. Law, 120. 
 
 PLACITATOR (Law Lat. from placitare, q. 
 V.) In old records. A pleader. Cowell; 
 Spelman. 
 
 PLACITUM (Lat. from placere). 
 
 In Civil Law. Any agreement or bar- 
 gain; a law; a constitution or rescript of 
 the emperor; the decision of a judge or 
 award of arbitrators. Vicat; Calv. Lex.; 
 Dupin, Notions Sur le Droit. 
 
 In Old English Law '(Ger. plats; Lat. 
 
 plateis, i. e., fields or streets). An assem- 
 bly of all degrees of men, where the king 
 presided, and they consulted about the great 
 affairs of the kingdom. First held, as the 
 name would show, in the fields or street. 
 Cowell. 
 
 So on the continent. Hinc. de Ordlne Pal- 
 atii, c. 29; Bertinian, Annals of Prance, A. 
 D. 767; Const. Car. Mag. c. ix.; Hinc. Epist. 
 197, 227; Laws of the Longobards, passim. 
 
 A lord's court. Cowell. 
 
 An ordinary court. Placita Is the style of 
 the English courts at the beginning of the 
 record at nisi prius. In this sense, placita 
 are divided into pleas of the crown and com- 
 mon ,pleas (g. ■;;.) Cowell. 
 
 A trial or suit in court. Cowell. Jacobs. 
 
 A fine. Black Book of Exchequer, lib. 2, 
 tit. 13; 1 Hen. I. co. 12, 13. 
 
 A plea. This word is nomen generalissi- 
 mum, and refers to all the pleas in the case. 
 1 Saund. 388, note 6; Skin. 554; Garth. 
 334; Yelv. 65. By placitum is also under- 
 stood the subdivisions in abridgments and 
 other works, where the point decided in a 
 case is set down separately, and generally 
 numbered. In citing, it is abbreviated as 
 follows: Viner, Abr. "Abatement," pi. 3. 
 
 Placitum nominatum is the day appointed 
 for a criminal to appear and plead. 
 
 Placitum fractum is a day past or lost to 
 the defendant. 1 Hen. I. c. 59. 
 
 PLAGIARISM. The act of appropriating 
 the ideas and language of another, and pass- 
 ing them for one's own. When this amounts 
 to piracy, the party who has been guilty of 
 it will be enjoined when the original author 
 has a copyright. See "Copyright;" "Pira- 
 cy;" "Quotation;" Pardessus, Dr. Com. note 
 169. , 
 
PLAGIARIUS 
 
 (695) 
 
 PLEA 
 
 PLAGIARIUS (Lat.) In civil law. He who 
 fraudulently concealed a freeman or slave 
 who belonged to another. 
 
 The offense itself was called plagium. It 
 differed from larceny or theft in this, that 
 larceny always implies that the guilty party 
 intended to make a profit, whereas the pla- 
 i/i(irius did not intend to make any profit. 
 Dig. 48. 15. 6; Code? 9. 20. 9. 15. 
 
 PLAGIUM (Lat.) Man stealing; kidnap- 
 ping. This offense is the crimen plagii of 
 the Romans. Alls. Crim. Law, 280, 281. 
 
 PLAIDEUR (Old Fr.) A pleader; an ad- 
 vocate. 
 
 PLAIN STATEMENT. One that may be 
 readily understood, not merely by lawyers, 
 but by all who^ are sufficiently acquainted 
 with the language in which it is written. 5 
 Sandf. Ch. (N. Y.) 557, 564. 
 
 PLAINT. In English law. The exhibiting 
 of any action, real or personal, in writing. 
 The party making his plaint is called the 
 plaintiff. 
 
 PLAINTIFF. He who complains. He who, 
 in a personal action, seeks a remedy for an 
 injury to his rights. 3 Bl. Comm. 25. 
 
 In Code Practice. The person by whom 
 
 a civil action is brought. 
 
 PLAINTIFF IN ERROR. A party who 
 Sues out a writ of error; and this, whether 
 in the court below he was plaintiff or de- 
 fendant. 
 
 PLANT. The fixtures and tools necessary 
 to carry on any trade or mechanical busi- 
 ness. 77 Ga. 748. 
 
 PLANTATIONS. 
 
 In English Law. Colonies; depend- 
 encies. 1 Bl. Comm. 107. If this use of the 
 term was ever current in America, it is now 
 obsolete. See 7 Conn. 201. 
 
 In England, this word, as it is used in 
 St. 12 Car. II. c. 18, is never applied to any 
 of the British dominions in Europe, but only 
 to the colonies in the West Indies and Amer- 
 ica. 1 Marsh. Ins. bk. 1, c. 3, § 2, p. 64. 
 
 ^In American Law. A large estate, cul- 
 tivated chiefly by negroes, who live in a 
 distinct community on the estate, under the 
 control of the proprietor. 79 Ga. 721. 
 
 PLAT. A map of a piece of land, on which 
 are marked the courses and distances of the 
 different lines, and the quantity of land it 
 contains. 
 
 Such a plat may be given in evidence in 
 ascertaining the position of the land and 
 what is included, and may serve to settle the 
 figure of a survey and correct mistakes. 5 
 T. B. Mon. (Ky.) 160. See 17 Mass. 211; 5 
 Me. 219; 7 Me. 61; 4 Wheat. (U. S.) 444; 14 
 Mass. 149. 
 
 PLEA. 
 
 In Equity. A special answer showing 
 
 or relying upon one or more things as a 
 cause why the suit should be either dis- 
 missed, or delayed, or barred. Mitf. Eq. PI. 
 
 (Jeremy Ed.) 219; Cooper, Bq. PI. 223 ; Story, 
 Bq. PI. § 649. 
 
 The modes of making defense to a bill in 
 equity are said to be by "demurrer," which 
 demands of the court whether, from the mat- 
 ter apparent from the bill, the defendant 
 shall answer at all; by "plea," which, rest- 
 ing on the foundation of new matter of- 
 fered, demands whether the defendant shall 
 answer further; by "answer," which re- 
 sponds generally to the charges of the bill; 
 by "disclaimer," which denies any interest 
 in the matters in question. Mitf. Eq. PI. 
 (Jeremy Ed.) 13; 2 Story (U. S.) 59; Story, 
 Eq. PI. § 437. Pleas are said to be "pure" 
 which rely upon foreign matter to discharge 
 or stay the suit, and "anomalous" or "nega- 
 tive" which consist mainly of denials of the 
 substantial matters set forth in the bill. 
 Story, Eq. PI. §§ 651, 667; 2 Daniell, Ch. Pr. 
 97, 110; Beames, Eq. PI. 123; Adams, Eq. 
 236. 
 
 , (1) Pleas to the jurisdiction assert that 
 the court before which the cause is brought 
 is not the proper court to take cognizance of 
 the matter. 
 
 (2) Pleas to the person may be to the per- 
 son of the plaintiff or defendant. Those of 
 the former class are mainly outlawry, excom- 
 munication, popish recusant convict, which 
 are never pleaded in America, and very rare- 
 ly now in England; attainder, which is now 
 seldom pleaded (2 Atk. 399) ; alienage, which 
 is not a disability unless the matter respect 
 lands, when the alien may not hold them, 
 or he be an alien enemy not under license 
 (2 Ves. & B. 323); infancy, coverture, and 
 idiocy, which are pleadable as at law (see 
 "Abatement") ; bankruptcy and insolvency, 
 in which case all the facts necessary to es- 
 tablish the plaintiff as a legally declared 
 bankrupt must be set forth (3 Mer. 667), 
 though not necessarily as of the defendant's 
 own knowledge (Younge, 331; 4 Beav. 
 Rolls, 554; 1 Younge & C. 39); want of 
 character in which he Stoes, as that he is 
 not an administrator (2 Dick. 510; 1 Cox, 
 198), is not heir (2 Ves. & B. 159; 2 Brown, 
 Ch. 143; 3 Brown, Ch. 489), is not a cred- 
 itor (2 Sim. & S. 274), is not a partner (6 
 Madd. 61), as he pretends to be, that the 
 plaintiff named is a fictitious person, or 
 was dead at the commencement of the suit 
 (Story, Bq. PI. § 727). Those to the person 
 of the defendant may show that the defend- 
 ant is not the person he is alleged to be, or 
 does not sustain the character given by the 
 bill (6 Madd. 61; Rep. temp. Finch, 334), or 
 that he is bankrupt, to require the assignees 
 to be joined (Story, Bq. PI. § 732). These 
 pleas to the person are pleas in abatement, 
 or, at least, in the nature of pleas in abate- 
 ment. 
 
 (3) Pleas to the bill or the frame of the bill 
 object to the suit as framed, or contend that 
 it is unnecessary. These may be the pend- 
 ency of another suit, which is analogous to 
 the same plea at law, and is governed in 
 most respects by the same principles (Story, 
 Eq. PI. § 736; 2 Mylne & C. 602; 1 Phil. Ch. 
 82; 1 Ves. Jr. 544; 4 Ves. Jr. 357; 1 Sim. & S. 
 491; Mitf. Eq. PI. [Jeremy Ed.] 248; see 
 
PLEA 
 
 (696) 
 
 PLEA 
 
 "Lis Pendens"), and the other suit must be 
 in equity, and not at law (Beames, Bq. PI. 
 146-148) ; want of proper parties, which goes 
 to both discovery and relief, where both are 
 pralyed for (Story, Bq. PI. § 745; see 3 
 Younge & C. 447),ibut not to a bill of dis- 
 covery merely (2 Paige [N. Y.] 280; 3 Paige 
 [N. Y.] 222; 3 Cranch [U. S.] 220); a mul- 
 tiplicity of suits (1 P. Wms. 428; 2 Mason 
 [U. S.] 190) ; multifariousness, which should 
 be taken by way of demurrer, when the join- 
 ing or confession of the distinct matters 
 appears from the face of the bill, as it usu- 
 ally does (Story, Bq. PI. § 271). 
 
 (4) Pleas in bar rely upon a bar created by 
 statute, as, the statute of limitations (1 Sim. 
 & S. 4; 2 Sim. 45; 3 Sumn. [U. S.] 152), 
 which is a good plea in equity as well as at 
 law, and with similar exceptions (Coop. Bq. 
 PI. 253; see "Statute of Limitations"), the 
 statute of frauds, where its provisions apply 
 (1 Johns. Ch. [N. Y.] 425; 2 Johns. Ch. [N. 
 Y.] 275; 4 Ves. 24, 720; 2 Brown, Ch. 559), 
 or some other public or private statute (2 
 Story, Bq. Jur. § 768); matter of record or 
 as of record in some court, as, a common re- 
 covery (1 P. Wms. 754; 2 Freem. Ch. 180; 1 
 Vern. 13) ; a judgment at law (1 Keen, 456; 
 2 Mylne & C. 602; Story, Bq. PI. § 781, note), 
 the sentence or judgment of a foreign court 
 or a court not of record (12 Clark & P. 368; 
 14 Sim. 265; 3 Hare, 100; 1 Younge & C. 
 464), especially where its jurisdiction is of 
 a peculiar or exclusive nature (12 Ves. 307; 
 Ambl. 756; 2 How. [U. S.] 619), with limi- 
 tations in case of fraud (1 Ves. Jr. 284; 
 Story, Eq. PI. § 788), or a decree of the same 
 or another court of equity (Cas. temp. Talb. 
 217; 7 Johns. Ch. [N. Y.] 1; 2 Sim. & S. 
 464; 2 Younge & C. 43); matters purely in 
 pais, in which case the pleas may go to dis- 
 covery, relief, or either, both, or a part of 
 either, of which the principal (though not 
 the only) pleas are, account, stated or set- 
 tled (2 Atk. 1; 13 Price, 767; 7 Paige [N. 
 Y.] 573; 1 Mylne § K. 231), accord and sat- 
 isfaction (1 Hale," 564), award (2 Ves. & 
 B. 764), purchase for valuable consideration 
 (2 Sumn. [U. S.] 507; 2 Younge & C. 457), 
 release (3 P. Wms. 315), lapse of time, anal- 
 ogous to the statute of limitations (1 Ves. 
 Jr. 264; 10 Ves. 466; 1 Younge & C. 432, 
 453; 2 Jac. & W. 1; 1 Hare, 594; 1 Russ. & 
 M. 453; 2 Younge & C. 58; 1 Johns. Ch. [N. 
 Y.] 46; 10 Wheat. [U. S.] 152; 1 Schoales 
 & L 721; 6 Madd. 61; 3 Paige [N. Y.] 273; 
 5 Paige [N. Y.] 26; 7 Paige [N. Y.] 62), title 
 in the defendant (Story, Bq. PI. § 812). 
 
 At Law. The defendant's answer by 
 
 matter of fact to the plaintiff's declaration, 
 as distinguished from a demurrer, which is 
 an answer by matter of law. 
 
 It includes as well the denial of the truth 
 of the allegations on which the plaintiff re- 
 lies, as the statement of facts on which the 
 defendant relies. In an ancient use, it de- 
 noted action, and is still used sometimes in 
 that sense; as, "summoned to answer in a 
 plea of trespass." Steph. PI. 38, 39, note; 
 Warren, Law Stud. 272, note (w) ; Oliver, 
 Prec. 97. In a popular, and not legal, 
 sense, the word is used to denote a forensic 
 
 argument. It was strictly applicable in a 
 kindred sense when the pleadings were con- 
 ducted orally by the counsel. Steph. PI. Ap- 
 pend, note 1. 
 
 Pleas are either dilatory, which tend to 
 defeat the particular action to which they 
 apply on account of its being brought before 
 the wrong court, by or against the wrong 
 person or in an improper form, or peremp- 
 tory, which impugn the right of action alto- 
 gether, or which answer the plaintiff's allega- 
 tions of right conclusively. Pleas are also 
 said to be to the jurisdiction of the court, 
 in suspension of the action, in abatement of 
 the writ, in bar of the action. The first 
 three classes are dilatory, the last peremp- 
 tory. Steph. PI. 63; 1 Chit. PI. 425; Lawes, 
 PI. 36. 
 
 Pleas are of various kinds, — in abatement 
 (see "Abatement"); in avoidance, called, al- 
 so, "confession and avoidance," which ad- 
 mits, in words or in effect, the truth of the 
 matters contained in the declaration, and al- 
 leges some new matter to avoid the effect 
 of it, and show that the plaintiff is, not- 
 withstanding, not entitled to his action (1 
 Chit. PL 540; Lawes, PI. 122); in bar, which 
 deny that the plaintiff has any cause of ac- 
 tion (1 Chit. PI. 407; Co. Litt. 303b). The 
 term is often used in a restricted sense to 
 denote what are with propriety called "spe- 
 cial pleas in bar." These pleas are of two 
 kinds, — the general' issue, and special pleas 
 in bar. 
 
 The parts of a plea are: First, the title 
 of the court. Second, the title of the term. 
 Third, the names of the parties in the mar- 
 gin. These, however, do not constitute any 
 substantial part of the plea. The surnames 
 only are usually inserted, and that of the 
 defendant precedes the plaintiff's; as, "Roe 
 ads. Doe." Fourth, the commencement, which 
 includes the statement of the name of the 
 defendant, the appearance, the defense (see 
 "Defense"), the actio non (see "Actio Non"). 
 Fifth, the body, which may contain the in- 
 ducement, the protestation (see "Protesta- 
 tion"), ground of defense, quae est eadem, 
 the traverse. Sixth, the conclusion. 
 
 (1) Dilatory pleas go to destroy the partic- 
 ular action, but do not affect the right of ac- 
 tion in the plaintiff, and hence delay the 
 decision of the cause upon its merits. Gould, 
 PI. c. ii. § 33. This class includes pleas to 
 the jurisdiction, to the disability of the par- 
 ties, and all pleas in abatement. All dila- 
 tory pleas must he pleaded with the greatest 
 certainty, must contain a distinct, clear, and 
 positive averment of all material facts, and 
 must, in general, enable the plaintiff to cor- 
 rect the deficiency or error pleaded to. 1 
 Chit. PI. 365. See "Abatement;" "Jurisdic- 
 tion." 
 
 (2) Pleas in discharge admit the demand 
 of the plaintiff, and show that it has been 
 discharged by some matter of fact. Such 
 are pleas of judgment, release, and the like. 
 
 (3) Pleas in excuse admit the demand or 
 complaint stated in the declaration, but ex- 
 cuse the noncompliance with the plaintiff's 
 claim, or the commission of the act of which 
 he complains, on account of the defendant's 
 
PLEA IN ABATEMENT 
 
 (697) 
 
 PLEADINGS 
 
 having done all in his power to satisfy the 
 former, or not having been the culpable au- 
 thor of the latter. A plea of tender is an 
 example of the former, and a plea of son as- 
 sault demesne an instance of the latter. 
 
 (4) Foreign pleas go to the jurisdiction, 
 and their effect is to remove the action from 
 the county in which the venue is originally 
 laid. Garth. 402. Previous to the statute of 
 Anne, an affidavit was required. 5 Mod. 335; 
 Garth. 402; 1 Saund. PI. 98, note 1; Viner, 
 Abr. "Foreign Pleas;" 1 Chit. PI. 382; Bac. 
 Abr. 'Abatement" (R). 
 
 (5) Pleas of justification, which assert 
 that the defendant has purposely done the 
 act of which the plaintiff complains, and in 
 the exercise of his legal rights. 8 Term R. 
 78; 3 Wils. 71. No person is bound to jus- 
 tify who is not prima facie a wrongdoer. 1 
 Leon. 301; 2 Leon. 83; Gowp. 478; 4 Pick. 
 (Mass.) 126; 13 Johns. (N. Y.) 443, 579; 1 
 Chit. PI. 436. 
 
 (6) Pleas puis darrein continuance, which 
 introduce new matter of defense, which has 
 arisen or come to the plaintiff's knowledge 
 since the last continuance. In most of the 
 states, the actual continuance of a cause 
 from one term to another, or from one par- 
 ticular day in term to another day in the 
 same term, is practically done away with, 
 and the prescribed times for pleading are 
 fixed without any reference to terms of court. 
 Still, this right of a defendant to change his 
 plea so as to avail himself of facts arising 
 during the course of the litigation remains 
 unimpaired; and though there be no contin- 
 uance, the plea is still called a plea puis dar- 
 rein continuance, meaning; now, a plea up- 
 on facts arising since the last stage of the 
 suit. 
 
 In Criminal Law. The formal answer 
 
 of the defendant to the indictment. 
 
 Pleas are either general or special; the 
 general pleas being "guilty," "not guilty," 
 and "nollo contendere," and all other pleas 
 being special. Special pleas are either in 
 bar, being, if found true, a bar to further 
 prosecution, or in abatement, those which go 
 merely to abate or suspend the proceeding. 
 See "Pleading." 
 
 PLEA IN ABATEIVIENT. See "Plea." 
 
 PLEA IN BAR. See "Plea." 
 
 PLEA SIDE. The plea side of a court is 
 that branch or department of the court which 
 entertains or takes cognizance of civil ac- 
 tions and suits, as distinguished from its 
 criminal or crown department. Thus, the 
 court of queen's bench is said to have a plea 
 side and a crown or criminal side; the one 
 branch or department of it being devoted 
 to the cognizance of civil actions, the other 
 to criminal proceedings and matters pecul- 
 iarly concerning the crown. So the court of 
 exchequer is said to have a plea side and a 
 crown side; the one being appropriated to 
 civil actions, the other to matters of revenue. 
 Brown. 
 
 PLEAD ISSUABLY. To plead in such 
 manner as to make an issue of law and fact. 
 
 PLEAD OVER. To interpose a general 
 plea after a special plea or demurrer has 
 been disposed of. 
 
 PLEADER (Law Fr. plecidor, /ilcdor; old 
 Fr. pleideoir; Law Lat. placitans advocatus) . 
 A person professionally employed to man- 
 age another's cause for him, particularly to 
 plead orally, or argue for him in court. The 
 use of professional pleaders or advocates 
 may be traced, among some of the conti- 
 nental nations, to a period extremely re- 
 mote. Steph. PI. Append, note (8). In the 
 assizes of Jerusalem, the term "pleader" 
 (pledeoir), is used as nearly synonymous 
 with "counsel" (conseill). 
 
 PLEADING. 
 
 In Chancery Practice. Consists in mak- 
 ing the formal written allegations or state- 
 ments of the respective parties on the rec- 
 ord to maintain the suit, or to defeat it, of 
 which, when contested in matters of fact, they 
 propose to offer proofs, and in matters of 
 law to offer arguments to the court. Story, 
 Eq. PI. § 4, note. The substantial object of 
 pleading is the same, but the forms and 
 rules of pleading are very different, at law 
 and in equity. 
 
 In Civil Practice. The stating in a 
 
 logical and legal form the facts which con- 
 stitute the plaintiff's cause of action or the 
 defendant's ground of defense. It is the 
 formal mode of alleging that on the record 
 which constitutes the support or the defense 
 of the party in evidence. 3 Term R. 159; 
 Doug. 278; Comyn, Dig. "Pleader" (A); 
 Bac. Abr. "Pleas and Pleading;" Gowp. 682. 
 Pleading is used to denote the act of making 
 the pleadings. 
 
 ' In Criminal Practice. The rules of 
 
 pleading are the same as in civil practice. 
 There is, however, less liberty of amendment 
 of the indictment. The order of the defend- 
 ant's pleading is as follows: First, to the 
 jurisdiction; second, in abatement; third, 
 special pleas in bar, as former jeopardy or 
 pardon; fourth, the general issue. 
 
 See, generally, Lawes, Chitty, Stephen, and 
 Gould on Pleading; 3 Bl. Gomm. 301 et seq., 
 and notes; Co. Lift. 303; Comyn, Dig. 
 "Pleader;" Bac. Abr. "Plea and Pleading." 
 
 , PLEADING, SPECIAL. By special plead- 
 ing is meant the allegation of special or new 
 matter, as distinguished from a direct denial 
 of matter previously alleged on the opposite 
 side. Gould, PI. c. 1, § 18. See "Special 
 Pleading." 
 
 PLEADINGS. 
 
 In Cliancery Practice. The written al- 
 legations of the respective parties in the 
 suit. The pleadings in equity are less formal 
 than those at common law. 
 
 The parts of the pleadings are (1) the 
 
 bill, which contains the plaintiff's statement 
 
 of his case, or information, where the suit is 
 
 brought by a public officer in behalf of the 
 
 ^igovereign; (2) the demurrer, by which the 
 
 , [defendant demands judgment of the court, 
 
 1 whether he shall be compelled to answer the 
 
PLEAS OF THE CROWN 
 
 (698) 
 
 PLEDGE 
 
 bill or not; (3) the plea, whereby he shows 
 some cause why the suit should be dismissed 
 or barred; (4) the answer, which, contro- 
 verting the case stated by the bill, confesses 
 and avoids it, or traverses and denies the 
 material allegations in the bill, or, admit- 
 ting the case made by the bill, submits to 
 the judgment of the court upon it, or relies 
 upon a new case, or upon new matter stated 
 in the answer, or upon both; (5) disclaimer, 
 which seeks at once a termination of the 
 suit by the defendants, disclaiming all right 
 and interest in the matter sought by the 
 bill. Story, Eq. PI. § 546; MItf. Bq. PI. (Jer- 
 emy Ed.) 13, 106; Cooper, Bq. PI. 108; 2 Story 
 (U. S.) 59. 
 
 In Common-Law Civil Practice. The 
 
 statements of the parties, in legal and prop- 
 er manner, of the causes of action and 
 grounds, of defense. The result of pleading. 
 They were formerly made by the parties or 
 their counsel, orally, in open court, under 
 the control of the judge. They were then 
 called the "parofe." 3 Bl. Comm. 293; 2 
 Reeve, Hist. Eng. Law, 267. 
 
 The regular parts are (1) the declaration 
 or count: (2) the plea, which is either to the 
 jurisdiction of the court, or suspending the 
 action, as in the case of a parol demurrer, 
 or in abatement, or in bar of the action, or 
 in replevin, an avowry or cognizance; (3) 
 the replication, and, in case of an evasive 
 plea, a new assignment, or, in replevin, the 
 plea in bar to the avowry or cognizance; 
 
 (4) the rejoinder, or, in replevin, the repli- 
 cation to the plea in bar; (4) the sur-re- 
 jqinder, being in replevin the rejoinder; (6) 
 the rebutter; (7) the sur-rebutter (Viner, 
 Abr. "Pleas and Pleading" [C] ; Bac. Abr. 
 "Pleas and Pleadings" [A]); (8) pleas puis 
 darrein continuance, when the matter of de- 
 fense arises pending the suit. 
 
 The irregular or collateral parts of plead- 
 ing are stated to be (1) demurrers to any 
 part of the pleadings above mentioned; (2) 
 demurrers to evidence given at trials; (3) 
 bills of exceptions; (4) pleas in scire facias; 
 
 (5) and pleas in error. Viner. Abr. "Pleas 
 and Pleadings" (C); Bouv. Inst. Index. 
 
 In Civil Practice under the Codes. 
 
 The pleadings are (1) the complaint, (2) the 
 answer, (3) the reply, and (4) the demur- 
 rer, which lies to either complaint, answer, 
 or reply. 
 
 In Criminal Practice. The pleadings 
 
 are (1) the indictment; (2) the plea, either 
 special or general. 
 
 PLEAS OF THE CROWN. In English law. 
 A phrase now 'employed to signify criminal 
 causes in which the king is a party. For- 
 merly it signified royal causes for offenses of 
 a greater magnitude than mere misdemean- 
 ors. 
 
 These were left to be tried in the courts of 
 the barons; whereas the greater offenses, or 
 royal causes, were to be tried in the king's 
 courts, under the appellation of "pleas of the 
 crown." 1 Robertson, Hist. Charles V. 48. 
 
 PLEAS ROLL. In English practice. A 
 record which contains the declaration, plea. 
 
 replication, rejoinder, and other pleadings,, 
 and the issue. Eunom. Dial. 2, § 29, p. IIL 
 
 PLEBEIAN. One who is classed among; 
 the common people, as distinguished from 
 the nobles. 
 
 PLEBEYOS. In Spanish law. Commons; 
 those who exercise any trade, or who culti- 
 vate the soil. White, New Recop. bk. 1, tit> 
 5, c. 3, § 6, and note. 
 
 PLEBISCITE. A submission to the popu- 
 lar vote of a law or governmental policy. 
 
 PLEBISCITUM (Lat.) In Roman law. A" 
 law established by the people (pZeSs), on 
 the proposal of a popular magistrate, as a. 
 tribune. Vlcat; Calv. Lex.; Mackeld. Civ. 
 Law, §§ 27, 37. 
 
 PLEBITY. The plebeians. 
 
 PLEBS (Lat.) In the Roman law. The 
 commonalty, or citizens, exclusive of the 
 patricians and senators. Plebis appellatione, 
 sine patriciis et senatoriius, caeteri cive^ 
 significantur. Inst. 1. 2. 4; Dig. 50. 16. 
 238, pr. 
 
 PLEDABLE (Law Fr.) That may be 
 brought or conducted, as an action, or 
 "plea," as it was formerly called. Britt. 
 c. 32. 
 
 PLEDGE, or PAWN. A bailment of per- 
 sonal property as security for some debt or 
 engagement. 41 N. Y. 241. 
 
 A deposit of personal property as security, • 
 with an implied power of sale in case of de- 
 fault. Jones, PI. § 1. 
 
 A pledge or pawn (Lat. pigniis), accord- 
 ing to Story, is a bailment of personal prop- 
 erty as security for some debt or engage- 
 ment. Story, Bailm. § 286, which see for the 
 less comprehensive definitions of Sir Wm. 
 Jones, Lord Holt, Pothier, etc. Domat broad- 
 ly defines it as an appropriation of the thing 
 given for the security of an engagement. 
 But the term is commonly used as Sir Wm. 
 Jones defines it, to wit, as a bailment of 
 goods by a debtor to his creditor, to be kept 
 till the debt is discharged. Jones, Bailm. 
 117; 2 Ld. Raym. 909; Poth. de Naut. art. 
 prelim. 1; Civ. Code, art. 2071; Domat, bk. 
 3, tit. 1, § 1, note 1; Civ. Code La. art. 
 ^100; 6 Ired. (N. C.) 309. The pledgee se- 
 cures his debt by the bailment, and the 
 pledgor obtains credit or other advantage. 
 See 1 Pars. Cont. 591 et seq. 
 
 Pledge and pawn. At common law, the 
 terms were synonymous, but in modern 
 usage "pawn" generally indicates the pledg- 
 ing of goods with a pawnbroker (g. v.) 
 
 Pledge and mortgage. A pledge is distin- 
 guished from a chattel mortgage in that It 
 depends for its validity on possession of the 
 subject matter. 
 
 Pledge and hypothecation. Hypothecation 
 {g. V.) is a special form of pledge wherein 
 the possession remains in the debtor. 
 
 In Louisiana. There are two kinds of 
 
 pledges, — the pawn and the antichresis. The 
 former relates, to movable securities, and the 
 
PLEDGEE 
 
 (699) 
 
 PLENUM DOMINIUM 
 
 latter to immovables. If a creditor have not 
 a right to enter on the land and reap the 
 fruits, the security is not an antichresis. 3 
 La. 157. A pledge of negotiable paper is not 
 valid against third parties without trans- 
 fer from debtor to creditor. 2 La. 387. See, 
 in general, 13 Pet. (U. S.) 351; 5 Mart. (La.; 
 N. S.) 618; 18 La. 543; 1 La. Ann. 340; 2 La. 
 Ann. 872. 
 
 PLEDGEE. He to whom a thing is pledged. 
 
 PLEDGERY. Suretyship. 
 
 PLEDGES. In pleading. Those persons 
 who became sureties for the plaintiff's prose- 
 cution of the suit. Their names were an- 
 ciently appended at the foot of the declara- 
 tion. In time it became purely a formal 
 matter, because the plaintiff was no longer 
 liable to be amerced for a false claim, and 
 the fictitious persons John Doe and Richard 
 Roe became the universal pledges, or they 
 might be omitted altogether (1 Tidd, Prac. 
 455; Archb. Civ. PI. 171), or inserted at 
 any time before judgment (4 Johns. [N. Y.] 
 90), and are now omitted. 
 
 PLEDGES TO RESTORE. In England, 
 before the plaintiff in foreign attachment can 
 issue execution against the property in the 
 hands of the garnishee, he must find "pledg- 
 es to restore," consisting of two household- 
 ers, who enter into a recognizance for the 
 restoration of the property, as a security for 
 the protection of the defendant; for, as the 
 plaintiff's debt is not proved in any stage of 
 the proceedings, the court guards the rights 
 of the absent defendant by taking security 
 on his behalf, so that, if he should after- 
 wards disprove the plaintiff's claim, he may 
 obtain restitution' of the property attached. 
 Brand, For. Attachm. 93. 
 
 PLEDGOR. The party who makes a pledge. 
 
 PLEE (Law Fr.) In old English law. An 
 action or suit; a "plea," in the ancient 
 sense of the word. Parsonels plees pleda- 
 bles par attachments, personal actions which 
 may be prosecuted by attachments. Britt. 
 c. 32. En plees realx, et aiixi en plees per- 
 sonals, in real actions, and also in personal 
 actions. Lift. § 464. 
 
 A plea, in the modern sense. Plee en 
 harre, a plea in bar. Litt. § 492. 
 
 PLEGIABILIS (Law Lat.) In old English 
 law. That may be pledged; the subject of 
 pledge or security. Fleta, lib. 1, c. 20, § 98. 
 
 PLEGII DE PROSEQUENDO. Pledges to 
 prosecute with effect an action of replevin. 
 
 PLEGII DE RETORNO HABENDO. 
 
 Pledges to return the subject of distress, 
 should the right be determined against the 
 party bringing the action of replevin. 3 
 Steph. Comm. (7th Ed.) 422, note. 
 
 PLEGIIS ACQUIETANDIS, WRIT DE. 
 
 The name of an ancient writ in the English 
 law, which lies where a man becomes pledge 
 or surety for another to pay a certain sum 
 of money at a certain day. After the day. 
 
 if the debtor does not pay the debt, and the 
 surety be compelled to pay, he shall have 
 this writ to compel the debtor to pay the 
 same. Fitzh. Nat. Brev. 321. 
 
 PLENA AETAS. Of full age. 
 
 PLENA ET CELERIS JUSTITIA FIAT 
 parti bus. Let full and speedy justice be done 
 to the parties. 4 Inst. 67. 
 
 PLENA FORISFACTURA. A forfeiture of 
 all that one possesses. 
 
 PLENA PROBATIO. In civil law. A term 
 used to signify full proof, in contradistinc- 
 tion to semi-plena prohatio, which is only a 
 presumption. Code, 4. 19. 5. et seq.; 1 
 Greenl. Ev. § 119. 
 
 PLENARTY. In ecclesiastical law. Signi- 
 fies that a benefice is full. See "Avoidance." 
 
 PLENARY. Full; complete. 
 
 In the courts of admiralty, and in the 
 English ecclesiastical courts, causes or suits 
 in respect of the different course of proceed- 
 ings in each are termed "plenary" or "sum- 
 mary." Plenary, or full and formal, suits 
 are those in which the proceedings must be 
 full and forma,l; the term "summary" is ap- 
 plied to those causes where the proceedings 
 are more succinct and less formal. 2 Chit. 
 Prac. 481. 
 
 PLENE ADMINISTRAVIT (Lat. he has 
 fully administered). In pleading. A plea 
 in bar entered by an executor or administra- 
 tor, by which he affirms that he had not in 
 his possession at the time of the commence- 
 ment of the suit, nor has had at any time 
 since, any goods of the deceased to be ad- 
 ministered. When the plaintiff replies that 
 the defendant had goods, etc., in his posses- 
 sion at that time, and the parties join issue, 
 the burden of the proof will be on the 
 plaintiff. See 15 Johns. (N. Y.) 323; 6 
 Term R. 10; 1 Barn. & Aid. 254; 11 Viner, 
 Abr. 349; 12 Viner, Abr. 185; 2 Phil. Ev. 295; 
 6 Comyn, Dig. 311. 
 
 PLENEADIVIINISTRAVITPRAETER(Lat. 
 
 he has fully administered except). In plead- 
 ing. A plea by which a defendant executor 
 or administrator admits that there is a bal- 
 ance remaining in his hands unadministered. 
 
 PLENE COMPUTAVIT (Lat. he has fully 
 accounted). In pleading. A plea in an ac- 
 tion of account render, by which the de- 
 fendant avers that he has fully accounted. 
 Bac. Abr. "Accompt" (E). This plea does 
 not admit the liability of the defendant to 
 account. 15 Serg. & R. (Pa.) 153. 
 
 PLENIPOTENTIARY. Possessing full pow- 
 ers; as, a minister plenipotentiary is one 
 authorized fully to settle the matters con- 
 nected with his mission, subject, however, to 
 the ratification of the government by which 
 he is authorized. 
 
 PLENUM DOMINIUM (Lat.) The unlim- 
 ited right which the owner has to use his 
 property as he deems proper, without ac- 
 countability to any one. 
 
PLEYTO 
 
 (700) 
 
 POBLADOR 
 
 PLEYTO. In Spanish law. The pleadings 
 in a cause. White, New Recop. bk. 3, tit. 7. 
 
 PLIGHT. An old English word, used some- 
 times for the estate with the habit and qual- 
 ity of the land. Co. Litt. 221. It extends 
 to a rent charge, and to a possibility of 
 dower. Id.; 1 RoUe, Abr. 447; Litt. § 289. 
 
 PL'IT'M. A contraction of placitmn. Pl'ito, 
 of placito. 1 Inst. CI. 11. 
 
 PLOUGH BOTE. An allowance made to a 
 rural tenant of wood sufficient for ploughs, 
 harrows, carts, and other instruments of hus- 
 bandry^. 
 
 PLOUGH LAND. In old English law. An 
 uncertain quantity of land. According to 
 some opinions, it contains one hundred and 
 twenty acres. Co. Litt. 69a. 
 
 PLOUGH SILVER. Money paid by ten- 
 ants in comjjosition of a duty to plough. 
 
 PLUMBATURA (Lat. from plumbum, 
 lead). In the civil law. Soldering. Dig. 
 6. 1. 23. 5. 
 
 PLUMBUM (Lat.) In the civil law. Lead. 
 Dig. 50. 16. 242. 2. 
 
 PLUNDER. The capture of personal prop- 
 erty on land by a public enemy, with a view 
 of making it his own. The property so cap- 
 tured is called "plunder." 
 
 The taking by open force, as by pirates. 
 
 Jt has been used in the sense of aggra- 
 vated and open larceny. 8 Fed. 232. 
 
 PLUNDERAGE. In maritime law. The 
 embezzlement of goods on board of a ship is 
 known by the name of "plunderage." 
 
 The rule of the maritime law in such cases 
 is that the whole crew shall be responsible 
 for the property thus embezzled, because 
 there must be some negligence in finding out 
 the depredator. Abb. Shipp. 457; 3 Johns. 
 (N. Y.) 17; 1 Pet. Adm. (U. S.) 200, 239, 243; 
 4 Bos. & P. 347. 
 
 PLURALIS NUMERUS EST DUOBUS 
 contentus. The plural number is contained 
 in two. 1 Rolle, 476. 
 
 PLURALITER. In the plural; plurally. 
 
 PLURALITY. The greatest number of 
 votes given for any one person. 
 
 Plurality has the meaning, as used in gov- 
 ernmental law, given above. Thus, if there 
 are three candidates, for whom four hundred, 
 three hundred and fifty, and two hundred 
 and fifty votes are respectively given, the 
 one receiving four hundred has a plurality, 
 while five hundred and one would be a ma- 
 jority of the votes cast. 
 
 PLURES COHAEREDES SUNT QUASI 
 unum corpus, propter unltatem juris quod 
 habent. Several coheirs are as one body, by 
 reason of the unity of right which they pos- 
 sess. Co. Litt. 163. 
 
 PLURES PARTICIPES SUNT QUASI 
 unum corpus, in eo quod unum jus habent. 
 Several part owners are as one body, by 
 
 reason of the unity of their rights. Co. 
 Litt. 164. 
 
 PLURIES (Lat. many times). A writ is- 
 sued subsequently to a first and second 
 (alias) of the same kind, which have proved 
 ineffectual. The name is given to it from 
 the word pluries in the Latin form of the 
 writ: "We command you, as we have often 
 (pluries) commanded you before," which 
 distinguishes it from those which have gone 
 before. Pluries is variously translated, in 
 the modern forms of writs, by "formerly," 
 "more than once," "often." The next writ 
 to the pluries is called the "second pluries," 
 and so on. 3 Bl. Comm. 283, Append. 15; 
 Nat. Brev. 33. 
 
 PLURIS PETITIO (Lat.) In Scotch prac- 
 tice. An excessive demand. 
 
 PLUS EXEMPLA QUAM PECCATA NO- 
 cent. Examples hurt more than offenses. 
 
 PLUS PECCAT AUCTOR QUAM ACTOR. 
 The Instigator of a crime is worse than he 
 who perpetrates it. 5 Coke, 99. 
 
 PLUS PETITIO. In Roman law. A phrase 
 denoting the offense of claiming more than 
 was just in one's pleadings. This "more" 
 might be claimed in four different respects, 
 viz.: (1) Re, i. e., in amount (e. g., £50 
 for £5); (2) loco, i. e., in place (e. g., de- 
 livery at some place more difficult to effect 
 than the place specified) ; (3) tempore, i. e., 
 in time (e. g., claiming payment on the 1st 
 of August of what is not due till the 1st of 
 September); and (4) causa, i. e., in quality 
 (e. g., claiming a dozen of champagne, when 
 the contract was only for a dozen of wine 
 generally). Prior to Justinian's time, this 
 offense was in general fatal to the action; 
 but, under the legislation of the emperors 
 Zeno and Justinian, the offense (if re, loco, 
 or causa) exposed the party to the payment 
 of three times the damage, if any, sustained 
 by the other side, and (if tempore) obliged 
 him to postpone his action for double the 
 time, and to pay the costs of his first action 
 before commencing a second. Brown. 
 
 PLUSVALETCONSUETUDO QUAM CON- 
 cessio. Custom is more powerful than grant. 
 
 PLUS VALET UNUS OCULATUS TES- 
 tls, quam auriti decem. One eye witness is 
 better than ten ear ones. 4 Inst. 279. 
 
 PLUS VIDENT OCULI QUAM OCULUS. 
 
 Eyes see more than one eye. 4 Inst. 160. 
 
 PO. LO. SUO. An old abbreviation for the 
 words "ponit loco suo," put in his place, used 
 in warrants of attorney. Towns. PI. 431. 
 
 POACHING. Unlawful taking of game 
 from the land of another. Unlawfully enter- 
 ing land, in nighttime, armed, with intent to 
 destroy game. 1 Russ. Crimes, 469; 2 Staph. 
 Comm. 82; 2 Chit. St. 221-245. 
 
 POBLADOR. In Spanish law. A coloniz- 
 er; he who peoples; the founder of a colony. 
 
POCKET JUDGMENT 
 
 (701) 
 
 POLICE 
 
 POCKET JUDGMENT. A statute mer- 
 chant which was enforceable at any time 
 after nonpayment on the day assigned, with- 
 out further proceedings. Wharton. 
 
 POCKET SHERIFF. In English law. A 
 sheriff appointed by sole authority of the 
 crown, not being one of the three nominated 
 by the judges in the exchequer. 1 Bl. Comm. 
 342*. 
 
 POENA AD PAUCOS, METUS AD OMNES 
 perveniat. If punishment be inflicted on a 
 few, a dread comes to all. 
 
 POENA CORPORALIS. Corporal punish- 
 ment. 
 
 POENA EX DELICTO DEFUNCTl, HAE- 
 res teneri non debet. The heir ought not to 
 be bound in a penalty inflicted for the crime 
 of the ancestor. 2 Inst. 198. 
 
 POENA NON POTEST, CULPA PEREN- 
 nis erit. Punishment cannot be, crime will 
 be, perpetual. 21 Viner, Abr. 271. 
 
 POENA PILLORALIS. In old English law. 
 Punishment of the pillory. Pleta, lib. 1, c. 
 38, § 11. 
 
 POENAE POTIUS MOLLIENDAE QUAM 
 exasperandae sunt. Punishments should 
 rather be softened than aggravated. 3 Inst. 
 220. 
 
 POENAE SINT RESTRINGENDAE. Pun- 
 ishments should be restrained. Jenk. Cent. 
 Cas. 29. 
 
 POENAE SUOS TENERE DEBET ACTO- 
 
 res et non alios. Punishment ought to be 
 inflicted upon the guilty, and not upon 
 others. Bracton, 380b; Fleta, lib. 1, c. 38, § 
 12; Id. lib. 4, c. 17, § 17. 
 
 POENALIS (Lat. from poena). In the civil 
 law. Penal; imposing a penalty; claiming 
 or enforcing a penalty. Actiones poeiiales, 
 actions for penalties; penal actions. Inst. 
 4. 6. 12. 
 
 POENITENTIA (Lat. from poenitere, to re- 
 pent). In the civil law. Repentance; a 
 change of mind or purpose; the rescinding 
 of a contract. 
 
 POI N Dl NG. In Scotch law. That diligence 
 (q. V.) affecting movable subjects by which 
 their property Is carried directly to the cred- 
 itor. Poinding is real or personal. Ersk. 
 Inst. 3. 6. 11. 
 
 Personal. Poinding of the goods be- 
 longing to the debtor, and of those goods 
 only. 
 
 It may have for its warrant either letters 
 of horning, containing a clause for poinding, 
 and then it is executed by messengers; or 
 precepts of poinding, granted by sheriffs, 
 commissaries, etc., which are executed by 
 their proper officers. No cattle pertaining to 
 the plough, nor instruments of tillage, can 
 be poinded in the time of laboring or tilling 
 the ground, unless where the debtor has no 
 other goods that may be poinded. Ersk. 
 
 Inst. 3. 6. 11. This process is somewhat 
 similar to distress. 
 
 Real. Poindingof the ground. Though 
 
 it be properly a diligence, this is generally 
 considered by lawyers as a species of real 
 action, and is so called to distinguish it 
 from personal poinding, which is founded 
 merely on an obligation to pay. 
 
 Every dehitum fundi, whether legal or 
 conventional, is a foundation for this action. 
 It is therefore competent to all creditors in 
 debts which make a real burden on lands. 
 As it proceeds on a real right, it may be di- 
 rected against all goods that can be found 
 on the lands burdened; but goods brought 
 upon the ground by strangers are not sub- 
 ject to this diligence. Even the goods of a 
 tenant cannot be poinded for more than his 
 term's rent. Ersk. Inst. 4. 1. 3. 
 
 POINT. A single distinct proposition or 
 principle of law. 
 
 POINT RESERVED. A point or question 
 of law which the court, not being fully satis- 
 fied how to decide, in the hurried trial of a 
 cause, rules in favor of the party offering it, 
 but subject to revision on a motion for a 
 new trial. If, after argument, it be found 
 to have been ruled correctly, the verdict is 
 supported; if otherwise, it is set aside. 
 
 POISON. In medical jurisprudence. A 
 substance having an inherent deleterious 
 property which renders it, when taken into 
 the system, capable of destroying life. 
 Whart. & S. Med. Jur. § 493; Tayl. Poisons 
 (2d Am. Ed.) 18. 
 
 POLE. A measure of length, equal to five 
 yards and a half. 
 
 POLICE. That species of superintendence 
 by magistrates which has principally for its 
 object the maintenance of public tranquillity 
 among the citizens. The officers who are ap- 
 pointed for this purpose are also called the 
 police. 
 
 "Police is in general a system of precau- 
 tion either for the prevention of crime or of 
 calamities." Bentham. 
 
 The due regulation and domestic order of 
 the kingdom, whereby the individuals of the 
 state, like members of a well-governed fam- 
 ily, are bound to conform their general be- 
 havior to the rules of propriety. 4 Bl. Comm. 
 162. 
 
 The word "police" has three significations. 
 The first relates to the measures which are 
 adopted to keep order, the laws and ordi- 
 nances on cleanliness, health, the markets, 
 etc. The second has for its object to pro- 
 cure to the authorities the means of de- 
 tecting even the smallest attempts to com- 
 mit crime, in order that the guilty may be 
 arrested before their plans are carried into 
 execution, and delivered over to the justice 
 of the country. The third comprehends the 
 laws, ordinances, and other measures which 
 require the citizens to exercise their rights 
 in a particular form. 
 
 Police has also been divided into "adminis- 
 trative police," which has for its object to 
 
POLICE JURY 
 
 (702) 
 
 POLL 
 
 maintain constantly public order in every 
 part of the general administration; and "Ju- 
 diciary police," which is intended principally 
 to prevent crimes by punishing the crim- 
 inals. Its object is to punish crimes which 
 the administrative police has not been able 
 to prevent. 
 
 POLICE JURY. In Louisiana. A name 
 given to certain officers who collectively ex- 
 ercise jurisdiction in certain cases of police; 
 as, levying taxes, regulating roads, etc. 
 
 POLICE JUSTICE. A magistrate having 
 criminal jurisdiction of minor offenses sim- 
 ilar to that of a justice of the peace, but 
 usually a city officer. 
 
 POLICE POWER. The general power of 
 government in the administration of its po- 
 lice (g. v.), to preserve and promote the 
 welfare of the public, even at the expense of 
 infringing the private rights dt individuals. 
 Cooley, Const. Lim. 704. 
 
 It is an exception to the right of the citi- 
 zen to conduct himself and use his property 
 in such manner as he may see fit. 
 
 "It involves a provision and means of en- 
 forcing the legal maxim which underlies all 
 law, — sic utere tuo ut alienum non laedas. 
 The power of the government to impose this 
 restraint is called 'police power.' " Tiede- 
 man, Lim. Police Power, § 1. 
 
 "The police power of a state extends to 
 the protection of the lives, limbs, health, 
 comfort, and quiet of all persons, and to the 
 protection of all property within the state, 
 and hence to the making of all regulations 
 promotive of domestic order, morals, health, 
 and safety." 95 U. S. 465. 
 
 POLICY. In insurance. The instrument 
 whereby insurance is made by an under- 
 writer in favor of an assured, expressed, im- 
 plied, or intended, against some risk, peril, 
 or contingency in reference to some subject. 
 It is usually either marine, or against fire, or 
 on a life. 
 
 (1) An interest policy is one where the 
 insured has a real, substantial, assignable in- 
 terest in the thing insured. 
 
 (2) An open policy is one on which the 
 value is to be proved by the assured. 1 Phil. 
 Ins. §§ 4, 6, 7, 27, 439, 948, 1178. By an 
 "open policy" is also sometimes meant, in 
 the United States, one in which an aggre- 
 gate amount is expressed in the body of the 
 policy, and the specific amounts and sub- 
 jects are to be indorsed from time to time. 
 12 La. Ann. 259; 19 N. Y. 305; 6 Gray 
 (Mass.) 214. 
 
 (3) A valued policy is one Where a value 
 has been set on the ship or goods insured, 
 and this value inserted in the policy in the 
 nature of liquidated damages. In such a pol- 
 icy, the value of the subject is expressly 
 agreed, or is, as betweeen the parties, the 
 amount insured. 
 
 (4) A wager policy is a pretended in- 
 surance, founded on an ideal risk, where the 
 insured has no interest in the thing insured, 
 and can therefore sustain no loss by the 
 happening of any of the misfortunes insured 
 
 against. These policies are strongly repro- 
 bated. 3 Kent, Comm. 225. 
 
 POLICY OF THE LAW. Public policy 
 (ff. V.) 
 
 POLITIAE LEGIBUS NON LEGES POLI- 
 tiis adaptandae. Politics are to be adapted 
 to the laws, and not the laws to politics. 
 Hob. 154. 
 
 POLITICAL. Pertaining to policy, or the 
 administration of the government. 90 111. 
 563. Political rights are those which may 
 be exercised in the formation or administra- 
 tion of the government. They are distin- 
 guished from civil rights, which are the 
 rights which a man enjoys as regards other 
 individuals, and not in relation to the gov- 
 ernment. A political corporation is one 
 which has principally for its object the ad- 
 ministration of the government, or to which 
 the powers of government, or a part of such 
 powers, have been delegated. 1 Bouv. Inst, 
 notes 182, 197, 198. 
 
 POLITICAL ARITHMETIC. An expres- 
 sion sometimes used to signify the art of 
 making calculations on matters relating to a 
 nation; the revenues, the value of land and 
 effects; the produce of lands and manufac- 
 tures; the population, and the general sta- 
 tistics of a country. Wharton. 
 
 POLITICAL OFFENSES. A class of of- 
 fenses excluded from many extradition 
 treaties, and including, generally, crimes 
 against the government as such, and crimes 
 incident to political uprisings. Treason, se- 
 dition, lese majestae, etc., are examples. 
 Spear, Extradition, 48. 
 
 The nature of political offenses is open to 
 treaty definition, and in some treaties it has 
 been defined to exclude the assassination of 
 the ruler. 
 
 POLITICAL OFFICES. Such as are not 
 immediately connected with the administra- 
 tion of justice, or with the execution of the 
 orders of a superior, as the president or 
 the head of a department. 13 Wall. (U. S.) 
 568, 575. 
 
 POLITICAL OR CIVIL LIBERTY. Natu- 
 ral liberty, so far restrained by human laws 
 as is necessary and expedient for the general 
 advantage of the public. 1 Bl. Comm. 125. 
 
 POLITICAL QUESTIONS. • Questions in- 
 volving executive policy, and within the 
 power of the executive to determine, such as 
 the recognition of a particular government 
 in a foreign state. Such questions will not 
 be decided by the courts. See 7 How. (U. 
 S.) 39. 
 
 POLITICS. The science of government. 
 
 POLL. Ahead. Hence poll tax is the name 
 of a tax imposed upon the people at so much 
 a head. 
 
 To poll a jury is to require that each 
 juror shall himself declare what is his ver- 
 dict. This may be done, at the instance of 
 either party, at any time before the verdict 
 
POLLS 
 
 (703) 
 
 POOLING CONTRACT 
 
 Is recorded, according to the practice in some 
 states. See 3 Cow. (N. Y,) 23; 18 Johns. 
 (N. Y.) 188; 1 111. 109; 7 111. 342; 9 111. 336. 
 In some states it lies in the discretion of the 
 Judge. 1 McCord (S. C.) 24, 525; 22 Ga. 
 431. 
 
 In Conveyancing. A deed poll, or 
 
 single deed, is one made by a single party, 
 whose edges are polled, or shaved even, in 
 distinction from an "indenture," whose sides 
 are indented, and which is executed by 
 more than one party. 2 Bl. Comm. 296. See 
 -'Deed Poll." 
 
 POLLS. The place where electors cast in 
 their votes. 
 
 POLLICITATION. In civil law. A prom- 
 ise not yet accepted hy the person to whom it 
 Is made. It differs from a contract, inas- 
 much as the latter includes a concurrence of 
 intention in two parties, one of whom prom- 
 ises something to the other, who accepts, 
 on his part, of such promise. Grotius de 
 Jure Belli, lib. 2, c. 2; Poth. Obi. pt. 1, c. 
 1, sec. 1, art. 1, § 2. 
 
 POLYANDRY. The state of a woman who 
 has several husbands. Polyandry is legal- 
 ized only in Thibet. 
 
 POLYGAMIA EST PLURIUM SIMUL VI- 
 rorum uxorumve connubium. Polygamy is 
 the marriage with many husbands or wives 
 ■at one time. 3 Inst. 88. 
 
 POLYGAMY. The act or state of a person 
 who, knowing that he has two or more 
 wives, or that she has two or more hus- 
 Iiands, marries another. 
 
 It differs from "bigamy" (g. v.) Comyn, 
 Dig. "Justices" (S 5); Diet, de Jur.; 3 Inst. 
 «8. 
 
 But "bigamy" is now commonly used even 
 where "polygamy" would be strictly correct. 
 1 Russ. Crimes, 186, note. On the other 
 hand, "polygamy" is used where "bigamy" 
 -would be strictly correct. Gen. St. Mass. 
 1860, p. 817. 
 
 POLYGARCHY. A term used to express a 
 government which is shared by several per- 
 sons; as, when two brothers succeed to the 
 throne, and reign jointly. 
 
 POND. A body of stagnant water; a pool, 
 either natural or artificial. 13 Pick. (Mass.) 
 265. A pond differs from a lake only in 
 ■size. 
 
 PONDERANTUR TESTES NON NUME- 
 Tantur. Witnesses are weighed, not counted. 
 1 Starkie, Ev. 554; Best, Ev. 426, § 389; 
 14 Wend. (N. Y.) 105, 109. 
 
 PONDUS (Lat.) In Old English law. 
 Poundage; literally, weight. A duty an- 
 •ciently paid to the king. 
 
 PONDUS REGIS (Lat.) In old English 
 law. The king's weight; the standard 
 "weight appointed by the king. Cowell; 1 
 Bl. Comm. 276. 
 
 PONE (Lat. ponere, to put). In English 
 
 practice. An origiiial writ issuing out of 
 chancery, for the purpose of removing a 
 plaint from an inferior court into the su- 
 perior courts at Westminster. The word 
 signifies "put," — put by gages, etc. The writ 
 is called from the words it contained when 
 in Latin, pone per iddiiiin et nahon plegios, 
 etc., put by gage and safe pledges, etc. See 
 Pitzh. Nat. Brev. 69, 70a; Wilkinson, Repl. 
 Index. 
 
 PONE PER VADIUM. In English prac- 
 tice. An obsolete writ to the sheriff to sum- 
 mon the defendant to appear and answer the 
 plaintiff's suit, on his putting in sureties to 
 prosecute. It was so called from the words 
 of the writ, "potie per vadium et salvos 
 plegios," "put by gage and safe pledges, A. 
 B., the defendant." It issued out of the com- 
 mon pleas, being grounded on the nonappear- 
 ance of the defendant at the return of the 
 original writ, and commanded the sheriff to 
 take certain of his goods, which he should 
 forfeit if he did not appear or make him 
 find sureties. 3 Bl. Comm. 210. 
 
 PONENDIS INASSISIS. An obsolete writ 
 to impanel a jury. 
 
 PONENDUM IN BALLIUM. A writ com- 
 manding that a prisoner be bailed in cases 
 bailable. Reg. Grig. 133. ■ 
 
 PONENDUM SIGILLUM AD EXCEPTI- 
 onem. A writ by which justices were re- 
 quired to put their seals to exceptions ex- 
 hibited by a defendant against a i)laintiff's 
 evidence, verdict, or other proceedings, be- 
 fore them, according to St. Westminster II. 
 (13 Edw. I. St. 1, c. 31). 
 
 PONERE (Lat.) To put. The word is used 
 in the old law in various connections, in all 
 of which it can be translated by the English 
 verb "put." See Glanv. lib. 2, c. 3. 
 
 PONIT SE (Lat. puts himself). In English 
 criminal practice. When the defendant 
 pleads "not guilty," his plea is recorded by 
 the officer of the court, either by writing the 
 words "po. se," an abbreviation of the words 
 ponit se super patriam, puts himself upon 
 his country, or, as at the central criminal 
 court, noil ml. 2 Den. C. C. 392. See "Ar- 
 raignment." 
 
 PONTAGE. A contribution towards the 
 maintenance, rebuilding, or repairs of a 
 bridge. The toll taken for this purpose also 
 bears this name. Obsolete. 
 
 PONTIBUS REPARANDIS. An old writ 
 directed to the sheriff, requiring him to 
 charge one or more to repair a bridge. Reg. 
 Grig. 153. 
 
 POOL. A pond (g. v.) 
 
 A combination of independent persons- or 
 corporations for the division of earnings. 
 See "Pooling Contract." 
 
 POOLING CONTRACT. Strictly, an agree- 
 ment between common carriers to divide 
 their earnings on an agreed basis, irrespec- 
 tive of the proportions which such earnings 
 
POOR DEBTOR 
 
 (704) 
 
 POSITIVE LAW 
 
 bore to each other, the same being put into 
 a common fund or "pool" (15 Fed. 667; 23 
 Fed. 306) ; but the term is loosely applied to 
 other combinations of carriers. See 126 Ind. 
 348. 
 
 POOR DEBTOR. One who, being impris- 
 oned in a civil action, has no property to 
 pay the debt whereon the same was issued, 
 and who is accordingly entitled to his re- 
 lease on making oath to such fact, and on 
 other conditions variously affixed by statute. 
 
 POOR DEBTOR'S OATH. An oath of pov- 
 erty, on taking which one impFisoned on 
 execution is entitled to release. 
 
 POPE. The head of the Roman Catholic 
 church. He is a temporal prince. He is 
 elected by certain officers called "cardinals," 
 and remains in power during life. In the 
 9th Collation of the Authentics it is declared 
 the bishop of Rome hath the first place of 
 sitting in all assemblies, and the bishop of 
 Constantinople the second. Ridley, Civ. & 
 Ecc. Law, pt. 1, c. 3, § 10. 
 
 The pope has no political authority in the 
 United States. 
 
 POPULAR ACTION. An action given by 
 statute to any one who will sue for the 
 penalty. A qui tarn action. Dig. 47. 23. 1. 
 
 POPULISCITUM (Lat.) An act of the 
 commons; same as plebiscitum. Ainsworth. 
 
 A law passed by the whole people assem- 
 bled in comitia centuriata, and at the pro- 
 posal of one of the senate, instead of a trib- 
 une,' as was the case with a pleMscitum. 
 Tayl. Civ. Law, 178; Mackeld. Civ. Law, §§ 
 26, 37. 
 
 POPULUS (Lat.) In the Roman law. The 
 people; the whole body of the citizens, includ- 
 ing, with the plebs or commonalty, the pa- 
 tricians and senators; appellatione popuU 
 universi cives significantur, cQnnumeratis 
 etiam patriciis et senatoribus. Inst. 1. 2. 4. 
 
 PORCION. In Spanish law. A part or por- 
 tion; a lot or parcel; an allotment of land. 
 See 16 S. W. 49. 
 
 PORT. A place to which the officers of 
 the customs are appropriated, and which in- 
 cludes the privileges and guidance of all 
 members and creeks which are allotted to 
 them. 1 Chit. Com. Law, 726; Postlethwaite. 
 
 A proper' place for the lading or unlading 
 of vessels, recognized and supervised for 
 maritime purposes by the public authorities. 
 
 A port differs from a haven, and includes 
 something more. First, it is a place at 
 which vessels may arrive and discharge or 
 take in their cargoes. Second, it compre- 
 hends a ville, city, or borough, called in 
 Latin caput corpus, for the reception of 
 mariners and merchants, for securing the 
 goods and bringing them to market, and for 
 victualling the ships. Third, it is impressed 
 with its legal character by the civil author- 
 ity. Hale de Port. Mar. c. 2 ; 1 Harg. Tr. 46, 
 73; Bac. Abr. "Prerogative" (D 5) ; Comyn, 
 Dig. "Navigation" (E); 4 Inst. 148; Callis, 
 
 Sewers, 56; 2 Chit. Com. Law, 2; Dig. 50. 16. 
 59; Id. 43. 12. 1. 13; Id. 47. 10. 15. 7; Id. 
 39. 4. 15. 
 
 PORT TOLL. The toll paid for bringing 
 goods into a port. 
 
 PORTATICA (Law Lat.) In English law. 
 The generic name for port duties charged to 
 ships. Harg. Tr. 74. 
 
 PORTER. The name of an ancient Eng- 
 lish officer who bore or carried a rod before 
 the justices. The door keeper of the English 
 parliament also bears this name. 
 
 One who is employed as a common carrier 
 to carry goods from one place to another in 
 the same town is also called a porter. Such 
 person is, in general, answerable as a com- 
 mon carrier. Story, Bailm. § 496. 
 
 PORTGREVE (from Saxon gerefa, reeve or 
 bailiff, and port). A chief magistrate in 
 certain maritime towns. The chief magis- 
 trate of London was anciently so called, as 
 appears from a charter of King William 1. 
 Instead of this portgreve of London, the suc- 
 ceeding kings appointed two bailiffs, and aft- 
 erwards a mayor. Camden, Hist. 325. 
 
 PORTMEN. The burgesses of Ipswich and 
 of the Cinque Ports were so called. 
 
 PORT MOTE. In old English law. A court 
 held in ports or haven towns, and sometimes 
 in inland towns also'. Cowell; Blount. 
 
 PORTORIA (Lat.) In civil law. Duties 
 paid in ports on merchandise. Code, 4. 61. 3. 
 Taxes levied in old times at city gates; tolls 
 for passing over bridges. Vicat; Spelman. 
 
 PORTSALES. Auctions were anciently so 
 called, because they took place in ports. 
 
 PORTSOKA, or PORTSOKEN. The sub- 
 urbs of a city, or any place within its juris- 
 diction. Somner; Cowell. 
 
 POSITIVE. Express; absolute; not doubt- 
 ful. This word is frequently used in compo- 
 sition. 
 
 POSITIVE CONDITION. One in which the 
 thing which is the subject of it must hap- 
 pen; as, if I marry. It is opposed to a 
 negative condition, which is where the thing 
 which is the subject of it must not happen; 
 as, if I do not marry. 
 
 POSITIVE EVIDENCE. That which, if be- 
 lieved, establishes the truth or falsehood of 
 a fact in issue, and does not arise from any 
 presumption. It is distinguished from cir- 
 cumstantial evidence (g. v.) 3 Bouv. Inst, 
 note 3057. 
 
 POSITIVE FRAUD. The intentional and 
 successful employment of any cunning, de- 
 ception, or artiiice to clrcumve^it, cheat, or 
 deceive another. 1 Story, i^q. .Tur. 186; Dig. 
 4. ?. 1. 2; Id. 2. 14. 7. 9. It is cited in op- 
 position to constructive fraud. 
 
 POSITIVE LAW. Law actuallv ordained 
 cr established, under human sanctions, as 
 
POSITIVI JURIS 
 
 (70S) 
 
 POSSESSION 
 
 distinguished from the law of nature or 
 natural law, which comprises those consid- 
 erations of justice, right, and universal ex- 
 pediency that are announced by the voice of 
 reason or of revelation. Municipal law is 
 chiefly, if not essentially, positive; while 
 the law of nations has been deemed by many 
 of the earlier writers as merely an applicar 
 tion of the law of nature. That part of the 
 law of nations which rests on positive law 
 may be considered in a threefold point of 
 view: First, the universal voluntary law, 
 or those rules which become law by the uni- 
 form practice of nations in general, and by 
 the manifest utility of the rules themselves; 
 second, the customary law, or that which, 
 from motives of convenience, has, by tacit 
 but implied agreement, prevailed, not neces- 
 sarily among all nations, nor with so perma- 
 nent a utility as to become a portion of the 
 universal voluntary law, but enough to have 
 acquired a prescriptive obligation an ong cer- 
 tain states so situated as to be mutually 
 benefited by it (1 Taunt. 241); third, the 
 conventional law, or that which is agreed 
 between particular states by express treaty, 
 a law binding on the parties among whom 
 such treaties are in force. 1 Chit. Com. 
 Law, 28. 
 
 POSITIVI JURIS (Law Lat.) Of positive 
 law. "That was a rule positivi juris; I do 
 not mean to say an unjust one." Lord Bl- 
 lenborough, 12 East, 639. 
 
 POSITO UNO OPPOSITORUM NEGATUR 
 alterum. One of two opposite positions be- 
 ing affirmed, the other is denied. 3 Rolle, 
 
 422. 
 
 POSSE. This word is used substantivelv 
 to signify a possibility. For example, such 
 a thing is in posse, that is, such a thing may 
 possibly be. When the thing is in being, the 
 phrase to express it is, in esse. 
 
 POSSE COMITATUS (Lat.) The power of 
 the county. 
 
 Citizens summoned by the sheriff to assist 
 him in the execution of process. 
 
 POSSESSED. This word is applied to the 
 right and enjoyment of a termor, or a per- 
 son having a term, who is said to be pos- 
 sessed, and not seised. Bac. Tr. 335; Poph. 
 76; Dyer, 369. 
 
 POSSESSIO (Lat.) 
 
 In Civil Law. The detention of a thing; 
 
 divided into, first, natural, or the naked de- 
 tention of a thing, without intention to ac- 
 quire ownership; second, civil, or the deten- 
 tion of a thing to which one has a right, or 
 with intention of acquiring ownership. 
 Helnec. Elem. Jur. Civ. § 1288; Mackeld. 
 Civ. Law, §§ 210, 213. 
 
 In Old English Law. Possession; sei- 
 sin. Law Fr. & Lat Diet; 2 Bl. Comm. 227; 
 Bracton, lib. 2, c. 17; Cowell, "Possession." 
 But seisina cannot be of an estate less than 
 freehold; possessio can. New England Sher- 
 iff, 141; 1 Mete. (Mass.) 450; 6 Mete. (Mass.) 
 439. 
 
 POSSESSIO BONA FIDE (Lat.) Posses- 
 sion in good faith. 
 
 POSSESSIO BONORUIVl (Lat.) In the 
 civil law. The possession of goods. More 
 commonly termed hoiioniiii posse.snio. 
 
 POSSESSIO CIVILIS. In Roman law. A 
 
 legal possession, i. e., a possessing accom- 
 panied with the intention to be or to there- 
 by becoriie owner, and, as so understood, it 
 was distinguished from "possessio naturalis," 
 otherwise called "nuda detentio," which was 
 a possessing without any such intention. 
 Possessio civilis was the basis of usucapio 
 or of longi temporis possessio, and was usual- 
 ly, but not necessarily, adverse possession. 
 Brown. 
 
 POSSESSIO EST QUASI PEDIS POSITIO. 
 
 Possession is, as it were, the position of the 
 foot. 3 Coke, 42. 
 
 POSSESSIO FRATRIS (Lat. the brother's 
 possession). A technical phrase applied in 
 the English law relating to descents, to de- 
 note the possession by one in such privity 
 with a person as to be considered the per- 
 son's own possession. 
 
 POSSESSIO FRATRIS DE FEODO SIM- 
 plici facit sororem esse haeredem. Posses- 
 sion of the brother in fee simple makes the 
 sister to be heir. 3 Coke, 42; 2 Bl. Comm. 
 227; Broom, Leg. Max. (3d London Ed.) 473. 
 
 POSSESSIO NATURALIS. See "Possessio 
 Civilis." 
 
 POSSESSIO PACIFICA POUR ANNS 60 
 facit jus. Peaceable possession for sixty 
 years gives a right. Jenk. Cent. Cas. 26. 
 
 POSSESSION. The detention or enjoy- 
 ment of a thing which a man holds or exer- 
 cises by himself, or by another who keeps or 
 exercises it in his name. 
 
 The owning or having a thing in one's 
 power. 64 N. 'Y. 80. "Possession of land is 
 the holding of and exercise of exclusive do- 
 minion over it." 25 Iowa, 177. 
 
 By the possession of a thing, we always 
 conceive the condition in which not only 
 one's own dealing with the thing is physical- 
 ly possible, but every other person's dealing 
 with it is capable of being excluded. Thus, 
 the seaman possesses his ship, but not the 
 water in which it moves, although he makes 
 each subserve his purpose. 
 
 (1) Actual possession exists where the 
 thing is in the immediate occupancy of the 
 party. 3 Dev. (N. C.) 34. 
 
 (2) Constructive possession is that which 
 exists in contemplation of law, without ac- 
 tual personal occupation. 11 Vt. 129; 64 N. 
 Y. 80. And see 1 McLean (U. S.) 214, 265; 
 2 Bl. Comm. 116. 
 
 (3) Adverse possession is possession in- 
 consistent with the right of the true owner. 
 See "Adverse Possession." 
 
 (4) Naked possession, called also "bare 
 
POSSESSION MONEY 
 
 (706) 
 
 POST DATE 
 
 possession," is actual iwssessioii without 
 shadow or pretense of right. 3 Colo. 360. 
 In Louisiana. 
 
 (1) Civil possession exists when a person 
 ceases to reside in a house or on the land 
 which he occupied, or to detain the movable 
 which he possessed, but without intending 
 to abandon the possession. It is the deten- 
 tion of a thing by virtue of a just title, and 
 under the conviction of possessing as owner. 
 Civ. Code La. arts. 3392, 3394. 
 
 (2) Natural possession is that by which a 
 man detains a thing corporeal; as, by occu- 
 pying a house, cultivating ground, or retain- 
 ing a movable in his possession. Natural 
 possession is also defined to be the corporeal 
 detention of a thing which we possess as be- 
 longing to us, without any title to that pos- 
 session, or with a title which is void. Civ. 
 Code La. arts. 3391, 3393. 
 
 POSSESSION MONEY. An allowance to 
 one put in possession of goods taken under 
 writ of fieri facias. Holthouse. 
 
 POSSESSION VAUTTITRE (Pr.) In Eng- 
 lish law, as in most systems of jurispru- 
 dence, the fact of possession raises a prima 
 facie title or a presumption of the right of 
 property in the thing possessed. In other 
 words, the possession is as good as the title 
 (about). Brown. 
 
 POSSESSION, WRIT OF. Process to put 
 into execution a judgment in ejectment for 
 delivery of the premises. 2 Rev. St. N. Y. p. 
 310, § 37. 
 
 POSSESSOR. He who holds, detains, or 
 enjoys a thing, either by himself or his 
 agent, which he claims as his own. 
 
 In general, the possessor of personal chat- 
 tels is presumed to be the owner; and in 
 case of real estate he has a right to receive 
 the profits until a title adverse to his pos- 
 session has been established, leaving him 
 subject to an action for the mesne profits. 
 
 PO^SSESSOR BONA FIDE. See "Bona 
 Fide Possessor, etc." 
 
 POSSESSORY. Relating to possession; 
 founded on possession; contemplating or 
 claiming possession. 
 
 POSSESSORY ACTION. 
 
 In Old English Law. A real action, in 
 
 which the plaintiff, called the "demand- 
 ant," sought to recover the possession of 
 land, tenements, and hereditaments. On ac- 
 count of the great nicety required in its 
 management, and the introduction of more 
 expeditious methods of trying titles by other 
 actions, it has been laid aside. Pinch, Laws, 
 257; 2 Bouv. Inst, note 2640. 
 
 In Louisiana. An action by which one 
 
 claims to be maintained in the possession of 
 an immovable property, or of a right upon 
 or growing out of it, when he has been dis- 
 turbed; or to be reinstated to that posses- 
 sion, when he has been divested or evicted. 
 2 La. 227, 254. 
 
 In Scotch Law. An action by which 
 
 the possession of heritable or movable prop- 
 
 erty may be recovered and tried. An action 
 of molestation is one of them. Paterson, 
 Comp. § 1058, note. 
 
 POSSESSORY JUDGIVIENT. In Scotch 
 practice. A judgment which entitles a per- 
 son who has uninterruptedly been in pos- 
 session for seven years to continue his pos- 
 session until the question of right be de- 
 cided in due course of law. Bell, Diet. 
 
 POSSIBILITAS (Lat.) In old English 
 law. Possibility; a possibility. Possibilir 
 tas post dissolutionem executionis • nunquam 
 reviviscatur, a possibility will never be re- 
 vived after the dissolution of its execution. 
 1 Rolle, 321. After a possibility has become 
 executed, it will not be revived by a disso- 
 lution of the estate, as by a divorce. Post 
 executionem status, lex non patitur possir 
 bilitatem, after the execution of an estate, 
 the law does not suffer a possibility. 3 
 Bulst. 108. 
 
 POSSIBILITY. An uncertain thing which 
 may happen. Lilly, Reg. An expectancy 
 which is not founded on any limitation, 
 provision, or trust, such as the expectancy 
 of an heir apparent, who may be disin- 
 herited by will, or may not survive the an- 
 cestor. . ' 
 
 (1) A bare possibility is one that is not 
 coupled with an interest, as that a son may 
 Inherit the lands of his father, who is liv- 
 ing. 
 
 (2) A possibility coupled with an interest 
 is where the person who is to take an es- 
 tate upon the happening of a contingency 
 is ascertained and fixed. 
 
 (3) A near or common possibility is such 
 as death or death without issue. 
 
 (4) A remote possibility is such as a re- 
 mainder to the heirs of a person not in be- 
 ing. 4 Kent, Comm. 206, 262. 
 
 POSSIBILITY ON A POSSIBILITY. See 
 
 "Double Possibility." 
 
 POST (Lat.) After. 
 
 In Real-Estate Law. When two or 
 
 more alienations or descents have taken 
 place between an original intruder and the 
 tenant or defendant in a writ of entry, the 
 writ is said to be in the post, because it 
 states that the tenant had not entry unless 
 after the ouster of the original intruder. 3 
 Bl. Comm. 182. 
 
 In IVlilitary Law. A station where mil- 
 itary duty is performed, or stores are kept, 
 or something connected with military af- 
 fairs is done. 94 U. S. 219. 
 
 In Latin Phrases. A preposition mean- 
 ing "after." 
 
 POST-ACT. An after-act; an act done af- 
 terwards. 
 
 POST CONQUESTUM. After the Con- 
 quest. Words first used in the king's title 
 by King Edward I., 1328, to distinguish the 
 i^dwarrls after the Conquest from those be- 
 fore it, and constantly used in the time of 
 Edward III. Tomlins. 
 
 POST DATE. To date an instrument a 
 
POST DIEM 
 
 (707) 
 
 POSTERIORA, ETC. 
 
 time after that on which it is made. See 
 "Date." 
 
 POST DIEM (Lat.) After the day; as, 
 a plea of payment post diem, — after the day 
 when the money became due. Comyn, Dig. 
 "Pleader" (2 W 29). 
 
 POST DISSEISIN. In English law. The 
 name of a writ which lies for him who, hav- 
 ing recovered lands and tenements by force 
 of a novel disseisin, is again disseised by 
 a former disseisor. Jacob. 
 
 POST ENTRY. In maritime law. An en- 
 try made by a merchant upon the importa- 
 tion of goods, after the goods have been 
 weighed, measured, or gauged, to make up 
 the deficiency of the original or prime en- 
 try. The custom of making such entries has 
 arisen from the fact that a merchant in 
 making the entry at the time of importa- 
 tion is not or may not be able to calculate 
 exactly the duties which he is liable to pay. 
 He therefore makes an approximately cor- 
 rect entry, which he subsequently corrects 
 by the post entry. See Chit. Com. Law, 746. 
 
 POST EXECUTIONEM STATUS LEX 
 non patitur possibilitatem. After the execu- 
 tion of the estate, the law suffers not a pos- 
 sibility. 3 Bulst. 108. 
 
 POST FACTO (Lat.) After the fact. See 
 "Ex Post Facto." 
 
 POST-FACTUM. An after-act; an act 
 done afterwards; a post-act. 
 
 POST FINE. In old conveyancing. A fine 
 or sum of money, otherwise called the 
 "king's silver," formerly due on granting 
 the licentia concordandi, or leave to agree, 
 in levying a fine of lands. It amounted to 
 three-twentieths of the supposed annual 
 value of the land, or ten shillings for every 
 five marks of land. 2 Bl. Comm. 350. 
 
 POST LIMINUM (Lat. from post, after, 
 and limen, threshold). A fiction of civil 
 law, by which persons or things taken by 
 the enemy were restored to their former 
 state on coming again under the power of 
 the nation to which they formerly belonged. 
 Calv. Lex.; 1 Kent, Comm. 108*. It is also 
 recognized by the law of nations. But mov- 
 ables are not entitled to the benefit of this 
 tule, by strict law of nations, unless prompt- 
 ly recaptured. The rule does not affect 
 property which is brought into a neutral 
 territory. 1 Kent, Comm. 108. It is so 
 called from the return of the person or 
 thing over the threshold or boundary of 
 the country from which it was taken. 
 
 POST LITEM MOTAM (Lat.) After the 
 commencement of the suit. 
 
 Declarations or acts of the parties made 
 post litem motam are presumed to be made 
 with reference to the suit then pending, 
 and, for this reason, are not evidence in 
 favor of the persons making them; while 
 those made before an action has been com- 
 menced, in some cases, as when a pedigree 
 is to be proved, may be considered as evi- 
 dence. 4 Campb. 401. 
 
 POST MORTEM (Lat.) After death: as, 
 an examination post mortem is an examina- 
 tion made of a dead body to ascertain the 
 cause of death; an inquisition post mortem 
 is one made by the coroner. 
 
 POST-NATUS (Lat.) Literally, after- 
 born. It is used by the old law writers to 
 designate the second son. 
 
 POST NOTES. A species of banknotes 
 payable at a distant period, and not on de- 
 mand. 2 Watts & S. (Pa.) 463. A kind of 
 banknotes intended to be transmitted a dis- 
 tance by post. See 24 Me. 36. 
 
 POST NUPTIAL. Something which takes 
 place after marriage; as, a post-nuptial set- 
 tlement, which is a conveyance made gen- 
 erally by the husband for the benefit of the 
 wife. 
 
 POST OBIT (Lat.) An agreement by 
 which the obligor borrows a certain sum of 
 money, and promises to pay a larger sum, 
 exceeding the lawful rate of interest, upon 
 the death of a person from whom he has 
 some expectation, if the obligor be then liv- 
 ing. 7 Mass. 119; 6 Madd. Ill; 5 Ves. 57; 
 19 Ves. 628. 
 
 Equity will, in general, relieve a party 
 from these unequal contracts, as they are 
 fraudulent on the ancestor. See 1 Story, Bq. 
 Jur. § 342; 2 P. Wms. 182; 2 Sim. 183, 
 192; 5 Sim. 524. But relief will be granted 
 only on equitable terms; for he who seeks 
 equity must do equity. 1 Fonbl. Eq. bk. 1, 
 c. 2, § 13, note (p) ; 1 Story, Bq. Jur. § 344. 
 See "Catching Bargain;" "Macedonian De- 
 cree." 
 
 POST PROLEM SUSCITATAM. After is- 
 sue born. Co. Litt. 19b. 
 
 POST-TERMINAL SITTINGS. Sittings 
 after term. See "Sittings After Term." 
 
 POST TERMINUM. After term, or post 
 term. The return of a writ not only after 
 the day assigned for its return, but after 
 the term also, for which a fee was due. The 
 fee itself. Cowell. 
 
 POSTEA (Lat. afterwards). In practice. 
 The indorsement, on the nisi prius record 
 purporting to be the return of the judge be- 
 fore whom a cause is tried, of what has been 
 done in respect of such record. 
 
 It states the day of trial, before what 
 judge, by name, the cause is tried, and also 
 who is or was an associate of such judge. 
 It also states the appearance of the parties 
 by their respective attorneys, or their de- 
 faults, and the summoning and choice of 
 the jury, whether those who were originally 
 summoned, or those who were tales, or 
 taken from the standers-by. It then states 
 the finding of the jury upon oath, and the 
 assessment of the damages, with the occa- 
 sion thereof, together with the costs. 
 
 POSTERIORA DEROGANT PRIORIBUS. 
 
 Posterior things derogate from things prior. 
 1 Bouv. Inst, note 90. 
 
POSTfiRIORES 
 
 (708) 
 
 POSTULATIO 
 
 POSTERIORES (Lat.) This term was 
 used by the Romans to denote the descend- 
 ants in a direct line beyond the sixth de- 
 gree. It is still used in making genealogical 
 tables. 
 
 POSTERIORITY. Being or coming after. 
 It is a word of comparison, the correlative 
 of which is "priority;" as, when a man 
 holds lands from two landlords, he holds 
 from his ancient landlord by priority, and 
 from the other by posteriority. 2 Inst. 392. 
 
 These terms, "priority" and "posteriority," 
 are also used in cases of liens. The first 
 are jprior liens, and are to be paid in the 
 first place; the last are posterior liens, and 
 are not entitled to payment until the for- 
 mer have been satisfied. 
 
 POSTERITY. All the descendants of a 
 person in a direct line. 
 
 POSTHUMOUS CHILD. One born after 
 the death of its father, or, when the Caesa- 
 rian operation is performed, after that of 
 the mother. 
 
 POSTLIMINIUM (Lat. from post, after, 
 and limen, a threshold). 
 
 In the Civil Law. The return or res- 
 toration of a person to a former estate or 
 right; sometimes Englished "postliminy." 
 A fiction applied in the case of a person who 
 had been taken prisoner by an enemy, and 
 afterwards returned from captivity, by 
 which he was supposed never to have been 
 abroad, and was on this ground restored to 
 his former rights. Postliminium fingit eum 
 qui captus est in civitate semper fuisse, 
 postiliminy supposes that he who was taken 
 prisoner had always been in the state. Inst. 
 1. 12. 5. See Dig. 49. 15. 
 
 Postiliminium included things as well as 
 persons. Paulas, In the Digests, defines it to 
 be jus amissae rei recipiendae ah extraneo, 
 et in statum pristinum restituendae, inter 
 nos ac liberos populos regesgue moribus, 
 legibus constiiutum. Nam quod bello am,is- 
 imus, aut etiam citra iellum. hoc si rursus 
 recipiamus dielmur postliminio recipere, the 
 right of receiving a lost thing from a 
 foreigner, and of restoring it to its former 
 state, established between us and free na- 
 tions and kings, by customs and by laws. 
 For whatever we have lost in war, or even 
 not in war, if we receive it again, we are 
 said to receive it postliminio. Dig. 49. 15. 
 19, pr. 
 
 Postliminium is thus analyzed and ex- 
 plained in the Institutes': It is called postli- 
 minium from limen (threshold), and post 
 (after). Wherefore we properly say of one 
 who was taken by an enemy, and afterwards 
 came into our borders or limits, that he has 
 returned postliminio. For as the threshold 
 of a house makes, as it were, the limit or 
 boundary of it, so the ancients chose to call 
 the boundary or border of the empire its 
 threshold. Hence limen (a threshold) came 
 to be used in the sense of a limit (finis), 
 and boundary (terminus). And hence the 
 word postliminium was framed, and used to 
 signify that a person had returned to the 
 same threshold which he had lost; ah eo 
 
 postliminium dictum est, quia ad idem, limen 
 revertehatur quod amiserat. So that now a 
 prisoner who is recovered from an enemy, 
 and returns home, is supposed to have re- 
 turned in postliminy, that is, in the way ex- 
 plained. Inst. 1. 12. 5. 
 
 In the Law of Nations. A right which 
 
 arises from a return in limen, that is, to the 
 borders of one's country. Grotius de Jur. 
 Belli, lib. 3, c. 9, § 2. A term derived from 
 the Roman law, and extensively used in pub- 
 lic law. See its etymology explained by 
 Grotius de Jure Belli, lib. 3, c. 9, § 1. See his 
 whole chapter, "De Postliminio." The term 
 is used In maritime law. See Locc. de Jur. 
 Mar. lib. 2, c. 4. 
 
 POSTLIMINIUM FINGIT EUM QUI CAP- 
 tus est in civitate semper fuisse. Postlim- 
 iny feigns that he who has been captured 
 has never left the state. Inst. 1. 12. 5; Dig. 
 49. 15. 
 
 POSTMAN. A senior barrister in court 
 of exchequer, who has precedence in mo- 
 tions. So called from the place .where he 
 sits. 2 Bl. Comm. 28; Wharton. A letter 
 carrier. Webster. 
 
 POSTMARK. A stamp or mark put on 
 letters in the post office. 
 
 Postmarks are evidence of a letter's hav- 
 ing passed through the post ofBce. 2 Gampb. 
 620; 2 Bos. & P. 316; 15 Bast, 416; 1 Maule 
 & S. 201; 15 Conn. 206. 
 
 POSTNATI (Lat. those born after). Ap- 
 plied to American and British subjects born 
 after the separation of England and the 
 United States; also to the subjects of Scot- 
 land born after the union of England and 
 Scotland. Those born after an event, as 
 opposed to antenati, those born before. 2 
 Kent, Comm. 56-59; 2 Pick. (Mass.) 394; 5 
 Day (Conn.) 169'*. See "Antenati." 
 
 POSTNUPTIAL SETTLEMENT. A settle- 
 ment made after marriage upon a wife or 
 children; otherwise called a "voluntary" 
 settlement. 2 Kent, Comm. 173. 
 
 POSTPONEMENT. The putting over of 
 a cause for trial to another term. Consid- 
 erable confusion exists In the use of the 
 words, "continuance," "adjournment," and 
 "postponement." In exact phraseology, 
 "continuance" means the revival of a cause 
 after It has abated, "adjournment" the put- 
 ting over of a cause from day to day within 
 the term, and "postponement" the putting 
 over of a cause from term to term. 
 
 POSTREMO GENITURE. Borough Eng- 
 lish (q. V.) 
 
 POSTULATIO (Lat.) In Roman law. The 
 name of the first act In a criminal proceed- 
 ing. 
 
 A person who wished to accuse another 
 of a crime appeared before the praetor and 
 requested his authority for that purpose, 
 designating the person intended. This act 
 was called postulatio. The postulant (cal- 
 umnium jurahat) made oath that he was 
 not infiuenced by a spirit of calumny, but 
 
POSTULATIO 
 
 (709) 
 
 POTENTIA, ETC. 
 
 acted In good faith, -witli a view to the public 
 interest. The praetor received this decla- 
 ration, at first made verbally, but after- 
 wards in writing, and called a "libel." The 
 postiilatlo was posted up in the forum, to 
 give public notice of the names of the ac- 
 cuser and the accused. A second accuser 
 sometimes appeared, and went through the 
 same formalities. 
 
 Other persons were allowed to appear and 
 join the postulant or principal accuser. 
 These were said postulare subscriptionem, 
 and were denominated subscriptores. Cicero, 
 Caecil. Divinatio, 15. But commonly such 
 persons acted concurrently with the postu- 
 lant, and inscribed their names at the time 
 he first appeared. Only one accuser, how- 
 ever, was allowed to act; and if the first in- 
 scribed did not desist in favor of the second, 
 the right was determined, after discussion, 
 by judges appointed for the purpose. Cic- 
 ero, Verres, i. 6. The preliminary proceed- 
 ing was called divinatio, and is well ex- 
 plained in the oration of Cicero entitled 
 Divinatio. See Aulus Gellius, Att. Noct. 
 lib. ii. c. 4. 
 
 The accuser having been determined in 
 this manner, he Appeared before the praetor, 
 and formally charged the accused by name, 
 specifying the crime. This was called nomi- 
 nis et criminis delatio. The magistrate re- 
 duced it to writing, which was called in- 
 scriptio, and the accuser and his adjuncts, 
 if any, signed it, subscribebant. This pro- 
 ceeding corresponds to the indictment of the 
 common law. 
 
 If the accused appeared, the accuser for- 
 mally charged him with the crime. If the 
 accused confessed it, or stood mute, he was 
 adjudged to pay the penalty. If he denied 
 it, the inscriptio contained his answer, and 
 he was then in reatu (indicted, as we should 
 say), and was called reus, and a day was 
 fixed, ordinarily after an interval of at least 
 ten days, according to the nature of the case, 
 for the appearance of the parties. In the 
 case of Verres, Cicero obtained one hundred 
 and ten days to prepare his proofs, although 
 he accomplished it in fifty days, and re- 
 nounced, as he might do, the advantage of 
 the remainder of the time allowed him. 
 
 At the day appointed for the trial, the ac- 
 cuser and his adjuncts or colleagues, the 
 accused, and the judges, were summoned by 
 the herald of the praetor. If the accuser did 
 not appear, the case was erased from the 
 roll. If the accused made default, he was 
 condemned. If both parties appeared, a jury 
 was drawn by the praetor or judex quaes- 
 tionis. The jury was called jurati homines, 
 and the drawing of them sortitio, and they 
 were taken from a general list made out for 
 the year. Either party had a right to object 
 to a certain extent to the persons drawn, and 
 then there was a second drawing, called 
 subsortitio, to complete the number. 
 
 In some tribunals, quaestiones (the jury) 
 were editi (produced) in equal number by 
 the accuser and the accused, and sometimes 
 by the accuser alone, and were objected to 
 or challenged in different ways, according 
 to the nature of the case. The number of 
 the jury also varied according to the tri- 
 
 bunal (quaestio). They were sworn before 
 the trial began; hence they were called ju- 
 rati. 
 
 The accusers, and often the subscriptores, 
 were heard, and afterwards the accused, ei- 
 ther by himself or by his advocates, of whom 
 he commonly had several. The witnesses, 
 who swore by Jupiter, gave their testimony 
 after the discussions or during the progress 
 of the pleadings of the accuser. In some 
 cases it was necessary to plead the cause on 
 the third day following the first hearing, 
 which was called comperendinatio. 
 
 After the pleadings were concluded, the 
 praetor or the judex quaestionis distributed 
 tablets to the jury, upon which each wrote, 
 secretly, either the letter A. {absolvo), or 
 the letter C. (oondemno), or N. L. (non 
 liquet). These tablets were deposited in an 
 urn. The president assorted and counted 
 the tablets. If the majority were for ac- 
 quitting the accused, the magistrate declared 
 it by the words fecisse non videtur, and by 
 the words fecisse videtur if the majority 
 were for a conviction. If the tablets marked 
 N. L. were so many as to prevent an abso- 
 lute majority for a conviction or acquittal, 
 the cause was put off for more ample in- 
 formation, ampUatio, which the praetor de- 
 clared by the word amplies. Such, in brief, 
 was the course of proceedings before the 
 quaestiones perpetuae. 
 
 The forms observed in the comitia cen- 
 turiata and comitia tributa were nearly the 
 same, except the composition of the tribunal 
 and the mode of declaring the vote. 
 
 POSTULATIO ACTION IS (Lat.) In civil 
 law. Demand of an action iactio) from 
 the praetor, which some explain to be a de- 
 mand of a formula, or form of the suit; 
 others, a demand of leave to bring the cause 
 before the judge. Tayl. Civ. Law, 80; Calv. 
 Lex. "Actio." 
 
 POT-DE-VIN. In French law. A sum of 
 money frequently paid, at the moment of 
 entering into a contract, beyond the price 
 agreed upon. It differs from arrha in this, 
 that 'it is no part of the price of the thing 
 sold, and that the person who has received 
 it cannot, by returning double the amount, 
 or the other party by losing what he has 
 paid, rescind the contract. 18 Toullier, Dr. 
 Civ. note 52. 
 
 POTENTATE. One who has a great pow- 
 er over an extended country; a sovereign. 
 
 By the naturalization laws of the United 
 State, an alien is required, before he can 
 be naturalized, to renounce all allegiance 
 and fidelity to any foreign prince, potentate, 
 state, or sovereign whatever. 
 
 POTENTIA (Lat.) Possibility; power. 
 
 POTENTIA DEBET SEQUI JUSTITIAM, 
 
 non antecedere. Power ought to follow, not 
 to precede, justice. 3 Bulst. 199. 
 
 POTENTIA EST DUPLEX, REMOTA ET 
 propinqua; et potentia remotisslma et vana 
 est quae nunquam venit in actum. Possl> 
 bility is of two kinds, remote and near; thai 
 
POTENTIA INUTILIS, ETC. 
 
 (710) 
 
 POURVEYOE 
 
 which never comes into action is a power 
 the most remote and vain. 11 Coke, 51. 
 
 POTENTIA INUTILIS FRUSTRA EST. 
 
 Useless power is vain. 
 
 POTENTIA NON EST NISI AD BONUM. 
 
 Power is not conferred but for the public 
 good. 
 
 POTENTIA PROPINQUA. Common pos- 
 sibility. See "Possibility." 
 
 POTEST QUIS RENUNCIARE PRO SE, 
 et suis, jus quod pro se Introductum est. A 
 man may relinquish, for himself and those 
 claiming under him, a right which was in- 
 troduced for his own benefit. See 1 Bouv. 
 Inst, note 83. 
 
 POTESTAS (Lat.) In civil law. Power; 
 authority; domination; empire. Imperium, 
 or the jurisdiction of magistrates. The 
 power of the father over his children, patria 
 potestas. The authority of masters over 
 their slaves, which makes it nearly synony- 
 mous with dominium. See Inst. 1. 9. 12; 
 Dig. 2. 1. 13. 1; Id. 14. 1; Id. 14. 4. 1. 4. 
 
 POTESTAS STRICTE INTERPRETAT- 
 
 ur. Power should be strictly interpreted. 
 Jenk. Cent. Cas. 17. 
 
 POTESTAS SUPREMA SEIPSUM DIS- 
 solvare potest, ligare non potest. Supreme 
 power can dissolve, but cannot bind Itself. 
 Bac. Max. reg. 19. 
 
 POTIOR EST CONDITIO DEFENDENT- 
 
 is. Better is the condition of the defend- 
 ant than that of the plaintiff. Broom, Leg. 
 Max. (3d London Ed.) 664; 15 Pet. (U, S.) 
 471. 
 
 POTIOR EST CONDITIO POSSIDENTIS. 
 
 Better is the condition of the possessor. 
 Broom, Leg. Max. (3d London Ed.) 201, note. 
 
 POTWALLOPER. A term formerly ap- 
 plied to voters in certain boroughs of Eng- 
 land, where all who boil (wallop) a pot 
 were entitled to vote. Webster. 
 
 POULTRY COUNTER (or COMPTER). 
 
 The name of a prison formerly existing in 
 London. 2 Mod. 306; 6 Mod. 247. See 
 "Counter." 
 
 POUND. A place, inclosed by public au- 
 thority, for the temporary detention of stray 
 animals. 4 Pick. (Mass.) 258; 5 Pick. 
 (Mass.) 514; 9 Pick. (Mass.) 14. 
 
 In Weights. There are two kinds of 
 
 weights, namely, the troy and the avoirdu- 
 pois. The pound avoirdupois is the greater, 
 being seven thousand grains, the troy pound, 
 five thousand seven hundred and sixty. The 
 troy pound contains twelve ounces; that of 
 avoirdupois sixteen ounces. 
 
 In Money. The sum of twenty shil- 
 lings. Previous to the establishment of the 
 federal currency, the different states made 
 use of the pound in computing money. It 
 was of different value in the several states. 
 
 Pound sterling is a denomination of mon- 
 ey of Great Britain. It is of the value of 
 
 a sovereign). In calculating the rates of 
 duties,' the pound sterling shall be con- 
 sidered and taken as of the value of four 
 dollars and eighty cents. Act , March 3, 
 1833. 
 
 The pound sterling of Ireland is to be com- 
 puted, in calculating said duties, at four 
 dollars and ten cents. Id. 
 
 The pound of the British provinces of 
 Nova Scotia, New Brunswick, Newfoundland, 
 and Canada is to be so computed at four 
 dollars. Act May 22, 1846. 
 
 POUND BREACH. The offense of break- 
 ing a pound in order to take out the cattle 
 impounded. 3 Bl. Comm. 146. The writ de 
 parco fracto, or pound breach, lies for recov- 
 ering damages for this offense; also case. 
 Id. It is also Indictable. 
 
 POUNDAGE. In practice. The amount 
 allowed to the sheriff, or other officer, for 
 commissions on the money made by virtue 
 of an execution. This allowance varies in 
 different states, and to different oflicers. 
 
 POUR COMPTE DE QUI IL APPAR- 
 
 tlent (Pr.) For account of whom it rnay con- 
 cern. Emerig. Tr. des Assur. c. 11, sec. 4, § 
 3. A phrase in insurance law. 
 
 POUR SEISIR TERRES (Law Fr. for seiz- 
 ing the lands). In old practice. A writ by 
 which the king seized the land which the 
 wife of a tenant in capite, deceased, had for 
 her dower, if she married without his leave. 
 Cowell. ' 
 
 POURPARLER. In French law. The con- 
 versations and negotiations which have 
 taken place between the parties in order to 
 make an agreement. These form no part 
 of the agreement. Pardessus, Dr. Com. 142. 
 
 POUR PARTY (Law Fr.; Law Lat. pro- 
 pars, propartis, propartia). In old English 
 law. Division; a divided share. Literally, 
 "■for," or as "divided" (pour parti) ; a close 
 translation of the Latin phrase pro diviso. 
 To make pourparty is to divide and sever 
 the lands that fall to parceners, which, be- 
 fore partition, they held jointly and pro 
 indiviso. Cowell. 
 
 POURPRESTURE. See "Purpresture." 
 
 POURSUIVANT. A follower; a pursuer. 
 In the ancient English law, it signified an 
 officer who attended upon the king in his 
 wars, at the council tabje, exchequer, in his 
 court, etc., to be sent as a messenger. A 
 poursuivant was, therefore, a messenger of 
 the king. 
 
 POURVEYANCE (Law Fr.and Eng.; from 
 Pr. pmirvoire, to provide). In old English 
 'aw. The providing corn (grain), fuel, vict- 
 ual, and other necessaries for the king's 
 house. Cowell. See "Purveyance." 
 
 POURVEYOR (from Fr. pourvoire, to pro- 
 vide). In old English law. An oflicer of 
 the king or queen, or other great personage, 
 that provided corn (grain) and other victual 
 for their house. Cowell. See "Purveyor." 
 
POUSTIE 
 
 (711) 
 
 PRACTICAL CONSTRUCTION 
 
 POUSTIE, or POISTEE (Scotch). In 
 Scotch law. Power. 1 Pitc. Grim. Tr. pt. 1, 
 p. 162. See "Liege Poustie." A word formed 
 from the Latin potestas. 
 
 POVERTY AFFIDAVIT. A term used in 
 a few states for an affidavit in forma pau- 
 peris. See "In Forma Pauperis." 
 
 POWER. The right, ability, or faculty of 
 doing something. 
 
 An authority by which one person enables 
 another to do some act for him. 2 Lilly, 
 Abr. 339. 
 
 In a more technical sense, an authority 
 vested in one person to dispose of an estate 
 which is vested in another. 
 
 (1) Inherent powers are those which are 
 enjoyed by the possessors of natural right, 
 without having been received from another. 
 Such are the powers of a people to establish 
 a form of government, of a father to control 
 his children. Some of these are regulated 
 and restricted in their exercise by law, but 
 are not technically considered in the law 
 as powers. 
 
 (2) Derivative powers are those which are 
 received from another. This division in- 
 cludes all the powers technically so called. 
 They are of the following classes; 
 
 (a) Naked, being a right of authority dis- 
 connected from any interest of the donee in 
 the subject matter. 3 Hill (N. Y.) 365. 
 
 (b) Coupled with an interest, being a 
 right or authority to do some act, together 
 with an interest in the subject on which the 
 power is to be exercised. Marshall, C. J., 8 
 Wheat. (U. S.) 203. 
 
 A power of this class survives the person 
 creating it, and, in case of an excess in exe- 
 cution, renders the act valid so far as the 
 authority extends, leaving it void as to the 
 remainder only. It includes powers of sale 
 conferred on a mortgagee. 
 
 Powers under the Statute of Uses. 
 
 An authority enabling a person, through the 
 medium of the statute of uses, to dispose of 
 an interest in real property, vested either 
 in himself or another person. 
 
 Methods of causing a use, with its accom- 
 panying estate, to spring up at the will of a 
 given person. Williams, Real Prop. 245; 2 
 Washb. Real Prop. 300. 
 
 The right to designate the person who is 
 to take a use. Co. Litt. 271b, Butler's note, 
 231, § 3, pi. 4. 
 
 A right to limit a use. 4 Kent, Comm. 334. 
 
 An authority to do some act in relation 
 to lands, or the creation of estates therein, 
 or of charges thereofi, which the owner grant- 
 ing or reserving such power might himself 
 lawfully perform. Rev. St. N. Y. 
 
 Powers are divided generally into powers 
 of appointment, being those which are to 
 create new estates, and powers of revoca- 
 tion, which are to divest or abridge an exist- 
 ing estate. But as every appointment must 
 divest an existing estate, the distinction is of 
 doubtful exactness. 
 
 They are distinguished as: 
 
 (1) Appendant, being those which the 
 donee is authorized to exercise out of the es- 
 tate limited to him, and which depend for 
 their validity upon the estate which is in 
 
 him. 2 Washb. Real Prop. 304. A life es- 
 tate limited to a man, with a power to grant 
 leases in possession, is an example. Hardr. 
 416; 1 Caines, Gas. (N. Y.) 15; Sugd. (Pow. 
 Ed. 1856) 107; Burton, Real Prop. § 179. 
 
 (2) Collateral, being those in which the 
 donee has no estate in the land. 2 Washb. 
 Real Prop. 305. 
 
 (3) General, being those by which the 
 donee is at liberty to appoint whom he 
 pleases. 
 
 (4) Special, being those in which the 
 donee is restricted to an appointment to or 
 among particular objects only. 2 Washb. 
 Real Prop. 307. 
 
 (5) In gross, being those which give a 
 donee, who has an estate in the land, au- 
 thority to create such estates only as will 
 not attach on the interest limited to him^or 
 take, effect out of his own interest. 2 Cow. 
 (N. Y.) 236; White & T. Lead. Gas. 293; 
 Watk. Gonv. 260. 
 
 (6) Beneficial, when by its terms no per- 
 son other than the donee has any interest 
 in its execution. See "Beneficial Power." 
 
 (7) In trust, when any person or class of 
 persons is designated to receive the benefit. 
 
 Designation of Parties. The person 
 
 bestowing a power is called the "donor;" 
 the person on whom it is bestowed is called 
 the "donee;" the person who receives the 
 estate by appointment of the donee is called 
 the "appointee." When, referred to in con- 
 nection with the appointee, the donee is 
 sometimes called the "appointor." 
 
 By statute in New York, the term "gran- 
 tor of a power" is used to denote the person 
 by whom a power is created, and "grantee 
 of a power" to denote the person in whom it 
 is vested. 4 Rev. St. N. Y. § 135, p. 2451. 
 
 POWER OF ATTORNEY. An instrument 
 authorizing a person to act as the attorney 
 in fact of the person granting it. 
 
 A general power authdrizes the agent to 
 act generally in behalf of the principal. 
 
 A special power is one limited to particular 
 acts. 
 
 POYNDING. See "Poinding." 
 
 POYNINGS' LAWS. A set of statutes en- 
 acted in the tenth year of Henry VII. (so 
 called from Sir Edward Poynings, being 
 then lord deputy) , regulating the method of 
 passing statutes in Ireland. By another of 
 these laws it was provided that all acts of 
 parliament before made in England should 
 be in force within the realm of Ireland. 1 
 Bl. Comm. 102, 103. 
 
 P'P'M. A contraction of perpetunin. 1 Inst. 
 Cler. 11. 
 
 PRACTICAL CONSTRUCTION. 
 
 Of a Statute. One determined by 
 
 long-established procedure under it, to which 
 deference will be paid by the courts in in- 
 terpreting the statute, if possible, without 
 doing violence to its terms. 16 Ohio, 559; 
 49 Mo. 404; 93 111. 191. 
 
 Of a Contract. That given to the con- 
 tract by the parties, and under which they 
 acted in performing it. Such an interpreta- 
 
PRACTICAL LOCATION 
 
 (712) 
 
 PRAEDICTUS, ETC. 
 
 tion will be effectuated by the court, if pos- 
 sible. 76 U. S. 50; 80 U. S. 608; 41 Minn. 
 308; 41 Neb. 56; 67 Vt. 1. 
 
 PRACTICAL LOCATION. Mutual acqui- 
 escence in a known boundary line for a 
 long period of time. 47 Barb. (N. Y.) 287. 
 
 PRACTICE. The form, manner, and or- 
 der of conducting and carrying on suits or 
 prosecutions in the courts through their 
 various stages, according to the principles 
 of law and the rules laid down by the re- 
 spective courts. 
 
 PRACTICE COURT. In English law. A 
 court attached to the court of l!;ing's bench, 
 which hears and determines common mat- 
 ters of business and ordinary motions for 
 writs of mandamus, prohibition, etc. 
 
 It was formerly called the "bail court." 
 It is held by one of the puisne justices of 
 the king's bench. 
 
 PRACTICES. A succession of acts of a 
 similar kind, or in a like employment. Web- 
 ster. 
 
 PRACTICKS. In Scotch law. The deci- 
 sions of the court of session, as evidence of 
 the practice or custom of the country. Bell, 
 Diet. 
 
 PRAEBENDA (Law Lat.) In old English 
 law. A prebend. Bracton, fol. 442b; Pleta, 
 lib. 2, c. 54, § 10; Id. c. 69, § 3. 
 
 An allowance of fodder for horses and 
 cattle. Pleta, lib. 2, c. 76, § 8. 
 
 PRAECEPTORES (Lat.) Heretofore mas- 
 ters in chancery were so called, as having 
 the direction of making out remedial writs. 
 Fleta, 76; 2 Reeve, Hist. Eng. Law, 251. A 
 species of benefice, so called from being pos- 
 sessed by the principal templars (praecep- 
 tores tempU), whom the chief master by his 
 authority created. 2 Mon. Angl. 543. 
 
 PRAECEPTORIES. A kind of feudal ben- 
 efices; so called because they were possessed 
 by the more eminent templars, whom the 
 chief master by his authority created and 
 called Praeceptores TempU. 2 Mon. Angl. 
 543. 
 
 PRAECIPE, or PRECIPE (Lat.) A slip of 
 paper upon which the particulars of a writ 
 are written. It is lodged in the office out of 
 which the required writ is to issue. "Whar- 
 ton. 
 
 PRAECIPE IN CAPITE. A writ of chan- 
 cery which lay (in case of his deforcement) 
 for a tenant holding of the crown in capite, 
 viz., in chief. Magna Charta, c. 24. 
 
 PRAECIPE QUOD REDDAT (Lat.) Com- 
 mand him to return. An original writ, of 
 which praecipe is the first word, command- 
 ing the person to whom it is directed to do a 
 thing, or to show cause why he has not done 
 it. 3 Bl. Comm. 274; Old Nat. Brev. 13. It 
 is as well applied to a writ of right as to 
 other writs of entry and possession. 
 
 PRAECIPE QUOD TENEAT CONVEN- 
 
 tlonem. The writ which commenced the ac- 
 tion of covenant in fines. Abolished by 3 
 & 4 Wm. IV. c. 74. 
 
 PRAECIPITIUM. The punishment of cast- 
 ing headlong from some high place. 
 
 PRAECIPUT CONVENTIONNEL. In the 
 
 French law, under the regime en commun- 
 aute, when that is of the conventional kind, 
 if the surviving husband or wife is entitled 
 to take any portion of the common property 
 by a paramount title, and before partition 
 thereof, this right is called by the somewhat 
 barbarous title of the conventional praeciput, 
 from prae, before, and capere, to take. 
 Brown. 
 
 PRAECO (Lat.) , 
 
 In Roman Law. A herald or crier. 
 
 Adams, Rom. Ant. 189, 190. 
 
 In Modern Practice. The crier of a 
 
 court. Bac. Works, iv. 316. 
 
 PRAECOGNITA. Things to be previously 
 known in order to the understanding of 
 something which follows. 
 
 PRAEDA BELLICA (Lat.) Booty; prop- 
 erty seized in war. 
 
 PRAEDIA (Lat.) In civil law. Lands. 
 
 Praedia urbana, those lands which have 
 buildings upon them and are in the city. 
 
 Praedia rustica, those lands which are 
 without buildings or in the country. Vocat. 
 
 It indicates a more extensive domain than 
 fundus. Calv. Lex. 
 
 PRAEDIA STIPENDIARIA. In the civil 
 law, provincial lands belonging to the people. 
 
 PRAEDIA TRIBUTARIA. In the civil law, 
 provincial lands belonging to the emperor. 
 
 PRAEDIAL. That which arises immedi- 
 ately from the ground; as, grain of all sorts, 
 hay, wood, fruits, herbs, and the like; as 
 praedial tithes. 2 Bl. Comm. 23. 
 
 PRAEDIAL (or PREDIAL) SERVITUDE. 
 
 A right which is granted for the advantage 
 of one piece of land over another, and which 
 may be exercised by every possessor of the 
 land entitled against, every possessor of the 
 servient land. It always presupposes two 
 pieces of land {praedia) belonging to dif- 
 ferent proprietors; one burdened with the 
 servitude, called "praedium serviens," and 
 one for the advantage of which the servitude 
 is conferred, called "praedium dominans." 
 Mackeld. Civ. Law, § 306; Inst. 2. 3; Dig. 8. 
 1-6. 
 
 PRAEDIAL TITHES. Arising out of or 
 from land. Natural products not principally 
 produced by care and nurture, as corn, 
 grass, hops, wood. 2 Bl. Comm. 24. 
 
 PRAEDICTUS, PRAEDICTA, or PRAE- 
 dictum (Lat.) In old pleading. Aforesaid. 
 Abbreviated in old entries praed., praedict., 
 p'dc'us, etc. Hob. 117; 10 Coke, 65. 
 
 Of the three words, idem, praedictus, and 
 praefatus (all corresponding to the English 
 
PRAEDIUM DOMINANS 
 
 (713) 
 
 PRAESCRIPTIO, ETC. 
 
 aforesaid) , idem was most usually applied to 
 plaintiffs or demandants; praedictus, to de- 
 fendants or tenants, places, towns, or lands; 
 and praefatus, to persons named, not being 
 actors or parties. Towns. PI. 15. 
 
 PRAEDIUM DOMINANS (Lat. the ruling 
 estate). In civil law. The name given to 
 an estate to which a servitude is due. It is 
 called the ruling estate. 
 
 PRAEDIUM RUSTICUM (Lat. a country 
 estate). In civil law. By this is under- 
 stood all heritages which are not destined 
 for the use of man's habitation; such, for 
 example, as lands, meadows, orchards, gar- 
 dens, woods, even though they should be 
 within the boundaries of a city. 
 
 PRAEDIUM SERVIENS (Lat.) In civil 
 law. The name of an estate which suffers 
 or yields a service to another estate. 
 
 PRAEDIUM URBAN UM (Lat.) In civil 
 law. By this term is understood buildings 
 and edifices intended for the habitation and 
 use of man, whether they be built in cities, 
 or whether they be constructed in the coun- 
 try. 
 
 PRAEDO (Lat.) In Roman law. A rob- 
 ber. See Dig. 50. 17. 126. 
 
 PRAEFATUS. In old pleadings. Afore- 
 said. Sometimes abbreviated to praefat. and 
 p. fat. See "Praedictus." 
 
 PRAEFECTUS (Lat.) 
 
 In the Roman Law. A chief officer; a 
 
 governor or commander. The title of va- 
 rious officers and magistrates. Dig. 1. 11; 
 Id. 1. 12; Id. 1. 15; Code, 1. 28; Calv. Lex. 
 
 In Old English Law. The chief officer 
 
 of a hundred, and other divisions. Spelman, 
 voc. "Pjaepositus." 
 
 PRAEFECTUS VIGILIUM (Lat.) In Ro- 
 man law. The chief officer of the night 
 watch. His jurisdiction extended to certain 
 offenses affecting the public peace, and even 
 to larcenies; but he could inflict only slight 
 punishments. 
 
 PRAEFINE. The fee paid on suing out 
 the writ of covenant, on levying fines, before 
 the fine was passed. 2 Bl. Comm. 350. 
 
 PRAEJUDICIALIS (Lat.from prae, before, 
 and judicare, to judge). In the civil law. 
 That which is to be predetermined, or de- 
 cided before something else. See "Actio 
 Praejudicialis." 
 
 PRAEJUDICIUM (Law Lat.) In old Eng- 
 lish law. Prejudice; detriment; disparage- 
 ment. Bracton, fol. 19. Sine praejudicio 
 melioris sententiae, without prejudice to the 
 better opinion. Id. fol. 48. A common 
 phrase used by Bracton, when expressing 
 his own opinion on any point. 
 
 PRAEJURAMENTUM (Law Lat.) In old 
 English law. A preparatory oath. 
 
 PRAEMIUM (Lat.) Reward; compensa- 
 tion. Praemium assecurationis, compensa- 
 
 tion for insurance; premium of insurance. 
 Locc. de Jur. Mar. lib. 2, c. 5, § 6. Now used 
 in the law of insurance, as a common Eng- 
 lish word. 
 
 PRAEMIUM PUDICITLAE (Lat.) The 
 price of chastity; or compensation for loss 
 of chastity. A term applied to bonds and 
 other engagements given for the benefit of a 
 seduced female. Sometimes called premium 
 pudoris. 2 Wils. 339, 340. 
 
 PRAEMUNIRE (Lat.) In order to pre- 
 vent the pope from assuming the supremacy 
 in granting ecclesiastical livings, a number 
 of statutes were made in England, during 
 the' reigns of Edward I. and his successors, 
 punishing certain acts of submission to the 
 papal authority therein mentioned. In the 
 writ for the execution of these statutes, the 
 words praemunire facias, being used to com- 
 mand a citation of the party, gave not only 
 to the writ, but to the offense itself of main- 
 taining the papal power, the name of prae- 
 munire. Co. Litt. 129; Jacob. 
 
 PRAENOMEN (Lat.) Forename, or first 
 name. The first of the three names by which 
 the Romans were commonly distinguished. 
 It marked the individual, and was commonly 
 written with one letter; as A. for Aulus; C. 
 for Caius, etc. Adams, Rom. Ant. 35. See 
 Fleta, lib. 4, c. 10, § 9; Butler, Hor. Jur. 28. 
 
 PRAEPOSITUS. An officer next in author- 
 ity to the alderman of a hundred, called 
 praepositus regius; or a steward or bailiff 
 of an estate, answering to the wicnere. 
 
 Also the person from whom descents are 
 traced under the old canons. 
 
 One who was set over others; a presiding 
 officer. 
 
 PRAEPOSITUS ECCLESIAE. A church 
 reeve, or warden. iSpelman. 
 
 PRAEPOSITUS VILLAE. A constable of 
 a town, or petty constable. 
 
 PRAEPROPERA CONSILIA, RARO SUNT 
 prospera. Hasty counsels are seldom pros- 
 perous. 4 Inst. 57. 
 
 PRAESCRIPTIO (Lat.) In the civil law. 
 That mod^ of acquisition whereby one be- 
 comes proprietor of a thing on the ground 
 that he has for a long time possessed it as 
 his own; prescription. Dig. 41. 3; 1 Mack- 
 eld. Civ. Law, p. 290, § 276. It was an- 
 ciently distinguished from "usuoapio," (q. 
 v.), but was blended with it by Justinian. 
 Heinec. Elem. Jur. Civ. lib. 2, tit. 6, § 438. 
 
 PRAESCRIPTIO EST TITULUS EX USU 
 et tempore substantlam capiens ab auctori- 
 tate legis. Prescription is a title by au- 
 thority of law, deriving its force from use 
 and time. Co. Litt. 113. 
 
 PRAESCRIPTIO ET EXECUTIO NON 
 pertinent ad valorem contractus, sed ad tem- 
 pus et modum actlonis Instltuendae. Pre- 
 scription and the execution of a contract do 
 not affect the validity of the contract, but 
 the time and manner of bringing an action. 
 3 Mass. 84; 3 Johns. Ch. (N. Y.) 190, 219. 
 
PRAESCRIPTIONES 
 
 (714) 
 
 PRAETOR 
 
 PRAESCRIPTIONES. In Roman law. 
 Forms of words (of a aualifying character) 
 inserted in the formulae in which the claims 
 in actions were expressed, and, as they oc- 
 cupied an early place in the formulae, they 
 were called by this name, i. e., qualifications 
 preceding the claim. For example, in an 
 action to recover the arrears of an annuity, 
 the claim was preceded by the words "so far 
 as the annuity is due and unpaid," or words 
 to the like effect {cujus rei dies fuit). 
 Brown. 
 
 PRAESENTARE NIHIL ALIUD EST 
 quam praesto dare seu offerre. To present 
 is no more than to give or offer on the spot. 
 Co. Litt. 120. 
 
 PRAESENTIA CORPORIS TOLLIT ER- 
 rorem nominis, at Veritas nominis tollit er- 
 rorem demonstrationis. The presence of the 
 body cures the error in the name; the truth 
 of the name cures an error in the descrip- 
 tion. Bac. Max. reg. 25; Broom, Leg. Max. 
 (3d London Ed.) 568; 6 Coke, 66; 3 Barn. 
 & Adol. 640; 6 Term R. 675; 11 C. B. 996; 
 1 H. L. Cas. 792; 3 De Gex, M. & G. 140. 
 
 PRAESES (Lat.) In the Roman law. A 
 president, or governor. Dig. 1. 18. 1. Called 
 a nomen generale, including proconsuls, 
 legates, and all who governed provinces. Id. 
 
 PRAESIDIUM (Lat.) In the civil law. A 
 guard; a fortress; a defense, aid, or shelter. 
 
 In records of the middle ages, all house- 
 hold stuff or effects, including particularly 
 gold and silver. Spelman. Every kind of 
 property, real as well as personal (omnis vis 
 bonorum,, tan immoMUum quam moMlium). 
 Id. 
 
 PRAESTARE (Lat.) 
 
 In Old English Law. To pay, give, or 
 
 render; to make or execute; to perform. 
 Praestitit sacramentum, made oath, or took 
 an oath. T. Raym. 34; 2 Ld. Raym. 1376; 
 Mem. in Scacc. P. 16 Bdw. I. 
 
 To make good. Praestare tenetur quod- 
 cunque damnum obveniens in mari, the in- 
 surer is bound to make good any loss hap- 
 pening on the sea. 3 Kent, Comm. 291. 
 
 In Old European Law. To lease, or 
 
 let to farm. Chart. Alaman. 75; Spelman. 
 
 PRAESTAT CAUTELA QUAM MEDELA. 
 
 Prevention is better than cure. Co. Litt. 
 304. 
 
 PRAESUiWATUR PRO JUSTITIA SEN- 
 tentiae. The justice of a sentence should be 
 presumed. Best, Bv. Introd. 42; Mascardus 
 de Prob. Cone. 1237, note 2. 
 
 PRAESUMITUR PRO LEGITIMATIONE. 
 
 Legitimacy is to be presumed. 5 Coke, 98b; 
 1 Bl. Comm. 457. 
 
 PRAESUMITUR PRO NEGANTE. It is 
 presumed for the negative. The rule of the 
 house of lords when the numbers are equal 
 on a motion. Wharton. 
 
 PRAESUMPTIO, EX EO QUOD PLERUM- 
 que fit. Presumptions arise from what gen- 
 erally .happens. 22 Wend. (N. Y.) 425, 475. 
 
 PRAESUMPTIO FORTIOR (Lat.) A 
 strong (literally, stronger) presumption (of 
 fact). One which determines the tribunal 
 in its belief of an alleged fact, without, how- 
 ever, excluding the belief of the possibility 
 of its being otherwise; the effect of which is 
 to shift the burden of proof to the opposite 
 party, and if this proof be not made, the 
 presumption is held for truth. Hub. Prael. 
 J. C. lib. 22, tit. 3, note 16; Burrill, Circ. 
 Ev. 66. 
 
 PRAESUMPTIO HOMINIS (Lat.) The 
 presumption of the man or individual; that 
 is, natural presumption unfettered by strict 
 rule. Heinec. ad Pand. par. 4, § 124. 
 
 PRAESUMPTIO JURIS (Lat.) In Roman 
 law. A deduction from the existence of one 
 fact as to the existence of another which ad- 
 mits of proof to the contrary. A rebuttable 
 presumption. An intendment of law which 
 holds good until it is weakened by proof or 
 a stronger presumption. Best, Pres. 29. 
 
 PRAESUMPTIO JURIS ET DE JURE 
 
 (Lat.) In Roman law. A deduction drawn, 
 by reason of some rule of law, from the ex- 
 istence of one fact as to the existence pf an- 
 other, so conclusively that no proof can be 
 admitted to the contrary. A conclusive pre- 
 sumption. 
 
 PRAESUMPTIO VIOLENTA, PLENA 
 probatio. Violent presumption is full proof. 
 
 PRAESUMPTIO VIOLENTA VALET IN 
 lege. Strong presumption avails in law. 
 Jenk. Cent. Cas. 58. 
 
 PRAESUMPTIONES SUNT CONJECTU- 
 rae ex signo verisimili ad probandunn as- 
 sumptae. Presumptions are conjectures from 
 probable proof, assumed for purposes of evi- 
 dence. J. Voet. Com. ad Pand. lib. 22, tit. 
 3, note 14. 
 
 PRAETEXTU LICITI NON DEBET AD- 
 mitti illicitum. Under pretext of legality, 
 what is illegal ought not to be admitted. 
 10 Coke, 88. 
 
 PRAETOR. In Roman law. A municipal ■ 
 officer of Rome, so called because {praeiret 
 ■populo) he went before or took precedence 
 of the people. 
 
 The consuls were at first called praetors. 
 Liv. Hist. iii. 55. He was a sort of minister 
 of justice, invested with certain legislative 
 powers, especially in regard to the forms or 
 formalities of legal proceedings. Ordinarily, 
 he did not decide causes as a judge, but pre- 
 pared the grounds of decision for the judge, 
 and sent to him the questions to be de- 
 cided between the parties. The judge was 
 always chosen by the parties, either directly, 
 or by rejecting, under certain rules and lim- 
 itations, the persons proposed to them by 
 the praetor. Hence the saying of Cicero 
 (pro Gluentis, 43) that no one could be 
 judged except by a judge of his own choice. 
 There were several kinds of officers Called 
 praetors. See Vicat. 
 
 Before entering on his functions, he pub- 
 lished an edict announcing the system adopt- 
 
PRAETOR FIDEI, ETC. 
 
 (715) 
 
 PRECARIOUS RIGHT 
 
 ed by him for the application and interpreta- 
 tion of the laws during his magistracy. His 
 authority extended over all jurisdictions, 
 and was summarily expressed by the words 
 do, dico, addico, i. e., do, I give the action; 
 dico, I declare the law, I promulgate the 
 edict; addico, I invest the judge with the 
 right of judging. There were certain cases 
 which he was bound to decide himself, as- 
 sisted by a council chosen by himself, — per- 
 haps the decemvirs ; but the greater part of 
 causes brought before him he sent either to 
 a judge, an arbitrator, or to recuperators 
 (recuperatores) , or to the oentumvirs, as be- 
 fore stated. Under the empire, the powers 
 of the praetor passed by degrees to the pre- 
 fect of the praetorium, or the prefect of the 
 city, so that this magistrate, who at first 
 ranked with the consuls, at last dwindled in- 
 to a director or manager of the public spec^ 
 tacles or games. 
 
 Till lately, there were officers in certain 
 cities of Germany denominated praetors. 
 See 1 Kent, Comm. 528. 
 
 PRAETOR FIDEI COMMISSARIUS (Lat.) 
 In the civil law. A special praetor created 
 to pronounce judgment in cases of trusts or 
 fidei commissa. Inst. 2. 23. 1; 2 Story, Bq. 
 Jur. § 966. Called, by Lord Bacon, a "par- 
 ticular chancellor for uses." Bac. Law Tr. 
 315; 4 Kent, Comm. 290. 
 
 PRAEVARICATOR (Lat.) In the civil 
 law. One who betrays his trust, or is un- 
 faithful to his trust. An advocate who aids 
 the opposite party by betraying his client's 
 cause. Dig. 47. 15. 1. Used in Spanish law. 
 Las Partidas, pt. 3, tit. 6, lib. 15. 
 
 PRAEVENTO TERMINO. In old Scotch 
 practice. A form of action known in the 
 forms of the court of session, by which a 
 delay to discuss a suspension or advocation 
 was got the better of. Bell, Diet. 
 
 PRAGMATIC SANCTION. 
 
 In French Law. An expression us^ed 
 
 to designate those ordinances which concern 
 the most important object of the civil or ec- 
 clesiastical administration. Merljn, Repert. ; 
 1 Pournel, Hist, de Avocats, 24, 38, 39. 
 
 In Civil Law. The answer given by 
 
 the emperors on questions of law, when con- 
 sulted bsr a corporation or the citizens of a 
 province or of a municipality, was called a 
 "pragmatic sanction." Lee. Elm. § 53. This 
 differed from a "rescript." 
 
 PRAGMATICA (Spanish). In Spanish co- 
 lonial law. An order emanating from the 
 sovereign, and differing from a cedula only 
 in form and in the mode of promulgation. 
 Schmidt, Civ. Law, Introd. 93, note. 
 
 PRAXIS JUDICUM EST INTERPRESLE- 
 gum. The practice of the judges is the in- 
 terpreter of the laws. Hob. 96; Branch, 
 Princ. 
 
 PRAY IN AID. In old English practice. 
 To call upon for assistance. In real actions, 
 the tenant might pray in aid or call for as- 
 sistance of another, to help him to plead, be- 
 cause of the feebleness or imbecility of his 
 
 own estate. 3 Bl. Comm. 300. See "Aid 
 Prayer." 
 
 PRAYER. In equity practice. The re- 
 quest in a bill that the court will grant the 
 aid which the petitioner desires. That part 
 of the bill which asks for relief. The word 
 denotes, strictly, the request, but is very 
 commonly applied to that part of the bill 
 which contains the request. 
 
 PREAMBLE. An introduction prefixed to 
 a statute, reciting the intention of the legis- 
 lature in framing it, or the evils which led 
 to its enactment. 
 
 A preamble is said to be the key of a stat- 
 ute, to open the minds of the makers as to 
 the mischiefs which are to .remedied, and 
 the objects which are to be accomplished, 
 by the provisions of the statute. 4 Inst. 330; 
 6 Pet. (U. S.) 301. In modern legislative 
 practice, preambles are much less used than 
 formerly, and in some of the United States 
 are rarely, if ever, now inserted in statutes. 
 In the interpretation of a statute, though re- 
 sort may be had to the preamble, it cannot 
 limit or control the express provisions of 
 the statute. Dwarr. St. 504-508. Nor can it 
 by implication enlarge what is expresslx 
 fixed. 1 Story, Const, bk. 3, c. 6; 3 McCord 
 (S. C.) 298; 15 Johns. (N. Y.) 89; Busb. 
 (N. C.) 131; 2 Ware (U. S.) 38. 
 
 PREAPPOINTED EVIDENCE. Evidence 
 whose nature and quantity are prescribed 
 beforehand by law, as for the attestation of 
 wills. 
 
 PREAUDIENCE. The right of being heard 
 before another. A privilege belonging to 
 the English bar, the members of which 
 are entitled to be heard in their order, ac- 
 cording to rank, beginning with the queen's 
 attorney general,, and ending with barristers 
 at large. 3 Bl. Comm. 28, note; 3 Steph. 
 Comm. 387, note. 
 
 PREBEND. In ecclesiastical law. The sti- 
 pend granted to an ecclesiastic, in consider- 
 ation of officiating in the church. It is in 
 this distinguished from a "canonicate," 
 which is a mere title, and may exist with- 
 out stipend. The prebend may be a simple 
 stipend, or a stipend with a dignity attached 
 to it, in which case it has some jurisdiction 
 belonging to it. 2 Burn, Ecc. Law, 88; 
 Strange, 1082; 1 Term R. 401; 2 Term R. 
 630; 1 Wils. 206; Dyer, 273a; 7 Barn. & C. 
 113; 8 Bing. 490; 5 Taunt. 2. 
 
 PREBENDARY (Lat. fifdrhciularhix, from 
 pracheiula). In English ecclesiastical law. 
 One that has a prebend (g. r.) Cowell. The 
 stipendiary of a cathedral or collegiate 
 church. Webster. 
 
 PRECARIOUS RIGHT. The right which 
 the owner of a thing transfers to another, to 
 enjoy the same until it shall please the own- 
 er to revoke it. 
 
 If there is a time fixed during which the 
 right may be used, it is then vested for that 
 time and cannot be revoked until after its 
 expiration. Wolff. Inst. § 333. 
 
PRECARIUM 
 
 (716) 
 
 PREDECESSOR 
 
 PRECARIUM (Lat.) The name of a con- 
 tract among civilians, by which the owner of 
 a thing, at the request of another person, 
 gives him a thing to use as long as the own- 
 er shall please. Poth. note 87. See Yelv. 
 172; Cro. Jac. 236; 9 Cow. (N. Y.) 687; Rolle, 
 128; Bac. Abr. "Bailment" (C); Ersk. Inst. 
 3. 1. 9; WolfC. Inst. § 333. 
 
 A tenancy at will is a right of this kind. 
 
 PRECARLAE, or PRECES (Law Lat.) In 
 old English law. Days' works, which the 
 tenants of some manors were bound, by rea- 
 son of their tenure, to do for the lord in 
 harvest. Vulgarly called "bind days," which 
 Spelman supposes to be a corruption of 
 "biden days," which, in Saxon, answered to 
 dies precariae (literally, pray days, or 
 prayed days), the Saxon Mden signifying to 
 pray. Spelman; Cowell. 
 
 PRECATORY TRUST. A trust created by 
 certain words, which are more like words 
 of entreaty and permission than of com- 
 mand or certainty. Examples of such words, 
 which the courts have held sufficient to con- 
 stitute a trust, are "having full confidence, 
 I hereby request" (59 "Wis. 172), "recom- 
 mend and request" (127 U. S. 300), "re- 
 quest" (82 N. Y. 405), "hope and trust" (109 
 XT. S. 725), and the like. At the present 
 time, the courts are not disposed to en- 
 large the number of such phrases, so as to 
 crefite a trust. 2 Pom. Bq. Jur. § 1016. 
 
 PRECATORY WORDS. Words which cre- 
 ate a precatory trust (g. v.) 
 
 PRECEDENCE, PATENT OF. In English 
 law. A grant from the crown to such bar- 
 risters as it thinks proper to honor with that 
 mark of distinction, whereby they are enti- 
 tled to such rank and preaudience as are 
 assigned in their respective patents. 3 
 Steph. Comm. 274. 
 
 PRECEDENT CONDITION. See "Condi- 
 tion." 
 
 PRECEDENTS. Authorities to be fol- 
 lowed in courts of justice. A term particu- 
 larly applied to judicial decisions upon points 
 of law arising in any given case. 1 Kent, 
 Comm. 475, 476. These are recognized in 
 equity as well as at law. 1 Story, Bq. Jur. 
 § 18. The old books are full of expressions 
 in support of precedents. Jenk. Cent. Gas. 
 viii. See "Stare Decisis." 
 
 Written forms of proceedings which have 
 been approved by the courts, or by long pro- 
 fessional usage, and are to be (usually strict- 
 ly) followed. Steph. PI. 392. Lord Bacon ob- 
 serves that there are political as well as 
 legal precedents. Bac. Works, iv. 354. 
 
 PRECEPT (Lat. preclpto, to command). A 
 writ directed to the sheriff, or other officer, 
 commanding him to do something. 
 
 PRECEPT OF CLARE CONSTAT. In 
 
 Scotch feudal law. An acknowledgment by 
 the lord of the right of an heir of the tenant 
 to succeed to his right. 
 
 PRECES (Lat.) In the Roman law. Pray- 
 
 ers. One of the names of an application tc 
 the emperor. Tayl. Civ. Law, 230. 
 
 PRECINCT. 
 
 In English Law. The district for 
 
 which a high or petty constable is appointed.. 
 Wilcox, Const, xii. 
 
 In American Law. A district, usually 
 
 of a subordinate character, marked out for 
 governmental purpose. See 113 U. S. 516; 
 124 Mass. 172. 
 
 PRECIPE. See "Praecipe." 
 
 PRECIPUT. In French law. An object 
 which is ascertained by law or the agree- 
 ment of the parties, and which is first to be 
 taken out of property held in common, by 
 one having a right, before a partition takes- 
 place. 
 
 The preciput is an advantage or a princi- 
 pal part to which some one is entitled prae- 
 oipium jus, which is the origin of the word 
 preciput. Dalloz; Poth. Obi. By preciput 
 is also understood the right to sue out the 
 preciput. 
 
 PRECLUDI NON (Lat.) In pleading. A 
 technical allegation contained in a replica- 
 tion which denies or confesses and avoids 
 the plea. 
 
 It is usually in the following form: "And 
 the said A. B., as to the plea of the said C. 
 D., by him secondly above pleaded, says that 
 he, the said A. B., by reason of anything by 
 the said C. D. in that plea alleged, ought not 
 to be barred from having and maintaining 
 his aforesaid action thereof against the said 
 C. D., because he says that," etc. 2 Wils. 42; 
 1 Chit. PI. 573. 
 
 PRECOGNITION. In Scotch law. The ex- 
 amination of witnesses who were present at 
 the commission of a criminal act, upon the 
 special circumstances attending it, in order 
 to know whether there Is ground for a trial, 
 and to serve for direction to the prosecutor. 
 But the persons examined may insist on hav- 
 ing their" declaration cancelled before they 
 give testimony at the trial. Brsk. Inst. 4. 4,,, 
 note 49. 
 
 PRECOGNOSCE (Scotch; from Lat. prae- 
 cognoscere). In Scotch practice. To exam- 
 ine beforehan^. Arkley, 232. 
 
 PRECONTRACT. An engagement entered 
 into by a person which renders him unable 
 to enter into another; as, a promise or cove- 
 nant of marriage to be had afterwards. 
 When made per verba de presenti, it is in 
 fact .a marriage, and in that case the party 
 making it cannot marry another person. 
 
 PREDECESSOR. One who has preceded 
 another. 
 
 This term is applied in particular to cor-, 
 porators who are now no longer such, and 
 whose rights have been vested in their suc- 
 cessor. The word "ancestor" is more usually 
 applicable to common persons. The prede- 
 cessor in a corporation stands in the same 
 relation to the successor that the ancestor 
 does to the heir. 
 
 One who has filled an office or station be- 
 fore the present incumbent. 
 
PRDEIAL SERVITUDE 
 
 (717) 
 
 PREMISES 
 
 PREDIAL SERVITUDE. 
 
 Servitude." 
 
 See "Praedlal 
 
 PRE-EMPTION. In international law. The 
 right of pre-emption is the right of a nation 
 to detain the merchandise of strangers pass- 
 ing through her territories or seas, in order 
 to afford to her subjects the preference of 
 purchase. 1 Chit. Com. Law, 103; 2 Bl. 
 •Comm. 287. 
 
 This right is sometimes regulated by 
 treaty. In that which was made between 
 the United States and Great Britain, bear- 
 ing date the 19th day of November, 1794, 
 ratified In 1795, it was agreed (article 18), 
 after mentioning that the usual munitions 
 of war, and also naval materials, should be 
 confiscated as contraband, that "whereas the 
 difiiculty of agreeing on precise cases in 
 which alone provisions and other articles not 
 generally contraband may be regarded as 
 such renders it expedient to provide against 
 the inconveniences and misunderstandings 
 which might thence arise, it is further 
 agreed that whenever any such articles so 
 being contraband according to the existing 
 laws of nations shall for that reason be 
 seized, the same shall not be confiscated, but 
 the owners thereof shall be speedily and 
 completely indemnified; and the captors, or, 
 in their default, the government under whose 
 Authority they act, shall pay to the masters 
 or owners of such vessel the full value of 
 all articles, with a reasonable mercantile 
 profit thereon, together with the freight, and 
 .also the damages incident to such deten- 
 tion." See Manning, Comm. bk. 3, c. 8. 
 
 PRE-EMPTION RIGHT. The right given 
 "to settlers upon the public lands of the Unit- 
 ed States to purchase them at a limited 
 Trice, in preference to others. 
 
 PREFECT. In French law. A chief offi- 
 cer invested with the superintendence of the 
 administration of the laws in each depart- 
 ment. Merlin, Report. 
 
 PREFERENCE. Priority of payment, or 
 right thereto. Preferences may be either in- 
 voluntary, being the right which a creditor 
 ■obtains by law to be first paid out of the 
 assets of the debtor, as by obtaining a judg- 
 ment which is a lien on his lands, or volun- 
 tary, being the paying or securing to one or 
 more of his creditors by a debtor (usually 
 insolvent) the whole or a part of their 
 ■claims, to the exclusion of the rest. 
 
 PREFERENCE SHARES. A name some- 
 times given in England to preferred stock. 
 
 PREFERENTIAL ASSIGNMENT. An as- 
 
 ■signment for the benefit of creditors, giving 
 preferences (q. r.) 
 
 PREFERRED CREDITOR. One to whom 
 the debtor has given a preference (q. v.), 
 ■or to whom he has directed that a preference 
 be given. 
 
 PREFERRED STOCK. Corporate stock 
 •entitled to priority in payment of dividends, 
 ■or to a higher rate of dividends. 
 
 PREGNANCY, PLEA OF. A plea by a 
 woman under sentence of death, on which, 
 if she be found quick with child, execution 
 is stayed. 4 Bl. Comm. 394. 
 
 PREGNANT. See "Affirmative Pregnant;" 
 "Negative Pregnant." 
 
 PREJUDICE. (Lat. prac, before, jtidlcare, 
 to judge). A forejudgment. A leaning to- 
 wards one side of a cause formed before the 
 person entertaining the same is called upon 
 to hear and determine the cause. See "Bi- 
 as." 
 
 PRELATE. The name of an ecclesiastical 
 officer. There are two orders of prelates,— 
 the first is composed of bishops, and the 
 second, of abbots, generals of orders, deans, 
 etc. 
 
 PRELEVEMENT. In French law. The 
 portion which a partner is entitled to take 
 out of the assets of a firm before any di- 
 vision shall be made of the remainder of the 
 assets between the partners. 
 
 The partner who is entitled to a preleve- 
 ment is not a creditor of the partnership, — 
 on the contrary, he is a part owner; for, if 
 the assets should be deficient, a creditor has 
 a preference over the partner. On the other 
 hand, should the assets yield any profit, the 
 partner is entitled to his portion of it, where- 
 as the creditor is entitled to no part of it, 
 but he has a right to charge interest when 
 he is in other respects entitled to it. 
 
 PRELIMINARY. Something which pre- 
 cedes; as, preliminaries of peace, which are 
 the first sketch of a treaty, and contain the 
 principal articles on which both parties are 
 desirous of concluding, and which are to 
 serve as the basis of the treaty. 
 
 PRELIMINARY ACT. In English admiral- 
 ty practice. A document narrating the par- 
 ticulars of a collision, required to be filed 
 by each solicitor in actions for damages in 
 such collision. Wharton. 
 
 PRELIMINARY INJUNCTION. Sometimes 
 called an ad interim injunction. One issued 
 at the commencement of a suit, to restrain 
 the commission of some act pending the suit. 
 
 PREMEDITATION. A design formed to 
 commit a crime or to do some other thing 
 before it is done. 
 
 Premeditation differs essentially from 
 "will," which constitutes the crime; because 
 it supposes, besides an actual will, a delib- 
 eration and a continued persistence, which 
 indicate more perversity. 
 
 It is also to be distinguished from "delib- 
 eration." "Premeditation" implies merely 
 previous contrivance or formed design, and 
 does not necessarily exclude acts on a sud- 
 den impulse. "Deliberation" implies refiec- 
 tion upon the act before committing it. 
 Fixed and determined purpose, as distin- 
 guished from sudden impulse. 58 Pa. St. 9., 
 
 PREMISES (Lat. vrae, before, mitiere, to 
 
PREMIUM 
 
 (718) 
 
 PRESCRIPTION 
 
 put, to send). That which is put before; 
 the introduction; statements previously made. 
 See 1 Bast, 456. 
 
 In Conveyancing. That part of a deed 
 
 ■which precedes the habendum, in which are 
 set forth the names of the parties, with 
 their titles and additions, and in which are 
 recited such deeds, agreements, or matters 
 of fact as are necessary to explain the rea- 
 sons upon which the contract then entered 
 into is founded; and it is here, also, the 
 consideration on which it is made is set 
 down, and the certainty of the thing granted. 
 2 Bl. Comm. 298; 8 Mass. 174; 6 Conn. 289. 
 
 In Equity Pleading. The stating part 
 
 of a bill. It contains a narrative of the 
 facts and circumstances of the plaintiff's 
 case, and the wrongs of which he complains, 
 and the names of the persons by whom done, 
 and against whom he seeks redress.^ Coop- 
 er, Eq. PI. 9; Bart. Suit in Bq. 27; Mitf. Eq. 
 PI. (Jeremy Bd.) 43; Story, Eq. PI. § 27. 
 
 Every material fact to which the 'plaintiff 
 intends to offer evidence must be stated in 
 the premises; otherwise, he will not be per- 
 mitted to offer or require evidence of such 
 fact. 1 Brown, Ch. 94; 3 Swanst. 472; 3 P. 
 Wms. 276; 2 Atk. 96; 1 Vern. 483; 11 Ves. 
 240; 2 Hare, 264; 6 Johns. (N. Y.) 565; 9 
 Ga. 148. 
 
 In Estates. Lands and tenements. 1 
 
 East, 453; 3 Maule & S. 169. 
 
 PREMIUM (from Lat. praemium, reward). 
 The sum paid or agreed to be paid by an 
 assured to the insurers, as the consideration 
 for the insurance; being a certain rate per 
 cent, on the amount insured. 1 Phil. Ins. 
 205; 3 Kent, Comm. 253. 
 
 The price of a risk. 
 
 PREMIUM PUDICITIAE (Lat. the price 
 of chastity). The consideration of a con- 
 tract by which a man promises to pay to a 
 woman with whom he has illicit intercourse 
 a certain sum of money. In the civil law, 
 sometimes applied to the compensation re- 
 covered for loss of chastity. 
 
 PREMUNIRE. See "Praemunire." 
 
 PRENDA. In Spanish law. Pledge. White, 
 New Recop. bk. 2, tit. 7. 
 
 PRENDER, or PRENDRE (Law Fr. to 
 
 take). This word is used to signify the 
 right of taking a thing before it is offered; 
 hence the phrase of law, "it lies in render, 
 but not in prender." Gale & "W. Basem.; 
 Washb. Easem. 
 
 PRENDER DE BARON (Law Pr.) In old 
 English law. A taking of husband; mar- 
 riage. An exception or plea which might be 
 used to disable a woman from pursuing an 
 appeal of murder against the killer of her 
 former husband. Staundf. P. C. lib. 3, c. 59. 
 
 PRENOMEN (Lat.) The first or Christian 
 name of a person. Benjamin is the pre- 
 nomen of Benjamin Franklin. See Cas. temp. 
 Hardw. 286; 1 Tayl. (N. C.) 148. 
 
 PREPENSE. Aforethought. See 2 Chit. 
 Crim. Law, *784. 
 
 PREROGATIVE. 
 
 In Civil Law. The privilege, pre-emi- 
 nence, or advantage which one person has 
 over another; thus, a person vested with an 
 office is entitled to all the rights, privileges, 
 prerogatives, etc., which belong to it. 
 
 In English Law. The royal preroga- 
 tive is an arbitrary power vested in the ex- 
 ecutive to do good, and not evil. Ruther- 
 forth, Inst. 279; Co. Litt. 90; Chit. Prerog.; 
 Bac. Abr. 
 
 PREROGATIVE COURT. 
 
 In English Law. An ecclesiastical 
 
 court held in each of the two provinces of 
 York and Canterbury, before a judge ap- 
 pointed by the archbishop of the province. 
 
 Formerly in this court testaments were 
 proved, and administrations granted where a 
 decedent left chattels to the value of five 
 pounds {bona notaMlia) in two distinct dio- 
 ceses or jurisdictions within the province, 
 and all causes relating to the wills, admin- 
 istrations, or legacies of such persons were 
 originally cognizable. This jurisdiction was 
 transferred to the court of probate by 20 & 
 21 Vict. c. 77, § 4, and 21 & 22 Vict. c. 95. 
 
 An appeal lay formerly from this court to 
 the king in chancerjr, by St. 25 Hen. VIII. 
 c. 19, but lies now to the privy council, by 
 St. 2 & 3 Wm. IV. c. 92. 2 Steph. Comm. 
 237, 238; 3 Bl. Comm. 65, 66. 
 
 In American Law. A court having a 
 
 jurisdiction of probate matters in the state 
 of New Jersey. 
 
 PREROGATIVE LAW. That part of the 
 common law of England which is more par- 
 ticularly applicable to the king. Com. Dig. 
 tit. "Ley" (A). 
 
 PREROGATIVE WRIT. A writ issued up- 
 on some extraordinary occasion, and for 
 which it is necessary to apply by motion to 
 the court. 3 Bl. Comm. 132. The writs of 
 procedendo, mandamus, prohibition, quo war- 
 ranto, habeas corpus, and certiorari belong 
 to this class. 3 Steph. Comm. 681. 
 
 Prerogative writs have also been distin- 
 guished from writs ministerially directed, 
 viz., those issued to the sheriff; the preroga- 
 tive writs being generally directed to no 
 sheriff or officer of the court, but to the pub- 
 lic or private parties, whose acts are the 
 subject of complaint. 2 Burrows, 855. 
 
 PRES (Law Fr.) Near. Cy pres, so near; 
 as near. See "Cy Pres." 
 
 PRESBYTER (Lat.) In civil and ecclesi- 
 astical law. An elder; a presbyter; a priest. 
 Code, 1. 3. 6. 20; Nov. 6. 
 
 PRESCRIPTION, TIME OF. See "Time 
 Immemorial." 
 
 PRESCRIBABLE. To which a right may 
 be acquired by prescription. 
 
 PRESCRIPTION. A mode of acquiring ti- 
 tle to incorporeal hereditaments by imme- 
 morial or long-continued enjoyment. 
 
 'i'he distinction between a prescription and 
 a custom is that a custom is a local usage, 
 and not annexed to a person. A prescrip- 
 
PRESCRIPTION ACT 
 
 (719) 
 
 PRESTATION 
 
 tion is a personal usage, confined to the 
 claimant and his ancestors or grantors. The 
 theory of prescription was that the right 
 claimed must have been enjoyed beyond the 
 period of the memory of man, which for a 
 long time, in England, went back to the time 
 of Richard I. To avoid the necessity of 
 proof of such long duration, a custom arose 
 of allowing a presumption of a grant on 
 proof of usage for a long term of years. In 
 modern practice, the period of legal limita- 
 tion for adverse possession of lands is gen- 
 erally adopted. -100 N. Y. 455. 
 
 To acquire title by prescription, the user 
 must be adverse (117 111, 532), exclusive (7 
 Mete. [Mass.] 33), peaceable (31 N. J. Eq. 
 706), notorious (7 Allen [Mass.] 368), and 
 continuous (2 Cush. [Mass.] 191). 
 
 PRESCRIPTION ACT. St. 2 & 3 Wm. 
 IV. c. 71, passed to limit the period of pre- 
 scription in certain cases. 
 
 PRESENCE., The being in a particular 
 place. 
 
 In many contracts and judicial proceed- 
 ings it is necessary that the parties should 
 be present in order to render them valid; 
 for example, a party to a deed, when it is 
 executed by himsellE, must personally ac- 
 knowledge it, when such acknowledgment is 
 required by law, to give it its full force and 
 effect, and his presence is indispensable, un- 
 less, indeed, another person represent him 
 as his attorney, having authority from him 
 for that purpose. 
 
 Presence at a particular transaction Is in 
 a measure relative. Thus, a crime is com- 
 mitted in the presence of a police officer if 
 he can detect the act, and could have seen 
 the persons had it been light (53 Mich. 
 493) ; and a married woman executes a deed 
 in the presence of her husband, if he was 
 under the same roof, though not in the same 
 room (112 Mass. 287). 
 
 Actual presence is being bodily in the pre- 
 cise spot indicated. 
 
 Constructive presence is being so near to 
 or in such relation with the parties actually 
 in a designated place as to be considered in 
 law as being in the place. Thus, a man was 
 held constructively present at a stage rob- 
 bery, where he built a fire on a mountain 
 forty miles distant as a notice to the robber 
 of the leaving of the stage. 13 Nev. 386. 
 
 PRESENT. A gift, or, more properly, the 
 thing given. 
 
 PRESENT ESTATE. An estate In posses- 
 sion; one presently vested. 
 
 PRESENT USE. One which has an im- 
 mediate existence, and is at once operated 
 upon by the statute of uses. 
 
 PRESENTS. This word signifies the writ- 
 ing then actually made and spoken of; as, 
 these presents; know all men by these pres- 
 ents; to all to whom these presents shall 
 come. 
 
 PRESENTATION. In ecclesiastical law. 
 The act of a patron offering his clerk to the 
 
 bishop of the diocese to be instituted in a 
 church or benefice. 
 
 PRESENTEE. In ecclesiastical law. A 
 clerk who has been presented by his patron 
 to a bishop in order to be instituted in a 
 church. 
 
 PRESENTLY. Immediately; in the pres- 
 ent tense. 
 
 PRESENTMENT. 
 
 In Criminal Practice. The written no- 
 tice taken by a grand jury of any offense, 
 from their own knowledge or observation, 
 without any bill of indictment laid before 
 them at the suit of the government. 4 Bl. 
 Comm. 301. 
 
 Upon such presentment, when proper, the 
 officer employed to prosecute afterwards 
 frames a bill of indictment, which is then 
 sent to the grand jury, and they find it to 
 be a true bill. In an extended sense, pre- 
 sentments include not only what are prop- 
 erly so called, but also inquisitions of office 
 and indictments found by a grand jury. 2 
 Hawk. P. 0. c. 25, § 1. 
 
 The difference between a presentment and 
 an inquisition is this: that the former is 
 found by a grand jury authorized to inquire 
 of offenses generally, whereas the latter is 
 an accusation found by a jury specially re- 
 turned to inquire concerning a particular 
 offense. 2 Hawk. P. C. c. 25, § 6. See, gen- 
 erally, Comyn, Dig. "Indictment" (B) ; Bac. 
 Abr. "Indictment" (A) ; 1 Chit. Crim. Law, 
 163; 7 East, 387; 1 Meigs (Tenn.) 112; 11 
 Humph. (Tenn.) 12. 
 
 The writing which contains the accusa- 
 tion so presented by a grand jury. 1 Brock. 
 (U. S.) 156. 
 
 In Contracts. The production of a 
 
 bill of exchange or promissory note to the 
 party on whom the former is drawn, for his 
 acceptance, or to the person bound to pay 
 either, for payment. 
 
 PRESS. In old practice. A piece or skin 
 of parchment, several of which used to be 
 sewed together in making up a roll or rec- 
 ord of proceedings. See 1 Bl. Comm. 183; 
 Towns. PI. 486. 
 
 PRESSING TO DEATH. See "Peine Por- 
 te et Dure." 
 
 PREST (and afterwards PRIST) (Law Fr.; 
 from Lat. paratus). 
 
 In Old Pleading and Practice. Rea'Sy. 
 
 Prest averrer, ready to prove. Y. B. P. 11 
 Hen. VI. 8; Y. B. M. 12 Hen. VI. 13. Prest 
 de prover. Britt. c. 22. A formal word at 
 the conclusion of pleas and replications, ex- 
 pressive of a tender and acceptance of issue. 
 Prest, etc., was a mere common form. See 
 Y. B. 8 Edw. III. 20; Y. B. T. 8 Edw. III. 11. 
 
 Prest a passer, ready to pass, that is, to 
 give a verdict. Y. B. M. 3 Edw. II. 56. See 
 "Passer." 
 
 In Old English Law. A duty in money 
 
 to be paid by the sheriff upon his account 
 in the exchequer, or lor money left or re- 
 maining in his hands. Cowell. 
 
 PRESTATION (Lat. praestatio, from praes- 
 
PRESUMPTIVE EVIDENCE 
 
 (720) 
 
 PRICKING FOR SHERIFFS 
 
 tare, g. v.) In old English law. A payment 
 or performance; the rendering of a service; 
 a toll, custom or duty. 
 
 PRESUMPTIVE EVIDENCCE. See "Cir- 
 cumstantial Evidence." 
 
 PRESUMPTIVE HEIR. One who, if the 
 ancestor should die immediately, would, un- 
 der existing condition of things, be his 
 heir, but whose right of inheritance may be 
 defeated by the contingency of some nearer 
 heir being born; as, a brother, who is the 
 presumptive heir, may be defeated by the 
 birth of a child to the ancestor. 2 Bl. Comm. 
 208. 
 
 PRESUMPTIVE TITLE. That which aris- 
 es from mere occupation, with no pretense 
 of right to hold possession. It is the very 
 lowest order of title. 
 
 PRET (Pr.) Loan. 
 
 PRET A USAGE (Pr. loan for use). A 
 phrase used in the French law instead of 
 comTnodatum. 
 
 PRETENSED, or PRETENCED (Law Lat. 
 praetensum) . In old English law. Pretend- 
 ed; claimed. Where a party out of posses- 
 sion of lands or tenements claimed or sued 
 for the possession, he was said to have a 
 pretensed right and title {jus praetensum). 
 Cowell; Dyer, 74b. 
 
 PRETENSED TITLE STATUTE. The 
 
 English statute 32 Hen. VIII. c. 9, § 2. It 
 enacts that no one shall sell or purchase 
 any pretended right or title to land, unless 
 the vendor has received the profits thereof 
 for one whole year before such grant, or 
 has been in actual possession of the land, or 
 of the reversion or remainder, on pain that 
 both purchaser and vendor shall each forfeit 
 the value of such land to the king and the 
 prosecutor. See 4 Broom & H. Comm. 150. 
 
 PRETENSES. In equity pleading. Alle- 
 gations sometimes made in a bill for the 
 purpose of negativing an anticipated defense. 
 Hunt, Eq. pt. 1, c. 1. 
 
 PRETENSION. In French law. The claim 
 made to a thing which a party believes him- 
 self entitled to demand, but which is not ad- 
 mitted or adjudged to be his. 
 
 The words "rights," "actions," and "pre- 
 tensions" are usually joined; not that they 
 are synonymous, for "right" is something 
 positive and certain, "action" is what is de- 
 manded, while "pretension" is sometimes not 
 even accompanied by a demand. 
 
 PRETER LEGAL. Not agreeable to law. 
 
 PRETERITION (Lat. praeter and eo, to go 
 by). In civil law. The omission by a tes- 
 tator of some one of his heirs who. is entitled 
 to a legitime (q. v.) in the succession. 
 
 Among the Romans, the preterltion of 
 children when made by the mother was pre- 
 sumed to have been made with design. The 
 preterltion of sons by any other testator was 
 considered as a wrong, and avoided the will, 
 except the will of a soldier in service, which 
 
 was not subject to so much form. 
 
 PRETERMISSION. In the law of wills. 
 The intentional passing over without mak- 
 ing provision for a child or legal heir or 
 next of kin. Same as "preterltion," which 
 is the strictly proper term. 
 
 PRETEXT (Lat. praetextum, woven be- 
 fore). The reasons assigned to justify an 
 act, which have only the appearance of truth, 
 and which are without foundation, or which, 
 if true, are not the true reasons for such 
 act. Vattel, liv. 3, c. 3, § 32. 
 
 An ostensible reason or motive assigned 
 or assumed as a color or cover for the real 
 motive or reason. 27 Neb. 601. 
 
 PRETIUM,orPRECIUM (Lat. price; value). 
 In the civil law. The price of a thing sold, 
 which properly consisted in counted money; 
 pretium in numerata pecunia consistere 
 debet. Inst. 3. 24. 2. Pretium constitui opor- 
 tet, nam, nulla ^mptio sine pretio esse potest, 
 the price ought to be fixed, f,or there can be 
 no purchase without a price. Id.; Dig. 18. 
 1. 2; 2 Kent, Comm. 477. 
 
 PRETIUM AFFECTIONIS (Lat.) An im- 
 aginary value put upon a thing by the fancy 
 of the owner in his affection for it, or for 
 the person from whom he obtained it. Bell, 
 Diet. 
 
 PRETIUM SUCCEDIT IN LOCUM REI. 
 
 The price stands in the place of the thing 
 sold. 1 Bouv. Inst, note 939; 2 Bulst. 312. 
 
 PRETORIUM. In Scotch law. A court 
 house, or hall of justice. 3 How. St. Tr. 425. 
 
 PREVARICATION. In civil law. The act- 
 ing with unfaithfulness and want of probity. 
 The term is applied principally to the act of 
 concealing a crime. Dig. 47. 15. 6. 
 
 PREVENTION (Lat. preveniato, to come 
 before). In civil law. The right of a judge 
 to take cognizance of an action over which 
 he has concurrent jurisdiction with another 
 judge. 
 
 In Pennsylvania it has been ruled that a 
 justice of the peace cannot take cognizance 
 of a cause which has been previously decided 
 by another justice. 2 Dall. (Pa.) 77, 114. 
 
 PREVENTION OF CRIMES ACT. The 
 
 statute 34 & 35 Vict. c. 112, passed for the 
 purpose of securing a better supervision 
 over habitual criminals. This act provides 
 that a person who is for a second time con- 
 victed of crime may, on his second convic- 
 tion, be subjected to police supervision for a 
 period of seven years after the expiration of 
 the punishment awarded him. Penalties are 
 imposed on lodging house keepers, etc., for 
 harboring thieves or reputed thieves. There 
 are also provisions relating to receivers of 
 stolen property, and dealers in old metals 
 who purchase the same in small quantities. 
 This act repeals the habitual criminals act 
 of 1869 (32 & 33 Vict. c. 99). Brown. 
 
 PRICKING FOR SHERIFFS. In England, 
 when the yearly list of persons nominated 
 for the office of sheriff is submitted to the 
 
PRIMA FACIE 
 
 ■ (721) 
 
 PRIMOGENITUS 
 
 queen, she takes a pin, and to insure impar- 
 tiality, as it is said, she lets the point of 
 it fall upon one of the three names nomi- 
 nated for each county, etc., and the person 
 
 upon whose name it cnanoes to fall is sheriff 
 for the ensuing year. This is called "prick- 
 ing for sheriffs." Atk. Sheriffs, 18. 
 
 PRIMA FACIE. At first view; from the 
 appearance, without contradiction or expla- 
 nation. 
 
 PRIMA FACIE CASE. A case estahllshed 
 by prima facie evidence {q. v.) \ 
 
 PRIMA FACIE EVIDENCE. Such as is, 
 In judgment of law, sufficient to establish 
 the fact, and, if not, rebuttal remains suf- 
 ficient for the purpose. 
 
 PRIMA PARS AEQUITATIS AEQUALI- 
 tas. The radical element of justice is equal- 
 ity. 
 
 PRIMA TONSURA (Lat.) A grant of a 
 right to have the first crop of grass. 1 Chit. 
 Prac. 181. 
 
 PRIMAE IMPRESSIONIS (Law Lat.) Of 
 the first impression; without precedent. A 
 term applied to a new case, or one which 
 has not occurred before, or to a question 
 which is raised for the first time. Eyre, J., 
 5 Mod. 23; 1 Vern. 94; Piatt, J., 19 Johns. 
 (N. Y.) 310. "The question here, as there, 
 is priTnae impressionis ; the case here, as 
 there, is the first of its kind." Story, J., 3 
 Mason (U. S.) 116, 125. The expression is 
 applied to actions, returns, motions, and 
 other proceedings. Freem. 431; Holt, C. J., 
 5 Mod. 21; Mansfield, C. J., 4 Taunt. 3; 1 
 Taunt. 492, arg. The Gunpowder Plot was 
 called by Lord Coke, in his argument as 
 attorney general in the case, an offense 
 primae impressionis. 2 How. St. Tr. 167. 
 
 PRIMAE (or PRIMARIAE) PRECES 
 
 (Lat.) In the civil law. An imperial pre- 
 rogative, by which the emperor exercised 
 the right of naming to the first prebend that 
 became vacant after his accession, in every 
 church of the empire. Goldast. Constit. 
 Imper. tom. 3, p. 406; 1 Bl. Comm. 381. 
 
 PRIMAGE. In mercantile law. A duty 
 payable to the master and mariners of a 
 ship or vessel, — to the master for the use of 
 Ms cables and ropes to discharge the goods 
 of the merchant; to the mariners for lading 
 and unlading in any port or haven. Abb. 
 Shipp. 270. 
 
 This payment appears to be of very an- 
 cient date, and to be variously regulated in 
 different voyages and trades. It is some- 
 times called the "master's hat money." 3 
 Chit. Com. Law, 431. 
 
 PRIMARY. That which is first or princi- 
 pal; as, primary evidence, that evidence 
 which is to he admitted in the first instance, 
 as distinguished from secondary evidence, 
 which is allowed only when primary evi- 
 dence cannot be had. 
 
 PRIMARY CONVEYANCES. See "Con- 
 veyance." 
 
 PRIMARY EVIDENCE. The best evidence 
 of which the case in its nature is suscepti- 
 ble. 3 Bouv. Inst, note 3053. See "Evi- 
 dence." 
 
 PRIMARY OBLIGATION. An obligation 
 which is the principal object of the contract; 
 for example, the primary obligation of the 
 seller is to deliver the thing sold, and to 
 transfer the title to it. It is distinguished 
 from the accessory or secondary obligation 
 to pay damages for not doing so. 1 Bouv. 
 Inst, note 702. 
 
 PRIMARY POWERS. The principal au- 
 thority given by a principal to his agent. It 
 differs from "mediate powers." Story, Ag. 
 § 58. 
 
 PRIMATE. In ecclesiastical law. Anarch- 
 bishop who has jurisdiction over one or sev- 
 eral other metropolitans. 
 
 PRIME SERJEANT. The queen's first Ser- 
 jeant at law. 
 
 PRIMER ELECTION. A term used to sig- 
 nify first choice. 
 
 In England, when coparcenary lands are 
 divided, unless it Is otherwise agreed, the 
 eldest sister has the first choice of the pur^ 
 parts. This part is called the enitia pars. 
 Sometimes the oldest sister makes the par- 
 tition, and in that case, to prevent partiality, 
 she takes the last choice. Hob. 107; Litt. 
 §§ 243-245; Bac. Abr. "Coparceners" (U). 
 
 PRIMER FINE. In old English practice. 
 A fine or payment which was due to the 
 king on suing out the writ of praecipe, at 
 the commencement of the proceedings to 
 levy a fine of lands. 2 Bl. Comm. 350. 
 
 PRIMER SEISIN. In English law. The 
 right wliich the king had, when any of his 
 tenants died seised of a knight's fee, to re- 
 ceive of the heir, provided he were of full 
 age, one whole year's profits of the lands, 
 if they were in immediate possession, and 
 half a year's profits, if the lands were In re- 
 version, expectant on an estate for life. 2 
 Bl. Comm. 66. 
 
 PRIMITIAE (Lat.) In English law. First 
 fruits; the first year's whole profits of a 
 spiritual preferment. 1 Bl. Comm. 284; 
 Crabb, Hist. Eng. Law, 252. 
 
 PRIMO EXCUTIENDA EST VERBA VIS, 
 ne sermonis vitio obstructur oratio, sive lex 
 sine argumentls. The force of a word is to 
 be first examined, lest by the fault of dic- 
 tion the sentence be destroyed, or the law be 
 without arguments. Co. Litt. 68. 
 
 PRIMOGENITURE. The state of being 
 first born; the eldest. 
 
 Formerly primogeniture gave a title In 
 cases of descent to the oldest son In prefer- 
 ence to the other children. This unjust dis- 
 tinction has been generally abolished in the 
 United States. 
 
 PRIMOGENITUS (Lat. from primo, first, 
 and genitus, born or begotten). In old Eng- 
 lish law. A first born or eldest son. Brae- 
 
PKIMUM DECRETUM 
 
 (722) 
 
 PRINCIPIA PROBA.NT, ETC. 
 
 ton, fol. 33; 1 Ves. Sr. 290. And see 3 Mauls 
 & S. 25; 8 Taunt. 468; 3 Vern. 660. 
 
 PRIMUM DECRETUM (Lat.) In the 
 courts of admiralty, this name is given to a 
 provisional decree. Bac. Abr. "Court of Ad- 
 miralty" (E). 
 
 PRINCE. In a general sense, a sover- 
 eign; the ruler of a nation or state. The 
 son of a king or emperor, or the issue of a 
 royal family; 'as, princes of the blood. The 
 chief of any body of men. 
 
 By a clause inserted in policies of insur- 
 ance, the insurer is liable for all losses oc- 
 casioned by "arrest or detainment of all 
 kings, princes, and people, of what nation, 
 condition, or quality soever." 1 Bouv. Inst, 
 note 1218. 
 
 PRINCEPS (Lat.) In the civil law. The 
 prince; the emperor. QuoA principi placuit, 
 legis habet vigorem, the emperor's pleasure 
 has the force of law. Inst. 1. 2. 6. 
 
 PRINCEPS ET RESPUBLICA EX JUSTA 
 causa possunt rem meam auferre. The king 
 and the commonwealth, for a just cause, can 
 take away my property. 12 Coke, 13. 
 
 PRINCEPS LEGIBUS SOLUTUS EST. 
 
 The emperor is free from laws. Dig. 1. 3. 
 31; Halifax, Anal. pref. vi., vii., note. 
 
 PRINCEPS MAVULT DOMESTICOS MIL- 
 Ites quam stjpendiarlos bellicis opponere 
 casibus. A prince, in the chances of war, 
 had better employ domestic than stipendiary 
 troops. Co. Litt. 69. 
 
 PRINCIPAL. Leading; chief; more im- 
 portant. 
 
 This word has several meanings. It is 
 used in opposition to "accessary," to show 
 the degree of crime committed by two per- 
 sons. 
 
 In estates, "principal" is used as opposed 
 to "incident" or "accessory," to denote the 
 more important subject to which others are 
 appurtenant or ancillary, as in the rule: 
 "The incident shall pass by the grant of the 
 principal, but not the principal by the grant 
 of the incident, — accessorium non ducit, sed 
 sequitur suum principale." Co. Litt. 152a. 
 
 It is used in opposition to "agent," and in 
 this sense it signifies that the principal is 
 the prime mover. 
 
 It is used in opposition to "interest;" as, 
 the principal being secured, the interest will 
 follow. 
 
 It is used also in opposition to "surety," 
 to denote the person for whom the surety is 
 bound. Thus, we say, the principal is an- 
 swerable before the surety. 
 
 Principal is used also to denote the more 
 important; as, the principal person. 
 
 In the English law, the chief person in 
 some of the inns of chancery is called "prin- 
 cipal of the house." Principal is also used 
 to designate the best of many things; as, the 
 principal bed, the principal table, and the 
 like. 
 
 In Contracts. One who, being compe- 
 tent svi juris to do any act for his own ben- 
 
 efit or on his own account, confides it to an- 
 other person to do for him. 1 Domat, bk. 1, 
 tit. 15, Introd.; Story, Ag. § 3. 
 
 In Criminal Law. Principals in crime 
 
 are either in the first or second degree. 
 
 A principal in the first degree is the one 
 who actually commits the crime, either by 
 his own hand, or by an inanimate agency (4 
 Bl. Comm. 34; 2 Sumn. [U. S.] 482), or by 
 an innocent human agent (1 N. Y. 173; 1 
 Mass. 136). 
 
 A principal in the second degree is one 
 who, being present at the commission of a 
 crime by another, aids and abets him there- 
 in. There must be a guilty principal in the 
 first degree. The principal in the second 
 must be present, but constructive presence, 
 as by keeping watch at a distance, is suf- 
 ficient (83 N. Y. 408; 13 Nev. 386), and the 
 principal in the second degree must in some 
 manner assist or abet the principal offend- 
 er; mere presence and acquiescence not be- 
 ing enough (81 111. 333; 45 Cal. 293). See 
 Aiding and Abetting;" "Presence." 
 
 The distinction between principals and ac- 
 cessaries is not recognized in treason or in 
 misdemeanors. 4 Bl. Comm. 35, 36. 
 
 PRINCIPAL CHALLENGE. See "Chal- 
 lenge." 
 
 PRINCIPAL CONTRACT. One entered in- 
 to by both parties on their own accounts, or 
 in the several qualities they assume. 
 
 PRINCIPAL FACT. The main fact in is- 
 sue. The fact ultimately to be proved. 
 
 PRINCIPAL LEGATEE. In the statute as 
 to right to letters of administration with 
 will annexed means general, rather than 
 chief or most important. 2 How. Pr. (N. S.; 
 N. Y.) 194. 
 
 PRINCIPAL OBLIGATION. That obliga- 
 tion which arises from the principal object 
 of the engagement which has been contract- 
 ed between the parties. It differs from an 
 accessory obligation. For example, in the 
 sale of a horse, the principal obligation of 
 the seller is to deliver the horse; the obligar 
 tion to take care of him till delivered is an 
 accessory engagement. Poth. Obi. note 182. 
 By principal obligation is also understood 
 the engagement of one who becomes bound 
 for himself, and not for the benefit of an- 
 other. Poth. Obi. note 186. 
 
 PRINCIPALIS (Lat. from princeps, first or 
 chief). In civil and old English law. Prin- 
 cipal; a principal debtor. Principalis debi- 
 tor. Pleta, lib. 2, c. 63, § 5. Called capitalis 
 debitor (chief debtor). Id. 
 
 PRINCIPALIS DEBET SEMPER EXCUTI 
 antequam perveniatur ad fidei jussores. The 
 principal should always be exhausted before 
 coming upon the sureties. 2 Inst. 19. 
 
 PRINCIPIA DATA SEQUUNTUR CON- 
 comitantia. Given principles are followed 
 by their concomitants. 
 
 PRINCIPIA PROBANT, NON PROBAN- 
 tur. Principles prove, they are not proved. 
 3 Coke, 40. See "Principles." 
 
PRINCIPIIS OBSTA 
 
 (723) 
 
 PRISONER OF WAR 
 
 PRINCIPIIS OBSTA. Oppose beginnings. 
 Branch, Princ. 
 
 PRINCIPIORUM NON EST RATIO. Tliere 
 is no reasoning of principles. 2 Bulst. 239. 
 See "Principles." 
 
 PRINCIPIUM (Lat. from priiiveps. first). 
 In civil and old English law. A beginning. 
 In principio donationis, at the commence- 
 ment of the gift. Bracton, fol. 17b. 
 
 A principle; a maxim. Analyzed by Lord 
 Coke, in his peculiar manner, to be quasi 
 primum caput (the first head), from which 
 many cases have their origin or beginning. 
 Co. Litt. 303a. 
 
 PRINCIPIUM EST POTISSIMA PARS 
 cujusque rei. The beginning is the most 
 powerful part of a thing. 10 Coke, 49. 
 
 PRINCIPLES. By this term is understood 
 truths or propositions so clear that they can- 
 not be proved nor contradicted unless by 
 propositions which are still clearer. 
 
 That which constitutes the essence of a 
 body, or its constituent parts. 8 Term R. 
 107. See "Patent." 
 
 They are of two kinds: One when the 
 principle is universal, and these are known 
 as "axioms" or "maxims;" as, "no one can 
 transmit rights which he has not;" "the ac- 
 cessory follows the principal," etc. The oth- 
 er class are simply called "first principles." 
 These principles have known marks, by 
 which they may always be recognized. These 
 are, first, that they are so clear that they 
 cannot be proved by anterior and more man- 
 ifest truths; second, that they are almost 
 universally received; third, that they are so 
 strongly impressed on our minds that we 
 conform ourselves to them whatever may be 
 our avowed opinions. 
 
 First principles have their source in the 
 sentiment of our own existence, and that 
 which is in the nature of things. A princi- 
 ple of law is a rule or axiom which is found- 
 ed in the nature of the subject, and it ex- 
 ists before it is expressed in the form of a 
 rule. Domat, Lois Civ. liv. prel. tit. 1, § 2; 
 Toullier, Dr. Civ. tit. prel. note 17. "The 
 right to defend one's self continues as long 
 as an unjust attack" was a principle before 
 it was ever decided by a court; so that a 
 court does not establish, but recognizes, prin- 
 ciples of law. 
 
 PRIOR PETENS (Lat.) The first appli- 
 cant. Priori petenti, to the first applicant. 
 
 PRIOR TEMPORE, POTIOR JURE. He 
 
 who is first in time is preferred in right. 
 Co. Litt. 14a; 2 P. Wms. 491; 1 Term R. 
 733; 9 Wheat. (U. S.) Append. 24. 
 
 PRIORITY. Precedence. Thus, claims are 
 said to be allowed priority where they are 
 satisfied from a fund before other claims 
 against the same are allowed to participate. 
 
 PRISAGE. An ancient hereditarv revenue 
 of the crown, consisting in the right to take 
 a certain quantity from cargoes of wine im- 
 ported into England. In Edward I.'s reign 
 
 it was converted into a pecuniary duty called 
 "butlerage." 2 Steph. Comm. 561. 
 
 PRISE (Fr.) 
 
 In French Law. Prize; captured prop- 
 erty. Ord. Mar. liv. 3, tit. 9. See "Prize." 
 
 Capture, by a naval force. Emerig. Tr. 
 des Assur. c. 12, sec. 18, § 1. 
 
 In Old English Law. Things taken of 
 
 the king's subjects by purveyors; provisions 
 taken for the king's use. Cowell; Artie, sup. 
 Chart, c. 2; 2 Reeve, Hist. Eng. Law, 233; 
 Pleta, lib. 2, c. 50, § 21. 
 
 PRISEL EN AUTER LIEU (Law Pr.) A 
 taking in another place; a plea in abatement 
 in the action of replevin. 2 Ld. Raym. 1016, 
 1017. 
 
 PRISO (Law Lat.; Law Pr. prison, from 
 prise, taken). In old English law. A pris- 
 oner; a captive in war. Spelman. 
 
 A prisoner, or imprisoned malefactor. 
 Prisones vero, sic imprisonati, but prisoners 
 so imprisoned. Bracton, fol. 123. See Pleta, 
 lib. 1, c. 26, § 5. 
 
 PRISON. A public building for confining 
 persons, either to insure their production in 
 court, as accused persons and witnesses, or 
 to punish, as criminals. 
 
 The root is French, as is shown by the 
 Norman prisons, prisoners (Kelham), and 
 French prisons, prisons (Britt. c. 11, "De 
 Prisons"). Originally it was distinguished 
 from "gaol," which was a place for confine- 
 ment, not for punishment. See Jacob, 
 "Gaol." But at present there is no such dis- 
 tinction. 
 
 It is a general term to include jails, peni- 
 tentiaries, etc. 
 
 PRISON BOUNDS. See "Gaol Liberties." 
 
 PRISON BREACH. The act of one who'is 
 lawfully detained on a criminal charge, or 
 under sentence for a crime, in breaking out 
 of the place in which he is detained, against 
 the will of the person by whom he is de- 
 tained. 
 
 It is something more than an escape, — 
 adding thereto a breaking out of custody. 
 The breaking must be actual, but need not 
 be intentional. Thus, if loose bricks on top 
 of a prison wall are thrown by a convict 
 in climbing over the same, it is a breach. 
 Russ. & R. 458. The opening of a window 
 or unlocking of a door in the course of an 
 escape constitutes a breach. 53 N. J. Law^ 
 488. 
 
 PRISONER. One held in confinement 
 against his will. 
 
 PRISONER OF WAR. One who has been 
 captured while fighting under the banner of 
 some state. He is a prisoner, although never 
 confined in a prison. Not only such per- 
 sons as a belligerent can lawfully kill, but 
 all who may be separated from the mass of 
 noncombatants by their importance to the 
 enemy's state, or by their usefulness to 
 him in his war, may be made prisoners of 
 war. Glenn, Int. Law, 187. 
 
 Any person captured and held by the mil- 
 
PRIST 
 
 (724) 
 
 PRIVIGNUS 
 
 itary power while carrying on war, and held 
 as an enemy prisoner, whether rightly or 
 wrongfully so held. 1 Bish. Crim. Law, § 65, 
 note. 
 
 PRIST (Law Fr. ready). A formal word 
 used in the days of oral pleading, to ex- 
 press a tender of or joinder in issue. 
 
 PRIUS VITUS LABORAVIMUS, NUNC 
 legibus. We labored first with vices, now 
 with laws. 4 Inst. 76. 
 
 PRIVATE. Affecting or belonging to in- 
 dividuals, as distinct from the public gener- 
 ally; not clothed with ofiice. 
 
 PRIVATE ACT. An act operating only up- 
 on particular persons and private concerns, 
 and rather an exception than a rule. Opposed 
 to "public act." 1 Bl. Comm. 86; 1 Term R. 
 125; Plowd. 28; Dyer, 75, 119; 4 Coke, 76. 
 Private acts ought not to be noticed by 
 courts unless pleaded. 
 
 PRIVATE BANKERS. Such as engage in 
 the business of banking, without having any 
 special grant of authority from the state. 80 
 N. Y. 225. 
 
 PRIVATE BILL OFFICE. An oflBce of the 
 English parliament where the business of 
 obtaining private acts of parliament is con- 
 ducted. 
 
 PRIVATE CARRIER. A carrier who is 
 not a common carrier, because he does not 
 hold himself out as ready to carry all per- 
 sons who may employ him. 
 
 PRIVATE CORPORATION. Acorporation 
 founded by a private individual, or the 
 stock of which is owned by private persons, 
 such as a hospital or college, a bank, an 
 insurance, turnpike, or railroad company. 
 2 Kent, Comm. 275. 
 
 PRIVATE EASEMENT. One the enjoy- 
 ment of which is restricted to certain indi- 
 viduals. 
 
 PRIVATE HOUSE. A dwelling place, not 
 open for the accommodation of all appli- 
 cants who come lawfully and pay regularly. 
 A boarding house for the accommodation of 
 such only as are accepted by the proprietor 
 is a private house. 3 Brewst. (Pa.) 344. 
 
 PRIVATE INTERNATIONAL LAW. See 
 "Conflict of Laws;" "International Law." 
 
 PRIVATE NUISANCE. See "Nuisance." 
 
 PRIVATE PERSON. One not an officer. 
 
 PRIVATE PROPERTY. Within the con- 
 stitutional requirement of compensation for 
 "private property taken for public use," it 
 includes, of course, all property owned by 
 individuals, and also certain property held 
 by public bodies, such as municipal corpora- 
 tions, which is held not for the performance 
 of the public duties devolving upon it, but 
 for purposes not deemed strictly public and 
 political. 
 
 PRIVATE RIGHTS. Those rights which 
 relate to the person, or to persbnal or' real 
 property of particular Individuals. 1 Chit. 
 Gen. Prac. 3. 
 
 PRIVATE STATUTE. A statute which op- 
 erates only upon particular persons and pri- 
 vate concerns. 1 Bl. Comm. 86. See "Gen- 
 eral Statute." ! 
 
 PRIVATE WAY. An easement of one per- 
 son, or of any number of persons less than 
 the public at large, to pass over the servient 
 land of another in the manner, at the times, 
 on the location, and for the purpose allotted 
 or agreed for the particular way. Bish. Non- 
 Cont. Law, § 866. 
 
 Private ways are either (1) appurtenant, 
 i. e., pertaining to some particular land, or 
 (2) in gross, i. e., personal to some particu- 
 lar individual or individuals. 3 Bl. Comm. 
 241. 
 
 PRIVATE WRONGS. A private wrong, 
 otherwise termed a "tort" or "civil injury," 
 is an infringement or privation of the civil 
 rights which belong to individuals, consid- 
 ered merely as individuals. 4 Bl. Comm. 5. 
 See "Public Wrongs." 
 
 PRIVATEER. A vessel owned by one or 
 more private individuals, armed and equipped 
 at his or their expense, for the purpose of 
 carrying on a maritime war, by the author- 
 ity of one of the belligerent parties. The 
 commissions issued to such vessels are gen- 
 erally called "letters of marque." 
 
 The treaty of Paris {q. v.) provides for 
 the discontinuance of the use of privateers 
 except as against such powers (of which the 
 United States is one) as did not accede to 
 such treaty, and the general policy of the 
 United States is against their use. See 1 
 Kent, Comm. 97. 
 
 PRIVATIO PRAESUPPONIT HABITUR. 
 
 A deprivation presupposes a possession. 2 
 Rolle, 419. 
 
 PRIVATIS PACTIONIBUS NON DUBIUM 
 est non laedi jus caeterorum. There is no 
 doubt that the rights of others cannot be 
 prejudiced by private agreements. Dig. 2. 
 15. 3. pr.; Broom, Leg. Max. (3d London 
 Ed.) 623. 
 
 PRIVATORUM CONVENTIO JURI PUB- 
 lico non derogat. Private agreements can- 
 not derogate from public law. Dig. 50. 17. 
 45. 1. 
 
 PRIVATUM COMMODUM PUBLICO CE- 
 dlt. Private yields to public good. Jenk. 
 Cent. Cas. 273. 
 
 PRIVATUM INCOMMODUM PUBLICO 
 bono pensatur. Private inconvenience Is 
 made up for by public good. 
 
 PRIVEMENT ENCEINTE (Law Pr.) A 
 term used to signify that a woman is preg- 
 nant, but not quick with child. Wood, Inst. 
 662. 
 
 PRIVIGNUS (Lat.) In civil law. Son of 
 
PRIVILISGE 
 
 (725) 
 
 PRIVY 
 
 a husband or wife by a former marriage; a 
 stepson. Calv. Lex.; Vicat. 
 
 PRIVILEGE. An exemption or Immunity 
 peculiar to a particular person or body. 
 Commonly applied to the various special 
 ■rights and immunities of legislators, and to 
 the privilege of witnesses from testifying to 
 certain facts as self-Incriminating ones. See 
 "Privileged Communications." 
 
 In Civil Law. A right which the na- 
 ture of a debt gives to a creditor, and which 
 entitles him to be preferred before other 
 creditors. Code La. art. 3153; Dalloz, "Priv- 
 ilege;" Domat, Lois Civ. liv. 2, tit. 1, § 4, 
 note 1. 
 
 In Maritime Law. An allowance to the 
 
 master of a ship of the general nature with 
 primage, being compensation, or rather a 
 gratuity, customary in certain trades, and 
 which the law assumes to be a fair and equi- 
 table allowance, because the contract on both 
 sides is made under the knowledge of such 
 usage by the parties. 
 
 PRIVILEGE, WRIT OF. A process to en- 
 force or maintain a privilege. Cowell. 
 
 PRIVILEGED COMIVIUNICATIONS. 
 
 In the Law of Slander. A communica- 
 tion made tona fide upon any subject mat- 
 ter in which the party communicating has 
 an interest, or in reference to which he has 
 a duty, if made to a person having a cor- 
 responding interest or duty, although it con- 
 tain criminatory matter which, without this 
 privilege, would be slanderous and action- 
 able. 
 
 In Evidence. Communication which 
 
 the law refuses, on grounds of public policy, 
 to allow to be disclosed in evidence. The 
 policy prohibiting such disclosure may be 
 (1) political, as that restraining the disclo- 
 sure of secrets of state, (2) judicial, as that 
 which prohibits the disclosure of proceed- 
 ings in the jury room, (3) professional, as 
 that which forbids the disclosure of state- 
 ments by client to attorney, or (4) social, as 
 that which restricts the disclosure of com- 
 munications between husband and wife. 
 Best, Ev. § 578. 
 
 PRIVILEGED COPYHOLDS. Those copy- 
 holds which are held according to the cus- 
 toms of the manor, and not according to the 
 will of the lord. They include ancient de- 
 mesne and customary freehold. 2 Woodde- 
 son, Lect. 33-49; Lee, Real Prop. 63; 1 Crabb, 
 Real Prop. 709, 919; 2 Bl. Comm. 100. 
 
 PRIVILEGED DEED. In Scotch law. An 
 instrument, for example, a testament, in the 
 execution of which certain statutory formal- 
 ities usually required are dispensed with, 
 either from necessity or expediency. Ersk. 
 Inst. 3. 2. 22; Bell, Diet. 
 
 PRIVILEGED VILLENAGE. In old Eng- 
 lish law. A species of villenage in which 
 the tenants held by certain and determinate 
 services; otherwise called "villein socage." 
 ■ Bracton, fol. 209. Now called "privileged 
 
 copyhold," including the tenure in ancient 
 demesne. 2 Bl. Comm. 99, 100. 
 
 PRIVILEGES. See "Gambling Contract." 
 
 PRIVILEGIA QUAE RE VERA SUNT IN 
 praejudicium reipublicae, magis tamen ha- 
 bent speciosa frontispicia, et boni public! 
 praetextum, quam bonae et legales conces- 
 siones; sed praetextu licit! non debet ad- 
 mitti illictum. Privileges which are truly in 
 prejudice of public good have, however, a 
 more specious front and pretext of public 
 good than good and legal grants; but, un- 
 der pretext of legality, that which is illegal 
 ought not to be admitted. 11 Coke, 88. 
 
 PRIVILEGIUIVI (priva lex, i. e., de uno ho- 
 mine). In civil law. A private law inflict- 
 ing a punishment or conferring a reward. 
 Calv. Lex.; Cicero, de Lege, 3, 19, pro Dome, 
 17; Vicat. Every peculiar right by which 
 one creditor or class of creditors is preferred 
 to another in personal actions. Vicat. Ev- 
 ery privilege granted by law in derogation 
 of common right. Mackeld. Civ. Law, §§ 
 188, 189. A claim or lien on a thing, which, 
 once attaching, continued till waiver or sat- 
 isfaction, and which existed apart from pos- 
 session. So at the present day in maritime 
 law, e. fir., the lien of seamen on ship for 
 wages. 2 Pars. Mar. Law, 561-563. 
 
 PRIVILEGIUIVI CLERICALE (Lat.) Bene- 
 fit of clergy (g. v.) 
 
 PRIVILEGIUIVI EST BENEFICIUM PER- 
 sonale et extinguitur cum persona. A priv- 
 ilege is a personal benefit, and dies with the 
 person. 3 Bulst. 8. 
 
 PRIVILEGIUIVI EST QUASI PRIVATA 
 lex. A privilege is, as it were, a private 
 law. 2 Bulst. 189. 
 
 PRIVILEGIUIVI NON VALET CONTRA 
 
 rempublicam. A privilege avails not against 
 the commonwealth. Bac. Max. 25; Broom, 
 Leg. Max. (3d London Ed.) 17; Noy, Max. 
 (9th Ed.) 34. 
 
 PRIVITY (Law Fr. privitie). Connection; 
 interest; mutuality of interest; such as sub- 
 sists between the immediate parties to a con- 
 tract, as between lessor and lessee; other- 
 wise called "personal privity," or "privity 
 of contract." 3 Coke, 23a; Litt. §§ 460,461. 
 But this does not seem to be privity in i^s 
 proper sense, for privies are they who are 
 not parties. See "Privy." 
 
 A derivative kind of interest, founded 
 upon or growing out of the contract of an- 
 other, as that which subsists between an 
 heir and his ancestor, betweefn an executor 
 and testator, and between a lessor or lessee 
 and his assignee. 3 Coke, 23a. 
 
 The mutual or successive relationship to 
 the same rights of property. 1 Greenl. Ev. 
 §189; 6 How. (U. S.) 60. 
 
 PRIVY. One who is a partaker or has any 
 part or interest in any action, matter, or 
 thing. Co. Litt. 271a. 
 
 One who has an interest in an estate ere- 
 
PRIVY COUNCIL 
 
 (726) 
 
 PRO DIGNITATE REGALI 
 
 ated by another, or in a contract or convey- 
 ance to which he is not a party. 
 
 A mutual or successive relationship of 
 persons. 
 
 Privity may be: 
 
 (1) Of contract, being the relation which 
 exists between the immediate parties to a 
 contract. 
 
 (2) In estate, as between lessor and les- 
 see. 
 
 (3) In blood, as between an heir and his 
 ancestor. 
 
 (4) In representation, as between a tes- 
 tator and his executors. 
 
 (5) In tenure, as between a lord and his 
 feudal tenants. 
 
 (6) In person, as between husband and 
 wife or trustee and beneficiary. 
 
 (7) In possession, as between joint ten- 
 ants or tenants in common. 
 
 (8) In law, as where the law casts land 
 upon another without privity of blood or es- 
 tate, as by escheat. 
 
 A more general division has been made in- 
 to privies in estate, privies in blood, and 
 privies in law. 1 Greenl. Bv. § 189. 
 
 PRIVY COUNCIL. The chief council of 
 the sovereign, called, by pre-eminence, "The 
 Council," composed of those whom the king 
 appoints. 1 Bl. Comm. 229-232. 
 
 By St. Charles II., in 1679, the number was 
 limited to thirty, — fifteen the chief officers 
 of the state ex virtute officii, the other fif- 
 teen at the king's pleasure; but the number 
 is now indefinite. A committee of the privy 
 council is a court of ultimate appeal in ad- 
 miralty causes and causes of lunacy and id- 
 iocy (3 P. Wms. 108), and from all domin- 
 ions of the crown except Great Britain and 
 Ireland (1 Wooddeson, Lect. 157b; 2 Steph. 
 Comm. 479; 3 Steph. Comm. 425, 432). 
 
 PRIVY SEAL. In English law. A seal 
 which the king uses to such grants or things 
 as pass the great seal. 2 Inst. 554. 
 
 PRIVY SIGNET. The seal which is first 
 used in making grants, etc., of the crown. 
 It is always in custody of the secretary of 
 state. 2 Bl. Comm. 347; 1 Wooddeson, Lect. 
 250; 1 Steph. Comm. 571. 
 
 PRIVY VERDICT. In practice. A verdict 
 given privily to the judge out of court, but 
 which was of no force unless afterwards af- 
 firmed by a public verdict given openly in 
 ccrurt. 3 Bl. Comm. 377. Now disused. 
 
 PRIZE. 
 
 In Maritime Law. The apprehension 
 
 and detention at sea of a ship or other ves- 
 sel, by authority of a belligerent power, ei- 
 ther with the design of appropriating it, 
 with the goods and effects it contains, or 
 with that of becoming master of the whole 
 or a part of its cargo. 1 C. Rob. Adm. 228. 
 
 The vessel or goods thus taken. 
 
 Goods taken on land from a public enemy 
 are called "booty;" and the distinction be- 
 tween a prize and booty consists in this, 
 that the former is taken at sea, and the lat- 
 ter on land. 
 
 — < — In Contracts. A reward which is of- 
 
 fered to one of several persons who shall 
 accomplish a certain condition; as, if an 
 editor should offer a silver cup to the indi- 
 vidual who shall write the best essay in fa- 
 vor of peace. In this case there is a con- 
 tract subsisting between the editor and each 
 person who may write such essay that he 
 will pay the prize to the writer of the best 
 essay. Wolff. Dr. Nat. § 675. 
 
 A thing which is won by putting into a, 
 lottery. 
 
 PRIZE COURT. In English law. That 
 branch of admiralty which adjudicates upon 
 cases of maritime captures made in time of 
 war. A special commission issues in Eng- 
 land, in time of war, to the judge of the 
 admiralty court, to enable him to hold such 
 court. See "Admiralty." 
 
 Some question has been raised whether the 
 prize court is or is not a separate court from 
 the admiralty court. Inasmuch as the com- 
 mission is always issued to the judge of that 
 court, and the forms of proceeding are sub- 
 stantially those of admiralty, while the law 
 applicable is derived from the same sources, 
 the fact that the commission of prize is only 
 issued occasionally would hardly seem to 
 render the distinction a valid one. 
 
 In the United States, the admiralty courts 
 discharge the duties both of a prize and an 
 instance court. 
 
 PRIZEFIGHT. A personal combat be- 
 tween men, without weapons, in public and 
 by agreement, for a prize or reward. 67 
 
 Miss. 352. 
 
 PRO. In Latin phrases. A preposition 
 meaning "for." 
 
 PRO BONO ET MALO. For good and for 
 
 evil. 
 
 PRO CONFESSO (Lat. as confessed). In 
 equity practice. A decree taken where the 
 defendant has either never appeared in the 
 suit, or, after having appeared, has neglect- 
 ed to answer. 1 Daniell, Ch. Prac. 479; Ad- 
 ams, Eq. 327, 374; 1 Smitli, Ch. Prac. 254. 
 
 PRO DEFECTU EMPTORUM. For want 
 (failure) of purchasers. 
 
 PRO DEFECTU EXITUS. For, or in case 
 of, default of issue. 2 Salk. 620. 
 
 PRO DEFECTU HAEREDIS. For want of 
 an heir. 
 
 PRO DEFECTU JUSTITIAE. For defect 
 or want of justice. Fleta, lib. 2, c. 62, § 2. 
 
 PRO DEFENDENTE (Law Lat.) For the 
 defendant. Vaughan, 65. Commonly abbre- 
 viated, pro def. Hardr. passim. "Morton, 
 pro querent. Blackstone, pro def." 1 W. Bl. 
 532. 
 
 PRO DERELICTO (Lat.) As derelict or 
 abandoned. A species of usucaption in the 
 civil law. The title of Dig. 41. 7. Quod pro 
 derelicto habitum est, what is held as dere- 
 lict. Id. 41. 7. 4. 
 
 PRO DIGNITATE REGALI. In considera- 
 tion of the royal dignity. 1 Bl. Comm. 223. 
 
PRO DIVISO 
 
 (727) 
 
 PROBABLE CAUSE 
 
 As divided, i. e., in sever- 
 
 PRO DIVISO. 
 
 alty. 
 
 PRO DO NATO. As a gift; as in case of 
 gift; by title of gift A species of usucap- 
 tlon in the civil law. Dig. 41. 6. See Id. 5. 
 3. 13. 1. 
 
 PRO DOTE. As a dowry; by title of dow- 
 ry. A species of usucaption. Dig. 41. 9. 
 See Id. 5. 3. 13. 1. 
 
 PRO EMPTORE. As a purchaser; by the 
 title of a purchaser. A species of usucap- 
 tion. Dig. 41. 4. See Id. 5. 3. 13. 1. 
 
 PRO EO QUOD (Lat.) In pleading. For 
 this that. This is a phrase of affirmation, 
 and is sufficiently direct and positive for in- 
 troducing a material averment. 1 Saund. 
 117, note 4; 2 Chit. PI. 369-393; Gould, PI. 
 c. 3, § 34. 
 
 PRO KACTI. As a fact. 
 
 PRO FALSO CLAMORE SUO. A nominal 
 amercement of a plaintiff for "his false 
 claim," which used to be inserted in a judg- 
 ment for the defendant. Obsolete. 
 
 PRO FORMA. As a matter of form. 3 
 East, 232; 2 Kent, Comm. 245. 
 
 PRO HAG VICE. For this turn; for this 
 one particular occasion. 
 
 PRO ILLA VICE. For that turn. 3 Wils. 
 233, arg. 
 
 PRO INDEFENSO. As undefended; as 
 making no defense. A phrase in old prac- 
 tice. Fleta, lib. 1, c. 41, § 7. 
 
 PRO INDIVISO (Lat.) For an undivided 
 part. The possession or occupation of lands 
 or tenements belonging to two or more per- 
 sons, and where, consequently, neither 
 knows his several portion till divided. Brac- 
 ton, lib. 5. 
 
 PRO INTERESSE SUO (Lat.) According 
 to his interest. 
 
 PRO LAESIONE FIDEI. 
 
 faith. 3 Bl. Comm. 52. 
 
 For breach of 
 
 PRO LEGATO. As a legacy; by the title 
 of a legacy. A species of usucaption. Dig. 
 41. 8. 
 
 PRO LUCRARI (Law Lat.) For to gain. 
 Fleta, lib. 6, c. 7, § 12. 
 
 PRO MAJORI CAUTELA. For greater 
 caution. 
 
 PRO NON SCRIPTO (Lat.) As not writ- 
 ten; as though it had not been written; as 
 never written. Ambl. 139. Pro non scriptis, 
 as void. 7 Wils. & S. 523. 
 
 PROOPERE ET LABORE (LawLat.) For 
 work and labor. 
 
 PRO PARTIBUS LIBERANDIS. An an- 
 cient writ for partition of lands between co- 
 heirs. Reg. Grig. 316. 
 
 PRO POSSE SUO. To the extent of his 
 power or ability. Bracton, fol. 109. 
 
 PRO POSSESSORE. As a possessor; by 
 title of a possessor. Dig. 41. 5. See Id. 5. 
 3.13. 
 
 PRO POSSESSORE HABETUR QUI DOLO 
 injuriave desiit possldere. He is esteemed a 
 possessor whose possession has been dis- 
 turbed by fraud or injury. Off. Exec. 166. 
 
 PRO QUERENTE (Lat.) For the plain- 
 tiff; usually abbreviated pro guer. 
 
 PRO RATA (Lat.) According to the rate, 
 proportion, or allowance. A creditor of an 
 insolvent estate is to be paid pro rata with 
 creditors of the same class. 
 
 PRO RE NATA (Lat.) For the occasion 
 as it may arise. 
 
 PRO SALUTE ANIMAE. For the good of 
 his soul. All prosecutions in the ecclesias- 
 tical courts are pro salute animae; hence it 
 will not be a temporal damage founding 
 an action for slander that the words spoken 
 put any one in danger of such a suit. 3 
 Steph. Comm. (7th Ed.) 309n, 437; 4 Steph. 
 Comm. 207. 
 
 PRO SE. For himself; in his own behalf; 
 in person. 
 
 PRO SOCIO. For a partner; the name of 
 an action in behalf of a partner. A title of 
 the civil law. Dig. 17. 2; Code, 4. 37. 
 
 PRO SOLIDO. For the whole; as one; 
 jointly; without division. Dig. 50. 17. 141. 1. 
 
 PRO TANTO (Lat.) For so much. See 17 
 Serg. & R. (Pa.) 400. 
 
 PRO TEMPORE. For the time being; 
 temporarily; provisionally. 
 
 PROBABILITY. Likelihood; consonance 
 to reason; for example, there is a strong 
 probability that a man of good moral char- 
 acter, and who has heretofore been remark- 
 able for truth, will, when examined as a wit- 
 ness under oath, tell the truth; and, on the 
 contrary, that a man who has been guilty 
 of perjury will not, under the same circum- 
 stances, tell the truth. The former will 
 therefore be entitled to credit, while the lat- 
 ter will not. 
 
 It is not as strong an expression as 
 "proof." "Demonstration produces certain 
 knowledge; proof produces belief and prob- 
 ability opinion." 19 S. C. 39. 
 
 PROBABLE. Having the appearance of 
 truth; appearing to be founded in reason. 
 
 PROBABLE CAUSE. Such a state of facts 
 as to make it a reasonable presumption that 
 their supposed existence was the cause of ac- 
 tion. 
 
 The principal technical use of the phrase 
 is to define the degree of certainty which 
 will justify one in instituting a criminal 
 prosecution, and relieve from liability for 
 
PROBABLE EVIDENCE 
 
 (728) PROCEDENDO ON AID PRAYER 
 
 malicious prosecution should the charge 
 prove unfounded. 
 
 As so used, "probable cause" is such a 
 state of facts known to and influencing the 
 prosecutor as would lead a man of ordinary- 
 caution and prudence, acting conscientious- 
 ly, impartially, reasonably, and without prej- 
 udice, to believe, or entertain an honest and 
 strong suspicion, that the person accused is 
 guilty. Hilliard, Torts, c. 12, § 18; 81 Ala. 
 220; 62 N. Y. 19. 
 
 Belief in the guilt of the person accused 
 must exist (67 Wis. 350), but is not in itself 
 sufficient (56 Mich. 367), if ordinary care, 
 diligence, and impartiality were not exer- 
 cised (60 Miss. 916). 
 
 PROBABLE EVIDENCE. Presumptive evi- 
 dence is so called, from its foundation in 
 probability. Butler, Anal. Introd. 
 
 PROBABLE REASONING (Lat. arffumen- 
 tum verisimile). In the law of evidence. 
 Reasoning founded on the probability of the 
 fact or proposition sought to be proved or 
 shown; reasoning in which the mind exer- 
 cises a discretion in deducing a conclusion 
 from premises. Burr. Circ. Ev. 22, 23. 
 
 PROBANDI NECESSITAS INCUMBIT 
 illl qui agit. The necessity of proving lies 
 with him who sues. Inst. 2. 20. 4. 
 
 PROBATE COURTS. 
 
 bate." 
 
 See "Court of Pro- 
 
 PROBATE OF A WILL. The proof before 
 an officer or court authorized by law that an 
 instrument offered to be proveid or recorded 
 is the last will and testament of the deceased 
 person whose testamentary act it is alleged 
 to be. 
 
 In some jurisdictions, the term is loosely 
 used to denote the proof of claims against 
 estates, etc. 
 
 PROBATIO (Lat.) Proof; more particu- 
 larly direct, as distinguished from indirect, 
 or circumstantial, evidence. 
 
 PROBATIO MORTUA. Dead proof; that 
 is, proof by inanimate objects, such as deeds 
 or other written evidence. 
 
 PROBATIO PLENA. In the civil law. Full 
 proof; proof by two witnesses, or a public 
 instrument. Halifax, Civ. Law, bk. 3, c. 9, 
 No. 25; 3 Bl. Comm. 370. 
 
 PROBATIO SEMI-PLENA. In the civil 
 law. Half-full proof; half-proof. Proof by 
 one witness, or a private instrument. Hal- 
 ifax, Civ. Law, bk. 3, c. 9, No. 25; 3 Bl. 
 Comm. 370. 
 
 PROBATIO VIVA. Living proof; that is, 
 proof by the mouth of living witnesses. 
 
 PROBATION. The evidence which proves 
 a thing. It is either by record, writing, the 
 party's own oath, or the testimony of wit- 
 nesses. Proof. It also signifies the time of 
 a novitiate; a trial. Nov. 5. 
 
 PROBATIONES DEBENT ESSE EVI- 
 dentes, id est, perspicuae et faciles intelligi. 
 
 Proofs ought to be made evident, that is, 
 clear and easy to be understood. Co. Litt. 
 283. 
 
 PROBATIS EXTREMIS, PRAESUMITUR 
 
 media. The extremes being proved, the in- 
 termediate proceedings are presumed. 1 
 Greenl. Ev. § 20. 
 
 PROBATIVE. In the law of evidence. 
 Having the effect of proof. 
 
 PROBATIVE FACT. In the law of evi- 
 dence. A fact which actually has the effect 
 of proving a fact sought; an evidentiary 
 fact. 1 Benth. Jud. Ev. 18. 
 
 PRO BATOR. In old English law. Strict- 
 ly, an accomplice in felony who, to save 
 himself, confessed the fact, and charged or 
 accused any other as principal or acces- 
 sary, against whota he was bound to make 
 good his charge. It also signified an ap- 
 prover, or one who undertakes to prove a 
 crime charged upon another. Jacob. 
 
 PROBATORY TERM. In the British courts 
 of admiralty, after the issue is formed be- 
 tween the parties, a time for taking the tes- 
 timony is assigned. This is called a "pro- 
 batory term." 
 
 This term is common to both parties, and 
 either party may examine his witnesses. 
 When good cause is shown, the term will he 
 enlarged. 2 Brown, Civ. Law, 418; Dunl. 
 Adm. Prac. 217. 
 
 PROBI ET LEGALES HOMINES (Lat.) 
 Good and lawful men; persons competent, in 
 point of law, to serve on juries. Cro. Eliz. 
 654, 751; Cro. Jac. 635; Mart. & Y. (Tenn.) 
 147; Hardin (Ky.) 63; Bac. Abr. "Juries" 
 (A). 
 
 PROBITY. Justice; honesty. A man of 
 probity is one who loves justice and hon- 
 esty, and who dislikes the contrary. Wolff. 
 Dr. Nat. § 772. 
 
 PROCEDENDO (Lat.) In practice. Awrit 
 which issues where an action is removed 
 from an inferior to a superior jurisdiction 
 by habeas corpus, certiorari, or writ of 
 privilege, and it does not appear to such su- 
 perior court that the suggestion upon which 
 the cause has been removed is sufficiently 
 proved; in which case, the superior court 
 by this writ remits the cause to the court 
 from whence it came, commanding the in- 
 ferior court to proceed to the final hearing 
 and determination of the same. See 1 Chit. 
 575; 2 W. Bl. 1060; 1 Strange, 527; 6 
 Term R. 365; 4 Barn. & Aid. 535; 16 East, 
 387. 
 
 It also issues where an inferior court un- 
 warrantably delays in giving judgment. 3 
 Bl. Comm. 109; 4 Minor, Inst. 276, 301. 
 
 PROCEDENDO ON AID PRAYER. If one 
 
 pray in aid of the crown in real action, and 
 aid be granted, it shall be awarded that he 
 sue to the sovereign in chancery, and the 
 justices in the commorf pleas shall stay un- 
 til this writ of procedendo de loguela com© 
 
PROCEDURE 
 
 (729) 
 
 PROCESS 
 
 to them. So, also, on a personal action. 
 New Nat. Brev. 154. 
 
 PROCEDURE. The rule of pleading and 
 practice by which rights are enforced. It 
 is generally considered as not including the 
 law of evidence. 
 
 PROCEEDING. In its general acceptation, 
 this word means the form in which actions 
 are to be brought and defended, the manner 
 of intervening in suits, of conducting them, 
 the mode of deciding them, of opposing judg- 
 ments, and of executing. 
 
 In a narrower sense, any act, in the course 
 of an action, done to achieve a given end. 
 
 A prescribed mode of action to carry into 
 effect a right. 1 Duer (N. Y.) 620. 
 
 Ordinary proceedings intend the regular 
 and usual mode of carrying on a suit by due 
 course at common law. 
 
 Summary proceedings are those where the 
 matter in dispute is decided without the in- 
 tervention of a jury. These must be author- 
 ized by the legislature, except, perhaps, in 
 cases of contempt, for such proceedings are 
 unknown to the common law. 
 
 In Louisiana there is a third kind of pro- 
 ceeding, known by the name of "executory 
 proceeding," which is resorted to in the fol- 
 lowing cases: When the creditor's right 
 arises from an act importing a confession of 
 judgment, and which contains a privilege or 
 mortgage in his favor; or when the cred- 
 itor demands the execution of a judgment 
 which has been rendered by a tribunal dif- 
 ferent from that within whose jurisdiction 
 the execution is sought. Code La. art. 732. 
 
 In New York, and some other states, the 
 code of practice divides remedies into ac- 
 tions and special proceedings. An action is 
 a regular judicial proceeding, in which one 
 party prosecutes another party for the en- 
 forcement or protection of a right, the re- 
 dress or prevention of a wrong, or the pun- 
 ishment of a public offense. Every other 
 remedy is a special proceeding. Code N. Y. 
 § 2. 
 
 PROCEEDS. Money or articles of value 
 arising or obtained from the sale of prop- 
 erty. Goods purchased with money arising 
 from the sale of other goods, or obtained on 
 their credit, are proceeds of such goods. 2 
 Pars. Mar. Law, 201, 202. The sum, amount, 
 or value of goods sold, or converted into 
 money. Wharton. 
 
 . It is a term of equivocal import, depend- 
 ing on the context. 89 Pa. St. 46. 
 
 PROCERES (Lat.) The name by which 
 the chief magistrates in cities were formerly 
 known. St. Armand, Hist. Eq. 88. 
 
 PROCES VERBAL. In French law. A 
 true relation in writing, in due form of law, 
 of what has been done and said verbally in 
 the presence of a public officer, and what he 
 himself does upon the occasion. It is a spe- 
 cies of inquisition of office. 
 
 The proces verbal should be dated, contain 
 the name, qualities, and residence of the pub- 
 lic functionary who makes it, the cause of 
 complaint, the existence of the crime, that 
 
 which serves to substantiate the charge, 
 point out its nature, the time, the place, 
 the circumstances, state the proofs and pre- 
 sumptions, describe the place, — in a word, 
 everything calculated to ascertain the truth. 
 It must be signed by the officer. Dalloz. 
 
 PROCESS. 
 
 In Practice. The means of compelling 
 
 a defendant to appear in court, after suing 
 out the original writ, in civil, and, after in- 
 dictment, in criminal, cases. In a broader 
 sense, all writs and mandates issued in the 
 course of the proceeding. 15 Fla. 410. 
 
 The method taken by law to compel a com- 
 pliance with the original writ or commands 
 of the court. 
 
 In a strict sense, "process" is confined to 
 the mandate of a court under its seal, where- 
 by a party or an officer of the court is com- 
 manded to do certain acts. Thus, the sum- 
 mons used in many states, signed by plain- 
 tiff's attorney only, is not process. 12 Minn. 
 80; 17 Ore. 564. 
 
 In civil causes, in all real actions and for 
 injuries not committed against the peace, 
 the first step was a summons, which was 
 served in personal actions by two persona 
 called summoners, in real actions by erect- 
 ing a white stick or wand on the defendant's 
 grounds. If this summons was disregarded, 
 the next step was an attachment of the 
 goods of the defendant, and in case of tres- 
 passes the attachment issued at once with- 
 out a summons. If the attachment failed, a 
 distringas issued, which was continued ' till 
 he appeared. Here process ended in inju- 
 ries not committed with force. In case of 
 such injuries, an arrest of the person was 
 provided for. See "Arrest." In modern 
 practice some of these steps are omitted; 
 but the practice of the different states is too 
 various to admit tracing here the differences 
 which have resulted from retaining differ- 
 ent steps of the process. 
 
 In the English law, process in civil causes 
 is called "original" process, when it is found- 
 ed upon the original writ; and also to distin- 
 guish it from mesne or intermediate process, 
 which issues pending the suit, upon some 
 collateral interlocutory matter, as, to sum- 
 mon juries, witnesses, and the like. "Mesne" 
 process is also sometimes put in contradis- 
 tinction to "final" process, or process of exe- 
 cution; and then it signifies all process 
 which intervenes between the beginning and 
 end of a suit. 3 Bl. Comm. 279. And this is 
 the modern usage. 31 N. J. Law, 231. 
 
 In Patent Law. The art or method by 
 
 which any particular result is produced. 
 
 A process, eo nomine, is not made the sub- 
 ject of a patent in our act of congress. It 
 is included under the general term "useful 
 art." Where a result or effect is produced 
 by chemical action, by the operation or appli- 
 cation of some element or power of nature, 
 or of one substance to another, such modes, 
 methods, or operations are called "process- 
 es." A new process is usually the result of 
 discovery; a machine, of invention. The arts 
 of tanning, dyeing, making waterproof cloth, 
 vulcanizing India rubber, smelting ores, and 
 
PROCESS OF GARNISHMENT ^730) 
 
 PROCREATION 
 
 numerous others, are usually carried on by 
 "processes," as distinguished from "ma- 
 chines." But the term "process" is often 
 employed more vaguely in a secondary sense, 
 in which it cannot be the subject of a patent. 
 Thus, we say that a board is undergoing the 
 process of being planed, grain of being 
 ground, iron of being hammered or rolled. 
 Here the term is used subjectively or pas- 
 sively, as applied to the material operated 
 on, and not to the method or mode of pro- 
 ducing that operation, which is by mechan- 
 ical means, or the use of a machine, as dis- 
 tinguished from a process. In this use of 
 the term it represents the function of a ma- 
 chine, or the effect produced by it on the 
 material subjected to the action of the ma^ 
 chine, and does not constitute a patentable 
 subject matter, because there cannot be a 
 valid patent for the function or abstract ef- 
 fect of a machine, but only for the machine 
 which produces it. 15 How. (U. S.) 267, 268. 
 See 2 Barn. & Aid. 349. 
 
 PROCESS OF GARNISHMENT. See"Gar- 
 nishment." 
 
 PROCESS OF LAW. See "Due Process of 
 Law." 
 
 PROCESS ROLL. In practice. A roll used 
 for the entry of process to save the statute 
 of limitations. 1 Tidd, Prac. 161, 162. 
 
 PROCESSIONING. A term used to denote 
 the manner of ascertaining the boundaries 
 of land. It consists in a survey of the lands 
 in the presence of all persons interested who 
 shall have been previously given notice. 
 Comp. St. Tenn. 548. The term is also used 
 in North Carolina (3 Murph. 504; 3 Dev. 
 268), and Georgia (69 Ga. 53). 
 
 It is similar to the English "perambula- 
 tion" (g. V.) 
 
 PROCESSUM CONTINUANDO. In Eng- 
 lish practice. A writ for the continuance of 
 process after the death of the chief justice 
 or other justices in the commission of oyer 
 and terminer. Reg. Grig. 128. 
 
 PROCESSUS LEGIS EST GRAVIS VEXA- 
 tio, executio legis coronat opus. The process 
 of the law is a grievous vexation; the exe- 
 cution of the law crowns the work. Co. Litt. 
 289. 
 
 PROCHEIN (Law Pr.) Next. A term 
 somewhat used in modern law, and more fre- 
 quently in the old law; as, prochein ami, pro- 
 chein cousin. Co. Litt. 10. 
 
 PROCHEIN AMI (Law Fr.; spelled, also, 
 prochein amy and prochain amy). Next 
 friend. He who, without being appointed 
 guardian, sues In the name of an infant for 
 the recovery of the rights of the latter, or 
 does such other acts as are authorized by 
 law; as, in Pennsylvania, to bind the infant 
 apprentice. 3 Serg. & R. (Pa.) 172; 1 Ashm. 
 (Pa.) 27. For some of the rules with re- 
 spect to the liability or protection of a pro- 
 chein ami, see 3 Madd. 468; 4 Madd. 461; 2 
 Strange, 709; 1 Dick. 346; 1 Atk. 570; Mpse- 
 
 ly, 47, 85; 1 Ves. Jr. 409; 7 Ves. 425; 10 Ves. 
 184; Edwards, Parties, 182-204. 
 
 PROCHEIN AVOIDANCE. Next vacancy. 
 Used in respect to appointments to ecclesi- 
 astical vacancies. 
 
 PROCINCTUS (Lat. from procingi [proper- 
 ly, praecingi], to be girt about). In the Ro- 
 man law. A girding or preparing for battle. 
 Testamentum in procinctu, or testamentum 
 procinctum, a will made by a soldier, while 
 girding himself, or preparing to engage in 
 battle. A. Gell. Noct. Att. lib. xv. c. 27, note , 
 4; Adams, Rom. Ant. 62; Calv. Lex. This 
 mode of making a will had become obsolete 
 In the time of Justinian. Inst. 2. 10. 1. 
 
 PROCLAMARE (Lat.) 
 
 In the Civil Law. To cry out, or pro- 
 claim; to give warning. Inst. 4. 3. 5. 
 
 To assert a claim. Calv. Lex. 
 
 In Old European Law. To appeal (to 
 
 a higher court). Flod. lib. 3, c. 23; Capit. 
 lb. 6, c. 299; Spelman. 
 
 PROCLAMATION. The act of causing 
 some state matters to be published or made 
 generally known. A written or printed doc- 
 ument in which are contained such matters, 
 issued by proper authority; as, the presi- 
 dent's proclamation, the govenjior's procla- 
 mation, the mayor's proclamation. The word 
 'proclamation" is also used to express the 
 public nomination made of any one to a high 
 office; as, such a prince was proclaimed em- 
 peror. 
 
 The givijig of publicity is essential to the 
 idea of a proclamation, no paper being such 
 until it is in some manner published. 101 
 U. S. 770. 
 
 In Practice. The declaration made by 
 
 the crier, by authority of the court, that 
 something is about to be done. 
 
 It usually commences with the French 
 word oyez (do you hear), in order to attract 
 attention. It is particularly used on the 
 meeting or opening of the court, and at its 
 adjournment. It is also frequently employed 
 to discharge persons who have been accused 
 of crimes or misdemeanors. 
 
 PROCLAMATION OF EXIGENTS. In old 
 
 English practice. On awarding an exigent, 
 in order to outlawry, a writ of proclamation 
 issued to the sheriff of the county where the 
 party dwelt, to make three proclamations for 
 the defendant to yield himself or be out- 
 lawed. 
 
 PROCLAMATION OF REBELLION. In 
 
 old English practice. When a party neglect- 
 ed to appear upon a subpoena, or an attach- 
 ment in the chancery, a writ bearing this 
 name issued, and, if he did not surrender 
 himself by the day assigned, he was reputed 
 and declared a rebel. 
 
 PROCLAMATION OF RECUSANTS. A 
 
 proceeding whereby such persons were for- 
 merly convicted, on nonappearance at the as- 
 sizes. Jacob. 
 
 PROCREATION. The generation of chil- 
 dren. It is an act authorized by the law of 
 
PROCTOR 
 
 (731) 
 
 PROCUREUR GENERAL 
 
 nature. One of the principal ends of mar- 
 riage is the procreation of children. Inst, 
 tit. 2. pr. 
 
 PROCTOR. One appointed to represent in 
 judgment the party who empowers him, by 
 writing under his hand, called a "proxy." 
 The term is used chiefly in the courts of civ- 
 il, ecclesiastical, and admiralty law. The 
 proctor is somewhat similar to the attorney. 
 Ayliffe, Par. 421. 
 
 PROCURACY. The writing or instrument 
 which authorizes a procurator to act. Cow- 
 ell; Termes de la Ley. 
 
 PROCURARE (Lat. from pro, for, and cu- 
 rare, to take care of). To take care of an- 
 other's affairs for him, or in his behalf; to 
 see to the affairs of another; to govern; to 
 manage; to take care of, or superintend. 
 Dig. 17. 1. 34. 
 
 PROCURATIO (Lat. from procurare, to 
 manage). Management of another's affairs 
 by his direction, and in his behalf; procura- 
 tion; administration; agency. See "Proc- 
 uration." 
 
 A taking care of another. Spelman. 
 
 PROCURATION, tn civil law. The act 
 by which one person gives power to another 
 to act in his place, as he could do himself. 
 A letter of attorney. 
 
 An express procuration is one made by the 
 express consent of the parties. An implied 
 or tacit procuration takes place when an in- 
 dividual sees another managing his affairs 
 and does not interfere to prevent it. Dig. 17. 
 1. 6. 2; Id. 50. 17. 60; Code, 7. 32. 2. 
 
 Procurations are also divided into those 
 which contain absolute power, or a general 
 authority, and those which give only a lim- 
 ited power. Dig. 3. 3. 58; Id. 17. 1. 60. 4. 
 Procurations are ended in three ways: First, 
 by the revocation of the authority; second, 
 by the death of one of the parties; third, by 
 the renunciation of the mandatory, when it 
 is made in proper time and place, and it can 
 be done without injury to the person who 
 gave it. Inst. 3. 27; Dig. 17. 1; Code. 4. 35. 
 See "Authority;" "Letter of Attorney;" 
 "Mandate." 
 
 PROCURATION FEE (or MONEY). In 
 English law. Brokerage or commission al- 
 lowed to scriveners and solicitors, for ob- 
 taining loans of money. 4 Bl. Comm. 157. 
 
 PROCURATIONS. In ecclesiastical law. 
 Certain sums of money which parish priests 
 pay yearly to the bishops or archdeacons ra- 
 tione' visitationis. Dig. 3. 39. 25; Ayliffe, 
 Par. 429; 17 Viner, Abr. 544. 
 
 PROCURATOR. In civil law. A proctor; 
 a person who acts for another by virtue of a 
 procuration. Procurator est, qui aliena ne- 
 gotia mandata Domini administrat. Dig. 3. 
 3. 1. See "Attorney;" "Authority." 
 
 PROCURATOR, FISCAL. In Scotch law. 
 A public prosecutor. Bell, Diet. 
 
 PROCURATOR IN REM SUAM. In Scotch 
 
 law. A term which imports that one is act- 
 ing as attorney as to his own property. 
 When an assignment of a thing is made, as 
 a debt, and a procuration or power of attor- 
 ney is given to the assignee to receive the 
 same, he is in such case procurator in rem 
 suam. 3 Stair, Inst. 1. 2. 3, etc.; 3 Ersk. 
 Inst. 3. 5. 2; 1 Bell, Diet. bk. 5, c. 2, sec. 1, 
 §2. 
 
 PROCURATOR LITIS (Lat.) In civil law. 
 One who, by command of another, institutes 
 and carries on for him a suit. Vicat. Pro- 
 curator is properly used of the attorney of 
 actor (the plaintiff), defensor of the attor- 
 ney of reus (the defendant). It is distin- 
 guished from advocatus. who was one who 
 undertook the defense of persons, not tilings, 
 and who was generally the patron of the 
 person whose defense he prepared, the per- 
 son himself speaking it. It is also distin- 
 guished from cognitor, who conducted the 
 cause in the presence of his principal, and 
 generally in cases of citizenship; whereas 
 the procurator conducted the cause in the 
 absence of his principal. Calv. Lex. 
 
 PROCURATORIUM (Lat.) The proxy or 
 instrument by which a proctor is constituted 
 and appointed. 
 
 PROCURATOR NEGOTIORUM (Lat.) In 
 the civil law. The manager of another's 
 business or affairs; an agent; an attorney 
 in fact. Calv. Lex. 
 
 PROCURATOR PROVINCIAE (Lat.) In 
 the Roman law. A provincial officer who 
 managed the affairs of the revenue, and had 
 a judicial power in matters that concerned 
 the revenue. Adams, Rom. Ant. 178. 
 
 PROCURATORY OF RESIGNATION. In 
 
 Scotch law. A form of proceeding by which 
 a vassal authorizes the feu to be returned 
 to his superior. Bell, Diet. It is analogous 
 to the surrender of copyholds in England. 
 Wharton. 
 
 PROCUREUR. In French law. An attor- 
 ney; one who has received a commission 
 from another to act on his behalf. There 
 were in France two classes of procureurs: 
 Procureurs ad negotia, appointed by an in- 
 dividual to act for him in the administra- 
 tion of his affairs; persons Invested with a 
 power of attorney; corresponding to "attor- 
 neys in fact." Procureurs ad lites were per- 
 sons appointed and authorized to act for a 
 party in a court of justice. These corre- 
 sponded to attorneys at law (now called, in 
 England, "solicitors of the supreme court"). 
 The order of procureurs was abolished in 
 1791, and that of avoues established in their 
 place. Mozley & W. 
 
 PROCUREUR GENERAL (or IMPERIAL). 
 
 In French law. An officer of the imperial 
 court, who either personally or by his dep- 
 uty prosecutes every one who is accused of a 
 crime according to the forms of French law. 
 His functions appear to be confined to pre- 
 paring the case for trial at the assizes, as- 
 sisting in that trial, demanding the sentence 
 
PRODES HOMINES 
 
 (732) 
 
 PROFIT A PRENDRE 
 
 in case of a conviction, and being present at 
 the delivery of tlie sentence. He has a gen- 
 eral superintendence over the officers of po- 
 lice and of the juges d'instruGtion, and he 
 requires from the procureur du roi a general 
 report once in every three months. Brown. 
 
 PRODES HOMINES. The barons of the 
 realm. 
 
 PRODIGUS. In civil law. A person who, 
 though of full age, is incapable of managing 
 his affairs, and of the obligations which at- 
 tend them, in consequence of his bad conduct, 
 and for whom a curator is therefore ap- 
 pointed. 
 
 PRODITION. Treason; treachery. 
 
 PROD I TOR. A traitor. 
 
 PRODITORIE (Lat.) Treasonably. This 
 is a technical word formerly used in indict- 
 ments for treason, when they were written in 
 Latin. 
 
 PRODUCENT. In ecclesiastical law. He 
 who ptoduces a witness to be examined. 
 
 PRODUCTION OF SUIT (productio sectae). 
 The concluding clause of all declarations is, 
 "and thereupon he brings his suit." In old 
 pleading this referred to the production by 
 the plaintiff of his seota or suit, i. e., persons 
 prepared to confirm what he had stated in 
 the declaration. 
 
 The phrase has remained; but the practice 
 from which it arose is obsolete. 3 Bl. Comm. 
 295; Steph. PI. 428. 
 
 PRODUCTIO SECTAE (Law Lat.) In old 
 English law. Production of suit; the pro- 
 duction, by a plaintiff, of his secta or suit, 
 that is, a number of persons prepared to 
 confirm what he had stated in his count 
 (or intentio). This was done at the time 
 of counting, or immediately after, and was 
 expressed by the phrase at the end of the 
 count or declaration: "Et inde producit 
 sectam," and thereupon, or thereof, he pro- 
 duces suit. Translated in the modern forms : 
 "And therefore he brings suit." Et inde 
 statim, producat sectam sufficientem, duos 
 ad minus, vel tres, vel plures, si ppssit, and 
 thereupon he should immediately produce 
 a sufficient suit, two at least, or three or 
 more, if he can. Bracton, fol. 410. See Id. 
 159, 314b; Steph. PI. 429, and note. 
 
 PROFANE. That which has not been con- 
 secrated. By a profane place is understood 
 one which is neither sacred, nor sanctified, 
 nor religious. Dig. 11. 7. 2. 4. 
 
 PROFANELY. In a profane manner. In 
 an indictment, under the act of assembly of 
 Pennsylvania, against profanity, it is requi- 
 site that the words should be laid to have 
 been spoken profanely. 11 Serg. & R. (Pa.) 
 394. 
 
 PROFANENESS, or PROFANITY. In 
 
 criminal law. Imprecations in the name of 
 the Deity. 
 
 It is ^ form of blasphemy. 8 Conn. 375. 
 
 PROFECTITUS (Lat.) In civil law. That 
 which descends to us from our ascendants. 
 Dig. 23. 3. 5. 
 
 PROPER (Law Lat. proferus, profrus, from 
 Law Pr. profe^er, to produce). In old Eng- 
 lish law. An offer or proffer; an offer or 
 endeavor to proceed in an action, by any man 
 concerned to do so. Cowell. A judicial of- 
 fer to do some act. 
 
 A return made by a sheriff of his accounts 
 into the exchequer; a payment made on such 
 return. Cowell. 
 
 PROFERT IN CURIA (Lat. he produces in 
 court. Sometimes written profert in curiam^ 
 with the same meaning). In pleading. A 
 declaration on the record that a party pro- 
 duces the deed under which he makes title 
 in court. In ancient practice, the deed itself 
 was actually produced; in modem times, the 
 allegation only is made in the declaration, 
 and the deed is then constructively in pos- 
 session of the court. 3 Salk. 119; 6 Man. 
 & G. 277; 11 Md. 322. 
 
 Profert is, in general, necessary when ei- 
 ther party pleads a deed and claims rights 
 under it, whether plaintiff (2 Dutch. [N. J.] 
 293) or defendant (17 Ark. 279), to enable 
 the court to inspect and construe the instru- 
 ment pleaded, and to entitle the adverse 
 party to oyer thereof (10 Coke, 92b; 1 Chit. 
 PI. 414; 1 Archb. Prac. 164), and is not neces- 
 sary when the party pleads it without mak- 
 ing title under it (Gould, PI. c. 7, p. 2, § 
 47). But a party who is actually or pre- 
 sumptively unable to produce a deed may 
 plead it without profert, as in suit by a. 
 stranger (Comyn, Dig. "Pleader" [O 8]; Cro. 
 Jac. 217; Cro. Car. 441; Carth. 316), or one 
 claiming title by operation of law (Co. Litt. 
 225; Bac. Abr. "Pleas" [I 12]; 5 Coke, 75), 
 ^or where the deed is in the possession of the 
 adverse party, or is lost. In all these cases, 
 the special facts must be shown, to excuse- 
 the want of profert. See Gould, PI. c. 8. p. 
 2; Lawes, PI. 96; 1 Saund. 9a, note. Profert 
 and oyer are abolished in England by the 
 common-law procedure act (15 & 16 Vict. c. 
 76), and a provision exists (14 & 15 Vict. c. 
 99) for allowing inspection of all documents 
 in the possession or under the control of th& 
 party against whom the inspection is asked. 
 See 25 Bng. Law & Eq. 304. In many of the 
 states of the United States profert has been 
 abolished, and in some instances the instru- 
 ment must be set forth in the pleading of the 
 party relying upon it. The operation of 
 profert and oyer, where allowed, is to make 
 the deed a part of the pleadings of the 
 party producing it. 11 Md. 322; 3 Cranch 
 (U. S.) 234. See 7 Cranch (U. S.) 176. 
 
 PROFESSION. A public declaration re- 
 specting something. Code, 10. 41. 6. A state, 
 art, or mystery; as, the legal profession. 
 Dig. 1. 18. 6. 4; Domat, Dr. Pub. lib. 1, tit. 
 9, § 1, note 7. See 41 Mich. 155. 
 
 In Ecclesiastical Law. The act of en- 
 tering into a religious order. See 17 Viner, 
 Abr. 545. 
 
 PROFIT A PRENDRE. A right to take 
 
PROFITS 
 
 (733) 
 
 PROJECTIO 
 
 products or emblemeats from the lands of 
 Another. 
 
 "Under the term 'profit' Is comprehended 
 the produce of the soil, whether it arise 
 above or below the surface, as herbage, wood, 
 turf, coal, minerals, stones; also fish in a 
 pond or stream." 9 S. B. 562. 
 
 Profits a prendre are distinguished from 
 easements, in that they are rights of profit, 
 while an easement is a right without profit. 
 See "Basement." 
 
 PROFITS. An excess of the value of re- 
 turns over the value of expenditures. The 
 net amount made after deducting any proper 
 expenses incident to the transaction. 2 Sneed 
 (Tenn.) 452; 15 Minn. 519. 
 
 The expenses to be deducted are ordinari- 
 ly the current expenses incident to the busi- 
 ness; not such items as the depreciation of 
 buildings in which the business is carried 
 on. 94 U. S. 500. 
 
 This is a word of very extended significa- 
 tion. In commerce, it means the advance in 
 the price of goods sold beyond the cost of 
 purchase. In distinction from the wages of 
 labor, it is well understood to imply the net 
 return to the capital or stock employed, after 
 deducting all the expenses, including not 
 only the wages of those employed by the caj)- 
 Italist, but the wages of the capitalist him- 
 self for superintending the employment of 
 his capital or stock. Smith, Wealth of Na- 
 tions, bk. i. c. 6, and McCuUoch's notes; 
 Mill, Pol. Econ. c. 15. After indemnifying 
 the capitalist for his outlay, there commonly 
 remains a surplus, which is his profit, the 
 net income from his capital. 1 Mill, Pol. 
 Econ. c. 15. The word "profit" is generally 
 used by writers on political economy to de- 
 note the difference between the value of ad- 
 vances and the value of returns made by 
 their employment. 
 
 The profit of the farmer and the manu- 
 facturer is the gain made by the sale of 
 produce or manufactures, after deducting the 
 value of the labor, materials, rents, and all 
 expenses, together with the interest of the 
 capital employed, — whether land, buildings, 
 machinery, instruments, or money. The 
 rents and profits of an estate, the income or 
 the net income of it, are all equivalent ex- 
 pressions. The income or the net income 
 of an estate means only the profit it will 
 yield after deducting the charges of man- 
 agement. 5 Me. 202, 203 ; 35 Me. 420, 421. 
 
 Under the term "profit" is comprehended 
 the produce of the soil, whether it arise 
 above or below the surface; as, herbage, 
 wood, turf, coals, minerals, stones; also fish 
 in a pond or running water. Profits are di- 
 vided into profits a prendre, or those taken 
 and enjoyed by the mere act of the pro- 
 prietor himself, and profits a vendre, name- 
 ly, such as are received at the hands of and 
 rendered by another. Hammond, N. P. 172. 
 
 Profits are divided by writers on political 
 economy into gross and net, — gross profits 
 being the whole difference between the value 
 of advances and the value of returns made 
 by their employment, and net profits being 
 so much of that difference as is attributable 
 
 solely to the capital employed. The remain- 
 der of the difference, or, in other words, tlTe 
 gross profits minus the net profits, has no 
 particular name; but it represents the prof- 
 its attributable to industry, skill, and en- 
 terprise. See Malthus, Def. Pol. Econ.; Mc- 
 Culloch, Pol. Econ. (4th Ed.) 563. But the 
 word "profit" is generally used in a less ex- 
 tensive signification, and presupposes an ex- 
 cess of the value of returns over the value 
 of advances. 
 
 PROGRESSION (Lat. progressio; from pro 
 and gredior, to go forward). That state of 
 a business which is neither the commence- 
 ment nor the end. Some act done after the 
 matter has commenced, and before it is com- 
 pleted. Plowd. 343. 
 
 PROHIBETUR NE GUIS FACIAT IN SUO 
 quod nocere possit alieno. It is prohibited to 
 do on one's own property that which may in- 
 jure another's. 9 Coke, 59. 
 
 PROHIBITIO DE VASTO, DIRECTA PAR- 
 
 ti. A judicial writ which used to be address- 
 ed to a tenant, prohibiting him from waste 
 pending suit. Reg. Jud. 21; Moore, 917. 
 
 PROHIBITION (Lat. prohibition; from pro 
 and habeo, to hold back). In practice. The 
 name of a writ issued by a superior court, 
 directed to the judge and parties of a suit in 
 an inferior court, commanding them to cease 
 from the prosecution of the same, upon a 
 suggestion that the cause originally, or 
 some^ collateral matter arising therein, does 
 not belong to that jurisdiction, but to the 
 cognizance of some other court. 3 Bl. Comm. 
 112; Comyn, Dig.; Bac. Abr.; Saund. Index; 
 Viner, Abr.; 2 Sellon, Prac. 308; Ayliffe, 
 Par. 434; 2 H. Bl. 533. 
 
 The writ is based on absence of jurisdic- 
 tion, and will issue only where the lower 
 court has either no jurisdiction of the ac- 
 tion (47 Cal. 584; 4 Minn. 366; 60 N. Y. 31), 
 or where, having jurisdiction of a cause, it 
 proceeds to some act beyond its power (20 
 N. Y. 531). But where the lower court has 
 jurisdiction of all matters involved, mere 
 error in its decision is no ground for prohi- 
 bition. 100 Mo. 59; 13 Ind. 235. 
 
 "The writ of prohibition, as its name im- 
 ports, is one which commands the person to 
 whom it is directed not to do something 
 which, by the suggestion of the relator, the 
 court is informed he is about to do. If the 
 thing be already done, it is manifest that 
 the writ of prohibition cannot undo it, for 
 that would require an afiirriiative act, and 
 the only effect of a writ of prohibition is to 
 prevent any further proceedings in the pro- 
 hibited direction." 4 Wall. (U. S.) 159. 
 
 PROHIBITIVE IMPEDIMENTS. Thoseim- 
 pediments to a marriage which are only fol- 
 lowed by a punishment, but do not render 
 the marriage null. Bowyer, Mod. Civ. Law, 
 44. 
 
 PROJECTIO (Lat. from projicere, to cast 
 up). In old English law. A throwing up 
 
PROJET 
 
 (734) 
 
 PROMISSORY NOTE 
 
 of earth by the sea. Used by Sir Matthew 
 Hale as a synonym of alluvio. 
 
 PROJET (Fr.) In international law. The 
 draft of a proposed treaty or convention. 
 
 PROLEM ANTE MATRIMONIUM NA- 
 tam, ita ut post legitimam, lex civilis suc- 
 cedere facit in haereditate parentum; sed 
 prolem, quam matrimonium non parit, suc- 
 cedere non sinit lex Anglorum. The civil law 
 permits the offspring born before marriage 
 [provided such offspring be afterwards le- 
 vgitimized] to be the heirs of their parents; 
 but the law of the English does not suffer 
 the offspring not produced by the marriage 
 to succeed. Portescue, c. 39. 
 
 PROLES (Lat.) Progeny; such Issue as 
 proceeds from a lawful marriage, and, in its 
 enlarged sense, it signifies any children. 
 
 PROLES SEQUITUR SORTEM PATER- 
 nam. The offspring follows the condition of 
 the father. 1 Sandf. Ch. (N. Y.) 583, 660. 
 
 PROLETARIUS. In civil law. One who 
 had no property to be taxed, and paid a tax 
 only on account of his children (proles) ; a 
 person of mean or common extraction. The 
 word has become Frenchified, proletaire sig- 
 nifying one of the common people. 
 
 PROLICIDE (Lat. proles, offspring, cedere, 
 to WU). In medical jurisprudence. A word 
 used to designate the destruction of the hu- 
 man offspring. Jurists divide the subject in- 
 to "foeticide," or the destruction of the foe- 
 tus in ntero, and "infanticide," or the de- 
 struction of the new-born infant. Ryan, 
 Med. Jur. 137. 
 
 PROLIXITY. The unnecessary and super- 
 fluous statement of facts in pleading or in 
 evidence. This will be rejected as imperti- 
 nent. 7 Price, 278, note. 
 
 PROLOCUTOR (Lat. pro and loquor, to 
 speak before). In ecclesiastical law. The 
 president or chairman of a convocation. 
 
 PROLONGATION. Time added to the du- 
 ration of something. 
 
 When the time is lengthened during which 
 a party is to perform a contract, the sureties 
 of such a party are, in general, discharged, 
 unless the sureties consent to such prolon- 
 gation. 
 
 In the civil law, the prolongation of time 
 to the principal did not discharge the surety. 
 Dig. 2. 14. 27; Id. 12. 1. 40. 
 
 PROLYTAE (Lat.) In Roman law. The 
 term used to denominate students of law 
 during the fifth and last year of their stud- 
 ies. They were left during this year very 
 much to their own direction, and took the 
 name prolytae omnino soluti. They studied 
 chiefly the Code and the imperial constitu- 
 tions. See Dig. Pref. Prim. Const. 2; Calv. 
 Lex. 
 
 PROMISE. An engagement by which the 
 promisor contracts towards another for the 
 
 performance of some act. 1 Denio (N. Y.) 
 226. 
 
 "We are in the habit of considering as 
 the essential feature of contract a promise 
 by one party to another, or by two parties 
 to one another, to do or forbear from doing 
 certain acts. We are further in the habit of 
 using the word "promise" to signify a bind- 
 ing promise, as opposed to the offer of a 
 promise, or, to use the cumbrous terminolo- 
 gy of Austin, a pollicitatibn. * * * There are 
 then three stages necessary to the making 
 of that sort of agreement which results in 
 contract: There must be an offer, there 
 must be an acceptance of the offer resulting 
 In a proniise, and the law must attach a 
 binding force to the promise, so as to in- 
 vest it with the character of an obligation." 
 Anson, Cont. 4. 
 
 PROMISE OF MARRIAGE. A contract 
 between a man and a woman to marry each 
 other at some future time. The implied 
 agreement is, if no time be expressed, to 
 marry within a reasonable time. 42 Mich. 
 346; 97 Pa. St. 465. 
 
 The agreement need not be in any set form 
 (53 N. Y. 267), nor in express terms, but 
 may be inferred from conduct (71 Hun [N. 
 Y.] 137; 85 III. 222; 23 Barb. [N. Y.] 639). 
 
 To render the contract valid, the parties 
 must be competent to contract generally (8 
 Mich. 318; 26 Barb. [N. Y.] 615), and, more- 
 over, must be able to enter into the marriage 
 relation; a promise by one already married 
 (60 N. Y. Super. Ct. 222), or one who is im- 
 potent (41 N. J. Law, 13), being void; but 
 precontract to marry another does not in- 
 validate the promise (18 Mo. 389). 
 
 PROMISEE. A person to whom a promise 
 has been made. 
 
 PROMISOR. One who makes a promise. 
 
 PROMISSORY NOTE. A written promise 
 to pay a certain sum of money at a future 
 time, unconditionally. Bailey, Bills, 1; 3 
 Kent, Comm. 74; 7 Watts & S. (Pa.) 264; 
 2 Humph. (Tenn.) 143; 10 Wend. (N. Y.) 
 675; 1 Ala. 263; 7 Mo. 42; 2 Cow. (N. Y.) 
 536; 6 N. H. 364; 7 Vern. 22. 
 
 A written engagement to pay absolutely to 
 a person named, or to order or bearer, at a 
 specified time or on demand, a certain sum 
 of money. 10 111. 252; 15 Mass. 387; 127 
 N. Y. 92. 
 
 No particular form of expression is re- 
 quired. 37 111. 137; 7 Vt. 22. 
 
 A date is not essential. 32 Ind. 375; 30 
 Vt. 11 ; 76 Ala. 339. 
 
 The promise must be unconditional. 30 
 Minn. 441; 6 Wis. 209. 
 
 The promise to pay may be implied from 
 a phrase such as "good for," etc. (33 111. 424; 
 6 N. H. 364), or "due to," etc. (88 Hun [N. 
 Y.] 535; 27 111. 33,7; 17 Ga. 574). 
 
 To be a promissory note, the instrument 
 must be for the payment of money only. 
 40 Ark. 344; 20 N. Y. 272; 17 Wis. 139. 
 
 The payee must be clearly designated (13 
 Ga. 55; 6 Mo. App. 583; 1 111. 18); but this 
 
PROMOTERS 
 
 (735 
 
 PROPONE 
 
 may be done by description, without naming 
 him (16 111. 169). 
 
 The consideration need not be expressed. 
 127 N. Y. 92; 26 Or. 315; 8 Gal. 288. 
 
 The place of payment need not be stated. 
 31 Tex. 614. 
 
 The time of payment must be designated, 
 unless the note is payable "on demand" (86 
 U. S. 560). But see 8 Miss. 176; 1 Pin. (Wis.) 
 643. 
 
 The amount payable must be certain (60 
 Mich. 432), but the addition of "current ex- 
 change" (9 Mich. 241; 54 Minn. 184; 10 Wis. 
 34), or "attorneys' fees" (82 Ind. 370), does 
 not prevent the instrument being a note. 
 
 The decisions are in conflict as to whether 
 negotiability is an essential of a promissory 
 note. That it is not, see 1 Ga. 236; 46 Me. 
 387; 10 Gill & J. 299; 6 Gush. (Mass.) 172; 
 34 Vt. 402. Contra, 1 111. 18; 8 N. J. Law, 
 262; 66 N. Y. 14. 
 
 PROMOTERS. 
 
 In English Law. Those who, in popu- 
 lar or penal actions, prosecute in their own 
 names and the king's, having part of the 
 fines and penalties. 
 
 In Modern Corporation Law. Those 
 
 persons who manage the incorporation of a 
 company, issuing prospectuses, procuring the 
 stock subscriptions, etc. 
 
 PROMOVENT. A plaintiff in a suit of 
 duplex querela (g. v.) 2 Prob. Dlv. 192. 
 
 PROMULGATION. The order given to 
 cause a law to be executed, and to make 
 it public. It differs from "publication." 1 
 Bl. Gomm. 45; St. 6 Hen. VI. c. 4. 
 
 PROMUTUUM (Lat.) 'in civil law. A 
 quasi contract, by which he who receives a 
 certain sum of money, or a certain quantity 
 of fungible things, which have been paid to 
 him through mistake, contracts towards the 
 payer the obligation of returning him as 
 much. Poth. de I'Usure, pt. 3, § 1, a. 1. 
 
 This contract is called promutuum, be- 
 cause it has much resemblance to that of 
 mutuum This resemblance consists in this: 
 First, that in both a sum of money or some 
 fungible things are required; second, that in 
 both there must be a transfer of the property 
 in the thing; third, that in both there must 
 be returned the same amount or quantity of 
 the thing received. But, though there is 
 this general resemblance between the two, 
 the mutuum differs essentially from the pro- 
 mutuum. The former is the actual contract 
 of the parties, made expressly, but the latter 
 is a quasi contract, which is the effect of 
 an error or mistake. 1 Bouv. Inst, notes 
 1125, 1126. 
 
 PROOF. The conviction or persuasion of 
 the mind of a judicial tribunal by the exhi- 
 bition of evidence of the reality of a fact al- 
 leged. See "Evidence." 
 
 PROPER FEUDS. The original and gen- 
 uine feuds held by pure military service. 
 
 PROPERTY. The right and interest which 
 a man has in lands and chattels, to the ex- 
 
 clusion of others. 6 Bin. (Pa.) 98; 4 Pet. 
 (U. S.) 511; 17 Johns. (N. Y.) 283; 59 N. 
 Y. 192; 31 Gal. 637; 11 East, 290, 518; 14 
 East, 370. 
 
 The right to possess, use, enjoy, and dis- 
 pose of a thing in any manner not forbidden 
 by law (56 N. Y. 268; 31 Cal. 637); the 
 power of disposition being essential (13 N. 
 Y. 396; 70 Mich. 537). 
 
 The term is frequently applied to that 
 which is the subject of property, and in 
 this sense it includes everything corporeal 
 or incorporeal which is the subject of own- 
 ership. 26 Conn. 449; 84 N. Y. 565. It in- 
 cludes choses in action. 23 Minn. 239. 
 
 Within legal and constitutional provisions 
 for the protection of "property," it has been 
 held to include the right to labor (33 Hun 
 [N. Y.] 374), to practice a profession (90 
 Pa. St. 477), the right to take an appeal (57 
 Gal. 464). See "Real Property;" "Chattel 
 Property." 
 
 PROPERTY PER INDUSTRIAM. A quali- 
 fied property in animals acquired by re- 
 claiming or confining them. 
 
 PROPERTY PROPTER IMPOTENTIAM. 
 
 A qualified property which one has in ani- 
 mals ferae naturae, which are on his prem- 
 ises, and unable, by immaturity, to leave 
 them. It is lost when such animals become 
 able to leave. 
 
 PROPERTY PROPTER PRIVILEGIUM. A 
 
 qualified property in wild animals by reason 
 of a privilege of hunting them, to the ex- 
 clusion of others. 2 Bl. Gomm. 394. 
 
 PROPINQUIOR EXCLUDIT PROPIN- 
 quum; propinquus remotum; et remotus re- 
 motiorem. He who is nearer excludes him 
 who is near; he who is near, him who is re- 
 mote; he who is remote, him who is more 
 remote. Co. Litt. 10. 
 
 PROPINQUITY (Lat.) Kindred; parent- 
 age. See "Aflinity;" "Consanguinity." 
 
 PROPINQUUS (Lat.) In old English law. 
 Near; near of kin. 
 
 PROPIOS, or PROPRIOS. In Spanish law. 
 Certain portions of ground laid off and re- 
 served when a town was founded in Spanish 
 America, as the unalienable property of the 
 town, for the purpose of erecting public 
 buildings, markets, etc., or to be used in any 
 other way, under the direction of the munici- 
 pality, for the advancement of the revenues 
 or the prosperity of the place. 12 Pet. (U. S.) 
 442, note. 
 
 PROPONE. 
 
 In Scotch Law. To state. To propone 
 
 a defense is to state or move it. 1 Kames, 
 Eq. pref. 
 
 In Ecclesiastical and Probate Law. To 
 
 bring forward for adjudication; to exhibit as 
 basis of a claim; to proffer for judicial ac- 
 tion. 
 
PROPONENT 
 
 (736) PROROGATED JURISDICTION 
 
 PROPONENT. In ecclesiastical law. One 
 ■who propounds a thing; as, "the party pro- 
 ponent doth allege and propound." 6 Bee. 
 356, note. 
 
 He who propounds a will for probate. 
 
 PROPORTUM. In old records. Purport; 
 intention or meaning. Cowell. 
 
 PROPOSAL. An offer; a formal offer to 
 perform some undertaking, stating the time 
 and manner of performance, and price de- 
 manded, or one or more of these particulars, 
 either directly or by implied or direct refer- 
 ence to some announcement requesting such 
 an offer. See 35 Ala. (N. S.) 33. A proposal 
 of this character is not to he considered as 
 subject to different rules from any other of- 
 fer. Pierce, Am. Ry. Law, 364. 
 
 PROPOSITION. An offer to do something. 
 Until it has been accepted, a proposition may 
 be withdrawn . by the party who makes it, 
 and, to be binding, the acceptance must be 
 In the same terms, without any variation. 
 See "Acceptance;" 1 La. 190; 4 La. 80. 
 
 PROPOSITUM INDEFINITUM AEQUI- 
 pollet universal i. An indefinite proposition 
 is equal to a general one. 
 
 PROPOSITUS (Lat) The person proposed. 
 In making genealogical tables, the person 
 whose relations it is desired to find out is 
 ■called the propositus. 
 
 PROPOUND. 
 
 f er for probate. 
 
 In the law of wills. To of- 
 
 PROPRES. In French law. The term 
 propres or Mens propres is used to denote 
 that property which has come to an individ- 
 ual from his relations, either in a direct 
 line, ascending or descending, or from a col- 
 lateral line, whether the same have come by 
 operation of law or by devise. Propres is 
 used in opposition to acquets Poth. des 
 Propres; 2 Burge, Confi. Laws, 61. 
 
 PROPRIA PERSONA (Lat. in his own per- 
 son). It is a rule in pleading that pleas to 
 the jurisdiction of the court must be plead- 
 ed in propria persona, because, if pleaded by 
 attorney, they admit the jurisdiction, as an 
 attorney is an officer of the court, and he is 
 presunled to plead after having obtained 
 leave, which admits the jurisdiction. Lawes, 
 PI. 91. 
 
 An appearance may be in propria persona, 
 and need not be by attorney. 
 
 PROPRIEDAD. In Spanish law. Property. 
 White, New Recop. bk. 1, tit. 7, c. 5, § 2. 
 
 PROPRIETARY. Belonging or pertaining 
 to a proprietor. See 117 U. S. 487. 
 
 PROPRIETARY RIGHTS. Those rights 
 which an owner of property has by virtue of 
 his ownership. When proprietary rights are 
 
 opposed to acquired rights, such as ease- 
 ments, franchises, etc., they are more often 
 called "natural rights." 
 
 PROPRIETAS (Lat.) In the civil and old 
 English law. Property; that which is one's 
 own; ownership. 
 
 Proprietas Nuda. Naked or mere prop- 
 erty or ownership; the mere title, separate 
 from the usufruct. 
 
 Proprietas Plena. Pull property, in- 
 cluding not only the title, but the usufruct, 
 or exclusive right to the use. Calv. Lex. 
 
 PROPRIETAS TOTIUS NAVIS CARINAE 
 causam sequitur. The property of the whole 
 ship follows the ownership of the keel. Dig. 
 6. 1. 61. Provided it had not been construct- 
 ed with the materials of another. Id.;. 2 
 Kent, Comm. 362. 
 
 PROPRIETAS VERBORUM EST SALUS 
 
 proprietatum. The propriety of words is the ' 
 safety of property. 
 
 PROPRIETATE PROBANDA. The name 
 of a writ. See "De Proprietate Probanda." 
 
 PROPRIETATES VERBORUM OBSER- 
 vandae sunt. The proprieties (i. e., proper 
 meanings) of words are to be observed. 
 Jenk. Cent. Cas. 136. 
 
 PROPRIETOR. An owner; the holder of 
 the legal title. 
 
 PROPRIO VIGORE (Lat.) By its own force 
 or vigor. An expression frequently used in 
 construction. A phrase is said to have a cer- 
 tain meaning propria vigore. 
 
 PROPTER AFFECTUM (Lat.) For or on 
 account of some affection or prejudice. A 
 juryman may be challenged propter affectum; 
 as, because he is related to the party, has 
 eaten at his expense, and the like. See 
 "Challenge." 
 
 PROPTER DEFECTUM (Lat.) On ac- 
 count of or for some defect. This phrase is 
 frequently used in relation to challenges. A 
 juryman may be challenged propter affectum; 
 um; as, that he is a minor, an alien, and the 
 like. See "Challenge." 
 
 PROPTER DEFECTUM SANGUINIS. On 
 
 account of failure of blood. 
 
 PROPTER DELICTUM (Lat.) For or on 
 account of crime. A juror may be chal- 
 lenged propter delictum when he has been 
 convicted of an infamous crime. See "Chal- 
 lenge." 
 
 PROPTER HONORIS RESPECTUM. On 
 
 account of respect of honor or rank. See 
 "Challenge." 
 
 PROROGATEDJURISDICTION. InScotch 
 law. That jurisdiction which, by the con- 
 sent of the parties, is conferred upon a judge 
 who, without such consent, would be incom- 
 petent. Ersk. Inst. 1. 2. 15. 
 
 At common law, when a party is entitled 
 to some privilege or exemption from juris- 
 diction, he may waive it, and then the juris- 
 
PROROGATION 
 
 (737) 
 
 PROTEST 
 
 diction is complete; but the consent cannot 
 give jurisdiction. 
 
 PROROGATION (Lat.) Putting off to an- 
 other time. It is generally applied to the 
 English parliament, and means the continu- 
 ance of it from one day to another. It dif- 
 fers from "adjournment," which is a contin- 
 uance of it from one day to another in the 
 same session. 1 Bl. Comm. 186. 
 
 In Civil Law. The giving time to do a 
 
 thing beyond the term prefixed. Dig. 2. 14. 
 27. 1. See "Prolongation." 
 
 PROSCRIBED (Lat. proscriho, to write be- 
 fore). In civil law. Among the Romans, a 
 man was said to be proscribed when a re- 
 ward was offered^ for his head; but the term 
 was more usually applied to those who were 
 sentenced to some punishment which carried 
 with it the consequences of civil death. 
 Code, 9. 49. 
 
 PROSECUTION. The conducting or car- 
 rying forward of a judicial proceeding. 
 
 The means adopted to bring a supposed of- 
 fender against the criminal law to punish- 
 ment by due course of law. 
 
 PROSECUTOR. In practice. He who prose- 
 cutes another for a crime in the name of the 
 governinent. 
 
 The public prosecutor is an officer appoint- 
 ed by the government to prosecute all of- 
 fenses, — he is the attorney general or his 
 deputy. 
 
 A private prosecutor is one who prefers an 
 accusation against a party whom he suspects 
 to be guilty. 
 
 PROSEQUI (Lat.) To follow up or pur- 
 sue. See "Nolle Prosequi." 
 
 PROSPECTIVE (Lat. prospicio, to loolc for- 
 ward). That which is applicable to the fu- 
 ture. It is used in opposition to retrospec- 
 tive. To be just, a law ought always to be 
 prospective. 1 Bouv. Inst, note 116. 
 
 PROSPECTIVE DAMAGES. Such as will 
 naturally result from the injury complained 
 of, but have not accrued at the time of the 
 trial; such, for example, as the loss of wages 
 from a personal injury which will result 
 where plaintiff has not, at the time of the 
 trial, recovered his earning capacity. 
 
 PROSTITUTION. The common lewdness 
 of a woman for gain. The act of permitting 
 a common and Indiscriminate sexual inter- 
 course for hire. 12 Mete. (Mass.) 97; 8 
 Barb. (N. Y.) 610; 102 Ind. 161. In Iowa, 
 the term seems to be used in a wider sense 
 than elsewhere prevails. 56 Iowa, 432; 78 
 Iowa, 492. 
 
 In a figurative sense, it signifies the bad 
 use which a corrupt judge makes of the law, 
 by making it subservient to his interest; as, 
 the prostitution of the law, the prostitution 
 of justice. 
 
 PROTECTIO TRAHIT SUBJECTIONEM, 
 subjectio protectlonem. Protection draws to 
 it subjection; subjection, protection. Co. 
 Lltt. 65. 
 
 PROTECTION. 
 
 In Mercantile Law. The name of a 
 
 document generally given by notaries public 
 to sailors and other persons going abroad, 
 in which is certified that the bearer therein 
 named is a citizen of the United States. 
 
 In Governmental Law. That benefit or 
 
 safety which the government affords to the 
 citizens. 
 
 In English Law. A privilege granted 
 
 by the king to a party to an action, by which 
 he is protected from a judgment which would 
 otherwise be rendered against him. Of these 
 protections there are several kinds. Pitzh. 
 Nat. Brev. 65. 
 
 PROTECTION OF INVENTIONS ACT. 
 
 St. 33 & 34 Vict. c. 27. By this act it is 
 provided that the exhibition of new inven- 
 tions shall not prejudice patent rights, and 
 that the exhibition of designs shall not prej- 
 udice the right to registration of such de- 
 signs. 
 
 PROTECTION ORDER. In English pro- 
 bate practice. An order for the protection 
 of the property of a deserted wife. 
 
 PROTECTIONIBUS, STATUTE DE. The 
 
 English statute 33 Edw. I. st. 1, allowing a 
 challenge to be entered against a protection, 
 etc. 
 
 PROTECTOR OF SETTLEMENT. One 
 
 who may be appointed by the settler of an 
 estate tail, without whose consent the tenant 
 in tail cannot bar the entail except as against 
 his own issue. 
 
 PROTECTORATE. Government by a pro- 
 tector. The period of his rule. Specially 
 so used with reference to the period of 
 English history during which Oliver and 
 Richard Cromwell held the title of "Lord 
 Protector." 
 
 In International Law. A relation as- 
 sumed by a strong nation toward a weak 
 one, whereby the former protects the latter 
 from hostile invasion or dictation, and in- 
 terferes more or less in its domestic con- 
 cerns. Cent. Diet. Such, for example, is 
 the supervision assumed jointly by the Unit- 
 ed States, Germany, and Great Britain over 
 Samoa. See Davis, Int. Law, 247. 
 
 PROTEST. 
 
 In Mercantile Law. A notarial act, 
 
 made for want of payment of a promissory 
 note, or for want of acceptance or payment 
 of a bill of exchange by a notary public, in 
 which it is declared that all parties to such 
 instruments will be held responsible to the 
 holder for all damages, exchanges, re-ex- 
 change, etc. 
 
 In Legislation. A declaration made by 
 
 one or more members of a legislative body 
 that they do not agree with some act or reso- 
 lution of the body. It is usual to add the 
 reasons which the protestants have for such 
 a dissent. 
 
 In Maritime Law. A writing, attested 
 
 by a justice of the peace, a notary public, 
 or a consul, made and verified by the master 
 of a vessel, stating the severity of a voyage 
 by which a ship has suffered, and showing 
 
PROTESTANDO 
 
 (738) 
 
 PROVINCE 
 
 that it was not owing to the neglect or mis- 
 conduct of the master. See Marsh. Ins. 715, 
 716; 1 Wash. C. C. (U. S.) 145, 238, 408, note; 
 1 Pet. C. C. (U. S.) 119; 1 Dall. (Pa.) 6, 10, 
 317; 2 Dall. (Pa.) 195; 3 Watts & S. (Pa.) 
 144. 
 
 PROTESTANDO. See "Protestation." 
 
 PROTESTATION. 
 
 In Pleading. The indirect affirmation 
 
 or denial, by means of the word "protest- 
 ing" (in the Latin form of pleadings, pro- 
 testando), of the truth of some matter which 
 cannot with propriety or safety be positively 
 affirmed, denied, or entirely passed over. 
 See 3 Bl. Comm. 311. 
 
 The exclusion of a conclusion. Co. Litt. 
 124. 
 
 Its object was to secure to the party mak- 
 ing it the benefit of a positive affirmation or 
 denial in case of success in the action, so far 
 as to prevent the conclusion that the fact 
 was admitted to be true as stated by the op- 
 posite party, and at the same time to avoid 
 the objection of duplicity to which a direct 
 affirmation or denial would expose the plead- 
 ing. 19 Johns. (N. Y.) 96; 2 Saund. 103; 
 Comyn, Dig. "Pleader" (N) ; Plowd. 276; 
 Lawes, PI. 171. Matter which Is the ground 
 of the suit upon which issue could be taken 
 could not be protested. Plowd. 276; 3 Wils. 
 109; 2 Johns. (N. Y.) 227. But see 2 Wm. 
 Saund. 103, note. Protestations are no long- 
 er allowed (3 Bl. Comm. 312), and were gen- 
 erally an unnecessary form (3 Lev. 125). 
 
 The common form of making protestations 
 Is as follows: "Because protesting that," 
 etc., excluding such matters of the adver- 
 sary's pleading as are intended to be ex- 
 cluded in the protestando, if it be matter of 
 fact; or, if it be against the legal sufficiency 
 of his pleading, "because protesting that the 
 plea by him above pleaded In bar" (or by 
 way of reply, or rejoinder, etc., as the case 
 may be) "is wholly insufficient in law." 
 See, generally, 1 Chit. PI. 534; Archb. Civ. 
 PI. 245; Comyn, Dig. "Pleader" (N) ; Steph. 
 PI. 235. 
 
 In Practice. An asseveration made by 
 
 taking God to witness. A protestation Is a 
 form of asseveration which approaches very 
 nearly to an oath. Wolff. Inst. § 375. 
 
 PROTHONOTARY. The title given to an 
 officer who officiates as principal clerk of 
 some courts. Viner, Abr. The office exists 
 in Pennsylvania. 
 
 In the ecclesiastical law, the name of "pro- 
 thonotary" is given to an officer of the court 
 of Rome. He Is so called because he is the 
 first notary, — the Greek word protos, signify- 
 ing primus, or first. These notaries have 
 pre-eminence over the other notaries, and are 
 put in the rank of prelates. There are 
 twelve of them. Dalloz. 
 
 PROTOCOL. A record or register. Among 
 the Romans, protocoUum was a writing at 
 the head of the first page of the paper used 
 by the notaries or tabelllons. Nov. 44. 
 
 In Prance, the minutes of notarial acts 
 were formerly transcribed on registers, which 
 
 were called "protocols." Toullier, Dr. Civ. 
 liv. 3, tit. 3, c. 6, § 1, note 413. 
 
 By the German law It signifies the min- 
 utes of any transaction. Bnc. Am. "Proto- 
 col." In the latter sense, the word has of 
 late been received Into international law. Id. 
 
 PROTOCOLLUM (Graeco-Lat.) In the civ- 
 il law. A brief note or memorandum of a 
 transaction made by a notary, for the pur- 
 pose of being afterwards extended or writ- 
 ten out in full (quod breviter et succincte 
 notatur a tabelUone, ut extendi deinde atque 
 absolvi possit). Calv. Lex. A hasty note of 
 a transaction, as it were prima collectio re- 
 rum, the first getting together of matters. 
 Id. 
 
 ProtocoUum, among the Romans, seems to 
 have originally signified a formal caption 
 or heading of instruments drawn by tabel- 
 liones (notaries) ; or, more particularly, a 
 writing at the head of the paper used by 
 these officers, containing the name of the 
 comes sacrarum largitionum (chief officer 
 of the imperial treasury), and the time when 
 the Instrument was made. Nov. 44. It 
 seems to have served the purpose of an offi- 
 cial stamp. In the fofty-fourth Novel, the 
 tabelliones are forbidden to write their in- 
 struments upon any other paper than such 
 as contained this protocoUum at the head. 
 
 PROTOCOLO. In Spanish law. The orig- 
 inal draft or writing of an instrument which 
 remains in the possession of the escribano, 
 or notary. White, New Recop. lib. 3, tit. 7, c. 
 5, § 2. 
 
 PROTUTOR (Lat.) In civil law. He who, 
 not being the tutor of a pupil or minor, has 
 administered his property or affairs as if he 
 had been, whether he thought himself le- 
 gally invested with the authority of a tutor 
 or not. 
 
 He who marries a woman who Is tutrix 
 becomes, by the marriage, a protutor. The 
 protutor is equally responsible as the tutor. 
 
 PROUT PATET PER RECORDUM (Lat.) 
 As appears by the record. This phrase Is 
 frequently used in pleading; as, for exam- 
 ple, In debt on a judgment or other mattej 
 of record, unless when it is stated as an in- 
 ducement, it Is requisite, after showing the 
 matter of record, to refer to It by the prout 
 patet per recordum. 1 Chit. PI. *356; 10 Me. 
 127. 
 
 PROVE. To make proof of; to establish 
 by evidence. 
 
 PROVER. In old English law. One who 
 undertakes to prove a crime against another. 
 28 Edw. I.; 5 Hen. IV. One who, being in- 
 dicted and arraigned for treason or felony, 
 confesses before plea pleaded, and accuses 
 his accomplices to obtain pardon; state's ev- 
 idence. 4 Bl. Comm. 329, 330*. To prove. 
 Law Pr. & Lat. Diet ; Brltt. c. 22. 
 
 PROVINCE. Sometimes this signifies the 
 district into which a country has been, divid- 
 ed; as, the province of Canterbury, In Eng- 
 land; the province of Languedoc, in France. 
 Sometimes it means a dependency or colony; 
 
PROVINCIAL CONSTITUTIONS (739) 
 
 PROVISO, ETC. 
 
 as, the province of New Brunswick. It is 
 sometimes used figuratively to signify power 
 or authority; as, it is the province of the 
 court to judge of the law, that of the jury to 
 decide on the facts. 
 
 PROVINCIAL CONSTITUTIONS. The de- 
 crees of provincial synods held under divers 
 archbishops of Canterbury, from Stephen 
 Langton, in the reign of Henry III., to Hen- 
 ry Chichele, in the reign of Henry V., and 
 adopted also by the province of York in the 
 reign of Henry VI. 
 
 PROVING OF THE TENOR. In Scotch 
 practice. An action for proving the tenor of 
 a lost deed. Bell, Diet. 
 
 PROVISION. 
 
 In Common Law. The property which 
 
 a drawer of a bill of exchange places In the 
 hands of a drawee; as, for example, by re- 
 mittances, or when the drawee is indebted to 
 the drawer when the bill becomes due, pro- 
 vision is said to have been made. Accept- 
 ance always presumes a provision. See Code 
 de Comm. arts. 115-117. 
 
 In French Law. An allowance grant- 
 ed by a judge to a party for his support, — 
 which is to be paid before there is a defini- 
 tive judgment. In a civil case, for ex- 
 ample, it is an allowance made to a wife who 
 is separated from her husband. Dalloz. 
 
 PROVISIONAL ASSIGNEES. Those who, 
 under the old bankruptcy practice of Eng- 
 land, were appointed to take charge of 
 bankrupt estates until the creditors' as^ 
 signees were appointed. 
 
 PROVISIONAL ORDER. In English law. 
 Under various acts of parliament, certain 
 public bodies and departments of the govern- 
 ment are authorized to inquire into matters 
 which, in the ordinary course, could only be 
 dealt with by a private act of parliament, 
 and to make orders for their regulation. 
 These orders have no effect unless they are 
 confirmed by an act of parliament, and are 
 hence called "provisional orders." Several 
 orders may be confirmed by one act. The ob- 
 ject of this mode of proceeding is to save the 
 trouble and expense of promoting a number 
 of private bills. 
 
 PROVISIONAL REMEDY. A remedy 
 adopted to meet a particular exigency ._ The 
 term is ordinarily applied to process issued 
 at the commencement or during the pen- 
 dency of a suit to preserve some status until 
 the rights of the parties are adjudicated. 
 Preliminary injunction, attachment, arrest 
 on mesne process, garnishment, etc., are pro- 
 visional remedies. 
 
 PROVISIONAL SEIZURE. 
 
 , In Louisiana. A term which signifies 
 
 ; nearly the same as attachment of property. 
 It is regulated by the Code of Practice as 
 follows, namely: The plaintiff may, in cer- 
 tain cases, hereafter provided, obtain the 
 f, provisional seizure of the property which he 
 t holds in pledge, or on which he has a privi- 
 t lege, in order to secure a payment of his 
 t claim. Code La. art. 284. 
 
 Provisional seizure may be ordered in the 
 following cases: First, in executory pro- 
 ceedings, when the plaintiff sues on a title 
 importing confession of judgment; second, 
 when a lessor prays for the seizure of furni- 
 ture or property used in the house, or at- 
 tached to the real estate which he has leased ; 
 third, when a seaman, or other person, em- 
 ployed on board of a ship or water craft, 
 navigating within the state, or person hav- 
 ing furnished materials for or made repairs 
 to such ship or water craft, prays that the 
 same may be seized, and prevented from de- 
 parting, until he has been paid the amount 
 of his claim; fourth, when the proceedings 
 are in rem, that is to say, against the thing 
 itself which stands pledged for the debt, 
 when the property is abandoned or in cases 
 where the owner of the thing is unknown or 
 absent. Code La. art. 285. See 6 Mart. 
 (La.; N. S.) 168; 7 Mart. (La.; N. S.) 153; 
 8 Mart. (La.; N. S.) 320; 1 Mart. (La.) 168; 
 12 Mart. (La.) 32. 
 
 PROVISIONS OF OXFORD. Certain pro- 
 visions made in the parliament of Oxford, 
 1258, for the purpose of securing the exe- 
 cution of the provisions of Magna Charta 
 against the invasions thereof by Henry III. 
 The government of the country was in effect 
 committed by these provisions to a stand- 
 ing committee of twenty-four, whose chief 
 merit consisted in their representative char- 
 acter, and their real desire to effect an im- 
 provement in the king's government. Brown. 
 
 PROVISO. The name of a clause inserted 
 in an act of the legislature, a deed, a written 
 agreement, or other instrument, which gen- 
 erally contains a condition that a certain 
 thing shall or shall not be done, in order 
 that an agreement contained in another 
 clause shall take effect. 
 
 "This word hath divers operations. Some- 
 times it worketh a qualification or limita- 
 tion, sometimes a condition, and sometimes 
 a covenant." Co. Litt. 146b, 203b. 
 
 It always implies a condition, unless sub- 
 sequent words change it to a covenant; but 
 when a proviso contains the mutual words 
 of the parties to a deed, it amounts to a 
 covenant. 2 Coke, 72; Cro. Eliz. 242; Moore, 
 707. 
 
 A proviso differs from an exception. 1 
 Barn. & Aid. 99. An exception exempts, ab- 
 solutely, from the operation of an engage- 
 ment or an enactment; a proviso defeats, 
 their operation conditionally. An exception 
 takes out of an engagement or enactment 
 something which would otherwise be part 
 of the subject matter of it: a proviso avoids 
 them by way of defeasance or excuse. 8 Am. 
 Jur. 242; Plowd. 361; Carth. 99; 1 Saund. 
 234a, note; Lilly, Reg., and the cases there 
 cited. See, generally. Am. Jur. No. 16, art. 
 1; Bac. Abr. "Conditions" (A) ; Comyn, Dig. 
 "Condition" (A 1), (A 2); Dwarr. St. 660. 
 
 PROVISO EST PROVIDERE PRAESEN- 
 tia at futura, non praeterita. A proviso is to- 
 provide for the present and the future, not 
 the past. 2 Coke, 72; Vaughan, 279; Broom, 
 Leg. Max. (3d London Ed.) 275. 
 
PROVISOR 
 
 (740) 
 
 PUBLIC CHARITY 
 
 PROVISOR. He that hath the care of pro- 
 viding things necessary, but more especially 
 one who sued to the court of Rome for a pro- 
 vision. Jacob; 25 Edw. III. One nominated 
 by the pope to a benefice before it ^became 
 void, in prejudice of right of true patron. 4 
 Bl. Comm. 111*. 
 
 PROVOCATION (Lat.prowco, to call out). 
 The act of inciting another to do something. 
 Such conduct as tends to arouse passions 
 which may lead to the commission of an act. 
 
 Provocation is no defense for crime, but 
 may mitigate the damages for an assault (3 
 E. D. Smith [N. Y.] 518), and if adequate to 
 arouse in the mind of a reasonable man such 
 passion as to cause him to act rashly and 
 without reflection, it will reduce homicide' 
 from murder to manslaughter. See "Cool 
 Blood." 
 
 PROVOST. A title given to the chief of 
 some corporations or societies. In France, 
 this title was formerly given to some pre- 
 siding Judges. The word is derived from the 
 Latin praepositus. 
 
 I 
 
 PROVOST MARSHAL. A military officer 
 appointed to arrest and secure deserters 
 and other offenders, to prevent pillaging, in- 
 dict offenders, and see to the passage and 
 execution of sentence, and also to perform 
 other certain duties pertaining to the police 
 and, discipline of the service. The provost 
 marshal of the navy has charge of prison- 
 ers, etc. Webster. 
 
 PROXENETAE (Lat.) In the civil law. 
 Among the Romans, these were persons 
 whose functions somewhat > resembled those 
 of the brokers of modern commercial na- 
 tions. Dig. 50. 14. 3; Domat, lib. 1, tit. 17, § 
 1, art. 1. 
 
 PROXIMATE CAUSE. That which, in a 
 natural and continuous sequence, unbroken 
 by a new cause, produced an event, and 
 without which that event would not have 
 occurred. Shear. & R. Neg. § 261. 
 
 PROXIMITY (Lat.) Kindred between two 
 persons. Dig. 38. 16. 8. 
 
 PROXIMUS EST GUI NEMO ANTECE- 
 dit; supremus est quem nemo sequitur. He 
 is next whom no one precedes; he is last 
 whom no one follows. Dig. 50. 16. 92. 
 
 PROXY. A person appointed in the place 
 of another, to represent him. 
 
 The instrument by which a person is ap- 
 pointed so to act. It is said to be a contrac- 
 tion of "procuracy." 
 
 In Ecclesiastical Law. A judicial proc- 
 tor, or one who is appointed to manage an- 
 other man's law concerns, is called a "proxy." 
 Ayliffe, Par. 
 
 An annual payment made by the parochial 
 clergy to the bishop, etc., on visitations. 
 Tomlins. See Rutherforth, Inst. 253; Hall, 
 Prac. 14. 
 
 PRUDENTUR AGIT QUI PRAECEPTO 
 legis obtemperat. He acts prudently who 
 obeys the commands of the law. 5 Coke, 49. 
 
 PRYK. A kind of service of tenure. 
 Blount says it signifies an old-fashioned 
 spur, with one point only, which the tenant 
 holding land by this tenure was to find for 
 the king. Wiharton. 
 
 PSYCHOLOGICAL FACT. In the law of 
 
 evidence. A fact which can only be per- 
 ceived mentally; such as the motive by 
 which a person Is actuated. Burrill, Qirc 
 Bv. 130, 131. 
 
 PUBERTY. In civil law. The age in boys 
 of fourteen, and in girls of twelve years. 
 Ayliffe, Band. 63; Hall, Prac. 14; Toullier 
 Dr. Civ. torn. 5, p. 100; Inst. 1. 22; Dig. l' 
 7. 40. 1; Code, 5. 60. 3; 1 Bl. Comm. 436. 
 
 PUBLIC. The whole body politic, or all 
 the citizens of the state. It is inapplicable 
 to a municipal corporation or other political 
 subdivision; the people are the public. 21 
 Mich. 335. 
 
 This term is sometimes joined to other 
 terms, to designate those things which have 
 a relation to the public; as, a public officer, 
 a public road, a public passage, a public 
 house. 
 
 A distinction has been made between the 
 terms "public" and "general;" they are some- 
 times used as synonymous. The former 
 term is applied strictly to that which con- 
 cerns all the citizens and every member of 
 the state; while the latter includes a lesser, 
 though still a large, portion of the com- 
 munity. Greenl. Bv. § 128. 
 
 PUBLICADMINISTRATOR. One appoint- 
 ed to administer the estates of intestates 
 where there is no person interested in them 
 competent and willing to take the adminis- 
 tration. He is generally a standing oflJcer, 
 or an oSicer of court acting ex officio, as the 
 sheriff in Arkansas (23 Ark. 304), or the 
 clerk of the superior court In Georgia (20 
 Ga. 775) ; but the term is also applied to an 
 administrator appointed for the occasion in 
 default of any application for administra- 
 tion. 
 
 PUBLIC AUCTION. This phrase is fre- 
 quently used, but it is difficult, to conceive 
 of a private auction, so the word "public" 
 seems to add nothing. See "Auction." 
 
 PUBLIC BRIDGE. One forming partof a 
 public highway; one erected for common 
 use or public convenience, as distinguished 
 from one erected for the use and convenience 
 of a private person. 
 
 Common use on special occasion will con- 
 stitute a public bridge. 4 Campb. 189. 
 
 PUBLIC BUILDINGS. Buildings ordina- 
 rily used in or indispensable to the conduct 
 of the public business. 41 Pa. St. 270. 
 
 PUBLIC CARRIER. A common carrier 
 
 ((?. V.) 
 
 PUBLIC CHARITY. Any charity whose 
 objects are undefined; one for the benefit of 
 an indefinite number of unselected persons. 
 See "Charitable Uses." 
 
PUBLIC COMPANY 
 
 (741) 
 
 PUBLIC TRIAL 
 
 PUBLIC COMPANY. A term used in the 
 English law for open corporations. "What 
 a 'public company' is has not been defined, 
 but one test is whether the members have 
 a right to transfer their shares." Buckl. 3; 
 12 Ch. Div. 655. 
 
 PUBLIC DEBT. That which is due or ow- 
 ing by the government. 
 
 PUBLIC DOMAIN. In its most general 
 sense, all landed property owned by the pub- 
 lic. In peculiar context it has been limited 
 to unappropriated public lands. 68 Tex. 547. 
 
 PUBLIC EASEMENT. An easement, such 
 as a public right of way, the enjoyment of 
 which belongs to the public generally, and 
 not to the owner of a particular dominant 
 estate. 
 
 PUBLIC ENEMY. This word, used in the 
 singular number, designates a nation at war 
 with the United States, and includes every 
 member of such nation. Vattel, bk. 3, c. 5, 
 § 70. 
 
 To make a public enemy, the government 
 of the foreign country must be at war with 
 the United States; for a mob, how numer- 
 ous soever it may be, or robbers, whoever 
 they may be, are never considered as a 
 public enemy. 2 Marsh. Ins. 508; 3 Bsp. 131, 
 132. 
 
 A common carrier is exempt from respon- 
 sibility whenever a loss has been occasioned 
 to the goods in his charge by the act of a 
 public enemy; but the burden of proof lies 
 on him to show that the loss was so occa- 
 sioned. 3 Munf. (Va.) 239; 4 Bin. (Pa.) 
 127; 2 Bailey (S. C.) 157. See "Common 
 Carriers." 
 
 PUBLIC LAND. In its most general sense, 
 all lands owned by the government. In the 
 more limited sense in which it is ordinarily 
 used, it signifies such lands as are subject 
 to sale or other disposition by the govern- 
 ment under general laws. 92 U. S. 761; 98 
 U. S. 118. 
 
 PUBLIC LAW. In one sense, Internation- 
 al law. In another sense, a general law. 
 
 PUBLIC MINISTERS. A general term of 
 the international law, which includes all dip- 
 lomatic representatives, but excludes consuls. 
 
 PUBLIC NOTICE. Notice given to the 
 public generally, as by advertisement or 
 posting, and not to some particular individ- 
 ual. 
 
 PUBLIC NUISANCE. See "Nuisance." 
 
 PUBLIC OFFENSE. Includes all criminal 
 offenses, including violations of municipal 
 ordinances. 34 Minn. 1. 
 
 PUBLIC PASSAGE. A right to pass over 
 a body of water. This term is synonymous 
 with "public highway," with this difference: 
 by the latter is understood a right to pass 
 over the land of another; by the former is 
 
 meant the right of going over the water 
 which is on another's land. Carth. 193; 
 Hammond, N. P. 195. 
 
 PUBLIC PEACE. "Public tranquillity; that 
 quiet, order, and freedom from disturbance 
 which is guarantied by the laws." The de- 
 termination of what acts disturb the public 
 peace rests in the sound discretion of the 
 legislature. 6 Daly (N. Y.) 276, 280. 
 
 PUBLIC POLICY. The criterion by which 
 the courts condemn contracts as opposed to 
 the public will, or as tending to subvert the 
 public welfare. 
 
 Thus, public policy invalidates contracts 
 tending to immorality, as for the rental of a 
 brothel (27 Mo. App. 649), or in considera- 
 tion of future illicit cohabitation (58 Ala. 
 303; 57 Hun [N. Y.] 292); contracts facili- 
 tating divorce (89 111. 349; 25 Minn. 72); 
 contracts in unreasonable restraint of trade 
 (49 N. J. Eq. 217) ; combinations to restrict 
 competition (90 Gal. 110; 68 N. Y. 558); 
 contracts to unfairly influence an appoint- 
 ment or election to public office (8 Kan. 
 601; 23 Mo. App. 555); to unlawfully in- 
 fluence legislation (88 Mass. 152) ; to limit 
 the jurisdiction of courts, as by agreeing not 
 to sue in a particular court (94 U. S. 535) ; to 
 compound a criminal offense (83 111. 418) ; 
 to restrict competition at a public sale, as 
 by agreeing not to bid thereat (47 Ga. 479). 
 And the agreement need only tend to ille- 
 gality. Thus, an agreement for witness' fees 
 contingent on the success of the party for 
 whom the witness is to testify (10 Ala. 206), 
 or for a fee to a private prosecutor contin- 
 gent on a conviction (62 Ky. 207), or by 
 an attorney to defend against offenses to be 
 committed in the future (41 Kan. 364), are 
 void as against public policy. 
 
 PUBLIC RECORD. A record maintained 
 by public authorities, or open to the inspec- 
 tion of the public. 
 
 PUBLIC RIVER. A navigable river. See 
 "Navigable." 
 
 PUBLIC SALE. A sale conducted on no- 
 tice to the public, at which the public is in- 
 vited to attend and purchase. 
 
 PUBLIC SCHOOLS. Schools maintained 
 at the public expense by taxation. 
 
 PUBLIC SEAL. The official seal of a pub- 
 lic officer. See "Seals." 
 
 PUBLIC STOCKS. Public obligations or 
 securities. 
 
 PUBLIC TRIAL. A trial which, under rea- 
 sonable limitations, the public are freely ad- 
 mitted to attend. The attendance may be 
 limited to the reasonable seating capacity of 
 the courtroom' (92 Mo. 542), and persons 
 whose attendance as a class would probably 
 tefad to disorder may be excluded (Fed. Cas. 
 No. 14,680), but the exclusion of all persons 
 except officers of the court is a violation of 
 the right to a public trial (103 Gal. 242), as 
 is an order to an officer to admit only "re- 
 
PUBLIC USE 
 
 (742) 
 
 PUBDICI JURIS 
 
 spectable persons," where it appears that 
 proper persons were excluded (89 Mich. 276). 
 "The requirement of a public trial is for 
 the benefit of the accused, that the public 
 may see he is fairly dealt with, and not un- 
 justly condemned, and that the presence of 
 interested spectators may keep his triers 
 keenly alive to a sense of their responsi- 
 bility and to the importance of their func- 
 tions; and the requirement Is fairly ob- 
 served if, without partiality or favoritism, 
 a reasonable proportion of the public is suf- 
 fered to attend, notwithstanding that those 
 persons whose presence could he of no serv- 
 ice to the accused, and who would only be 
 drawn thither by a prurient curiosity, are 
 excluded altogether." Cooley, Const. Lim. 
 *312. 
 
 PUBLIC USE. The nature of the "public 
 use" for which private property may be tak- 
 en is "flexible" (43 N. J. Law, 384), "de- 
 pendent somewhat on the situation and 
 wants of the community for the time being" 
 (1 N. J. Bq. 694), and not reducible to any 
 set of rules or principles of certain and uni- 
 form application (7 W. Va. 195). It has 
 been limited to use by the public themselves 
 (21 W. Va. 534), and, on the other hand, ex- 
 tended to any use for the public utility or 
 advantage (16 Gray [Mass.] 417). The use 
 may be by a private person for the public 
 benefit (17 N. H. 57), and it is immaterial 
 that such person may derive private profit 
 therefrom (39 N. Y. 171). 
 
 The establishment of public highways is an 
 undisputed public use (103 Mass. 120), as is 
 the establishment of a railway line (23 Wall. 
 [TJ. S.] 108; 9 N. Y. 100), and its various 
 facilities, as depots (111 Mass. 125), but 
 spur tracks for private advantage have been 
 held not to he (40 Ohio St. 504; 48 Fed. 615). 
 Canals (39 N. Y. 171), public wharves (110 
 N. Y. 569), drains necessary to preserve the 
 public health (72 N. Y. 1), irrigation (4 
 Colo. 100), public cemeteries (66 N. Y. 569), 
 public grain elevators (68 N. Y. 208), have 
 been held to be public purposes. 
 
 PUBLIC VERDICT. A verdict delivered by 
 the jury in open court, as distinguished from 
 a privy verdict sealed and delivered by the 
 jury when court is not in session. 
 
 PUBLIC WAR. See "War." 
 
 PUBLIC WAYS. Highways iq. v.) 
 
 PUBLIC WORSHIP. "May mean the wor- 
 ship of God, conducted and observed under 
 public authority; or it may mean worship 
 in an open or public place, without pi'ivEicy 
 or concealment; or it may mean the per- 
 formance of religious exercises, under a pro- 
 vision for an equal right in the whole public 
 to participate in its benefits; or it may he 
 used in contradistinction to worship in the 
 family or the closet. In this country, what 
 is called 'public worship' is commonly con- 
 ducted by voluntary societies, constituted 
 according to their own notions of ecclesias- 
 tical authority and ritual propriety, open- 
 ing their places of worship, and admit- 
 ting to their religious services such per- 
 
 sons, and upon such terms, and subject to 
 such regulations, as they may choose to 
 designate and establish. A church abso- 
 lutely belonging to the public, and in which 
 all persons without restriction have equal 
 rights, such as the public enjoy in high- 
 ways or public landings, is certainly a very 
 rare institulion, if such a thing can be 
 found." 14 Gray (Mass.) 586, 602. 
 
 PUBLIC WRONGS. A public wrong, oth- 
 erwise termed a "crime," is a breach and 
 violation of the public rights and duties due 
 to the whole community, considered as a 
 community in its social aggregate capacity. 
 4 Bl. Comm. 5. 
 
 Thus, an entry on the land of another 
 without committing a breach of the peace 
 is a mere trespass (8 Grat. [Va.] 708; 5 
 Denip [N. Y.] 277), but an entry upon the 
 land of another in such manner as to cause 
 a breach of the public peace is a public 
 wrong, criminally punishable (8 Grat. [Va.] 
 708). See 1 Clark & Marshall, Crimes, 4. 
 
 PUBLICAN. In civil law. A farmer of 
 the public revenue; one who held a lease 
 of some property from the public treasury. 
 Dig. 39. 4. 1. 1; Id. 39. 4. 12. 3; Id. 39'. 4. 13. 
 
 PUBLICANUS (Lat.) In the Roman law. 
 A farmer of the customs; a publican (.qui 
 pumco fructur). Dig. 39. 4. 1; Id. 50. 16. 
 16; Calv. Lex. 
 
 PUBLICATION. The act by which a thing 
 is made public. 
 
 Printing without circulation is not publi- 
 cation (5 Fed. 729), and circulation in man- 
 uscript is publication (3 Fed. 486). See, 
 also, "Literary Property." 
 
 It differs from "promulgation" (g. v.) 
 And see, also, Toullier, Dr. Civ. tit. "Pre- 
 limipaire," note 59, for the difference in the 
 meaning of these two words. 
 
 Publication has different meanings. When 
 applied to a law, it signifies the rendering 
 public the existence of the law; when it re- 
 lates to the opening of the depositions taken 
 in a case in chancery, it means that liberty 
 is given to the officer in whose custody the 
 depositions of witnesses in a cause are 
 lodged, either by consent of parties, or by 
 the rules or orders of the court, to show the 
 depositions openly, and to give out copies 
 of them. Prac. Reg. 297; Blake, Ch. Prac. 
 143. When spoken of a will, it signifies that 
 the testator has don© some act from which 
 it can be concluded that he intended the in- 
 strument to operate as his will. Cruise, Dig. 
 tit. 38, c. 5, § 47; 3 Atk. 161; 4 Me. 220; 3 
 Rawle (Pa.) 15; Comyn, Dig. "Estates by 
 Devise" (E 2), "Chancery" (Q). 
 
 In the Law of Libel and Slander. The 
 
 communication of the defamatory words to 
 some third person. 
 
 The sending of a letter to the person de- 
 famed is not publication. 68 Iowa, 726. Nor 
 is the speaking of slanderous words where 
 no third person could hear them. 13 Gray 
 (Mass.) 304. 
 
 PUBLICI JURIS (Lat.) Of public right. 
 
PUBLICIANA 
 
 (743) 
 
 PUNISHMENT 
 
 As applied to a thing or right means that it 
 is open to or exercisable by all persons. 
 
 When a thing is common property, so that 
 any one can make use of it who likes, it is 
 said to be "publici juris;" as in the case of 
 light, air, and public water. 
 
 PUBLICIANA (Lat.) In civil law. The 
 name of an action introduced by the praetor 
 Publicius, the object of which was to recover 
 a thing which had been lost. Inst. 4. C. 4; 
 Dig. 6. 2. 1. 16. 17. Its effects were similar 
 to those of our action of trover. 
 
 PUBLICUM JUS (Lat.) In the civil law. 
 Public law; that law which regards the 
 state of the commonwealth {quod ad sta- 
 turn rei Roiiiaiiac fniectat). Inst. 1. 1. 4. 
 
 PUBLISHER. One who, by himself or his 
 agent, makes a thing publicly known; one 
 engaged in the circulation of books, pam- 
 phlets, and other papers. 
 
 PUDICITY. Chastity; the abstaining from 
 all unlawful carnal commerce or connection. 
 A married woman or a widow may defend 
 her pudicity as a maid may her virginity. 
 See "Chastity;" "Rape." 
 
 PUDZELD. In old English law. To be 
 free from the payment of money for taking 
 of wood in any forest. Co. Litt. 233a. The 
 same as "woodgeld." 
 
 PUEBLO. In Spanish law. People; all 
 the inhabitants of any country or place, 
 without distinction. A town, township, or 
 municipality. Las Partidas, pt. 1, tit. 2, 1. 5; 
 White, New Recop. bk. 2, tit. 1, e. 6, § 4; 
 Schmidt, Civ. Law, 44, 185. 
 
 PUER (Lat.) A boy; a child. In its en- 
 larged sense, this word signifies a child of 
 either sex, though in its restrained meaning 
 it is applied to a boy only. 
 
 A case once arose which turned upon this 
 question, whether a daughter could take 
 lands under the description of puer; and it 
 was decided by two judges against one that 
 she was entitled. Dyer, 337b. In another 
 case, it was ruled the other way. Hob. 33. 
 
 PUERI SUNT DE SANGUINE PAREN- 
 tum, sed pater et mater non sunt de san- 
 guine puerorum. Children are of the blood 
 of their parents, but the father and mother 
 are not of the blood of their children. 3 
 Coke, 40. 
 
 PUERILITY. In civil law. A condition 
 which commenced at the age of seven years, 
 the end of the age of infancy, and lasted till 
 the age of puberty, — that is, in females till 
 the accomplishment of twelve years, and in 
 males till the age of fourteen years fully 
 accomplished. AylifCe, Pand. 63. 
 
 The ancient Roman lawyers divided puer- 
 ility into proximus infantiae, as it ap- 
 proached infancy, and into proximus puber- 
 tati, as it became nearer to puberty. 6 Toul- 
 lier. Dr. Civ. note 100. 
 
 PUERITIA (Lat.) In civil law. Age from 
 seven to fourteen. 4 Bl. Comm. 22; Whar- 
 
 ton. The age from birth to fourteen years 
 in the male, or twelve in the female. Calv. 
 Lex. The age from birth to seventeen. Vi- 
 cat. 
 
 PUFFER. A person employed by the own- 
 er of property which is sold at auction to 
 bid it up, who does so accordingly, for the 
 purpose of raising the price upon bona fide 
 bidders. 
 
 This is a fraud, which, at the choice of 
 the purchaser, invalidates the sale. 3 Madd. 
 112; 5 Madd. 37, 440; 12 Ves. 483; 1 Fonbl. 
 Eq. 227, note; 2 Kent, Comm. 423; Cowp. 
 395; 3 Ves. 628; 3 Term R. 93; 6 Term R. 
 642; 2 Brown, Ch. 326; 1 P. A. Browne 
 (Pa.) 346; 11 Serg. & R. (Pa.) 89; 2 Hayw. 
 (N. C.) 328; 4 Har. & McH. (Md.) 282; 2 
 Dev. (N. C.) 126; 2 Const. (S. C.) 821. See 
 "Auction;" "Bidder." 
 
 PUIS, PUYS, PUES, PUS, or PUZ (Law 
 Pr.) After; since; afterwards. Kelham. 
 
 PUIS DARREIN CONTINUANCE (Law. 
 Pr. since last continuance). In pleading. A 
 plea which is put in after issue joined, for 
 the purpose of introducing new matter, or 
 matter which has come to the knowledge of 
 the party pleading it subsequently to such 
 joinder. See "Plea." 
 
 PUISNE (Law Fr.) Younger; junior; as- 
 sociate. 
 
 PULSARE (Lat.) In the civil law. To 
 seat, without giving pain. 
 
 To accuse or charge; to proceed against at 
 aw. Calv. Lex. 
 
 PULSATOR. In the civil law. A name 
 ometimes applied to the actor. 
 
 PUNCTUM (Lat.) A point; an indivisible 
 )oint of time. See "Punctum Temporis." 
 
 A quarter of an hour, according to the 
 )ld computation. Ten moments {momenta) 
 iiade a point {punctum ), and four points an 
 lour. See "Momentum." 
 
 PUNCTUM TEMPORIS (Lat.) A point of 
 dme; an indivisible period of time; the 
 shortest space of time; an instant. Calv. 
 Lex, 
 
 A point or period from which a computa- 
 tion of time is made. 2 Alls. Crim. Prac. 
 188. 
 
 PUNDBRECH. In old English law. Pound 
 breach {g. v.) 
 
 PUNISHMENT. In criminal law. Some 
 pain or penalty warranted by law, inflicted 
 in a person for the commission of a crime 
 -)r misdemeanor, or tor the omission of the 
 performance of an act required by law, by 
 the judgment and command of some lawful 
 court. 
 
 Punishments are either corporal or not 
 corporal. 
 
 The former are: Death, which is usually 
 Tenominated "capital punishment;" impris- 
 onment, which is either with or without la- 
 bor (see "Penitentiary") ; whipping, in some 
 states; and banishment. 
 
 The punishments which are not corporal 
 
PUNITIVE DAMAGES 
 
 (744) 
 
 PURGATION 
 
 are: Fines; forfeitures; suspension or dep- 
 rivation of some political or civil right; 
 deprivation of ofiSce, and being rendered in- 
 capable to hold office; compulsidn to remove 
 nuisances. 
 
 PUNITIVE DAMAGES. Exemplary dam- 
 ages. 
 
 PUPIL. 
 
 In Civil Law. One who is in his or her 
 
 minority. See Dig. 1. 7.; Id. 26. 7. 1. 2; Id. 
 50. 16. 239; Code, 6. 30. 18. One who is in 
 ward or guardianship. 
 
 At Common Law. One who is under 
 
 tuition in any school, or under a private in- 
 structor. 
 
 PUPILLARIS SUBSTITUTIO (Lat.) In 
 civil law. The nomination of another be- 
 sides his son pupil to succeed, if the son 
 should not be able or inclined to accept the 
 inheritance, or should die before he came of 
 age to make a testament. 
 
 If the child survive the age of puberty, 
 though he made no testament, the substitute 
 had no right of succession. See Bell, Diet. 
 "Substitution;" Dig, 28. 6. 
 
 PUPILLARITY. In civil law. That age of 
 a person's life which included Infancy and 
 puerility. 
 
 , PUPILLUS PATI POSSE NGN INTELLI- 
 gitur. A pupil is not considered able to do 
 an act which would be prejudicial to him. 
 Dig. 50. 17. 110. 2; 2 Kent, Comm. 245. 
 
 PUR. A corruption of the French word 
 par, by or for. It is frequently used in old 
 French law phrases, as, pur autre vie. It is 
 also used in the composition of words, as, 
 purparty, purlieu, purview. 
 
 PUR AUTRE VIE (Old Fr. for another's 
 life). An estate is said to be pur autre vie 
 when a lease is made of lands or tenements 
 to a man to hold for the life of another per^ 
 son. 2 Bl. Comm. 259; 10 Viner, Abr. 296; 2 
 Belt, Supp. Ves. 41. 
 
 PUR TANT QUE (Law Fr.) Forasmuch 
 as; because; to the intent that. Kelham. 
 
 PURCHASE. In the broadest sense, the 
 transmission of property from one person to 
 another by their voluntary agreement on a 
 valuable consideration. 4 Kent, Comm. 509. 
 
 In a stricter sense, a term including ev- 
 ery mode of acquisition of estate known to 
 the law, except that by which an heir on 
 the death of his ancestor becomes substituted 
 in his place as owner by operation of law. 
 2 Washb. Real Prop. 401. 
 
 There are six ways of acquiring a title 
 by purchase, namely: By deed; by devise; 
 by execution; by prescription; by posses- 
 sion or occupancy; by escheat. In its more 
 limited sense, "purchase" is applied only to 
 •such acquisitions of lands as are obtained 
 by way of bargain and sale for money or 
 some other valuable consideration. Cruise, 
 Dig. tit. 30, §§ 1-4; 1 Dall. (Pa.) 20. In com- 
 mon parlance, purchase signifies the buying 
 of real estate and of goods and chattels. 
 
 PURCHASE MONEY. The consideration 
 in money which is agreed to be paid by a 
 purchaser. 
 
 PURCHASE MONEY MORTGAGE. Amort- 
 gage given on the purchase of land by the 
 purchaser to the vendor to secure the pay- 
 ment of the purchase money, or the unpaid 
 balance thereof. 
 
 PURCHASE, WORDS OF. Those by which, 
 taken absolutely, without reference to or 
 connection with any other words, an estate 
 first attaches, or is considered as commenc- 
 ing in point of title, in the person described 
 by them, such as the words "son," "daugh- 
 ter." Words which create a title in certain 
 persons, as distinguished from those which 
 merely limit or define the quantum of estate. 
 See "Shelley's Case, Rule in." 
 
 PURCHASER. A buyer; a vendee. The 
 term is applied indifferently to persons ac- 
 quiring, by purchase, either realty or person- 
 alty, but in the interest of exact nomencla- 
 ture it should be applied only with respect 
 to the sale of realty; "buyer" being the 
 appropriate term for one who obtains per- 
 sonalty by sale. 
 
 PURCHASEROF A NOTE OR BILL. The 
 
 f>erson who buys a promissory note or' bill 
 of exchange from the holder without his in- 
 dorsement. Bayley, Bills, 370. 
 
 PURE DEBT. In Scotch law. A debt ac- 
 tually due, in contradistinction to one which 
 is to become due at a future day certain, 
 which is called a "future debt," and one due 
 provisionally, in a certain event, which is 
 called a "contingent debt." 1 Bell, Comm. 
 (5th Ed.) 315. 
 
 PURE OBLIGATION. One which is not 
 suspended by any condition, whether it has 
 been contracted without any condition, or, 
 when thus contracted, the condition has been 
 performed. Poth. Obi. note 176. 
 
 PURE PLEA. In equity pleading. One 
 which relies wholly on some matter dehors 
 the bill; as, for example, a plea of a release 
 on a settled account. 
 
 Pleas not pure are so called in contradis- 
 tinction to pure pleas. They are sometimes 
 also denominated "negative pleas." 4 Bouv. 
 Inst, note 4275. 
 
 PURE VILLENAGE. A base tenure, where 
 a man holds upon terms of doing whatso- 
 ever is commanded of him, nor knows in the 
 evening what is to be done in the morning, 
 and is always bound to an uncertain serv- 
 ice. 1 Steph. Comm. (7th Ed.) 188. 
 
 PURGATION (Lat. purgo; from puriim and 
 ago, to make clean). The clearing one's self 
 of an offense charged, by denying the guilt 
 on oath or affirmation. 
 
 Canonical purgation was the act of justi- 
 fying one's self, when accused of some of- 
 fense, in the presence of a number of per- 
 sons worthy of credit, generally twelve, who 
 would swear they believed the accused. See 
 "Compurgator." 
 
 Vulgar purgation consisted in superstitious 
 
PURGED OF PARTIAL COUNSEL (745) 
 
 PUT 
 
 trials by hot and cold water, by Are, by hot 
 irons, by battle, by corsned, etc. 
 
 In modern times, a man may purge him- 
 self of an offense in some cases where the 
 facts are within his own knowledge; for ex- 
 ample, when a man is charged with a con- 
 tempt of court, he may purge himself of such 
 contempt by swearing that in doing the act 
 charged he did not intend to commit a con- 
 tempt. 
 
 PURGED OF PARTIAL COUNSEL. In 
 
 Scotland, every witness, before making oath 
 or affirmation, is "purged of partial coun- 
 sel," i. e., cleared by examination on oath of 
 having instigated the plea, of having been 
 present with the party for whom he testifies 
 at consultations of lawyers, where it might 
 be shown what was necessary to be proved, 
 or of having acted as his agent in any of the 
 proceedings. So, in a criminal case, he who 
 is agent of prosecutor, or who tampers with 
 the panel, cannot be heard to testify, because 
 of "partial counsel." Stair, Inst. p. 768, § 9; 
 Bell, Diet. "Partial Counsel." 
 
 PURGING A TORT. This is like the rati- 
 fication of a wrongful act by a person who 
 has power of himself to lawfully do the act; 
 but, unlike ratification, the purging of the 
 tort may take place even after commence- 
 ment of the action. 1 Brod. & B. 282. 
 
 PURGING CONTEMPT. See "Purgation." 
 
 PURLIEU. In English law. A space of 
 land near a forest, known by certain bounda- 
 ries, which was formerly part of a forest, 
 but which has been separated from it. 
 
 The history of purlieus is this: Henry II., 
 on taking possession of the throne, mani- 
 fested so great a taste for forests that he en- 
 larged the old ones wherever he could, and 
 by this means enclosed many estates which 
 had no outlet to the public roads; and things 
 increased in this way until the reign of 
 King John, when the public reclamations 
 were so great that much of this land was dis- 
 forested, — that is, no longer had the privi- 
 leges of the forests; and the land thus sep- 
 arated bore the name of "purlieu." 
 
 PURLIEU MEN. Those who have ground 
 within the purlieu to the yearly value of 40s. 
 a year freehold are licensed to hunt in their 
 own purlieus. IVtanw. For. Law, c. 20, § 8. 
 
 PU RPARTY. That part of an estate which, 
 having been held in common by parceners. Is 
 by partition allotted to any of them. To 
 make purparty is to divide and sever the 
 lands which fall to parceners. Old Nat. Brev. 
 11. 
 
 PURPORT. In pleading. The substance 
 of a writing as it appears on the face of 
 it to the eye that reads it. It differs from 
 tenor (,q. v.) 2 Russ. Crimes, 365; 1 East, 
 179. 
 
 PURPRESTURE. An inclosure by a pri- 
 vate individual of a part of a common or pub- 
 lic domain. 
 
 According to Lord Coke, purpresture is a 
 close or inclosure, that is, when one en- 
 
 croaches or makes several to himself that 
 which ought to be in common to many; as, 
 if an individual were to build between high 
 and low water mark on the side of a public 
 river. In England this is a nuisance, and 
 in cases of this kind an injunction will be 
 granted, on ex parte affidavits, to restrain 
 such a purpresture and nuisance. 2 Bouv. 
 Inst, note 2382; 4 Bouv. Inst, note 3798; 2 
 Inst. 28. And see Skene de Verb. Sign.; 
 Glanv. lib. 9, c. 11. p. 239, note; Spelman; 
 Hale de Port Mar.; Harg. Tr. 84; 2 Anstr. 
 606; Callis, Se*. 174. 
 
 PURPRISUM (Law Lat; from Law Pr. 
 pourpris, an inclosure). In old records. A 
 close or inclosure. Cowell. 
 
 The whole compass of a manor. Cowell. 
 
 PURQ' (Law Pr. wherefore). A word used 
 in old practice, at the end of pleas, argu- 
 ments, and judgments. Very common in the 
 Year Books. Purq\ pur defaut de r'ns, no' 
 d'dons judgt, et prions nos dam', wherefore, 
 for want of an answer, we demand judgment 
 and pray our damages. The clause is some- 
 times abbreviated, purq', etc. 
 
 PURSER. The person appointed by the 
 master of a ship or vessel, whose duty it is 
 to take care of the ship's books, in which 
 everything on board is inserted, as well the 
 names of mariners as the articles of mer- 
 chandise shipped. Roccius, Ins. note. 
 
 PURSUE (from Lat. persequi). To follow 
 a matter judicially, as a complaining party. 
 In Scotch law, to prosecute criminally. 3 
 How. St. Tr. 425. 
 
 PURSUER. The name by which the com- 
 plainant or plaintiff is known in the eccle- 
 siastical courts. 3 Ecc. 350. 
 
 PURUS (Lat.) In old English law. Pure; 
 clear; simple; free of any qualification or 
 condition. Donationum quaedam libera et 
 pura, et quaedam sub conditione vel sub 
 modo, of gifts, one kind is free and pure, 
 and another under a condition or qualifica- 
 tion. Bracton, fol. lib. 
 
 Absolute. Purus idiota, a clear or abso- 
 lute idiot. 1 Bl. Comm. 303. 
 
 PURVEYANCE (Law Fr. and Bng.; from 
 pourvoire, to provide). In old English law. 
 A providing of necessaries for the king's 
 house. Cowell. A buying at the king's 
 price. Hale, Anal. § viii. See "Pourvey- 
 ance." 
 
 PURVEYOR. One employed in procuring 
 provisions. See Code, 1. 34. 
 
 PURVIEW. That part of an act of the 
 legislature which begins with the words, 
 "Be it enacted," etc., and ends before the 
 repealing clause. Cooke (Tenn.) 330; 3 
 Bibb (Ky.) 181. According to Cowell, this 
 word also signifies a conditional gift or 
 grant. It is said to be derived from the 
 French pourvu, provided. It always implies 
 a condition. 
 
 PUT. 
 
 -In Pleading. To select; to demand; 
 
PUT IN SUIT 
 
 (746) 
 
 PYRAMIDING 
 
 as, "the saidC. D. puts himself upon the 
 country;" that is, he selects the trial by 
 jury as the mode of settling the matter in 
 dispute, and does not rely upon an issue in 
 law. Gould, PI. c. 6, pt. 1, § 19. 
 
 In Mercantile Usage. A term of the 
 
 stock markets, signifying an option to sell 
 to another certain goods within a specified 
 time, at a specified price. See "Gambling 
 Contract." 
 
 PUT IN SUIT. Applied to^a chose in ac- 
 tion, to sue on. 
 
 PUT IN URE. In old statutes. To put in 
 practice or effect ; to carry into effect. Some- 
 times written to "put in use." 
 
 PUT OUT. To open. To put out lights; 
 to open or cut windows. 11 East, 372. 
 
 PUT UPON (Law Lat. ponere super). In 
 practice. To rest upon; to submit to; as a 
 defendant "puts himself upon the country."' 
 
 PUTATIVE. Reputed to be that which is 
 not. The word is frequently used; as, puta- 
 tive father, putative marriage, putative wife, 
 and the like. And TouUier (Dr. Civ. tom. 7, 
 note 29) uses the words putative owner, 
 proprietaire putatif. Lord Kames uses the 
 same expression (Eq. 391). 
 
 PUTATIVEFATHER. The reputed father. 
 This term is most usually applied to the 
 father of a bastard child. 
 
 PUTATIVE MARRIAGE. In the civil law. 
 
 A marriage which is forbidden, but which 
 has been contracted in goad faith and igno- 
 rance of the impediment on the part of at 
 least one of the contracting parties. 
 
 PUTTING IN FEAR. The causing of such 
 reasonable apprehension of death or serious 
 injury as will excuse the person so threat- 
 ened from running the risk of incurring the 
 same by resistance to unlawful aggression. 
 In the crime of robbery, such putting in 
 fear is accounted constructive violence. The 
 fear inspired to compel a man to surrender 
 his property may be of injury to his person 
 (2 East, P. C. 712), or to his property (Id. 
 729). Pear of injury to character or repu- 
 tation is not suflicient (7 Humph. [Tenn.] 
 45, 12 Ga. 293), with the single exception 
 of a threat to accuse of an unnatural crime 
 (1 Car. & P. 479). 
 
 PUTURE. A custom claimed by keepers 
 in forests, and sometimes by bailiffs of hun- 
 dreds, to take man's meat, horse's meat, and 
 dog's meat of the tenants and inhabitants 
 within the perambulation of the forest, hun- 
 dred, etc. The land subject to this custom 
 was called "terra putura." Others, who call 
 it "pulture," explain it as a demand in gen- 
 eral, and derive it from the monks, who, be- 
 fore they were admitted, pulsabant, knocked 
 at the gates for several days together. 4 
 Inst. 307; Cowell. 
 
 PYKERIE (Scotch). In old Scotch law. 
 Petty theft. 2 Pito. Cfim. Tr. 43. 
 
 PYRAMIDING. See "Gambling Contract." 
 
Q c 
 
 (747) 
 
 QUAE AB HOSTIBUS, ETC. 
 
 Q 
 
 Q. C. An abbreviation of "queen's coun- 
 sel" (g. V.) 
 
 Q. C. F. An abbreviation of quare clansum 
 fregit. See "Trespass." 
 
 Q. V. Quod ride, which see. Used after 
 the mention of a title, chapter, etc., to refer 
 the reader thereto. 
 
 QAR (Law Pr.) For. Pet Assaver, § 45. 
 
 Q'D. A contraction of quod, in old plead- 
 ing. 1 Inst. Cler. 12. 
 
 QUA. As; In the character or capacity of. 
 "The judge qua judge cannot know." Vaugh- 
 an, 147. 
 
 QUACK. One who, without suflacient 
 knowledge, study, or previous preparation, 
 undertakes to practise medicine or surgery, 
 under the pretense that he possesses secrets 
 In those arts. 
 
 The origin of the word "quack" is not 
 clearly ascertained. Johnson derives it from 
 the words "to quack," or gabble like a goose. 
 Butler uses this verb as descriptive of the 
 encomiums empirics heap upon their nos- 
 trums. Thus, in Hudibras, "To quack of uni- 
 versal cures." 
 
 The Egyptian hieroglyphic for a doctor 
 was a duck, and It has been a question wheth- 
 er this may not form a clue to the deriva- 
 tion of the word "quack." The English 
 quack — or "quacksalber," as it was original- 
 ly written — is from the German quacksal- 
 ber, or rather the Dutch kwaksalver, which 
 Bilderdyk states should be more properly 
 kwabsalver, from kvmb, a wen, and zalver, 
 to salve or anoint. 5 Notes & Queries. 
 
 QUACUNQUE VIA DATA (Lat.) Which- 
 ever way you take it; In whichever view of 
 the case. 2 Burrows, 980; 2 Gall. (U. S.) 26. 
 
 QUADRAGESIMA (Lat.) The fortieth. 
 The first Sunday in Lent Is so called be- 
 cause it is about the fortieth day before 
 Easter. Cowell. 
 
 QUADRAGESMS. The third volume of the 
 Year Books of the reign of Edward III. So 
 called, because beginning with the fortieth 
 year of the reign. Crabb, Hist. Eng. Law, 
 327; Hale, Hist. Com. Law, c. 8. 
 
 QUADRANS (Lat.) 
 
 In Civil Law. The fourth part of the 
 
 whole. Hence the heir ex quadrante; that is 
 to say, of the fourth part of the whole. 
 
 In Old English Law. A farthing; a 
 
 fourth part or quarter of a penny. 
 
 Before the reign of Edward I. the smallest 
 coin was a sterling or silver penny marked 
 
 with a cross or traverse strokes, by the 
 guidance of which a penny, upon occasion, 
 might be cut in halves for a half penny, 
 or into quarters for farthings or fourth 
 parts, till, to avoid the fraud of unequally 
 cutting. King Edward I., A. D. 1279, coined 
 half pence and farthings in round distinct 
 pieces. Cowell; Spelman, voc. "Denarius," 
 citing Stow, p. 306, where some curious old 
 verses are given. 
 
 QUADRANT. In angular measures, a 
 quadrant Is equal to ninety degrees. See 
 "Measure." 
 
 QUADRANTALIS (Law Lat; from quad- 
 rans, q. v.) In old English law. Of the 
 value or price of a quarter or farthing. 
 Panis quadrantalis, the farthing loaf. Pleta, 
 lib. 2, c. 9. Britton, in the parallel passage, 
 has the word ferlinges. Britt. c. 30. But 
 the word is not taken notice of either by 
 Spelman or Cowell. 
 
 QUADRANTATA TERRAE (Law Lat.) 
 The fourth part of an acre, according to 
 Cowell. But Spelman makes it to be the 
 fourth part of a yard land. Spelman voc. 
 "Pardella." 
 
 QUADRARIUM (Law Lat.) In old records. 
 A quarry or stone pit. Par. Ant. 208; Cow- 
 ell. 
 
 QUADRIENNIUM (Lat.from qiiafiior, four, 
 and annus, year). The four years' course 
 of studying the civil law, before arriving at 
 the code or imperial constitutions. Inst. 
 proem; Tayl. Civ. Law, 39. 
 
 QUADRIENNIUM UTILE (Lat.) In Scotch 
 law. The four years of a minor between his 
 age of twenty-one and twenty-five years are 
 so called. During this period he is permit- 
 ted to impeach contracts made against his 
 interest previous to his arriving at the age 
 of twenty-one years. Ersk. Inst. 1. 7. 19. 
 35; 1 Bell, Comm. (5th Ed.) 135. 
 
 QUADRIPARTITE (Lat.) Having four 
 parts, or divided into four parts; as, this in- 
 denture quadripartitr, made between A. B., 
 of the one part, C. D., of the second part, E. 
 P., of the third part, and G. H., of the fourth 
 part. 
 
 QUADROON. A person who is descended 
 from a white person and another person who 
 has an equal mixture of the European and 
 African blood. 2 Bailey (S. C.) 558. See 
 "Mulatto." 
 
 QUADRUPLICATION. In pleading. For- 
 merly this word was used instead of "sur- 
 rebutter." 1 Brown, Civ. Law, 469, note. 
 
 QUAE AB HOSTIBUS CAPIUNTUR, STA- 
 tim capientlunt fiunt. Things taken from 
 public enemies immediately become the prop- 
 
QUAE AB INITIO, ET,C. 
 
 (748) 
 
 QUAE PRAETER, ETC. 
 
 erty of the captors. Inst. 2. 1. 17; Grotius 
 de Jure Belli, lib. 3, c. 6, § 12. 
 
 QUAEAB INITIO INUTILIS FUIT INSTI- 
 tutio, ex post facto convalescere non potest. 
 An institution void in the beginning cannot 
 acquire validity from after-matter. Dig. 50. 
 17. 210. 
 
 QUAE AB INITIO NON VALENT, EX 
 post facto convalescere non possunt. Things 
 invalid from the beginning cannot be made 
 valid by subsequent act. Tray. Lat. Max. 
 482. 
 
 QUAE ACCESSIORIUM LOCUM OBTI- 
 nent, extinguuntur cum principales res per- 
 emptae fuerint. When the principal is de- 
 stroyed, those things which are accessory to 
 it are also destroyed. Both. Obi. pt. 3, c. 6, 
 art. 4; Dig. 33, 8. 2; Broom, Leg. Max. (3d 
 London Ed.) 439. 
 
 QUAE AD UNUM FINEM LOQUUTA 
 sunt, non debent ad allum detorqueri. Words 
 spoken to one end ought not to be perverted 
 to another. 4 Coke, 14. 
 
 QUAE COHAERENT PERSONAE A PER- 
 
 sona separari nequeunt. Things which be- 
 long to the person ought not to be separated 
 from the person. Jenk. Cent. Cas. 28. 
 
 QUAE COMMUNI LEGI DEROGANT 
 stricte Interpretantur. Laws which derogate 
 from the common law ought to be strictly 
 construed. Jenk. Cent. Cas. 221. 
 
 QUAE CONTRA RATIONEM JURIS IN- 
 troducta sunt, non debent trahl In conse- 
 quentiam. Things introduced contraryto the 
 reason of the law ought not to be drawn 
 into precedents. 12 Coke, 75. 
 
 QUAE DUBITATIONIS CAUSA TOLLEN- 
 dae inseruntur communem legem non lae- 
 dunt. Whatever is inserted for the purpose 
 of removing doubt does not hurt or affect 
 the common law. Co. Litt. 205. 
 
 QUAE DUBITATIONIS TOLLENDAE 
 causa contractlbus Inseruntur, jus commune 
 non laedunt. Particular clauses inserted in 
 agreements to avoid doubts and ambiguity 
 do not prejudice the common law. Dig. 50. 
 17. 81. 
 
 QUAE EST EADEM (Lat. which is the 
 same). In pleading. A clause containing a 
 statement that the trespass, or other fact 
 mentioned in the plea, is the same as that 
 laid in the declaration, where from the cir- 
 cumstances there is an apparent difference 
 between the two. 1 Chit. PI. 473; Gould, PI. 
 c. 3, §§ 79, 80; 29 Vt. 455. 
 
 The form is as follows: "Which are the 
 same assaulting, beating, and ill-treating, the 
 said John, in the said declaration mentioned, 
 and whereof the said John hath above there- 
 of complained against the said James." See 
 1 Saund. 14, 208, note 2; 2 Saund. 5a, note 
 3; Archb. Civ. PI. 217; Comyn, Dig. "Plead- 
 er" (E 31); Cro. Jac. 372; 1 Chit. PI. 473. 
 
 QUAE IN CURIA ACTA SUNT RITE AGI 
 
 praesumuntur. Whatever 'is done in court is- 
 presumed to be rightly done. 3 Bulst. 43. 
 
 QUAE IN PARTES DIVIDI NEQUEUNT 
 solida, a singulis praestantur. Things (i. e., 
 services and rents) which cannot be divided 
 into parts are rendered entire by each sev- 
 erally. 6 Coke, 1. 
 
 QUAE IN TESTAMENTO ITA SUNT 
 scripta ut intelligi non possunt, perinde sunt 
 ac si scripta non essent. Things which are 
 so written in a will that they cannot be un- 
 derstood are as if they had not been writ- 
 ten. Dig. 50. 17. 73. 3. 
 
 QUAE INCONTINENTER VEL CERTO 
 fiunt in esse vldentur. Whatever things are- 
 done at once and certainly appear part of 
 the same transaction. Co. Litt. 236. 
 
 QUAE INTER ALIOS ACTA SUNT NEM- 
 ini nocere debent, sed prodesse possunt. 
 Transactions between strangers may benefit, 
 but cannot injure, persons who are parties 
 to them. 6 Coke, 1. 
 
 QUAE LEGI COMMUNI DEROGANT NON 
 
 sunt trahenda In exemplum. Things deroga- 
 atory to the common law are not to be drawn 
 into precedent. Branch, Princ. 
 
 QUAE LEGI COMMUNI DEROGANT 
 stricte interpretantur. Those things which 
 derogate from the common law are to be 
 construed strictly. Jenk. Cent. Cas. 29. 
 
 QUAE MALA SUNT INCHOATA IN 
 principio vix bono peragantur exitu. Things 
 bad in the commencement seldom end well. 
 4 Coke, 2. 
 
 QUAE NIHILFRUSTRA (Law Lat.) Which 
 (does or requires) nothing in vain; wbich 
 requires nothing to be done, that is to no 
 purpose. 2 Kent, Comm. 53. 
 
 QUAE NON FIERI DEBENT, FACTA VA- 
 lent. Things which ought not to be done are 
 held valid when they have been don«. Tray. 
 Lat. Max. 484. 
 
 QUAE NON VALEANT SINGULA, JUNC- 
 ta juvant. Things which may not avail 
 singly, when united have an effect. 3 Bulst. 
 132. 
 
 QUAE PLURA (Law Lat. what more). In 
 old English practice. A writ which lay 
 where an inquisition had been made by an 
 escheator In any county of such lands or ten- 
 ements as any man died seised of, and all 
 that was in his possession was imagined not 
 to be found by the office; the writ command- 
 ing the escheator to Inquire what more 
 (gwae plura) lands and tenements the party 
 held on the day when he died, etc. Fitzh. 
 Nat. Brev. 255a; Reg. Grig. 293; Cowell. 
 
 QUAE PRAETER CONSUETUDINEM ET 
 morem majorum fiunt, neque placent, neque 
 recta videntur. What is done contrary to 
 the custom and usage of our ancestors, nei- 
 ther pleases nor appears right. 4 Coke, 78. 
 
QUAE PROPTER, ETC. 
 
 (749) 
 
 QUAESTIO 
 
 QUAE PROPTER NECESSITATEM RE- 
 cepta sunt, non debent in argumentum trahi. 
 •Tilings which are tolerated on account of ne- 
 cessity ought not to be drawn Into precedent. 
 Dig. 50. 17. 162. 
 
 QUAE RERUM NATURA PROHIBEN- 
 tur, nulla lege confirmata sunt. What is pro- 
 hibited in the nature o£ things can be con- 
 firmed by no law. Finch, Law, 74. 
 
 QUAE SINGULA NON PROSUNT, JUNC- 
 ta juvant. Things which, taken singly, are 
 of no avail, afford help when taken together. 
 Tray. Lat. Max. 486. 
 
 QUAE SUNT MINORIS CULPAE SUNT 
 majorls infamiae. Things which are of the 
 smaller guilt are of the greater infamy. Co. 
 Litt. 6. 
 
 QUAECUNQUE INTRA RATIONEM LE- 
 gls inveniuntur, Intra legem ipsam esse ju- 
 dicantur. Whatever appears within the rea- 
 son of the law is considered within the law 
 itself. 2 Inst. 689. 
 
 QUAELIBET CONCESSIO DOMINI RE- 
 gls cap! debet stricte contra dominum re- 
 gem, quando potest Intelllgi duabus vils. 
 Every grant of our lord the king ought to 
 1)6 taken strictly against our lord the king, 
 when it can be understood in two ways. 3 
 Leon. 243. 
 
 QUAELIBET CONCESSIO FORTISSIME 
 contra donatorem Interpretanda est. Every 
 grant is to be taken most strongly against 
 the grantor. Co. Litt. 183a. 
 
 QUAELIBET JURISDICTIO CANCEL- 
 
 los suos habet. Every Jurisdiction has Its 
 liounds. Jenk. Cent. Cas. 139. 
 
 QUAELIBET PARDONATIO DEBET CA- 
 pl secundum intentionem regis, et non ad 
 deceptionem regis. Every pardon ought to 
 1)6 taken according to the intention of the 
 Tting, and not to the deception of the king. 
 3 Bulst. 14. 
 
 QUAELIBET POENA CORPORALIS, 
 .quamvis minima, major est qualibet poena 
 pecuniaria. Every corporal punishment, al- 
 though the very least, is greater than any 
 pecuniary punishment. 3 Inst. 220. 
 
 QUAERAS DE DUBIIS, LEGEIVI BENE 
 >discere si vis. Inquire Into doubtful points 
 if you wish to understand the law well. Litt. 
 § 443. 
 
 QUAERE (Lat.) In practice. A word fre- 
 quently used to denote that an inquiry ought 
 to be made of a doubtful thing. 2 Lilly, Abr. 
 406. 
 
 QUAERENS. In old practice. A plaintiflE; 
 the plaintiff. 
 
 QUAERENS NON INVENIT PLEGIUIVI 
 (Lat.) In practice. The plaintiff has not 
 found pledge. The return made by the sher- 
 iff to a writ directed to him with this clause, 
 "namely, 8i A facerit B securum de clamore 
 suo prosequando, when the plaintiff has neg- 
 
 lected to find sufllcient security. Fitzh. Nat. 
 Brev. 38. 
 
 QUAERERE DAT SAPERE QUAE SUNT 
 legitima were. To investigate is the way to 
 know what things are really lawful. Litt. S 
 443. 
 
 QUAERE DE DUBIIS, QUIA PER RATIO- 
 nes pervenitur ad legitimam rationem. In- 
 quire into doubtful points, because by rea- 
 soning we arrive at legal reason. Litt. 5 
 377. 
 
 QUAESTIO (Lat.) In Roman law. A sort 
 of commission (ad guaerendum) to inquire 
 into some criminal matter given to a magis- 
 trate or citizen, who was called qiKiesiinr or 
 quaestor, who made report thereon to the 
 senate or the people, as the one or the other 
 appointed him. In progress of time he was 
 empowered (with the assistance of a coun- 
 sel) to adjudge the case, and the tribunal 
 thus constituted was called quaestio. 
 
 This special tribunal continued in use un- 
 til the end of the Roman republic, although 
 it was resorted to, during the last times of 
 the republic, only in extraordinary cases. 
 
 The manner in which they were constitut- 
 ed was this: If the matter to be inquired 
 of was within the jurisdiction of the comi- 
 tia, the senate, on the demand of the consul, 
 or of a tribune, or of one of its members, 
 declared by a decree that there was cause 
 to prosecute a citizen. Then the consul ex 
 auotoritate senatus asked the people in comi- 
 tia frogabat rogatio) to enact this decree in- 
 to a law. The comitia adopted it, either sim- 
 ply or with amendment, or they rejected it. 
 
 The increase of population and of crimes 
 rendered this method, which was tardy at 
 best, onerous, and even impracticable. In the 
 year 149 B. C, under the consulship of Cen- 
 sorinus and Manilius, the tribune Calpurnius 
 Piso procured the passage of a law establish- 
 ing a questio perpetua, to take cognizance of 
 the crime of extortion committed by Roman 
 magistrates against strangers de pecuniis 
 repetundis. Cicero, Brut. 27; Cicero de Off. 
 ii. 21; Cicero in Verr. iv. 25. 
 
 Many such tribunals were afterwards es- 
 tablished, such as quaestiones de majestate, 
 de arnbitu, de peculatu, de vi, de sodalitiis, 
 etc. Each was composed of a certain num- 
 ber of judges taken from the senators, and 
 presided over by a praetor, although he 
 might delegate his authority to a public of- 
 ficer, who was called judex quaestionis. 
 These tribunals continued a year only; for 
 the meaning of the word perpetuus is (non 
 interruptus) , not interrupted during the 
 term of its appointed duration. 
 
 The establishment of these quaestiones de- 
 prived the comitia of their criminal jurisdic- 
 tion, except the crime of treason. They were, 
 in fact, the depositories of the judicial power 
 during the sixth and seventh centuries of 
 the Roman republic, the last of which was 
 remarkable for civil dissensions, and replete 
 with great public transactions. Without 
 some knowledge of the constitution of the 
 quaestio perpetua, it is impossible to under- 
 stand the forensic speeches of Cicero, or 
 even the political history of that age. But 
 
QUAESTIONES PERPETUAE 
 
 (7S0) 
 
 QUAM LONGUM, ETC. 
 
 when Julius Caesar, as dictator, sat for the 
 trial of Llgarius, the ancient constitution of 
 the republic was, in fact, destroyed, and the 
 criminal tribunals, which had existed in 
 more or less vigor and purity until then, ex- 
 isted no longer but in name. Under Augus- 
 tus, the concentration of the triple power of 
 the consuls, proconsuls, and tribunes in his 
 person transferred to him, as of course, all 
 judicial powers and authorities. 
 
 QUAESTIONES PERPETUAE. In the Ro- 
 man law. Commissions (or courts) of in- 
 quisition into crimes alleged to have been 
 committed. They were called "perpetuae," to 
 distinguish them from "occasional" inquisi- 
 tions, and because they were permanent 
 courts for the trial of offenders. Brown. 
 
 QUAESTOR (Lat.) The name of a magis- 
 trate of ancient Rome. 
 
 QUAESTORES CLASSICI (Lat.) In Ro- 
 man law. Oflficers intrusted with the care of 
 the public money. 
 
 Their duties consisted in making the nec- 
 essary payments from the aerarium, and re- 
 ceiving the public revenues. Of both they 
 had to keep correct accounts in their tabulae 
 puilicae. Demands which any one might 
 have on the aerarium, and outstanding debts, 
 were likewise registered by them. Pines to 
 be paid to the public treasury were regis- 
 tered and exacted by them. They were like- 
 wise to provide proper accommodations for 
 foreign ambassadors and such persons as 
 wore connected with the republic by ties of 
 public hospitality. Lastly, they were charged 
 with the care of the burials and monuments 
 of distinguished men, the expenses for which 
 had been decreed by the' senate to be paid 
 by the treasury. Their number at first was 
 confined to two, but this was afterwards in- 
 creased as the empire became extended. 
 There were quaestors of cities and of prov- 
 inces, and (jUdestors of the army; the latter 
 were in fact paymasters. 
 
 QUAESTORES PARRICIDII (Lat.) In Ro- 
 man law. Public accusers, two in number, 
 who conducted the accusation of persons 
 guilty of murder or any other capital offense, 
 and carried the sentence into execution. 
 They ceased to be appointed at an early peri- 
 od. Smith. 
 
 QUAESTUS. That estate which a man 
 has by acquisition or purchase, in contradis- 
 tinction to "haereditas" which is what he 
 has by descent. Glanv. 1, 7, c. 1. 
 
 QUALE JUS (Lat.) In old English law. 
 A judicial writ, which lay where a man of 
 religion had judgment to recover land before 
 execution was made of the judgment. It 
 went forth to the escheator between judg- 
 ment and execution, to inquire what right 
 the religious person had to recover, or wheth- 
 er the judgment were obtained by the col- 
 lusion of the parties, to the intent that the 
 lord might not be defrauded. Reg. Jud. 8. 
 
 QUALIFICATION. Having the requisite 
 qua'ities for a thing; as, to be president of 
 
 the United States, the candidate must pos- 
 sess certain qualifications. 
 
 The natural endowment or acquirement 
 which fits a person for a place, office, or em- 
 ployment. See 4 Wall. (U. S.) 319. 
 
 QUALIFIED ELECTOR. 
 
 vote. 
 
 One entitled to 
 
 QUALIFIED FEE. One which has a qual- 
 ification subjoined to it, and which must be 
 determined whenever the qualification an- 
 nexed to it is at an end. A limitation to a 
 man and "his heirs on the part of his fa- 
 ther" affords an example of this species of 
 estate. Lift. § 254; 2 Bouv. Inst, note 1695. 
 
 QUALIFIED INDORSEMENT. A transfer 
 of a bill of exchange or promissory note to 
 an indorsee, without any liability to the in- 
 dorser. The words usually employed for this 
 purpose are sans recours, without recourse. 
 1 Bouv. Inst, note 1138. 
 
 QUALIFIED PROPERTY. Property not in 
 its nature permanent, but which may some- 
 times subsist and at other times not sub- 
 sist. A defeasible and precarious ownership, 
 which lasts as long as the thing is in actual 
 use and occupation; e. g., first, property in 
 animals ferae naturae, or in light, or air, 
 where the qualified property arises from the 
 nature of the thing; second, property in a 
 thing held by any one as a bailee, where the 
 qualified property arises not from the na- 
 ture of the thing, but from the peculiar cir- 
 cumstances under which it is held. 2 Bl. 
 Comm. 391, 395*; 2 Kent, Comm. 347; 2 
 Wooddeson, Lect. 385. 
 
 Any ownership not absolute. 
 
 QUALITAS QUAE INESSE DEBET, FA- 
 cile praesumitur. A quality which ought to 
 form a part is easily presumed. 
 
 QUALITER (Lat.) In what manner. A 
 word used in old writs. Pleta, lib. 2, c. 64, 
 § 19. 
 
 QUALITY. 
 
 Of Persons. The state or condition of 
 
 a person. 
 
 Two contrary qualities cannot be in the 
 same person at the same time. Dig. 41. 10. 
 4. Every one is presumed to know the qual- 
 ity of the person with whom he is contract- 
 ing. In the United States the people happily 
 are all upon an equality ifi their civil rights. 
 
 In Pleading. That which distinguish- 
 es one thing from another of the same kind. 
 
 QUALITY OF ESTATE. The period when, 
 and the manner in which, the right of en- 
 joying an estate is exercised. -It is of two 
 kinds: (1) The period when the right of 
 enjoying an estate is conferred upon the 
 owner, whether at present or in future; and 
 (2) the manner in which the owner's right 
 of enjoyment of his estate is to be exercised, 
 whether solely, jointly, in common, or in co- 
 parcenary. Wharton. 
 
 QUAM LONGUM DEBET ESSE "RATIO- 
 nablle tempus," non deflnitur In lege, sed 
 pendet ex discretlone justlciariorum. What 
 
QUAM RATIONABILIS, ETC. 
 
 (7S1) 
 
 QUANDO LEX, ETC. 
 
 is "reasonable time" the law does not de- 
 fine; it is left to the discretion of the judges. 
 Co. Litt. 56. See 11 Coke, 44. 
 
 QUAM RATIONABILIS DEBET ESSE 
 finis, non definitur, sed omnibus circumstan- 
 tiis inspectis pendet ex justiclariorum Jis- 
 cretione. What a reasonable fine ought to 
 be is not defined, but is left to the discre- 
 tion of the judges, all the circumstances be- 
 ing considered. 11 Coke, 44. 
 
 QUAMDIU (Lat.) As long as; so long as. 
 A word of limitation in old conveyances. Co. 
 Litt. 235a; 10 Coke, 41b; Shep. Touch. 125. 
 
 QUAMDIU SE BENE GESSERIT (Lat. as 
 long as he shall behave himself well). A 
 clause inserted in commissions, when such 
 instruments were written in Latin, to signi- 
 fy the tenure by which the officer held his 
 office. 
 
 QUAIVIVIS ALIQUID PER SE NON SIT 
 malum, tamen si sit mali exempli, non est 
 faciendum. Although in itself a thing may 
 not be bad, yet if it holds out a bad example 
 it is not to be done. 2 Inst. 564. 
 
 QUAMVIS LEX GENERALITER LOQUI- 
 tur, restrlngenda tamen est, ut cessante ra- 
 tione et ipsa cessat. Although the law 
 speaks generally, it is to be restrained, since 
 when the reason on which it is founded 
 fails, it fails. 4 Inst. 330. 
 
 QUANDO ABEST PROVISIO PARTIS, 
 
 adest provisio legis. When a provision of 
 the party is lacking, the provision of the law 
 is at hand. 13 C. B. 960. 
 
 QUANDO ACCIDERINT (Lat. when they 
 fall in). In practice. When a defendant, ex- 
 ecutor or administrator, pleads plene admin- 
 istravit, the plaintiff may pray to have judg- 
 ment of assets quanclo acciderint. Buller, N. 
 P. 169; Bac. Abr. "Executor" (M). 
 
 By taking a judgment in this form, the 
 plaintiff admits that the defendant has fully 
 administered to that time. 1 Pet. C. C. (U. 
 S.) 442, note. See 11 Viner, Abr. 379; 
 Comyn, Dig. "Pleader" (2 D 9). 
 
 QUANDO ALIQUID CONCEDITUR, CON- 
 ceditur in sine quo lllud fieri non possit. 
 When anything is granted, that also is grant- 
 ed without which it cannot be of effect. 9 
 Barb. (N. Y.) 516, 518; 10 Barb. (N. Y.) 354, 
 359. 
 
 QUANDO ALIQUID MANDATUR, MAN- 
 datur et omne per quod pervenitur ad illud. 
 When anything is commanded, everything by 
 which it can be accomplished is also com- 
 manded. S Coke, 116. See 7 C. B. 886; 14 
 C. B. 107; 6 Exch. 886, 889; 10 Bxch. 449; 
 2 El. & Bl. 301; Story, Ag. (4th Ed.) 110, 
 179, 242, 299; Broom, Leg. Max. (3d London 
 Ed.) 431. 
 
 QUANDO ALIQUID PER SE NON SIT 
 
 malum, tamen si sit mali exempli, non est fa- 
 ciendum. When anything by itself is not 
 evil, and yet may be an example for evil, it 
 is not to be done. 2 Inst. 564. 
 
 QUANDO ALIQUID PROHIBETUR EX 
 directo, prohibetur et per obliquum. When 
 anything is prohibited directly, it is also pro- 
 hibited indirectly. Co. Litt. 223. 
 
 QUANDO ALIQUID PROHIBETUR, PRO- 
 hibetur omne per quod devenitur ad illud. 
 
 When anything is prohibited, everything by 
 which it is reached is prohibited. 2 Inst. 
 48; Broom, Leg. Max. (3d London Ed.) 432; 
 Wingate, Max. 618. See 7 Clark & F. 509, 
 546; 4 Barn. & C. 187, 193; 2 Term R. 251, 
 252; 8 Term R. 301, 415; 15 Mees. & W. 7; 
 11 Wend. (N. Y.) 329. 
 
 QUANDO ALIQUIS ALIQUID CONCED- 
 it, concedere videtur et id sine quo res uti 
 non potest. When a person grants a thing, 
 he is supposed to grant that also without 
 which the thing cannot be used. 3 Kent, 
 Comm. 421. 
 
 QUANDO CHARTA CONTINET GENER- 
 alem clausulam, posteaque descendit ad ver- 
 ba specialia quae clausulae generali sunt 
 consentanea, interpretanda est charta secun- 
 dum verba specialia. When a deed contains 
 a general clause, and afterwards descends to 
 special words, consistent with the general 
 clause, the deed is to be construed according 
 to the special words. 8 Coke, 154. 
 
 QUANDO DE UNA ET EADEM RE, DUO 
 onerabiles existunt, unus, pro insufficientia 
 alterius, de integro onerabitur. When two 
 persons are liable concerning one and the 
 same thing, if one makes default, the other 
 must bear the whole. 2 Inst. 277. 
 
 QUANDO DISPOSITIO REFERRI Po- 
 test ad duas res, ita quod secundum rela- 
 tionem unam vitiatur et secundum alteram 
 utilis sit, turn facienda est relatio ad illam 
 ut valeat dispositlo. When a disposition 
 may be made to refer to two things, so that, 
 according to one reference, it would be vi- 
 tiated, and by the other it would be made 
 effectual, such a reference must be made 
 that the disposition shall have effect. 6 Coke, 
 76b. 
 
 QUANDO DIVERSI DESIDERANTUR 
 actus ad aliquem statum perficiendum, plus 
 respicit lex actum originalem. When differ- 
 ent acts are required to the formation of 
 an estate, the law chiefly regards the origi- 
 nal act. 10 Coke, 49. 
 
 QUANDO DUO JURA CONCURRENT IN 
 una persona, aequum est ac si essent in dl- 
 versis. When two rights concur In one per- 
 son, it is the same as if they were in two 
 separate persons. 4 Coke, 118. 
 
 QUANDO JUS DOMINI REGIS ET SUB- 
 diti concurrunt jus regis praeferri debet. 
 When the right of the sovereign and of the 
 subject concur, the 'right of the sovereign 
 ought to be preferred. 1 Coke, 129; Co. Litt. 
 30b; Broom, Leg. Max. (3d London Ed.) 66 
 
 QUANDO LEX ALIQUID ALICUI CONCE 
 dit, concedere videtur id sine quo res ipsa es 
 se non potest. When the law gives anything 
 it gives the means of obtaining it. 5 Coke, 
 47; 3 Kent, Comm. 421. 
 
QUANDO LEX, ETC. 
 
 (752) 
 
 QUARANTINE 
 
 QUANDO LEX ALIQUID ALICUI CON- 
 cedit, omnia incidentia tacite conceduntur. 
 
 When the law gives anything, it gives tacitly 
 what is incident to it. 2 Inst. 326; Hob. 234. 
 
 QUANDO LEX ALIQUID ALIQUO CON- 
 cedit, conceditur et id sine qua res ipsa esse 
 non potest. When the law grants a thing 
 to any one, it grants that also without which 
 the thing itself cannot exist. 15 Barb. (N. 
 Y.) 153, 160. 
 
 QUANDO LEX EST SPECIALIS, RATIO 
 autem generalis, generaiiter lex est intelli- 
 genda. When the law is special, but its 
 reason is generaU the law is to be under- 
 stood generally. 2 Inst. 83; 10 Coke, 101. 
 
 QUANDO LICET ID QUOD MAJUS, VIDE- 
 tur licere id quod minus. When the greater 
 is allowed, the less seems to be allowed also. 
 Shep. Touch. 429. 
 
 QUANDO IVIULIER NOBILIS NUPSERIT 
 ignobili, desinit esse nobilis nisi nobilitas 
 nativa fuerit. When a noble woman marries 
 a man not noble, she ceases to be noble, un- 
 less her nobility was born with her. 4 Coke, 
 118. 
 
 QUANDO PLUS FIT QUAIVl FIERI DE- 
 bet, videtur etiam illud fieri quod faciendum 
 est. When more is done than ought to be 
 done, that too shall be considered as per- 
 formed which should have been performed; 
 as, if a man, having a power to make a 
 lease for ten years, make one for twenty 
 years, it shall be void only for the surplus. 
 Broom, Leg. Max. (3d London Ed.) 166; 5 
 Coke, 115; 8 Coke, 85a. 
 
 QUANDO QUOD AGO NON VALET UT 
 ago, valeat quantum valere potest. When 
 that which I do does not have effect as I do 
 it, let It have as much effect as it can. 16 
 Johns. (N. Y.) 172, 178; 3 Barb. Ch. (N. Y.) 
 242, 261. 
 
 QUANDO RES NON VALET UT AGO, 
 valeat quantum valere potest. When a thing 
 is of no force as I do it, it shall have as 
 much as it can have. Cowp. 600; Broom, 
 Leg. Max. (3d London Ed.) 483; 2 Smith, 
 Lead. Cas. 294; 6 East, 105; 1 Vent. 216; 1 
 H. Bl. 614, 620. 
 
 QUANDO VERBA ET IVIENS CON- 
 gruunt, non est Interpretationi locus. When 
 the words and the mind agree, there is no 
 place for interpretation. 
 
 QUANDO VERBA STATUTI SUNT SPE- 
 cialia, ratio autem generalis, generaiiter sta- 
 tutum est intelligendum. When the words of 
 a statute are special, but the reason or ob- 
 ject of it general, the statute is to be con- 
 strued generally. 10 Coke, 101b. 
 
 QUANTI MINORIS (Lat.) The name of a 
 particular action In Louisiana. An action 
 guanti minoris is one brought for the reduc- 
 tion of the price of a thing sold, in conse- 
 quence of defects in the thing which is the 
 object of the sale. 
 
 Such action must be commenced within 
 
 twelve months from the date of the sale, or 
 from the time within which the defect be- 
 came known to the purchaser. 3 Mart. (La.; 
 N. S.) 287; 11 Mart. (La.) 11. 
 
 QUANTITY. In pleading. That which is 
 susceptible of measure. 
 
 It is a general rule that, when the declara- 
 tion alleges an injury to goods and chattels, 
 or any contract relating to them, their quan- 
 tity should be stated. Gould, PI. c. 4, § 35. 
 And in actions for the recovery of real es- 
 tate, the quantity of the land should be 
 specified. Braoton, 431a; 11 Coke, 25b, 55a; 
 Doct. Plac. 85, 86; 1 East, 441; 8 East, 357; 
 13 East, 102; Steph. PI. 314, 315. 
 
 QUANTUIVl DAMNIFICATUS (Lat.) In 
 equity practice. An issue directed by a 
 court of equity to be tried in a court of law, 
 to ascertain by a trial before a jury the 
 amount of damages suffered by the nonper- 
 formance of some collateral undertaking 
 which a penalty has been given to secure. 
 When such damages have thus been ascer- 
 tained, the court will grant relief upon their 
 payment. 4 Bouv. Inst, note 3913. 
 
 QUANTUM MERUIT (Lat.) In pleading. 
 As much as he has deserved. 
 
 When a person emjloys another to do 
 work for hin^BrithoiiWjiy agreement as to 
 his comgen'I^Ki, the law implies a prom- 
 ise frofflBSgiiKployer to the workman that 
 he wilr^H^iim for his services as much as 
 he may deserve or merit. In such case, the 
 plaintiff may suggest in his declaration that 
 the defendant promised to pay him as much 
 as he reasonably deserved, and then aver 
 that his trouble was worth such a sum of 
 money, which the defendant has omitted to 
 pay. This is called an assumpsit on a quan- 
 tum meruit. 2 Bl. Comm. 162, 163; 1 Viner, 
 Abr. 346; 2 Phil. Ev. 82. 
 
 QUANTUM TENENS DOMINO EX HO- 
 magio, tantum dominus tenenti ex dominio 
 debet praeter solam reverentiam; mutua de- 
 bet esse dominii et homagii fidelitatis con- 
 nexio. As much as the tenant by his hom- 
 age owes to his lord, so much is the lord, 
 by his lordship, indebted to the tenant, ex- 
 cept reverence alone; the tie of dominion 
 and of homage ought to be mutual. Co. Litt. 
 64. 
 
 QUANTUM VALEBAT (Lat. as much as 
 it was worth). In pleading. When goods 
 are sold without specifying any price, the 
 law implies a promise from the buyer to the 
 seller that he will pay him for them as much 
 as they were worth. 
 
 The plaintiff may, in such case, suggest 
 in his declaration that the defendant prom- 
 ised to pay him as much as the said goods 
 were worth, and then aver that they were 
 worth so much, which the defendant has 
 refused to pay. See the authorities cited 
 under the article "Quantum Meruit." 
 
 QUARANTINE. 
 
 In Maritime Law. The space of forty 
 
 days, or less, during which the crew of a 
 ship or vessel comjng from a port or place 
 
QUARE 
 
 (753) 
 
 QUARTO DIE POST 
 
 Infected or supposed to be infected with dis- 
 ease are required to remain on board after 
 their arrival, before they can be permitted 
 to land. 
 
 The term is applied in modern usage to 
 any isolation by law of infected persons or 
 places. 
 
 In Real Property. The space of forty 
 
 days, during which a widow has a right to 
 remain in her late husband's principal man- 
 sion immediately after his death. The right 
 of the widow is also called her "quarantine." 
 
 QUARE (Lat.) In pleading. Wherefore. 
 
 This word is sometimes used in the writ 
 In certain actions, but is inadmissible in a 
 material averment In the pleadings, for it is 
 merely Interrogatory; and therefore, when a 
 declaration began with complaining of the 
 defendant, "wherefore with force, etc., he 
 broke and entered" the plaintiff's close, It 
 was considered ill. Bac. Abr. "Pleas" (B 5, 
 4) ; Gould, PI. c. 3, § 34. 
 
 QUARE CLAUSUM FREGIT. See "Tres- 
 pass." 
 
 QUARE EJECIT INFRA TERMINUM. See 
 
 "Ejectment." 
 
 QUARE IMPEDIT (Lat. why he hinders). 
 In English law. A real possessory action 
 which can be brought only in the court of 
 common pleas, and lies to recover a presenta- 
 tion when the patron's right is disturbed, or 
 to try a disputed title to an advowson. See 
 "Disturbance;" Mlreh. Advowson, 265; 2 
 Saund. 336a. 
 
 QUARE INCUMBRAVIT (Lat. why he in- 
 cumbered). A writ or action which lay 
 against a bishop after judgment in an ac- 
 tion quare impedit, where he had incum- 
 bered the church with a clerk pending the 
 action. 3 Bl. Comm. 248. 
 
 QUARE INTRUSIT (Lat. why he intrud- 
 ed). A writ that formerly lay where the 
 lord proffered a suitable marriage to his 
 ward, who rejected it, and entered Into the 
 land, and married another, the value of his 
 marriage not being satisfied to the lord. 
 Abolished by 12 Car. II. c. 24. 
 
 QUARE NON ADMISIT (Lat. wherefore he 
 did not admit). A writ to recover damages 
 against a bishop who does not admit a plain- 
 tiff's clerk. It Is, however, rarely or never 
 necessary; for It is said that a bishop, refus- 
 ing to execute the writ ad admittendum cler- 
 icum, or making an Insufficient return to it, 
 may be fined. Watson, Cler. Law, 302. 
 
 QUARE NON PERMITTIT. An ancient 
 writ, which lay for one who had a right to 
 present to a church for a turn against the 
 proprietary. Pleta, lib. 5, c. 6. 
 
 QUARE OBSTRUXIT (Lat. why he ob- 
 structs. (The name of a writ formerly used 
 in favor of one who, having a right to pass 
 through his neighbor's grounds, was pre- 
 vented enjoying such right, because the own- 
 er of the grounds had obstructed the way. 
 
 QUARREL. A dispute; a difference. In 
 law, particularly In releases, which are tak- 
 en most strongly against the releasor, when 
 a man releases all quarrel he is said to le- 
 lease all actions, real and personal. 8 Coke, 
 153. 
 
 QUARRY. A place whence stones are dug 
 for the purpose of being employed in build- 
 ing, making roads, and the like. 
 
 When a farm Is lel^ with an open quarry, 
 the tenant may, when not restrained by his 
 contract, take out the stone; but he has no 
 right to open new quarries. See "Waste." 
 
 QUARTER DAYS. The four days of the 
 year on which rent payable quarterly be- 
 comes due. 
 
 QUARTER SALES. In New York, a cer- 
 tain fraction of the purchase money is often 
 conditioned to be paid back on alienation of 
 the estate; and this fine on alienation Is ex- 
 pressed as a "tenth sales," a "quarter sales," 
 etc. 7 Cow. (N. Y.) 285; 7 Hill (N. Y.) 253; 
 7 N. Y. 490. 
 
 QUARTER SEAL. In Scotch law. The 
 seal kept by the director of the chancery in 
 Scotland is so called. It is in the shape and 
 Impression of the fourth part of the great 
 seal. Bell, Diet. 
 
 • QUARTER SESSIONS. A court bearing 
 this name, mostly invested with the trial of 
 criminals. It takes Its name from sitting 
 quarterly, or once in three months. 
 
 The English courts of quarter sessions 
 were erected during the reign of Edward III. 
 See St. 36 Edw. III.; Crabb, Hist. Eng. Law, 
 278. 
 
 QUARTER YEAR. In the computation of 
 time, a quarter year consists of ninety-one 
 days. Co. Lift. 135b; 2 Rolle, Abr. 521, lib. 
 40; Rev. St. N. Y. pt. 1, c. 19, tit. 1, § 3. 
 
 QUARTERING. A barbarous punishment 
 formerly Inflicted on criminals by tearing 
 them to pieces by means of four horses, one 
 attached to each limb. 
 
 QUARTERING OF SOLDIERS. Furnish- 
 ing soldiers with board or lodging or both. 
 Const. U. S. Amend, art. 3, provides that "no. 
 soldier shall. In time of peace, be quartered 
 in any house without the consent of the own- 
 er, nor in time of war but in a manner to be, 
 prescribed by law." 
 
 QUARTEROON. One who has had one of 
 his grandparents of the black or African 
 race. 
 
 QUARTO DIE POST (Lat. fourth day aft- 
 er). Appearance day, which Is the fourth 
 day inclusive from the return of the writ; 
 and if the person summoned appears on that . 
 day, it is sufficient. On this day, also, the . 
 court begins to sit for despatch of business. 
 These three days were originally given as an 
 indulgence. 3 Bl. Comm. 278; Tldd, New 
 Prac. 134. But this practice is now altered.. 
 15 & 16 Vict. c. 76. 
 
QUASH 
 
 (754) 
 
 QUASI CORPORATIONS 
 
 QUASH. In practice. To overthrow or 
 annul. 
 
 Distinguished from "dismiss." The term 
 "quash," as applied to writs, is predicated 
 of some defect in the writ itself, or in the 
 form of the writ, which defect does not 
 reach the merits of the case; the usual prac- 
 tice being to grant a new writ on the origi- 
 nal petition. Dismissal is applied to the re- 
 moval or disposal of the cause itself, and 
 not to the mere annulment of the writ. 24 
 Miss. 457. 
 
 QUASHAL. The act of quashing. 
 
 QUASI (Lat. as it; almost). A term used 
 to mark a resemblance, and which supposes 
 a little difference between two objects. Dig. 
 11. 7. 1. 8. 1. Civilians use the expressions 
 quasi contractus, quasi delictum, quasi pos- 
 sessio, quasi traditio, etc. 
 
 QUASI AFFINITY. In civil law. The af- 
 finity which exists between two persons, one 
 of whom has been betrothed to the kindred 
 of the other, but who have never been mar- 
 ried. For example, my brother is betrothed 
 to Maria, and afterwards, before marriage, 
 he dies. There then exists between Maria 
 and me a quasi afBnity. 
 
 The history of England furnishes an ex- 
 ample of this kind. Catherine of Arragon 
 was betrothed to the brother of Henry VIII. 
 Afterwards, Henry married her, and under 
 the pretense of this quasi affinity he repudi- 
 ated her, because the marriage was incestu- 
 ous. 
 
 QUASI CONTRACTUS (Lat.) In civil law. 
 The act of a person, permitted by law, by 
 which he obligates himself towards another, 
 or by which another binds himself to him, 
 without any agreement between them. 
 
 By article 2272 of the Civil Code of Lou- 
 isiana, which is translated from article 1371 
 ■of the Code Civil, quasi contracts are defined 
 to be "the lawful and purely voluntary acts 
 of a man, from which there results any ob- 
 ligation whatever to a third person, and 
 ;sometimes a reciprocal obligation between 
 the parties." In contracts, it is the consent 
 of the contracting parties which produces the 
 obligation; in quasi contracts no consent is 
 required, and the obligation arises from the 
 law or natural equity, on the facts of the 
 case. These acts are called "quasi con- 
 tracts" because, without being contracts, they 
 bind the parties as contracts do. 
 
 There is no term in the common law 
 which answers to that of "quasi contract." 
 Many quasi contracts may doubtless be 
 classed among "Implied contracts." There is, 
 however, a difference to be noticed. For ex- 
 ample, in case money should be paid by mis- 
 take to a minor, it may be recovered from 
 him by the civil law, because his consent is 
 not necessary to a quasi contract; but by the 
 common law, if it can be recovered, it must 
 be upon an agreement to which the law pre- 
 sumes he has consented, and it is doubtful, 
 upon principle, whether such recovery could 
 be had. 
 
 Quasi contracts may be multiplied almost 
 to infinity. They are, however, divided into 
 
 five classes, — such as relate to the voluntary 
 and spontaneous management of the affairs 
 of another, without authority (negotiorum 
 gestio) ; the administration of tutorship; the 
 management of common property .(comniu- 
 nio bonorum) ; the acquisition of an inher- 
 itance; and the payment of a sum of money 
 or other thing by mistake, when nothing 
 was due (indebiti solutio). 
 
 Each of these quasi contracts has an affin- 
 ity with some contract. Thus, the manage- 
 ment of the affairs of another without au- 
 thority, and tutorship, are compared to a 
 mandate; the community of property, to a 
 partnership; the acquisition of an inherit- 
 ance, to a stipulation; and the payment of a 
 thing which is not due, to a loan. 
 
 QUASI CONTRACT. A liability similar to 
 that created by contract, but not really aris- 
 ing by the consent of the parties. 
 
 Quasi contracts are said to be founded in 
 general 
 
 (1) On a record, as the liability on a judg- 
 ment. 
 
 (2) On a statutory, official, or customary 
 duty, as the obligation of a husband for nec- 
 essaries furnished his wife, even against his 
 orders; or the liability of a vessel for half 
 pilotage on refusing the first pilot offering 
 himself. 2 Wall. (U. S.) 450. 
 
 (3) On the doctrine that no one shall be 
 permitted to enrich himself unjustly at the 
 expense of another; as the liability of an 
 infant to pay for necessaries (141 Mass. 
 530), or the liability to repay money paid 
 by mistake (Keener, Quasi Cont. 16). 
 
 The distinction between "quasi contract" 
 and "implied contract" appears to be one of 
 degree, rather than of principle. It has been 
 said that implied contract extends to those 
 cases where there was an intent to contract, 
 or at least no intent not to contract; but in 
 many cases commonly assigned to implied 
 contracts, the only evidence of intent to con- 
 tract is in the imputed knowledge that the 
 law would impose a given liability, and this 
 element is absent from but few quasi con- 
 tracts. On the other hand, the test of defi- 
 nite intention not to contract would exclude 
 many liabilities properly classified as quasi 
 contractual, e. g., that for money paid by 
 mistake. 
 
 It may be said, generally, that quasi con- 
 tracts embrace those cases where there was a 
 positive intention not to contract, and cases 
 where there was no intent to contract, and 
 the party was more remote from any in- 
 ferred intent than in cases of implied con- 
 tract, but the exact line of demarcation can- 
 not, in the present state of legal nomencla- 
 ture, be drawn. 
 
 QUASI CORPORATIONS. A term applied 
 to those bodies which, though not vested 
 with the general powers of corporations, are 
 yet recognized by statutes or immemorial 
 usage as persons or corporations aggregate, 
 with power to sue and be sued in their ag- 
 gregate capacity. 2 Kent, Comm. 274; 9 
 Mass. 247; 1 Me. 361. 
 
 A body having capacity to make contracts 
 in respect to county affairs, and having per- 
 
QUASI DELICT 
 
 (755) QUATUOR PEDIBUS CURRIT 
 
 petual succession, is a quasi corporation (2 
 Wall. [U. S.l 501), e. g., the overseers of the 
 poor (18 Johns. [N. Y.] 407). 
 
 QUASI DELICT. In civil law. An act 
 whereby a person, without malice, hut by 
 fault, negligence, or imprudence not legally 
 excusable, causes injury to another. 
 
 A quasi delict may he public or private. 
 The neglect of the affairs of a community, 
 when it is our duty to attend to them, may 
 he a crime; the neglect of a private matter, 
 under similar circumstances, may be the 
 ground of a civil action. Bowyer, Mod. Civ. 
 Law, c. 43, p. 265. 
 
 QUASI-DEPOSIT. A kind of involuntary 
 bailment, which takes place where a person 
 acquires possession of property lawfully, by 
 finding. Story, Bailm. § 85. 
 
 QUASI EASEMENT. An "easement," in 
 the proper sense of the word, can only exist 
 in respect of two adjoining pieces of land 
 occupied by different persons, and can only 
 impose a negative duty on the owner of the 
 servient tenement. Hence an obligation on 
 the owner of land to repair the fence be- 
 tween his and his neighbor's land is not a 
 true easement, but is sometimes called a 
 "quasi easement." Gale, Basem. 516. 
 
 QUASI ENTAIL. Agiiasi entail exists when 
 an estate pur autre vie is limited to a person 
 and the heirs of his body. 
 
 QUASI FEE. An estate gained by wrong; 
 for wrong is unlimited and uncontained with- 
 in rules. Wharton. 
 
 QUASI OFFENSES, or QUASI CRIMES. 
 
 Wrongs against the general or local public 
 which have not been declared crimes (68 III. 
 375); e. g., bastardy proceedings, which are 
 commonly said to be quasi criminal. 
 
 Offenses for which some person other than 
 the actual perpetrator is responsible, the per- 
 petrator being presumed to act by command 
 cf the re~roi)sible rarty. 
 
 Injuries which have been unintentionally 
 caused. 
 
 QUASI PARTNERS. Partners of lands, 
 fc-ds, or chattels, who are not actual part- 
 ners, are sometimes so called. Poth. de 
 
 Societe, Append. liote 184. See "Part Ow .- 
 ers." 
 
 QUASI PERSONALTY. Things which are 
 movable in point of law, though fixed to 
 things real, either actually, as emblements 
 {fructus industriales) , fixtures, etc., or ficti- 
 tiously, as chattels real, leases for years, 
 etc. 
 
 QUASI POSSESSION. Such use as is to a 
 right what possession is to a thing, when 
 the enjoyment is exercised by means of pos- 
 session of the thing, which is the subject 
 of the right, the idea of quasi possession does 
 not arise, and the term is confined to those 
 rights which merely give a limited power 
 of using the thing, as in case of easements. 
 The term is little used, "enjoyment" being 
 more frequently employed. 
 
 QUASI POSTHUMOUS CHILD. In civil 
 law. One who, born during the life of his 
 grandfather or other male ascendant, was 
 not his heir at the time he made his testa- 
 ment, but who, by the death of his father, 
 became his heir in his lifetime. Inst. 2. 13. 
 2; Dig. 28. 3. 13. 
 
 QUASI PURCHASE. This term is used in 
 the civil law to denote that a thing is to be 
 considered as purchased from the presumed 
 consent of the owner of a thing; as, if a 
 man should consume a cheese, which is in 
 his possession and belonging to another, with 
 an intent to pay the price of it to the owner, 
 the consent of the latter will be presumed, 
 as the cheese would have been spoiled by 
 keeping it longer. Wolff. Dr. Nat. § 691. 
 
 QUASI REALTY. Things which are fixed 
 in cbntemplation of law to realty, but mov- 
 able in themselves, as heirlooms (or limbs 
 of the inheritance), title deeds, court rolls, 
 etc. Wharton. 
 
 QUASI TENANT AT SUFFERANCE. An 
 
 under tenant, who is in possession at the de- 
 termination of an original lease, and is per- 
 mitted by the reversioner to hold over. 
 
 QUASI TORT. Though not a recognized 
 term of English law, it may he conveniently 
 used in those cases where a man who has 
 not committed a tort is liable as if he had. 
 Thus, a master is liable for wrongful acts 
 done by his servant in the course of his em- 
 ployment. Broom, Com. Law, 690; Underh. 
 Torts, 29. Austin rejects "quasi torts," or 
 "quasi delict," altogether. Austin, Jur. 959. 
 
 QUASI-TRADITIO (Lat.) In civil law. A 
 term used to designate that a person is in 
 the use of the property of another, which 
 the latter suffers and does not oppose. Lee. 
 Elm. § 396. It also signifies the act by which 
 the right of property is ceded in a thing 
 to a persoil who is in possession of it; as, if 
 I loan a boat to Paul, and deliver it to him, 
 and afterwards I sell him the boat, it is 
 not requisite that he should deliver the 
 boat to me to be again delivered to him. 
 There is a quasi tradition or delivery. 
 
 QUASI TRUSTEE. A person who reaps a 
 benefit from a breach of trust, and so be- 
 comes answerable as a trustee. Lewin, 
 Trusts (4th Ed.) 592, 638. 
 
 QUASI USUFRUCT. In the civil law. A 
 name given to a usufructory interest in con- 
 sumable things. See "Usufruct." 
 
 QUATER COUSIN. "The very name of 
 cater, or (as it is more properly written) 
 quater cousins, is grown into a proverb, to 
 express, by way of irony, the last and most 
 trivial degree of intimacy and regard." Bl. 
 Law Tr. 6. 
 
 QUATUOR PEDIBUS CURRIT (Law Lat.) 
 Runs upon four feet; runs upon all fours. 
 A term used to denote an exact correspond- 
 ence. See "All Pours." Nullum simile qua- 
 tuor pedihus currit, no simile holds in ev- 
 erything. Co. Litt. 3a. "It does not follow 
 
QUATUORVIRI 
 
 (756) 
 
 QUERENS 
 
 that they (a trust and an equity of redemp- 
 tion) run quatuor pedibus." 1 W. Bl. 145. 
 
 QUATUORVIRI (Lat. four men). In Ro- 
 man law. Magistrates who had the care ana 
 inspection of roads. Dig. 1. 2. 3. 30. 
 
 QUAY. A wharf at which to load or land 
 goods. Sometimes spelled "key." 
 
 In its enlarged sense, the word "quay" 
 means the whole space between the first row 
 of houses of a city and the sea or river. 5 
 La. 152, 215. So much of the quay as is 
 requisite for the public use of loading and 
 unloading vessels is public property, and 
 cannot be appropriated to private use, but 
 the rest may be private property. 
 
 Which is 
 
 QUE EST MESME (Law Fr.) 
 the same. See "Quae est Eadem." 
 
 QUE ESTATE (Lat. quern statum, or which 
 estate). A plea by which a man prescribes 
 in himself and those whose estate he holds. 
 2 Bl. Comm. 270; 18 Viner, Abr. 133-140; Co. 
 Litt. 121a; Hardr. 459; 2 Bouv. Inst, note 
 499. 
 
 QUEAN. A worthless woman; a strumpet. 
 The meaning of this word, which is now sel- 
 dom used, is said not to he well ascertained. 
 2 Rolle, Abr. 296; Bac. Abr. "Slander" (U 3). 
 
 QUEEN. A female sovereign. 
 
 QUEEN ANNE'S BOUNTY. BySt.2Anne, 
 c. 11, all the revenue of first fruit and 
 tenths was vested in trustees forever, to 
 form a perpetual fund for the augmenta- 
 tion of poor livings. 1 Bl. Comm. 286; 2 
 Burn, Ecc. Law, 260-268. 
 
 Gb'LlEN CONSORT. The wife of a reign- 
 ing kin?. 1 Bl. Comm. 218. She is looked 
 upci bv the law as a fe'>'ie yoZe. as to her 
 power of contracting, Siiing, etc. Id. 
 
 QUEEN DOWAGER. The widow of the 
 king. She has most of the privileges belong- 
 ing to a queen consort. 1 Bl. Comm. 229. 
 
 QUEEN GOLD. A royal revenue belong- 
 ing to every queen consort during her mar- 
 riage with the king, and due from every 
 person who has made a voluntary fine or 
 offer to the king of ten marks or upwards, 
 in consideration of any grant or privilege 
 conferred by the crown. It is due of record 
 on the recording of the fine. It was last ex- 
 acted in the reign of Charles I. It is now 
 quite obsolete. 1 Bl. Comm. 220-222; For- 
 tesc. de Laud. 398; Jacob. 
 
 QUEEN REGNANT. She who holds the 
 crown in her own right. She has the same 
 duties and prerogatives, etc., as a king. St. 
 1 Mar. I. St. 3, c. 1; 1 Bl. Comm. 218; 1 
 Wooddeson, Lect. 94. 
 
 QUEEN'S (or KING'S) ADVOCATE. An 
 
 English advocate who holds, in the courts in 
 which the rules of the canon and civil law 
 prevail, a similar position to that which the 
 attorney general holds in the ordinary courts, 
 i. e., he acts as counsel for the crown in eccle- 
 siastical, admiralty, and probate cases, and 
 
 advises the crown on questions of interna- 
 tional law. In order of precedence, it seems 
 that he ranks after the attorney general. 3 
 Steph. Comm. 275, note; Man. S. ad L. 19 
 Append. IV. 
 
 QUEEN'S BENCH. The English court of 
 king's bench is so called during the reign 
 of a queen. 3 Steph. Comm. 403. 
 
 QUEEN'S (or KING'S) COUNSEL. In Eng- 
 lish law. Barristers called within the bar, 
 and selected to be the queen's (or king's) 
 counsel, learned in the law; answering in 
 some measure to the advocates of the reve- 
 nue iadvocati fisoi) among the Romans. 
 They cannot be employed in any cause 
 against the crown, without special license. 
 3 Bl. Comm. 27; 3 Steph. Comm. 386. 
 
 QUEEN'S (or KING'S) EVIDENCE. Tes- 
 timony of an accomplice in a felony, ad- 
 mitted as evidence for the crown against his 
 accomplices. 4 Steph. Comm. 398. See 
 "State's Evidence." 
 
 QUEEN'S PRISON. In English law. A 
 prison appropriated to the debtors and crim- 
 inals confined under process, or by author- 
 ity of the superior courts at Westminster, 
 the Marshalsea court and Palace court, and 
 the high court of admiralty, and also to 
 persons imprisoned under the bankrupt law. 
 It was established by St. 5 & 6 Vict. c. 22, 
 consolidating into one the queen's bench, 
 the Fleet, and the Marshalsea prisons. 3 
 Steph. Comm. 254. 
 
 QUEM REDDITUM REDDIT. A real ac- 
 tion, by which the grantee of a rent could 
 compel the tenants to attorn to him. 
 
 QUEMADMODUM AD QUAESTIONEM 
 facti non respondent Judices, ita ad quaes- 
 tionem juris non respondent juratores. In 
 
 the same manner that judges do not answer 
 to questions of fact, so jurors do not answer 
 to questions of law. Co. Litt. 295. 
 
 QUERELA (Lat.) An action preferred in 
 any court of justice. The plaintiff was called 
 Querens, or complainant, and his brief, com- 
 plaint, or declaration was called querela. 
 Jacob. See "Audita Querela." 
 
 QUERELA CORAM REGE A CONCILIO 
 discutienda et termlnanda. A writ by which 
 one is called to' justify a complaint of a 
 trespass made to the king himself, before 
 the king and his council. Reg. Grig. 124. 
 
 QUERELA INOFFICIOSI TESTAMENTI 
 
 (Lat. complaint of an undutiful or unkind 
 will). In civil law. A species of action al- 
 lowed to a child who had been unjustly dis- 
 inherited, to set aside the will, founded on 
 the presumption of law, in such cases, that 
 the parent was not in his right mind. Calv. 
 Lex.; 2 Kent, Comm. 327; Bell, Diet. 
 
 QUERENS (Lat. from giieri, to complain). 
 In old English practice. A plaintiff; the 
 plaintiff or complaining party. Bracton, 
 fols. 98b, 214, 240, et passim; 8 Coke, 153b. 
 The complaining party in a personal action; 
 
QUESTA 
 
 (757) 
 
 QUI DOIT, ETC. 
 
 as petens (demandant) was, in a real ac- 
 tion. Actor, sive sit petens sive guerens. 
 Bracton, fol. 106b. But querens was used in 
 assizes. Fleta, lib. 4, c. 7. 
 
 QUESTA (Law Lat.) In old records. A 
 quest; an inquest, inquisition, or inquiry, 
 upon the oaths of an Impanelled jury. Cow- 
 ell. 
 
 QUESTION. 
 
 In Old Criminal Law. A means some- 
 times employed in some countries, by torture, 
 to compel supposed great criminals to dis- 
 close their accomplices or to acknowledge 
 their crimes. 
 
 This torture is called "question" because, 
 as the unfortunate person accused is made 
 to suffer pain, he is asked questions as to his 
 supposed crime or accomplices. This is un- 
 known in the United States. See Both. Proc. 
 Grim. sec. 5, art. 2, § 3. 
 
 In Evidence. An interrogation put to 
 
 a witness, requesting him to declare the 
 truth of certain facts as far as he knows 
 them. 
 
 Questions are either general or leading. 
 By a general question is meant such a one 
 as requires the witness to state all he knows, 
 without any suggestion being made to him; 
 as, "Who gave the blow?" A leading ques- 
 tion is one which leads the mind of the wit- 
 ness to the answer, or suggests it to him; 
 as, "Did A. B. give the blow?" 
 
 The Romans called a question by which 
 the fact or supposed fact which the interro- 
 gator expected or wished to find asserted in 
 and by the answer was made known to the 
 proposed respondent a "suggestive" inter- 
 rogation; as, "Is not your name A. B.?" 
 See "Leading Question." 
 
 In Practice. A point on which the par- 
 ties are not agreed, and which is submitted 
 to the decision of a judge and jury. 
 
 When the doubt or difference arises as to 
 what the law is on a certain state of facts, 
 this is «aid to be a "legal question;" and 
 when the party demurs, this is to be de- 
 cided by the court. When it arises as to the 
 truth or falsehood of facts, this is a "ques- 
 tion of fact," and is to be decided by the 
 jury. 
 
 QUESTUS EST NOBIS. A writ of nui- 
 sance which lay against one who acquired, 
 by descent or alienation, the thing which 
 caused the nuisance. It was given by 15 
 Edw. I. Formerly only the person causing 
 it was liable. Cowell. 
 
 QUI ABJURAT REGNUM AMITTIT REG- 
 num, sad non regem; patriam, sed non pa- 
 trem patriae. He who abjures the realm 
 leaves the realm, but not the king; the 
 country, but not the father of the country. 
 7 Coke, 9. 
 
 QUI ACCUSAT INTEGRAE FAMAE SIT 
 et non criminosus. Let him who accuses be 
 of clear fame, and not criminal. 3 Inst. 26. 
 
 QUI ACQUIRIT SIBI ACQUIRIT HAERE- 
 dibus. He who acquires for himself acquires 
 for his heirs. Tray. Lat. Max. 496. 
 
 QUI ADIMIT MEDIUM DIRIMIT FINEM. 
 He who takes away the means destroys the 
 end. Co. Litt. 161. 
 
 QUI ALIQUID STATUERIT PARTE IN- 
 audita altera, aequum licet dixerit, haud 
 aequum facerit. He who decides anything, a 
 party being unheard, though he should de- 
 cide right, does wrong 6 Coke, 52; 4 Bl. 
 Comm. 483. 
 
 QUI ALTERIUS JURE UTITUR, EODEM 
 jure uti debet. He who uses the right of an- 
 other ought to use the same right. Both. 
 Tr. de Change, pt. 1, c. 4, § 114; Broom, Leg. 
 Max. (3d London Ed.) 421. 
 
 QUI APPROBAT NON REPROBAT. He 
 
 who approbates dops rot reprobate, i. e., he 
 cannot both accept and reject the same 
 thing. 
 
 QUI BENE DISTINGUIT BENE DOCET. 
 
 He who distinguishes well, learns well. 2 
 Inst. 470. 
 
 QUI BENE INTERROGAT BENE DOCET. 
 He who questions well, learns well. 3 Bulst. 
 
 227. 
 
 QUI CADIT A SYLLABA CADIT A TOTA 
 
 causa. He who fails in a syllable fails in 
 his whole cause. Bracton, fol. 211; St. 
 Wales, 12 Edw. I.; 3 Bl. Comm. 407. 
 
 QUI CONCEDIT ALIQUID, CONCEDERE 
 videtur et id sine quo concessio est irrita, 
 sine quo res ipsa esse non potuit. He who 
 grants anything is considered as granting 
 that without which his grant would be idle, 
 without which the thing itself could not ex- 
 ist. 11 Coke, 52; Jenk. Cent. Cas. 32. 
 
 QUI CONFIRMAT NIHIL DAT. He who 
 confirms does not give. 2 Bouv. Inst, note 
 2069. 
 
 QUI CONTEMNIT PRAECEPTUM CON- 
 temnit praecipientem. He who contemns the 
 precept contemns the party giving it. 12 
 Coke, 96. 
 
 QUI CUM ALIO CONTRAHIT, VEL EST, 
 vel debet esse non ignarus conditionis ejus. 
 He who contracts knows, or ought to know, 
 the quality of the person with whom he con- 
 tracts, otherwise he is not excusable. Dig. 
 50. 17. 19; 2 Hagg. Consist.; Story, Confl. 
 Laws, § 76. 
 
 QUI DAT FINEM DAT MEDIA AD FINEM 
 necessaria. He who gives an end gives the 
 means to that end. 3 Mass. 129. 
 
 QUI DESTRUIT MEDIUM DESTRUIT Fl- 
 nem. He who destroys the means destroys 
 the end. 11 Coke, 51; Shep. Touch. 342; Co. 
 Litt. 161a. 
 
 QUI DOIT INHERITER AL PERE DOIT 
 inheriter al fitz. He who ought to inherit 
 from the father ought to inherit from the 
 son. 2 Bl. Comm. 250, 273; Broom, Leg. 
 Max. (3d London Ed.) 459. 
 
QUI EVERTIT, ETC. 
 
 (758) 
 
 QUI PECCAT, ETC. 
 
 QUI EVERTIT CAUSAM EVERTIT CAU- 
 eatum futurum. He who overthrows the cause 
 overthrows its future effects. 10 Coke, 51. 
 
 QUI EX DAMNATO COITU NASCUNTUR 
 
 inter liberos non computentur. They who 
 are born of an illicit union should not he 
 counted among children. Co. Lift. 8. See 
 1 Bouv. inst. cote 289; Bracton, 5; Broom, 
 Leg. Max. (3d London Ed.) 460. 
 
 QUI FACIT ID QUOD PLUS EST FACIT 
 
 id quod minus est, sed non convertitur. He 
 who does that which is more does that which 
 is less, but not vice versa. Bracton, 207b. 
 
 QUI FACIT PER ALIUM FACIT PER SE. 
 
 He who acts by or through another acts 
 himself; i. e., the acts of an agent are the 
 acts of the principal. 1 Bl. Comm. 429; 
 Story, Ag. § 440; 2 Bouv. Inst, notes 1273, 
 1335, 13£6; 7 Man. & G. 32, 33; 16 Mees. & 
 W. 26; 8 Scott, N. R. 590; 6 Clark & P. 600; 
 10 Mass. 155. 
 
 QUI HABET JURISDICTIONEIVI ABSOL- 
 vendi iiabet jurisdictionem ligandi. He who 
 has jurisdiction to loosen has jurisdiction to 
 bind. 12 Coke, 59. 
 
 QUI HAERET IN LITERA HAERET IN 
 cortice. He who adheres to the letter ad- 
 heres to the bark. Co. Litt. 289; 5 Coke, 
 4b; 11 Coke, 34b; 12 East, 372. 
 
 QUI IGNORAT QUANTUIVl SOLVERE DE- 
 beat non potest in probus vid^r'?. He who 
 
 does not know what he ought to pay does 
 not want probity in not paying. Dig. 50. 17. 
 99. 
 
 QUI IN JUS DOIVIINIUIVIVE ALTERIUS 
 succedit jure ejus uti debet. He who suc- 
 ceeds to the right or property of another 
 ought to use bis right, ?.. e., holds it subject 
 to the same rights and liabilities as attached 
 to it in the hands of the assignor. Dig. 50. 
 17. 177; Broom, Leg. Max. (3d London Ed.) 
 420, 425. 
 
 QUI IN UTERO EST PRO JAIVl NATO 
 habetur quoties de ejus commode quaeritur. 
 He who is in the womb is considered as born 
 whenever his benefit is concerned. 
 
 QUI JURE SUO UTITUR NEiVIINI FACIT 
 injurlam. He who uses his legal rights harms 
 no one. 
 
 QUI JUSSU JUDICIS ALIQUOD FECERIT 
 
 non videtur dole malo fecisse, quia parere 
 necesse est. He who does anything by com- 
 mand cf a judge will not be supposed to have 
 acted from an improper motive, because it 
 was necessary to obey. 10 Coke, 76; Dig. 50. 
 17. 167. 1. 
 
 QUI MALE AGIT ODIT LUCEM. He wjio 
 acts badly hates the light. 7 Coke, 66. 
 
 QUI IVIANDAT IPSE FECISSI VIDETUR. 
 
 He who commands a thing to be done is held 
 to have done it himself. Story, Bailm. § 147. 
 
 QUI MELIUS PROBAT MELIUS HABET. 
 He who proves most recovers most. 9 Viner, 
 Abr. 235. 
 
 QUI MOLITUR INSIDIAS IN PATRIAM 
 id facit quod insanus nauta perforans navem 
 in qua vehitur. He who betrays his country 
 is like the insane sailor who bores a hole in 
 the ship which carries him. 3 Inst. 36. 
 
 QUI NASCITUR SINE LEGITIMO MATRI- 
 monio matrem sequitur. He who is born out 
 of lawful matrimony follows the condition 
 of the mother. 
 
 QUI NON CADUNT IN CONSTANTEM 
 virum vani timores sunt aestimandi. Those 
 are to be esteemed vain fears which do not 
 affect a man of a firm mind. 7 Coke, 27. 
 
 QUI NON HABET, ILLE NON DAT. Who 
 
 has not, he gives not. Shep. Touch. 243; 4 
 Wend. (N. Y.) 619. 
 
 QUI NON HABET IN AERE LUAT IN 
 corpore, ne quis peccetur impune. He who 
 cannot pay with his purse must suffer in his 
 person, lest he who offends should go un- 
 punished. 2 Inst. 173; 4 Bl. Comm. 20. 
 
 QUI NON HABET POTESTATEM ALIE- 
 nandi habet necessitatem retinendi. He who 
 has not the power of alienating is obliged to 
 retain. Hob. 336. 
 
 QUI NON IMPROBAT APPROBAT. He 
 
 who does not disapprove approves. 3 Inst. 
 27. 
 
 QUI NON LIBERE VERITATEM PRO- 
 nunciat proditor est veritatis. He who does 
 not freely speak the truth is a betrayer of 
 the truth. 
 
 QUI NON NEGAT FATETUR. He who 
 
 does not deny admits. A well-known rule 
 of pleading. Tray. Lat. Max. 503. 
 
 QUI NON OBSTAT QUOD OBSTARE Po- 
 test facere videtur. He who does not pre- 
 vent what he can seems to commit the thing. 
 2 Inst. 146. 
 
 QUI NON PROHIBET CUM PROHIBERE 
 possit jubet. He who does not forbid when 
 he can forbid commands. 1 Bl. Comm. 430. 
 
 QUI NON PROHIBET QUOD PROHIBERE 
 potest assentire videtur. He who does not 
 forbid what he can forbid seems to assent. 
 2 Inst. 3Q8; 8 Bxch. 304. 
 
 QUI NON PROPULSATINJURIAM QUAN- 
 do potest, infert. He who does not repel a 
 wrong when he can, occasions it. Jenk. 
 Cent. Cas. 271. 
 
 QUI OBSTRUIT ADITUM DESTRUIT 
 commodum. He who obstructs an entrance 
 destroys a conveniency. Co. Litt. 161. 
 
 QUI OMNE DIGIT, NIHIL EXCLUDIT. He 
 
 who says all excludes nothing. 4 Inst. 81. 
 
 QUI PARCIT NOCENTIOUS INNOCENTI- 
 bus punit. He who spares the guilty pun- 
 ishes the innocent. Jenk. Cent. Cas. 126. 
 
 QUI PECCAT EBRIUS LUAT SOBRIUS. 
 
 He who offends drunk must be punished 
 when sober. Gary, 133. 
 
QUI PER ALIUM, ETC. 
 
 (759) 
 
 QUIA EMPTORES 
 
 QUI PER ALIUM FACIT PER SEIPSUM 
 facere videtur. He who does anything 
 through another Is considered as doing it 
 himself. Co. Lltt. 258. 
 
 QUI PER FRAUDEM AGIT, FRUSTRA 
 aglt. He who acts fraudulently acts in vain. 
 2 Rolle, 17. 
 
 QUI POTEST ET DEBET VETARE, JU- 
 bet. He who can and ought to forbid, and 
 does not, commands. ' 
 
 QUI PRIMUM PECCAT ILLE FACIT RIX- 
 
 am. He who first offends causes the strife. 
 
 QUI PRIOR EST TEMPORE POTIOR EST 
 jure. He who 'is first or before in time is 
 stronger in right. Co. Lltt. 14a; 1 Story, 
 Eq. Jur. § 64d; Story, Bailm. § 312; 1 Bouv. 
 Inst, note 952; 4 Bouv. Inst. 372S; 1 Smith, 
 Lead. Gas. (4th Hare & W. Ed.) 440; 3 East, 
 93; 24 Miss. 208. 
 
 QUI PRO ME ALIQUID FACIT, MIHI FE- 
 cisse videtur. He who does any benefit (to 
 another) for me is considered as doing it to 
 me. 2 Inst. 501. 
 
 QUI PROVIDETSIBI PROVIDET HAERE- 
 dibus. He who provides for himself provides 
 for his heirs. 
 
 QUI RATIONEM IN OMNIBUS QUAE- 
 runt rationem subvertunt. He who seeks a 
 reason for everything subverts reason. 2 
 Coke, 75; Broom, Leg. Max. (3d London Ed.) 
 149. 
 
 QUI SCIENS SOLVIT INDEBITUM DO- 
 nandi consllio id videtur fecisse> One who 
 knowingly pays what is not due is supposed 
 to have done it with the intention of mak- 
 ing a gift. 17 Mass. 388. 
 
 QUI SEMEL ACTIONEM RENUNCIA- 
 verit, amplius repetere non potest. He who 
 renounces his action once cannot any more 
 bring it. 8 Coke, 59. See "Retraxit." 
 
 QUI SEMEL MALUS SEMPER PRAE- 
 sumitur esse malus in eodem genere. He 
 who is once bad is presumed to be always 
 so in the same degree. Cro. Car. 317; Best, 
 Ev. 345. 
 
 QUI SENTIT COMMODUM SENTIRE DE- 
 bet et onus. He who derives a benefit from 
 a thing ought to bear the disadvantages at- 
 tending it. 2 Bouv. Inst, note 1433; 2 
 Woodb. & M. (U. S.) 217; 1 Story, Const. 78; 
 Broom, Leg. Max. (3d London Ed.) 630. 
 
 QUI SENTIT ONUS SENTIRE DEBET ET 
 commodum. He who bears the burden of a 
 thing ought also to experience the advan- 
 tage arising from it. 1 Coke, 99a; Broom, 
 Leg. Max. (3d London Ed.) 638; 1 Serg. & 
 R. (Pa.) 180; Coote, Mortg. (3d Ed.) 517d; 
 Francis, Max. 5. 
 
 QUI TACETCONSENTIRE VIDETUR. He 
 
 who is silent appears to consent. Jenk. Cent. 
 Cas. 32. 
 
 QUI TACET CONSENTIRE VIDETUR 
 
 ubi tractatur de ejus commodo. He who is 
 
 silent is considered as assenting, when his 
 advantage is debated. 9 Mod. 38. 
 
 QUI TACET NON UTIQUE FATETUR, 
 sed tamen verum est eum non negare. He 
 
 who is silent does not indeed confess, but yet 
 it is true that he does not deny. Dig. 50. 17. 
 142. 
 
 QUI TAM (Lat. who as well). An action 
 under a statute which imposes a penalty for 
 the doing or not doing an act, and gives that 
 penalty in part to whosoever will sue for 
 the same, and the other part to the common- 
 wealth, or some charitable, literary, or other 
 institution, and makes it recoverable by ac- 
 tion. The plaintiff describes himself as suing 
 as well for the commonwealth, for example, 
 as for himself. Esp. Pen. Actions, 5, 6; 1 
 Viner. Abr. 197; 1 Salk, 29, note; Bac. Abr. 
 
 QUI TARDIUS SOLVIT MINUS SOLVIT. 
 
 He who pays tardily pays less ttan he ought. 
 Jenk. Cent. Cas. 38. 
 
 QUI TIMENTCAVENT ETVITANT. They 
 who fear take care and avoid. Off. Ex. 162; 
 Branch, Princ. 
 
 QUI TOTUM DIGIT NIHIL EXCIPIT. He 
 
 who says all excepts nothing. 
 
 QUI VULT DECIPI, DECIPIATUR. Let 
 
 him who wishes to be deceived be deceived. 
 De Gex, M. & G. 687, 710; Shep. Touch. 56. 
 
 QUIA (Lat.) In pleading. Because. This 
 word is considered a term of affirmation. - It 
 is sufficiently direct and positive for intro- 
 ducing a material averment. 1 Saund. 117, 
 note 4; Comyn, Dig. "Pleader" (C 77). 
 
 QUIA DATUM EST NOBIS INTELLIGI. 
 
 Because it is given to us to understand. 
 Formal words in old writs. Rat. Pari. 4 
 Hen. IV. 
 
 QUIADOMINUS REMISIT CURIAM (Law 
 Lat.) In old practice. Because the lord 
 hath remised or remitted his court. A 
 clause inserted at the conclusion of a writ 
 of right, where it was brought, in the first 
 instance, in the king's court; the lord in 
 whose court baron it regularly ought to be 
 first brought, having waived or remitted his 
 right. 3 Bl. Comm. 195; Id. Append. No. i. 
 § 4. 
 
 QUIA EMPTORES (Lat. because the pur- 
 chasers). The title of St. Westminter III. 
 (18 Edw. I. c. 1), which provided that from 
 thenceforth it should be lawful for every 
 freeman or freeholder to sell his lands or 
 tenements or part thereof at his pleasure, 
 so that, however, the feoffee should hold 
 such lands or tenements of the chief lord of 
 the same fee, by the same services and cus- 
 toms by which his feoffor before held them. 
 So called from its initial words: Quia emp- 
 tores terrarum, et tenementorum de feodis 
 magnatum, etc. 2 Bl. Comm. 91; Barr. Obs. 
 St. 167. See the New York case, 2 Seld. 
 467. 
 
QUIA ERRONICE EMANAVIT 
 
 (760) 
 
 QUIET ENJOYMENT 
 
 QUIA ERRONICE EMANAVIT. Because 
 it issued erroneously, or through mistake. 
 A term in old English practice. Yelv. 83. 
 
 QUIA TIMET (Lat. because he fears). A 
 term applied to preventive or anticipatory 
 remedies. According to Lord Coke, "there 
 be six writs of law that may be maintained 
 quia timet, before any molestation, distress, 
 or impleading; as, first, a man may have 
 his writ or mesne before he be distrained; 
 second, a warrantia chartae, before he be 
 impleaded; third, a monsLraverunt, before 
 any distress or vexation; fourth, an audita 
 querela, before any execution sued; fifth, a 
 curia claudenda, before any default of in- 
 closure; sixth, a ne in juste vexes, before any 
 distress or molestation. And these are called 
 brevia anticipantia, writs of prevention." 
 Co. Litt. 100. And see 7 Brown, Pari. Cas. 
 125. 
 
 These writs are generally obsolete. In 
 chancery, when it is contemplated to pre- 
 vent an expected Injury, a bill quia timet is 
 filed. See "Bill Quia Timet." 
 
 QUICK DISPATCH. A term used in char- 
 ter parties to express the promptness with 
 which the cargo will be delivered to the ves- 
 sel for loading. It signifies delivery as rap- 
 idly as the vessel can receive it. 2 Fed. 607. 
 
 It is a stronger term than "customary 
 quick dispatch," and supersedes the custom 
 of the port. 2 Low. (U. S.) 361. 
 
 QUICK WITH CHILD. The state of a 
 woman pregnant with a quick child, i. e., a 
 foetus which has quickened. 9 Mete. 
 (Mass.) 263. In an English case, "quick 
 with child" was distinguished from "with 
 quick child," the former phrase being said 
 to signify merely "having conceived" (8 
 Car. & P. 262), but this distinction is not 
 recognized (22 N. J. Law, 57). 
 
 QUICQUID ACQUIRITUR SERVO, AC- 
 quiritur domino. Whatever is acquired by 
 the servant is acquired for the master. 15 
 Viner, Abr. 327. 
 
 QUICQUID DEMONSTRATAE REI ADDI- 
 tur satis demonstratae frustra est. Whatever 
 is added to the description of a thing al- 
 ready sufficiently described is of no effect. 
 Dig. 33. 4. 1. 8; Broom, Leg. Max. (3d Lon- 
 don Ed.) 562. 
 
 QUICQUID EST CONTRA NORMAM REC- 
 ti est injuria. Whatever is against the rule 
 of right is a wrong. 3 Bulst. 313. 
 
 QUICQUID IN EXCESSU ACTUM EST, 
 lege prohibitur. Whatever is done in excess 
 Is prohibited by law. 2 Inst. 107. 
 
 QUICQUID JUDICISAUCTORITATI SUB- 
 jicitur novitati non subjicitur. Whatever is 
 subject to the authority of a judge is not 
 subject to innovation. 4 Inst. 66. 
 
 QUICQUID PLANTATUR SOLO, SOLO 
 cedit. Whatever is affixed to the soil be- 
 longs to it. Wentw. Off. Bx'r, 145; Ambl. 
 113; 3 East, 51. See "Fixtures." 
 
 QUICQUID RECIPITUR, RECIPITUR SE- 
 cundum modum recipientis. Whatever is re- 
 ceived is received according to the intention 
 of the recipient. Broom, Leg. Max. (3d Lon- 
 don Ed.) 727; Halk. Max. 149; Law Mag. 
 1855, p. 21; 2 Bing. (N. C.) 461; 2 Barn. & 
 C. 72; 14 Sim. 522; 2 Clark & F. 681; 2 
 Cromp. & J. 678; 14 East, 239, 243c. 
 
 QUICQUID SOLVITUR, SOLVITUR SE- 
 cundum modum solventis. Whatever is paid 
 is to be applied according to the intention 
 of the payor. 2 Vern. 606. See "Appropria- 
 tion." 
 
 QUICQUID SOLVITUR, SOLVITUR SE- 
 cundum modum solventis; quicquid recipi- 
 tur, recipitur secundum modum recipientis. 
 
 Whatever money is paid is paid according 
 to the direction of the payor; whatever 
 money is received is received according to 
 that of the recipient. 2 Vern. 606; Broom, 
 Leg. Max. 810. 
 
 QUICUNQUE HABET JURISDICTIONEM 
 ordinariam est illius loci ordinarius. Who- 
 ever has an ordinary jurisdiction is ordinary 
 of that place. Co. Litt. 344. 
 
 QUICUNQUE JUSSU JUDICIS ALIQUID 
 fecerit non videtur Jolo malo fecisse, quia 
 parere necesse est. Whoever does anything 
 by the command of a judge is not reckoned 
 to have done it with an evil intent, because 
 it is necessary to obey. 10 Coke, 71. 
 
 QUID JURIS CLAMAT(Law Lat. what right 
 
 he claims). In old English practice. A writ 
 which lay for the grantee of a reversion 
 or remainder, where the particular tenant 
 would not attorn, for the purpose of com- 
 pelling him. Termes de la Ley; Cowell. 
 
 QUID PRO QUO (Lat.) What for what; 
 something for something. An equivalent, or 
 consideration; that which is given in ex- 
 change for another thing; that which is 
 done in consideration of another thing. Cow- 
 ell; 2 P. Wms. 219. 
 
 QUID SIT JUS, ET IN QUO CONSISTIT 
 injuria, legis est definire. What constitutes 
 right, and what injury, it is the business of 
 the law to declare. Co. Litt. 158b. 
 
 QUIDAM (Lat. some one; somebody). In 
 French law. A term used to express an un- 
 known person, or one who cannot be named. 
 
 A quidam is usually described by the fea- 
 tures of his face, the color of his hair, his 
 height, his clothing, and the like, in any 
 process which may be issued against him. 
 Merlin, Repert. 
 
 QUIDQUID ENIM SIVE DOLO ET CULPA 
 venditoris accidit in eo venditor securus est. 
 
 For concerning anything which occurs with- 
 out deceit and wrong on the part of the ven- 
 dor, the vendor is secure. 4 Pick. (Mass.) 
 198. 
 
 QUIET ENJOYMENT. The name of a cove- 
 nant in a lease, by which the lessor agrees 
 that the lessee shall peaceably enjoy the 
 premises leased. This covenant goes to the 
 
QUIETA NON MOVERE 
 
 (761) 
 
 QUO LIGATUR, ETC. 
 
 possession, and not to the title. 3 Johns. 
 (N. Y.) 471; 5 Johns. (N. Y.) 120; 2 Dev. 
 (N. C.) 388; 3 Dev. (N. C.) 200. A covenant 
 for quiet enjoyment does not extend as far 
 as a covenant of warranty. 1 Aik. (Vt.) 
 233. 
 
 The covenant for quiet enjoyment is 
 broken only by an entry, or unlawful expul- 
 sion from, or some actual disturbance in, 
 the possession. 3 Johns. (N. Y.) 471; 8 
 Johns. (N. Y.) 483; 7 Wend. (N. Y.) 281; 2 
 Hill (N. Y.) 105; 9 Mete. (Mass.) 63; 4 
 Whart. (Pa.) 86; 4 Cow. (N. Y.) 340. But 
 the tortious entry of the covenantor, without 
 title, is a breach of the covenant for quiet 
 enjoyment. 7 Johns. (N. Y.) 376. 
 
 QUIETA NON MOVERE. Not to unsettle 
 things which are established. 28 Barb. (N. 
 Y.) 9, 22. 
 
 QUIETARE (Law Lat.) To quit, acquit, 
 discharge, or save harmless. A formal word 
 in old deeds of donation and other convey- 
 ances. Cowell. 
 
 QUIETE CLAMARE, or QUIETUM CLA- 
 
 mare. To quitclaim or renounce all preten- 
 tensions of right and title. Cowell; Fleta. 
 
 QUIETUS (Lat. freed or acquitted). 
 
 In English Law. A discharge; an ac- 
 quittance. 
 
 An instrument by the clerk of the pipe 
 and auditors in the exchequer, as proof of 
 their acquittance or discharge as account- 
 ants. Cowell. 
 
 Discharge of a judge or attorney general. 
 3 Mod. 99. 
 
 In American Law. The discharge of 
 
 an executor by the probate court. 4 Mason 
 (U. S.) 131. 
 
 QUIETUS REDDITUS. In old English 
 law. Quit rent ((?. v.) Spelman. 
 
 QUILIBET POTEST RENUNCIARE JURI 
 pro se inducto. Any one may renounce a 
 law introduced for his own benefit. To this 
 rule there are some exceptions. See 1 Bouv. 
 Inst, note 83; 3 Curt. C. C. (U. S.) 393; 1 
 Exch. 657. 
 
 QUINQUE PORTUS. The Cinque Ports 
 (g. V.) 
 
 QUINQUEPARTITE. In five parts. 
 
 QUINSIEME, or QUINZIME (Law Fr. and 
 Bng.) In old English law. A fifteenth; a 
 tax so called. Cowell. See "Fifteenths." 
 
 QUINTO EXACTUS (Lat.) In old English 
 law. The fifth call or last requisition of a 
 defendant sued to outlawry. 
 
 QUIRE OF DOVER. In English law. A 
 record in the exchequer, showing the ten- 
 ures for guarding and repairing Dover Cas- 
 tle, and determining the services of the 
 Cinque Ports. 3 How. St. Tr. 868. 
 
 QUIRITARIAN OWNERSHIP. In Roman 
 law'. Ownership in the strict forms of law; 
 legal title, as distinguished from the equi- 
 table title known as "Bonitarian ownership." 
 
 QUISQUIS EST QUI VELIT JURIS CON- 
 sultus haberl, continuet studlum, velit a 
 quocunque doceri. Whoever wishes to be 
 held a jurisconsult, let him continually 
 study, and desire to be taught by everybody. 
 
 QUISQUIS PRAESUMITUR BONUS; ET 
 semper In dubils pro reo respondendum. 
 Every one is presumed good; ana in doubt- 
 ful cases the resolution should be ever for 
 the accused. 
 
 QUIT RENT. A rent paid by the tenant 
 of the freehold, by which he goes quit and 
 free, — that is, discharged from any other 
 rent. 2 Bl. Comm. 42. 
 
 In England, quit rents were rents reserved 
 to the king or a proprietor, on an absolute 
 grant of waste land, for which a price in 
 gross was at first paid, and a mere nominal 
 rent reserved as a feudal acknowledgment 
 of tenure. Inasmuch as no rent of this de- 
 scription can exist in the United States, 
 when a quit rent is spoken of, some other 
 interest must be intended. 5 Call (Va.) 364. 
 A perpetual rent reserved on a conveyance 
 in fee simple is sometimes known by the 
 name of "quit rent" in Massachusetts. See 
 "Ground Rent;" "Rent." 
 
 QUITCLAIM. In conveyancing. A form of 
 deed of the nature of a release, containing 
 words of grant as well as release. 2 Washb. 
 Real Prop. 606. 
 
 The term is in constant and general use 
 in American law to denote a deed substan- 
 tially the same as a release in English law. 
 It presupposes a previous or precedent con- 
 veyance, or a subsisting estate and posses- 
 sion. Thornton, Conv. 44. It is a conveyance 
 at common law, but differs from a releas? 
 in that it is regarded as an original con- 
 veyance in American law, at least in some 
 states. 6 Pick. (Mass.) 499; 14 Pick. 
 (Mass.) 374; 3 Conn. 398; 9 Ohio, 96; 5 111. 
 117; Rev. St. Me. c. 73, § 14; Code Miss. 
 1857, p. 309, art. 17. The operative words 
 are "remise, release, and forever quitclaim." 
 Thornton, Conv. 44. Covenants of warranty 
 against incumbrances by the grantor are 
 usually added. 
 
 QUITE CLAMAUNCE (Law Pr.) Quit- 
 claim. Britt. c. 85. 
 
 QUITTANCE. A discharge or release ; ab- 
 breviated from "acquittance." 
 
 QUO ANIMO (Lat. with what intention). 
 The intent; the mind with which a thing 
 has been done; as, the quo animo with which 
 the words were spoken may be shown by 
 the proof of conversations of the defendant 
 relating to the original defamation. 19 
 Wend. (N. Y.) 296. 
 
 QUO JURE, WRIT OF. In English law. 
 The name of a writ commanding the defend- 
 ant to show by what right he demands com- 
 mon of pasture in the land of the complain- 
 ant who claims to have a tee in the same. 
 Fitzh. Nat. Brev. 299. 
 
 QUO LIGATUR, EO DISSOLVITUR. By 
 
 the same mode by which a thing is bound, 
 by that is it released. 2 Rolle, 21. 
 
.QUO MINUS 
 
 (762) 
 
 QUOD COMPUTET 
 
 QUO MINUS (Lat.) The name of a writ. 
 In England, when the king's debtor is sued 
 in the court of the exchequer, he may have 
 a writ quo minus by which he avers the 
 wrong done by him by defendant, quo minus 
 sufflciens. existit (by which he Is less able) 
 to pay the king's debt. This was originally 
 necessary to give jurisdiction to the court 
 of exchequer. 
 
 QUO MODd QUID CONSTITUITUR EO- 
 dem modo dissolvitur. In the same manner 
 by which anything is constituted, by that it 
 is dissolved. Jenk. Cent. Cas. 74. 
 
 QUO WARRANTO (Lat. by what author- 
 ity). 
 
 In Old Practice. The name of a writ 
 
 (and also of the whole pleading) by which 
 the government commences an action to re- 
 cover an office or franchise from the person 
 or corporation in possession of it. 
 
 The writ commands the sheriff to summon 
 the defendant to appear before the court to 
 which it is returnable, to show {quo war- 
 ranto) by what authority he claims the office 
 or franchise. It was a writ of right, a civil 
 remedy to try the mere right to the fran- 
 chise or office, where the person in posses- 
 sion never had a right to it, or has forfeited 
 it by neglect or abuse. 3 Bl. Comm. 262, 263. 
 
 The action of quo warranto was prescribed 
 by the statute of Gloucester (6 Edw. I), and 
 is a limitation upon the royal prerogative. 
 Before this statute, the king, by virtue of 
 his prerogative, sent commissions over the 
 kingdom to inquire into the right to all 
 franchises, quo jure et quore nomine illi reti- 
 nent, etc.; and, as they were grants from the 
 crown, if those in possession of them could 
 not show a charter, the franchises were seiz- 
 ed into the king's hands without any judicial 
 proceeding. Like all other original civil 
 writs, the writ of quo warranto issued out of 
 chancery, and was returnable alternatively 
 before the king's bench or justices in eyre. 
 2 Inst. 277-283, 494-499; 2 Term R. 549. 
 See 4 Term R. 381; 2 Strange, 819, 1196. 
 
 In Modern Practice. The ;writ of quo 
 
 warranto has given place to an information 
 in the nature of quo warranto. 3 Bl. Comm. 
 263i 1 Serg. & R. (Pa.) 382; 58 N. H. 113. 
 Such informations ordinarily issue in the 
 name of the attorney general, either ex of- 
 ficio, or on the relation of some private per- 
 son. 
 
 The remedy by quo warranto is the proper 
 one to try title to public (1 Ark. 279; 33 
 Miss. 509) or corporate office (20 Fla. 784; 
 61 Pa. 339), or to revoke a charter or fran- 
 chise (8 Vt. 489; 45 Wis. 579). 
 
 The judgment on an information in the 
 nature of quo warranto is not punitive, but 
 extends only to ouster from the office or 
 franchise usurped. 3 Bl. Comm. 263; 4 Wis. 
 567. 
 
 QUOAD HOC (Lat. as to this; with respect 
 to this). A term frequently used to signify, 
 as to the thing named, the law is so and so. 
 
 QUOCUMQUE MODO VELIT, QUOCUM- 
 que modo possit. In any way he wishes, in 
 any way he can. 14 Johns. (N. Y.) 484, 492. 
 
 QUOD A QUOQUE POENAE NOMINE, 
 exactum est id eldem restituere nemo cogi- 
 tur. That which has been exacted as a pen- 
 alty no one is obliged to restore. Dig. 50. 
 17. 46. 
 
 QUOD AB INITIO NON VALET, IN TRAC- 
 tu temporis non convalescet. What is not 
 good in the beginning cannot be rendered, 
 good by time. Merlin, Repert. verb. Regie 
 de Droit. This, though true In general, is 
 not universally so. 4 Coke, 26; Broom, Leg. 
 Max. (3d London Ed.) 166, 172, note. 
 
 QUOD AD JUS NATURALE ATTINET, 
 omnes homines aequales sunt. All men are 
 equal as far as the natural law is concerned. 
 Dig. 50. 17. 32. 
 
 QUOD AEDIFICATUR IN AREA LEGATA 
 cedit legato. Whatever is built upon land 
 given by will passes with the gift of the 
 land. Amos & F. Pixt. (2d Ed.) 246; Broom^ 
 Leg. Max. (3d London Ed.) 377. 
 
 QUOD ALIAS BONUM ET JUSTUM EST, 
 si per, vim vel fraudem petatur, malum'et 
 injustum efficitur. What is otherwise good 
 and just, if sought by force or fraud, be- 
 comes bad and unjust. 3 Coke, 78. 
 
 quod'alias non fuit licitum ne- 
 
 cessitas licitum facit. Necessity makes that 
 lawful which otherwise were unlawful. 
 Pleta, lib. 5, c. 23, § 14. 
 
 QUOD APPROBO NON REPROBO. What 
 I accept I do not reject. Broom, Leg. Max. 
 (3d London Ed.) 636. 
 
 QUOD ATTINET AD JUS CIVILE, SERVI 
 pro nullis habentur, non tamen et jure na- 
 turali, quia, quod ad jus naturale attinet, 
 omnes homines aequali sunt. So far as the 
 civil law is concerned, slaves are not reck- 
 oned as persons, but not so by natural law, 
 for, so far as regards natural law, all men 
 are equal. Dig. 50. 17. 32. 
 
 QUOD BILLA CASSETUR. That the bill 
 be quashed. The common-law form of a 
 judgment sustaining a plea in abatement, 
 where the proceeding is by bill, i e., by a 
 capias instead of by original writ. 
 
 QUOD CLERICI BENEFICIATI DE CAN- 
 
 ceilaria. A writ to exempt a clerk of the 
 chancery from the contribution towards the 
 proctors of the clergy in parliament, etc. 
 Reg. Grig. 261. 
 
 QUOD CLERICI NON ELIGANTUR IN OF- 
 ficio ballivi, etc. A writ which lay for a clerk 
 who, by reason of some land he' had, was 
 made, or was about to be made, bailiff, bea- 
 dle, reeve, or some such officer, to obtain 
 exemption from serving the office. Reg. 
 Grig. 187. 
 
 QUOD COMPUTET (Lat. that he account). 
 The name of an interlocutory judgment in 
 an action of account render. Also, the name 
 of a decree in the case of creditors' bills 
 against executors or administrators. Suc'i a 
 decree directs the master to take the ac- 
 
QUOD CONSTAT, ETC. 
 
 (763) 
 
 QUOD JUSSU 
 
 counts between the deceased and all his cred- 
 itors, to cause the creditors, upon due and 
 public notice, to come before him to prove 
 their debts, at a certain place and within 
 a limited period, and also directs the master 
 to take an account of all personal estate of 
 the deceased in the hands of the executor 
 or administrator. Story, Eq. Jur. § 548. 
 See "Judgment." 
 
 QUOD CONSTAT CLARE, NON DEBET 
 
 verifidari. What is clearly apparent need 
 not be proved. 10 Mod. 150. 
 
 QUOD CONSTAT CURIAE OPERE TES- 
 
 tium non indiget. What appears to the court 
 needs not the help of witnesses. 2 Inst. 662. 
 
 QUOD CONTRA JURIS RATIONEM RE- 
 ceptum est, non est producendum ad conse- 
 quentias. What has been admitted as;ainst 
 the reason of the law ought not to be drawn 
 into precedents. Dig. 50. 17. 141; 12 Coke, 
 75. 
 
 QUOD CONTRA LEGEM FIT, PRO IN- 
 
 fecto habetur. What is done contrary to the 
 law is considered as not done. 4 Coke, 31. 
 No one can derive any advantage from such 
 an act. 
 
 QUOD CUM (Lat.) In pleading. For that 
 whereas. A form of introducing matter of 
 inducement in those actions in which intro- 
 ductory matter is allowed to explain the 
 nature of the claim; as, assumpsit and case. 
 Hardr. 1; 2 Show, 180. 
 
 This form is not allowable to introduce 
 the matter which constitutes the gravamen 
 of the charge, as such matter must be stated 
 by positive averment, while quod cum in- 
 troduces the matter which depends upon it 
 by way of recital merely. Hence, in those 
 actions, as trespass vi et armis, in which 
 the complaint is stated without matter of 
 inducement, quod cum cannot be properly 
 used. 2 Bulst. 214. But its improper use 
 is cured by verdict. 1 Browne (Pa.) 68; 
 Comyn, Dig. "Pleader" (C 86). 
 
 QUOD DATUM EST ECCLESIAE, DA- 
 tum est Deo. What is given to the church is 
 given to God. 2 Inst. 590. 
 
 QUOD DEMONSTRANDI CAUSA ADDI- 
 tur rei satis demonstratae, frustra fit. What 
 is added to a thing sufficiently palpable, for 
 the purpose of demonstration, is vain. 10 
 Coke, 113. 
 
 QUOD DUBITAS, NE FECERIS. When 
 you doubt about a thing, do not do it. 1 
 Hale, P. C. 310. 
 
 QUOD El DEFORCEAT (Lat.) In English 
 law. The name of a writ given by St. 
 Westminster II. (13 Edw. I. c. 4), to the 
 owners of a particular estate, as for life, in 
 dower, by the curtesy, or in fee tail, who are 
 barred of the right of possession by a re- 
 covery had against them through their de- 
 fault or nonappearance in a possessory ac- 
 tion, by which the right was restored to 
 him who had been thus unwarily deforced 
 by his own default. 3 Bl. Comm. 193. 
 
 QUOD ENIM SEMEL AUT BIS EXISTIT, 
 praetereunt legislatores. That which never 
 happens but once or twice, legislators pass 
 by. Dig. 1. 3. 17. 
 
 QUOD EST EX NECESSITATE NUN- 
 quam introducitur, nisi quando necessarlum. 
 What is introduced of necessity is never in- 
 troduced except when necessary. 2 Rolle, 
 512. 
 
 QUOD EST INCONVENIENS, AUT CON- 
 tra rationem non permissum est in lege. 
 What is inconvenient or contrary to reason 
 is not allowed in law. Co. Litt. 178. 
 
 QUOD EST NECESSARIUM EST LICI- 
 tum. What is necessary is lawful. Jenk. 
 Cent. Cas. 76. 
 
 QUOD FACTUM EST, CUM IN OBSCURO 
 sit, ex affectione cujusque capit interpreta- 
 tionem. When there is doubt about an act 
 or expression, it receives interpretation from 
 the (known) feelings or affections of the 
 actor or writer. Dig. 50. 17. 168. 1. 
 
 QUOD FIERE DEBET FACILE PRAE- 
 
 sumitur. That is easily presumed which 
 ought to be done. Halk. Max. 153. 
 
 QUOD FIERI NON DEBET, FACTUM VA- 
 let. What ought not to be done, when done, 
 is valid. 5 Coke, 38; 12 Mod. 438; 6 Mees. 
 & W. 58; 9 Mees. & W. 636. 
 
 QUOD FUIT CONCESSUM. Which was 
 granted. 
 
 QUOD IN JURE SCRIPTO "JUS" APPEL- 
 latur, id in lege Angliae "rectum" esse dici- 
 tur. What in the civil law is called "jus," in 
 the law of England is said to be "rectum" 
 (right). Co. Litt. 260; Fleta, lib. 6, c. 1, 
 § 1. 
 
 QUOD IN MINORI VALET, VALEBIT IN 
 major! ; et quoa in majori non valet, nee 
 valebit in minor!. What avails In the less 
 will avail in the greater; and what will not 
 avail in the greater will not avail in the 
 less. Co. Litt. 260. 
 
 QUOD IN UNO SIMILIUM VALET, VA- 
 lebit In altere. What avails in one of two 
 similar things will avail in the other. Co. 
 Litt. 191. 
 
 QUOD INCONSULTO FECI M US, CON- 
 sultius revocemus. What is done without 
 consideration or reflection, upon better con- 
 sideration we should revoke or undo. Jenk. 
 Cent. Cas. 116. 
 
 QUOD INITIO VITIOSUM EST, NON Po- 
 test tractu temporis convalescere. Time can- 
 not render valid an act void in its origin. 
 Dig. 50. 17. 29. 
 
 QUOD IPSIS, QUI CONTRAXERUNT, OB- 
 stat; et successoribus eorum obstabit. That 
 which bars those who have contracted will 
 bar their successors also. Dig. 50. 17. 103. 
 
 QUOD JUSSU (Lat.) In civil law. The 
 name of an action given to one who had con- 
 
QUOD JUSSU, ETC. 
 
 (764) 
 
 QUOD PERMITTAT, ETC. 
 
 tracted witli a Son or slave, by order of the 
 father or master, to compel such father or 
 master to stand to the agreement. Halifax, 
 Civ. Law, bk. 3, c. 2, No. 3; Inst. 4. 7. 1; 
 Dig. 15. 4. 
 
 QUOD JUSSU ALTERIUS SOLVITUR 
 pro eo est quasi ipsi solutum esset. That 
 which is paid by the order of another is, 
 so far as such person is concerned, as if it 
 had been paid to himself. Dig. 50. 17. 180. 
 
 QUO LIGATUR, EO DISSOLVITUR. Asa 
 
 thing is bound, so it is unbound. 2 Rolle, 
 21. 
 
 QUOD MEUM EST, SINE FACTO SIVE 
 defectu nostro, amitti seu in alium trans- 
 ferri non potest. That which is ours cannot 
 be lost or transferred to another without 
 our own act or default. 8 Coke, 92; Broom, 
 Leg. Max. (3d London Ed.) 415; 1 Prest. 
 Abstr. 147, 318. 
 
 QUOD MEUM EST SINE ME AUFERRI 
 non potest. What is mine cannot be taken 
 away without my consent. Jenk. Cent. Cas. 
 251. But see "Eminent Domain." 
 
 QUOD MINUS EST IN OBLIGATIONEM 
 videtur deductum. That which is the less is 
 held to be imported into the contract; e. g., 
 A. offers to hire B.'s house at six hundred 
 dollars at the same time B. offers to let it 
 for five hundred dollars; the contract is for 
 five hundred dollars. 1 Story, Cont. (4th 
 Ed.) 481. 
 
 QUOD NATURALIS RATIO INTER OM- 
 nes homines constituit, vocatur jus gentium. 
 That which natural reason has established 
 among all men is called the law of nations. 
 Dig. 1. L 9; Inst. 1. 2. 1; 1 Bl. Comm. 43. 
 
 QUOD NECESSARIE INTELLIGITUR ID 
 non deest. What is necessarily understood 
 is not wanting. 1 Bulst. 71. 
 
 QUOD NECESSITAS COGIT, DEFENDIT. 
 
 What necessity forces, it justifies. Hale, P. 
 C. 54. 
 
 QUOD NON APPARET NON ESJ, ET 
 non apparet judicialiter ante judicium. What 
 appears not does not exist, and nothing ap- 
 pears judicially before judgment. 2 Inst. 
 479; Jenk. Cent. Cas. 207. 
 
 QUOD NON CAPIT CHRISTUS, CAPIT 
 fiscus. What the church does not take, the 
 treasury takes. Y. B. 19 Hen. VI. 1. 
 
 QUOD NON FUIT NEGATUM (Law Lat. 
 which was not denied). A phrase found in 
 the old reports. Latch, 213. Otherwise 
 stated quod nemo negavit, which no one de- 
 nied. 
 
 QUOD NON HABET PRINCIPIUM NON 
 habet finum. What has no beginning has 
 no end. Co. Litt. 345; Broom, Leg. Max. (3d 
 London Ed.) 170, 171. 
 
 QUOD NON LEGITUR, NON CREDITUR. 
 What is not read is not believed. 4 Coke, 
 S04. 
 
 QUOD NON VALET IN PRINCIPALIA, IN 
 accessoria seu consequentia non valebit; et 
 quod non valet in magis propinquo, non va- 
 lebit in magis remote. What is not good as 
 to things principal will not be good as to 
 accessories or consequences; and what is 
 not of force as regards things near will not 
 be of force as to things remote. 8 Coke, 78. 
 
 QUOD NOTA (Lat.) Which note; which 
 mark. A reporter's note in the old books, 
 directing attention to a point or rule. Dy- 
 er, 23. 
 
 QUOD NULLIUS ESSE POTEST ID UT 
 alicujus fieret nulla obligatio valet efficere. 
 No agreement can avail to make that the 
 property of any one which cannot be ac- 
 quired as property. Dig. 50. 17. 182. 
 
 QUOD NULLIUS EST, EST DOMINI RE- 
 gis. That which belongs to nobody belongs 
 to our lord the king. Fleta, lib. 3; Broom, 
 Leg. Max. (3d London Ed.) 317; Bac. Abr. 
 "Prerogative" (B) ; 2 Bl. Comm. 260. 
 
 QUOD NULLIUS EST ID RATIONE NA- 
 
 turali occupanti conceditur. What belongs 
 to no one, by natural reason belongs to the 
 first occupant. Inst. 2. 1. 12; 1 Bouv. Inst, 
 note 491; Broom, Leg. Max. (3d London Ed.) 
 316. 
 
 QUOD NULLUM EST NULLUM PRODU- 
 cit effectum. That which is null produces no 
 effect. Tray. Lat. Max. 519. 
 
 QUOD OMNES TANGIT, AB OMNIBUS 
 debet supportari. That which concerns all 
 ought to be supported by all. 3 How. St. 
 Tr. 818, 1087. 
 
 QUOD PARTES REPLACITENT. (Lat. 
 that the parties do replead). The form of 
 the judgment on award of a repleader. 2 
 Salk. 579. 
 
 QUOD PARTITIO FIAT. See "Judgment." 
 
 QUOD PENDET, NON EST PRO EO, 
 quasi sit. What is in suspense is considered 
 as not existing during such suspense. Dig. 50. 
 17. 169. 1. 
 
 QUOD PER ME NON POSSUM, NEC PER 
 alium. What I cannot do in person, I can- 
 not do through the agency of another. 4 
 Coke, 24b; 11 Coke, 87a. 
 
 QUOD PER RECORDUM PROBATUM 
 non debet esse negatum. What is proved by 
 the record ought not to be denied. 
 
 QUOD PERMITTAT (Lat.) In English 
 law. That he permit. The name of a writ 
 which lies, for the heir of him who is dis- 
 seised of his common of pasture, against the 
 heir of the disseisor, he being dead. Termes 
 de la Ley. 
 
 QUOD PERMITTAT PROSTERNERE 
 
 (Lat. that he give leave to demolish). In 
 English law. The name of a writ which 
 commands the defendant to permit the plain- 
 tiff to abate the nuisance of which complaint 
 is made, or otherwise to appear in court and 
 
QUOD POPULUS, ETC. 
 
 (765) 
 
 QUONIAM ATTAOHIAMENTA 
 
 to show cause why he will not. On proof of 
 the facts, the plaintiff is entitled to have 
 judgment to abate the nuisance and to re- 
 cover damages. This proceeding, on account 
 of its tediousness and expense, has given 
 way to a special action on the case. 
 
 QUOD POPULUS POSTREMUM JUSSIT, 
 id jus ratum esto. What the people have last 
 enacted, let that be the established law. 1 
 Bl. Comm. 89. 
 
 QUOD PRIMUM EST INTENTIONE UL- 
 timum est in operatione. That which is first 
 in intention is last in operation. Bac. Max. 
 
 QUOD PRINCIPI PLACUIT LEGIS HA- 
 bet vigorem. That which has pleased the 
 prince has the force of law. The emperor's 
 pleasure has the force of law. Dig. 1. 4. 1; 
 Inst. 1. 2. 6. A celebrated maxim of Imperial 
 law. 
 
 QUOD PRINCIPI PLACUIT, LEGIS HA- 
 bet rigorem; utpote cum lege regia, quae de 
 imperio ejus lata est, populus ei et in eum 
 omne suum imperium et potestatem conferat. 
 The will of the emperor has the force of law ; 
 for, by the royal law which has been made 
 concerning his authority, the people has con- 
 ferred upon him all its own sovereignty and 
 power. Dig. 1. 4. 1; Inst. 1. 2. 1; Fleta, lib. 
 1, c. 17; § 7, Bracton, 107; Seld. Diss, ad 
 Flet. c. 3, §§ 2-5. 
 
 QUOD PRiUS EST VERIUS EST; ET 
 quod prius est tempore potius est jure. What 
 is first is truest; and what comes first in 
 time is best in law. Co. Litt. 347. 
 
 QUOD PRO IVIINORE LICITUIVI EST ET 
 pro majore licitum est. What is lawful in 
 the less is lawful in the greater. 8 Coke, 43. 
 
 QUOD PROSTRAVIT (Lat.) The name of 
 a judgment upon an indictment for a nui- 
 sance, that the defendant abate such nui- 
 sance. 
 
 QUOD PURE DEBETUR PRAESENTI 
 die debetur. That which is due uncondition- 
 ally is due now. Tray. Leg. Max. 519. 
 
 QUOD QUIS EX CULPA SUA DAMNUM 
 sentit, non intelligitur damnum sentire. He 
 who suffers a damage by his own fault is not 
 held to suffer damage. Dig. 50. 17. 203. 
 
 QUOD QUIS SCIENS INDEBITUM DEDIT 
 hae mente, ut postea repeteret, repetere non 
 potest. What one has paid knowing it not to 
 be due, with the intention of recovering it 
 back, he cannot recover back. Dig. 2. 6. 50. 
 
 QUOD QUISQUIS NORIT IN HOC SE EX- 
 
 erceat. Let every one employ himself in 
 what he knows. 11 Coke, 10. 
 
 QUOD RECUPERET (Lat. that he recov- 
 er). The form of a judgment that the plain- 
 tiff do recover. See "Judgment." 
 
 QUOD REIV1EDIO DESTITUITUR IPSA 
 re valet si culpa absit. What is without a 
 remedy is by that very fact valid if there be 
 no fault. Bac. Max. reg. 9; 3 Bl. Comm. 20. 
 
 QUOD SEIVIEL AUT BIS EXISTIT PRAE- 
 tereunt legislatores. Legislators pass over 
 what happens (only) once or twice. Dig. 1. 
 3. 6; Broom, Leg. Max. (3d London Ed.) 45. 
 
 QUOD SEIVIEL M E U M EST AMPLIUS 
 meum esse non potest. What is or\r'p nine 
 cannot be mine more completely. Co. Litt. 
 49b; Shep. Touch. 212; Broom, Leg. Max. 
 (3d London Ed.; 415, note. 
 
 QUOD SEMEL PLACUIT IN ELECTIONS, 
 amplius displicere non potest. That which, 
 in making his election, a man has once been 
 pleased to choose, he cannot afterwards quar- 
 rel with. Co. Litt. 146. 
 
 QUOD SI CONTINGAT (Law Lat. that if 
 it happen). Words by which a condition 
 might formerly be created In a deed. Litt. 
 § 330. 
 
 QUOD SOLO INAEDIFICATUR SOLO CE- 
 
 dit. Whatever is built on the soil is an ac- 
 cessory of the soil. Inst. 2. 1. 29; 16 Mass. 
 449; 2 Bouv. Inst, note 1571. 
 
 QUOD SUB CERTA FORIVIA CONCES- 
 sum vel reservatum est, non trahitur ad va- 
 lorem vel compensationem. That which is 
 granted or reserved under a certain form is 
 not to be drawn into valuation or compen- 
 sation. Bac. Max. reg. 4. 
 
 QUOD SUBINTELLIGITUR NON DEEST. 
 What is understood is not wanting. 2 Ld. 
 Raym. 832. 
 
 QUOD TACITE INTELLIGITUR DEESSE 
 non videtur. What is tacitly understood does 
 not appear to be wanting. 4 Coke, 22. 
 
 QUOD VANUM ET INUTILE EST, LEX 
 
 non re?|uirit. The law does not require what 
 is vain and useless. Co. Litt. 319. 
 
 QUOD VERO CONTRA RATIONEM JU- 
 ris receptum esl, non est producendum ad 
 consequentias. But that which has been ad- 
 mitted contrary to the reason of the law 
 ought not to be drawn into precedents. Dig. 
 1. 3. 14; Broom, Leg. Max. (3d London Ed.) 
 150. 
 
 QUOD VOLUIT NON DIXIT. He did not 
 say what he intended to. 1 Kent, Comm. 
 468, note; 4 Maule & S. 522, arg.; 1 Johns. 
 Ch. (N. Y.) ^35. 
 
 QUODCUNQUE ALIQUIS OB TUTELAM 
 corporis suit fecerit jure id fecisse videtur. 
 Whatever one does in defense of his person, 
 that he is considered to have done legally. 
 2 Inst. 590. 
 
 QUODQUE DISSOLVITUREODEM MODO 
 
 quo ligatur. In the same manner that a thing 
 is bound, it is unbound. 2 RoUe, 39; Broom, 
 Leg. Max. (3d London Ed.) 788; 2 Man. & 
 G. 729. 
 
 QUOIVIODO QUID CONSTITUITUR EO- 
 dem modo dissolvitur. In whatever mode a 
 thing is constituted, in the same manner is 
 it dissolved. Jenk. Cent. Cas. 74. 
 
 QUONIAIVI ATTACH I AMENTA (Law Lat.) 
 Since the attachments. One of the oldest 
 books in the Scotch law; so called from the 
 
QUORUM 
 
 (766) 
 
 QY 
 
 two first words of the volume. Bell, Diet. 
 Still sometimes cited in argument, in the 
 Scotch courts. 7 Wilson & S. 9. 
 
 QUORUM. Used substantively, quorum 
 signifies the number of persons belonging to 
 a legislative assembly, a corporation, so- 
 ciety, or other body, required to transact 
 business. There is a difference between an 
 act -done by a definite number of persons, and 
 one performed by an indefinite number. In 
 the first case, a majority is required to con- 
 stitute a quorum, unless the law expressly 
 directs that another number may make one. 
 88 Pa. St. 42; 9 Wend. (N. Y.) 394; 7 Cow.{N. 
 Y.) 402. In the latter case, any number who 
 may be present may act, the majority of 
 those present having, as in other cases, the 
 right to act. 1 Barn. & C. 492. 
 
 In the absence of special provision, a ma- 
 jority is a quorum (12 Mete. [Mass.] 99; 13 
 Ind. 581), but sometimes the law requires a 
 greater number thin a bare majority to form 
 a quorum. In such case, no quorum is pres- 
 ent until such a number convene. 
 
 In the absence of a rule of procedure to 
 the contrary, the presence of a quorum in a 
 legislative body can only be ascertained from 
 the votes recorded on the particular matter 
 submitted (117 N. C. 158); but a rule au- 
 thorizing the presiding officer to count mem- 
 bers present and not voting to make up a 
 quorum is within the power of a legislative 
 body (144 U. S. 1). 
 
 QUORUM PRAETEXTA, NEC AUGET 
 nee minuit sententiam, sed tantum confirmat 
 prae missa. "Quorum praetexta" neither in- 
 creases nor diminishes the meaning, but only 
 confirms that which went before. Plowd. 52. 
 
 QUORUM UNUS. One of the quorum. 
 In England it was formerly the practice to 
 appoint certain justices of the peace, one of 
 whom must be present for the transaction of 
 certain business, such justices being named 
 in the commissions of all the justices {quo- 
 rum aliquem cestrum A. B., 0. D., etc., unem 
 esse ■volumus) . Such justices were called "jus- 
 tices of the quorum." The present practice 
 is to name all the justices, so that the desig- 
 nation is of no practical importance. 
 
 QUOT. In Scotch law. The twentieth part 
 of the movables, computed without compu- 
 tation of debts, was so called. 
 
 Formerly the bishop was entitled, in all 
 confirmations, to the quot of the testament. 
 Brsk. Inst. 3. 9. 11. 
 
 QUOTA. A proportionate share of any- 
 thing required to be paid, supplied, or fur- 
 nished. 
 
 QUOTATION. The listed price bid, of- 
 fered, or paid for properties or commodi- 
 ties currently dealt in. 
 
 QUOTIENS DUBIA INTERPRETATIO Ll- 
 bertatis est, secundum libertatem respon- 
 dendum erit. Whenever there is a doubt be- 
 tween liberty and slavery, the decision must 
 be in favor of liberty. Dig. 50. 17. 20. 
 
 QUOTIENS IDEM SERMO DUAS SEN- 
 tentias exprimit, ea potissimum excipiatur, 
 
 quae re! gerendae aptior est. Whenever the 
 the same words express two meanings, that 
 is to be taken which is the "oetter fitted for 
 carrying out the proposed end. Dig. 50. 17. 
 67. 
 
 QUOTIES IN STIPULATIONIBUS AM- 
 bigua oratio est, commodissimum est id ac- 
 cipi quo res de quo agitur, in tuto sit. When- 
 ever in stipulations the expression is am- 
 biguous, it is most proper to give it that 
 interpretation by which the subject matter 
 may be in safety. Dig. 41. 1. 80; Id. 50. 16. 
 219. 
 
 QUOTIES IN VERBIS NULLA EST AM- 
 biguitas ibi nulla expositio contra verba fien- 
 da est. When there is no ambiguity in the 
 words, then no exposition contrary to the 
 words is to be made. Co. Lift. 147; Broom, 
 Leg. Max. (3d London Ed.) 850. 
 
 QUOTUPLEX (Lat.) Of how many kinds; 
 of how many fold. A term of frequent oc- 
 currence in Sheppard's Touchstone. Shep. 
 Touch. 37, 50, 117, 160, et passim. 
 
 QUOUSQUE. A Latin adverb, which sig- 
 liifles how long, how far, until. 
 
 In old conveyances, it is used as a word of 
 limitation. 10 Coke, 41. 
 
 In practice, it is the nanae of an execution 
 which is to have force until the deiendanc 
 shall do a certain thing. Of this kind is the 
 capias ad satisfacier.dvm, by virtue of which 
 the body of the defendant is taken into exei- 
 cution, and he is imprisoned until he shall 
 satisfy the execution. 3 Bouv. Insc. note 
 337L 
 
 QUOVIS MODO (Lat.) In whatever man- 
 ner. 10 East, 476. 
 
 QUUM (Lat.) When. 
 
 QUUM DE LUCRO DUORUM QUAERA- 
 tur, melior est conditio possidentis. When 
 the gain of one of two Is in question, the 
 condition of the possessor is the better. Dig. 
 50. 17. 126. 2. 
 
 QUUM IN TESTAMENTO AMBIGUE AUT 
 etiam perperam scriptum est, benigne inter- 
 pretari et secundum id quod credlbile et cog- 
 Itatum, credendum est. When in a will an 
 ambiguous or even an erroneous expression 
 occurs, it should be construed liberally, and 
 in accordance with what is thought the prob- 
 able meaning of the testator. Dig. 34. 5. 24; 
 Broom, Leg. Max. (3d London Ed.) 437. See 
 Brissonius, "Perperam." 
 
 QUUM (CUM) PRINCIPALIS CAUSA 
 non consistit ne ea quiden quae sequuntur 
 locum habent. When the principal does not 
 hold its ground, neither do the accessories 
 find place. Dig. 50. 17. 129. 1; Broom, Leg. 
 Max. (3d London Ed.) 438; 1 Poth. Obi. 413. 
 
 QUUM QUOD AGO NON VALET UT AGO, 
 valeat quantum valere potest. When what I 
 do is of no force as to the purpose for 
 which I do it, let it be of force to as great 
 a degree as it can. 1 Vent. 216. 
 
 QY (Law Fr.) Who; which. Kelham. 
 
RACHAT 
 
 (767) 
 
 RANSOM 
 
 R 
 
 RACHAT (Fr.) Ransom; relief. Ord.Mar. 
 liv. 3, tit. 3, art. 19; Emerig. Tr. des Assur. 
 c. 12, § 21; Guyot, Inst. Feud. o. 5. 
 
 RACHATER (Law Fr.) To redeem; to re- 
 purchase, or buy back. Kelham. 
 
 RACHETUM (Fr. rocTtefer, to redeem) . In 
 Scotch law. Ransom; corresponding to Sax- 
 on weregild, a pecuniary composition for an 
 offense. Skene de Verb. Sign.; Jacob. 
 
 RACHlMBURGII.orRACHINBURGll (Law 
 Lat.) In old European law. Rachenburg- 
 «rs or Rakenburghs; judges among the Sali- 
 ans, Ripuarians, and some other nations of 
 Germany who sat with the count (comes) 
 in his court called mallum, and were gener- 
 ally associated with him in all matters. L. 
 Salic, tits. 52, 59; L. Ripuar. tit. 32, § 3; 
 Capit. Carol, lib. 5, c. 14; Spelman. The 
 word was found by Spelman in an old MS. 
 copy of the laws of Canute. Montesquieu 
 writes it rathivihurges. Esprit des Lois, liv. 
 30, c. 18. 
 
 RACK. An engine with which to torture a 
 supposed criminal, in order to extort a con 
 fession of his supposed crime, and the names 
 of his supposed accomplices. It is unknown 
 in the United States, but, known by the nick- 
 name of the "Duke of Exeter's Daughter," 
 was in use in England. Barr. Obs. St. 366; 
 12 Serg. & R. (Pa.) 227. 
 
 RACK RENT. In English law. The full 
 extended value of land left by lease, payable 
 by a tenant for life or years Wood, Inst. 
 192. 
 
 RADECHENISTRES. A word used in 
 Domesday Book, which Spelman interprets to 
 mean "freemen." Domesday Book, fol. 18, 
 tit. "Glowc. Berchelay ; " Spelman. 
 
 RADOUR. In French law. A term includ- 
 ing the repairs made to a ship, and a fresh 
 supply of furniture and victuals, munitions, 
 • and other provisions required for the voy- 
 age. Pardessus, note 602. 
 
 RAENCON (Law Fr.) A ransom, or fine. 
 Ou par ranceoun ou par amercement. Artie, 
 sup. Chart. 
 
 RAFFLE. A form of lottery by which the 
 price of an article is divided into shares, 
 and the article awarded by chance to one of 
 the shareholders. Cent. Diet. 
 
 RAGEMAN, or RAGMAN. A statute, so 
 called, of justices assigned by Edw. I. and 
 liis council, to go a circuit through all Eng- 
 land, and to hear and determine all com- 
 plaints of injuries done within five years 
 next before Michaelmas, in the fourth year 
 of his reign. Spelman. 
 
 RAGMAN'S ROLL.orRAGIMUND'S ROLL. 
 
 A roll, called from one Raglmund, or Ragi- 
 
 mont, a legate in Scotland, who, summoning 
 all the beneficed clergymen in that kingdom, 
 caused them on oath to give in the true value 
 of their benefices, according to which they 
 were afterwards taxed by the court of Rome. 
 Wharton. 
 
 RAILROAD, or RAILWAY. The terms 
 "railroad" and "railway" are synonymous. 
 30 Minn. 524. Their significance varies with 
 the context, being used sometimes to include 
 all appurtenances (46 N. J. Law, 289; 58 Pa. 
 St. 252), and sometimes as including only 
 the Immovable structure, graded and railed 
 for the use of trains (93 U. S. 442). Ordi- 
 narily, when used without qualifying words, 
 the term "railroad" means those railroads 
 whose motive power is steam, but in some 
 connections it has been held to include street 
 or horse railroads. 24 111. 52. 
 
 RAISE. To create; to bring into exist- 
 ence. The term is used in various senses, 
 thus, to "raise" a use is to create it; to 
 "raise" an issue is to file such a plea as to ' 
 make aa issue. Facts are said to "raise" a 
 presumption when they give rise thereto. 
 
 RAISING PORTIONS. A term used in old 
 English law for the charging of a devise to 
 one child of testator, with the payment of 
 certain sums to others. 
 
 RAN (Saxon). 
 Cowell. 
 
 Open theft or robbery. 
 
 RANGE. In the United States government 
 surveys of lands, the "townships" (g.v.) are 
 ranged in tiers east or west of a given me- 
 ridian, such ranges therefore being a row 
 of towns in a north and south direction. 
 The "towns" are tiers lying at right angles 
 to the ranges. 
 
 RANGER. A sworn officer of the forest to 
 inquire of trespasses, and to drive the beasts 
 of the forest out of the deforested ground 
 into the forest. Jacob. 
 
 RANK. The order or place in which cer- 
 tain officers are placed in the army and navy, 
 in relation to others. The term is some- 
 times applied to debts or securities to indi- 
 cate their precedence in respect to order of 
 payment. 
 
 In English Law. Excessive; too large 
 
 in amount; as a rank modus. 2 Bl. Comm. 
 30. 
 
 RANKING. In Scotch law. Determining 
 the order in which the debts of a bankrupt 
 ought to be paid. 
 
 RANSOM. A price of redemption of a 
 captive or prisoner of war, or of captured 
 property. 
 
 In Old English Law. A price paid for 
 
 the pardon of some great offense. It differs 
 
RANSOM BILL 
 
 (768)^ 
 
 RATIFICATION 
 
 from amercement in that it excuses from 
 corporal punishment. Cowell. 
 
 RANSOM BILL. A contract for payment 
 of ransom of a captured vessel, with stipu- 
 lations of safe-conduct, if she pursue a cer- 
 tain course and arrive in a certain time. If 
 found out of time or course, the safe-conduct 
 is void. Wheaton, Int. Law, 107*. The pay- 
 ment cannot be enforced in England, during 
 the war, by an action on the contract, but 
 can in this country. 1 Kent, Comm. 104, 
 105; 4 Wash. C. C. (U. S.) 141; 2 Gall. (U. 
 S.) 325. 
 
 RAPE. 
 
 In Criminal Law. Unlawful carnal 
 
 ' knowledge of a woman by force and without 
 her consent. 
 
 (1) Carnal knowledge is essential (67 
 Wis. 552), but by statute in most states, the 
 slightest penetration is enough ( see 45 Conn. 
 256; 102 N. Y. 234), though, at common law, 
 emission was essential (1 East, P. C. 439). 
 (2) The carnal knowledge must be un- 
 lawful; thus, forcible carnal knowledge by 
 a man of his wife against her will is not 
 rape. 1 Hale, P. C. 629. (3) The car- 
 nal knowledge must be by force, but con- 
 structive force, as by threats or intimi- 
 dation, is sufficient (39 Pla. 155; 45 
 Conn. 263; 139 Ind. 531); and where the 
 woman is insane or insensible, it has been 
 said that the force necessary to accomplish 
 the act is sufficient (53 Ark. 425; 50 Iowa, 
 189); but the weight of authority is that 
 fraud (2 Swan [Tenn.] 394; 6 Ala. 765), as 
 by personating the woman's husband (11 
 Cox, C. C. 191; 7 Conn. 54), will not take 
 the place of force (but see 94 Ind. 96). 
 (4) The carnal knowledge must be with- 
 out the woman's consent. The phrase 
 "against her will" is sometimes substituted, 
 but it means no more than "without her con- 
 sent." 22 Wis. 445; 25 Mich. 356. Unless 
 asleep or insensible (12 Cox, C. C. 311), or 
 intimidated by threats (9 Car. & P. 748), the 
 woman must resist "to the uttermost" (19 
 Wend. [N. Y.] 192; 13 Mich. 427), to the 
 point of inability longer to resist (59 N. Y. 
 374) ; and acquiescence, however tardy or re- 
 luctant, prevents the offense from being rape 
 (82 Va. 653; 124 111. 576). 
 
 In Old English Law. A division of a 
 
 county similar to a hundred, but oftentimes 
 containing in it more hundreds than one. 
 
 RAPE OF THE FOREST (Law Lat. raptus 
 forestae). In old English law. Trespass 
 committed in a forest by violence. Cowell; 
 Spelman; LL. Hen. I. c. 11. 
 
 RAPE REEVE. In English law. The chief 
 officer of a rape (g. v.) 1 Bl. Comm. 116. 
 
 RAPINA (Lat. from rapere, to drag, or car- 
 ry away forcibly). 
 
 In the Civil Law. The violent taking 
 
 from the person of another of money or 
 goods for the sake of gain; robbery from 
 the person. Halifax, Anal. bk. 2, c. 23, Nos. 
 1, 2; Heinec. Elem. Jur. Civ. lib. 4, tit. 2, 
 § 1071. 
 
 In Old English Law. Open and vio- 
 
 lent larceny from the person; robbery. St. 
 14 Car. II. c. 22; Cowell; 4 Bl. Comm. 242. 
 
 RAPTOR. In old English law, a ravisher. 
 
 RAPTU HAEREDIS. A writ for taking 
 away an heir holding in socage, of which 
 there were two sorts: One when the heir 
 was married; the other when he was not. 
 Reg. Orig. 163. 
 
 RAPUIT (Lat. from rapere, to ravish). In 
 old English law. Ravished. A technical 
 word in old indictments. 2 East, 30; Whar- 
 ton, Am. Crim. Law, § 401. 
 
 RASE (Law Lat. raseria; from Lat. rasus, 
 shaved or scraped). In old English law. 
 Strike; struck measure; that in which the 
 commodity measured was made even with 
 the top of the measure, by scraping or strik- 
 ing off all that was above it. An old ordi- 
 nance for bakers, brewers, etc., provided that 
 toll should be taken "by the rase, and not 
 by the heap or cantel." Cowell quotes the 
 provision, but strangely overlooks the mean- 
 ing it so clearly expresses, and makes rase 
 (raseria) to be "a measure of corn, now dis- 
 used." 
 
 RASURA (Law Lat; from Lat. radere, to 
 scrape). In old EInglish- law. A rasure. 
 Pleta, lib.. 4, c. 10, §§ 3, 4. 
 
 RASURE (Law Pr. rassure, rasoure; from 
 Lat. rasura, from radere, to scrape). A scrap- 
 ing off; the removal of one or more words 
 from an instrument, by scraping the writ- 
 ing off or out. One of the modes by which a 
 deed or other instrument may be avoided, 
 or rendered of no effect. 2 Bl. Comm. 308; 
 Shep. Touch. 55, 68, 71; Pleta, lib. 6, c. 29, 
 § 4. "Rasure" is properly distinguished 
 from "obliteration," which is effected by 
 marking out the writing with pen and ink, 
 or blotting it out by other means; but the 
 terms are sometimes used as synonymous. 
 See 18 Johns. (N. Y.) 499. 
 
 RASUS, or RASUM (Law Lat. from ra- 
 dere). In old English law. Rased; erased. 
 Pleta, lib. 2, c. 54, § 12. A rase; a measure 
 of onions, containing twenty flones, and each 
 flonis twenty-five heads. Pleta, lib. 2, c. 12, 
 § 12. 
 
 Struck; scraped off. Mensura rasa, struck 
 measure. Pleta, lib. 2, c. 82, § 1. 
 
 RATAM REM HABERE (Lat.) In the civ- 
 il law. To hold a thing ratified; to ratify 
 or confirm it {comproliare, agnoseere). Dig. 
 46. 8. 12. 1, et per tot. 
 
 RATE OF EXCHANGE. In commercial 
 law. The actual price at which a bill, drawn 
 in one country upon another country,- can 
 be bought or obtained in the fornjer country 
 at any given time. Story, Bills, § 31. 
 
 RATE TITHES. Tithes charged pro rata 
 on personal property kept within the parish 
 for less than a year. 
 
 RATIFICATION. An agreement 'o adopt 
 an act performed by another for us. 
 
 Express ratifications are those made in 
 
RATIHABITIO 
 
 (769) 
 
 RAVISHED 
 
 express and direct terms of assent. I mpUed 
 ratifications are such as the law presumes 
 from the acts of the principal; as, if Peter 
 buy goods for James, and the latter, know- 
 ing the fact, receive them and apply them 
 to his own use. 
 
 It is applied in the sense of "confirmation" 
 to various transactions, but it has been said 
 that it applies properly only to agency. 73 
 Me. 48-7. 
 
 RATIHABITIO (Lat. from cafHS, approved, 
 and habere, to hold). In civil and old Eng- 
 lish law. A holding as approved; approval 
 or ratification. 
 
 RATIHABITIO MANDATO AEQUIPARA- 
 tur. Ratification is equal to a command. 
 Dig. 46. 3. 12. 4; Broom, Leg. Max. (3d Lon- 
 don Ed.) 771; Story, Ag. (4th Ed.) 302. 
 
 RATIHABITION. Confirmation; approba- 
 tion of a contract; ratification. 
 
 RATING. 
 
 In Commerce. The estimate put on 
 
 the credit and financial resources of a per- 
 son. There are various institutions or per- 
 sons who furnish ratings. They are called 
 "mercantile agencies." 
 
 In Shipping. The order or class of a 
 
 vessel according to her magnitude or force. 
 
 RATIO (Lat.) A reason; a cause; a reck- 
 oning of an account. 
 
 RATIO DECIDENDI. The ground of de- 
 cision. 
 
 RATIO EST FORIVIALIS CAUSA CON- 
 suetudinis. Reason is the source and mold 
 of custom. 
 
 RATIO EST LEGIS ANIIVIA; MUTATA 
 legis ratione mutatur et lex. Reason is the 
 soul of the law; the reason of the law being 
 changed, the law is also changed. 7 Coke, 7. 
 
 RATIO EST RADIUS DIVINI LUIVIINIS. 
 Reason is a ray of divine light. Co. Litt. 232. 
 
 RATIO ET AUCTORITAS DUO CLARIS- 
 sima mundi lumina. Reason and authority 
 are the two brightest lights in the world. 4 
 Inst. 320. 
 
 RATIO IN JURE AEQUITAS INTEGRA. 
 
 Reason in law is perfect equity. 
 
 RATIO LEGIS. The reason or occasion of 
 a law; the occasion of making a law. Bl. 
 Law Tr. 3. 
 
 Grotius distinguishes between "ratio" and 
 "mens," the meaning or intent of a law. 
 
 RATIO LEGIS EST ANIIVIA LEGIs' The 
 reason of the law is the soul of the law. 
 Jenk. Cent. Cas. 45. 
 
 RATIO NON CLAUDITUR LOCO. Reason 
 is not confined to any place. 
 
 RATIO POTEST ALLEGARI DEFICIEN- 
 te lege, sed Vera et legalis et non apparens. 
 Reason may be alleged when the law is de- 
 fective, but it must be true and legal reason, 
 and not merely apparent. Co. Litt. 191. 
 
 RATIONABILE ESTOVERIUM. Alimony. 
 
 RATIONALIBUS DIVISIS.WRIT DE. The 
 
 name of a writ which lies properly when two 
 men have lands in several towns or hamlets, 
 so that the one is seised of the land in one 
 town or hamlet, and the other of the other 
 town or hamlet by himself, and they do not 
 know the bounds of the town or hamlet, nor 
 of their respective lands. This writ lies by 
 one against the other, and the object of it 
 is to fix the boundaries. Fitzh. Nat. Brev. 
 
 RATIONE (Lat.) By reason; on account. 
 
 Ratione impotentiae, on account of ina- 
 bility. A ground of qualified property in 
 some animals ferae naturae, as in the young 
 ones, while they are unable to fly or run. 
 
 2 Bl. Comm. 394; Hale, Anal. § xxvi. 
 Ratione loci, by reason of place. A ground 
 
 of ownership in rabbits and hares. Hale, 
 Anal. § xxvi. 
 
 Ratione privilegii, by reason of privilege. 
 A ground of ownership in birds or beasts of 
 warren. Hale, Anal. § xxvi. 
 
 Ratione soli, on account of the soil; with 
 reference to the soil. Said to be the ground 
 of ownership in bees. 2 Bl. Comm. 393. 
 
 Ratione tenurae, by reason of tenure; as 
 a consequence of tenure. 3 Bl. Comm. 230; 
 1 Maule & S. 435. A phrase in old pleading. 
 Not the same as "by reason of being owner 
 and proprietor." Le Blanc, J., 1 Maule & S. 
 441. Ratione tenurae implies ex vi termini, 
 something originally annexed to the hold- 
 ing. Id. 
 
 RATIONE IVIATERIAE (Lat.) By reason 
 of the subject matter. 
 
 RATIONE PERSONAE (Lat.) By reason 
 of the person concerned; from the character 
 of the person. 
 
 RATIONE TENURAE (Law Lat.) By rea- 
 son of tenure; as a consequence of tenure. 
 
 3 Bl. Comm. 230. 
 
 RATIONES. In old law. The pleadings in 
 a suit. Rationes exercere, or ad rationes 
 stare, to plead. 
 
 RATTENING. The act of trade unionists 
 in causing the tools, clothes, or other prop- 
 erty of a workman to be taken away or hid- 
 den, in order to compel him to join the union 
 or oease working. It is an offense punish- 
 able by fine or Imprisonment. 38 & 39 Vict, 
 c. 86, § 7. 
 
 RAUNSOM, or RAUNSOIVIE (Law Pr.) In 
 old English law. Ransom; a fine; a severe 
 kind of fine. Sur peyne de raunsome, on 
 pain of ransom. Britt. c. 11. Per raunsome 
 simple ou graund, solonc le fait, by an or- 
 dinary or a great ransom, according to the 
 fact. Id. Puny par prison et greve raun- 
 som. Id. c. 48. 
 
 RAVISHED. In pleading. A technical 
 word necessary in an indictment for rape. 
 
 No other word or circumlocution will an- 
 swer. The defendant should be charged with 
 having "feloniously ravished" the prosecu- 
 trix, or woman mentioned in the indictment. 
 Bac. Abr. "Indictment" (G 1); Comyn, Dig. 
 
RAVISHMENT 
 
 (770) 
 
 REAL, CONTRACT 
 
 "Indictment" (G 6); Hawk. P. C. 2, c. 25, 
 § 56; Cro. Car. 37; 1 Hale, P. C. 628; 2 Hale, 
 P. C. 184; Co. Litt. 184, note (p); 2 Inst. 
 180; 1 East, P. C. 447. The words "feloni- 
 ously did ravish and carnally know" imply 
 that the £i,ct was done forcibly and against 
 the will of the woman. 12 Serg. & R. (Pa.) 
 70. See 3 Chit. Crim. Law, 812. 
 
 RAVISHMENT. In criminal law. An un- 
 lawful taking of a woman, or of an heir in 
 ward; rape. 
 
 RAVISHHMENT DEGARD (LawFr.) An 
 abolished writ, which lay for a guardian by 
 knight's service or in socage, against a per- 
 son who took from him the body of his ward. 
 Pitzh. Nat. Brev. 140; 12 Car. II. c. 3. 
 
 RAVISHMENT OF WARD. In English 
 law. The marriage of an infant ward with- 
 out the consent of the guardian. It is pun- 
 ishable by St. Westminster II. c. 35. 
 
 RE (Lat.) In the matter of. 
 
 RE. FA. LO. An abbreviation of recordari 
 facias loquelam (q. v.) 
 
 RE, verbis, scripto, consensu, traditione, 
 Junctura, vestes sumere pacta solent. 
 From the thing [itself], from words, from 
 writing, from consent, from delivery, from 
 union, agreements usually take their vest- 
 ments. A couplet formerly in use, framed 
 to express (in aid of the memory) the six 
 different modes in which obligation might 
 be contracted, which were fancifully termed 
 its "vestments," or garments, that is, the 
 forms in which it was clothed. It is twice 
 quoted by Bracton, who explains the six 
 forms in detail. Bracton, fol. 16b; Id. fols. 
 99-101. It is thus expressed in the prose of 
 Britton: Obligation doit estre vestue de v. 
 maneres de garnementz ; de chose, de parole, 
 de escript, de unite de volounte, de bail, de 
 joynture. Britt. c. 28. It seems to be a 
 mere extension of the fourfold division of 
 the Institutes: Aut .re, aiit verbis, aiit Ut- 
 eris, ant consensu. Inst. 3. 14. 2. And see 
 Dig. 44. 7. 52. 
 
 REAL. 
 
 At Common Law. A term which Is ap- 
 plied to land in its most enlarged significa- 
 tion. "Real security," therefore, means the 
 security of mortgages or other incumbrances 
 affecting lands. 2 Atk. 806; 2 Ves. Sr. 547. 
 
 In Civil Law. That which relates to a 
 
 thing, whether it be movable or immovable, 
 lands or goods; thus, a "real injury" is one 
 which is done to a thing, as a trespass to 
 property, whether it be real or personal. In 
 the common-law sense. A real statute is one 
 which relates to a thing, in contradistinction 
 to such as relate to a person. 
 
 REAL ACTION. 
 
 In the Civil Law. One by which a per- 
 son seeks to recover his property which is 
 in the possession of another. Dig. 50. 16. 
 16. It is to be brought against the person 
 who has possession. 
 
 At Common Law. One brought for 
 
 the specific recovery of lands, tenements, or 
 hereditaments. Steph. PI. 3. ' 
 
 They are droitural when they are based 
 upon the right of property, and possessory 
 when based upon the right of possession. 
 They are either writs of right; writs of en- 
 try, which lie in the per, the per et cui, or 
 the post, upon disseisin, intrusion, or aliena- 
 tion; writs ancestral possessory, as mart 
 d'ancestor, aiel, iesaiel, cosinage, or nuper 
 ohiit. Comyn, Dig. "Actions" (D2). 
 
 These actions were always local, and were 
 to be brought in the county where the land 
 lay. Bracton, 189, 414. They are now pretty 
 generally laid aside in practice, upon ac- 
 count of the great nicety required in their 
 management, and the inconvenient length of 
 their process, — a much more expeditious 
 method of trying titles being since intro- 
 duced by other actions, personal and mixed. 
 See Stearns, Real Actions; Booth, Real Ac- 
 tions; Bac. Abr. "Actions;" Comyn, Dig. 
 "Actions;" 3 Bl. Comm. 118. 
 
 REAL ASSETS. Lands or real estate In 
 the hands of an heir, chargeable with the 
 payment of the debts of the ancestor. 2 Bl. 
 Comm. 244, 302; 2 Williams, Ex'rs, 436. See 
 
 "Assets." 
 
 REAL BURDEN. In Scotch law. Where 
 a right to lands is expressly granted under 
 the burden of a specific sum, which is de- 
 clared a burden on the lands themselves, or 
 where the right is declared null if the sum 
 be not paid, and where the amount of the 
 sum, and the name of the creditor in It, can 
 be discovered from the records, the burden 
 is said to be real. Bell, Diet. 
 
 REAL CHATTELS. See "Chattel." 
 
 REAL CHYMIN (Law Fr.) In old English 
 law. The royal way; the king's highway 
 {regia via). Y. B. P. 6 Edw. III. 48. 
 
 REAL COMPOSITION. An agreement 
 made, in England, between the owner of 
 land and the incumbent of a pari^sh, with the 
 consent of the ordinary and the patron of the 
 living, that the land shall for the future be 
 discharged from payment of tithes, by reason 
 of some land or other real recompense given 
 in lieu and satisfaction thereof. But since 
 St. 13 Eliz. c. 10, no real composition can be 
 made for any longer term than three lives, 
 or twenty-one years, and such compositions 
 are now rarely heard of. 2 Bl. Comm. 28. 
 See St. 2 & 3 Wm. IV. c. 100, § 2, making 
 valid all compositions confirmed in a certain 
 manner. 
 
 REAL CONTRACT. 
 
 At Common Law. A contract respect- 
 ing real property. 3 Rawle (Pa.) 225. 
 
 In Civil Law. Those contracts which 
 
 require the interposition of a thing (rei) 
 as the subject of them ; for instance, the loan 
 for goods to be "specifically returned." 
 
 Contracts are divided into those which are 
 formed by the mere consent of the parties, 
 and therefore are called "consensual," such 
 as sale, hiring, and mandate, and those in 
 which it is necessary that there should be 
 
REAL, COVENANT 
 
 (771) 
 
 REAL PARTY 
 
 something more than mere consent, such as 
 the loan of money, deposit, or pledge, which, 
 from their nature, require the delivery of the 
 thing, whence they are called "real." Poth. 
 Obi. p. 1, c. 1, § 1, art. 2. 
 
 REAL COVENANT. A covenant connect- 
 ed with a conveyance of realty, whereby an 
 obligation to pass something real is created, 
 or which is so connected with the realty that 
 he who has the latter is entitled to the bene- 
 fit of, or is bound to perform, the former. 
 Fitzh. Nat. Brev. 145; Shep. Touch. 161; 
 Piatt, Gov. 60, 62. 
 
 A covenant which is so connected with the 
 realty as to apply to the owner thereof, either 
 in reference to benefit or obligation, whether 
 he be a party to the instrument creating the 
 covenant or not. 
 
 A covenant by which the obligor under- 
 takes to pass something real. Co. Litt. 384b ; 
 Stearns, Real Actions, 134. See 4 Kent, 
 Comm. 472. 
 
 A covenant by which the covenantor binds 
 his heirs. 2 Bl. Comm. 304. 
 
 Very considerable confusion exists among 
 the authorities in the use of the term "real 
 covenants." The definition of Blackstone, 
 which determines the character of covenants 
 from the insertion or noninsertion of the 
 word "heir" by the covenantor, is pretty 
 generally rejected. See Piatt, Gov. 61 ; 2 Bl. 
 Comm. 304, note, 305, note. Of the other 
 definitions, that which makes a real cove- 
 nant an obligation to pass realty is the most 
 ancient. Upon such a covenant the remedy 
 was by voucher or warrantia chartae, and 
 not by the action of covenant. 
 
 Together with the disuse of real actions, 
 these covenants gave place to the more mod- 
 ern covenants which furnish the basis of a 
 personal action for damages, and the term 
 "real covenants" lost its ancient significa- 
 tion, and acquired its modern one, as given 
 in the latter part of the first and in the sec- 
 ond definition. The covenant to stand seised 
 approaches perhaps morei nearly than any 
 covenant still in use to the ancient real cove- 
 nant. 
 
 Covenants are real only when they have 
 entered into the consideration for which 
 land, or some interest therein to which the 
 covenant is annexed, passed between the 
 covenantor and covenantee. 2 Washb. Real 
 Prop. 662, 663. 
 
 In England, all covenants for title are held 
 to be real covenants; in the United States, 
 those only which are future in their opera- 
 tion come under this description. 10 Ga. 
 311. 
 
 The object of these covenants is, usually, 
 either to preserve the inheritance, as to keep 
 in repair (3 Lev. 92; 9 Barn. & G. 505; 8 
 Cow. [N. Y.] 206; 17 Wend. [N. Y.] 148; 1 
 Dall. [U. S.] 210; 6 Yerg. FTenn.l 512; 6 Vt. 
 276; 25 Pa. St. 257; 38 Eng. Law & Eq. 462) ; 
 to keep buildings insured, and reinstate 
 them if burned (Piatt, Gov. 185; 5 Barn. & 
 Adol. 1; 6 Gill & J. [Md.j 372); to continue 
 the relation of landlord and tenant, as to pay 
 rent (5 East, 575; 1 Doug. 183; 1 Wash. G. 
 C. [U. S.] 375); do suit to the lessor's mill 
 (5 Coke, 18; 1 Barn. & C. 410); grind the 
 
 tenant's corn (2 Yeates [Pa.l 74; 9 Vt. 91); 
 for the renewal of leases (12 East, 469); or 
 to protect the tenant in his enjoyment of the 
 premises, as to warrant and defend (Shep. 
 Touch. 161; 2 Mass. 433; 5 Cow. [N. Y.] 137; 
 1 Paige, Gh. [N. Y.] 455) ; to make further 
 assurance (Gro. Car. 503); for quiet enjoy- 
 ment (Cro. Bliz. 373; 3 Barn. & Aid. 392; 1 G. 
 B. 402; 1 Lev. & B. [N. G.] 94; 23 Me. 383) ; 
 never to claim or assert title (7 Me. 97; 3 
 Mete. [Mass.] 121); to remove incumbrances 
 (17 Mass. 586); to release suit and service 
 (Go. Litt. 384b) ; to produce title deeds in 
 defense of the grantee's title (4 Greenl. 
 Cruise, Dig. 393; 10 Law Mag. 353-357; 1 
 Sim. & S. 449) ; to supply water to the prem- 
 ises (4 Barn. & Aid. 266); to draw water 
 off from a mill pond (19 Pick. [Mass.] 449); 
 not to establish another mill on the same 
 stream (17 Wend. [N. Y.] 136) ; not to erect 
 buildings on adjacent land (4 Paige, Gh. [N. 
 Y.] 510) ; to use the land in a specified man- 
 ner (13 Sim. 228); generally to create or 
 preserve easements for the benefit of the 
 land granted (4 E. D. Smith TN. Y.] 122; 
 1 Bradf. [N. Y.] 40; 2 Greenl. Ev. § 240; 2 
 Washb. Real Prop. 648). See "Covenant." 
 
 REAL ESTATE. Landed property, includ- 
 ing all estates and interests in lands which 
 are held for life or for some greater estate, 
 and whether such lands be of freehold or 
 copyhold tenure. Wharton. 
 
 REAL-ESTATE BROKER. One who en- 
 gages in the purchase and sale of real estate 
 as a business and occupation, and so holds 
 himself out to the public in that character 
 and capacity. 
 
 REAL EVIDENCE. All evidence of which 
 things (or persons regarded as things) is 
 the source; evidence arising from physical 
 indications or appearances. Thus, the pro- 
 duction of a dead body is real evidence of the 
 corpus delicti. 
 
 REAL INJURY. In the civil law. An in- 
 jury arising from an unlawful act, as dis- 
 tinguished from a verbal injury, which was 
 done by words. Halifax, Civ. Law, bk. 2, c. 
 15, notes 3, 4. 
 
 REAL LAW. 
 
 At Common Law. A popular term 
 
 used to denote such parts of the system of 
 common law as concern or relate to real 
 property. 
 
 In Civil Law. A law which relates tO' 
 
 specific property, whether ijiovable or im- 
 movable. 
 
 If real law in any given case relate to 
 immovable property, it is limited in its op- 
 eration to the territory within which that is. 
 situate, real estate being, both by the com- 
 mon and continental laws, subject exclusive- - 
 ly to the laws of the government within 
 whose territory it is situate. Story, Gonfl. . 
 Laws, 426, 428. See "Lex Rei Sitae." 
 
 REAL PARTY. Practice statuses frequent-- 
 ly require that actions be brought in the 
 name of the "real party in interest." As so 
 used, the term means the person having the^ 
 
REAL PROPERTY 
 
 (772)' 
 
 REALTY- 
 
 real beneficial interest in the obligation sued 
 on. Thus, the assignee of a demand is the 
 real party in interest (68 N. Y. 30), as is 
 the person for whose benefit a contract is 
 made by another (138 N. Y. 468; 112 N. 
 Y. 1). 
 
 REAL PROPERTY. Something which may 
 be held by tenure, or will pass to the heir 
 of the possessor at his death, instead 6i his 
 executor, including lands, tenements, and 
 hereditaments, whether the latter be corpo- 
 real or incorporeal. 1 Atk. Conv. 
 
 In respect to property, "real" and "per- 
 sonal" correspond very nearly with "immova- 
 bles" and "movables" of the civil law. By 
 the latter, "Mens" is a general term for prop- 
 erty; and these are classified into movable 
 and immovable, and the latter are subdivid- 
 ed into corporeal and incorporeal. Guyot, 
 Rep. Univ. "Biens." 
 
 By "immovables" the civil law Intended 
 property which could not be removed at all, 
 or not without destroying the same, togeth- 
 er with such movables as are fixed to the 
 freehold, or have been so fixed and are in- 
 tended to be again united with it, although 
 at the time severed therefrom. Tayl. Civ. 
 Law, 475. 
 
 The same distinction and rules of law as 
 to the nature and divisions of property are 
 adopted in Scotland, where, as by the Ro- 
 man law, another epithet is applied to im- 
 movables. They are called "heritables," and 
 go to the heir, as distinguished from "mov- 
 ables," which go to executors or administra- 
 tors. So, rights connected with or affecting 
 heritable property, such as tithes, servitudes, 
 and the like, are themselves heritable, and in 
 this it coincides with the common law. Brsk. 
 Inst. 192. 
 
 In another respect, the Scotch coincides 
 with the common law, in declaring growing 
 crops of annual planting and culture not to 
 be heritable, but to go to executors, etc., al- 
 though so far a part of the real estate that 
 they would pass by a conveyance of the land. 
 Ersk. Inst. 193; Williams, Bx'rs, 600. 
 
 Though the term "real," as applied to 
 property, in distinction from "personal," is 
 now so familiar, it is one of a somewhat re- 
 cent introduction. While the feudal law pre- 
 vailed, the terms in use in its stead were 
 "lands," "tenements," or "hereditaments;" 
 and these acquired the epithet of "real" from 
 the nature of the remedy applied by law for 
 the recovery of them, as distinguished from 
 that provided in case of injuries, contracts 
 broken, and the like. In the one case, the 
 claimant or demandant recovered the real 
 thing sued for, — the land itself, — while, ordi- 
 narily, in the other he couid only recover 
 recompense in the form of pecuniary dam- 
 ages. 
 
 The term, it is said, as a means of desig- 
 nation, did not come into general use until 
 after the feudal system had lost Its hold, 
 nor till even as late as the commencement 
 of the seventeenth century. One of the earli- 
 est cases in which the courts applied the dis- 
 tinctive terms of "real" and "personal" to es- 
 tetes, without any words of explanation, is 
 6aid to have been that of Wind v. Jekyl (A. 
 
 D. 1719) 1 P. Wms. 575; Williams, Real 
 Prop. 6, 7. See "Land;" "Tenement;" "Her- 
 editaments;" "Fixtures." 
 
 REAL REPRESENTATIVE. He who rep- 
 resents or stands in the place of another 
 with respect to his real property is so term- 
 ed, in contradistinction to him who stands 
 in the place of another with regard to his 
 personal property, and who Is termed the 
 "personal representative." Thus, the heir is 
 the real representative of his deceased an- 
 cestor, and the executor or administrator is 
 the personal representative. 
 
 REAL RIGHT. In Scotch law. That which 
 entitles him who is vested with it to pos- 
 sess the subject as his own, and, if in the 
 possession of another, to demand from him 
 its actual possession. 
 
 It is distinguished from a personal right, 
 which is that of action against a debtor, but 
 without any right in the subject which the 
 debtor is obliged to transfer to him. Real 
 rights affect the subject itself; personal 
 rights are founded in obligation. Ersk. Inst. 
 479. 
 
 By analogy, the right which a claimant 
 in an action of replevin seeks to enforce at 
 common law would be a real one, while the 
 compensation which a plaintiff seeks in an 
 action of assumpsit or of trover, being a 
 pecuniary one, would be personal. 
 
 REAL SECURITY. Security consisting of 
 a lien on realty. 
 
 REAL SERVITUDE. 
 
 (g. V.) 
 
 Praedial servitude 
 
 REAL STATUTES. In the civil law. Stat- 
 utes which have property for their principal 
 object, and do not speak of persons, except 
 in relation to property. Story, Confl. Laws, 
 § 13. 
 
 REAL THINGS, or THINGS REAL. In 
 
 cbmmon law. Such things as are permanent, 
 fixed, and immovable, which cannot be car- 
 ried out of their place; as lands and tene- 
 ments. 2 Bl. Comm. 15. Things substantial 
 and immovable, ajid the rights and profits 
 annexed to or issuing out of them. 1 Steph. 
 Comm. 156. This expression is in strictness 
 clearly pleonastic, the sense of thing {res) 
 being already implied in the word "real," 
 as will at once appear by giving it a Latin 
 form, res reales. 
 
 REAL WARRANDICE. In Scotch law, an 
 infeoffment of one tenement given in securi- 
 ty of another. 
 
 REAL WRONG. In old English law. An 
 injury to the freehold. 
 
 REALITY. In foreign law. That quality of 
 laws which concerns property or things 
 {quae ad rem spectant). Story, Confl. Laws, 
 §•16. See "Personality." 
 
 REALM. A kingdom; a country. 1 Taunt. 
 270; 4 Campb. 289; Rose, 387. 
 
 REALTY. A term sometimes used as a col- 
 lective noun for real property or estate,— 
 
REASONABLE ACT 
 
 (773) 
 
 REBUTTER 
 
 more generally to imply that that of which it 
 is spoken is of the nature or character of 
 real property or estate. 
 
 The quality of being real, or relating to 
 lands and tenements; things real. 1 Steph. 
 Comm. 156. 
 
 REASONABLE ACT. This term signifies 
 such an act as the law requires. When an 
 act is unnecessary, a party will not be re- 
 quired to perform it as a reasonable act. 9 
 Price, 43; Yelv. 44; Piatt, Gov. 342, 157; 42 
 Mo. 88. 
 
 REASONABLE AID. The ordinary or cus- 
 tomary aids were so termed. See "Aids." 
 
 REASONABLE AND PROBABLE CAUSE. 
 
 A term sometimes used to express the cause 
 which will justify the institution of a crim- 
 inal prosecution. It does not appear to dif- 
 fer in meaning from "probable cause," which 
 is the more usual expression. 97 U. S. 642. 
 See "Probable Cause." 
 
 REASONABLE CARE. Such care and dili- 
 gence as an ordinarily prudent man would 
 exercise under the same circumstances. It 
 is synonymous with "ordinary care." 34 
 Wis. 318; 79 Ga. 44. 
 
 The term is altogether a relative one, de- 
 pendent on the circumstances, and the na- 
 ture of the duty owed. See 25 Md. 521. 
 
 REASONABLE DOUBT. "The term 'rea- 
 sonable doubt' is almost incapable of any 
 definition which will add much to what the 
 words themselves imply." Mitchell, J., in 38 
 Minn. 439. 
 
 The most commonly quoted definition is 
 that of Chief Justice Shaw: "An abiding 
 conviction to a moral certainty" (5 Cush. 
 [Mass.] 320) ; but it has been held that 
 "moral certainty is not equivalent to an ab- 
 sence of reasonable doubt" (47 Ala. 78). It 
 has been defined by negation as not a vague 
 or whimsical doubt (34 Iowa, 520), not a 
 mere conjecture (36 Ala. 211), etc. A prac- 
 tical definition upheld in some jurisdictions 
 is that it is such a doubt "as would cause a 
 man to hesitate before acting in his own 
 most important business concerns (10 Minn. 
 407) ; but this has been disapproved (1 Dak. 
 452), and, in general, no affirmative equiva- 
 lent has ever been given which has not been 
 disapproved in another jurisdiction. 
 
 REASONABLE PART. In old English law. 
 That share of a man's goods which the law 
 gave to his wife and children after his de- 
 cease. Fitzh. Nat. Brev. 122. 
 
 REASONABLE TIME. The term is entire- 
 ly relative and dependent on circumstances. 
 "Quam longum detet esse rationabile tempus 
 non definiture in lege, scil ppiulet ex dls- 
 cretione justioiariorum. Co. Litt. 50. 
 
 REASSURANCE. When an insurer is de- 
 sirous of lessening his liability, he may pro- 
 cure some other insurer to insure him 
 from loss, for the insurance he has made. 
 This is called "reassurance." 
 
 REATTACHMENT. A second attachment 
 of him who was formerly attached, and dis- 
 missed the court without day, by the not 
 coming of the justices, or some such cas- 
 ualty. Reg. Orig. 35. 
 
 REBATE. In mercantile law. Discount; 
 the abatement of interest in consequence of 
 prompt payment; the repayment of a part 
 on compliance with some condition. 
 
 REBEL. A citizen or subject who unjustly 
 and unlawfully takes up arms against the 
 constituted authorities of the nation, to de- 
 prive them of the supreme power, either by 
 resisting their lawful and constitutional or- 
 ders in some particular matter, or to Impose 
 on them conditions. Vattel, liv. 3, § 328. In 
 another sense, it signifies a refusal to obey 
 a superior, or the commands of a court. 
 
 REBELLION. In criminal law. The tak- 
 ing up arms traitorously against the govern- 
 ment; the forcible opposition ana resistance 
 to the laws and process lawfully Issued. 
 
 If the rebellion amount to treason, it is 
 punished by the laws of the United States 
 with death. If it be a mere resistance of 
 process, it is generally punished by fine and 
 imprisonment. See Dalloz; Pen. Code, 209. 
 
 REBELLION, COMMISSION OF. In old 
 English practice. A writ issuing out of 
 chancery to compel the defendant to appear. 
 
 REBELLIOUS ASSEMBLY. A gathering 
 of twelve persons or more, intending, going 
 about, or practicing unlawfully and of their 
 own authority to change any laws of the 
 realm; or to destroy the inclosure of any 
 park or ground inclosed, banks of fish ponds, 
 pools, conduits, etc., to the intent the same 
 shall remain void, or that they shall have 
 way in any of the said grounds; or to de- 
 stroy the deer in any park, fish in ponds, 
 coneys in any warren, dove houses, etc.; or 
 to burn sacks of corn; or to abate rents or 
 prices of victuals, etc. See Cowell. 
 
 REBOUTER. To repel or bar. The ac- 
 tion of the heir by the warranty of his an- 
 cestor is called to "rebut" or "repel." 
 
 REBUS SIC STANTIBUS (Lat.) At this 
 point of affairs; in the condition of things. 
 
 REBUT. To contradict; to do away. Thus, 
 every homicide is presumed to be murder 
 unless the contrary appears from evidence 
 which proves the death; and this presump- 
 tion it lies on the defendant to rebut, by 
 showing that it was justifiable or excusable. 
 Alis. Sc. Crim. Law, 48. 
 
 REBUTTABLE PRESUMPTION. In the 
 
 law of evidence. A presumption which may 
 be rebutted by evidence. Otherwise called a 
 "disputable" presumption. A species of legal 
 presumption which holds good until dis- 
 proved. Best, Pres. § 25; 1 Greenl. Ev. § 33. 
 
 REBUTTER. In pleading. The defend- 
 ant's third pleading, being his answer to the 
 surrejoinder. 
 
REBUTTING EVIDENCE 
 
 (774) 
 
 RECEIVING STOLEN GOODS 
 
 REBUTTING EVIDENCE. That evidence 
 which is given by a party in the cause to 
 explain, repel, counteract, or disprove facts 
 given in evidence on the other side. The 
 term "rebutting evidence" is more p'articu- 
 larly applied to that evidence given by the 
 plaintiff to explain or repel the evidence 
 given by the defendant. 
 
 RECALL A JUDGMENT. To reverse a 
 judgment on a matter of fact. The judg- 
 ment is then said to be recalled or revoked; 
 and when it is reversed for an error of law, 
 it ' is said simply to be reversed, quod ju- 
 dicium reversetur. 
 
 RECAPTION. The act of a person who 
 has been deprived of the custody of another, 
 to which he is legally entitled, by which he 
 peaceably regains the custody of such per- 
 son; or of the owner of personal or real 
 property, who has been deprived of his pos- 
 session, by which he peaceably retakes pos- 
 session. 
 
 The rule of law is that one who has been 
 wrongfully deprived of a person to whose 
 custody he has a right (3 Bl. Comm. 4; 15 
 Barb. [N. Y.] 590; 13 Pick. [Mass.] 36; 19 
 Ga. 27), or of property, real or personal, to 
 the possession of which he Is entitled (11 
 N. H. 540; 13 Wend. [N. Y.] 256; 25 Vt. 
 620; 18 Minn. 355; 5 Watts [Pa.] 543), may, 
 without legal process, retake the same 
 wherever he may find it, if he can do so 
 without a breach of the peace (11 Pick. 
 [Mass.] 387; 73 N. Y. 529), though it is held 
 in England (10 C. B. [N. S.] 713), and in 
 some states (6 Rand. [Va.] 457; 59 111. 234), 
 that so much force as is necessary may be 
 used. 
 
 RECAPTURE. The recovery from the 
 enemy, by a friendly force, of a prize by 
 him captured. 
 
 RECEDITURA PLACITIS JURIS,POTIUS 
 quam Injurlae at delicta maneant impunita. 
 Positive rules of law will be receded from 
 rather than crimes and wrongs should re- 
 main unpunished. Bac. Max. reg. 12; Broom, 
 Leg. Max. (3d London Ed.) 9. This applies 
 only to such maxims as are called placita 
 juris. These will be dispensed with rather 
 than crimes should go unpunished, quia salus 
 populi suprema lex, because the public safety 
 is the supreme law. 
 
 RECEIPTOR. In Massachusetts. A name 
 given to the person who, on a trustee process 
 being issued and goods attached, becomes 
 surety to the sheriff to have them forthcom- 
 ing on demand, or in time to respond the 
 judgment, when the execution shall be is- 
 sued; upon which the goods are bailed to 
 him. Story, Bailm. § 124. See "Attach- 
 ment." 
 
 RECEIVER. One who receives money to 
 the use of another to render an account. 
 Story, Bq. Jur. § 446. 
 
 A person standing indifferent between the 
 parties, who is appointed by the court to take 
 the charge and management of property 
 pending litigation, or for the benefit of the 
 
 persons who may ultimately be entitled to 
 it. 16 Wend. (N. Y.) 421. 
 
 Receivers are appointed in various pro- 
 ceedings and for various special purposes, 
 but the general design of a receiver is to 
 hold and protect the subject of litigation, 
 whether it be specific property, or the assets 
 of an insolvent. 
 
 RECEIVER GENERAL OF THE DUCHY 
 of Lancaster. An officer of the duchy court, 
 who collects all the revenues, fines, forfeit- 
 ures, and assessments within the duchy. 
 
 RECEIVER GENERAL OF THE PUBLIC 
 
 revenue. In English law. An officer ap- 
 pointed in every county to receive the taxes 
 granted by parliament, and remit the money 
 to the treasury. 
 
 RECEIVER OF THE FINES. An English 
 officer who receives the money from persons 
 who compound with the crown on original 
 writs sued out of chancery. Wharton. 
 
 RECEIVERS AND TRIERS OF PETI- 
 
 tlons. The mode of receiving and trying pe- 
 titions to parliament was formerly judicial 
 rather than legislative, and the triers were 
 committees of prelates, peers, and judges, 
 and, latterly, of the members generally. 
 Brown. 
 
 RECEIVERS' CERTIFICATES. Certifi- 
 cates of indebtedness issued by a receiver, as 
 surety for money borrowed, to carry on the 
 receivership. They are usually made a first 
 lien on the property. See 117 U. S. 434. 
 
 RECEIVERS OF WRECK. Persons ap- 
 pointed by the English board of trade. The 
 duties of a receiver of wreck are to take 
 steps for the preservation of any vessel 
 stranded or in distress within his dictrict; 
 to receive and take possession of all articles 
 washed on shore from the vessel; to use 
 force for the suppression of plunder and dis- 
 order; to institute an examination on oath 
 with respect to the vessel; and, if neces- 
 sary, to sell the vessel, cargo, or wreck. 
 Merch. Ship. Act 1854, § 439 et seq. 
 
 RECEIVING STOLEN GOODS. The of- 
 fense of receiving stolen goods, knowing 
 them to have been stolen. 
 
 (1) The property must have been received, 
 but constructive receipt is sufficient (95 N. 
 C. 626; 6 Cox, C. C. 353), and at common 
 law it must have been received from the 
 thief (13 Ired. [N. C] 338); but under the 
 statutes, the rule seems otherwise (38 Fla. 
 3; 52 Neb. 727). (2) The property must have 
 been, at the time, stolen property in fact 
 and law. 9 Cush. 284. (3) The receiver 
 must know at the time that it was stolen 
 (78 N. C. 491; 60 111. 119), but knowledge of 
 circuimstances from which any man of or- 
 dinary observation could have known that it 
 was stolen is enough (33 Ala. 434; 96 Iowa, 
 299). (4) The property must be received with 
 fraudulent intent, but the intent need not 
 be lucri causa, an intent to aid the thief 
 being sufficient. 101 111. 16; 26 Tex. App. 
 205. An intent to hold for a reward is a 
 fraudulent intent. 37 Ohio St. 63. 
 
RECENS SECTA 
 
 (77S) 
 
 RECOGNIZANCE 
 
 RECENS SECTA (or INSECUTIO) (Law 
 Lat.) In old English law. Fresh suit; fresh 
 pursuit; pursuit of a thief immediately after 
 the discovery of the robbery. 1 Bl. Comm. 
 297. 
 
 RECEPTUS(Lat.) Incivillaw. Thename 
 sometimes given to an arbitrator, because 
 he had been received or chosen to settle the 
 differences between the parties. Dig. 4. 8; 
 Code, 2. 56. 
 
 RECESSION. A regrant; the act of re- 
 turning the title of a country to a govern- 
 ment which formerly held it, by one which 
 has it at the time; as, the recession of 
 Louisiana, which took place by the treaty be- 
 tween Prance and Spain, of October 1, 1800. 
 See 2 White, Coll. 516. 
 
 RECESSUS (Lat.fromrfffrfc/c,to go back). 
 In old English law. A going from; a going 
 off or out of land. Cum libero accessu et 
 recessu, with free access and recess [ingress 
 and egress]. Bracton, fol. 231b. 
 
 RECESSUS MARIS (LatX In old English 
 law. A going back; reliction or retreat of 
 the sea. Hale de Jur. Mar. par. 1, c. 6. 
 
 RECETOUR, or RECETTOUR (Law Pr.) 
 In old English law. A receiver or harborer 
 of a felon; an accessary after the fact. Britt. 
 c. 24. One who received and concealed a re- 
 turned outlaw. Id. c. 12. 
 
 RECETTEMENT(LawPr.) In old English 
 law. Receiptment; the receiving and har- 
 boring a felon. Del consentment ou del re- 
 cettement de ceux felons a escient, of con- 
 senting to or harboring such felons know- 
 ingly. Britt. c. 1. 
 
 RECHASER (LawPr.) To drive back. Y. 
 B. M. 11 Hen. VI. 4. 
 
 RECHATE (Law Pr.) Ransom. Fairc ir- 
 chat' du char et dti saunTt, to make ransom 
 of flesh and of blood. Y. B. M. 7 Edw. II. 214. 
 
 RECHATER (Law Pr.) To ransom; to buy 
 back. Kelham. 
 
 RECIDIVE. In Prench law. The state of 
 an individual who commits a crime or mis- 
 demeanor, after having once been condemned 
 for a crime or misdemeanor; a relapse. 
 
 Many statutes provide that, for a second 
 offense, punishment shall be increased. In 
 those cases the indictment should set forth 
 the crime -or misdemeanor as a second of- 
 fense. 
 
 The second offense must have been com- 
 mitted after the conviction for the first. A 
 defendant could not be convicted of a second 
 offense, as such, until after he had suffered 
 a punishment for the first. Dalloz. 
 
 RECIPROCAL CONTRACT. In civil law. 
 One by which the parties enter into mutual 
 engagements. 
 
 They are divided into perfect and imper- 
 fect. When they are perfectly reciprocal, 
 the obligation of each of the parties is equal- 
 ly a principal part of the contract, such as 
 sale, partnership, etc. Contracts imperfectly 
 
 reciprocal are those in which the obligation 
 of one of the parties only is a principal ob- 
 ligation of the contract; as, mandate, de- 
 posit, loan for use, and the like. In all re- 
 ciprocal contracts, the consent of the parties 
 must be expressed. Poth. Obi. note 9; Civ. 
 Code La. arts. 1758, 1759. 
 
 RECIPROCITY. Mvituality; state, quality, 
 or character of that which is reciprocal. 
 
 RECITAL. The repetition of some former 
 writing, or the statement of something which 
 has been done. It is useful to explain mat- 
 ters of fact which are necessary to make the 
 transaction intelligible. 2 Bl. Comm. 298. 
 
 In Contracts. The preliminary state- 
 ment of facts explanatory of the purpose for 
 which the contract is made, or the reasons 
 which led to its execution. 
 
 In Pleading. A statement of matter 
 
 introductory to an averment. 
 
 RECLAIM. To demand again; to insist 
 upon a right; as, when a defendant for a 
 consideration received from the plaintiff has 
 covenanted to do an act, and fails to do it, 
 the plaintiff may bring covenant for the 
 breach, or nsfiiinipsit to reclaim the consid- 
 eration. 1 Caines (N. Y.) 47. 
 
 RECLAIMING BILL. In Scotch law. A 
 petition for review of an interlocutor, pro- 
 nounced in a sheriff's or other inferior court. 
 It recites verbatim the interlocutor, and, 
 after a written argument, ends with a prayer 
 for the recall or alteration of the interlocu- 
 tor, in whole or in part. Bell, Diet. "Re- 
 claiming Petition;" Shaw, Dig. 394. 
 
 RECOGNITION. Adoption; ratification (?. 
 V.) An acknowledgment that something 
 which has been done by one man in the 
 name of another was done by authority of 
 the latter. 
 
 A recognition by the principal of the 
 agency of another in the particular instance, 
 or in similar instances, is evidence of the 
 authority of the agent, so that the recogni- 
 tion may be either express or implied. As 
 an instance of an implied recognition may 
 be mentioned the case of one who subscribes 
 policies in the name of another, and. upon 
 a loss happening, the latter pays the amount. 
 1 Campb. 43, note (a); 4 Campb. 88; 1 
 Esp. 61. 
 
 RECOGNITIONEADNULLANDAPERVIM 
 et duritiem facta. A writ to the justices of 
 the common bench for sending a record 
 touching a recognizance, which the recog- 
 nizor suggests was acknowledged by force 
 and duress; that if it so appear the recog- 
 nizance may be annulled. Reg. Orig. 183. 
 
 RECOGNITORS. In English law. The 
 name by which the jurors impanelled on an 
 assize are known. 17 Serg. & R. (Pa.) 174. 
 
 RECOGNIZANCE. An obligation of rec- 
 ord, entered into before a court or officer 
 duly authorized for that purpose, with a con- 
 dition to do some act required by law, which 
 is therein specified. 2 Bl. Comm. 341. 
 
 The liability of bail above in civil cases. 
 
RECOGNIZE 
 
 (776) 
 
 RECORD 
 
 and of the bail in all cases in criminal mat- 
 ters, must be evidenced by a recognizance, as 
 the sheriff has no power to discharge upon 
 a bail bond being given to him in these cases. 
 See 4 Bl. Comm. 297. 
 
 RECOGNIZE. To try; to examine in order 
 to determine the truth of a matter. 3 Bl. 
 Comm. Append. No. HI. § 4; Bracton, 179. 
 
 To enter into a recognizance. 
 
 RECOGNIZEE. He for whose use a recog- 
 nizance has been taken. 
 
 RECOGNIZOR. He who enters into a re- 
 cognizance. 
 
 RECOLEMENT. In French law. The read- 
 ing and re-examination by a witness of a 
 deposition, and his persistence in the same, 
 or his making such alteration as his better 
 recollection may enable him to do after hav- 
 ing read his deposition. Without such re- 
 examination, the deposition is void. Poth. 
 Proc. Grim. § 4, art. 4. 
 
 RECOMMENDATION. A commendatory 
 account given by a person of another to a 
 third person. 
 
 In Feudal Law. A transfer of allodial 
 
 lands by the owner to the king, and the re- 
 turn of the same to be held on feudal tenure. 
 
 RECOMMENDATORY. Advisory. "Preca- 
 tory" is the more usual term. 
 
 RECOMPENSATION. In Scotch law. An 
 allegation by the plaintiff of compensation 
 on his part, made in answer to a compensa- 
 tion or set-off pleaded by the defendant in 
 answer to the plaintiff's demand. 
 
 RECOMPENSE. A reward for services; 
 remuneration for goods or other property. 
 
 In maritime law, there is a distinction be- 
 tween "recompense" and "restitution." When 
 goods have been lost by jettison, if at any 
 subsequent period of the voyage the remain- 
 der of the cargo be lost, the owner of the 
 goods lost by jettison cannot claim restitu- 
 tion from the owners of the other goods; 
 but in the case of expenses incurred with a 
 view to the general benefit, it is clear that 
 they ought to be made good to the party, 
 whether he be an agent employed by the 
 master in a foreign port, or the shipowner 
 himself. 
 
 RECOMPENSE OF RECOVERY IN 
 
 value. A phrase applied to the matter re- 
 covered in a common recovery, after the 
 vouchee has disappeared, and judgment is 
 given for the demandant. 2 Bouv. Inst, note 
 2093. 
 
 RECONDUCTION. In civil law. A renew- 
 ing of a former lease; relocation. Dig. 19. 
 2. 13. 11; Code Nap. arts. 1737-1740. 
 
 RECONTINUANCE. This word seems to 
 be used to signify that a person has recov- 
 ered an incorporeal hereditament of which 
 he had been wrongfully deprived. Thus, "A. 
 is disseised of a mannor, whereunto an 
 advowson is appendant, an estranger [i. e., 
 
 neither A. nor the disseisor] usurpes to the 
 advowson; if the disseisee [A.] enter into 
 the mannor, the advowson is recontlnued 
 again, which was severed by the usurpation. 
 * * * And so note a diversitie between a 
 recontinuance and a remitter; for a remitter 
 cannot be properly, unlesse there be two 
 titles; but a recontinuance may be where 
 there is but one." Co. Lift. 363b. 
 
 RECONVENIRE (Lat.) In the canon and 
 civil law. To make a cross demand upon the 
 actor or plaintiff. 4 Reeve, Hist. Eng. Law, 
 14, and note (r.) 
 
 RECONVENTIO (Lat. from reconvenire, q. 
 V.) In the civil and canon law. A cross 
 demand by the reus (defendant) upon the 
 actor (plaintiff) ; a proceeding in the nature 
 of a cross bill in equity. Halifax, Anal. bk. 
 3, c. 1, note 40; Calv. Lex; Fleta, lib. 4, c. 
 22, § 9; Gilb. For. Rom. 45, 46; Story, Bq. 
 PI. § 402. Considered to be the origin of a 
 cross bill. Id. 
 
 RECONVENTION. 
 
 In the Civil Law. A species of cross 
 
 bill. Story, Bq. PI. § 402. 
 
 In Louisiana and Texas. A plea in the 
 
 nature of set-off, by which any matter con- 
 nected with or incident to the subject of 
 the main action may be asserted. See 11 
 La. 309; 5 Tex. 502. 
 
 RECONVERSION. That imaginary pro- 
 cess by which a prior constructive conver- 
 sion is annulled, and the converted property 
 restored, in contemplation of law, to its orig- 
 inal state. Rapalje & L. 
 
 RECOPILACION DE INDIAS (Spanish). A 
 
 collection of Spanish colonial law, promul- 
 gated A. D. 1680. See Schmidt, Civ. Law, 
 introd. 94. 
 
 RECORD. Record, in its broadest sense, 
 is a memorial, public or private, of what has 
 been done. It is ordinarily applied to public 
 records only, in which sense it is a written 
 memorial made by a public officer, judicial, 
 legislative, or executive, authorized by law 
 to perform that function, and intended to 
 serve as evidence of something written, said, 
 or done. 6 Call (Va.) 78; 1 Dana (Ky.) 595. 
 
 Any record required by law to be kept by 
 an officer, or which he keeps as necessary 
 or convenient to the discharge of his official 
 duty, is a public record. 15 Wall. (U. S.) 
 123; 123 Ind. 197; 1 Pa. St. 224. 
 
 A judicial record is the written memorial 
 of proceedings had irx court, kept by the 
 proper officers of the court. 
 
 The common-law record was an enroll- 
 ment of the pleadings, a statement in formal 
 language, of each proceeding had in the 
 progress of the cause, and the judgment. 
 Steph. PI. 61. 
 
 The more common modern practice is to 
 file the pleadings, etc., with the clerk's en- 
 tries of proceedings on the trial without 
 enrollment. 
 
 In Appellate Practice. The term "rec- 
 ord" is used in two senses, as comprising, 
 generally, all the matters certified and trans- 
 
RECORD, CONVEYANCES BY (777) 
 
 RECOUPMENT 
 
 mitted by the lower court to show the pro- 
 ceedings therein, and in a more limited sense 
 as signifying only the record proper, and not 
 the abstract or bill of exceptions. In this 
 limited sense, it includes the pleadings (22 
 111. 326), the process, and the return thereof 
 (22 Me. 442), the verdict (60 111. App. 580) 
 or findings (34 Minn. 330), and judgment 
 (60 111. App. 580), but not the clerk's min- 
 utes (94 N. Y. 508), the opinion of the court 
 below (140 111. 637), interlocutory motions 
 or orders (82 Ind. 524; 109 111. 245), the evi- 
 dence (23 Mich. 526; 91 U. S. 127), though 
 documentary (87 Ind. 221) nor the instruc- 
 tions (72 U. S. 663; 119 Ind. 35). 
 
 RECORD, CONVEYANCES BY. Extraor- 
 dinary assurances; as private acts of par- 
 liament, and royal grants. 
 
 RECORD, COURTS OF. Those whose ju- 
 dicial acts and proceedings are enrolled in 
 parchment, for a perpetual memorial and 
 testimony, which rolls are called the "rec- 
 ords of the court," and are of such high 
 and supereminent authority that their truth 
 is not to be called in question. Every court 
 of record has authority to fine and imprison 
 for contempt of its authority. 3 Broom & H. 
 Comm. 21, 30. See "Court." 
 
 RECORD, DEBTS OF. Those which ap- 
 pear to be due by the evidence of a court of 
 record; such as a judgment, recognizance, 
 etc. 2 Broom & H. Comm. 655. 
 
 RECORD OF NISI PRIUS. In English 
 law. A transcript from the issue roll. It 
 contains a copy of the pleadings and issue. 
 Steph. PI. 105. 
 
 RECORD, TRIAL BY. See "Trial." 
 
 RECORDA SUNT VESTIGIA VETUSTA- 
 tls et veritatis. Records are vestiges of an- 
 tiquity and truth. 2 Rolle, 296. 
 
 RECORDARI. A writ in vogue in North 
 Carolina to bring up the proceedings of a 
 justice of the peace into a court of record. 
 It is an adoption of the English writ, Re- 
 cordari facias loquelam (q. v.) It is used to 
 review matters apparent of record, or when 
 the remedy by appeal is lost without the 
 fault of the party, its general nature and 
 scope being similar to that of certiorari. See 
 65 N. C. 211; 82 N. C. 236; 89 N. C. 198. 
 
 RECORDARI FACIAS LOQUELAM (Lat.) 
 In English practice. A writ commanding 
 the sheriff that he cause the plaint to be 
 recorded which is in his county, without 
 writ, between the parties there named, of 
 the cattle, goods, and chattels of the com- 
 plainant taken and unjustly distrained as it 
 is said, and that he have the said record 
 before the court on a day therein named, 
 and that he prefix the same day to the par- 
 ties, that then they may be there ready to 
 proceed in the same plaint. 2 Sellon, Prac. 
 166. 
 
 RECORDATUR (Lat.) An order or allow- 
 ance that the verdict returned on the nisi 
 prius roll be recorded. Bac. Abr. "Arbitra- 
 tion," etc. (D). 
 
 RECORDER. A judicial officer of some 
 cities, possessing generally the powers and 
 authority of a Judge. 3 Yeates (Pa.) 300; 
 4 Dall. (Pa.) 299. But see 1 Const. (S. 
 C.) 45. 
 
 The recorder in New York city is the chief 
 judge of the criminal courts. There are re- 
 corders in various other cities in New York 
 state, and also in the counties thereof, hav- 
 ing various powers. See Rev. St. N. Y. 
 
 Anciently, "recorder" signified to recite or 
 testify on recollection, as occasion might 
 require, what had previously passed in court; 
 and this was the duty of the judges, thence 
 called "recordeurs." Steph. PI. note 11. 
 
 An officer appointed to make ^ record or 
 enrollment of deeds and other legal instru- 
 ments authorized by law to be recorded. 
 
 RECOUPE, or RECOOP (from Law Fr. re- 
 couper, to cut again, or to cut out and keep 
 back). To diminish a claim for damages 
 by cutting out or keeping back a part. Cow- 
 ell interprets it, "to defalk or discount." 
 Where a man had ten pounds issuing out 
 of certain lands, and he disseised the tenant' 
 of the land, in an assize brought by the 
 disseisee, the disseisor might recoupe the 
 rent in the damages, in order to avoid cir- 
 cuity of action. 5 Coke, 30a. An executor 
 de son tort is not allowed to retain or re- 
 coupe any part of the deceased's goods to sat- 
 isfy his own debt. Id.; 3 Campb. 282. 
 
 This old word has been revived to a con- 
 siderable extent in modern law. "Where a 
 man brings an action for breach of a con- 
 tract between him and the defendant, and 
 the latter can show that some stipulation 
 in the same contract was made by the plain- 
 tiff, which he has violated, the defendant 
 may if he choose, instead of suing in his 
 turn, recoitpe his damages, arising from the 
 breach committed by the plaintiff, whether 
 they be liquidated or not. The law will 
 cut off so much of the plaintiff's claim as 
 the cross damages may come to." Cowen, 
 J., 22 Wend. (N. Y.) 156. See "Recoup- 
 ment." 
 
 RECOUPMENT (Pr. recouper, to cut 
 again). In practice. That right of the de- 
 fendant, in the same action, to claim dam- 
 ages from the plaintiff, either because he 
 has not complied with some cross obliga- 
 tion of the contract upon which he sues, or 
 because he has violated some duty which 
 the law imposed upon him in the making or 
 performance of that contract. 4 Wend. (N. 
 Y.) 483; 8 Wend. (N. Y.) 109; 10 Barb. (N. 
 Y.) 55; 13 N. Y. 151; 3 Ind. 72, 265; 4 Ind. 
 533; 7 Ind. 200; 9 Ind. 470; 7 Aia. (N. S.) 
 753; 13 Ala. (N. S.) 587; 16 Ala. (N. S.) 221; 
 27 Ala. (N. S.) 574; 12 Ark. 699; 16 Ark. 97; 
 17 Ark. 270; 6 B. Mon. (Ky.) 528; 13 B. 
 Mon. (Ky.) 239; 15 B. Mon. (Ky.) 454; 3 
 Mich. 281; 4 Mich. 619; 39 Me. 382; 16 111. 
 495; 11 Mo. 415; 18 Mo. 368; 25 Mo. 430. 
 
 "Recoupment is distinguished from set-off 
 in these three essential particulars: (1) In 
 being confined to matters arising out of and 
 connected with the transaction or contract 
 on which suit is brought; (2) in having no 
 regard to whether such matters are Uqui- 
 
RECOURSE 
 
 (778) 
 
 RECRIMINATION 
 
 dated or unliquidated; (3) in not being 
 the subject of statutory regulation, but con- 
 trolled by the common law." 3 Mich. 281. 
 Recoupment belongs to cases where the same 
 contract lays mutual duties and obligations 
 on two parties, and on an action by one for 
 a breach of duty, the other presents a claim 
 of breach of duty under the same contract. 
 In set-off, the position of the defendant is 
 that, though he may owe the plaintiff what 
 he claims, a part or the whole of such debt 
 is paid in reason and justice by a distinct 
 unconnected debt which plaintiff owes him. 
 
 2 Pars. Cont. 740. 
 
 This is not a new title in the law, although 
 it seems recently to have assumed a new 
 signification. Originally it implied a mere 
 deduction from the claim of the plaintiff, on 
 account of payment in whole or in part, or 
 a former recovery, or some analogous fact. 
 
 3 Coke, 65; 4 Coke, 94; 5 Coke, 2, 31; 
 11 Coke, 51, 52. See note to 6 Nev. & 
 M. 467; Viner, Abr. "Discount," pi. 3, 4, 
 9, 10; 28 Vt. 413. This meaning has been 
 retained in many modern cases, but under 
 the name of "deduction" or "reduction of 
 damages." 11 East, 232; 1 Maule & S. 318, 
 323; 5 Maule & S. 6, 10; 4 Burrows, 2133. 
 See "Set-Off." 
 
 RECOURSE. See "Without Recourse." 
 
 RECOUSSE (Pr.) In Prench law. Recap- 
 ture. Bmerig. Tr. des Assur. c. 12, § 23. 
 
 RECOVEREE. In old conveyancing. The 
 party who suffered a common recovery. 
 
 RECOVERER. The demandant in a com- 
 mon recovery, after judgment has been given 
 in his favor, assumes the name of "recov- 
 erer." 
 
 RECOVERY. The restoration of a former 
 right, by the solemn judgment of a court 
 of justice. 3 Murph. (N. C.) 169. 
 
 A common recovery is a judgment obtained 
 in a fictitious suit, brought against the ten- 
 ant of the freehold, in consequence of a de- 
 fault made by the person who is last vouched 
 to warranty in such suit. Bac. Tr. 148. 
 
 A true recovery, usually known by the 
 name of "recovery" simply, is the procuring 
 a former right by the judgment of a court 
 of competent jurisdiction; as, for example, 
 when judgment is given in favor of the 
 plaintiff when he seeks to recover a thing 
 or a right. 
 
 Common recoveries are considered as mere 
 forms of conveyance or common assurances. 
 Although a common recovery is a fictitious 
 suit, yet the same mode of proceeding must 
 be pursued, and all the forms strictly ad- 
 hered to, which are necessary to be ob- 
 served in an adversary suit. The first thing, 
 therefore, necessary to be done in suffering 
 a common recovery is that the person who is 
 to be the demandant, and to whom the 
 lands are to be adjudged, would sue out a 
 writ or praecipe against the tenant of the 
 freehold; whence such tenant is usually 
 called the "tenant to the praecipe." In obe- 
 dience to this writ, the tenant appears in 
 ■court, either in person or by his attorney; 
 
 but, instead of defending the title to the land 
 himself, he calls on some other person, who, 
 upon the original purchase, is supposed to 
 have warranted the title, and prays that the 
 person may be called in to defend the title 
 which he warranted, or otherwise to give the 
 tenant lands of equal value to those he shall 
 lose by the defect of his warranty. This is 
 called the "voucher vocatia," or "calling to 
 warranty." The person thus called to war- 
 rant, who is usually called the "vouchee," 
 appears in court, is impleaded, and enters 
 into the warranty, by which means he takes 
 upon himself the defense of the land. The 
 defendant then desires leave of the court to 
 imparl, or confer with the vouchee in pri- 
 vate, wh;ch is granted of course. Soon after 
 the demandant returns into court, but the 
 vouchee disappears or makes default, in con- 
 sequence of which it is presumed by the 
 court that he has no title to the lands de- 
 manded in the writ, and therefore cannot 
 defend them; whereupon judgment is given 
 for the demandant, now called the "re- 
 coverer," to recover the lands in question 
 against the tenant, and for the tenant to 
 recover against the vouchee lands of equal 
 value in recompense for those so warranted 
 by him, and now lost by his default. This 
 is called the "recompense of recovery in 
 value;" but as it is customary for the crier 
 of the court to act, who is hence called the 
 "common vouchee," the tenant can only have 
 a nominal and not a real recompense for the 
 land thus recovered against him by the de- 
 mandant. A writ of habere facias is then 
 sued out, directed to the sheriff of the coun- 
 ty in which the lands thus recovered are 
 situated, and on the execution and return of 
 the writ the recovery is completed. The re- 
 covery here described is with single vouch- 
 er; but a recovery may be, and is frequently, 
 suffered with double, treble, or further vouch- 
 er, as the exigency of the case may require, 
 in which case there are several judgments 
 against the several vouchees. 
 
 Common recoveries were invented by the 
 ecclesiastics in order to evade the statute of 
 mortmain, by which they were prohibited 
 from purchasing, or receiving under the pre- 
 tense of a free gift, any land or tenements 
 whatever. They have been used in some 
 states for the purpose of breaking the entail 
 of estates. See, generally. Cruise, Dig. tit. 
 36; 2 Wm. Saund. 42, note 7; 4 Kent, Comm. 
 487; Pigot, Comm. Rec. passim. 
 
 All the learning in relation to common re- 
 coveries is nearly obsolete, as they are out 
 of use. Rey, a Prench writer, in his work 
 Des Institutions Judiciaires de TAngleterres 
 (torn. ii. p. 221), points out what appears to 
 him the absurdity of a common recovery. 
 As to common recoveries, see 3 Serg. & R. 
 (Pa.) 435; 9 Serg. & R. (Pa.) 330; 1 Yeates 
 (Pa.) 244; 4 Yeates (Pa.) 413; 1 Whart. 
 (Pa.) 139, 151; 2 Rawle (Pa.) 168; 6 Pa. St. 
 45; 2 Halst. (N. J.) 47; 5 Mass. 438; 6 Mass. 
 328; 8 Mass. 34; 3 Har. & J. (Md.) 292. 
 
 RECREANT. A coward; a poltroon. 3 HI. 
 Comm. 340. 
 
 RECRIMINATION. In the law of divorce. 
 
RECTE 
 
 (779) 
 
 RECUSATION 
 
 The defense that the plaintiff has been guil- 
 ty of such a matrimonial offense as is a 
 ground for divorce. At common law only an 
 offense of the same nature as that for which 
 plaintiff sued was available in recrimina- 
 tion (1 Hagg. Consist. 144; 4 Ecc. 360); but 
 in the United States, the courts refuse, in 
 the absence of statute, to measure the com- 
 parative turpitude of the several statutory' 
 grounds of divorce, and any one may be 
 pleaded in recrimination (21 N. J. Bq. 331; 
 72 Wis. 136). 
 
 Recrimination is based on the maxim that 
 suitors in equity must come with clean 
 hands, and, if established, is a complete de- 
 fense. 
 
 RECTE (Lat.) In the civil law. Rightly. 
 Dig. 50. 16. 73. As to the interpretation of 
 this word, see Id. 
 
 RECTITUDO. Right or justice; legal 
 •dues; tribute or payment. Cowell. 
 
 RECTO (Lat.) Right. Brere dc recto, writ 
 of right. 
 
 RECTO DE ADVOCATIONE ECCLESIAE. 
 
 A writ which lay at common law where a 
 man had right of advowson of a church, and, 
 the parson dying, a stranger had presented. 
 Fitzh. Nat. Brev. 30. 
 
 RECTO DE CUSTODIA TERRAE ET 
 haeredis. A writ of right of ward of the 
 land and heir. Abolished. 
 
 RECTO DE DOTE. A writ of right of 
 dower, which lay for a widow who had re- 
 ceived part of her dower, and demanded the 
 residue, against the heir of the husband or 
 his guardian. Abolished. See 23 & 24 Vict, 
 c. 126, § 26. 
 
 RECTO DE DOTE UNDE NIHIL HABET. 
 
 A writ of right of dower whereof the widow 
 had nothing, which lay where her deceased 
 husband, having divers lands or tenements, 
 had assured no dower to his wife, and she 
 thereby was driven to sue for her thirds 
 against the heir or his guardian. Abolished. 
 
 RECTO DE RATIONABILI PARTE. A 
 
 writ of right, of the reasonable part, which 
 lay between privies in blood; as brothers 
 in gavelkind, sisters, and other coparceners, 
 lor land in fee simple. Fitzh. Nat. Brev. 9. 
 
 RECTO QUANDO (or QUIA) DOMINUS 
 remisit curiam. A writ of right, when or 
 because the lord had remitted his court, 
 which lay where lands or tenements in the 
 seigniory of any lord were in demand by a 
 writ of right. Fitzh. Nat. Brev. 16. 
 
 RECTO SUR DISCLAIMER. An abolished 
 writ on disclaimer. 
 
 RECTOR. In ecclesiastical law. One who 
 rules or governs. A name given to certain 
 officers of the church. 
 
 RECTOR PROVINCIAE (Lat.) In the Ro- 
 man law. The governor of a province. 
 Code, 1. 40. 
 
 RECTORY. In English law. Corporeal 
 real property, consisting of a church, glebe 
 lands, and tithes. 1 Chit. Prac. 163. 
 
 RECTUM (Lat.) Right; also a trial or ac- 
 cusation. Bracton; Cowell. 
 
 RECTUM ESSE. To be right in court. 
 
 RECTUM ROGARE. To ask for right; to 
 petition the judge to do right. 
 
 RECTUM, STARE AD. To stand trial or 
 abide by the sentence of the court. 
 
 RECTUS IN CURIA (Lat. right in court). 
 The condition of one who stands at the bar, 
 against whom no one objects any offense, or 
 prefers any charge. 
 
 When a person outlawed has reversed his 
 outlawry, so that he can have the benefit of 
 the law, he is said to be rectus in curia. Ja- 
 cob. 
 
 RECUPERATIO, i. e., AD REM, PER IN- 
 jurlam extortam sive detentam, per senten- 
 tiam judicis restitutio. Recovery, i. c, res- 
 titution by sentence of a judge of a thing 
 wrongfully extorted or detained. Co. Litt. 
 151a. 
 
 RECUPERATIO EST ALICUJUS REI IN 
 causam, alterius adductae per judicem ac- 
 quisitio. Recovery is the acquisition by sen- 
 tence of a judge of anything brought into the 
 cause of another. Co. Litt. 154a. 
 
 RECUPERATORES (Lat.) In Roman law. 
 A species of judges originally established, 
 it is supposed, to decide controversies be- 
 tween Roman citizens and strangers con- 
 cerning the right to the possession of prop- 
 erty requiring speedy remedy, but gradually 
 extended to questions which might be 
 brought before ordinary judges. 
 
 After the enlargement of their powers, the 
 difference between them and judges, it is 
 supposed, was simply this: If the praetor 
 named three judges, he called them recupera- 
 tores; if one, he called him judex. But 
 opinions on this subject are various. Col- 
 man, De Romano jiidicio reciiperatorio. Cice- 
 ro's oration (Pro Coecin. 1, 3) was addressed 
 to recuperators. 
 
 RECURRENDUM EST AD EXTRAORDl- 
 narium quando non valet ordinarium. We 
 
 must have recourse to what is extraordinary 
 when what is ordinary fails. 
 
 RECUSANT. In English law. A person 
 who refuses to make the declarations against 
 popery, and promotes, encourages, or pro- 
 fesses the popish religion. 
 
 RECUSATIO TESTIS. In the civil law, 
 rejection of a witness on the ground of in- 
 competency. 
 
 RECUSATION. In civil law. A plea or 
 exception by which the defendant requires 
 that the judge having jurisdiction of the 
 cause should abstain from deciding, upon 
 the ground of interest, or for a legal objec- 
 tion to his prejudice. 
 
 A recusation is not a plea to the jurisdic- 
 
RED BOOK, KTC. 
 
 (780) 
 
 REDHIBEEE 
 
 tion of the court, but simply to the person 
 of the judge. It may, however, extend to all 
 the judges, as when the party has a suit 
 against the whole court. Poth. Proc. Civ. 
 lere pt. ch. 2, § 5. It is a personal chal- 
 lenge of the judge for cause. See 2 La. 390; 
 6 La. 134. 
 
 The challenge of jurors. Code Prac. La. 
 arts. 499, 500. An act, of what nature soever 
 It may be, by which a strange heir, by deeds 
 or words, declares he will not be heir. Dig. 
 29. 2. 95. See, generally, 1 Hopk. Ch. (N. Y.) 
 1; 5 Mart. (La.) 292. 
 
 RED BOOK OF THE EXCHEQUER. An 
 
 ancient record, wherein are registered the 
 holders of lands' per haroniam in the time of 
 Henry III., the number of hides of land in 
 certain counties before the Conquest, and the 
 ceremonies on the coronation of Eleanor, 
 wife of Henry III., compiled by Alexander de 
 Swenford, archdeacon of Salop, and treas- 
 urer of St. Paul's, who died in 1246. 31 
 Hen. III.; Jacob; Cowell. 
 
 REDDENDO SINGULA SINGULIS (Lat.) 
 Referring particular things to particular 
 persons. For example, when two descrip- 
 tions of property are given together in one 
 mass, both the next of kin and the heir can- 
 not take, unless in cases where a construc- 
 tion can be made reddendo singula singulis, 
 that the next of kin shall take the personal 
 estate, and the heir-at-law the real estate. 
 14 Ves. 490. See 11 Bast, 513, note; Bac. 
 Abr. "Conditions" (L). 
 
 REDDENDUM (Lat.) That clause in a 
 deed by which the grantor reserves some- 
 thing new to himself out of that which he 
 granted before. It usually follows the te- 
 nendum, and is generally in these words, 
 "yielding and paying." In every good red- 
 dendum: or reservation these things must 
 concur, namely: It must be in apt words; 
 it must be of some other thing issuing or 
 coming out of the thing granted, and not a 
 part of the thing itself, nor of something 
 issuing out of another thing; it must be of a 
 thing on which the grantor may resort to 
 distrain; it must be made to one of the 
 grantors, and not to a stranger to the deed. 
 See 2 Bl. -Comm. 299; Co. Litt. 47; Shop. 
 Touch. 80; Cruise, Dig. tit. 32, c. 24, § 1; 
 Dane, Abr. Index. 
 
 REDDENS CAUSAM SCIENTIAE. Giving 
 the reason of his knowledge. 
 
 In Scotch Practice. A formal phrase 
 
 used in depositions, preceding the statement 
 of the reason of the witness' knowledge. 2 
 How. St. Tr. 715. 
 
 REDDERE, NIL ALIUD EST GUAM AC- 
 ceptum restituere; seu, reddere est quasi 
 retro dare, at redditur dicitur a redeundo, 
 quia retro it. To render is nothing more 
 than to restore that which has been re- 
 ceived; or, to render is, as it were, to give 
 back, and it is called "rendering" from "re- 
 turning," because it goes back again. Co. 
 Litt. 142. 
 
 REDDIDIT SE (Lat.) In English practice. 
 
 An indorsement made on the bail piece when 
 a certificate has been made by the proper 
 officer that the defendant is In custody. 
 Comyn, Dig. "Bail" (Q 4). 
 
 REDDITARIUIVl (Law Lat. from redditus). 
 In old records. A rental, or rent roll. Cow- 
 ell. 
 
 REDDITION. A judicial confesBion or ac- 
 knowledgment that the thing in demand be- 
 longs to the demandant, and not to the per- 
 son surrendering. Cowell. 
 
 REDDITUS SICCUS. See "Redltus Sic- 
 cus." 
 
 REDDOUR (Law Fr.) A rendering. Kel- 
 ham. 
 
 REDEEIVI. See "Redemption." 
 
 REDEEMABLE RIGHTS. Rights which 
 return to the conveyor or disposer of land, 
 etc., upon payment of the sum for which 
 such rights are granted. 
 
 REDELIVERY. A yielding and delivering 
 back of a thing. 
 
 REDEMISE. A regranting of land demised 
 or leased. 
 
 REDEMPTIO (Law Lat.) In old English 
 law. A ransom, or fine. St. Marlb. c. 1. 
 Spelman calls it the heaviest kind of fine 
 {mulcta gravissima) , and makes it to be 
 the same with the Saxon "were" or "were- 
 gild." 
 
 REDEIVIPTION (Lat. re, red. back, emptio, 
 a purchase). A purchase back by the seller 
 from the buyer. It is applied to denote the 
 performance of the conditions upon per- 
 formance of which a conditional sale is to 
 become ineffective as a transfer of title, or, 
 more strictly, a right to demand a reconvey- 
 ance becomes vested in the seller. In the 
 case of mortgages, this right is a legal right 
 until a breach of conditions, when it be- 
 comes an equitable right, and is called the 
 "equity of redemption." 
 
 The term is applied to the statutory right 
 of one whose property is sold at various 
 forced sales other than mortgage foreclosure 
 (e. g., for taxes) to buy the same back with- 
 in a fixed time, ordinarily for the price paid 
 by the purchaser, with interest and costs. 
 
 REDEMPTION, EQUITY OF. See "Equity 
 of Redemption." 
 
 REDEMPTIONE (Lat.) Heavy fines. Dis- 
 tinguished from misericordia {q. v.) 
 
 REDEUNDO (Lat.) Returning; in return- 
 ing; while returning. 3 East, 89; 2 Strange, 
 985. 
 
 REDHIBERE (Lat.) In the civil law. To 
 have again; to have back; to cause a seller 
 to have again what he had before. Dig. 21. 1. 
 21. pr. 
 
 The returning of a thing purchased to the 
 seller. 
 
REDHIBITION 
 
 (781) 
 
 RE-EXCHANG'E 
 
 REDHIBITION. In civil law. The return- 
 ing of a tiling purchased to the seller, on 
 the ground of some defect or fraud. Calv. 
 Lex. The avoidance of a sale on account 
 of some vice or defect in the thing sold, 
 which renders its use impossible, or so in- 
 convenient and imperfect that it must be 
 supposed that the buyer would not have pur- 
 chased it had he known of the vice. Civ. 
 Code La. art. 2496. 
 
 This is essentially a civil-law right. The 
 effect of the rule expressed by the maxim 
 caveat emptor is to prevent any such right 
 at common law, except in cases of express 
 warranty. 2 Kent, Comm. 374; Sugd. Vend. 
 222. 
 
 REDHIBITORY ACTION. In civil law. An 
 action instituted to avoid a sale on account 
 of some vice or defect in the thing sold 
 which renders its use impossible, or so in- 
 convenient and imperfect that it must be 
 supposed the buyer would not have pur- 
 chased it had he known of the vice. Civ. 
 Code La. art. 2496. 
 
 REDHIBITORY DEFECT (or VICE). In 
 
 the civil law. A defect in an article sold, 
 for which the seller may be compelled to 
 take it back; a defect against which the 
 seller is bound to warrant. Poth. Contr. Sale, 
 No. 203. 
 
 REDISSEISIN. In old English law. A sec- 
 ond disseisin of a person of the same tene- 
 ments, and by the same disseisor, by whom 
 he was before disseised. 3 Bl. Comm. 188; 
 Pleta, lib. 4, c. 29. Called in the statute of 
 Marlbridge (chapter 8) a repeated disseisin. 
 
 The name of a writ which lay in such 
 case {hreve de redissesina) . Reg. Grig. 
 206b. 
 
 REDITUS ALBI (Lat.) A rent payable in 
 money; sometimes called "white rent," or 
 "blanche farm." See "Alba ;^irma." 
 
 REDITUS ASSISUS. A set or standing 
 rent. 
 
 REDITUS CAPITALES. Chief rent paid 
 hy freeholders to go quit of all other serv- 
 ices. 
 
 REDITUS NIGRI (Lat.) A rent payable 
 In grain, work, and the like. It was also 
 called "black mail." This name was given 
 to it to distinguish it from reditus aWi, 
 which was payable in money. 
 
 REDITUS QUIETI. Quit rents (q.v.) 
 
 REDITUS SICCUS. Rentseck. See"Rent." 
 
 REDMEN. Customary tenants required to 
 ride on the business or errands of their lord. 
 
 REDOBATORES (Law Lat.) Those that 
 buy stolen cloth, and turn it into some other 
 color or fashion, that it may not be recog- 
 nized; redubbers. Barr. Obs. St. (2d Ed.) 
 87, note; 3 Inst. 134; Britt. c. 29. 
 
 REDRAFT. In commercial law. A bill of 
 exchange drawn at the place where another 
 
 bill was made payable, and where it was 
 protested, upon the place where the first bill 
 was drawn, or, when there is no regular 
 commercial intercourse rendering that prac- 
 ticable, then in the next best or most direct 
 practicable course. 1 Bell, Comm. (5th Ed.) 
 406. See "Re-Exchange." 
 
 REDRESS. The act of receiving satisfac- 
 tion for an injury sustained. For the mode 
 of obtaining redress, see "Remedies;" 1 Chit. 
 Prac. Anal. Table. 
 
 REDUBBOURS (LawFr.; Law Lat. redofto- 
 tores, g. v.) In old English law. Persons 
 who knowingly bought stolen clothes, and 
 changed them into another form; achatauntz 
 ascient dras embles, et les attirent en auter 
 forme. Britt. c. 29; Cowell. 
 
 REDUCTION. In Scotch law. An action 
 brought for the purpose of rescinding, an- 
 nulling, or cancelling some deed, bond, con- 
 tract, or other instrument in writing. 1 
 Forbes, Inst. pt. 4, pp. 158, 159. See Bell, 
 Diet. 
 
 REDUCTION EX CAPITE LECTI. By the 
 
 law of Scotland, the heir in heritage was en- 
 titled to reduce all voluntary deeds granted 
 to his prejudice by his predecessor within 
 sixty days preceding the predecessor's death; 
 provided the maker of the deed, at its date, 
 was laboring under the disease of which he 
 died, and did not subsequently go to kirk or 
 market unsupported. Bell, Diet. Abolished 
 34 & 35 Vict. c. 81. 
 
 REDUCTION IMPROBATION. In Scotch 
 law. One form of the action of reduction, 
 in which falsehood and forgery are alleged 
 against the deed or document sought to be 
 set aside. Bell, Diet. 
 
 REDUCTION INTO POSSESSION. The 
 
 act of exercising the right conferred by a 
 chose in action, so as to convert it into a 
 chose in possession; thus, a debt is reduced 
 into possession by payment. 
 
 REDUNDANCY. In pleading. The aver- 
 ment of matter foreign to the issue, or the 
 needless repetition of immaterial averments. 
 5 Sandf. (N. Y.) 660. 
 
 RE-ENTRY. The resuming or retaking of 
 that possession of lands and tenements 
 which one has lately foregone. See "Entry." 
 
 REEVE. An ancient English officer of jus- 
 tice, inferior in rank to an alderman. He 
 was a ministerial officer appointed to exe- 
 cute process, keep the king's peace, and put 
 the laws in execution. He witnessed all 
 contracts and bargains, brought offenders to 
 justice, and delivered them to punishment, 
 took bail for such as were to appear at the 
 county court, and presided at the court or 
 folcmote. He was also called "gerefa." 
 
 There were several kinds of reeves; as, 
 the shire gerefa, shire reeve, or sheriff; the 
 heh gerefa, or high sheriff, tithing reeve, 
 burgh or borough reeve. 
 
 RE-EXCHANGE. The expense incurred by 
 a bill's being dishonored in a foreign coun- 
 
REFALO 
 
 (782) 
 
 REFORMATORY 
 
 try, where it is made payable and returned 
 to that country in which it was made or in- 
 dorsed, and there talien up. 11 East, 265; 
 2 Campb. 65. 
 
 It is the sum for which a sight hill must 
 be drawn at the time and place of dishonor 
 at the then rate of exchange on the place 
 where the drawer or indorser sought to be 
 charged resides, in order to realize, at the 
 place of dishonor, the amount of the dis- 
 honored bill, and the expenses consequent 
 on its dishonor. 2 Daniell, Neg. Inst. § 1445. 
 See "Redraft." 
 
 REFALO. A word composed of the three 
 Initial syllables re. fa. lo., for recordari 
 facias loquelam. 2 Sellon, Prac. 160; 8 
 Dowl. 5J4. 
 
 REFECTION (Lat. re, again, facio, to 
 make). In civil law. Reparation; re- 
 establishment of a building. Dig. 19. 1. 6. 1. 
 
 REFEREE. The person to whom a refer- 
 ence (g. V.) is made. 
 
 REFEREE IN CASE OF NEED. A person 
 whose name may be inserted in a bill of 
 exchange by the drawer or an indorser, to 
 whom the holder may resort in case the bill 
 is dishonored by nonacceptance or nonpay- 
 ment. The usual form is "in case of need, 
 
 apply to ." Chit. Bills, 165; N. Y. Neg. 
 
 Inst. Law, § 215. 
 
 REFERENCE. A sending or direction to 
 a person or place. 
 
 In Contracts. A statement in a writ- 
 ing, wherein it points to another for the mat- 
 ters therein contained. 
 
 In Mercantile Law. A direction or re- 
 quest by a party who asks a credit to the 
 person from whom he desires it to some 
 other person named, in order to ascertain 
 the character or mercantile standing of the 
 former. 
 
 In Practice. The sending of a pend- 
 ing cause, or some question therein, by the 
 court in which it is pending, to a private 
 person to hear and determine the cause, or 
 some question therein, or to take evidence 
 and report the same, with or without his 
 opinion thereon, to the court. 
 
 Distinguished from arbitration. The sub- 
 mission of a controversy to a private person 
 by the parties is sometimes called "refer- 
 ence," but the term "reference" properly ap- 
 plies only to reference by a court in the ex- 
 ercise of its powers as such, whether it be 
 with or without the consent of the parties. 
 The cases in which reference may be made, 
 and the powers and duties of referees, are 
 governed by varying statutes. Generally 
 speaking, any cause may be referred with the 
 consent of the parties, and any cause in 
 which there is no constitutional right to a 
 jury trial may be referred, in the discretion 
 of the court. Whether the referee merely 
 report evidence or determine the cause, his 
 report must be confirmed by the court ap- 
 pointing him, and the court has extensive 
 power of revision on motion to confirm. 
 
 REFERENCE IN CASE OF NEED. See 
 
 "Referee in Case of Need." 
 
 REFERENCE TO RECORD. Under the 
 English practice, when an action is com- 
 menced, an entry of it is made in the cause 
 book according to the year, the initial letter 
 of the surname of the first plaintiff, and the 
 place of the action, in numerical order 
 among those commenced in the same year, 
 e. g., "1876, A. 26;" and all subsequent doc- 
 uments in the action (such as pleadings 
 and affidavits) bear this mark, which is 
 called the "reference to the record." 
 
 REFERENDARIUS (Lat.) An officer by 
 whom the order of causes was laid before the 
 Roman emperor, the desires of petitioners 
 made known, and answers returned to them. 
 Vicat; Calv. Lex. 
 
 REFERENDARY. In Saxon law. A mas- 
 ter of requests; an officer to whom peti- 
 tions to the king were referred. Spelman. 
 
 REFERENDO SINGULA SINGULIS (Lat.) 
 Referring individual or separate words to 
 separate subjects; making a distributive 
 reference of words in an instrument; con- 
 struing distributively. 11 East, 322; 2 Pow- 
 ell, Dev. 112. 
 
 REFERENDUM (Lat.) In international 
 law. A note addressed by an ambassador to 
 his government, submitting to its considera- 
 tion propositions made to him touching an 
 object over which he has no sufficient power, 
 and is without instructions. When such a 
 proposition is made to an ambassador, he 
 accepts it ad referendum ; that is, under the 
 condition that it shall be acted upon by his 
 government, to which it is referred. 
 
 In Political Economy. A system of 
 
 legislation, whereby proposed laws are sub- 
 mitted to the popular vote. 
 
 REFORM. To reorganize; to rearrange. 
 Thus, the jury "shall be reformed by putting 
 to and taking out of the persons so impan- 
 elled." St. 3 Hen. VIII. c. 12; Bac. Abr. 
 "Juries" (A). 
 
 To reform an instrument in equity is to 
 make a decree that a deed or other agree- 
 ment shall be made or construed as it was 
 originally intended by the parties, when an 
 error or mistake as to a fact has been com- 
 mitted. A contract has been reformed al- 
 though the party applying to the court was 
 in the legal profession, and he himself drew 
 the contract, it appearing clear that it was 
 framed so as to admit of a construction 
 inconsistent with the true agreement of the 
 parties. 1 Sim. & S. 210; 3 Russ. 424. But 
 a contract will not be reformed in conse- 
 quence of an error of law. 1 Russ. & M. 418; 
 1 Chit. Prac. 124. 
 
 REFORMATORY. All places and institu- 
 tions in which efforts are made either to 
 cultivate the intellect, instruct the con- 
 science, or improve the conduct; places in 
 which persons voluntarily assemble, receive 
 instruction, and submit to discipline, or are 
 detained therein for either of these purposes 
 by force. 49 Conn. 35. Ordinarily applied to 
 penal or quasi penal institutions; but it was 
 said in the case above cited to be a term of 
 
REFRESH THE MEMORY 
 
 (783) 
 
 REGIA VIA 
 
 too uncertain signification to support a be- 
 quest for ttie purpose of building a reforma- 
 tory. 
 
 REFRESH THE MEMORY. To revive the 
 recollection of a subject by referring to some- 
 thing connected with. it. Commonly applied 
 to the right of a witness to refer, even on 
 the stand, to memoranda made by him at the 
 time of a transaction, but which are not of 
 themselves evidence, to refresh his recollec- 
 tion. See 5 Wend. (N. Y.) 301; 6 Pick. 
 (Mass.) 222; 2 Conn. 213. 
 
 REFRESHER. In English practice. A fee 
 paid to counsel on the trial of an action, in 
 addition to the retainer paid him with his 
 brief. In the practice of the queen's bench 
 division, a refresher is usually paid to 
 counsel for every day a trial lasts after the 
 ■first day. 
 
 REFULLUM (Law Lat.) In old English 
 law. A flowing back. Fleta, lib. 4, c. 27, 
 § 4. 
 
 REFUND. To pay back by the party who 
 has received it, to the party who has paid it, 
 money which ought not to have been paid. 
 
 On a deficiency of assets, executors and 
 administrators ctim testamento annexo are 
 entitled to have refunded to them legacies 
 which they may have paid, or so much as 
 may be necessary to pay the debts of the 
 testator; and in order to insure this they 
 are generally authorized to require a refund- 
 ing bond. See Bac. Abr. "Legacies" (H). 
 
 REFUSAL. The act of declining to re- 
 ceive or to do something. In some cases, a 
 neglect to perform a duty will be construed 
 as a refusal; but, ordinarily, demand is 
 essential to refusal. 6 Gray (Mass.) 224. 
 
 Refusal is sometimes used in the sense of 
 "option;" thus, to "give a refusal" of prop- 
 erty means to give an option of buying it. 
 
 REFUTANTIA (Law Lat.) In old records. 
 An acquittance or acknowledgment of re- 
 nouncing all future claim. Cowell. 
 
 REG. GEN. An abbreviation of regula gene- 
 ralis. 6 Bast, 1. 
 
 REGAL FISH. Whales and sturgeons. 2 
 Steph. Comm. 19, note 448. 
 
 REGALE (Law Lat.) In old French law. 
 A payment made to the seigneur of a fief, 
 on the election of every bishop or other ec- 
 clesiastical feudatory, corresponding with 
 the relief paid by a lay feudatory. Steph. 
 Lect. 235. 
 
 REGALIA. This seems to be an abbrevia- 
 tion of "jura regalia," royal rights, or those 
 rights which a king has by virtue of his 
 prerogative. Hence owners of counties pala- 
 tine were formerly said to have "jura re- 
 galia" in their counties as fully as the king 
 in his palace. 1 Bl. Comm. 117. 
 
 Some writers divide the royal prerogative 
 into majora and minora regalia, the former 
 including the regal dignity and power, the 
 latter the revenue or fiscal prerogatives of 
 the crown. 1 Bl. Comm. 117. 
 
 REGALIA FACERE. To do homage or 
 fealty to the sovereign by a bishop when he 
 is invested with the regalia. 
 
 REGALITY. A territorial jurisdiction in 
 Scotland conferred by the crown. The lands 
 were said to be given in Uberam, regalitatem, 
 and the persons receiving the right were 
 termed "lords of regality." Bell, Diet. 
 
 REGARD (Law Fr.) Reference; relation. 
 Kelham. Respect. Id. Reward; fee; a per- 
 quisite or allowance. Id. 
 
 REGARD, COURT OF, See "Court of Re- 
 gard." 
 
 REGARD OF THE FOREST. In old Eng- 
 lish law. The oversight or inspection of it, 
 or the office and province of the regarder, 
 who is to go through the whole forest, and 
 every bailiwick in it, before the holding of 
 the sessions of the forest, or justice seat, to 
 see and inquire after trespassers, and for the 
 survey of dogs. Manw. For. Law. 
 
 REGARDANT (Fr. seeing or vigilant). A 
 villein regardant was one who had the charge 
 to , do all base services within the manor, 
 and to see the same freed of annoyances. 
 Co. Litt. 120; 2 Bl. Comm. 93*. 
 
 REGARDATOR (Law Lat.) In old forest 
 law. A regarder (q.v.) Regardatores nostri 
 eant per forestas ad faciendum regardum., 
 our regarders shall go through the forests to 
 make regard. Cart, de Foresta, 9 Hen. III. 
 c. 5. 
 
 REGARDER (Law Lat. regardator; from 
 Law Fr. regardeur, an inspector). In for- 
 est law. An officer of the forest, appointed 
 to supervise all other officers. Cromp. 
 Jur. 153; Manw. For. Laws; Cowell. 
 
 REGE INCONSULTO (Lat.) In English 
 law. A writ issued from the sovereign to 
 the judges, not to proceed in a cause which 
 may prejudice the crown, until advised. 
 Jenk. Cent. Cas. 97. 
 
 REGENCY. The authority of the person 
 in monarchical countries invested with the 
 right of governing the state, in the name of 
 the monarch, during his minority, absence, 
 sickness, or other inability. 
 
 REGENT. A ruler; a governor. The term 
 is usually applied to one who governs a re- 
 gency, or rules in the place of another. 
 
 In the canon law, it signifies a master or 
 professor of a college. Diet. Canonique. 
 
 It sometimes means simply a ruler, direct- 
 or, or superintendent; as in New York, 
 where the board who have the superintend- 
 ence of all the colleges, academies, and 
 schools are called the "Regents of the Uni- 
 versity of the State of New York." 
 
 REGIA DIGNITAS EST INDIVISIBILIS, 
 et quaellbet alia derivativa dignitas est si- 
 militer indivislbills. The kingly power is in- 
 divisible, and every other derivative power 
 is similarly indivisible. 4 Inst. 243. 
 
 REGIA VIA (Lat.; Law Fr. real chymin). 
 
REGIAM MAJESTATEM 
 
 (784) 
 
 REGRATING 
 
 In old English law. The royal way; the 
 king's highway. Co. Litt. 56a. 
 
 REGIAM MAJESTATEM (Lat.) An an- 
 cient book purporting to contain the law of 
 Scotland, and said to have been compiled by 
 King David, who reigned 1124-1153. It is 
 not part of the law of Scotland, though it 
 was ordered to be revised with other ancient 
 laws of Scotland by parliaments of 1405 and 
 1407. Stair, Inst. p. 12, § 16; Id. p. 508, § 
 27. So Craig, Inst. 1. 8. 11; Scott, Border 
 Antiq. prose works, 7, 30; but Ersk. Inst. bk. 
 1, tit. 1, § 32, and Ross, Lect. 11, p. 60 et 
 seq., maintain its authenticity. It is cited in 
 some modern Scotch cases. 2 Swin. 409; 3 
 Bell, H. L. Sc. It is, according to Dr. Rob- 
 ertson, a servile copy of Glanvllle. Robert- 
 son, Hist. Charles V., vol. 1, note 25, p. 262; 
 Ersk. Inst. 1. 1. 3. 
 
 REGICIDE (Lat. rex, king, cedere, to kill, 
 slay). The killing of a king, and, by exten- 
 sion, of a queen. Theorie des Lois Crim- 
 " inelles, vol. 1, p. 300. 
 
 REG I DOR. In Spanish law. One of a body, 
 never exceeding twelve, who formed a part 
 of the ayuntamiento, or municipal council, in 
 every capital of a jurisdiction in the colonies 
 of the Indies. The office of regidor was held 
 for life; that is to say, during the pleasure 
 ■of the supreme authority. In most places 
 the office was purchased. In some cities, 
 bowever, they were elected by persons of the 
 district, called capitulares. 12 Pet. (U. S.) 
 442, note. 
 
 REGIME DOTAL. In French law. The 
 dot, being the property which the wife brings 
 to the husband as her contribution to the 
 support of the burdens of the marriage, and 
 which may either extend as well to future as 
 to present property, or be expressly confined 
 to the present property of the wife, is sub- 
 ject to certain regulations whioh are sum- 
 marized In the phrase "regime dotal." The 
 tusband has the entire administration dur- 
 ing the marriage; but, as a rule, where the 
 dot consists of immovables, neither the hus- 
 band nor the wife, nor both of them to- 
 gether, can either sell or mortgage it. The 
 dot is returnable upon the dissolution of the 
 marriage, whether by death or otherwise. 
 Brown. 
 
 REGIMIENTO. In Spanish law. The body 
 of regidores, who never exceeded twelve, 
 forming a part of the municipal council, or 
 ayuntamiento, in every capital of a jurisdic- 
 tion. 12 Pet. (U. S.) 442, note. 
 
 REGISTER, or REGISTRAR. An officer 
 authorized by law to keep a record called a 
 ■"register" or "registry;" as, the register for 
 the probate of wills. 
 
 REGISTER OF WRITS. A book preserved 
 in the English court of chancery, in which 
 were entered, from time to time, all forms 
 of writs once issued. St. Westminster II. 
 o. 25. 
 
 It is spoken of as one of the most ancient 
 books of the common law. Co. Litt. 159; 
 
 4 Inst. 150; 8 Coke, pref.; 3 Bl. Comm. 183*. 
 It was first printed and published in the 
 reign of Hen. VIII. This book is still in 
 authority, as containing, in general, an ac- 
 curate transcript of the forms of all writs as 
 then framed, and as they ought still to be 
 framed in modern practice. But many of 
 the writs now in use are not contained in it; 
 and a variation from the register is not con- 
 clusive against the propriety of a form, if 
 other sufficient authority can be adduced to 
 prove its correctness. Steph. PI. 7, 8. 
 
 REGISTER'S COURT. In American law. 
 A court in the state of Pennsylvania, which 
 has jurisdiction in matters of probate. 
 
 REGISTRARIUS (Lat.) An ancient name 
 given to a notary. In England this name is 
 confined to designate the officer of some 
 court the records or archives of which are 
 in his custody. 
 
 REGISTRUM BREVIUM (Lat.) The name 
 of an ancient book which was a collection 
 of writs. See "Register of Writs." 
 
 REGISTRY. A book, authorized by law, in 
 which writings are registered or recorded. 
 
 REGLAMENTO (Spanish). In Spanish 
 colonial law. A written instruction given 
 by a competent authority, without the ob- 
 servance of any peculiar form. Schmidt, 
 Civ. Law, introd. 93, note. 
 
 REGNAL YEARS. A table of the English 
 regnal years will be found in this work un- 
 der title "King." 
 
 REGNANT. One having authority as a 
 king; one in the exercise of royal authority. 
 
 REGNI POPULI. A name given to the 
 people of Surrey and Sussex, and on the sea 
 coasts of Hampshire. Blount. 
 
 REGNUM ECCLESIASTICUM. The eccle- 
 siastical kingdom. 2 Hale, P. C. 324. 
 
 REGNUM NON EST DIVISIBILE. The 
 
 kingdom is not divisible. Co. Litt. 165. 
 
 REGRANT. In the English law of real 
 property, when, after a person has made a 
 grant, the property granted comes back to 
 him (e. g., by escheat or forfeiture), and he 
 grants it again, he is said to regrant it. The 
 phrase is chiefly used in the law of copy- 
 holds. Thus, before the fines and recoveries 
 act, one mode of barring an entail in copy- 
 hold was a preconcerted forfeiture by the 
 tenant, followed by a regrant to him in fee 
 by the lord. 
 
 REGRATING. In criminal law. Every 
 practice or device, by act, conspiracy, words, 
 or news, to enhance the price of victuals or 
 other merchandise, is so denominated. 3 
 Inst. 196; 1 Russ. Crimes, 169. 
 
 In the Roman law, persons who monopo- 
 lized grain, and other produce of the earth, 
 were called dardanarii. and were variously 
 punished. Dig. 47. 11. 6. 
 
REGRESS 
 
 (78S) 
 
 REJOINING GRATIS 
 
 REGRESS. Returning; going back; op- 
 posed to "ingress." 
 
 REGULA (Lat.) In practice. A rule. Beg- 
 ula generalis, a general rule; a standing 
 rule or order of a court. Frequently abbre- 
 viated Reg. Gen. 
 
 REGULA CATONIANA (Lat.) In the Ro- 
 man law. The rule of Cato; a rule respect- 
 ing the validity of dispositions by will. See 
 Dig. 34. 7. 
 
 REGULA EST, JURIS QUIDEM IGNO- 
 rantiam cuique nocere, fact! vero ignoran- 
 tiam non nocere. The rule is, that igno- 
 rance of law does not excuse, but that 
 ignorance of a fact may excuse a party from 
 the legal consequences of his conduct. Dig. 
 22. 6. 9; Broom, Leg. Max. (3d London Ed.) 
 232. See Irving, Civ. Law (4th Ed.) 74. 
 
 REGULA PRO LEGE, SI DEFICIT LEX. 
 
 In default of the law, the maxim rules. 
 
 REGULAR CLERGY. Monks who lived ac- 
 cording to the rules of their respective 
 houses or societies, in contradistinction to 
 the parochial clergy, who did their duties 
 "in seculo," and hence were called secular 
 clergy. 1 Bl. Comm. 387, note. 
 
 REGULAR DEPOSIT. One where the 
 thing deposited must be returned. It is dis- 
 tinguished from an "irregular deposit." See 
 "Deposit." 
 
 REGULAR PROCESS. Regular process is 
 that which has been lawfully issued by a 
 court or magistrate having competent juris- 
 diction. 
 
 REGULARITER (Law Lat.) In old Eng- 
 lish law. Regularly; strictly; according to 
 rule; as a general rule. Bracton, fol. 87b. 
 223. 
 
 REGULARITER, NON VALET PACTUM 
 de re mea non alienanda. Regularly, a con- 
 tract not to alienate my property is not bind- 
 ing. Co. Litt. 223. 
 
 REGULARS. In ecclesiastical law. Those 
 who profess and follow a certain rule of 
 life (regula), belong to a religious order, 
 and observe the three approved vows of 
 poverty, chastity, and obedience. Wharton. 
 
 REGULATE. To direct, govern, or re- 
 strict a governmental power to regulate does 
 not include a power to prohibit. 39 N. J. 
 Law, 44; 70 Mich. 396. 
 
 REGULUS (Lat.) In Saxon law. A title 
 sometimes given to the earl or comes, in 
 old charters. Spelman. 
 
 REHABERE FACIAS SEISINAM (Lat. do 
 you cause to regain seisin). When a sheriff 
 in the habere facias seisinam had delivered 
 seisin of more than he ought, this judicial 
 writ lay to make him restore seisin of the 
 excess. Reg. Jud. 13. 51. 54. 
 
 REHABILITATION. The act by which 
 a man is restored to his former ability, of 
 which he had been deprived by a conviction, 
 sentence, or judgment of a competent tribu- 
 nal. 
 
 REHEARING. 
 
 In Appellate Practice. A second con- 
 sideration, on further argument, given to a 
 cause after decision. 
 
 In Chancery Practice. A retrial of the 
 
 issues; a new trial. See "New Trial." 
 
 REl (Lat.; plur. of iciik, g. ;■.) In the 
 civil law. In a special sense, persons from 
 whom a thing is demanded {ii unde peti- 
 tur). Heinec. Elem. Jur. Civ. lib. 3, tit. 17, 
 § 841. Defendants. In a general sense, 
 parties to an action; litigating parties (ii 
 quorum de re disceptatur) , including both 
 the actor and the reus proper. Id. Parties 
 to a contract. Id. 
 
 REl INTERVENUS (Lat.) When a party 
 is imperfectly bound in an obligation, he 
 may, in general, annul such imperfect obli- 
 gation; but when he has permitted the op- 
 posite party to act as if his obligation or 
 agreement were complete, such things have 
 intervened as to deprive him of the right to 
 rescind such obligation. These circumstan- 
 ces are the rei interventus. 1 Bell, Comm. 
 (5th Ed.) 328, 329; Burton, Man. Scot. 128. 
 
 REl TURPIS NULLUIVl IVIANDATUIVI EST. 
 A mandate of an Illegal thing is void. Dig. 
 17. 1. 6. 3. 
 
 REIF (Scotch; from Saxon reaf). In old 
 Scotch law. Robbery. Skene ad Leg. Alex- 
 andri R. c. 2, par. 2; Cowell. 
 
 REINSURANCE. Insurance effected by an 
 underwriter upon a subject against certain 
 risks with another underwriter, on the same 
 subject, against all or a part of the same 
 risks, not exceeding the same amount. In 
 the original insurance, he is the insurer; in 
 the second, the assured. 
 
 REIPUBLICAE INTEREST VOLUNTAT- 
 es defunctorum effectum sortirl. It concerns 
 the state that the wills of the dead should 
 have their effect. 
 
 REISSUABLE NOTES. Bank notes which, 
 after having been once paid, may again be 
 put into circulation. 
 
 They cannot properly be called "valuable 
 securities" while in the hands of the maker, 
 but, in an indictment, may properly be called 
 "goods and chattels." Ryan & M. 218. See 
 5 Mason (U. S.) 537; 2 Rubs. Crimes, 147. 
 And such notes would fall within the descrip- 
 tion of "promissory" notes. 2 Leach, C. C. 
 1090, 1093; Russ. & R. 232. 
 
 REJOINDER. In common-law pleading. 
 The defendant's answer to the plaintiff's 
 replication. The second pleading of defend- 
 ant in the common-law series. 
 
 REJOINING GRATIS. Rejoining within 
 four days from the delivery of the replica- 
 tion, without a notice to rejoin or demand 
 
RELATIO EST, ETC. 
 
 (786) 
 
 RELEASE 
 
 of rejoinder. Wharton, "Rejoinder;" 1 
 Archb. Prac. 280, 317; 10 Mees. & W. 12. 
 But judgment cannot be signed witliout de- 
 manding rejoinder. 3 Dowl. 537. 
 
 RELATIO EST FICTIO JURIS ET IN- 
 tenta ad unum. Relation is a fiction of law, 
 and intended for one tbing. 3 Coke, 28. 
 
 RELATIO SEMPER FIAT UT VALEAT 
 dispositio. Reference should always be had 
 in such a manner that a disposition in a will 
 may avail. 6 Coke, 76. 
 
 RELATION (Lat. re, back, fero, to bear). 
 
 In Civil Law. The report which the 
 
 judges made of the proceedings in certain 
 suits to the prince were so called. These 
 relations took place when the judge had no 
 law to direct him, or when the laws were 
 susceptible of diflSculties. It was then re- 
 ferred to the prince, who was the author of 
 the law, to give the interpretation. They 
 were made in writing, and contained the 
 pleadings of the parties and all the proceed- 
 ings, together with the judge's opinion, and 
 prayed the emperor to order what should be 
 done. This ordinance of the prince thus re- 
 quired was called a "rescript." Their use 
 was abolished by Justinian (Nov. 125). 
 
 In Contracts and Conveyances. A fic- 
 tion of law whereby an act done at one 
 time operates as if done at another time. 
 An act so operating is said to do so by rela- 
 tion. Thus, a deed not acknowledged until 
 long after its execution has been held to 
 take effect from its date, the acknowledg- 
 ment operating as of that time by relation. 
 75 Mo. 613. 
 
 RELATIVE. One connected with another 
 by blood or affinity; a relation; a kinsman 
 or kinswoman. In an adjective sense, hav- 
 ing relation or connection with some other 
 person or thing; as, relative rights, relative 
 powers. 
 
 R E LAT I V E FACT. In the law of evidence. 
 A fact having relation to another fact; a 
 minor fact; a circumstance. Burr. Circ. 
 Bv. 121, note (d). 
 
 RELATIVE POWERS. Those which re- 
 late to land. So called to distinguish them 
 from those which are collateral to it. 
 
 These powers are appendant; as, where a 
 tenant for life has a power of making leases 
 in possession. They are in gross when a 
 person has an estate in the land, with a 
 power of appointment, the execution of 
 which falls out of the compass of his estate, 
 but, notwithstanding, is annexed in privity 
 to it, and takes effect In the appointee out 
 of an interest appointed in the appointer. 2 
 Bouv. Inst, note 1930. 
 
 RELATIVE RIGHTS. Those to which a 
 person is entitled in consequence of his re- 
 lation with others; such as the rights of 
 a husband in relation to his wife; of a 
 father as to his children; of a master as 
 to his servant; of a guardian as to his ward. 
 
 In general, the superior may maintain an 
 action for an Injury committed against his 
 relative rights. 2 Bouv. Inst, notes 2277- 
 
 2296; 3 Bouv. Inst, note 3491; 4 Bouv. Inst, 
 notes 3615-3618. See "Action." 
 
 RELATIVORUM COGNITO UNO, COG- 
 
 noscitur et alterum. Of things relating ta 
 each other, one being known, the other is 
 known. Cro. Jac. 539. 
 
 RELATOR. A rehearser or teller; one- 
 who, by leave of court, brings an informa- 
 tion in the nature of a quo warranto, or oth- 
 er writ issuing in the name of the state, 
 on the relation of a private person. 
 
 RELATRIX (Law Lat. and Eng.) In prac- 
 tice. A female relator, or petitioner. 14 
 Pet. (U. S.) 500, 517. 
 
 RELAXARE (Law Lat.) In old convey- 
 ancing. To release. Relaxavi, relaxasse, 
 have released. Litt. § 445. In 10 Coke, 52b, 
 reference was made to a case in 4 Edw. VI., 
 where it was said that laxare is properly tO' 
 set prisoners in fetters at liberty, and re- 
 laxare is to do it quickly; and metaphorice 
 relaxare is to set at liberty fettered estates 
 and interests, and to make them free and 
 absolute. 
 
 RELAXATIO (Law Lat. from relaxare, q. 
 V.) In old conveyancing. A release; an 
 instrument by which a person relinquishes 
 to another his right in anything. Y. B. P. 
 18 Hen. VI. 9; Spelman. A deed of re- 
 lease. See "Release." 
 
 RELAXATION. In Old Scotch practice. 
 Letters passing the signet (g. v.) by which 
 a debtor was relaxed (released) from the 
 horn; that is, from personal diligence. Bell, 
 Diet. See "Horning." 
 
 RELEASE. The giving up or abandoning 
 a claim or right to the person against whom 
 the claim exists, or the right is to be ex- 
 ercised or enforced. 
 
 Releases may either give up, discharge, or 
 abandon a right of action, or convey a man's 
 interest or right to another who has posses- 
 sion of it, or some estate in the same. Shep. 
 Touch. 320; Litt. 444; Nelson, Abr.; Bac. 
 Abr.; Viner, Abr.; Rolle, Abr. In the for- 
 mer class, a mere right is surrendered; in 
 the other, not only a right is given up, but 
 an interest in the estate is conveyed and be- 
 comes vested in the releasee. 
 
 An express release is one directly made in 
 terms by deed or other suitable means. 
 
 An implied release is one which arises 
 from acts of the creditor or owner, without 
 any express agreement. See Poth. Obi. notes 
 608, 609. 
 
 A release by operation of law is one which, 
 though not expressly made, the law pre- 
 sumes in consequence of some act of the re- 
 leasor; for instance, when one of several 
 joint obligors is expressly released, the oth- 
 ers are also released by operation of law. 
 3 Salk. 298; Hob. 10, 66; 4 Mod. 380; 7 Johns. 
 (N. Y.) 207. 
 
 In Estates. The conveyance of a 
 
 man's interest or right which he hath unto 
 a thing, to another that hath the possession 
 thereof, or some estate therein. Shep. 
 Touch. 320. The relinquishment of some 
 
RELEASE BY WAY, ETC. 
 
 (787) 
 
 RELICTION 
 
 right or benefit to a person who has already 
 some interest in the tenement, and such In- 
 terest as qualifies him for receiving or avail- 
 ing himself of the right or benefit so re- 
 linquished. Burton, Real Prop. 15*. A dis- 
 charge or conveyance of a man's right in 
 lands or tenements to one that held some 
 former estate in possession. 2 Bl. Comm. 
 324. 
 
 The words generally used in such convey- 
 ance are "remised, released, and forever 
 quitclaimed." Litt. § 445. 
 
 Releases of land are, in respect of their 
 I operation, divided into five sorts: 
 
 (1) Releases that inure by way of passing 
 the estate, or iiiitter restate; c. g., a release 
 by joint tenant to co-joint tenant, which 
 conveyance will pass a fee without words of 
 limitation. 
 
 (2) Releases that inure by way of passing 
 the right, or mitter le droit; e. g., by dis- 
 seisee to disseisor. 
 
 (3) Releases that inure by enlargement of 
 the estate. Here there must be an actual 
 privity of estate at the time between re- 
 leasor and releasee, who must have an es- 
 tate actually vested in him capable of en- 
 largement. 
 
 (4) Releases that inure by way of extin- 
 guishment; e. g., a lord releasing his seign- 
 orial rights to his tenant. 
 
 (5) Releases that inure by way of feoff- 
 ment and entry; e. g., if there are two 
 disseisors, a release to one will give him a 
 sole estate, as if the disseisee had regained 
 seisin by entry, and enfeoffed him. 2 Bl. 
 Comm. 325*. See 4 Cruise, Dig. 71; Gilb. 
 Ten. 82; Co. Litt. 264; 3 Brock. (U. S.) 185; 
 2 Sumn. (U. S.) 487; 8 Pick. (Mass.) 143; 
 10 Pick. (Mass.) 195; 7 Mass. 381; 5 Har. 
 & J. (Md.) 158; 2 N. H. 402; 5 Paige, Ch. 
 (N. Y.) 299; 10 Johns. (N. Y.) 456. 
 
 The technicalities of English law as to re- 
 leases are not generally applicable in the 
 United States. The corresponding convey- 
 ance is a quitclaim deed. 2 Bouv. Inst. 416; 
 21 Ala. (N. S.) 125. 
 
 In Admiralty. An instrument under 
 
 seal of the court, commanding the marshal 
 to release a ship or other property arrested 
 in a proceeding in rem on the giving of bail 
 by the owner. 
 
 RELEASE BY WAY OF ENLARGING AN 
 
 estate. See "Release." 
 
 RELEASE BY WAY OF ENTRY AND 
 
 feoffment. See "Release." 
 
 RELEASE BY WAY OF EXTINGUISH- 
 
 ment. See "Release." 
 
 RELEASE BY WAY OF PASSING A 
 
 right. See "Release." 
 
 RELEASE BY WAY OF PASSING AN Es- 
 tate. See "Release." 
 
 RELEASE TO USES. The conveyance by 
 a deed of release to one party to the use of 
 another is so termed. Thus, when a convey- 
 ance of lands was effected, by those instru- 
 ments of assurance termed a "lease" and 
 "release," from A. to B. and his heirs, to 
 
 the use of C. and his heirs, in such case C. 
 at once took the whole fee 'simple in such 
 lands; B., by the operation of the statute 
 of uses, being made a mere conduit pipe for 
 conveying the estate to C, and B. was called 
 the "releasee to uses." 
 
 RELEASEE. A person to whom a release 
 is made. 
 
 RELEASOR. He who makes a release. 
 
 RELEGATIO (Lat.) A kind of banishment 
 known to the civil law, which did not take 
 away the rights of citizenship, which de- 
 portatio did. 
 
 Some say that relegatio was temporary, 
 deportatio perpetual; that relegatio did not 
 take away the property of the exile, and that 
 deportatio did; but these distinctions do 
 not seem always to exist. There was one 
 sort of relegatio for slaves, viz., in agras; 
 another for freemen, viz., in provincias. 
 Relegatio only exiled from certain limits; 
 deportatio confined to a particular place 
 {locus poenae). Calv. Lex. 
 
 RELEGATION (from Lat. relegatio, q. v.) 
 In old English law. Banishment for a 
 time only. Co. Litt. 133. 
 
 RELEVAMEN (Law Lat. from irlctare, to 
 lift up). In old English law. Relief; one 
 of the incidents of the feudal tenure. Lib. 
 Rames. § 310; Spelman. In Domesday Book 
 it is called relevamentum ; in the laws of 
 Edward the Confessor, relevatio; in Magna 
 Charta, and generally in old English and 
 Scotch law, rcleruim. Domesday Book, tit. 
 "Berocscire, Wallngford;" LL. Edw. Conf. 
 c. 35. 
 
 RELEVANCY. Applicability to the issue 
 joined. That quality of evidence which ren- 
 ders it properly applicable in determining 
 the truth or falsity of the matters in issue 
 between the parties to a suit. See 1 Greenl. 
 Bv. § 49. 
 
 RELEVANT. In the law of evidence. 
 Having relation; applicable. Relevant evi- 
 dence is evidence applicable to the issue. 
 
 RELICT. A widow; as, A. B., relict of C. 
 B.; A. B., widow of C. B. 
 
 RELICTA VERIFICATIONE (Lat. hia 
 pleading being abandoned). In pleading. A 
 confession of judgment made after plea 
 pleaded, viz., a cognovit actionem, accom- 
 panied by a withdrawal of the plea. 
 
 RELICTION (Lat. relinquo. to leave Be- 
 hind). An increase of the land by the ne- 
 treat or recession of the sea or a river. 
 Sometimes called "dereliction." 
 
 If the reliction be gradual, the landl he- 
 longs to the riparian owner, but if iitf. 1Jb3 
 sudden, and considerable, it belongs to thH; 
 state (13 N. Y. 296; 1 Gill & J. [Md.T 249')„ 
 unless the land has been previously lost by 
 submergence (100 N. Y. 424). 
 
RELIEF 
 
 (788) 
 
 REMAINDER 
 
 RELIEF. 
 
 In Feudal Law. A sum payable by the 
 
 new tenant, the duty being incident to every 
 feudal tenure, by way of fine or composition 
 with the lord for taking up the estate which 
 was lapsed or fallen in by the death of the 
 last tenant. At one time, the amount was 
 arbitrary; but afterwards the relief of a 
 knight's fee became fixed at one hundred 
 shillings. 2 Bl. Comm. 65. 
 
 In Practice. A general name for the 
 
 remedy sought or allowed in any action, 
 legal or equitable. 
 
 RELIEVE. In feudal law. To hold or de- 
 pend; thus, a tenant was said to relieve of 
 the crown. Now obsolete. 
 
 RELIGION (Lat. re, back, Ugo, to bind). 
 Real piety in practice, consisting in the per- 
 formance of all known duties to God and 
 our fellow men. See "Charitable Uses." 
 
 RELIGIOUS LIBERTY. As secured by 
 the provisions of the constitution of the 
 United States, and of the several states, 
 means freedom from any establishment of 
 a religion, from compulsory support of re- 
 ligious instruction, from compulsory attend- 
 ance on religious worship, and from re- 
 straints on the free exercise of religion ac- 
 cording to the dictates of conscience, or 
 upon the expression of religious belief. See 
 Cooley, Const. Lim. 575. 
 
 The full and free right to entertain any 
 religious belief, to practice any religious 
 principle, and to teach any religious doc- 
 trine which does not violate the laws of 
 morality and propriety, or infringe personal 
 rights. 13 Wall. (U. S.) 728. But freedom 
 from restraint on the exercise of religion 
 does not permit one to break the law be- 
 cause his unlawful acts were in the exercise 
 of his religion, or according to the dictates 
 of his conscience. 98 U. S. 166. 
 
 RELIGIOUS MEN (Law Lat. religiosi). 
 Such as entered into some monastery or 
 convent. In old English deeds, the vendee 
 was often restrained from aliening to "Jews 
 or religious men," lest the lands should fall 
 into mortmain. Religious men were civilly 
 dead. Blount. 
 
 RELIGIOUS TEST. A belief in certain 
 dogmas of religion which are prerequisite 
 to the holding of a civil office, or the exer- 
 cise of any civil right. "No religious 
 test shall ever be required as a qualification 
 to any office or public trust under the United 
 States." Const, art. 6, § 3. 
 
 RELIGIOUS USE. See "CharitaWe Uses." 
 
 RELINQUISHMENT. A forsaking, aban- 
 doning, or giving over a right; for example, 
 a plaintiff may relinquish a bad count in a 
 declaration, and proceed on a good; a man 
 may relinquish a part of his claim in order 
 to give a court jurisdiction. The word has 
 no exact technical significance. 
 
 RE LI QUA. The remainder or debt which 
 a person finds himself debtor in upon the 
 balancing or liquidation of an account. 
 
 Hence reliquary, the debtor of a reliqua; as 
 also a person who only pays piecemeal. Enc. 
 Lond. 
 
 RELIQUl (Lat.) In the civil law. The 
 rest. Held to signify "all" (wmiversos, OOT«e«). 
 Dig. 50. 16. 95. 160. 
 
 RELOCATIO (Lat.) In civil law. A re- 
 newal of a lease on its determination on like 
 terms as before. It may be either express 
 or tacit. The latter is when the tenant holds 
 over with the knowledge and without objec- 
 tion of the landlord. Mackeld. Civ. Law, § 
 379. 
 
 RELOCATION. In Scotch law. A relet- 
 ting or renewal of a lease; a tacit relocation 
 is permitting a tenant to hold over without 
 any new agreement. 
 
 REM domino vel non domino vendente 
 duobus. 
 In jure est potior venditione prior. 
 iWhere one, whether owner or not owner, 
 sells a thing to two persons, the party who 
 is first sold to has the better right. A 
 Latin couplet quoted in Pleta (lib. 3, c. 15, 
 § 8). 
 
 REMAINDER. The remnant of an estate 
 in lands or tenements expectant on a par- 
 ticular estate create'd together with the same 
 at one time. Co. Litt. 143a. 
 
 To constitute a valid remainder at com- 
 mon law, the estate in remainder must be 
 created (1) on purchase (2 Washb. Real 
 Prop. 586); (2) at the same time with a 
 particular estate (2 Bl. Comm. 167); (3) 
 less than a fee (Id. 164) ; and (4) must vest 
 in the grantee during the continuance of 
 the particular estate, or eo instanti that it 
 determines, so that the freehold shall not 
 remain in abeyance (Id. 168); but (5) the 
 remainder must rest on the natural termina- 
 tion of the particular estate, and not be in 
 defeasance of it (Fearne, Cont. Rem. 13). 
 
 In the United States. The term "re- 
 mainder" is applied to various estates in ex- 
 pectancy, limited on precedent estates which 
 do not fulfill all the requirements of the 
 common law. 
 
 Remainders are either vested or contin- 
 gent. 
 
 (1) A vested remainder is one by which a 
 present interest passes to the party, though 
 to be enjoyed in the future, and by which 
 the estate is invariably fixed to remain to a 
 determinate person after the particular es- 
 tate is spent. A determinate remainderman 
 in esse at the time of its creation is essen- 
 tial to a vested remainder. 
 
 A future estate is vested where there is a 
 person in being who would have an Imme- 
 diate right to the lands on the ceasing of the 
 immediate or precedent estate. 1 Rev. St. N. 
 Y. c. 1, tit. 2, § 13. This definition has been 
 justly criticised, so far as it is intended to 
 be declaratory of the common law, in that 
 it omits the essential that the person who 
 shall take the remainder shall be ascertained 
 before the termination of th* particular es- 
 tate. 
 
 (2) A contingent remainder is one where 
 
REMAINDERMAN 
 
 (789) 
 
 REMISSION 
 
 the estate in remainder is limited to take 
 effect either to a dubious and uncertain per- 
 son, or upon a dubious and uncertain event, 
 so that the particular estate may chance to 
 be determined, and the remainder never take 
 effect. 2 Bl. Comm. 169. 
 
 A remainder which, as regards the- posses- 
 sion or enjoyment, depends on a contingency 
 other than the survival of the remainder- 
 man. Smith, Ex. Int. § 171. 
 
 It is not the uncertainty of enjoyment in 
 future, but the uncertainty of the right to 
 that enjoyment, ■which marks the difference 
 between a vested and a contingent interest. 
 4 Kent, Comm. 206; 2 Cruise, Dig. 270. 
 
 REMAINDERMAN. One who is entitled 
 to the remainder of the estate after a par- 
 ticular estate carved out of it has expired. 
 
 REMAND. To send back. 
 
 Of Prisoner. The ordering of a pris- 
 oner's return to custody pending proceed- 
 ings, or on a determination that he is not 
 entitled to release. 
 
 Of a Cause. The sending it back to 
 
 the same court out of which it came, for 
 the purpose of having some action on it 
 there. March, 100. 
 
 REMANENT PRO DEFECTU EMP- 
 torum (Lat. remanent, they remain, pro de- 
 fectu. through lack, emptorum, of buyers). 
 In practice. The return made by the sheriff 
 to a writ of execution when he has not been 
 able to sell the property seized, that the 
 same remains unsold for want of buyers; in 
 that case, the plaintiff is entitled to a vendi- 
 tioni exponas. Comyn, Dig. "Execution" 
 (C 8). 
 
 REMANENTIA (Law Lat. from remanere, 
 g. V.) In old English law. A remainder. 
 Spelman. 
 
 A perpetuity, or perpetual estate (pro per- 
 petuo). Glanv. lib. 7, c. 1; Bracton, fol. 
 244; Reg. Maj. lib. 2, c. 23. 
 
 REMANERE (Lat.) 
 
 In Old English Practice. To remain; 
 
 to stop or stay; to "demur," in the old sense 
 of the word. Prima queratur a tenente si 
 aliquid velit vel sciat dicere quare assisa 
 debeat remanere, it first should be inquired 
 of the tenant if he will or know to say 
 anything why the assize should stay, — that 
 is, why it should not proceed. Bracton, 
 fol. 184b. Non propter minorem aetatem 
 petentium remanent assisa, the assize shall 
 not stay on account of the nonage of the 
 demandants. Id. fol. 276. Hence the term 
 remanet, in modern practice. 
 
 RE MANET (Lat.) In practice. The causes 
 which are entered for trial, and which can- 
 not bo tried during the term, are remanets. 
 Lee, "Trial;" 1 Sellon, Prac. 434; 1 Phil. 
 Ev. 4. 
 
 REMEDIAL LAW. That part of the body 
 of the law which contains the remedies by 
 which rights are enforced and wrongs re- 
 dressed, and the rules by which the sub- 
 stantive law (g. V.) is applied. 
 
 REMEDIAL STATUTE. One removing 
 some defect in the law, and thus giving a 
 more perfect remedy for private wrongs. 
 Used usually in contradistinction to "penal 
 statute," but sometimes to "declaratory stat- 
 ute." 
 
 REMEDY. The means employed to en- 
 force a right or redress an injury. "The 
 being put in possession of that right where- 
 of the party injured is deprived." 6 Wheat. 
 (U. S.) 407. 
 
 The procedure whereby redress is secured, 
 as distinguished from the right to be en- 
 forced. 103 U. S. 717. 
 
 It includes every original application to a 
 court of justice for a judgment or an order. 
 Thus, the application for admission to prac- 
 tice as an attorney or counsellor is a remedy. 
 22 N. Y. fe7, 87. 
 
 In Old English Law. A remainder. 
 
 Co. Litt. 49a; 2 Coke, 51a. 
 
 (1) Equitable remedies are those obtain- 
 able only in a court of equity. 
 
 (2) Legal remedies, in the technical sense 
 of the term, are those which may be award- 
 ed in a court of law; in a broader sense, 
 any remedy allowed by the law of the land. 
 
 (3) Cumulative or concurrent remedies 
 are such as are provided in addition to other 
 existing remedies, and whose existence does 
 not preclude a resort to the old remedy. A 
 resort to one of the two remedies, however, 
 precludes a subsequent resorf to the other. 
 See "Election." 
 
 (4) Specific or exclusive remedies are 
 such as repeal all pre-existing remedies for 
 the same wrong. 
 
 REMEDY OVER. The remedy of he who 
 is primarily liable against him who is sec- 
 ondarily liable for the same debt. 
 
 REMEMBRANCERS. In English law. Offi- 
 cers of the exchequer, whose duty it is to 
 remind the lord treasurer and the justices 
 of that court of such things as are 'to be 
 called and attended to for the benefit of the 
 crown. Cowell; St. 3 & 4 Wm. IV. c. 99. 
 
 REMENAUNT (Law Pr.) Remaining; to 
 come after; remainder. A remenaunt, for 
 ever after. Kelham. 
 
 REMISE, RELEASE, AND QUITCLAIM. 
 
 The ordinary effective words in a release. 
 These words are, in this country, sufficient 
 to pass the estate in a primary conveyance. 
 7 Conn. 2,50; 24 N. H. 460; 21 Ala. (N. S.) 
 125; 7 N. Y. 422. "Remise" is a French word 
 synonymous with "release." See "Quit- 
 claim." 
 
 REMISSION ( Lat. re, back, mi<io, to send). 
 
 In Civil Law. A release of a debt. 
 
 It is conventional when it is expressly grant- 
 ed to the debtor by a creditor having a 
 capacity to alienate; or tacit, when the 
 creditor voluntarily surrenders to his debtor 
 the original title, under private signature, 
 constituting the obligation. Civ. Code La. 
 art 2195. 
 
 Forgiveness or pardon of an offense. 
 
 It has the effect of putting back the of- 
 
REMISSIUS, ETC. 
 
 (790) 
 
 RENEGADE 
 
 fender into the same situation he was be- 
 fore the commission of the offense. Re- 
 mission is generally granted in cases where 
 the offense was involuntary, or committed in 
 self-defense. Poth. Proc. Civ. sec. 7) art. 2, 
 § 2. 
 
 At Common Law. The act by which 
 
 a forfeiture or penalty is forgiven. 10 
 Wheat. (U. S.) 246. 
 
 REMISSIUS IMPERANTI MELIUS PARE- 
 tur. A man commanding not too strictly 
 is better obeyed. 3 Inst. 233. 
 
 REMIT. To annul a fine or forfeiture. 
 This is generally done by the courts where 
 they have a discretion by law; as, for ex- 
 ample, when a juror is fined for nonattend- 
 ance in court, after being duly summoned, 
 and, on appearing, he produces evidence to 
 the court that he was sick and unable to 
 attend, the fine will be remitted by the 
 court. 
 
 In Commercial Law. To send money, 
 
 bills, or something which will answer the 
 purpose of money. 
 
 REMITTANCE. In commercial law. Mon- 
 ey sent by one merchant to another, either 
 in specie, bill of exchange, draft, or other- 
 wise. 
 
 REMITTEE. A person to whom a remit- 
 tance is made. Story, Bailm. § 75. 
 
 REMITTER. To be placed back in pos- 
 session. 
 
 When one having a right to lands is out 
 of possession, and afterwards the freehold 
 is cast upon him by some defective title, 
 and he enters by virtue of that title, the law 
 remits him to his ancient and more certain 
 right, and, by an equitable fiction, supposes 
 him to have gained possession under it. 3 
 Bl. Comm. 190; Comyn, Dig. "Remitter." 
 
 REMITTERE (Lat. from re, again, and 
 fiittere, to send). In old English practice. 
 To send back; to give up or relinquish; to 
 , remise or release. Postea jus suum remisit, 
 et quietum clamavit, afterwards remised 
 and quitclaimed his right. Bracton, fol. 
 313b. 
 
 To remand on habeas corpus. 3 How. St. 
 Tr. 161. 
 
 REMITTIT DAMNA (Lat. he releases 
 damages). An entry on the record, by which 
 the plaintiff declares that he remits the 
 damages or a part of the damages which 
 have been awarded him by the jury, is so 
 called. 
 
 In some cases, a misjoinder of actions may 
 be cured by the entry of a remittit damna. 
 1 Chit. PI. *207. 
 
 REMITTITUR DAMNUM (or DAMNA). In 
 practice. The act of the plaintiff upon the 
 record, whereby he abates or remits the ex- 
 cess of damages found by the jury beyond 
 the sum laid in the declaration. See 1 
 Saund. 285, note 6; 4 Conn. 109; Bouv. Inst. 
 Index. 
 
 REMITTITUR OF RECORD. After a rec- 
 
 ord has been removed .to the supreme court, 
 and a judgment has been rendered, it is 
 to be remitted or sent back to the court 
 below, for the purpose of retrying the cause, 
 when the judgment has been reversed, or of 
 issuing an execution when it has been af- 
 firmed. The act of so returning the record, 
 and the writ issued for that purpose, bear 
 the name of "remittitur." 
 
 REMITTOR. A person who makes a re- 
 mittance to another. 
 
 ■REMONSTRANCE. A petition to a court 
 or deliberative or legislative body, in which 
 those who have signed it request that some- 
 thing which it is in contemplation to per- 
 form shall not be done. 
 
 REMOTE CAUSE. See "Proximate Cause." 
 
 REMOTE DAMAGES. Damages are too 
 remote to be actionable when not the legal 
 and natural consequence of the act com- 
 plained of. Sweet. See "Damages." 
 
 REMOTE EVIDENCE. Evidence so dis- 
 connected from the fact to be proved as to 
 be irrelevant thereto. See "Evidence." 
 
 REMOTO IMPEDIMENTO, EMERGIT AC- 
 
 tic. The impediment being removed, the ac- 
 tion arises. 5 Coke, 76; Wingate, Max. 20. 
 
 REMOVAL OF CAUSE. The removal of a 
 cause from the court in which it was com- 
 menced to another court, in which it there- 
 after proceeds. The term seems literally 
 to include change of venue and removal to 
 a reviewing court, but to these it is rarely 
 applied, being ordinarily used to denote the 
 removal of a cause from a state to a fed- 
 eral court, where a federal question is in- 
 volved, or the parties are citizens of differ- 
 ent states, or one of them is an alien (see 
 Act Cong. March 3, 1887), or to proceedings 
 under state statutes for the transfer of a 
 cause to another of concurrent jurisdiction. 
 
 REMOVER. In practice. A transfer of 
 a suit or cause out of one court into another, 
 which is effected by writ of error, certiorari, 
 and the like. 11 Coke, 41. 
 
 REMUNERATION. Reward; recompense; 
 salary. Dig. 17. 1. 7. 
 
 RENANT, or RENIANT. In old English 
 law. Denying. 32 Hen. VIII. c. 2. 
 
 RENCOUNTER. A sudden meeting; as 
 opposed to a duel, which is deliberate. 
 
 RENDER. In the civil law. To yield; 
 to return; to give again. It is the reverse 
 of "prender." See" "Rendition of Judgment." 
 
 RENDITION OF JUDGMENT. The an- 
 nouncement of the decision of the court, as 
 by a verbal decision entered in the minutes, 
 the filing of findings, etc. 
 
 It differs from "entry of judgment," which 
 is the formal entry of the judgment upon the 
 records. 80 Cal. 166. But see 9 Minn. 318. 
 
 RENEGADE. One who has changed his 
 
RENEWAL 
 
 (791) 
 
 REPATRIATION 
 
 profession of faith or opinion; one who has 
 •deserted his church or party. 
 
 RENEWAL. A change of something old 
 for something new; as, the renewal of a 
 note; the renewal of a lease. See "Nova- 
 "tion;" 1 Bouv. Inst, note 800. 
 
 RENOUNCE. To give up a right; for 
 •example, an executor may renounce the right 
 ■of administering the estate of the testator; a 
 widow, the right to administer to her intes- 
 tate husband's estate. 
 
 RENOUNCING PROBATE. Giving up 
 the right to be executor of a will, wherein he 
 has been appointed to that office, by refusing 
 to talce ,out probate of such will. Toller, 
 Ex'rs, 42'; 1 Williams, Ex'rs, 230, 231; 20 & 
 21 Vict. c. 77, § 79; 21 & 22 Vict. c. 94, § 16. 
 
 RENOVARE (Lat) In old English law. 
 To renew. Annnatim renovare, to renew an- 
 nually. A phrase applied to profits which 
 are taken and the product renewed again. 
 Amb. 131. 
 
 RENT. A return or compensation for the 
 possession of some corporeal inheritance, 
 and is a certain profit, either in money, pro- 
 visions, or labor, issuing out of lands and 
 tenements, in return for their use. 
 
 Some of its common-law properties are 
 that it must be a profit to the proprietor, 
 certain in its character, or capable of being 
 reduced to a certainty, issuing yearly, that 
 is, periodically, out of the thing granted, and 
 not be part of the land or .thing itself. Co. 
 Litt. 47; 2 Bl. Comm. 41. 
 
 At common law there were three species 
 of rent, — rent service, having some cor- 
 poreal service attached to the tenure of the 
 land, to which the right of distress was nec- 
 essarily incident; rent charge, which was a 
 reservation of rent, with a clause authoriz- 
 ing its collection by distress; and rent seek, 
 where there was no such clause, but the rent 
 could only he collected by an ordinary action 
 at law. These distinctions, however, for all 
 practical purposes, have become obsolete, in 
 consequence of various statutes both in Eng- 
 land and in this country, allowing every 
 kind of rent to be distrained for without dis- 
 tinction. See Tayl. Landl. & Ten. § 370. 
 
 RENT CHARGE. See "Rent." 
 
 RENT ROLL. A list of rents payable to 
 a particular person or public body. 
 
 RENT SECK. See "Rent." 
 RENT SERVICE. See "Rent." 
 
 RENTS, ISSUES, AND PROFITS. The 
 
 ■profits arising from property generally (Gen. 
 St. Mass. 1860, p. 537; Rev. St. N. Y. st. 
 1849) for better protection of property of 
 married women. 
 
 This phrase in the Vermont statute has 
 been held not to cover "yearly profits." 26 
 Vt. 741. 
 
 RENTS OF ASSIZE. The certain and de- 
 itermined rents of the freeholders and an- 
 
 cient copyholders of manors are called "rents 
 of assize," apparently because they were as- 
 sized or made certain, and so distinguished 
 from a redditiis mobilis, which was a vari- 
 able or fluctuating rent. 3 Cruise, Dig. 314; 
 Brown. 
 
 RENTS RESOLUTE. Rents anciently 
 payable to the crown from the lands of ab- 
 beys and religious houses; and after their 
 dissolution, notwithstanding that the lands 
 were demised to others, yet the rents were 
 still reserved and made payable again to the 
 crown. Cowell. 
 
 RENTAL. A roll or list of the rents of 
 an estate, containing the description of the 
 lands let, the names of the tenants, and other 
 particulars connected with such estate. This 
 is the same as "rent roll," from which it is 
 said to be corrupted. 
 
 Derived from or pertaining to rent, as ren- 
 tal value. 
 
 RENTAL BOLLS. In Scotch law. When 
 the tithes (tiends) have been liquidated and 
 settled for so many bolls of corn yearly. 
 Bell, Diet. 
 
 RENTAL RIGHTS. In English law. A 
 species of lease usually granted at a low 
 rent and for life. Tenants under suoh 
 leases were called "rentalers" or "kindly 
 tenants." 
 
 RENTE. In French law. A word nearly 
 synonymous with our word "annuity." 
 
 RENTE FONCIERE. In French law. A 
 rent which issues out of land; and it is of 
 its essence that it be perpetual, for if it be 
 made but for a limited time, it is a lease. 
 It may, however, be extinguished. Civ. Code 
 La. arts. 2750, 2759. See "Ground Rent." 
 
 RENTE VIAGERE. In French law. An 
 annuity for life. Civ. Code La. art. 2764. 
 
 REO ABSENTE (Lat.) Defendant being 
 absent. 
 
 REP SILVER. In old records. Money 
 paid by servile tenants for exemption from 
 the customary duty of reaping for the lord. 
 Cowell. 
 
 REPAI RS. That work which is done to an 
 estate to keep it in good order. It does not 
 include additions and adaptions of the prem- 
 ises to new uses. 24 N. J. Eq. 358. 
 
 REPARATION. The redress of an injury; 
 amends for a tort inflicted. See "Remedy." 
 
 REPARATIONE FACIENDA, WRIT DE 
 
 (Lat.) The name of an ancient writ, which 
 lies by one or more joint tenants against 
 the other joint tenants, or by a person own- 
 ing a house or building against the owner 
 of the adjoining building, to compel the repa- 
 ration of such joint property. Fitzh. Nat. 
 Brev. 295. 
 
 REPATRIATION. The regaining of a na- 
 tionality once lost; the converse of "ex- 
 patriation." 
 
REPEAL 
 
 (792) 
 
 REPLEVIN 
 
 REPEAL. The abrogation or destructioa 
 of a law by a legislative act. 
 
 A repeal is "express," as, when it is liter- 
 ally declared by a subsequent law, or "im- 
 plied," when the new law contains provisions 
 contrary to or irreconcilable with those of 
 the former law, or which, though recon- 
 cilable, are manifestly designed to furnish 
 an exclusive rule. 
 
 A law may be repealed by implication, by 
 an affirmative as well as by a negative stat- 
 ute, if the substance is inconsistent with the 
 old statute. 1 Ohio, 10; 2 Bibb (Ky.) 96; 
 Harper (S. C.) 101; 4 Wash. C. C. (U. S.) 
 691. 
 
 Repeal is express where the repealing act 
 explicitly refers to an existing law, and de- 
 clares its repeal. 
 
 Where statutes are repugnant, there is, of 
 course, an implied repeal. An implied re- 
 peal also results from an act covering the 
 whole subject matter, and obviously de- 
 signed as a substitute (84 111. 590; 123 N. 
 Y. 485), or by a revision or codification of 
 the law (78 Wis. 457; 30 Vt. 344). 
 
 REPELLITUR A SACRAMENTO INFA- 
 mis. An infamous person is repelled or pre- 
 vented from taking an oath. Co. Litt. 158; 
 Bracton, 185. 
 
 REPELLITUR EXCEPTIONE CEDEN- 
 darum actionum. He is defeated by the plea 
 that the actions have been assigned 1 
 Johns. Ch. (N. Y.) 409, 414. 
 
 REPERTORY. 'In French law. A word 
 used to denote the inventory or minutes 
 which notaries are required to make of all 
 contracts which take place before them 
 Dalloz. 
 
 REPETITION. 
 
 ~—ln Civil Law. The act by which a 
 person demands and seeks to recover what 
 he has paid by mistake or delivered on a 
 condition which has not been performed 
 Dig. 12. 4. 5. 
 
 The name of an action which lies to re- 
 cover the payment which has. been made by 
 mistake, when nothing was due. 
 
 Repetition is, never admitted in relation 
 to natural obligations which have been vol- 
 untarily acquitted, if the debtor had capacity 
 to give his consent. 6 Toullier, Dr. Civ. 386. 
 
 In order to entitle the payer to recover 
 back money paid by mistake. It must have 
 been paid by him to a person to whom he 
 did not owe it, for otherwise he cannot re- 
 cover it back,— the creditor having, in such 
 case, the just right to retain the money. 
 Repetitio nulla est o6 eo aui suum recepit. 
 
 How far money paid under a mistake of 
 law is liable to repetition has been discussed 
 by civilians; and opinions on this subject 
 are divided. 2' Poth. Obi. (Evans Ed.) 369, 
 408-437; 1 Story, Eq. PI. § 111, note 2. 
 
 In Scotch Law. The act of reading 
 
 over a witness' deposition, in order that he 
 may adhere to it or correct it, at his choice. 
 The same as recolement (q. v.) in the French 
 law. 2 Benth. Ev. bk. 3, c. 12, p. 239. See 
 "Legacy." 
 
 REPETITUIVI NAMIUIVI. A repeated,- sec- 
 ond, or reciprocal distress; withernam. 3 
 Bl. Comm. 148. 
 
 REPETUNDAE, or PECUNIAE REPE- 
 tundae. In Roman law. The terms used to 
 designate such sums of money as the socii 
 of the Roman state, or individuals, claimed 
 to recover from magistratus, indices, or pub- 
 lioi curatores, which they had improperly 
 taken or received in the provinciae, or in the 
 urbs Roma, either in the discharge of their 
 jurisdictio, or in their capacity of indices, 
 or in respect of any other public function. 
 Sometimes the word "repetundae" was used 
 tG express the illegal act for which compen- 
 sation was sought. Wharton. 
 
 REPETUNDARUIVI CRIMEN (Lat.) In 
 the Roman law. The crime of bribery or 
 extortion in a magistrate, or person in any 
 public office. Calv. Lex.; Halifax, Anal. bk. 
 3, c. 12, No. 73; Dig. 48. 11; Code, 9. 27. 
 
 REPLEADER. In pleading. Making a 
 new series of pleadings. 
 
 Judgment of repleader differs from a judg- 
 ment non obstante veredicto in this, that it 
 is allowed by the courts to do justice be- 
 tween the parties where the defect is in the 
 form or manner of stating the right, and 
 the issue joined is on an immaterial point, 
 so that it cannot tell for whom to give judg- 
 ment (7 Mass. 312; 3 Pick. [Mass.] 124; 19 
 Pick. [Mass.] 419); while judgment non ob- 
 stante is given only where it is clearly ap- 
 parent to the court that the party who his 
 succeeded has, upon his own showing, no 
 merits, and cannot have by any manner of 
 statement (1 Chit. PI. 568). See 19 Ark. 
 194. 
 
 REPLEGIARE (Lat.) To replevy; to re- 
 deem a thing detained or taken by another, 
 by putting in legal sureties. See "De Homine 
 Replegiando." 
 
 REPLEGIARE DE AVERIIS (Lat.) A 
 writ brought by one whose cattle are im- 
 pounded or distrained, upon security given 
 to the 'SherifE to pursue or answer the action 
 at law. 7 Hen. VIII. c. 4; Pitzh. Nat. Brev. 
 68; New Book of Entries, "Replevin;" 
 Dyer, 173; Reg. Grig. 81. 
 
 REPLEGIARE FACIAS (Lat.) A writ of 
 replevin, which issued out of chancery, com- 
 manding the sheriff to deliver the distress to 
 the owner, and afterwards to do justice in 
 regard to the matter in his own county 
 court. It was abolished by statute of Marl- 
 bridge, which provided a shorter process. 3 
 Bl. Comm. 147*. 
 
 REPLEVIABLE, or REPLEVISABLE. 
 
 Property is said to be repleviable or re- 
 plevisable when proceedings in replevin may 
 be resorted to for the purpose of trying the 
 right to such property. Brown. 
 
 REPLEVIN. 
 
 At Common Law. A form of action 
 
 which lay to regain the possession of per- 
 sonal chattels taken from the plaintiff un- 
 lawfully. 
 
 It differs from "detinue" in this, that it 
 
REPLEVISH 
 
 (793) 
 
 REPRESENTATION, ETC. 
 
 requires an unlawful taking as the founda- 
 tion of the action; and from all other per- 
 sonal actions in that it is brought to recover 
 the possession of the specific property claim- 
 ed to have been unlawfully taken. 
 
 In the United States. By statutes fn 
 
 nearly all the states, the actions of replevin 
 and detinue have been merged, the action 
 being usually called "replevin," but some- 
 times "claim and delivery," so that such ac- 
 tion lies for either the unlawful taking or 
 the unlawful detention of property, i. e., ei- 
 ther in the cepit or the detinet. 
 
 REPLEVISH. In old English law. To let 
 one to mainprise upon surety. Cowell. 
 
 REPLEVY. To redeliver goods which 
 have been distrained to the original pos- 
 sessor of them, on his giving pledges in an 
 action of replevin. It signifies, also, the 
 bailing or liberating a man from prison, on 
 his finding bail to answer. See "Replevin." 
 
 REPLIANT. One wio makes a replica- 
 tion. 
 
 REPLICATIO (Lat.) In the civil law and 
 old English pleading. The plaintiff's answer 
 to the defendant's exception or plea; corre- 
 sponding with and giving name to the repli- 
 cation in modern pleading. Inst. 4. 14. pr. 
 
 REPLICATION (Lat. replicare, to fold 
 back). 
 
 In Pleading. The plaintiff's answer to 
 
 the defendant's plea or answer. 
 
 in Equity. The plaintiff's avoidance 
 
 or denial of the answer or defense. Story, 
 Eq. PI. § 877. 
 
 A general replication is a general denial 
 of the truth of the defendant's plea or an- 
 swer, and of the sufficiency of the matter 
 alleged in it to bar the plaintiff's suit, and 
 an assertion of the truth and sufficiency of 
 the bill. Cooper, Eq. PI. 329, 330. 
 
 A special replication was one which in- 
 troduced new matter to avoid the defend- 
 ant's answer. It might be followed by re- 
 joinder, surrejoinder, and rebutter. Special 
 replications have been superseded by the 
 practice of amending bills. 1 How. (IJ. S.) 
 Introd. 55; 17 Pet. (U. S.) Append. 68. A 
 replication must ,be made use of where the 
 plaintiff intends to introduce evidence, and 
 a subpoena to the defendant to rejoin must 
 be added, unless he will appear gratia 
 Story, Eq. PI. § 879. 
 
 A replication may be filed nunc pro tunc 
 after witnesses have been examined under 
 leave of court. Story, Eq. PI. § 881; Mltf. 
 Eq. PI. (by Jeremy) 323. 
 
 At Law. The plaintiff's reply to the 
 
 defendant's plea. It contains a statement 
 of matter, consistent with the declaration, 
 which avoids the effect of the defendant's 
 plea, or constitutes a joinder in issue there- 
 on. 
 
 REPLY. In its general sense, a reply is 
 what the plaintiff, petitioner, or other person 
 who has instituted a proceeding says in an- 
 swer to the defendant's case. 
 
 In Code Pleading. The second plead- 
 
 ing of the plaintiff, corresponding to the 
 common-law replication. 
 
 In Trial Practice. The argument of 
 
 plaintiff in answer to that of defendant. 
 
 REPONE (from Lat. reponerc, to put 
 back). In Scotch practice. To replace; to 
 restore to a former state or right. 2 Alls. 
 Grim. Prac. 351. 
 
 REPORT. An ofliclal or formal statement 
 of facts or proceedings. 
 
 A printed or written account of the judi- 
 cial determination of a case. In this sense, 
 the term is used ordinarily in the plural to 
 denote the published volumes of reports of 
 decisions. 
 
 REPORTARE (Law Lat.) In old English 
 practice. To report. 
 
 REPOSITION OF THE FOREST. In old 
 
 English law. An act whereby certain forest 
 grounds, being made purlieu upon view, were 
 by a second view laid to the forest again, — 
 put back into the forest. Manw. For. Law; 
 Cowell. 
 
 REPRESENT. To state or assert. 
 
 To act as substitute or agent for another. 
 
 REPRESENTATION. 
 
 in Insurance. 'The stating of facts by 
 
 one applying for a policy of insurance, 
 whether in writing or orally, expressly or 
 by plain implication, preliminary and in 
 reference to making the insurance, obviously 
 tending to influence the insurer as to enter- 
 ing into the contract. 1 Phil. Ins. § 524; 12 
 Md. 348; 11 Cush. (Mass.) 324; 2 N. H. 551; 
 6 Gray (Mass.) 221. 
 
 A representation is to be distinguished 
 from a "warranty," which is a statement of 
 facts by the insured, which is a part of the 
 contract. 21 Conn. 19; 49 Me. 200. 
 
 There is no certain rule to determine 
 whether particular statements are represen- 
 tations or warranties. Statements expressly 
 declared to be warranties (78 Hun [N. Y.] 
 222), or incorporated in the policy, actually 
 (39 N. J. Law, 89) or by reference (45 N. Y. 
 80), are warranties, but otherwise the ques- 
 tion is one of Intent; the use of the word 
 "warrant" not being conclusive (59 N. Y. 
 557), and a statement will be declared a rep- 
 resentation unless the contrary intent is 
 clear (98 Mass. 381). 
 
 The importance of the distinction lies in 
 the fact that breach of any warranty avoids 
 the policy, while breach of a representation 
 is fatal only when such representation is ma- 
 terial to the risk. 98 Mass. 381. 
 
 In Scotcli Law. The name of a plea 
 
 or statement presented to the lord ordinary 
 of the court of sessions when his judgment 
 is brought under review. 
 
 REPRESENTATION OF PERSONS. A 
 
 fiction of the law, the effect of which is to 
 put the representative in the place, degree, 
 or right of the person represented. 
 
 The heir represents his ancestor (Bac. 
 Abr. "Heir and Ancestor" [A] ) ; the devisee, 
 his testator; the executor, his testator; the 
 
REPRESENTATIVE 
 
 (794) 
 
 REPUDIATION 
 
 administrator, his intestate; tlie successor 
 in corporations, Ms predecessor; and, gen- 
 erally speaking, they are entitled to the 
 rights of the persons whom they represent, 
 and bound to fulfill the duties and obliga- 
 tions which were binding upon them in 
 those characters. 
 
 Representation was unknown to the Ro- 
 mans, and was invented by the commenta- 
 tors and doctors of the civil law. Toullier, 
 Dr. Civ. liv. 3, tit. 1, c. 3, note 180. See 
 Ayliffe, Pand. 397; Dalloz, "Succession," art. 
 4, § 2. 
 
 REPRESENTATIVE. One who represents 
 or is in the place of another. 
 
 In legislation, it signifies one who has 
 been elected a member of that branch of the 
 legislature called the "house of representa- 
 tives." 
 
 The executor or administrator of a de- 
 ceased person is called the "personfeil repre- 
 sentative," to distinguish him from the "real 
 representative," or heir at law. 39 Barb. (N. 
 Y.) 520. 
 
 REPRESENTATIVE ACTION OR SUIT. 
 
 A representative action or suit is one 
 brought by a member of a class of persons 
 on behalf of himself and the other members 
 of the class. 
 
 REPRESENTATIVE DEMOCRACY. A 
 form of government where the powers of the 
 sovereignty are delegated to a body of men, 
 elected from time to time, who exercise them 
 for the benefit of the whole nation. 1 Bouv. 
 Inst, note 31. 
 
 REPRESENTATIVE PEERS. Those who, 
 at the commencement of every new parlia- 
 ment, are elected to represent Scotland and 
 Ireland in the British house of lords. 
 Brown. 
 
 REPRIEVE (from Pr. reprendre, to take 
 back). In criminal practice. The with- 
 drawing of a sentence for an interval of 
 time, which operates in delay of execution. 
 4 Bl. Comm. 394. It is a deferring of sen- 
 • tence to a definite day, as opposed to an in- 
 definite "suspension." 1 Park. Cr. R. 266: 
 See "Pardon." 
 
 REPRISALS. The forcibly taking a thing 
 by one nation which belonged to another, 
 in return or satisfaction for an injury com- 
 mitted by the latter on the former. Vattel, 
 bk. 2, c. 18, § 342; 1 Bl. Comm. c. 7. 
 
 (1) General reprisals take place by virtue 
 of commissions delivered to oflUcers and citi- 
 zens of the aggrieved state, directing them 
 to take the persons and property belonging 
 to the offending state wherever found. 
 
 (2) Negative reprisals take place when a 
 nation refuses to fulfill a perfect obligation 
 which it has contracted, or to permit an- 
 other state to enjoy a right which it justly 
 claims. 
 
 (3) Positive reprisals consist in seizing 
 the persons and effects belonging to the oth- 
 er nation, in order to obtain satisfaction. 
 
 (4) Special reprisals are such as are 
 granted in times of peace to particular in- 
 
 dividuals who have suffered an injury from 
 the citizens or subjects of the other nation. 
 
 Reprisals are used between nation and 
 nation to do themselves justice, when they 
 cannot otherwise obtain it. Congress has 
 the power to grant letters of marctue and 
 reprisal. Const. U. S. art. 1, § 8, cl. 11. 
 
 Reprisals are made in two ways, — either 
 by embargo, in which case the act is that 
 of the state, or by letters of marque and 
 reprisal, in which case the act is that of the 
 citizen, authorized by the government. See 
 2 Brown, Civ. Law, 334. 
 
 REPRISES. The deductions and payments 
 out of lands, annuities, and the like are 
 called "reprises," because they are taken 
 back. When we speak of the clear yearly 
 value of an estate, we say it is worth so 
 much a year ultra reprises, besides all re- 
 prises. 
 
 In Pennsylvania, lands are not to be sold 
 when the rents can pay the incumbrances in 
 seven years, beyond all reprises. 
 
 REFJROBATA PECUNIA LIBERAT SOL- 
 
 ventum. Money refused liberates the debt- 
 or. 9 Coke, 79. But this must be under- 
 stood with a qualification. See "Tender." 
 
 REPROBATION. In ecclesiastical law. 
 The propounding exceptions either against 
 facts, persons, or things; as, to allege that 
 certain deeds or instruments have not been 
 duly and lawfully executed; or that certain 
 persons are such that they are incompetent 
 as witnesses; or that certain things ought 
 not, for legal reasons, to be admitted. 
 
 REPROBATOR, ACTION OF. In Scotch 
 law. An action or proceeding Intended to 
 convict a witness of perjury, to which the 
 witness must be made a party. Bell, Diet. 
 
 REPUBLIC. A commonwealth; that form 
 of government in which the administration 
 of affairs is open to all the citizens. In an- 
 other sense, it signifies the state, independ- 
 ently of its form of government. 1 Toullier, 
 Dr. Civ. n. 28, and n. 202, note. 
 
 REPUBLICATION. An act done by a tes- 
 tator, from which it can be concluded that 
 he intended that an instrument which had 
 been revoked by him should operate as his 
 will; or it is the re-execution of a will by 
 the testator, with a view of giving it full 
 force and effect. 
 
 The republication is express when there 
 has been an actual re-execution of it (1 Ves. 
 Jr. 440; 2 Rand. [Va.] 192; 9 Johns. [N. Y.] 
 312) ; it is implied when, for example, the 
 testator by a codicil executed according to 
 the statute of frauds, reciting that he had 
 made his will, added, "I hereby ratify and 
 confirm my said will, except in the altera- 
 tions after mentioned" (3 Brown, Pari. Cas. 
 85). The will might be at a distance, or not 
 in the power of the testator, and it may be 
 thus republished. 1 Ves. Sr. 437; 3 Bing. 
 614; 1 Ves. Jr. 486; 4 Brown, Ch. 2. 
 
 REPUDIATION. 
 
 — —In Civil Law. A term used to signify 
 
REPUDIUM 
 
 (79S) 
 
 REQUISITION 
 
 the putting away of a wife or a woman be- 
 trothed. 
 
 Properly, "divorced". Is used to point out 
 the separation of maft'ied persons; "repudia- 
 tion," to denote the separation either of 
 married people, or those who are only af- 
 fianced. Divoriiiim est ropudinm et separa- 
 tio maritorum; repudium est renunciatio 
 sponsalium, vel etiam est divorlium,. Dig. 
 50. 16. 101. 
 
 A determination to have nothing to do 
 with any particular thing; as, a repudiation 
 of a legacy is the abandonment of such 
 legacy, and a renunciation of all right to it. 
 
 In Ecclesiastical Law. The refusal to 
 
 accept a benefice which has been conferred 
 upon the party repudiating;. 
 
 REPUDIUM (Lat.) In Roman law. A 
 breaking off of the contract of espousals, or 
 of a marriage intended to be solemnized. 
 Sometimes translated "divorce," but this was 
 not the proper sense. Dig. 50. 16. 191. 
 
 REPUGNANCY (Lat. re, back, against, 
 pugnare, to fight). 
 
 In Contracts. A disagreement or in- 
 consistency between two or more clauses of 
 the same instrument. In deeds, and other 
 instruments inter vivos, the earlier clause 
 prevails, if the inconsistency be not so great 
 as to avoid the instrument for uncertainty. 
 Hardw. 94; Owen, 84; 2 Taunt. 109; 15 Sim. 
 118; 2 C. B. 830; 13 Mees. & W. 534. 
 
 In wills, the latter clause prevails, under 
 the same exceptions. Co. Litt. 112b; Plowd. 
 541; 2 Taunt. 109; 6 Ves. 100; 2 Mylne & 
 K. 149; 1 Jarm. Wills, 411. See 23 Am. Jur. 
 277; 1 Pars. Cont. 26. 
 
 Repugnancy in a condition renders it void. 
 2 Salk. 463; 2 Mod. 285; 11 Mod. 191; 1 
 Hawks (N. C.) 20; 7 J. J. Marsh. (Ky.) 192. 
 And see, generally, 3 Pick. (Mass.) 272; 4 
 Pick. (Mass.) 54; 6 Cow. (N. Y.) 677. 
 
 In Pleading. An inconsistency or dis- 
 agreement between the statements pf mate- 
 rial facts in a declaration or other pleading; 
 as, where certain timber was said to be for 
 the completion of a house already built. 1 
 Salk. 213. 
 
 Repugnancy of immaterial facts, or of 
 redundant and unnecessary matter, if it 
 does not contradict material allegations, 
 will not, in general, vitiate the pleadings. 
 Co. Litt. 303b; 10 East, 142; 1 Chit. PI. 233. 
 See Lawes, PI. 64; Steph. PI. 378; Comyn, 
 Dig. "Abatement" (H6); 1 Viner, Abr. 36; 
 19 Viner, Abr. 45; Bac. Abr. "Amendment, 
 etc." (E2), "Pleas" (14). 
 
 REPUGNANT (Lat. rrpuflriiiiix, from re- 
 pugnare, to fight against). Contrary to; in 
 conflict with. A condition repugnant to the 
 nature of the estate to which it is annexed 
 is void. 1 Steph. Comm. 281. 
 
 REPUTATIO EST VULGARIS OPINIO 
 ubi non est Veritas. Reputation is a common 
 opinion where there is no certain knowledge. 
 4 Coke, 107. 
 
 REPUTATION. The opinion generally en- 
 tertained in a community regarding any mat- 
 
 ter. Thus, certain matters of pedigree may 
 be proved by common repute. 
 
 Most commonly used in the sense of per- 
 sonal reputation, the opinion entertained re- 
 garding a man in a community. 
 
 "Reputation" is to be distinguished from 
 "character" (q.r.) Character is what a per- 
 son is; reputation is what he is supposed to 
 be. Character is injured by temptations and 
 wrong doings; reputation, by slariders and 
 libels. Abbott. See 26 N. Y. 203. 
 
 REPUTED. Accepted by general, vulgar, 
 or public opinion. Thus, land may be re- 
 puted part of a manor, though not really so, 
 and a certain district may be reputed a 
 parish or a manor, or be a parish, or a manor 
 in reputation, although it is in reality no 
 parish or manor at all. Brown. 
 
 REPUTED MANOR. In feudal law. A 
 name sometimes applied to a manor which 
 has, by becoming separated from the serv- 
 ices by which it was formerly held, ceased 
 to be a manor in fact. 
 
 REQUEST (Lat. rcquiro, to ask for). 
 
 In Contracts. A notice of a desire on 
 
 the part of the person making it that the 
 other party shall do something in relation 
 to a contract. Generally, when a debt is 
 payable immediately, no request need be 
 made. 10 Mass. 230; 3 Day (Conn.) 327; 1 
 Johns. Cas. (N. Y.) 319. 
 
 — I — In Pleading. The statement in the 
 plaintiff's declaration that a demand or re- 
 quest has been made by the plaintiff of the 
 defendant to do some act which he was 
 bound to perform, and for which the action 
 is brought. 
 
 A general request is that stated in the 
 form, "although often requested so to do" 
 (licet saepe, requisitus), generally added in 
 the common breach to the money counts. 
 Its omission will not vitiate the declaration. 
 2 H. Bl. 131; 1 Wils. 33; 1 Bos. & P. 59; 1 
 Johns. Cas. (N. Y.). 100. 
 
 A special request is one provided for by 
 the contract expressly or impliedly. Such 
 a request must be averred (5 Term R. 409; 
 1 East, 204; 3 Bulst. 297; 3 Campb. 549; 2 
 Barn. & C. 685) and proved (1 Saund. 32, 
 note 2). It must state time and place of 
 making, and by whom it was made, that the 
 court may judge of its sufficiency. 1 Strange, 
 89; Comyn, Dig. "Pleader" (C 69, 70); 1 
 Saund. 33, note; 2 Vent. 75. See "Demand." 
 
 In wills, see "Precatory Words." 
 
 REQUEST, LETTERS OF. See "Letters 
 of Request." 
 
 REQUEST NOTES. In English law. Cer- 
 tain notes or requests from persons amena- 
 ble to the excise laws, to obtain a permit for 
 removing any excisable goods or articles 
 from one place to another. 
 
 REQUISITION. The act of demanding a 
 thing to be done by virtue of some right. 
 
 The demand made by the governor of one 
 state on the governor of another for a fugi- 
 tive from justice. 
 
 The term "requisition" is sometimes used 
 to denote the surrender of fugitives from 
 
REQUISITIONS ON TITLE 
 
 (796) 
 
 RES, GENERALEM, ETC. 
 
 one state to another; "extradition" being 
 confined to surrender of fugitives by a for- 
 eign country. 
 
 Wlien, as is more common, "extradition" 
 is used to embrace both interstate and In- 
 ternational extradition, "requisition" Is ap- 
 plied to the formal request of the governor 
 for the surrender, and not to the other pro- 
 ceedings. 
 
 REQUISITIONS ON TITLE. In English 
 conveyances. Objections to the title shown 
 by an abstract pointed out by the purchas- 
 er's solicitor to the vendor's solicitor. 
 
 REREFIEFS. In Scotch law. Inferior fief s ; 
 portions of a fief or feud granted out to in- 
 ferior tenants. 2 Bl. Comm. 57. 
 
 RERUM ORDO CONFUNDITUR, SI UNI- 
 cuique jurisdictio non servatur. The order of 
 things is confounded if every one preserves 
 not his jurisdiction. 4 Inst. Proem. 
 
 RERUM PROGRESSU OSTENDUNT 
 multa, quae in initio praecaveri seu praevi- 
 deri non possunt. In the course of events, 
 many mischiefs arise which at the begin- 
 ning could not be guarded against or fore- 
 seen. 6 Coke, 40. 
 
 RERUIVl SUARUIVl QUILIBET EST IMOD- 
 erator et arbiter. Every one is the man- 
 ager and disposer of his own matters. Co. 
 Litt. 223. 
 
 RES (Lat. things). It has a general signi- 
 fication, including both corporeal and incor- 
 poreal things. 3 Inst. 182. 
 
 The terms res, iona, Mens, used by jurists 
 who have written in the Latin and French 
 languages, are intended to include movable 
 or personal, as well as immovable or real, 
 property. 1 Surge, Confl. Laws, 19. See 
 "Biens;" "Bona;" "Things." 
 
 By res, according to the modern civilians, 
 is meant everything that may form an ob- 
 ject of rights, as in opposition to persona, 
 which is regarded as a subject of rights. 
 Res, therefore, in its general meaning, com- 
 prises actions of all kinds; while in its re- 
 stricted sense it comprehends every object 
 of rights except actions. 1 Mackeld. Civ. 
 Law, 151, § 146. This has reference to the 
 fundamental division of the institutes that 
 all law relates either to persons, to things, 
 or to actions. 
 
 The term is used in many special senses, 
 among these being a business matter or 
 question (Dig. 48. 19. 38. 5) ; equity (Dig. 
 48. 8. 1. 3); an inheritance (Calv. Lex.); a 
 suit; the subject ' matter of a suit (Story, 
 Confl. Laws, § 592a); substance; property; 
 ownership (Calv. Lex.); a contract (Dig. 50. 
 16. 6) ; truth (Dig. 48. 10. 1. 4) ; empire 
 (Tayl. Civ. Law, 62). 
 
 These have been, variously divided and 
 classified in law, e. g., in the following ways: 
 (1) Corporeal and incorporeal things; (2) 
 movables and immovables; (3) res mancipi 
 and res nee manoipi; (4) things real and 
 things personal; (5) things in possession 
 and choses (i. e., things) in action; (6) 
 fungible, things and things not fungible 
 
 (fungiiiles vel non fungiMles) ; and (7) res- 
 singulae (i. e., individual objects) and uni- 
 versitates rerum (i.e., aggregates of things) .- 
 Also persons are for some purposes and in 
 certain respects regarded as things. 
 
 RES ACCENDENT LUIVIINA REBUS. One 
 
 thing throws light upon others. 4 Johns.. 
 Ch. (N. Y.) 149. 
 
 RES ACCESSORIA (Lat.) In the civil 
 law. An accessory thing; that which be- 
 longs to a principal thing, or is in con- 
 nection with it. 1 Mackeld. Civ. Law, 155,. 
 § 152. Otherwise termed accessio. Id. § 
 153. 
 
 RES ACCESSORIA SEQUITUR R E IVI 
 principalem. An accessory follows its prin- 
 cipal. Broom, Leg. Max. (3d London Ed.) 
 433. For a definition of res accessoria, see- 
 Mackeld. Civ. Law, 155. 
 
 RES ADJUDICATA. See "Res Judicata." 
 
 RES CADUCA. In the civil law. A fallen, 
 or escheated thing; an escheat. Halifax,. 
 Civ. Law, bk. 2, c. 9, No. 60. 
 
 RES COIVIIVIUNES (Lat.) In civil law. 
 Those things which, though a separate share- 
 of them can be enjoyed and used by every 
 one, cannot be exclusively and wholly ap- 
 propriated; as, light, air, running water, 
 Mackeld. Civ. Law, § 156; Ersk. Inst. 1. 1. 
 5,6. 
 
 RESCONTROVERSA. In the civil law. A 
 matter controverted; a matter in controver- 
 sy; a point in question; a question for de- 
 termination. Calv. Lex. 
 
 RES CORONAE. In old English law. 
 Things of the crown ; such as ancient manors, 
 homages of the king, liberties, etc. Pleta, 
 lib. 3, c. 6, § 3. 
 
 RESCORPORALES. In the civil law. Cor- 
 poreal things; things which can be touched, 
 or are perceptible to the senses. Dig. 1. 8. 
 1. 1; Inst. 2. 2; Bracton, fols. 7b, 10b, 13b. 
 
 RES DENOIVIINATUR A PRINCIPALIORI 
 parte. A thing is named from its principal 
 part. 5 Coke, 47. 
 
 RES EST MISERA UBI JUS EST VAGUIW 
 
 et incertum. It is a miserable state of things 
 where the law is vague and uncertain. 2 
 Salk. 512. 
 
 RESFUNGIBILES (Lat.) In the civillaw. 
 
 Fungible things. ' 
 
 RES FURTIVAE (Law Lat.) In Scotch 
 law. Goods which have been stolen. Bell, 
 Diet. 
 
 RES, GENERALEiVl HABET SJGNIFICA- 
 tionem, quia tarn corporea, quam incorpo- 
 rea, cujuscunque sunt generis, naturae sive 
 speciei, compreiiendit. The word "things" 
 has a general signification, because it com- 
 prehends as well corporeal as incorporeal ob- 
 jects, of whatever nature, sort, or species. S 
 Inst. 482; 1 Bouv. Inst, note 415. 
 
RES GESTAE 
 
 (797) 
 
 RES MANCiPI 
 
 RES GESTAE. The facts surrounding or 
 accompanying a transaction which is the sub- 
 ject of legal proceedings. 
 
 The phrase is generally used in the law of 
 evidence; the rule being that evidence of 
 words or acts may be admissible (notwith- 
 standing the rule against derivative evi- 
 dence) on the ground that they are part of 
 the res gestae, provided that the act they ac- 
 companied is in itself admissible in evi- 
 dence, and that they reflect light upon or 
 ■qualify that act. Thus, the declaration of a 
 railroad engineer as to the cause of an ac- 
 cident, made immediately thereafter, was 
 held admissible in an action against the rail- 
 road company. 55 Pa. St. 396. And in crim- 
 inal cases, remarks of defendant (25 Grat. 
 [Va.] 921), or by the injured person (10 
 Mo. App. Ill; 34 Iowa, 131), are admissible 
 if connected with the transaction, and con- 
 nected with both in point of time and causal 
 connection; but remarks of persons not in 
 some manner connected with the transaction 
 .are inadmissible (99 Mass. 438). 
 
 No inflexible rule can be laid down as to 
 the necessary proximity in point of time be- 
 tween the declaration and the act under in- 
 vestigation. See 9 Tex. App. 440; Id. 619; 
 71 Ga. 128. Perhaps the most extreme hold- 
 ing is that declarations of a deceased some 
 hours before the homicide, that she was to 
 meet defendant on business that evening, 
 were held admissible as part of the res 
 gestae in connection with evidence that she 
 went out that evening to meet some one. 
 ■62 Minn. 474. 
 
 RES I M MOBILES. In the civil law. Im- 
 movable things; including land and that 
 -which is connected therewith; either by na- 
 ture or art, such as trees and buildings. 
 Mackeld. Civ. Law, § 160. 
 
 RES INCORPORALES. In the civil law. 
 Incorporeal things; things which cannot be 
 touched; such as those things which consist 
 In right. Inst. 2. 2; Bracton, fols. 7b, 10b. 
 Such things as the mind alone can perceive. 
 
 RES INTEGRA (Lat. an entire thing; an 
 •entirely new or untouched matter). A term 
 applied to those points of law which have 
 not been decided, which are untouched by 
 dictum or decision. 3 Mer. 269; 1 Purge, 
 Confl. Laws, 241. 
 
 RES INTER ALIOS ACTA (Lat.) A tech- 
 nical phrase which signifies acts of others or 
 transactions between others. 
 
 Neither the declarations nor any other 
 acts of those who are mere strangers, or, as 
 It is usually expressed, any res inter alios 
 •acta, are admissible in evidence against any- 
 one. When the party against whom such 
 acts are offered in evidence was privy to the 
 act, the objection ceases; it is no longer res 
 inter alios. 1 Starkie, Ev. 52 ; 3 Starkie, Ev. 
 1300; 4 Man. & G. 282. See 1 Mete. (Mass.) 
 S5. 
 
 RES INTER ALIOS ACTA ALTERI NO- 
 cere non debet. Things done between stran- 
 gers ought not to injure those who are not 
 parties to them. Co. Litt. 132 ; 3 Curt. C. C. 
 (U. S.) 403; 11 Q. B. 1028. 
 
 RES INTER ALIOS JUDICATAE NUL- 
 lum alils praejudicium faclant. Matters ad- 
 judged in a cause do not prejudice those who 
 were not parties to it. Dig. 44. 2. 1. 
 
 RES IPSA LOQUITUR. The thing speaks 
 for itself. A phrase used in actions for in- 
 jury by negligence, where no proof of negli- 
 gence is required beyond the accident itself, 
 which is such as necessarily to involve neg- 
 ligence. 
 
 RES JUDICATA. A legal or equitable is- 
 sue which has been decided by a court of 
 competent jurisdiction. 
 
 To constitute a matter res judicata, so 
 that, in a subsequent action, it cannot be ' 
 drawn in question, (1) the court deciding 
 the issue must have had jurisdiction (10 
 Pet. [U. S.] 474) ; (2) there must be identity 
 of the subject matter of the action (7 Johns. 
 [N. Y.] 20); (3) identity of the cause of 
 action (8 Conn. 268; 3 Pick. [Mass.] 429), 
 though the form of action may be different 
 if it be of the same general class, or If the 
 remedies be concurrent (12 Gray [Mass.] 
 428; 28 Minn. 450; 82 Ky. 505); (4) identity 
 of parties (4 Mass. 441; 5 Me. 410; 23 Barb. 
 [N. Y.] 464), but privies of the parties are 
 bound (see "Privy;" 52 N. H. 162; 98 N. 
 Y. 351); (5) identity of capacity in which 
 they sue or are sued (4 C. B. 884; 21 Ala. 
 813) ; (6) and there must have been a final 
 determination of the issues (143 Mass. 413; 
 104 111. 369); (7) on the merits (91 U. S. 
 526; 42 Mich. 459); (8) upon the particu- 
 lar issue (7 Gray [Mass.] 502), but the ad- 
 judication is final upon every matter which 
 might have been litigated under the Issues 
 made (102 N. Y. 452). 
 
 In Proceedings in Rem. Identity of 
 
 parties is not essential, the adjudication at- 
 taching to the res. See 1 Mete. (Mass.) 204. 
 
 RES JUDICATA FACIT EX ALBO Ni- 
 grum, ex nigro album, ex curve rectum, ex 
 recto curvum. A thing adjudged makes white, 
 black; black, white; the crooked, straight; 
 the straight, crooked. 1 Bouv. Inst, note 840. 
 
 RES JUDICATA PRO VERITATE ACCI- 
 pltur. A thing adjudged must be taken for 
 truth. Co. Litt. 103; Dig. 50. 17. 207; 2 
 Kent, Comm. 120; 13 Mees. & W. 679. See 
 "Res Judicata." 
 
 RES MANCIPI (Lat.) In Roman law. 
 Those things which might be sold and alien- 
 ated, or of which the property might be 
 transferred from one person to another. 
 
 The division of things into res mancipi 
 and res nee mancipi was one of ancient or- 
 igin, and it continued to a late period in the 
 empire. Res m(inrii)i (Ulph. Frag, xix.) are 
 praedia in italico solo, both rustic and ur- 
 ban; also, jura rusticorum praediorum or 
 servitutes. ?-s via, iter, aguaeductus: also 
 slaves, and four-footed animals, as oxen, 
 horses, etc., quae collo dorsove domantvr. 
 Smith. To this list may be added children 
 of Roman parents, who were, according to 
 the old law, res mancipi. The distinction be- 
 tween res mancipi and nee mancipi was abol- 
 
RES MOBILES 
 
 (798) 
 
 RESCOUS 
 
 ished by Justinian in liis Code. Id.; Cooper, 
 Inst. 442. 
 
 RES MOBILES. In the civil law. Mov- 
 able tilings; things which may be trans- 
 ported from one place to another, without 
 injury to their substance and form. Things 
 corresponding with the chattels personal of 
 the common law. 2 Kent, Comm. 347. 
 
 RES NOVA (Lat.) Something new; some- 
 thing not before decided. 
 
 RES NULLIUS (Lat.) A thing which has 
 no owner. A thing which has been aban- 
 doned by its owner is as much res nullius 
 as if it had never belonged to any one. 
 
 The first possessor of such a thing becomes 
 the owner; res nullius fit primi occupantis. 
 Bowyer, Comm. 97. 
 
 RES PER PECUNIAM AESTIMATUR, ET 
 non pecunia per res. The value of a thing Is 
 estimated by its worth in money, and the 
 value of money is not estimated by refer- 
 ence to the thing. 9 Coke, 76; 1 Bouv. Inst, 
 note 922. 
 
 RES PERIIT DOMINO (Lat. the thing is 
 lost to the owner). A phrase used to ex- 
 press that, when a thing is lost or destroyed, 
 it is lost to the person who was the owner 
 of it at the time. For example, an article 
 is sold; if the seller have perfected the title 
 of the buyer so that it is his, and it be de- 
 stroyed, it is the buyer's loss; but If, on 
 the contrary, something remains to be done 
 before the title becomes vested in the buyer, 
 then the loss falls on the seller. 
 
 RES PERU DOMINO SUO. The destruc- 
 tion of the thing is the loss of its owner. 2 
 Bouv. Inst, notes 1456, 1466; Story, Bailm. 
 426; 2 Kent, Comm. 591. 
 
 RES PRIVATAE (Lat.) In the civil law. 
 Things the property of one or more individ- 
 uals. Mackeld. Civ. Law, § 157. 
 
 RES PROPRIA EST QUAE COMMUNIS 
 non est. A thing is private which is not 
 common. 8 Paige, Ch. (N. Y.) 261, 270. 
 
 RES PUBLICAE (Lat.) In the civil law. 
 Things the property of the state. Mackeld. 
 Civ. Law, § 157; Ersk. Inst. 2. 1. 5. 6. 
 
 RES QUAE INTRA PRAESIDIA PER- 
 ductae nonduna sunt, quanquam ab hostlbus 
 occupatae, Ideo postliminii non egent, quia 
 dominum nondum mutarunt ex gentiuna jure. 
 Things which have not yet been introduced 
 within the enemy's lines, although held by 
 the enemy, do not need the fiction of post- 
 liminy on this account, because their own- 
 ership by the law of nations has not yet 
 changed. Grotius de Jure Belli, lib. 3, c. 9, 
 § 16; Id. lib. 3, c. 6, § 3. 
 
 RES RELIGIOSAE (Lat.) In civil law. 
 Things pertaining to religion; places where 
 the dead were buried. Thevenot Dessaules, 
 Diet, du Dig. "Chose." 
 
 RES SACRA NON RECIPIT AESTIMA- 
 tionem. A sacred thing does not admit of 
 valuation. Dig. 1. 8. 9. 5. 
 
 RES SACRAE (Lat.) In civil law. Those 
 things which had been publicly consecrated. 
 
 RESSANCTAE (Lat.) In civil law. Those 
 things which were especially protected 
 against injury of man. 
 
 RES SUA NEMINI SERVIT. No one can 
 have a servitude over his own property. 4 
 Macq. H. L. Cas. 151. 
 
 RES TRANSIT CUM SUO ONERE. The 
 
 thing passes with its burden. Pleta, lib. 3, c. 
 10, § 3. 
 
 RES UNIVERSATIS (Lat.) Those things 
 which belong to cities or municipal corpo- 
 rations. They belong so far to the public 
 that they cannot be appropriated to private 
 use, such as public squares, market houses, 
 streets, and the like. 1 Bouv. Inst, note 446. 
 
 RESCEIT, or RECEIT. The admission or 
 receiving of a third person to plead his right 
 in a cause formerly commenced between two 
 other persons; as, when an action is brought 
 against a tenant for life or years, or any 
 other particular tenant, and he makes de- 
 fault, in such case the reversioner may move 
 that he may be received to defend his right, 
 and to plead with the demandant. Jacob; 
 Cowell. 
 
 The admittance of a plea when the con- 
 troversy is between the same two persons. 
 Co. Litt. 192; 3 Nelson, Abr. 146. 
 
 RESCEU, or RESCUE (Law Pr.) Receiv- 
 ed. Novae Narr. 5b; Kitch. Cts. Resceux 
 (plur.) ; Britt. c. 2. 
 
 RESCISSIO (Lat. from rescindere, to an- 
 nul or avoid). In the civil law. An annul- 
 ling, avoiding, or making void; abrogation; 
 rescission. Code, 4. 44; Both. Contr. No. 
 331. 
 
 RESCISSION OF CONTRACTS. The ab- 
 rogation or annulling of contracts. 
 
 The term is generally, but not uniformly, 
 applied to abrogation by the parties, either 
 by consent, or by one party; "cancellation" 
 being the usual term for abrogation by de- 
 cree of court. 
 
 RESCISSORY ACTIONS. In Scotch law. 
 Actions which are brought to set aside deeds. 
 Patterson, Comp. 1058, note. 
 
 Proper improbation is an action brought 
 for declaring writing false or forged. 
 
 Reduction improbation is an action where- 
 by a person who may be hurt or affected by 
 a writing insists on producing or exhibiting 
 it in court, in order to have it set aside, or 
 its effects ascertained under the certification 
 that the writing, if not produced, shall be 
 declared false and forged. 
 
 In an action of simple reduction, the cer- 
 tification is only temporary, declaring the 
 writings called for null until they be pro- 
 duced, so that they recover their full force 
 after their production. Ersk. bk. 4, tit. 1, 
 §5; rd. bk. 4, tit. 1, § 8. 
 
 RESCOUS. An old term, synonymous with 
 "rescue" {q. v.) 
 
RESCRIPT 
 
 (799) 
 
 RESETTER 
 
 RESCRIPT. 
 
 In Canon Law. A term including any 
 
 form of apostolical letter emanating from 
 the pope. The answer of the pope in writ- 
 ing. Diet. Dr. Canonique. 
 
 In Civil Law. The answer of the prince, 
 
 at the request of the parties, respecting some 
 matter in dispute between them, or to magis- 
 trates, in relation to some doubtful matter 
 submitted to him. 
 
 The rescript was dilferently denominated 
 according to the character of those who 
 sought it. They were called "annotations" 
 or "subnotations," when the answer was giv- 
 en at the request of private citizens; "let- 
 ters" or "epistles," when he answered the 
 consultation of magistrates; "pragmatic 
 sanctions," when he answered a corporation, 
 the citizens of a province, or a municipality. 
 See "Code." 
 
 At Common Law. A counterpart. 
 
 In Massachusetts it is used to denote the 
 statement of the decision of the supreme ju- 
 dicial court as an appellate tribunal, and 
 the accompanying brief statement of the rea- 
 sons for the decision sent to the court from 
 which the case was brought. 
 
 RESCRIPTION. In French law. A re- 
 scription is a letter by which the maker re- 
 quests some one to pay a certain sum of 
 money, or to account for him to a third per- 
 son for it. Poth. Contr. de Change, note 225. 
 
 According to this definition, bills of ex- 
 change are a species of rescription. The dif- 
 ference appears to be this, that a bill of ex- 
 change is given when there has been a con- 
 tract of exchange between the drawer and 
 the payee; whereas the rescription is some- 
 times given in payment of a debt, and at 
 other times it is lent to the payee. 
 
 RESCUE. 
 
 In Criminal Law. The forcibly and 
 
 knowingly freeing another from arrest or 
 imprisonment. 4 Bl. Comm. 131. 
 
 A deliverance of a prisoner from lawful 
 custody by a third person. 2 Bish. Crim. 
 Law, § 911. 
 
 Taking and setting at liberty, against law, 
 a distress taken for rent, services, or dam- 
 age feasant. Bac. Abr. "Rescous." 
 
 ; In IVIaritime Law. The retaking by a 
 
 party captured of a prize made by the en- 
 emy. There is still another kind of rescue 
 which partakes of the nature of a recapture, 
 — it occurs when the weaker party, before 
 he is overpowered, obtains relief from the 
 arrival of fresh succors, and is thus pre- 
 served from the force of the enemy. 1 C. 
 Rob. Adm. 224, 271; Halleck, Int. Law, 
 cxxxv. 
 
 "Rescue" differs from "recapture." The 
 rescuers do not, by the rescue, become own- 
 ers of the property, as if it had been a new 
 prize, but the property is restored to the 
 original owners by the right of postlimini- 
 um. < 
 
 RESCUSSOR. The party making a rescue 
 Is sometimes so called; but more properly he 
 is a "rescuer." 
 
 RESCUSSUS (Law Lat; from Law Fr. 
 
 rescous). In old English law. Rescue; 
 forcible liberation or release. Spelman. 
 
 RESCUTERE (Law Lat.) In old English 
 law. To rescue. Rescussit, he rescued. Reg. 
 Grig. 117; 3 P. Wms. 484. Bescusserunt, 
 they rescued. Reg. Orlg. 118. 
 
 RESCYT (Law Pr.) Resceit; receipt; the 
 receiving or harboring a felon, after the 
 commission of crime. Britt.'c. 23. 
 
 RESEANTISA (Law Lat.; from Law Pr. 
 reseance). In old English and Scotch law. 
 Residence. Pleta, lib. 6, c. 3, § 2; Spelman. 
 
 RESEAUNT.or RESEANT(LawFr.) Abid- 
 ing; dwelling; residing. Britt. c. 98. 
 
 RESEISER (Law Lat. resemre). In old 
 English law. A taking back of seisin. A 
 taking again of lands Into the hands of the 
 king, whereof a general livery or ouster le 
 main was formerly mis-sued, contrary to 
 the form and order of law. Staundf. Pr. 
 Reg. 26; Cowell. 
 
 RESERVANDO. Reserving. In old con- 
 veyancing. An apt word of reserving a rent. 
 Co. Litt. 47a. 
 
 RESERVATIO NON DEBET ESSE DE 
 proficuis ipsis quia ea conceduntur, sed de 
 redditu novo extra proficua. A reservation 
 ought not to be of the annual increase itself, 
 because it is granted, but of new rent apart 
 from the annual increase. Co. Litt. 142. 
 
 RESERVATION. That part of a deed or 
 instrument which reserves a thing not in 
 esse at the time of the grant, but newly cre- 
 ated. 2 Hilliard, Abr. 359. 
 
 The creation of a right or interest which 
 had no prior existence as such In a thing or 
 part of a thing granted, by means of a clause 
 inserted by the grantor in the instrument of 
 conveyance. 
 
 A "reservation" is distinguished from an 
 "exception" in that it is of a new right or 
 interest; thus, a right of way reserved at 
 the time of conveying an estate, which may 
 have been enjoyed by the grantor as owner 
 of the estate, becomes a new right. 42 Me. 9. 
 
 A reservation may be of a life estate (28 
 Vt. 10; 33 N. H. 18; 3 Jones [N. C] 37, 38; 
 23 Mo. 373; 3 Md- Ch. 230); of a right of 
 flowage (41 Me. 298) ; right to use water (41 
 Me. 177; 9 N. Y. 423; 16 Barb. [N. Y.] 212) ; 
 right of way (25 Conn. 331; 6 Cush. [Mass.] 
 254; 10 Cush. [Mass.] 313; 10 B. Mon. [Ky.] 
 463); and many other rights and interests 
 (33 N. H. 507; 9 B. Mon. [Ky.] 163; 5 Pa. 
 St. 317). See 6 Cush. (Mass.) 162; 4 Pa. 
 St. 173; 9 Johns. (N. Y.) 73. 
 
 RESET. The receiving or harboring an 
 outlawed person. Cowell. 
 
 RESET OF THEFT. In Scotch law. The 
 receiving and keeping stolen goods, knowing 
 them to be stolen, with a design of feloni- 
 ously retaining them from the real owner. 
 Alls. Crim. Law, 328. 
 
 RESETTER. In Scotch law. A receiver 
 of stolen goods, knowing them to have been 
 stolen. 
 
RESIANCE 
 
 (800) 
 
 RESOLUTION 
 
 RESIANCE. In old English law. A man's 
 residence or permanent abode. Such a man 
 is called a "resiant." Kitch. Cts. 33. 
 
 RESIANT, RESIENT, or RESYAUNT 
 
 (fi'om Law Fr. reseant, resident). In old 
 English law. Continually dwelling or abid- 
 ing in a place; resident; a resident. Kitch. 
 Cts. 33; Cowell; 2 Inst. 99. "Resiants and 
 inhabitants within a manor." 3 Leon. 8, 
 case 21. 
 
 RESIANTIA, or RES^ANTIA (Law Lat.) 
 In old English law. Resiance; residence. 
 Spelman. See "Resiance." 
 
 RESIDENCE CLat. resedeo) . Personal pres- 
 ence in a fixed and pernianent abode. 20 
 Johns. (N. Y.) 208; 1 Mete. (Mass.) 251; 
 105 Mass. 93; 23 Wis. 607. 
 
 A residence is different from a domicile, 
 although it is a matter of great importance 
 in determining the place of domicile. 13 
 Mass. 501; 5 Pick. (Mass.) 370; 1 Mete. 
 (Mass.) 251; 2 Gray (Mass.) 490; 19 Wend. 
 (N. Y.) 11; 11 La. 175; 5 Me. 143. See "Dom- 
 icile." "Residence" and "habitancy" are usu- 
 ally synonymous. 2 Gray (Mass.) 490; 2 
 Kent, Comm. (10th Ed.) 574, note. "Resi- 
 dence" indicates permanency of occupation, 
 as distinct from lodging, or boarding, or 
 temporary, occupation, but does not include 
 so much as "domicile," which requires an i 
 intention continued with residence. 19 Me. 
 293; 2 Kent, Comm. (10th Ed.) 576. 
 
 RESIDENT. One who has his residence 
 iq. V.) in a place. 
 
 RESIDENT FREEHOLDER. One who re- 
 sides within a certain city, county, or state, 
 and owns a freehold estate in lands therein. 
 29 Wis. 419; 68 In'd. 214. 
 
 RESIDENT MINISTER. In international 
 law. The second or intermediate class be- 
 tween ambassadors and envoys, created by 
 the conference of the five powers at Aix-la- 
 Chapelle, in 1818. They are accredited to 
 the sovereign. 2 Phillim. Int. Law, 220*. 
 They are said to represent the affairs, and 
 not the person, of the sovereign, and so to 
 'be of less dignity. Vattel, bk. 4, c. 6,' § 73. 
 The fourth class is charges-d'affaires, ac- 
 credited to the minister of foreign affairs. 2 
 Phillim. Int. Law, 220; Wheaton, Int. Law, 
 pt. 3, c. 1, § 6. 
 
 RESIDERE (Lat.) In old English law. 
 To sit down; to sit still; to rest; to re- 
 main or continue. See "Resident." 
 
 RESIDUARY CLAUSE. The clause in a 
 will by which that part of the property is 
 disposed of which remains after satisfying 
 previous bequests and devises. 4 Kent, 
 Comm. 541*; 2 Williams, Ex'rs, 1014, note 2. 
 
 RESIDUARY DEVISEE. The person to 
 whom the residue of a testator's real estate 
 is devised after satisfying previous devises. 
 
 RESIDUARY ESTATE. What remains of 
 testator's estate after deducting the debts 
 and the bequests and devises. 
 
 RESIDUARY LEGATEE. He to whom the 
 residuum of the estate is devised or be- 
 queathed by will. Rop. Leg. Index; Powell, 
 Mortg. Index. See "Legacy." 
 
 RESIDUE. That which remains of some- 
 thing after taking away a part of it; as, the 
 residue of an estate, that which remains 
 after payment of debts, charges, and particu- 
 lar legacies and devises. 68 Pa. St. 332. 
 
 A will bequeathing the general residue of 
 personal property passes to the residuary 
 legatee everything not otherwise effectually 
 disposed of; and it makes no difference 
 whether a legacy falls into the estate by 
 lapse, or as void at law, the next of kin is 
 equally excluded. 15 Ves. 416; 2 Mer. 392. 
 See 7 Ves. 391; 1 Brown, Ch. 589; 4 Brown, 
 Ch. 55; Rop. Leg. Index; Jarm. Wills. 
 
 RESIGNATION (Lat. resignatio; re, back, 
 signo, to sign). The act of an oiBcer by 
 which he declines his office, and renounces 
 the further right to use it. It differs from 
 "abdication" (g. v.) 
 
 As offices are held at the will of both par- 
 ties, if the resignation of an officer be not 
 accepted, he remains in office. 4 Dev. (N. 
 C.) 1. 
 
 RESIGNATION BOND. In ecclesiastical 
 law. A bond given by an incumbent to re- 
 sign on a certain contingency. It may be 
 conditioned to resign for good and sufficient 
 reason, and therefore lawful; e. g., to resign 
 if he take a second benefice, or on request, 
 if patron present his son or kinsman when 
 of age to take the living, etc. Cro. Jac. 249, 
 274. But equity will generally relieve the 
 incumbent. 1 Rolle, Abr. 443. 
 
 RESIGNATION EST JURIS PROPRII 
 spontanea refutatio. Resignation is the spon- 
 taneous relinquishment of one's own right. 
 Godb. 284. 
 
 RESIGNEE. One in favor of whom a res- 
 ignation is made. 1 Bell, Comm. 125, note. 
 
 RESILIRE (Lat.) In old English law. To 
 draw back from a contract before it is 
 made binding. Literally, to leap back or 
 start back. Adhuno possunt partes resi- 
 lire, the parties may yet draw back. Brac- 
 ton, fol. 38; Fleta, lib. 2, c. 58, § 3. The 
 Scotch law, with its accustomed closeness, 
 renders this word resile. 
 
 RESOLUCION. In Spanish colonial law. 
 An opinion formed by some superior author- 
 ity on matters referred to its decision, and 
 forwarded to inferior authorities for their in- 
 struction and government. Schmidt, Civ. 
 Law, 93, note 1. 
 
 RESOLUTION (Lat. re, back, again, solio. 
 to loose, to free). A solemn judgment or 
 decision of a court. This word is frequently 
 used in this sense in Coke and some of the 
 more ancient reporters. An agreement to a 
 law or other thing adopted by a legislature 
 or popular assemhly. Distinction between 
 "resolution" and "ordinance," see "Ordi- 
 nance." See Diet, de Jur. 
 
 In Civil Law. The act by which a con- 
 
RESOLUTIVE 
 
 (801) 
 
 RESPONDENT 
 
 tract which existed and was gooid is rendered 
 null. 
 
 "Resolution" differs essentially from "re- 
 scission." The former presupposes the con- 
 tract to have been valid, and it is owing to 
 a cause posterior to the agreement that the 
 resolution takes place; while rescission, on 
 the contrary, supposes that some vice or de- 
 fect annulled the contract from the begin- 
 ning. Resolution may be by consent of the 
 parties, or by the decision of a competent 
 tribunal; rescission must always be by the 
 judgment of a court. 7 Tropl. de la Vente, 
 note 689; 7 Toullier, Dr. Civ. 551; Dalloz. 
 
 RESOLUTIVE. In Scotch conveyancing. 
 Having the quality or effect of resolving or 
 extinguishing a right. Bell, Diet. 
 
 RESOLUTO JURE CONCEDENTIS RE- 
 
 solvitur jus concessum. The right of the 
 grantor being extinguished, the right grant- 
 ed is extinguished. Mackeld. Civ. Law, 179; 
 Broom, Leg. Max. (3d London Ed.) 417. 
 
 RESOLUTORY CONDITION. One which 
 has for its object, when accomplished, the 
 revocation of the principal obligation; for 
 example, I will sell you my crop of cotton 
 if my ship America does not arrive in the 
 United States within six months. My ship 
 arrives in one month; my contract with you 
 is revoked. 1 Bouv. Inst, note 764. 
 
 RESON (Law Pr.) Reason; truth; right; 
 title; justice; act; argument; charge; ex- 
 pression; method; case; article; point. Kel- 
 ham. 
 
 RESORT (from Fr. rcsorter, q. r.) To go 
 back. "It resorted to the line of the 
 mother." Hale, Hist. Com. Law, c. 11. 
 
 RESORTER (Law Pr.) In old English 
 law. To go back. A force resortera le ten- 
 ement au seigniour del fee, the tenement 
 must necessarily go back to the lord of the 
 fee. Britt. c. 119. 
 
 RESPECTARE, or RESPECTUARE (Law 
 Lat.) In old English law. To respite. 
 Fortescue de L. L. Angliae, c. 53, note; Reg. 
 Grig. 319. RespectuaMtur, shall be put off. 
 Fleta, lib. 6, c. 23, § 21. 
 
 RESPECTU COMPUTI VICECOMITIS HA- 
 bendo. A writ for respiting a sheriff's ac- 
 count, addressed to the treasurer and barons 
 of the exchequer. Reg. Grig. 139. 
 
 RESPICIENDUM EST JUDICANTI, NE- 
 quid aut durius aut remisslus construatur 
 quam causa deposcit; nee enim aut severi- 
 tatis aut clementiae gloria affectanda est. It 
 is a matter of import to one adjudicating 
 that nothing should be either more leniently 
 or more severely construed than the cause 
 itself demands; for the glory neither of se- 
 verity nor clemency should be affected. 3 
 Inst. 220. 
 
 RESPIRATION (Lat, re, back, gpiro, to 
 breathe). Breathing, which consists of the 
 drawing into, inhaling, or, more technically, 
 "inspiring," atmospheric air into the lungs, 
 
 and then forcing out, expelling, or, tech- 
 nically, "expiring," from the lungs the air 
 therein. Chit. Med. Jur. 92, 416, note (n). 
 
 RESPITE. 
 
 In Civil Law. An act by which a debt- 
 or who is unable to satisfy his debts at the 
 moment transacts (i. e., compromises) with 
 his creditors and obtains from them time or 
 delay for the payment of the sums which he 
 owes to them. Code La. art. 3051. 
 
 A forced respite takes place when a part 
 of the creditors refuse to accept the debtor's 
 proposal, and when the, latter is obliged to 
 compel them, by judicial authority, to con- 
 sent to what the others have determined in 
 the cases directed by law. 
 
 A voluntary respite takes place when all 
 the creditors consent to the proposal of the 
 debtor to pay in a limited time the whole or 
 a part of his debt. 
 
 A delay, forbearance, or continuation of 
 time. 
 
 In Criminal Law. A temporary suspen- 
 sion of the execution of a sentence. It dif- 
 fers from a "pardon," which is an absolute 
 suspension, and from a "reprieve," in that it 
 is ordinarily for an indefinite time. 
 
 RESPITE OF HOIVIAGE. To dispense with 
 the performance of homage by tenants whO' 
 held their lands in consideration of per- 
 forming homage to their lords. Cowell. 
 
 RESPONDS BOOK. In Scotch law. A 
 book of record of the chancellary, in which 
 are entered all nonentry and relief duties: 
 payable by heirs who take precepts from 
 chancery. Stair, Inst. p. 296, § 28; Ersk. 
 Inst. 11. 5. 50. 
 
 RESPONDEAT OUSTER (that he answer 
 over). In practice. A form of judgment an- 
 ciently used when an issue in law upon a 
 dilatory plea was decided against the party 
 pleading it. See "Abatement." 
 
 RESPONDEAT RAPTOR,QUI IGNORARE 
 non potuit quod pupillum alienum abduxit. 
 
 Let the ravisher answer, for he could not be 
 ignorant that he has taken away another's 
 ward. Hob. 99. 
 
 R ESPONDEAT SUPERIOR. Let the prin- 
 cipal answer. 4 Inst. 114; 2 Bouv. Inst, note 
 1337; 4 Bouv. Inst, note 3586; 3 Lev. 352; 
 1 Salk. 408; 1 Bing. N. C. 418; 4 Maule & S. 
 259; 10 Bxch. 656; 2 El. & Bl. 216; 7 El. & 
 Bl. 426; 1 Bos. & P. 404; 1 C. B. 578; 6 Mees. 
 & W. 302; 10 Exch. 656. 
 
 RESPONDENT. One who answers a judi- 
 cial proceeding applied to the party against 
 whom a writ as of quo warranto is brought. 
 
 In Chancery Practice. The party whO' 
 
 makes an answer to a bill or other proceed- 
 ing in chancery. The correlative is "peti- 
 tioner" or "complainant." 
 
 In Appellate Practice. The party who. 
 
 answers an appeal. Sometimes called "ap- 
 pellee." The correlative is "appellart." 
 
 In Civil Law. One who answers or is- 
 
 security for another; a fidejussor. Dig. 2> 
 8. 6. 
 
RESPONDENTIA 
 
 (802) 
 
 RESTITUTION, ETC. 
 
 RESPONDENTIA. In maritime law. A 
 loan of money, on maritime interest, on 
 goods laden on board of a ship, upon the 
 condition that, if the goods be wholly lost in 
 the course of the voyage, by any of the per- 
 ils enumerated in the contract, the lender 
 shall lose his money; if not, that the borrow- 
 er shall pay him the sum borrowed, with the 
 interest agreed upon. 
 
 The contract is called "respondentia" be- 
 cause the money is lent mainly, or most fre- 
 quently, on the personal responsibility of the 
 borrower. It differs principally from bot- 
 tomry (g. V.) in the following circumstan- 
 ces: Bottomry is a loan on the ship; re- 
 spondentia Is a loan upon the goods. The 
 money is to be repaid to the lender, with 
 maritime interest, upon the arrival of the 
 ship in the one case, and of the goods in the 
 other. In most other respects, the contracts 
 are nearly the same, and are governed by 
 the same principles. In the former, the ship 
 and tackle, being hypothecated, are liable, as 
 well as the borrower; in the latter, the lend- 
 er has, in general, it is said, only the per- 
 sonal security of the borrower. Marsh. Ins. 
 bk. 2, c. 1, p. 734. The general term, includ- 
 ing both respondentia and bottomry, is "hy- 
 pothecation" (g. V.) 
 
 RESPONDERA SON SOVERAIGNE. His 
 
 superior or master shall answer. Articuli 
 sup. Charta, c. 18. 
 
 RESPONDERE NGN DEBET (Lat. ought 
 not to reply). In pleading. The prayer of 
 a plea where the defendant insists that he 
 ought not to answer, as, when he claims a 
 privilege; for example, as being a member 
 of congress or a foreign ambassador. 1 Chit. 
 PI. *433. 
 
 RESPONSA PRUDENTUM (Lat.) In Ro- 
 man law. Opinions given by Roman law- 
 yers. 
 
 Before the time of Augustus, every lawyer 
 was authorized, de jure, to answer questions 
 put to him; and all such answers, responsa 
 prudentum, had equal authority, which had 
 not the force of law, but the opinion of a 
 lawyer. Augustus was the first prince who 
 gave to certain distinguished jurisconsults 
 the particular privilege of answering In his 
 name, and from that period their answers 
 required greater authority. Adrian deter- 
 mined in a more precise manner the degree 
 of authority which these answers should 
 have, by enacting that the opinions of such 
 authorized jurisconsults, when unanimously 
 given, should have the force of law {legis 
 vicem), and should be followed by the judg- 
 es, and that, when they were divided, the 
 judge was allowed to' adopt that which to 
 him appeared the most equitable. The opin- 
 ions of other lawyers held the same place 
 they had before, — they were considered 
 merely as the opinions of learned men. 
 Mackeld. Man. Introd. § 43; Mackeld. Hist. 
 Dr. Rom. §§ 40,' 49; Hugo, Hist. Dr. Rom. 
 § 313; Inst. 1. 2. 8; Inst. Expl. note 39. 
 
 RESPONSALIS (Law Lat.) 
 In Old English Law. One who an- 
 swered or gave answer for another (,gui re- 
 
 sponsum defert). The term seems to be 
 used by Glanville in the sense of "attorney." 
 Glanv. lib. 12, c. 1; Steph. PL Append, note 
 (5). But Bracton makes a clear distinction 
 between the two offices, and is followed by 
 Fleta. Bracton, fol. 212b. But see Id. fol. 
 361b; Fleta, lib. 4, c. 6. Lord Coke defines 
 responsalis to be "he that was appointed by 
 the tenant or defendant, in case of extrem- 
 ity and necessity, to allege the cause of the 
 party's absence, and to certify the court 
 upon what trial he will put himself, viz., 
 the combat or the country." Co. Litt. 128a. 
 
 In the Canon Law. A proctor; one 
 
 who excuses an absent party. Cowell. 
 
 RESPONSALIS AD LUCRANDUM VEL 
 
 petendum. He who appears and answers for 
 another in court at a day assigned; a proc- 
 tor, attorney, or deputy. 1 Reeve, Hist. Bng. 
 Law, 169. 
 
 RESPONSIBILITY. The obligation to an- 
 swer for an act done, either civilly or crim- 
 inally, and to repair any injury it may have 
 caused. 
 
 RESPONSIBLE. Able to pay the sum 
 which may be required of him; able to dis- 
 charge an obligation. Webster; 26 N. H. 
 527. 
 
 RESPONSIO (Lat.) An answer. 
 
 RESPONSIO UN I US NON OMNINO AUDI- 
 
 tur. The answer of one witness shall not be 
 heard at all. 1 Greenl. Bv. § 260. This is 
 a maxim of the civil law, where everjrthing 
 must be proved by two witnesses. 
 
 RESTITUTIO IN INTEGRAM (Lat.) In 
 civil law. A restoring parties to the condi- 
 tion they were in before entering into a con- 
 tract or agreement on account of fraud, in- 
 fancy, force, honest mistake, etc. Calv. Lex. 
 The going into a cause anew from the be- 
 ginning. Calv. Lex. 
 
 RESTITUTION. The return of property to 
 the owner or person entitled to it. 
 
 In Maritime Law. The placing backer 
 
 restoring articles which have been lost by 
 jettison. This is done when the remainder 
 of the cargo has been saved, at the general 
 charge of the owners of the cargo; but when 
 the remainder of the goods is afterwards 
 lost, there is not any restitution. Stev. Av. 
 pt. 1, c. 1, § 1, art. 1, note 8. 
 
 RESTITUTION OF CONJUGAL RIGHTS. 
 
 In ecclesiastical law. A compulsory renewal 
 of cohabitation between a husband and wife 
 who have been living separately. 
 
 A suit may be brought in the divorce and 
 matrimonial court for this purpose whenever 
 either the husband or wife is guilty of the 
 injury of subtraction, or lives separate from 
 the other without sufficient reason, by which 
 the party Injured may compel the other to 
 return to cohabitation. 3 Bl. Comm. 94; 3 
 Steph. Comm. 11; 1 Add. Ecc. 305; 3 Hagg. 
 Bcc. 619. 
 
RESTITUTION OF MINORS 
 
 (803) 
 
 RETAIN 
 
 RESTITUTION OF MINORS. In Scotch 
 law. A minor, on attaining majority, may 
 obtain relief against a deed previously exe- 
 cuted by him, which may be held void or 
 voidable, according to circumstances. This 
 is called "restitution of minors." Bell, Diet. 
 
 RESTITUTION, WRIT OF. 
 
 In Common-Law Practice. A writ 
 
 which lies, after the reversal of a judgment, 
 to restore a party to all that he has lost by 
 occasion of the judgment. 2 Tidd, Prac. 
 1186. 
 
 In Criminal Practice. A writ which 
 
 lay on conviction of an offense involving the 
 asportation of property to compel the crim- 
 inal to restore the same. 
 
 RESTITUTIONS TEMPORALIUM. A writ 
 addressed to the sheriff, to restore the tem- 
 poralities of a bishopric to the bishop elected 
 and confirmed. Fltzh. Nat. Brev. 169. 
 
 RESTORE. To return what has been un- 
 justly taken; to place the owner of a thing 
 in the state i-n which he formerly was. 
 
 RESTRAINING ORDER. An order re- 
 straining the doing of any act; more com- 
 monly called an "Injunction." 
 
 In English Law. An order under St. 5 
 
 Vict. c. 5, § 4, by which the Bank of Eng- 
 land, or any other public company, may be 
 restrained from permitting a transfer of 
 shares until the rights of certain parties 
 thereto have been adjudged. 
 
 RESTRAINT OF ALIENATION. Restric- 
 tion of the power of aliening realty. See 
 "Perpetuity." 
 
 RESTRAINT OF TRADE. Restriction of 
 freedom of traffic. Restraint of trade of In- 
 dividuals may be general, or may be partial. 
 In being limited as to time or territory. Con- 
 tracts in general restraint of trade are void ( 8 
 Mass. 223); while those In partial restraint 
 are valid (42 N. J. Bq. 185; 11 Ohio St. 349; 
 68 N. Y. 300), unless the time be so long, 
 or the territory so extensive, that it amounts 
 to a general restraint (36 Cal. 342). Con- 
 tracts or combinations which operate in re- 
 straint of public trade are ordinarily void, 
 though the restraint be but partial. 68 N. 
 Y. 558. ' 
 
 RESTRICTIVE INDORSEIVIENT. An In- 
 dorsement which confines the negotiability 
 of a promissory note or bill of exchange by 
 using express words to that effect, as, by in- 
 dorsing it payable to A. B. only. 1 Wash. C. 
 0. (U. S.) 512; 2 Murph. (N. C.) 138; 1 
 Bouv. Inst, note 1138. 
 
 RESTS. Periodical balancings of an ac- 
 count (particularly in mortgage and trust 
 accounts), made for the purpose of convert- 
 ing interest Into principal, and charging the 
 party liable thereon with compound interest. 
 Mozley & W. 
 
 RESULTING TRUST. A trust raised by 
 implication or construction of law, and pre- 
 sumed to exist from the supposed intention 
 of the parties and the nature of the transac- 
 tion. 
 
 All trusts created by Implication or con- 
 struction of law are often included under 
 the general term "implied trusts;" but these 
 are commonly distinguished into Implied or 
 resulting and constructive trusts; resulting 
 or presumptive trusts being those which are 
 implied or presumed from the supposed in- 
 tention of the parties and the nature of the 
 transaction; constructive trusts, such as are 
 raised independently of any such intention, 
 and which are forced on the conscience of 
 the trustee by equitable construction and the 
 operation of law. Story, Eq. Jur. § 1095; 
 Hill, Trustees, 91; 1 Spence, Eq. Jur. 510; 2 
 Spence, Eq. Jur. 198; 3 Swanst. 585; 1 Ohio, 
 321; 6 Conn. 285; 2 Edw. Ch. (N. Y.) 373; 6 
 Humph. (Tenn.) 93. See "Trust." 
 
 RESULTING USE. A use raised by equity 
 for the benefit of a feoffor who has made a 
 voluntary conveyance to uses without any 
 declaration of the use. 2 Washb. Real Prop. 
 100. 
 
 The doctrine, at first limited to the case of 
 an apparently voluntary conveyance with no 
 express declaration, became so extended that 
 a conveyance of the legal estate ceased to 
 imply an Intention that the feoffee should 
 enjoy the beneficial interest therein; and If 
 no intent to the contrary was expressed, and 
 no consideration proved or Implied, the use 
 always resulted to the feoffor. 2 Washb. 
 Real Prop. 100. And if part only of the use 
 was expressed, the balance resulted to the 
 feoffor. 2 Atk. 150; 2 Rolle, Abr. 781; 1 
 Spence, Eq. Jur. 451; Co. Litt. 23a. And, 
 under the statute, where a use has been lim- 
 ited by deed, and expires, or cannot yest, it 
 results back to the one who declared it. 4 
 Wend. (N. Y.) 494; 15 Me. 414; 5 Watts & S. 
 (Pa.) 323; 3 Johns. (N. Y.) 388. And see 
 Cro. Jac. 200; White & T. Lead. Cas. 258; 2 
 Washb. Real Prop. 132 et seq. See "Use." 
 
 RESUIVIIVIONS (Law Lat.cesMmmoniHo). In 
 practice. A second summons. The calling 
 a person a second time to answer an action, 
 where the first summons is defeated upon 
 any occasion, as the death of a party, or the 
 like. Cowell. 
 
 RESUMPTION (Law Lat. resumptio). In 
 old English law. The taking again into 
 the king's hands such lands or tenements 
 as before, upon false suggestion or other 
 error, he had delivered to the heir or grant- 
 ed by letters patent to any man. St. 31 Hen. 
 VI. c. 7; Cowell. 
 
 RESURRENDER. Where copyhold land 
 has been mortgaged by surrender, and the 
 mortgagee has been admitted, then, on the 
 mortgage debt being paid off, the mortgagor 
 is entitled to have the land reconveyed to 
 him, by the mortgagee surrendering it to the 
 lord to his use. This is called a "resurren- 
 der." 2 Dav. Conv. 1332n. 
 
 RETAIL. To sell by small parcels, and 
 not in the gross. 5 Mart. (La.; N. S.) 279; 
 7 Mete. (Mass.) 308. 
 
 RETAIN. In practice. To engage the serv- 
 ices of an attorney or counsellor to manage 
 a cause. See "Retainer." 
 
RETAINER 
 
 (804) 
 
 RETRACTO O TANTEO 
 
 RETAINER. The act of withholding what 
 one has in one's own hands, by virtue of 
 some right. See "Administrator;" "Execu- 
 tor;" "Lien." 
 
 In Practice. ^The act of a client by 
 
 which he engages an attorney or counsellor 
 to manage a cause, either by prosecuting it, 
 when he is plaintiff, or defending it, when he 
 is defendant. 
 
 The retaining fee. See 38 Kan. 668. 
 
 In English practice, a much more formal 
 retainer is usually required than in Amer- 
 ican. Thus it is said by Chitty (3 Prac. 116, 
 note [m]), that, although it is not indis- 
 pensable that the retainer should be in writ- 
 ing, unless required by the other side, it is 
 very expedient. It is therefore recommend- 
 ed, particularly when the client is a stran- 
 ger, to require from him a written retainer, 
 signed by himself, and, in order to avoid 
 the insinuation that it was obtained by con- 
 trivance, it should be witnessed by one or 
 more respectable persons. When there are 
 several plaintiffs, it should be signed by all, 
 and not by one for himself and the others, 
 especially if they are trustees or assignees 
 of a bankrupt or insolvent. The retainer 
 should also state whether It be given for a 
 general or a qualified authority. See 9 
 Wheat. (U. S.) 738, 830; 6 Johns. (N. Y.) 
 34, 296; 11 Johns. (N. Y.) 464; 1 N. H. 23; 
 28 N. H. 302; 7 Har; & J. (Md.) 275; 27 
 Miss. 567. 
 
 RETAINING FEE. A fee given to counsel 
 on being consulted, in order to insure his 
 future .services. See "Retainer." 
 
 RETAKING. The taking one's goods, wife, 
 child, etc., from another, who, without right, 
 has taken possession thereof. See "Recap- 
 tion." 
 
 RETALIATION. In international law. A 
 term including both reprisal and retorsion 
 («. V.) 
 
 RETALLIA (Law Lat.; from Law Fr. re- 
 tainer, to cut again). In old English law. 
 Retail; the cutting up again, or division of 
 a commodity into smaller parts. Nee in 
 grosso, neo ad retalUam, neither in gross 
 (by wholesale), nor at retail. Reg. Orig. 
 184. 
 
 R ETA RE (Law Lat.) In old English law. 
 To suspect; to accuse. Retains de murdro, 
 accused of murder. Assis. de Clarendon, 
 temp. Hen. II. § 1; Spelman. De furio reta- 
 ins, charged with theft. Cowell. 
 
 RETENTION. In Scotch law. The right 
 which the possessor of a movable has of 
 holding the same until he shall be satisfied 
 for his claim either against such movable or 
 the owner of it; a lien. 
 
 General retention is the right to withhold 
 or detain the property of another, in respect 
 of any debt which happens to be due by the 
 proprietor to the person who has the cus- 
 tody, or for a general balance, of accounts 
 arising on a particular train of employment. 
 2 Bell, Comm. (5th Ed.) 90, 91. 
 
 Special retention is the right of withhold- 
 
 ing or retaining property or goods which are 
 in one's possession under a contract, till in- 
 demnified for the labor or money expended 
 on them. 
 
 RETONSOR (Law Lat. from retondere, q. 
 V.) In old English law. A clipper of money. 
 Pleta, lib. 1, c. 20, § 122. 
 
 RETORNA BREVIUM. In old English law. 
 The return of writs by sheriffs and bailiffs, 
 which is only a certificate delivered to the 
 court on the day of return, of that which he 
 hath done touching the execut-ion of their 
 writ directed to him. This must be in- 
 dorsed on back of writ by ofBcer. 2 Lilly, 
 Abr. 476. Each term has return days, fixed, 
 as early as 51 Hen. III., at intervals of about 
 a week, on which all original writs are re- 
 turnable. The first return day is regularly 
 the first day in th€ term; but there are three 
 days' grace. 2 Bl. Comm. 277. 
 
 RETORNO HABENDO. In practice. A 
 writ issued to compel a party to return prop- 
 erty to the party to whom it has been ad- 
 judged to belong, in an action of replevin. 
 
 Thus, where the property taken was cat- 
 tle, it recites that the defendant was sum- 
 moned to appear to answer the plaintiff in 
 a plea whereof he took the cattle of the said 
 plaintiff, specifying them, and that the said 
 plaintiff afterwards made default; where- 
 fore it was then considered that the said 
 plaintiff and his pledges of prosecuting 
 should be in mercy, and that the said de- 
 fendant should go without day, and that he 
 should have return of the cattle aforesaid. 
 It then commands the sheriff that he should 
 cause to be returned the cattle aforesaid to 
 the said defendant without delay, etc. 2 Sel- 
 lon, Prac. 168. i 
 
 RETORSION. The name of the act em- 
 ployed by a government to impose the same 
 hard treatment on the citizens or subjects of 
 a state that the latter has used towards the 
 citizens or subjects of the former, for the 
 purpose of obtaining the removal of obnox- 
 ious measures. Vattel, liv. 2, c. 18, § 341; 
 De Martens, Precis., liv. 8, c. 2, § 254; Klu- 
 ber. Dr. des Gens, sec. 2, c. 1, § 234; Man- 
 ning, Comm. 105. 
 
 RETOUR. In Scotch law. To return a 
 writ or brieve to the office in chancery from 
 which it issued. Hubback, Ev. Success. 597. 
 See "Retour of Service." 
 
 RETOUR OF SERVICE. In Scotch law. 
 An authenticated copy of the verdict of a 
 jury (called a "service") taken under a 
 brieve of succession, by which the legal 
 character of a party as heir is judicially es- 
 tablished. Hubback, Bv. Success. 597; 1 
 Forbes, Inst. pt. 3, p. 80. See Bell, Diet. 
 
 RETRACTATION, or RETRACTION. In 
 
 probate practice. A withdrawal of a renun- 
 ciation. 
 
 RETRACTO O TANTEOt In Spanish law. 
 The right of revoking a contract of sale; the 
 right of redemption of a thing sold. White, 
 New Recop. bk. 2, tit. 13, c. 2, § 4. 
 
RETRACTUS AQUAE 
 
 (805) 
 
 RETURN OF PREMIUM 
 
 RETRACTUS AQUAE (Law Lat.) In old 
 English law. Retreat of the water; ehb, or 
 low water; the retreat of tide. Plac. Cor. 
 Rege, Pasch.; 30 Edw. I. apud Cantuar. Rot. 
 
 58; Cowell. 
 
 RETRACTUS FEUDALIS (Law Lat.) In 
 old Scotch law. The power which a supe- 
 rior possessed of paying off a debt due to 
 an adjudging creditor, and taking a con- 
 veyance to the adjudication. Bell, Diet. 
 
 RET RA HERE (Lat. from re, back, and 
 trahere. to draw). In old English prac- 
 tice. To draw back; to withdraw. 8i sim- 
 pUciter se retrahat a brevi, non tamen se 
 retrahit ab aotione, — nisi expresse dicat quod 
 se retrahat ab utroqiie, if he merely with- 
 draw himself from the writ, he does not 
 thereby withdraw himtself from the action, 
 unless he expressly says that he withdraws 
 himself from both. Bracton, fol. 182b. See 
 Fleta, lib. 4, c. 7, § 1. • 
 
 RETRAIT (Pr. from retrairc, to draw 
 back). In old French and Canadian law. 
 The taking back of a flef by the seignior, 
 in case of alienation by the vassal. Dun- 
 kin's Address, 93. 
 
 A right of pre-emption by the seignior, 
 in case of sale of the land by the grantee. 
 Id. 40. 
 
 RETRAXIT (Lat. he withdraws). In prac- 
 tice. The act by which a plaintiff withdraws 
 his suit. It is so called from the fact that 
 this was the principal word used when the 
 law entries were in Latin. 
 
 A "retraxit" differs from a "nonsuit;" the 
 former being the act of the plaintiff himself, 
 for it cannot even be entered by attorney (8 
 Coke, 58; 3 Salk. 245; 8 Pa. St. 157, 163), 
 and it must be after declaration filed (3 Le- 
 on. 47; 8 Pa. St. 163) ; while the latter oc- 
 curs in consequence of the neglect merely 
 of the plaintiff. A retraxit also differs from 
 a nolle prosequi. The effect of a retraxit is 
 a bar to all actions of a like or a similar na- 
 ture (Bac. Abr. "Nonsuit" [A] ) ; a nolle pros- 
 equi is not a bar even in a criminal prosecu- 
 tion (2 Mass. 172). See 2 Sellon, Prac. 338; 
 Bac. Abr. "Nonsuit;" Comyn, Dig. "Pleader" 
 (X2). 
 
 RETREAT TO THE WALL. A figurative 
 phrase used to express the duty of one as- 
 sailed to retreat as far as he can with safety 
 before resisting the assault with force, such 
 a retreat being essential to the right to kill 
 in self-defense. 4 Bl. Comm. 185. 
 
 RETRO (Lat.) Back; backward; behind. 
 Retrofeodum, a rere fief, or arriere flef. 
 Spelman. 
 
 RETROACTIVE. The same as "retrospec- 
 tive" {q. V.) 
 
 RETROCESSION. In civil law. When the 
 assignee of heritable rights conveys his 
 rights back to the cedent, it Is called a "ret- 
 rocession." Ersk. Inst. 3. 5. 1; Diet, de Jur. 
 
 RETROSPECTIVE. Looking backward. A 
 retroactive law is one which applies to cases 
 
 existing at its passage, so as to impose new 
 duties or attach new disabilities with refer- 
 ence to past transactions, or to impair vest- 
 ed rights. 
 
 RETTE (Law Fr.) In old English law. 
 An accusation or charge. Quant clerk est 
 prise par rette de felony, when a clerk is 
 taken on a charge of felony. St. Westmin- 
 ster I. c. 2. 
 
 RETTER (Law Pr.) In old English law. 
 To accuse; to charge; to lay to the charge; 
 to account; in old English, to arret, or ar- 
 rect. Ceo purra il retter a sa negligence, 
 he must charge this to his own negligence. 
 Britt. c. 59. Ceo poies retter a vostre folly 
 demesne, you may lay this to your own 
 folly. Y. B. H. 10 Edw. III. 8. II serra 
 rette la folly, it shall be accounted the folly. 
 Litt. § 261. 
 
 RETTUM (Law Lat.; from Law Fr. rette, 
 q. V.) In old English law. An accusation; 
 a charge. Si clericus aliquis pro crimine 
 aliquo vel retto — arrestatus fuerit, if any 
 clerk shall have been arrested for any crime 
 or charge. St. Marlb. c. 28 (27). 
 
 RETURN. 
 
 Of Writs or Process. 
 
 The redelivery 
 
 of a writ or process by the officer charged 
 with its execution to the court from which 
 it issued, with an account of the manner in 
 which he has executed it. The account in- 
 dorsed on or affixed to process or writs by 
 the officer, stating the manner of its execu- 
 tion. 
 
 To Writs. The answer made by one 
 
 to whom an alternative writ (as of habeas 
 corpus or quo warranto) is directed. 
 
 On Appeal or Error. The papers or 
 
 record transmitted from the lower to the 
 appellate court. 
 
 RETURN DAY. A day appointed by law 
 when all writs are to be returned which have 
 issued since the preceding return day. The 
 sheriff is, in general, not required to return 
 his writ untl the return day. After that 
 period he may be ruled to make a return. 
 
 RETURN OF PREIVIIUM. In insurance. A 
 repayment of a part or the whole of the 
 premium paid. Policies of insurance, espe- 
 cially those on marine risks, not unfre- 
 quently contain stipulations for a return of 
 the whole or a part of the premium in cer- 
 tain contingencies (2 Phil. Ins. xxii. §11); 
 but in the absence of any such stipulation, 
 in a case free of fraud on the part of 
 the assured, if the risk does not commence 
 to run, he is entitled to a return of it, if 
 paid, or an exoneration from his liability to 
 pay it, subject to deduction settled bv stipu- 
 lation or usage; and so, pro rata, if only a 
 part of the insured subject is put at risk (2 
 Phil. Ins. c. xxii. § 1); and so an abate- 
 ment of the excess of marine interest over 
 the legal rate is made in hypothecation of 
 ship or cargo in like case (Id. § 7; Boul. P. 
 Dr. Com. tit. 9, § 13, tom. 3, p. 63 (Ed. of 
 1822) ; Poth. Cont. a la Grosse, note 39. 
 
RETURNUM AVERIORUM 
 
 (806) 
 
 REVERSION 
 
 RETURNUM AVERIORUM. A judicial 
 writ, similar to the retorno habendo. Cow- 
 ell. 
 
 RETURNUM IRREPLEGIABILE. A judi- 
 cial writ addressed to the sheriff for the 
 final restitution or return of cattle to the 
 owner when unjustly taken or distrained, 
 and so found by verdict. It is granted aft- 
 er a nonsuit in a second deliverance. Reg. 
 Jud. 27. 
 
 REUS (Lat.) In civil law. A party to a 
 suit, whether plaintiff or defendant. Reus 
 est qui cum altera litem contestatem habet, 
 sive id egit, sive cum eo actum est. 
 
 A party to a contract. Reus credendi is 
 he to whom something is due, by whatever 
 title it may be; reus debendi is he who owes, 
 for whatever cause. Poth. ad Pand. lib. 50. 
 
 REUS EXCIPIENDO FIT ACTOR. The de- 
 fendant, by a plea, becomes plaintiff. Ban- 
 nier, Tr. des Preuves, §§ 152, 320; Best, Ev. 
 294, § 252. 
 
 REUS LAESAE MAJESTATIS PUNITUR, 
 ut pereat unus ne pereant omnes. A traitor 
 is punished that one may die lest all perish. 
 4 Coke, 124. 
 
 REUS PROMITTENDI. See "Reus Stipu- 
 landi." 
 
 REUS STIPULANDl. In the civil law. 
 The party to a stipulation is so called if he 
 is the creditor or obligee, and the debtor or 
 obligor to such a stipulation is called the 
 "reus promittendi." Where there are several 
 creditors or several debtors jointly entitled 
 to or jointly liable under a stipulation, they 
 were respectively called "correi;" i. e., joint 
 ret. Brown. 
 
 REVE, or GREVE {Lat. gerefn, or refa, 
 from raefan, to seize). In English law. A 
 chief officer or superintendent (praepositus, 
 praefectus). Properly, according to Spel- 
 man, a collector or exactor of public moneys 
 or fines. 
 
 Shire reve, the reve or chief officer of the 
 shire (pagi praepositus) . Hence, sheriff. 
 
 Tun greve, the reve or chief officer of a 
 town (villae praepositus) . Afterwards sim- 
 ply called "reve," and bailiff. Spelman. See 
 "Reeve." 
 
 REVE LAND. In Domesday Book we find 
 land put down as "thane lands," which were 
 af'terwards converted into reve lands, i. e., 
 such lands as, having reverted to the king 
 upon death of his thane, who had it for life, 
 were not since granted out to any by the 
 king, but vested in charge upon account of 
 the reve or bailiff of the manor. Spelman, 
 Feuds, c. 24. Coke was mistaken in think- 
 ing it was land held in socage. 
 
 REVE MOTE. In Saxon law. The court 
 of the reve, reeve, or shire reeve. 1 Reeve, 
 Hist. Eng. Law, 6. 
 
 REVENDICATION. In civil law. An ac- 
 tion by which a man demands a thing of 
 which he claims to be owner. It applies to 
 
 immovables as well as movables; to cor- 
 poreal or incorporeal things. Merlin, Re- 
 pert. 
 
 Revendlcatlon, in another sense, corre- 
 sponds very nearly to the "stoppage in tran- 
 situ," of the common law. It is used in that 
 sense in Code de Commerce, art. 577. Re- 
 vendlcatlon, says that article, can take place 
 only when the goods sold are on the way to 
 their place of destination, whether by land 
 or water, and before they have been received 
 into the warehouse of the insolvent (failli) 
 or that of his factor or agent authorized to 
 sell them on account of the insolvent. See 
 Dig. 14. 4. 15; Id. 18. 1. 19. 53; Id. 19. 1. 11. 
 
 REVERSAL. 
 
 In International Law. A declaration 
 
 by which a sovereign promises that he will 
 observe a certain order, or certain conditions, 
 which have been once established, notwith- 
 standing any changes that may happen to 
 cause a deviation therefrom; as, for ex- 
 ample, when the French court consented for 
 the first time, in 1745, to grant to Elizabeth, 
 the czarina of Russia, the title of empress, 
 it exacted as a reversal a declaration pur- 
 porting that the assumption of the title of 
 an Imperial government by Russia should 
 not derogate from the rank which France 
 had held towards her. 
 
 Letters by which a sovereign declares that, 
 by a particular act of his, he does not mean 
 to prejudice a third power. Of this we have 
 an example in history. Formerly the em- 
 peror of Germany, whose coronation, accord- 
 ing to the golden ball, ought to have been 
 solemnized at Aix-la-Chapelle, gave to that 
 city, when he was crowned elsewhere, re- 
 versals, by which he declared that such 
 coronation took place without prejudice to 
 its rights, and without drawing any conse- 
 quences therefrom for the future., 
 
 In Practice. The decision of a superi- 
 or court by which the judgment, sentence, 
 or decree of the inferior court Is annulled. 
 
 REVERSER. In Scotch law. The propri- 
 tor of an estate who grants a wadset (or 
 mortgage) of his lands, and who has a right, 
 on repayment of the money advanced to him, 
 to be replaced in his right. Bell, Diet. 
 
 REVERSIO (Law Lat. from revcrti, to re- 
 turn). In old English law. The return- 
 ing of land to the donor. Fleta, lib. 3, cc. 
 10, 12. 
 
 REVERSION. The residue of an estate 
 left in the grantor, to commence in posses- 
 sion after the determination of some particu- 
 lar estate granted out by him. The return 
 of land to the grantor and his heirs after the 
 grant is over. Co. Lltt. 142b. 
 
 The reversion arises by operation of law, 
 and not by deed or will, and It is a vested 
 interest or estate, and in this it differs from 
 a "remainder," which can never be limited 
 unless by either deed or devise. 2 Bl. Comm. 
 175; Cruise, Dig. tit. 17; Plowd. 151; 4 Kent, 
 Comm. 349; 19 Viner, Abr. 217. A rever- 
 sion is said to be an incorporeal heredita- 
 ment. 4 Kent, Comm. 354; 1 Washb. Real 
 
REVERSIONARY INTEREST 
 
 (807) 
 
 REVOCATION OF AGENCY 
 
 Prop. 37, 47, 63; 2 Bouv. Inst, note 1850. See 
 "Remainder." 
 
 REVERSIONARY INTEREST. The inter- 
 est .which one has in the reversion of lands 
 or other property. The residue which re- 
 mains to one who has carved out of his es- 
 tate a lesser estate. See "Reversion." An 
 interest in the land when possession shall 
 fail. Cowell. 
 
 REVERSIONARY LEASE. One to take 
 effect in futuro. A second lease, to com- 
 mence after the expiration of a former lease. 
 Wharton. 
 
 REVERSIONER. A person who is entitled 
 to an estate in reversion. 
 
 REVERSOR. In Scotch law. A debtor 
 who makes a wadset, and to whom the right 
 of reversion is granted. Ersk. Inst. 2. 8. 1. 
 A reversioner. Jacob. 
 
 REVERTER. Reversion. A possibility of 
 reverter is that species of reversionary in- 
 terest which exists when the grant is so lim- 
 ited that it may possibly terminate. See 1' 
 Washb. Real Prop. 63. 
 
 REVEST. To vest again. A seisin is said 
 to revest, where it is acquired a second time 
 by the party out of whom it has been di- 
 vested. 1 Roper, Husb. & Wife, 353. 
 
 It is opposed to "divest." The words "re- 
 vest" and "divest" are also applicable to the 
 mere right or title, as opposed to the posses- 
 sion. Brown. 
 
 REVESTIRE (Law Lat.) In old European 
 law. To return or resign an investiture, 
 seisin, or possession that has been received; 
 to reinvest; to re-enfeoff. Spelman. 
 
 REVIEW. A second examination of a mat- 
 ter; ordinarily applied to a re-examination 
 of a judicial or ofBcial determination. It is 
 a general term, embracing re-examination 
 obtained by every variety of procedure, as by 
 motion for new trial, appeal, writ of error, 
 bill of review, etc. 
 
 REVIEW, BILL OF. In equity practice. 
 A bill in the nature of a writ of error, filed 
 to procure an examination and alteration 
 or reversal of a decree made upon a for- 
 mer bill, which decree has been signed and 
 enrolled. Story, Eq. PI. § 403. 
 
 REVISING BARRISTERS. In English law. 
 Barristers appointed to revise the list of 
 voters for county and borough members of 
 parliament, and who hold courts for that 
 purpose throughout the country, being ap- 
 pointed in July or August. 6 Vict. c. 18; 3 
 Chit. St. 
 
 REVIVAL. 
 
 Of Contracts. An agreement to renew 
 
 the legal obligation of a just debt after it 
 has been barred by the act of limitation or 
 lapse of time is called its "revival." 
 
 Of Judgment. At common law, the act 
 
 by which a Judgment which has lain dor- 
 mant or without any action upon it for a 
 
 year and a day is again restored to its orig- 
 inal force. 
 
 When a judgment is more than a day and 
 a year old, no execution can issue upon it 
 at common law; but till it has been paid, or 
 the presumption arises from lapse of tipie 
 that it has been satisfied, it may be revived 
 and have all its original force, which was 
 merely suspended. This may be done by a 
 scire facias, or an action of debt on the 
 judgment. See "Scire Facias." 
 
 Where the common-law rule is not in force, 
 the bringing of suit on a judgment to pre- 
 vent the bar of the statute of limitations' 
 is termed "revival." 
 
 Of Action. The continuation of an ac- 
 tion which has abated by the death or dis- 
 ability of a party, or a transfer of the cause 
 of action. At common law, this was affected 
 by a bill in equity (see "Bill of Revivor"), 
 but in' most of the states, a proceeding on 
 application to the court in which the action 
 was pending has been substituted. 
 
 REVIVOR. In equity practice. A bill used 
 to renew an original bill which, for some 
 reason, has become inoperative. See "Bill of 
 Revivor." 
 
 REVOCATION OF AGENCY. An agency 
 is dissolved or determined in several ways: 
 
 I. By the act of the principal, either 
 
 (a) Express, as 
 
 (1) By direct and formal writ- 
 
 ing, publicly advertised; 
 
 (2) By informal writing to the 
 
 agent privately; 
 
 (3) By parol. 6 Pick. (Mass.) 
 
 198. 
 
 (b) Implied from circumstances, as by 
 
 appointing another person to do 
 the same act, where the author- 
 ity of both would be incompat- 
 ible. 78 Ky. 413. 
 The exceptions to the power of the prin- 
 cipal to revoke his agent's authority at mere 
 pleasure are 
 
 (1) When the principal has expressly 
 stipulated that the authority shall be irrev- 
 ocable, and the agent has also an interest 
 in its execution. 86 111. 142. 
 
 (2) Where an authority or power is 
 coupled with an interest, or is given for a 
 valuable consideration, or is a part of a 
 security, unless there is an express stipula- 
 tion that it shall be revocable. 40 111/ 109. 
 
 (3) Where an agent's act in pursuance of 
 his authority has become obligatory, for 
 nemo potest mutare consilinm siium in al- 
 teriiis iniuriam. 121 N. Y. 582. 
 
 II. By the agent's giving notice to his prin- 
 
 cipal that he renounces the agency; 
 but the principal must sustain no dam- 
 age thereby; otherwise the agent 
 would be responsible therefor. 37 
 Mich. 481. 
 
 III. By operation of law, as 
 
 (a) By the expiration of the period 
 
 during which the agency was 
 to exist or to have effect. 62 
 Ga. 216. 
 
 (b) By a change of condition or of 
 
 state, producing an in- 
 
REVOCATION OF PROBATE 
 
 (808) 
 
 RHANDIR 
 
 capacity of either the 
 principal or the agent, 
 as 
 
 (1) Marriage of a feme sole 
 
 principal. 22 Tex. 365. 
 
 (2) Mental disability estab- 
 
 lished by inquisition, or 
 where the party is 
 placed under guardian- 
 ship. 2 Hall (N. Y.) 
 495. 
 
 (3) Bankruptcy, except as to 
 
 such rights as do not 
 pass to the trustee un- 
 der the adjudication. 6 
 Biss. (U. S.) 405. 
 
 (4) Death, unless the author- 
 
 ity is coupled with an 
 interest in the thing 
 vested in the agent. 18 
 Beav. 179. 
 
 (5) Extinction of the subject 
 
 of the agency. 
 
 ( 6 ) Cessation of the principal's 
 
 powers. 
 
 (7) Complete execution of the 
 
 trust confided to the 
 agent, who then is func- 
 tus officio. 100N.Y.413; 
 Wharton. 
 
 (8) A state of war also termi- 
 
 nates all agencies re- 
 quiring intercourse be- 
 tween belligerent na- 
 tions. 100 Mass. 561. 
 
 REVOCATION OF PROBATE. The vaca- 
 tion or recall of an order admitting a will to 
 probate. 
 
 REVOCATIONE PARLIAMENTI. An an- 
 cient writ for recalling a parliament. 4 
 Inst. 44. 
 
 REVOCATUR (Lat. recalled). A term 
 used to denote that a judgment is annulled 
 for an error in fact. The judgment is then 
 said to be recalled, revocatur; not "re- 
 versed," which is the word used when a 
 judgment is annulled for an error in law. 
 Tidd, Prac. 1126. 
 
 REVOLT. The endeavor of the crew of a 
 vessel, or any one or more of them, to over- 
 throw the legitimate authority of her com- 
 mander, with intent to remove him from 
 his command, or against his will to take 
 possession of the vessel by assuming the 
 government and navigation of her, or by 
 transferring their obedience from the lawful 
 commander to some other person. 11 Wheat. 
 (U. S.) 417. 
 
 A confederacy or combination mvist be 
 shown. 2 Sumn. (U. S.) 582; 1 Woodb. & M. 
 (U. S.) 305; Crabbe, Dist. Ct. 558. The ves- 
 sel must be properly registered (3 Sumn. 
 [V. S.] 342); must be pursuing her regular 
 voyage (2 Sumn. [U. S.] 470). The indict- 
 ment must specifically set forth the acts 
 which constitute the crime. Wharton, Prec. 
 § 1061, note. And see 1 Mason (U. S.) 147; 
 5 Mason (U. S.) 402, 404; 1 Sumn. (U. S.) 
 448; 4 Wash. C. C. (U. S.) 402, 528; 2 Curt. 
 (U. S.) 225; 1 Pet. C. C. (U. S.) 213. 
 
 REWARD. An offer of recompense by the 
 government, or by a private person, to who- 
 ever will perform some special act. 
 
 A reward is an offer, revocable at any time 
 before performance. When accepted by per- 
 formance, it becomes a contract. 92 U. S. 73. 
 
 REWME (Old Eng.; from Law Fr. reaur 
 me). In old records. Realm; kingdom. "In 
 the name of Fader, Son, and Holy Ghost, I, 
 Henry of Lancaster, chalenge this rewme of 
 Ynglonde and the croun, with all the mem- 
 bers and the appurtenances, als I that am 
 descendit be right line of the blode comyng 
 fro the gude Lord King Henry therde, and 
 thorgho that right that God, of his grace, 
 hath sent mee, with helpe of my kyn and 
 of my frendes to recover it; the which 
 revmie was in poynt to be ondone for de- 
 faut of governance and undoyng of the gude 
 laws." Claim of Henry, Diuke of Lancaster 
 (afterwards Henry IV.), to the crown of 
 England. 1 How. St. Tr. 152. 
 
 REX (Lat.) In old English law. 
 king; the king. 
 
 King; a 
 
 REX DEBET ESSE SUB LEGE QUIA 
 LEX FACIT REGEM. The king ought to be 
 under the law, because the law makes the 
 king. 1 Bl. Comm. 239. 
 
 REX EST LEGALIS ET POLITICUS. The 
 
 king is both a legal and political person. 
 Lane, 27. 
 
 REX EST LEX VIVENS. The king is the 
 living law. Jenk. Cent. Cas. 17. 
 
 REX EST MAJOR SINGULIS; MINOR 
 unlversis. The king Is greater than any 
 single person; less than all. Bracton, lib. 
 1, c. 8. 
 
 REX HOC SOLUM NON POTEST FA- 
 cere quod non potest injuste agere. The 
 king can do everything but an injustice. 11 
 Coke, 72. 
 
 REX NON DEBET ESSE SUB HOMINE 
 sed sub Deo at lege. The king should not 
 be under the authority of man, but of God 
 and the law. Broom, Leg. Max. (3d London 
 Ed.) 46, 111; Bracton, 5. 
 
 REX NON POTEST FALLERE NEC FAL- 
 li. The king cannot deceive or be deceived. 
 Grounds & Rudiments of Law, 438. 
 
 REX NON POTEST PECCARE. The king 
 can do no wrong. 2 RoUe, 304; Jenk. Cent. 
 Cas. 9, 308; Broom, Leg. Max. (3d London 
 Ed.) 51; 1 Bl. Comm. 246. 
 
 REX NUNQUAM MORITUR. The king 
 never dies. Broom, Leg. Max. (3d London 
 Ed.) 49; Branch, Max. (5th Ed.) 197; 1 Bl. 
 Comm. 249. 
 
 RHANDIR. In gavelkind law. A gavel 
 was divided into four rhandirs, each con- 
 sisting of four tenements. 
 
RHODIAN LAWS 
 
 (809) 
 
 RIGA 
 
 RHODIAN LAWS. A code of maritime 
 laws adopted by tlie people of Rhodes, who 
 had by their commerce and naval victories 
 obtained the sovereignty of the sea, about 
 nine hundred years before the Christian era. 
 There is reason to suppose this code has not 
 been transmitted to posterity, at least not in 
 a perfect state. A collection of marine con- 
 stitutions, under the denomination of "Rho- 
 dian Laws," may be seen in Vinnius: but 
 they bear evident marks of a spurious ori- 
 gin. Marsh. Ins. bk. 1, c. 4, p. 15. See 
 "Code." 
 
 RIAL OF PLATE. A Spanish coin com- 
 puted in custom-house calculations at ten 
 cents. 1 Story, U. S. Laws, 626. 
 
 RIAL OF VELLON. A Spanish coin, com- 
 puted in custom-house calculations at five 
 cents. 1 Story, U. S. Laws, 626. 
 
 RIBALDUS (Law Lat; from Fr. ribauld, 
 ribaud). In old European law. A worth- 
 less person; a vagabond; a rogue or ruf- 
 fian. Spelman. It was not always, how- 
 ever, used in a bad sense, but sometimes 
 denoted an inferior attendant or servant. 
 Id. 
 
 RIBAUD. A rogue; a vagrant. It is not 
 used. 
 
 RICHARD ROE, otherwise TROUBLE- 
 some. The casual ejector and fictitious de- 
 fendant in ejectment, whose services are no 
 longer invoked. 
 
 RICOHOME (Spanish). In Spanish law. 
 A nobleman; a count or baron. 1 White, 
 Recop. 36. 
 
 RIDER. A schedule or small piece of pa- 
 per or parchment added to some part of the 
 record; as, when on the reading of a bill in 
 the legislature a new clause is added, this is 
 tacked to the bill on a separate piece of pa- 
 per, and is called a "rider." 
 
 RIDER (or RIDDER) ROLL. In old Eng- 
 lish practice. A schedule or small piece of 
 parchment added to some part of a roll or 
 record. Cowell; Blount. A supplementary 
 roll. 2 Tidd, Prac. 730. 
 
 RIDING. In English law. An ascertained 
 district; part of a county. This term has 
 the same meaning in Yorkshire that division 
 has in Lincolnshire. 4 Term R. 459. 
 
 RIEN. A French word which signifies 
 "nothing." It has generally this meaning; 
 as, rien en arrere; rien passe per le fait, 
 nothing passes by the deed; rien per descent, 
 nothing by descent. It sometimes signifies 
 not, as, rien culpable, not guilty. Doct. Plac. 
 435. 
 
 RIEN GULP (Law Fr.) In old pleading. 
 Not guilty. Y. B. H. 9 Hen. VI. 16; Id. M. 
 10 Hen. VI. 53. 
 
 RIEN DIT (Law Fr.) In old pleading. 
 
 Says nothing (»(7 diril). Y. B. M. 8 Hen. 
 VI. 16. 
 
 RIEN EN ARRERE (Law Fr. nothing in 
 arrear). In pleading. A plea which alleges 
 that there is nothing remaining due and un- 
 paid of the plaintiff's demand. It is a good 
 plea, and raises the general issue in an ac- 
 tion for rent. 2 Wm. Saund. 297, note'l; 2 
 Chit. PI. 486; 2 Ld. Raym. 1503. 
 
 A plea in an action of debt for rent. 1 
 Tidd, Prac. 650; Roscoe, Real Actions, 475. 
 
 A plea to an avowry in replevin. Roscoe, 
 Real Actions, 638; 2 Greenl. Ev. § 566. A 
 quasi general issue. 2 Seld. (N. Y.) 141. 
 
 RIEN LUY DOIT (Law Fr.) In old plead- 
 ing. Owes him nothing. The plea of nil 
 debet. Y. B. M. 3 Hen. VI. 16. 
 
 RIEN PASSA PAR LE FAIT (Law Fr. 
 nothing passed by the deed). In pleading. 
 A plea which avoids the effect of a deed, 
 where its execution cannot be denied, by as- 
 serting that nothing passed thereby; for ex- 
 ample, an allegation that the acknowledg- 
 ment was before a court which had not juris- 
 diction. 
 
 RIENS, RIEN, or RYEN (Law Fr.) Noth- 
 ing. Litt. § 53. 
 
 RIENS LOUR DEUST (Law Fr. not their 
 debt). The old form of the plea of nil debet. 
 2 Reeve, Hist. Bug. Law, 332. 
 
 RIENS PER DISCENT (Law Fr. nothing 
 by descent). The plea of an heir, where he 
 is sued for his ancestor's debt, and has no 
 land from him by descent, or assets in his 
 hands. Cro. Car. 151; 1 Tidd, Prac. 645; 2 
 Tidd, Prac. 937. 
 
 RIER COUNTY (Law Lat. retrooomita- 
 fH.v.) In old English law. After-county, 
 i. e., after the end of the county court. A 
 time and place appointed by the sheriff for 
 the receipt of the king's money after the 
 end of his county, or county court. Cowell. 
 Fleta (lib. 2, c. 67) calls it the day after 
 the county (dies crastinus post comitatum). 
 It is opposed to "open county" (that is, open 
 county court), in St. 2 Edw. III. c. 5. 
 
 RIFFLURA, RUFFLURA, or RUFLURA 
 
 (Law Lat; from old Bng. rufflyn, to disor- 
 der). In old English criminal law. A slight 
 removal of the skin; a scratch {scariflcatio, 
 decortatio). Bracton, fols. 144, 145; Fleta, 
 lib. 1, c. 41, § 3; Spelman. 
 
 RIFLETUM (Law Lat.) In old records. 
 A coppice or thicket. Cowell. 
 
 RIGA. In old European law. A species of 
 service and tribute rendered to their lords 
 by agricultural tenants. Supposed by Spel- 
 man to be derived from the name of a cer- 
 tain portion of land, called, in England, a 
 "rig" or "ridge," an elevated piece of ground, 
 formed out of several furrows. 
 
RIGHT 
 
 (810) 
 
 RIGHT OF ACTION 
 
 RIGHT. In the most abstract sense, jus- 
 tice, equity. 
 
 That which a person, having it, is entitled 
 to keep and enjoy, and to be protected by 
 law in its enjoyment; as the right of per- 
 sonal liberty, and other rights of persons. 
 See 1 Bl. Comm. 129. 
 
 That which one person ought to have or 
 receive from another, it being withheld 
 from him, or not in his possession. In this 
 sense, "right" has the force of "claim," and 
 is properly expressed by the Latin jus. Lord 
 Goke considers this to be the proper signifi- 
 cation of the word, especially in writs and 
 pleadings, where an estate is turned to a 
 right, as by discontinuance, disseisin, etc. 
 Co. Litt. 345a. 
 
 That interest which a person actually has 
 in any subject of property, entitling him to 
 hold or convey it at pleasure. An estate in 
 esse in conveyances. Co. Litt. 345a. In this 
 sense, "right" (jus) has the force of owner- 
 ship or property. Lord Coke, comparing the 
 terms of right and title observes that 
 " 'title' is the more general word, for every 
 right is a title, but every title is not such a 
 right for which an action lies." Co. Litt. 
 345b. Sir Matthew Hale distinguishes be- 
 tween the right of an estate and the title 
 of an estate. Hale, Anal. § 32. 
 
 Classification: 
 
 (1) Rights are perfect and imperfect. 
 When the things which we have a right to 
 possess, or the actions we have a right to do, 
 are or may be fixed and determinate, the 
 right is a perfect one; but when the thing 
 or the actions are vague and indeterminate, 
 the right is an imperfect one. If a man de- 
 mand his property which is withheld from 
 him, the right that supports his demand is 
 a perfect one, because the thing demanded 
 is or may be fixed and determinate; but if 
 a poor man ask relief from those from whom 
 he has reason to expect it, the right which 
 supports his petition is an imperfect one, 
 because the relief which he expects is a 
 vague, indeterminate thing. Rutherforth, 
 Inst, c.,2, § 4; Grotius de Jure Belli, lib. 1, c. 
 1, § 4. 
 
 (2) Rights are also absolute and qualified. 
 A man has an absolute right to recover 
 property which belongs to him. An agent 
 has a qualified right to recover such prop- 
 erty when it had been intrusted to his care, 
 and which has been unlawfully taken out of 
 his possession. 
 
 (3) Rights might, with propriety, be also 
 divided into natural and civil rights; but as 
 all the rights which man has received from 
 nature have been modified and acquired 
 anew from the civil law, it is more proper, 
 when considering their object, to divide 
 them into political and civil rights. 
 
 Political rights consist in the power to 
 participate, directly or indirectly, in the 
 establishment or management of govern- 
 ment. These political rights are fixed by the 
 constitution. Every citizen has the right 
 of voting for public officers, and of being 
 elected. These are the political rights which 
 the humblest citizen possesses. 
 
 Civil rights are those which have no re- 
 lation to the establishment, support, or man- 
 agement of the government. These consist 
 in the power of acquiring and enjoying prop- 
 erty, of exercising the paternal and marital 
 powers, and the like. It will be observed 
 that every one, unless deprived of them by 
 a sentence of civil death, is in the enjoyment 
 of his civil rights, which is not the case 
 with political rights, for an alien, for ex- 
 ample, has no political, although in the full 
 enjoyment of his civil, rights. 
 
 (4) Civil rights are divided Into absolute 
 and relative. The absolute rights of mankind 
 may be reduced to three principal or pri- 
 mary articles: The right of personal security, 
 which consists in a person's legal and unin- 
 terrupted enjoyment of his life, his limbs, 
 his body, his health, and his reputation; the 
 right of personal liberty, which consists in 
 the power of locomotion, of changing situa- 
 tion, or removing one's person to whatso- 
 ever place one's inclination may direct, with- 
 out any restraint unless by due course of 
 law; the right of property, which consists 
 in the free use, enjoyment, and disposal of 
 all his acquisitions, without any control or 
 diminution save only by the laws of the 
 land. 1 Bl. Comm. 124-139. 
 
 (5) The relative rights are public or pri- 
 vate. The first are those which subsist be- 
 tween the people and the government; as, 
 the right of protection on the part of the 
 people, and the right of allegiance which is 
 due by the people to the government; the 
 second are the reciprocal rights of husband 
 and wife, parent and child, guardian and 
 ward, and master and servant. 
 
 (6) Rights are also divided into legal and 
 equitable. The former are those where the 
 party has the legal title to a thing; and in 
 that case his remedy for an infringement 
 of it is by an action in a court of law. Al- 
 though tlae person holding the legal title 
 may have no actual interest, but hold only as 
 trustee, the suit must be in his name, and 
 not, in general, in that of the cestui que 
 trust. 1 Bast, 497 ; 8 Term R. 332 ; 1 Saund. 
 158, note 1; 2 Bing. 20. The latter, or equi- 
 table rights, are those which may be en- 
 forced in a court of equity by the cestui que 
 trust. See, generally, Bouv. Inst. Index. 
 
 RIGHT CLOSE, WRIT OF. An abolished 
 writ which lay for tenants in ancient de- 
 mesne, and others of a similar nature, to 
 try the right of their lands and tenements 
 in the court of the lord exclusively. 1 Steph. 
 Comm. 224. 
 
 RIGHT IN ACTION. A chose in action 
 (g. V.) 
 
 RIGHT IN COURT. See "Rectus in Cu- 
 ria." 
 
 RIGHT OF ACTION. The right to bring 
 suit; a legal right to maintain an action, 
 growing out of a given transaction or state 
 of facts, and based thereon. See "Action." 
 
 By the old writers "right of action" is com- 
 
RIGHT OF DISCUSSION 
 
 (811) 
 
 RING A. 
 
 monly used to denote that a person has lost 
 a right of entry, and has nothing hut a 
 right of action left. Co. Litt. 363b. 
 
 RIGHT OF DISCUSSION. In Scotch law. 
 The right which the cautioner (surety) has 
 to insist that the creditor shall do his best 
 to compel the performance of the contract 
 by the principal debtor before he shall be 
 called upon. 1 Bell, Comm. (5th Ed.) 347. 
 
 RIGHT OF DIVISION. In Scotch law. 
 The right which each of several cautioners 
 (sureties) has to refuse to answer for more 
 than his own share of the debt. To entitle 
 the cautioner to this right, the other cau- 
 tioners must be solvent, and there must be 
 no words in the bond to exclude it. 1 Bell, 
 Comm. (5th Ed.) 347. 
 
 RIGHT OF ENTRY. A right of entry is 
 the right of taking or resuming possession 
 of land by entering on it in a peaceable man- 
 ner. 
 
 RIGHT OF HABITATION. In Louisiana. 
 The right of dwelling gratuitously in a 
 house the property of another. Civ. Code 
 La. art. 623; 3 Toullier, Dr. Civ. c. 2, p. 325; 
 14 Toullier, Dr. Civ. note 279, p. 330. 
 
 RIGHT OF POSSESSION. The right to 
 possession which may reside in one man, 
 while ,another has the actual possession, 
 being the right to enter and turn out such 
 actual occupant; e. g., the right of a dis- 
 seisee. An apparent right of possession is 
 one which may be defeated, by a better; an 
 actual right of possession, — one which will 
 stand the test against all opponents. 2 Bl. 
 Comm. 196*. 
 
 RIGHT OF PROPERTY. The abstract 
 right {merum jus) which remains after the 
 actual possession has been so long gone that 
 the right of possession is also lost, and the 
 law will only allow recovery of the land by 
 a writ of right. It, together with possession 
 and right of possession, makes a perfect 
 title; e. g., a disseisor has naked possession, 
 the disseisee has right of possession and 
 right of property. But after twenty years 
 without entry, the right of possession is 
 transferred from the disseisee to the dis- 
 seisor; and if he now buys up the right of 
 property which alone remains in the dis- 
 seisee, the disseisor will unite all three 
 rights in himself, and thereby acquire a per- 
 fect title. 2 Bl. Comm. 197-199*. 
 
 RIGHT OF RELIEF. In Scotch law. The 
 
 The right which the cautioner (surety) has 
 
 against the principal debtor when he has 
 
 , been forced to pay his debt. 1 Bell, Comm. 
 
 (5th Ed.) 347. 
 
 RIGHT OF SEARCH. See "Search, Righ*: 
 of;" 1 Kent, Comm. (9th Ed.) 153, note; 1 
 Phillim. Int. Law, 325. 
 
 RIGHT OF WAY. The term Imports an 
 easement of way, and not a public highway. 
 2 Barb. (N. Y.) 432. 
 
 cient writ, which, Fitzherbert says, "ought 
 to be brought of lands and tenements, and 
 not of an advowson, or of common, and lieth 
 only of an estate of fee simple, and not for 
 him who has a lesser estate, as tenant in 
 tail, tenant in frank marriage, or tenant for 
 life." Fitzh. Nat. Brev. 1. 
 
 RIGHT TO BEGIN. In practice. The par- 
 ty who asserts the affirmative of an issue 
 has the right to begin and reply, as on him 
 is the burden of proof. The substantial af- 
 firmative, not the verbal, gives the right. 1 
 Greenl. Ev. § 74; 18 B. Mon. (Ky.) 136; 6 
 Ohio St. 307; 2 Gray (Mass.) 260. 
 
 RIGHT, WRIT OF. A procedure for the 
 recovery of real property after not more 
 than sixty years' adverse possession; the 
 highest writ in the law, sometimes called, to 
 distinguish it from others of the droitural 
 class, the "writ of right proper." Abolished 
 by 3 & 4 Wm. IV. c. 27. 3 Steph. Comm. 
 392. 
 
 RIGOR JURIS (Law Lat.) Strictness of 
 law. Latch, 150. Distinguished from gratia 
 curiae, favor of the court. Id. 
 
 RING DROPPING. In criminal law. A 
 phrase applied in England to a trick fre- 
 quently practiced in committing larcenies. 
 It is difficult to define it. It will be suffi- 
 ciently exemplified by the following cases: 
 The prisoner, with some accomplices, being 
 in company with the prosecutor, pretended 
 to find a valuable ring wrapped up in a 
 paper, appearing to be a jeweller's receipt 
 for "a rich brilliant diamond ring." They 
 offered to leave the ring with the prosecutor 
 if he would deposit some money and his 
 watch as a security. The prosecutor, having 
 accordingly laid down his watch and money 
 on a table, was beckoned out of the room 
 by one of the confederates, while the others 
 took away his watch and money. This 
 was held to amount to a larceny. 1 Leach, 
 C. C. 238; 2 Bast, P. C. 678. In another 
 case, under similar circumstances, the pris- 
 oner procured from the prosecutor twenty 
 guineas, promising to return them the next 
 morning, and leaving the false jewel with 
 him. This was also held to be larceny. 1 
 Leach, C. C. 314; 2 East, P. C. 679. In these 
 cases the prosecutor had no intention of 
 parting with the property in the money or 
 goods stolen. It was taken, in the first case, 
 while the transaction was proceeding, with- 
 out his knowledge, and in the last, under 
 the promise that it should be returned. See 
 2 Leach, C. C. 640. 
 
 RINGS, GIVING. The giving of golden 
 rings by a newly-created serjeant-at-law to 
 every person of rank at court, from the 
 princes of the blood, through the lords in 
 parliament and the justices and barons of 
 the courts, down to the meanest clerk of 
 common pleas, to each one according to his 
 dignity. The expense was not less than 
 forty pounds English money. Fortesq. 
 (Amos Ed.) 190; 10 Coke, Introd. 23. 
 
 RIGHT PATENT. The name of an an- RINGA (Law Lat.) In old English law. 
 
RINGING THE CHANGE 
 
 (812) 
 
 RIVER 
 
 A belt, or girdle; a sword belt. Bracton, 
 fol. 5b; Spelman. 
 
 RINGING THE CHANGE. In criminal 
 law. A trick practised by a criminal, by 
 which, on receiving a good piece of money 
 in payment of an article, he pretends it is 
 not good, a.nd, changing it, returns to the 
 buyer a spurious coin. For example, the 
 prosecutor having bargained with the pris- 
 oner, who was selling fruit about the streets, 
 to have five apricots for sixpence, gave 'him 
 a good shilling to change. The prisoner put 
 the shilling into his mouth, as if to bite it 
 in order to try its goodness, and, returning 
 a shilling to the prosecutor, told him it was 
 a bad one. The prosecutor gave him another 
 good shilling, which he also affected to bite, 
 and then returned another shilling, saying 
 it was a bad one. The prosecutor gave him 
 another good shilling, with which he prac- 
 tised this trick a third time, the shillings 
 returned by him being in every respect bad. 
 2 Leach, C. C. 64. This was held to be an 
 uttering of false money. 1 Russ. Crimes, 
 114. 
 
 RIOT. In criminal law. A tumultuous dis- 
 turbance of the peace by three persons or 
 more, assembling together of their oWn au- 
 thority with an intent mutually to assist 
 each other against any who shall oppose 
 them, in the execution of some eniterprise 
 of a private nature, and afterwards actually 
 executing the same in a violent and turbu- 
 lent manner, to the terror of the people, 
 whether the act intended were of itself law- 
 ful or unlawful. Hawk. P. C. c. 65, § 1. 
 See 3 Blackf. (Ind.) 209; 4 Blackf. (Ind.) 
 72; 3 Rich. (S. C.) 337; 5 Pa. St. 83. 
 
 "Riot" includes both "unlawful assembly" 
 and "rout" (g. v.), and the further element 
 that there shall be not only a step towards 
 carrying out the unlawful intent of the as- 
 sembly, but that they shall proceed therein 
 in a violent and tumultuous manner. 
 
 RIOT ACT. St. 1 Geo. I. St. 2, c. 5, pro- 
 viding that, if any twelve persons or more 
 are committing a riot, any sheriff, mayor, or 
 certain other officers shall by proclamation 
 in the king's name command themi to dis- 
 perse (which is familiarly called "reading 
 the riot act"), and that, if they refuse, to 
 obey, and remain together for the space of 
 one hour after such proclamation, they are 
 all guilty of felony. 
 
 RIOTOSE (Law Lat. riotously). A for- 
 mal and essential word in old indictments 
 for riots. 2 Strange, 834. Riotose et rou- 
 tose, riotously and routously. 2 Salk. 593. 
 
 RIOTOUS ASSEMBLY. In English crim- 
 inal law. The unlawful assembling of twelve 
 persons or more, to the disturbance of the 
 peace, and not dispersing upon proclama- 
 tion. 4 Bl. Comm. 142; 4 Steph. Com. 273. 
 
 RIOTOUSLY. In criminal pleading. A 
 technical word properly used in an indict- 
 ment for a riot, and ex vi termini implying 
 violence. 2 Chit. Crim. Law, 488, 490, note 
 (f ) ; 2 Sess. Cas. 13, cited Id. In the English 
 
 forms, "riotously and routously" is the ex- 
 pression invariably used. 2 Chit. Crim. Law, 
 ubi supra; 3 Burrows, 1262. And this has 
 been adopted in American practice. Whar- 
 ton, Prec. Indict. (Ed. 1857) 849 et seq. 
 
 RIPA (Lat.) The banks of a river, or the 
 place beyond which the waters do not in 
 their natural course overflow. 
 
 An extraordinary overflow does not change 
 the banks of the river. Poth. ad Pand. lib. 
 50. See "Bank;" "River." 
 
 RIPARIAN PROPRIETORS. Those who 
 own the land bounding on a watercourse. 
 
 RIPARIAN RIGHTS. The rights of the 
 owners of lands on the banks of rivers and 
 streams. 3 Kent, Comm. 427-432. 
 
 RIPARUM USUS PUBLICUS EST JURE 
 gentiam, sicut ipsius fluminis. The use of 
 river banks is by the law of nations public, 
 like that of the stream itself. Dig. 1. 8. 5. 
 pr. ; Pleta, lib. 3, c. 1, § 5; Locc. de Jur. 
 Mar. lib. 1, c. 6, § 12. 
 
 RIPUARIAN LAW. A code of laws of the 
 Pranks, who occupied the country upon the 
 Rhine, the Meuse, and the Scheldt, who were 
 collectively known by the name "Ripuar- 
 ians," and their laws as "Ripuarian Law." 
 
 RISCUS (Law Lat.) 
 
 In the Civil Law. A chest for the 
 
 keeping of clothing. Calv. Lex. 
 
 In Old Pleading. A trunk. Cro. Jac. 
 
 664. 
 
 RISICUIVI (Law Lat.) In old insurance 
 law. Risk; hazard; peril. Straccha, Gloss. 
 16; Bmerig. Tr. des Assur. c. 12. 
 
 RISK. In insurance law. The event in- 
 sured against. 
 
 RISTOURNE (Pr.) In insurance law. The 
 dissolution of a policy or contract of in- 
 surance, for any cause. Emerig. Tr. des 
 Assur. c. 16. 
 
 RITE (Lat.) In due form. "The rule of 
 presumption is ut res rite acta est" (that a 
 thing is done in due form). Lord Ellen- 
 borough, 8 East, 248. See "Omnia Prae- 
 sumuntur Rite, etc." 
 
 RIVER. A natural stream of water flow- 
 ing betwixt banks or walls in a bed of con- 
 siderable depth and width, being so called 
 whether its current sets always one way, or 
 flows and reflows with the tide. Woolr. Wa- 
 ters, 40; 16 N. H. 467. 
 
 In Old Law. Rivers were either pub- 
 lic or private. Public rivers are divided 
 into "navigable" and "not navigable;" the 
 distinction being that the former flow and 
 reflow with the tide, while the latter do not. 
 Both are "navigable" in the popular sense 
 of the term. Angell, Tide Waters, 74, 75; 7 
 Pet. (U. S.) 324; 5 Pick. (Mass.) 199; 26 
 Wend. (N. Y.) 404; 4 Barn. & C. 602; 5 
 Taunt. 705. 
 
 Rivers, when naturally unfit for public 
 use, as above described, are called "private 
 rivers." They are the private property of 
 
RIVIATION 
 
 (813) 
 
 ROUATIO 
 
 the riparian proprietors, and cannot be ap- 
 propriated to public use, as highways, by 
 deepening or improving their channels, with- 
 out compensation to their owners. 16 Ohio, 
 540; 26 Wend. (N. Y.) 404; 6 Barb. (N. Y.) 
 265; 18 Barb. (N. Y.) 277; 8 Pa. St. 379; 
 10 Me. 278; 1 McCord (S. C.) 580. And see 
 "Watercourse." 
 
 In Modern Use. Rivers are ordinarily 
 
 classified as navigable or nonnavigable, ac- 
 cording to the fact, and not according to the 
 flow of the tide, and the distinction between 
 public and private rivers is accordingly ob- 
 solete. See "Navigable." 
 
 RIVIATION. In old English law. The use 
 of a river for the purposes of fishing, etc. 
 Hale de Jur. Mar. par. 1, c. 2. 
 
 RIVUS (Lat.) 
 
 In the Civil Law. A trench for water 
 
 to pass. Defined by Ulpian, a place sunk 
 for a distance along, where water may run 
 (locus per longitudinem depressus quo aqua 
 decurrat). Dig. 43. 21. 1. 2. 
 
 In Old English Law. The channel of 
 
 a watercourse. Bracton, fol. 233; Fleta, lib. 
 4, c. 27, § 10. Both these writers adopt the 
 definition of the Digests (supra) word for 
 word. 
 
 RIX DOLLAR. The name of a coin. The 
 rix dollar of Bremen is deemed, as money of 
 account at the custom house, to be of the 
 value of seventy-eight and three-quarters 
 cents. Act March 3, 1843. The rix dollar 
 is computed at one hundred cents. Act 
 March 2, 1799, § 61. 
 
 RIXA (Lat.) In civil law. A dispute; a 
 quarrel. Dig. 48. 8. 17. 
 
 RIXATRIX (Lat.) A common scold. 
 
 R'NA. A contraction of regina (queen). 1 
 Inst. CI. 12. 
 
 R'N'S. A contraction of respondes (an 
 swer). Y. B. H. 3 Hen. VI. 32. 
 
 ROAD. A passage through the country 
 for the use of the people. 3 Yeates (Pa.) 
 421. See "Way." 
 
 In Maritime Law. An open passage of 
 
 the sea, which, from the situation of the ad- 
 jacent land and its own depth and wideness, 
 affords a secure place for the common riding 
 and anchoring of vessels. Hale de Port. 
 Mar. pt. 2, c. 2. This word, however, does 
 not appear to have a very definite meaning. 
 2 Chit. Com. Law, 4, 5. 
 
 ROADSTED. In maritime law. A known 
 general station for ships (statio tutissima 
 nautis), notoriously used as such, and dis- 
 tinguished by the name, and not any spot 
 where an anchor will find bottom and fix 
 itself. Sir Wm. Scott, 1 Rob. Adm. 232. 
 
 ROBARIA (Law Lat. from roba, a robe or 
 garment). In old English law. Robbery. 
 In its original sense, the violent taking of 
 one's robe (ro6o) or garment. Spelman. 
 Bracton writes the word rofteriaCg.'!;.;; Fleta, 
 rotieria. 
 
 ROBATOR (Law Lat. from roha, a robe). 
 In old English law. A robber. Roiatores, 
 robbers. Hove. part. post, in Rich. I. A. D. 
 1198. Sturdy thieves, who, falling upon the 
 persons of men, plunder them of their 
 goods [lairones validi, qui in personas 
 liomiiiiaii iiisiUeiites, bona sua diripiunt). 
 Spelman. So called, originally, because they 
 spoiled travellers of their robes or gar- 
 ments. Id. Bracton writes the word robba- 
 tor. 
 
 ROBBER. One who commits a robbery; 
 one who feloniously and forcibly takes goods 
 or money to any value from the person of 
 another by violence or putting him in fear. 
 
 ROBBERY. The felonious taking and car- 
 rying away of the personal property of an- 
 other from his person or in his presence by 
 violence or by putting him in fear. 2 Clark 
 & Marshall, Crimes, 852. 
 
 Robbery includes "larceny" (g. v.), and all 
 the elements that are necessary to consti- 
 tute larceny are also necessary. The aggra- 
 vating circumstances necessary to constitute 
 robbery, as distinguished from simple lar- 
 ceny, are: (1) The property must be taken 
 from the person of another (1 Hale, P. C. 
 532; 39 Ga. 583); but property taken in the 
 presence of the owner is, in contemplation 
 of law, taken from his person (1 Hale, P. C. 
 532; 72 Iowa, 432; 84 Ga. 660). (2) The 
 taking must not only be without his consent, 
 but it must be accomplished either by vio- 
 lence or by putting him in fear. 25 Ind. 
 403; 106 Ga. 692; 87 Va. 257; 12 Ga. 320. See 
 "Putting in Pear." 
 
 ROBBOUR, or ROBOUR (Law Pr. from 
 robber, to rob). A robber. De robbours et 
 de larouns, of robbers and of thieves. Britt. 
 c. 15; Y. B. M. 3 Edw. II. 55. 
 
 ROBERDSMEN, or ROBERSMEN. In old 
 
 English law. Persons who, in the reign of 
 Richard I., committed great outrages on 
 the borders of England and Scotland. Said 
 to have been the followers of Robert Hood, 
 or Robin Hood. 4 Bl. Comm. 245; 3 Inst. 
 187. 
 
 ROBERIA (Law Lat.) In old English law. 
 Robbery. In robberia, in robbery; in the 
 manner of a robber; as a robber. Bracton, 
 fol. 146. 
 
 ROD. A measure sixteen and a half feet 
 long; a perch. 
 
 ROGARE (Lat.) In Roman law. To ask 
 or solicit. Rogare legem, to ask for the 
 adoption of a law; to propose it for adop- 
 tion. Derivatively, to vote for a law so pro- 
 posed. 
 
 Laws were passed in assemblies of the peo- 
 ple, the consul asking, "Velitis jubeatis 
 quiritesf" "Do you so order, citizens?" and 
 those in favor of the law answering "Uti 
 rogas volo vel jubeo," "As you ask I will or 
 order." When the vote was by ballot, an 
 affirmative vote was marked "U. R." {uti 
 rogas. ) 
 
 ROGATIO (Lat.) In Roman law. An ask- 
 ing for a law; a proposal of a law for adop- 
 
ROGATIO TESTIUM 
 
 (81+) 
 
 ROTA 
 
 See "Letters Rog- 
 
 tion or passage. Derivatively, a law passed 
 by such a form. 
 
 ROGATIO TESTIUM. This, In making a 
 nuncupative will, is where the testator form- 
 ally calls upon the persons present to bear 
 witness that he has declared his will. Wil- 
 liams, Ex'rs, 116; Browne, Prob. Prac. 59. 
 
 ROGATIONES, QUESTIONES, ET POSI- 
 tlones debent esse simpllces. Demands, 
 questions, and claims ought to be simple. 
 Hob. 143. 
 
 ROGATOR (Lat. from rogare, q. v.) In the 
 Roman law. The proposer of a law, Tayl. 
 Civ. Law, 195. 
 
 ROGATORY, LETTERS. 
 
 .atory." 
 
 ROGO (Lat.) In the Roman law. I ask. 
 A common word in wills. Dig. 30. 108. 13. 
 14; Id. 31. 77. 25. 
 
 ROGUE. A French word, which in that 
 language signifies proud, arrogant. In some 
 of the ancient Ejiglish statutes, it means an 
 idle, sturdy beggar, which is its meaning in 
 law. Rogues are usually punished as va- 
 grants. Although the word "rogue" is a 
 word of reproach, yet to charge one as a 
 rogue is not actionable. 5 Bin. (Pa.) 219. 
 See 2 Dev. (N. C.) 162; Hardin (Ky.) 529. 
 
 ROIAUME (Law Fr.) Realm; kingdom. 
 Conf. Cartar. 25 Edw. I. 
 
 ROLE D'EQUIPAGE. The list of a ship's 
 <;rew; the muster roll. 
 
 ROLL. A schedule of parchment which 
 may be turned up with the hand in the form 
 of a pipe or tube. Jacob. 
 
 In early times, before paper came in com- 
 mon use, parchment was the substance em- 
 ployed for making records, and, as the art 
 of bookbinding was but little used, economy 
 suggested, as the most convenient mode, the 
 .adding of sheet to sheet, as was found requi- 
 site, and they were tacked together in such 
 a manner that the whole length might be 
 wound up together in the form of spiral 
 rolls. 
 
 The records of a court or office. 
 
 ROLLS, MASTER OF THE. See "Master 
 ■of the Rolls." 
 
 ROLLS OF PARLIAMENT. A series of 
 rolls commencing in the reign of Edward 
 I., and forming, according to Mr. Hubback, 
 by far the most important branch of the 
 public records of the kingdom, from their 
 antiquity, and the multiplicity of subjects 
 which, in the earlier periods of English his- 
 tory, came before the parliament. Some 
 of these rolls are kept in the Chapter House 
 at Westminster, others in the Tower, and 
 the rest in the Chapel of the Rolls. Hub- 
 hack, Ev. Success. 600-613. 
 
 ROLLS OF THE TEMPLE. In English 
 law. In each of the two temples is a roll 
 -called the "calf's head roll," wherein every 
 bencher, barrister, and student is taxed 
 
 yearly; also meals to the cook and other of- 
 ficers Of the houses, in consideration of a 
 dinner of calf's head, provided in Easter 
 term. Grig. Jur. 199. 
 
 ROLLS OFFICE OF THE CHANCERY. 
 
 An office in Chancery Lane, London, which 
 contains rolls and records of the high court 
 of chancery, of which the master of the 
 rolls is keeper. It was formerly called do- 
 mus conversorum, having been appointed by 
 Henry III. for the use of converted Jews, 
 but for irregularities they were expelled by 
 Edward II., when it was put to its present 
 use. Blount, Enc. Lond. 
 
 ROMAN LAW. In a general sense, this 
 comprehends all the laws which prevailed 
 among the Romans, without regard to the 
 time of their origin, including the collec- 
 tions of Justinian (now generally denomi- 
 nated the "civil law"). 1 Mackeld. Civ. Law, 
 9, § 18. 
 
 In a more restricted sense, the Germans 
 understand by this term merely the law of 
 Justinian, as adopted by them. Id. note. 
 In England and the United States, however, 
 there seems a propriety in limiting its ap- 
 plication to all the laws of the times ante- 
 rior to Justinian, distinguishing the collec- 
 tions of that emperor by the term "civil 
 law." Butler, Hor. Jur. 30. It is clear that 
 a large portion of the Roman law was ex- 
 cluded from the Corpus Juris Givilis. 
 
 ROMESCOT (from Rome, and Saxon, sce- 
 at, tribute). In old English law. An an- 
 nual tribute of one penny from every family, 
 paid to Rome at the feast of St. Peter. 
 Otherwise called "Romepenny," "Peter- 
 pence," and "Rome fee" (Rome feah). Spel- 
 man; Cowell. 
 
 ROMNEY MARSH. A tract of land in the 
 county of Kent, England, containing twenty- 
 four thousand acres, governed by certain an- 
 cient and equitable laws of sewers, com- 
 posed by Henry de Bathe, a venerable judge 
 in the reign of King Henry III.; from which 
 laws all commissioners of sewers in England 
 may receive light and direction. 3 Steph. 
 Comm. 442, note (a) ; 3 Bl. Comm. 73, note 
 (t) ; 4 Inst. 276. 
 
 ROOD OF LAND. The fourth part of an 
 acre. 
 
 ROOT. In a figurative sense, the term 
 "root" is used to signify the person from 
 whom one or more others are descended. 
 
 ROOT OF DESCENT. The same as "stock 
 of descent." 
 
 ROOT OF TITLE. The document with 
 which an abstract of title properly commen- 
 ces is called the "root" of the title. 
 
 ROSTER. A list of persons who are in 
 their turn to perform certain duties required 
 of them by law. Tytler, Mil. Law, 93. 
 
 ROTA (Lat.) A court; a celebrated court 
 of appeals at Rome, of which one judge must 
 be a German, one a Frenchman, two Span- 
 
ROTHER BEASTS 
 
 (81S) 
 
 RUBRIC OF A STATUTE 
 
 iards, and eight Italians. Enc. Brit. Its 
 decisions liad great weigM, but were not 
 law, although judged by the law. Sacciae 
 Trac. de Com. et Comb. § 1, quaest. 7, pars. 
 2, ampl. 8, num. 219, 220, 253, 254. There 
 was also a celebrated rota or court at Genoa 
 about the sixteenth century, or before, whose 
 decisions In maritime matters form the first 
 part of Straccha de Merc. 
 
 ROTHER BEASTS. In old English law. 
 Horned cattle. Cowell. 
 
 ROTTEN BOROUGHS. Small boroughs in 
 England, which, prior to the reform act, 
 1832, returned one or more members to par- 
 liament. 
 
 ROTULUS WINTONIAE. The roll of Win- 
 ton. An exact survey of all England, made 
 by Alfred, not unlike that of Domesday; and 
 it was so called because it was kept at Win- 
 chester, among other records of the king- 
 dom; but this roll time has destroyed. In- 
 gulph. Hist. 516. 
 
 ROTURE (Pr.) In old French and Cana- 
 dian law. A free tenure without the privi- 
 lege of nobility; the tenure of a free com- 
 moner. See Dunkin's Address, 6. 
 
 ROTURIER. In old French law. One not 
 noble. Diet, de I'Acad. Franc. A free com- 
 moner; one who did not hold his land by 
 homage and fealty, yet owed certain serv- 
 ices. Howard, Diet, de Normande. 
 
 ROUBLE. The name of a coin. The rou- 
 ble of Russia, as money of account, is deem- 
 ed and taken at the custom house to be of 
 "the value of seventy-five cents. Act March 
 3, 1843. 
 
 ROUND ROBIN. A circle divided from 
 the center, like Arthur's round table, whence 
 its supposed origin. In each compartment is 
 a signature, so that the entire circle, when 
 filled, exhibits a list, without priority being 
 given to any name. A common form of 
 round robin is simply to write the names in 
 a circular form. Wharton. 
 
 ROUP. In Scotch law. Sale by auction; 
 auction. Index to Burton, Law Scot.; Bell, 
 Diet. "Auction." 
 
 ROUT. In criminal law. A disturbance of 
 the peace by persons assembled together 
 with an intention to do a thing which, if 
 ■executed, would have made them rioters, and 
 actually making a motion towards the exe- 
 cution of their purpose. 
 
 It generally agrees in all particulars with 
 .a riot, except only in this, that it may be a 
 complete offense without the execution of 
 the intended enterprise. Hawk. P. C. c. 65, 
 § 14; 1 Russ, Crimes, 253; 4 Bl. Comm. 140; 
 Viner, Abr. "Riots, etc." (A 2) ; Comyn, Dig. 
 "Forcible Entry" (D 9). 
 
 ROUTOUSLY. In pleading. A technical 
 "word, properly used in indictments for a 
 rout as descriptive of the offense. 2 Salk. 
 1593. 
 
 ROY EST L'ORIGINAL DE TOUTS FRAN- 
 chises. The king is the origin of all fran- 
 chises. Keilw. 138. 
 
 ROY N'EST LIE PER ASCUN STATUTE, 
 si il ne solt expressement nosme. The king 
 is not bound by any statute, if he is not 
 expressly named. Jenk. Cent. Cas. 307; 
 Broom, Leg. Max. (3d London Bd.) 69. 
 
 ROY POET DISPENSER OVE MALUM 
 prohibitum, mais non malum per se. The 
 king can grant a dispensation for a malum 
 ■prohiMUim, but not for a malum per se. 
 Jenk. Cent. Cas. 307. 
 
 ROYAL ASSENT. The royal assent is the 
 last form through which a bill goes previ- 
 ously to becoiming an act of parliament. It 
 is, in the words of Lord Hale, "the comple- 
 ment and perfection of a law." The royal 
 assent is given either by the queen in person 
 or by royal commission by the queen herself, 
 signed with her own hand. It is rarely given 
 in person, except when at the end of the ses- 
 sion the queen attends to prorogue parlia- 
 ment, if she should do so. 
 
 ROYAL FISH. Whales and sturgeons,— 
 to which some add porpoises, — which, when 
 cast on shore or caught near shore, belong 
 to the king of England by his prerogative. 
 1 Edw. I.; 17 Edw. V. c. 1; 1 Eliz. c. 5; 17 
 Edw. II. c. 11; Bracton, lib. 3, c. 3; Britton 
 c. 17; Pleta, lib. 1, c. 45, 46. 
 
 ROYAL HONORS. In diplomatic language, 
 by this term is understood the rights en- 
 joyed by every empire or kingdom in Eu- 
 rope, by the pope, the grand duchies of Ger- 
 many, and the Germanic and Swiss confed- 
 erations, to precedence over all others who 
 do not enjoy the same rank, with the exclu- 
 sive right of sending to other states public 
 ministers of the first rank, as ambassadors, 
 together with other distinctive titles and 
 ceremonies. Vattel, bk. 2, c. 3, § 38; Wheat- 
 on. Int. Law, pt. 2, c. 3, § 2. 
 
 ROYAL MINES. Mines of silver and gold 
 belong to the king of England, as part of 
 his prerogative of coinage, to furnish him 
 with material. 1 Bl. Comm. 294*. 
 
 ROYALTY. A payment reserved by the 
 grantor of a patent, lease of a mine, or sim- 
 ilar right, and payable proportionately to the 
 use made of the right by the grantee. 1 
 Bxch. Div. 310. 
 
 A payment reserved by the patentee of an 
 article on giving a license, or by the author 
 of a book in contracting for its publication 
 or sale, proportionate to the sales under such 
 license or contract. 
 
 In Old English Law. Royal preroga- 
 tives. 
 
 RUBRIC (from Lat. ruhcr, red). In Scotch 
 law. The title of a statute. So termed be- 
 cause anciently it was written in red let- 
 ters. Bell, Diet. 
 
 RUBRIC OF A STATUTE. Its title, which 
 was anciently printed in red letters. It 
 
RULE ABSOLUTE 
 
 (816) 
 
 RUNNING, ETC. 
 
 serves to show the object of the legislature, 
 and thence affords the means of interpreting 
 the body of the act; hence the phrase, of an 
 argument, "a ruiro ad nigrum" (q. v.) 
 Wharton. 
 
 RULE ABSOLUTE. One absolutely re- 
 .quiring an act to be done, as distinguished 
 from a rule nisi (q. v) 
 
 RULE IN SHELLEY'S CASE. See "Shel- 
 ley's Case, Rule In." 
 
 RULE NISI. In practice. A rule obtained 
 on motion ex parte to' show cause against the 
 particular relief sought. Notice is served on 
 the party against whom the rule is obtained, 
 and the case is then heard like other mo- 
 tions, except that the party showing cause 
 is entitled to open and reply. The rule is 
 made absolute unless (nisi) good cause is 
 shown against it. Graham, Prac. p. 688; 3 
 Steph. Comm,. p. 680. 
 
 RULE OF COURSE. See "Of Course." 
 
 RULE OF PROPERTY. A rule of law af- 
 fecting the ownership or transfer of prop- 
 erty. The term is ordinarily used in con- 
 nection with rules established by judicial de- 
 cision, it being a general principle of law 
 that decisions which have become rules of 
 property, i. e., under which property rights 
 have been acquired, will not be overruled, 
 though erroneous. 30 Miss. 256; 4 N. Y. 2,61. 
 See "Stare Decisis." 
 
 RULE OF THE WAR OF 1756. In Inter- 
 national law. A rule relating to neutrals 
 was the first time practically established in 
 1756, and universally promulgated, that "neu- 
 trals are not to carry on, in times of war, a 
 trade which was interdicted to them in times 
 of peace." Chit. Law Nat. 166; 2 C. Rob. 
 Adm. 186; 4 C. Rob. Adm. Append.; Reeve, 
 Shipp. 271; 1 Kent, Comm. 82. 
 
 RULE TO PLEAD. A rule issuing as of 
 course to plaintiff under the common-law 
 practice requiring defendant to plead to the 
 declaration within a time specified. 
 
 RULE TO SHOW CAUSE. An order made 
 by the court, in a particular case, upon mo- 
 tion of one of the parties calling upon the 
 other to appear at a particular time before 
 the court, to show cause, if any he have, why 
 a certain thirjg should not be done. 
 
 This rule is granted generally upon the 
 oath or affirmation of the applicant; but up- 
 on the hearing, the evidence of competent 
 witnesses must be given to support the rule, 
 and the affidavit of the applicant is insuffi- 
 cient. 
 
 RU LES. Certain limits without the actual 
 walls of the prisons, where the prisoner, on 
 proper security previously given to the prop- 
 er authority, may reside. These limits are 
 considered, for all legal and practical pur- 
 poses, as merely a further extension of the 
 prison walls. 
 
 A general principle of law, recognized as 
 such by authorities, and stated usually in 
 the form of a maxim. It is called a rule be- 
 
 cause in doubtful and unforeseen cases it is 
 a rule for their decision; it embraces partic- 
 ular cases within general principles. Toul- 
 lier, Dr. Civ. tit. prel. note 17; 1 Bl. Comm. 
 44; Domat, liv. prel. tit. 1, § 1; Ram, Judgm. 
 30; 3 Barn. & Adol. 34; 2 Russ. 216, 580, 581; 
 4 Russ. 305; 10 Price, 218, 219, 228; 1 Barn. 
 &"C. 86; 7 Bing. 280; 1 Ld. Raym. 728; 5 
 Term R. 5; 4 Maule & S. 348. 
 
 An ordinance made by a court having com- 
 petent jurisdiction. 
 
 Rules of court are either general or spe- 
 cial. The former are the laws by which the 
 practice of the court is governed; the latter 
 are special orders made in particular cases. 
 
 See "Rule Nisi." 
 
 RULES OF THE KING'S BENCH PRISON. 
 
 In English practice. Certain limits beyond 
 the walls of the prison, within which all 
 prisoners in custody in civil actions were 
 allowed to live, upon' giving security by bond 
 with two sufficient sureties, to the marshal, 
 not to escape, and paying him a certain per- 
 centage on the amount of the debts for 
 which they were detained. Bagley, Pr.; 
 Holthouse. 
 
 RULES OF THE ROAD. See "Law of the 
 Road." 
 
 RUMPERE (Lat.) In the civil law. To 
 break; to revoke. Rumpitur testamentum 
 cum, in eodem statu manente testatore, ip- 
 sius testamenti jus vitiatur, a testament is 
 broken when, the testator remaining in the 
 same state, the legal force of the testament 
 itself is destroyed. Inst. 2. 17. 1. A testa- 
 ment was thus broken (ruptum) by the sub- 
 sequent adoption of a child, or by the mak- 
 ing of a subsequent testament. Id. 2. 17 
 1. 2. 3. See Dig. 28. 3. 
 
 RUNCINUS (Lat.) A nag. 1 Thomas, Co. 
 Lift. 471. 
 
 RUNNING ACCOUNT. An open unsettled 
 account, as distinguished from a stated and 
 liquidated account. "Running accounts mean 
 mutual accounts and reciprocal demands be- 
 tween the parties, which accounts and de- 
 mands remain open and unsettled." Black- 
 ford, J., 1 Ind. (Carter) 335. 
 
 RUNNING DAYS. Days counted in suc- 
 cession, without any allowance for holidays. 
 The term is used in settling lay days or days 
 of demurrage. 
 
 RUNNING LANDS. In Scotch law. Lands 
 where the ridges of a field belong alternately 
 to different proprietors. Bell, Diet. 
 
 RUNNING OF THE STATUTE OF LIM- 
 Itatlons. A metaphorical expression, by 
 which is meant that the time mentioned in 
 the statute of limitations is considered as 
 passing. 1 Bouv. Inst, note 861. 
 
 RUNNING WITH THE LAND. A tech- 
 nical expression applied to covenants real 
 which affect the land. See "Covenant." 
 
 RUNNING WITH THE REVERSION. A 
 
 covenant is said to "run with the reversion" 
 
RTTNRIG LANDS 
 
 (817f 
 
 RYBAUD 
 
 when either the liability to perform it or 
 the right to take advantage of it passes to 
 the assignee of that reversion. 
 
 RUNRIG LANDS. Lands in Scotland where 
 the ridges of a field belong alternatively to 
 different proprietors. Anciently this kind of 
 possession was advantageous in giving a 
 jinited interest to tenants to resist inroads. 
 Py the act of 1695, c. 23, a division of these 
 lands was authorized, with the exception of 
 lands belonging to corporations. Wharton. 
 
 RUPTA (Law Lat.) In old records. A 
 band or troop. Cowell; Spelman. 
 Buptarii, soldiers; troopers. Id. 
 
 RUPTUM (Lat. from rumpcre, q. v.) In 
 the civil law. Broken. A term applied to 
 a will; ruptum testamentum. Inst. 2. 17. 3; 
 Pig. 28. 3. 
 
 RURAL. That which relates to the coun- 
 try, as, rural servitudes. See "Urban." 
 
 RURAL SERVITUDE (Lat. servitus prae- 
 dii rustici). In the civil law. A servitude 
 annexed to a rural estate {praedium rusti- 
 cum). 1 Mackeld. Civ. Law, 338, § 309. 
 
 RUSE DE GUERRE (Fr.) Literally, a 
 trick of war; a stratagem. It is said to be 
 lawful among belligerents, provided it does 
 
 not involve treachery and falsehood, 
 tius, Dr. de la Guerre, liv. 3, c. 1, § 9. 
 
 Gro- 
 
 RUSTICI (Lat. from riiK, country). 
 
 In Feudal Law. Natives of a con- 
 quered country. Feud. lib. 2, tit. 27, §§ 9-11; 
 2 Bl. Comm. 413. 
 
 In Old English Law. Inferior country 
 
 tenants, churls, or chorls (Saxon, ceorles), 
 who held cottages and lands by the services 
 of plowing, and other labors of agriculture, 
 for the lord. Par. Ant. 136; Cowell. 
 
 RUSTICUM JUDICIUM (Law Lat.) In 
 maritime law. A rough or rude judgment 
 or decision. 3 Kent, Comm. 231; Story, 
 Ballm. § 608a. 
 
 RUTA ET CAESA (Lat.) In the civil law. 
 Things dug, as sand and lime, and things 
 cut, as wood, coal, etc. Dig. 19. 1. 17. 6. 
 Words used in conveyancing. 
 
 RUTARII, or RUTTARII (Law Lat.) In 
 old records. Stipendiary forces; mercenary 
 soldiers. Cowell. This word occurs in the 
 articles of King John's Magna Charta, 
 (chapter 4), but is omitted in the charter 
 itself. 
 
 RYBAUD (Law Fr.) In old English law. 
 A ruffian; a vagabond. Brownl. pt. 2, 340. 
 
s c 
 
 (818) 
 
 SACRAMENTI ACTIO 
 
 S 
 
 S. C. An abbreviation for "same case," in- 
 dicating, when inserted between two cita- 
 tions of cases, that the case is reported in 
 both places. 
 
 S. F. S. In the civil law, an abbreviation 
 of sine fraude sua, without fraud on his 
 part. 
 
 S. P. An abbreviation of sine prole, with- 
 out issue. 
 
 An abbreviation of "same point," or "same 
 principle," indicating, when inserted be- 
 tween two citations of cases, that the second 
 one involves the same doctrine as the first. 
 
 SS. An abbreviation used in that part of 
 a record, pleading, or afiidavit, called the 
 statement of the venue, or county in which 
 it is made, as "City and County of New 
 York, ss." Commonly translated or read, 
 "to wit," and supposed to be a contraction of 
 scilicet. 
 
 It has been otherwise explained to be a 
 mark used to denqte a separate section or 
 paragraph. 1 Chit. PI. (6th Am. Ed.) 305, 
 note (t). 
 
 SA ET LA (Law Pr.) Here and there. 
 Kelham. 
 
 SABBATH. Commonly used for "Sunday." 
 Though such use is incorrect, it is sanc- 
 tioned by usage. See 64 N. C. 591. 
 
 SABBATH BREAKING. Violation of pe- 
 nal laws regulating the observance of the 
 Sabbath. 
 
 SABBATUM. The Sabbath; also peace. 
 Domesday Book. 
 
 SABINIANS. A sect of lawyers whose first 
 chief was Atteius Capito, and the second 
 Caelius Sabinus, from whom they derived 
 their name. Clef des Lois Rom. 
 
 SABLE. The heraldic term for black. It 
 is called "Saturn" by those who blazon by 
 planets, and "diamond" by those who use 
 the names of jewels. Engravers commonly 
 represent it by numerous perpendicular and 
 horizontal lines, crossing each other. Whar- 
 ton. 
 
 SABULONARIUM (Law Lat. from sabu- 
 lo). In old records. A gravel pit, or the 
 free use of it. Cowell. 
 
 SAC, or SAK (Law Lat. saca, sacha; from 
 Saxon, sac, a cause, sake). In old English 
 and Scotch law. The cognizance which a 
 lord had in his court of causes and suits 
 arising among his vassals or tenants. The 
 privilege which a lord had, within his man- 
 or, of holding pleas of trespasses and other 
 controversies arising there, and of imposing, 
 levying, and collecting of his tenants, fines, 
 and amercements in regard of the same. 
 Spelman; Bracton, fol. 154b. A privilege 
 
 touching plea, or correction of trespasses of 
 men within a manor. Minshew, cited in 
 Cowell; Rastal, Expos. 
 A forfeiture. Id. 
 
 SACABURTH, or SACABERE (from sac, 
 cause, and burh, pledge). He that is robbed 
 and puts in surety to prosecute the felon 
 with fresh suit. Britton, c. 15, 29; Bracton 
 lib. 3, c. 32; Cowell. 
 
 SACCABOR, SACABURTH, or SACABE- 
 
 re. In old English law. He that is robbed 
 and puts in surety to prosecute the felon 
 with fresh suit. 
 
 SACCULARII (Lat. from saccus, a bag or 
 purse). In the civil IeIw. Persons who 
 cheated in wares or money, by means of 
 sacks or bags which they carried with them 
 (vetitas in sacculo artes exercentes). Dig. 
 47. 11. 7, and glossary in margin. Blackstone,' 
 referring to this passage, translates the word 
 "cutpurses." 4 Bl. Comm. 242. But this is 
 hardly warranted by the text. 
 
 SACCUS (Law Lat.) In old English law. 
 A sack; a quantity of wool weighing thirty 
 or twenty-eight stone. Pleta, lib. 2, c. 79, § 
 10. According to Cowell, twenty-six stone. 
 Two ways made a sack, and twelve sacks a 
 last. Fleta, lib. 2, c. 12, § 2. 
 
 A sack or pack; a pack saddle. Fleta, lib. 
 2, c. 21. 
 
 In a MS. compotus or household book of 
 Bolton Priory, in the possession of the Duke 
 of Devonshire (A. D. 1851), the ductor sac- 
 corum is mentioned among the liberi serv- 
 ientes (free servants) of the priory, and is 
 translated "sackman." 
 
 SACCUS CUM BROCHIA. In old English 
 law. A service or tenure of finding a sack 
 and a broach (pitcher) to the sovereign for 
 the use of the army. Bracton, lib. 2, o. 16. 
 
 SACQUIER. In maritime law. The name 
 of an ancient officer, whose business was to 
 load and unload vessels laden with salt, corn, 
 or flsh, to prevent the ship's crew defraud- 
 ing the merchant by false tale, or cheating 
 him of his merchandise otherwise. Laws of 
 Oleron, art. 11, published in an English 
 translation in an appendix to 1 Pet. Adm. 
 XXV. See "Arrameur;" "Stevedore." 
 
 SACRA (Lat.) In the Roman law. The 
 right to participate in the sacred rites of 
 the city. Butler, Hor. Jur. 27. 
 
 SACRAMENTALES (Law Lat. sacramn- 
 turn, oath). Gompurgatores (q. v.); jurors. 
 Law Pr. & Lat. -Diet. 
 
 SACRAMENTI ACTIO. In the Roman law. 
 General legis actio, to which resort might be 
 had failing a right to use any of the four 
 sl\orter forms of action. 
 
SACRAMENTUM 
 
 (819) 
 
 SAFE-CONDUCT 
 
 SACRAMENTUM (Law Lat.) 
 
 In Civil Law. A gage In money laid 
 
 down in court by botli parties that went to 
 law, returned to him who had the verdict 
 on his side, but forfeited by the party who 
 was cast, to the exchequer, to be laid out 
 in sacris reius, and therefore so called. 
 Varro, lib. 4, de Ling. Lat. c. 36. 
 
 An oath, as a very sacred thing. Ains- 
 worth; Vicat. 
 
 The oath taken by soldiers to be true to 
 their general and country. Id. 
 
 In Old Common Law. An oath. Car- 
 
 pentier; Cowell; Jacob. 
 
 SACRAMENTUM DECISIONIS (Lat.) The 
 voluntary or decisive oath of the civil law, 
 where one of the parties to a suit, not be- 
 ing able to prove his case, offers to refer 
 the decision of the cause to the oath of his 
 adversary, who Is bound to accept or make 
 the same offer on his part, or the whole is 
 considered as confessed by him. 3 Bl. Comm. 
 342. 
 
 SACRAMENTUM FIDELITATIS. In old 
 English law. The oath of fealty. Reg. Orig. 
 303. 
 
 SACRAMENTUM HABET IN SE TRES 
 comites, veritatem, justitlam et judicium; 
 Veritas habenda est in jurato; justitia et Jus- 
 ticium in judice. An oath has in it three 
 component parts, — truth, justice, and judg- 
 ment; truth in the party swearing; justice 
 and judgment in the judge administering the 
 oath. 3 Inst. 160. 
 
 SACRAMENTUM SI FATUUM FUERIT, 
 licet falsum, tamen non committit perjurium. 
 A foolish oath, though false, makes not per- 
 jury. 2 Inst. 167. 
 
 SACRILEGE (from Lat. sacriler/iuiii, from 
 sacra, sacred things, or sacrum, sacred, and 
 legere, to steal). 
 
 In English Criminal Law. Larceny 
 
 from a church. 4 Steph. Comm. 164. The 
 crime of breaking a church or chapel, and 
 stealing therein. 1 Russ. Crimes, 843. See 
 "Sacrilegium." This does not seem to he 
 recognized as a distinct crime, in American 
 jurisprudence. 
 
 In Old English Law. Profanation of 
 
 holy things; the alienation to laymen or to 
 profane or common purposes of what was 
 given to religious persons, and to pious uses. 
 Cowell. 
 
 SACRILEGIUM (Lat. from sacrum, sacred, 
 and legere, to steal). In the civil law. The 
 ' stealing of sacred things, or things dedicat- 
 ed to sacred uses; the taking of things out 
 of a holy place. Calv. Lex.; Brlssonius. 
 
 The violation of an imperial rescript or 
 constitution. Sacrilegii instar est rescripto 
 principis obviari, it amounts to sacrilege to 
 oppose or hinder the execution of the prince's 
 rescript. Code, 1. 23. 5; 1 Bl. Comm. 74. 
 The text of the Code here referred to, reads, 
 Sacrilegii instar est — divinis ohviare bene- 
 ficiis. 
 
 SACRILEGUS (Lat.) In the civil and 
 
 common law. A sacrilegious person; one 
 guilty of sacrilege; he who takes away any- 
 thing that is given for the divine and true 
 service of God. 
 
 SACRILEGUS OMNIUM PRAEDORUM 
 cupiditatem et scelerem superat. A sacri- 
 legious person transcends the cupidity and 
 wickedness of all other robbers. 4 Coke, 106. 
 
 SACRISTAN. A sexton, anciently called 
 sagerson, or sagiston; the keeper of things 
 belonging to divine worship. 
 
 SADBERGE. A denomination of part of 
 the county palatine of Durham. Camd. Brit. 
 
 SAEMEND. An umpire, or arbitrator. Anc. 
 Inst. Eng. 
 
 SAEPE CONSTITUTUM EST, RES INTER 
 alios judicatas aliis non praejudicare. It has 
 often been settled that matters adjudged be- 
 tween others ought not to prejudice those 
 who were not parties. Dig. 42. 1. 63. 
 
 SAEPE VIATOREM NOVA NON VETUS 
 orbita fallit. Often it is the new track, not 
 the old one, which deceives the traveller. 4 
 Inst. 34. 
 
 SAEPENUMERO UBI PROPRIETAS VER- 
 borem attenditur, sensus veritatis amittitur. 
 Frequently, where the propriety of words is 
 attended to, the meaning of truth is lost. 7 
 Coke, 27. 
 
 SAEVITIA (Lat.) Cruelty of one spouse 
 to the other. To constitute saevitia there 
 must be such a degree of cruelty as to en- 
 danger the party's suffering bodily hurt. 1 
 Hagg. Consist. 35; 2 Mass. 150; 3 Mass. 321; 
 4 Mass. 587. 
 
 SAFE-CONDUCT. A passport or permis- 
 sion from a neutral state to persons who 
 are thus authorized to go and return In safe- 
 ty, and, sometimes, to carry away certain 
 things in safety. 
 
 According to common usage, the term 
 "passport" Is employed on ordinary occa- 
 sions for the permission given to persons 
 when there is no reason why they should 
 not go where they please; and "safe-conduct" 
 is the name given to the instrument which 
 authorizes certain persons, as enemies, to go 
 into places where they could not go without, 
 danger unless thus authorized by the gov- 
 ernment. 
 
 The name of an instrument given to the 
 captain or master of a ship to proceed on a 
 particular voyage. It usually contains his 
 name and residence, the name, description, 
 and destination of the ship, with such other- 
 matters as the practice of the place requires.. 
 This document is indispensably necessary 
 for the safety of every neutral ship. 
 
 Act Cong. April 30, 1790, § 27, punishes: 
 the violation of any safe-conduct or passport- 
 granted under the authority of the United 
 States, on conviction, with imprisonment,, 
 not exceeding three years, and a fine at th& 
 
SAFE-PLEDGE 
 
 (820) 
 
 SAISINA 
 
 discretion of the court. See "Passport;" 18 
 Viner, Abr. 272. 
 
 SAFE-PLEDGE. A surety given that a 
 man shall appear upon a certain day. Brac- 
 ton, lib. 4, c. 1. 
 
 SAFEGUARD. A protection of the king 
 to one who is a stranger, who fears violence 
 from some of his subjects for seeking his 
 right by course of law. Reg. Orig. 26. 
 
 SAGES DE LA LEY (Law Pr.) Sages of 
 the law; persons learned in the law. A term 
 applied to the chancellor and justices of the 
 king's bench. 
 
 SAGJBARO (Law Lat. from sac, or sag, a 
 cause, and baro, a man). In old European 
 law. A judge or justice; literally, a man of 
 causes {vir oausarum), or having charge or 
 supervision of causes (causis et Utibus prae- 
 positus). Spelman. One who administered 
 justice and decided causes in the mallum, or 
 public assembly. Id.; L. Salic, tit. 56, §§ 
 2-4; LL. Inae, c. 6. 
 
 SAID. Before mentioned. 
 
 In contracts and pleadings it is usual and 
 proper, when it is desired to speak of a per- 
 son or thing before mentioned, to designate 
 them by the term "said" or "aforesaid," or 
 by some similar term; otherwise the latter 
 description will be ill for want of certainty. 
 2 Lev. 207; Comyn, Dig. "Pleader" (C 18); 
 Gould, PL c. 3, § 63. 
 
 "Said" does not necessarily refer to the 
 last antecedent. 10 Ind. 372. 
 
 SAIGA (Law Lat.) In old European law. 
 A German coin of the value of a penny, or 
 of three pence. L. Alaman. tit. 6, § 2; L. 
 Boior. tit. 8, c. 2, § 3; Spelman. 
 
 SAIL. In insurance law. To move, on 
 the prosecution of a voyage; to make a move- 
 ment for the purpose of proceeding to sea. 
 Cowen, J., 3 Hill (N. Y.) 126; Lord Den- 
 man, C. J., 1 Cromp., M. & R. 809, 818. The 
 least locomotion, with readiness of equip- 
 ment and clearance, satisfies a warranty to 
 sail. 3 Barn. & Adol. 514. 
 
 SAILING INSTRUCTIONS. In maritime 
 law. Written or printed directions, deliv- 
 ered by the commanding officer of a convoy 
 to the several masters of the ships under 
 his care, by wbich they are enabled to un- 
 derstand and answer his signals, to know 
 the place of rendezvous appointed for the 
 fleet in case of dispersion by storm, by an 
 enemy, or by any other accident. 
 
 Without sailing instructions, no vessel can 
 have the full protection and benefit of con- 
 voy. Marsh. Ins. 368. 
 
 SAILORS. Seamen; mariners. See "Sea- 
 man." 
 
 SAINT MARTIN LE GRAND, COURT OF. 
 
 A writ of error formerly lay from the sher- 
 iff's courts in the city 6f London to the court 
 of hustings, before the mayor, recorder, and 
 
 sheriffs, and thence to justices appointed by 
 the royal commission, who uised to sit in 
 the church of St. Martin le Grand, and from 
 the judgment of those justices a writ of 
 error lay immediately to the house of lords. 
 Pitzh. Nat. Brev. 
 
 SAINT SIMONISM. An elaborate form of 
 noncommunistic socialism. It is a scheme 
 which does not contemplate an equal, but an 
 unequal, division of the produce. It does not 
 propose that all should be occupied alike, 
 but differently, according to their vocation 
 or capacity; the function of each being as- 
 signed, like grades in a regiment, by the 
 choice of the directing authority, and the 
 remuneration being by salary, proportioned 
 to the importance, in the eyes of that au- 
 thority, of the function itself, and the mer- 
 its of the person who fulfills it. 1 Mill, Pol. 
 Econ. 258. 
 
 SAIO (Law Lat.) In Gothic law. The 
 ministerial officer of a court or magistrate, 
 who brought 'parties into court (qui reos 
 protraxit in jiidiciuiu), and executed the or- 
 ders of his superior. Spelman thinks the 
 word may be derived from the Saxon sagol, 
 or saiol, a staff, giving it the sense of the 
 modern "tipstaff." 
 
 SAIREMENT (Law Pr.) An oath. Kel- 
 ham. 
 
 SAISIE ARRET. In French law. An at- 
 tachment of property in the possession of 
 a third person. 
 
 SAISIE EXECUTION. In French law. A 
 writ of execution by which the creditor 
 places under the custody of the law the mov- 
 ables of his debtor, which are liable to seiz- 
 ure, in order that out of them he may ob- 
 tain payment of the debt due by him. Code 
 Prac. La. art. 641; Dalloz. It is a writ very 
 similar to the fieri facias of the common 
 law. 
 
 SAISIE FORAINE. In French law. A per- 
 mission given by the proper judicial officer 
 to authorize a creditor to seize the property 
 of his debtor in the district which he inhab- 
 its. Dalloz. It has the effect of an attach- 
 ment of property, which Is applied to the 
 payment of the debt due. 
 
 SAISIE GAGERIE. In French law. A con- 
 servatory act of execution, by which the 
 owner or principal lessor of a house or farm 
 causes the furniture of the house or farm 
 leased, and on which he has a lien, to be 
 seized, in order to obtain the rent due to 
 him. It is similar to the "distress" of the 
 common law. Dalloz. 
 
 SAISIE IMMOBILIERE. In French law. A 
 writ by which the creditor puts In the cus- 
 tody of the law the immovables of his debt- 
 or, that out of the proceeds of their sale he 
 may be paid his demand. 
 
 SAISINA (Law Lat.) An old form of seis- 
 ina (q. v.) 
 
SAKE 
 
 (821) 
 
 SALE NOTE- 
 
 SAKE. In old English law. A lord's right 
 of amercing his tenants in his court. Keilw. 
 145. 
 
 Acquittance of suit at county courts and 
 hundred courts. Pleta, lib. 1, c. 47, § 7. 
 
 SALADINE TENTH. A tax imposed in 
 England and France, in 1188, by Pope In- 
 nocent III., to raise a fund for the crusade 
 undertaken by Richard I., of England, and 
 Philip Augustus, of France, against Saladin, 
 sultan of Egypt, then going to besiege Jeru- 
 salem. By this tax, every person who did 
 not enter himself a crusader was obliged to 
 pay a tenth of his yearly revenue, and of 
 the value of all his movables, except his 
 wearing apparel, books, and arms. The Car- 
 thusians, Bernardines, and some other re- 
 ligious persons, were exempt. Gibbon re- 
 marks that when the necessity for this tax 
 no longer existed, the church still clung to 
 it as too lucrative to be abandoned, and 
 thus arose the tithing of ecclesiastical bene- 
 fices for the pope or other sovereigns. Bnc. 
 Lond. 
 
 SALARIUM (Lat. from sal, salt). 
 
 ■ In the Civil Law. An allowance of 
 
 provisions. Calv. Lex. 
 
 A stipend, wages, or compensation for 
 service. Id.; Dig. 7. 1. 7. 2; Id. 44. 7. 61. 1. 
 
 An annual allowance or compensation. Id. 
 
 In Old European Law. The rents or 
 
 profits of a sala, hall or house. Cowell. 
 
 SALARY. A reward or recompense for 
 services performed. 
 
 It is applied to the reward paid to a pub- 
 lic officer for the performance of his official 
 duties. 
 
 Salary is also applied to the reward paid 
 for the performance of other services; but 
 if it be not fixed for each year, it is called 
 "honorarium." Poth. ad Pand. According to 
 M. Duvergier, the distinction between "hon- 
 orarium" and "salary" is this: By the for- 
 mer is understood the reward given to the 
 most elevated professions for services per- 
 formed; and by the latter, the price of hir- 
 ing of domestic servants and workmen. 19 
 Toullier, Dr. Civ. n. 268, p. 292, note. 
 
 There is this difference between "salary" 
 and "price," — the former is the reward paid 
 for services or for the hire of things; the lat- 
 ter is the consideration paid for a thing 
 sold. Lee. Elm. §§ 907, 908. 
 
 "Salary" and "wages" have been held to 
 be synonymous (24 Fla. 29), but in other 
 cases, distinctions have been suggested, — 
 one, that salary is per annum compensation 
 (42 Alb. Law J. 332), and another, that the 
 difference lies in the more or less honorable 
 character of the services for which they are 
 paid. 99 Pa. St. 542. 
 
 SALE. An agreement by which one of two 
 contracting parties, called the "seller," gives 
 a thing and passes the title to it, in ex- 
 change for a certain price in current money, 
 to the other party, who is called the "buyer" 
 or "purchaser," who, on his part, agrees to 
 pay such price. Pardessus, Dr. Com. note 
 6; Noy, Max. c. 42; Shep. Touch. 244; 2 
 Kent, Comm. 363; Poth. Vente, note 1. A 
 
 transfer of the absolute or general property 
 in a thing for a price In money. Benj. 
 Sales, § 1. 
 
 This contract differs from a barter or ex- 
 change in this, that in the latter the price 
 or consideration, instead of being paid in 
 money, Is paid in goods or merchandise sus- 
 ceptible of a valuation. 3 Salk. 157; 12 N. 
 H. 390; 10 Vt. 457. It differs from "accord 
 and satisfaction," because in that contract 
 the thing is given for the purpose of quiet- 
 ing a claim, and not for a price. An oner- 
 ous gift, when the burden it imposes is the 
 payment of a sum of money, is, when ac- 
 cepted, in the nature of a sale. When par- 
 tition is made between two or more joint 
 owners of a chattel, it would seem the con- 
 tract is in the nature of a barter. See 11 
 Pick. (Mass.) 311. 
 
 (1) An absolute sale is one made and 
 completed without any condition whatever. 
 
 (2) A conditional sale is one which de- 
 pends for its validity upon the fulfillment 
 of some condition. See 4 Wash. C. C. (U. 
 S.) 588; 10 Pick. (Mass.) 522; 18 Johns. (N. 
 Y.) 141; 8 Vt. 154; 2 Rawle (Pa.) 326; 
 Coxe (N. J.) 292; 2 A. K. Marsh. (Ky.) 430. 
 
 ( 3 ) A forced sale is one. made without 
 the consent of the owner of the property, 
 by some officer appointed by law, as by a 
 marshal or a sheriff, in obedience to the 
 mandate of a competent tribunal. This sale 
 has the effect to transfer all the rights the 
 owner had in the property, but it does not, 
 like a voluntary sale of personal property, 
 guaranty a title to the thing sold; it merely 
 transfers the rights of the person as whose 
 property it has been seized This kind of a 
 sale is sometimes called a "judicial sale." 
 
 (4) A private sale is one made volunta- 
 rily, and not by auction. 
 
 (5) A public sale is one made at auction 
 to the highest bidder. Auction sales some- 
 times are voluntary, as, when the owner 
 chooses to sell his goods in this way, and 
 then as between the seller and the buyer the 
 usual rules relating to sales apply; or they 
 are involuntary or forced, when the same 
 rules do not apply. 
 
 (6) A voluntary sale is one made freely 
 without constraint by the owner of the thing 
 sold. This is the common case of sales, and 
 to this class the general rules of the law of 
 sale apply. 
 
 SALE AND RETURN. When goods are. 
 sent from a manufacturer or wholesale deal- 
 er to a retail trader, in the hope that he 
 may purchase them, with the understanding 
 that what he may choose to take he shall 
 have as on a contract of sale, and what he 
 does not take he will retain as a consignee 
 for the owner, the goods are said to have 
 been sent on "sale and return." 
 
 The goods taken by the receiver as on sale 
 will be considered as sold, and the title to 
 them is vested in the receiver of them. The 
 goods he does not buy are considered as a 
 deposit in the hands of the receiver of them, 
 and the title is in the person who sent them. 
 1 Bell, Comm. (5th Ed.) 268. 
 
 SALE NOTE. A memorandum given by a 
 
SALFORD HUNDRED, ETC. 
 
 (822) 
 
 SALVAGE 
 
 broker to a seller or buyer ol goods, stating 
 the fact that certain goods have been sold 
 by him on account of a person called the 
 "seller" to another person called the "buy- 
 er." Sale notes are also called "bought and 
 sold notes." See "Bought Note." 
 
 SALFORD HUNDRED COURT OF REC- 
 ord. An Inferior and local court of record* 
 having jurisdiction in personal actions, 
 where the debt or damage sought to be re- 
 covered does not exceed £50, if the cause 
 of action arise within the Hundred of Sal- 
 ford. St. 31 & 32 Vict. c. 130; 2 Exch. 346. 
 See "Hundred." 
 
 SALIQUE (or SALIC) LAW. The name of 
 a code of laws, so called from the Salians, a 
 people of Germany who settled in Gaul un- 
 der their king Pharamond. 
 
 The most remarkable law of this code, 
 which is sometimes itself called the Salic law, 
 is that which regards succession. De terra 
 vera salica nulla portio haereditatis transit 
 in muHerem, sed hoc virilis sextus acquirit; 
 hoc est, flUi in ipsa haereditate succedunt, 
 no part of the salique land passes to females, 
 but the males alone are capable of taking; 
 that is, the sons succeed to the inheritance. 
 This has ever* excluded females from the 
 throne of Prance. 
 
 SALOON. The term does not necessarily 
 imply a place for the sale of intoxicants. 36 
 Tex. 364. But see 105 Mass. 40. 
 
 SALT SILVER. One penny paid at the 
 feast day of St. Martin, by the tenants of 
 some manors, as a commutation for the serv- 
 ice of carrying their lord's salt from market 
 to his larder. Par. Ant. 496. 
 
 SALUS (Lat.) Health; prosperity; safety. 
 
 SALUS POPULI EST SUPREMA LEX. 
 
 The safety of the people is the supreme law. 
 Bac. Max. reg. 12; Broom, Leg. Max. 1; 13 
 Coke, 139. 
 
 SALUS UBI MULTI CONSILIARM. In 
 
 many counsellors there is safety. 4 Inst. 1. 
 
 SALUTE (Lat. solus). A gold coin stamp- 
 ed by Henry V. in Prance, after his con- 
 quests there, whereon the arms of England 
 and Prance were stamped quarterly. Stow. 
 Chron. 589; Cowell. 
 
 . SALUTEM (Lat.) Health; greeting; pros- 
 perity; salvation. An expression of saluta- 
 tion used by the Romans in the commence- 
 ment of their letters or epistles, generally 
 abbreviated, 8. "C. Plinius Gornelio Taciio 
 sua, S." Plin. Ep. i. 6, et passim. In legal 
 instruments, it was written at length, Titius 
 Seio salutem. Dig. 17. 1. 60. Ille illi salu- 
 tem. Id. 59. 
 
 A formal word in the commencement of 
 Roman deeds and charters, which, during 
 the later periods of the empire, were writ- 
 ten in an epistolary form. See "Epistola." 
 After Christianity had become established, 
 salutem seems to have been used in its re- 
 ligious sense of "salvation." 
 A formal word in the commencement of 
 
 old English deeds, probably derived from 
 the Roman practice above noticed. Omnibus 
 Christi fldeWbus ad quos praesentes literae 
 indentatae pervenerint, A., de B. salutem in 
 Domino sempiternam; Sciatis me dedisse, 
 etc., to all Christian people to whom these 
 presents [present letters] indented shall 
 come, A. of B. sends greeting [or salvation], 
 in our Lord everlasting. Litt. § 372. 
 
 A formal word invariably used in the ad- 
 dress of old English writs, which commenced 
 in the epistolary form. Bex vice comiti, 
 etc., salutem, the king to the sheriff, etc., 
 greeting. Reg. Grig. & Jud. per tot. Trans- 
 lated "greeting," and retained in modern 
 English and American writs. See "Breve." 
 Called by Finch the "salutation" of the writ. 
 Finch, Law, bk. 4, c. 1. 
 
 SALVA GARDIA (Law Lat.) Safeguard. 
 Reg. Grig. 26. See "Safeguard." 
 
 SALVAGE. In maritime law. A compen- 
 sation given by the maritime law for serv- 
 ice rendered in saving property or rescuing 
 it from impending peril on the sea or 
 wrecked on the coast of the sea, or, in the 
 United States, on a public navigable river or 
 lake, where interstate or foreign commerce 
 is carried on. 1 Sumn. (U. S.) 210, 416; 12 
 How. (U. S.) 466; 1 Blatchf. (U. S.) 420; 
 5 McLean (U. S.) 359. 
 
 Occasionally used to designate the prop- 
 erty saved. 2 Phil. Ins. § 1488; 2 Pars. Mar. 
 Law, 595. 
 
 There are three things essential to the 
 right to salvage: 
 
 (1) The peril. In order to found a title 
 to salvage, the peril from which the prop- 
 erty was saved must be real, not speculative 
 merely (1 Cranch [U. S.] 1); but it need 
 not be such that escape from it by any other 
 means than by the aid of the salvors was 
 impossible. It is Sufficient that the peril was 
 something extraordinary, — something differ- 
 ing in kind and degree from the ordinary 
 perils of navigation. 1 Curt. [U. S.] 353; 
 2 Curt. [U. S.] 350. All services rendered 
 at sea to a vessel in distress are salvage 
 services. 1 W. Rob. Adm. 174; 3 W. Rob. 
 Adm. 71. But the peril must be present and 
 pending, not future, contingent, and conjec- 
 tural. 1 Sumn. (U. S.) 216; 3 Hagg. Adm. 
 344. It may arise from the sea, rocks, fire, 
 pirates, or enemies (1 Cranch [U. S.] 1), or 
 from the sickness or death of the crew or 
 master (1 Curt. [TJ. S.] 376; 2 Wall. Jr. [U. 
 S.] 59; 1 Swab. 84). 
 
 (2) The saving. In order to give a title 
 to salvage, the property must be effectually 
 saved; it must be brought to some port of 
 safety, and it must be there in a state capa- 
 ble of being restored to the owner, before the 
 service can be deemed completed. 1 Sumn. 
 (U. S.) 417; 1 W. Rob. Adm. 329, 406. It 
 must be saved by the instrumentality of the 
 asserted salvors, or their services must con- 
 tribute in so^e certain degree to save it (4 
 Wash.C.C.[UiS.] 651; Glc.Adm. [U.S.] 462); 
 though, if the services were rendered on the 
 request of the master or owner, the salvor 
 is entitled to salvage, though the services 
 were slight, and the property was saved 
 
SALVAGE CHARGES 
 
 (823) 
 
 SANE 
 
 mainly by a providential act (5 McLean [U. 
 S.] 359; 1 Newl). Adm. [U. S.] 130; 2 W.Rob. 
 Adm. 91; Bee, Adm. [U. S.] 90; 9 Lond. Jur. 
 119). 
 
 (3) The place. In England it has been 
 held that the services must be rendered on 
 the high seas, or, at least, edtra corpus comi- 
 tatus, in order to give the admiralty court 
 jurisdiction to decree salvage; but in this 
 country it is held that the district courts of 
 the United States have jurisdiction to de- 
 cree salvage for services rendered on tide 
 waters and on the lakes or rivers where in- 
 terstate or foreign commerce is carried on, 
 although infra corpus comitatus. 12 How. 
 (U. S.) 466; 1 Blatchf. (U. S.) 420; 5 Mc- 
 Lean (U. S.) 359. 
 
 SALVAGE CHARGES. In insurance. All 
 those costs, expenses, and charges necessari- 
 ly incurred in and about the saving and 
 preservation of the property imperilled, and 
 which, if the property be insured, are eventu- 
 ally borne by the underwriters. Stev. Av. c. 
 2, § 1. 
 
 SALVAGE LOSS. That kind of loss which 
 it is presumed would, but for certain serv- 
 ices rendered and exertions made, have be- 
 come a total loss. It also means, among 
 underwriters and average adjusters, a mode 
 of settling a loss, under a policy, in cases 
 where the goods have been necessarily sold 
 at a port short of the port of destination, 
 in consequence of the perils insured against. 
 In such cases, though the property be not 
 abandoned to the underwriter, the principle 
 of abandonment is assumed in the adjust- 
 ment of the loss. The underwriter pays a 
 total loss. The net proceeds of the sale of 
 the goods, after deducting all expenses, are 
 retained by the assured, and he credits the 
 underwriter with the amount. 2 Phil. Ins. 
 § 1480; Stev. Av..c. 2, § 1. 
 
 SALVAGE SERVICE. In maritime law. 
 Any service rendered In saving property on 
 the sea, or wrecked on the coast of the sea. 
 Story, J., 1 Sumn. (U. S.) 210. 
 
 SALVrAN INTERDICT. See "Interdictum 
 Salvianum." 
 
 SALVO (Lat.) Saving; excepting; with- 
 out prejudice to. Salvo me et haerediius 
 meis, except me and my heirs. Salvo jure 
 cujuslibet, without prejudice to the rights of 
 any one. 
 
 SALVOR. In maritime law. A person who 
 saves property or rescues it from impending 
 peril on the sea or when wrecked on the 
 coast of the sea, or, in the United States, on 
 a public navigable river or lake where Inter- 
 state commerce is carried on, and who is 
 under no pre-existing contract or obligation 
 of duty by his relation to the property to 
 render such services. 1 Hagg. Adm. 236; 1 
 Curt. (U. S.) 378. 
 
 SALVUS PLEGIUS (Law Lat.) A safe 
 pledge; called, also, "certus plegius," a sure 
 pledge. Bracton, fol. 160b. 
 
 SAMPLE. A small quantity of any com- 
 
 modity or merchandise, exhibited as a speci- 
 men of a larger quantity, called the "bulk." 
 
 When a sale is made by sample, and it 
 afterwards turns out that the bulk does not 
 correspond with it, the purchaser is not, in 
 general, bound to take the property on a 
 compensation being made to him for the dif- 
 ference. 1 Campb. 113. See 2 Bast, 314; 4 
 Campb. 22; 9 Wend. (N. Y.) 20; 12 Wend. 
 (N. Y.) 413, 566; 5 Johns. (N. Y.) 395; 6 
 N. Y. 73, 95; 13 Mass. 139; 2 Nott & McC. 
 (S. C.) 538; 3 Rawle (Pa.) 37; 14 Mees. & 
 W. 651. 
 
 SANAE MENTIS (Lat.) In old English 
 law. Of sound mind. Fleta, lib. 3, c. 7, § 1. 
 
 SANCTIO (Lat.) In the civil law. That 
 part of a law by which a penalty was or- 
 dained against those who should violate it. 
 Inst. 2. 1. 10. 
 
 SANCTION. That part of a law which in- 
 flicts a penalty for its violation, or bestows 
 a reward for its observance. Sanctions are 
 of two kinds, — those which redress civil in- 
 juries, called "civil sanctions," and those 
 which punish crimes, called "penal sanc- 
 tions." 1 Hoffm. Leg. Outl. 279; Ruther- 
 forth, Inst. bk. 2, c. 6, § 6; ToulUer, Dr. 
 Civ. tit. prel. 86; 1 Bl. Comm. 56. 
 
 SANCTUARY. A place of refuge, where 
 the process of the law cannot be executed. 
 
 Sanctuaries may be divided into religious 
 and civil. The former were very common in 
 Europe, — religious houses affording protec- 
 tion from arrest to all persons, whether ac- 
 cused of crime or pursued for debt. 4 Bl. 
 Comm. 332. This kind was never known in 
 the United States. 
 
 Civil sanctuary, or that protection which 
 is afforded to a man by his own bouse, was 
 always respected in this country. The house 
 protects the owner from the service of all 
 civil process in the first instance, but not 
 if he is once lawfully arrested and takes 
 refuge in his own house.' See "House;" "Ar- 
 rest." 
 
 No place affords protection from arrest in 
 criminal cases. A man may, therefore, be 
 arrested in his own house in such cases, and 
 the doors may be broken for the purpose of 
 making the arrest. See "Arrest." 
 
 SANCTUS, or SANCTUM (Lat. from san- 
 aire). In the civil law. That which is 
 guarded and fenced round against injury 
 (quod ab injuria hominum defensum atque 
 munitum est). Dig. 1. 8, pr. Derived by 
 Marcian, in the Digests, f rcftn sagmina. which 
 were certain herbs carried by the legates of 
 the Roman people to seciure them from 
 harm. Id. § 1. 
 
 SAND GAVEL. A payment due to the 
 lord of the manor of Rodley, in the county 
 of Gloucester, for liberty granted to the ten- 
 ants to dig sand for, their common use. Cow- 
 ell. 
 
 SANE (Law Fr. and Eng.; from Lat. sa- 
 nus). Sound. De non sane memorie, of un- 
 sound memory, non compos mentis. Litt. '§ 
 405. 
 
SANG 
 
 (824) 
 
 SATISFIED, ETC. 
 
 SANG, or SAN C. Blood. These words are 
 nearly obsolete. 
 
 SANGUINE, or MURREY. Aa heraldic 
 term for "blood color," called, in the arms 
 of princes, "dragon's tail," and, in those of 
 lords, "sardonyx." It is a tincture of very in- 
 frequent occurrence, and not recognized by 
 some writers. In engraving, it is denoted by 
 numerous lines in saltire. Wharton. 
 
 SANGUINEM EMERE (Lat.) In feudal 
 law. A redemption by villeins, of their blood 
 or tenure, in order to become freemen. 
 
 SANGUINIS CONJUNCTIO BENEVOLEN- 
 tia devincit homines et carltate. A tie of 
 blood overcomes men through benevolence 
 and family affection. 5 Johns. Ch. (N. Y.) 
 1, 13. 
 
 SAN IS. A kind of punishment among the 
 Greeks, inflicted by binding the malefactor 
 fast to a piece of wood. Enc. Lond. 
 
 SANITARY AUTHORITIES. In the Eng- 
 lish law bodies having jurisdiction over their 
 respective districts in regard to sewerage, 
 drainage, scavenging, the supply of water, 
 the prevention of nuisances and offensive 
 trades, etc., all of which come under the 
 head of "sanitary matters" in the special 
 sense of the words. Sanitary authorities al- 
 so have jurisdiction in matters coming under 
 the head of "local government" {q. v.) Pub- 
 lic Health Act 1875, passim. 
 
 SANITY. The state of a person who has 
 a sound understanding; the reverse of in- 
 sanity (q. V.) 
 
 SANS CEO QUE. The same as absque hoe 
 (q. V.) 
 
 SANS IMPEACHMENT DE WAST (Law 
 Pr.) Without impeachment of waste. Litt. 
 § 152. See "Absque Impetitione Vasti." 
 
 SANS NOMBRE (Pr. without number). In 
 English law. A term used in relation to the 
 right of putting animals on a common. The 
 term common sans nom'bre does not mean 
 that the beasts are to be innumerable, but 
 only indefinite, not certain (Willes, 227); 
 but they are limited to the commoner's own 
 commonable cattle, levant et couchant, upon 
 his lands, or as many cattle as the land of 
 the commoner can keep and maintain in 
 winter. 2 Brownl. 101; Ventr. 54; 5 "term 
 R. 48; 1 Wm. Saund. 28, note 4. 
 
 SANS RECOURS (Pr. without recourse). 
 Words which are sometimes added to an in- 
 dorsement by the indorsee to avoid Incur- 
 ring any liability. Chit. Bills, 179; 7 Taiint. 
 160; 3 Cranch (U. S.) 193; 7 Cranch (U. S.) 
 159; 12 Mass. 172; 14 Serg. & R. (Pa.) 325. 
 See "Without Recourse." 
 
 SAPIENS INCIPIT A FINE; ET QUOD 
 primum est In Intentiohe, ultlmum est In 
 executlone. A wise man begins with the 
 last; and what is first in intention is last in 
 execution. 10 Coke, 25. 
 
 SAPIENS OMNIA AGIT CUM CONSILIO. 
 
 A wise man does everything advisedly, 4 
 Inst. 4. 
 
 SAPIENTIA LEGIS NUMMARIO PRETIO 
 non est aestimanda. The wisdom of the law 
 cannot be valued by money. Jenk. Cent Cas. 
 168. 
 
 SAPIENTIS JUDICIS EST COGITARE 
 tantum sibi esse permissum, quantum com- 
 missum et creditum. It is the duty of a wise 
 judge to think so much only permitted tO' 
 him as is committed and intrusted to him. 
 4 Inst. 163. 
 
 SARCULATURA (Law Lat.) In old rec- 
 ords. Weeding corn; a tenant's service of 
 weeding for the lord. Cowell. 
 
 SART. In old English law. A piece of 
 woodland, turned into arable. Cowell. See 
 "Assart." 
 
 SARUM (Law Lat.) In old records. The 
 city of Salisbury in England. Spelman. 
 
 SASINE. In Scotch law. The symbolical 
 delivery of land, answering to the livery of 
 seisin of the old English law. 4 Kent, Comm. 
 459. 
 
 SASSONS. The corruption of Saxons. A 
 name of contempt formerly given to the Eng- 
 lish, while they affected to be called "An- 
 gles." They are still so called by the Welsh. 
 
 SATISPARE. In the civil law, to guar- 
 anty the obligation of a principal. 
 
 SATISDATIO (Lat. satis, and dare). In 
 civil law. Security given by a party to an 
 action to pay what might be adjudged 
 against him. It is a satisfactory security, in 
 opposition to a naked security or promise. 
 Vicat; 3 Bl. Comm. 291. 
 
 SATISFACTION (Lat. satis, enough, far 
 do, to do, to make). In practice. An entry 
 made on the record, by which a party in 
 whose favor a judgment was rendered de- 
 clares that he has been satisfied and paid. 
 
 SATISFACTION PIECE. In English prac- 
 tice. An instrument of writing in which it 
 is declared that satisfaction is acknowledged 
 between the plaintiff and defendant. It is 
 signed by the attorney, and on its production 
 and the warrant of attorney to the clerk of 
 the judgments, satisfaction is entered on 
 payment of certain fees. 
 
 SATISFACTORY EVIDENCE. That which 
 is sufficient to induce a belief that the thing 
 is true; in other words, it is credible evi- 
 dence. 3 Bouv. Inst, note 3049. 
 
 SATISFIED OUTSTANDING TERM. 
 Where a long term had been created in trus- 
 tees to raise money for a purpose, and the 
 money had been paid, but the trustees had 
 not released to the freeholder, and the lease 
 had not provided for its own extinguish- 
 ment on the purpose becoming satisfied, the 
 estate so remaining in the trustees was 
 called a "satisfied outstanding term." It 
 
SATIUS EST, KTC. 
 
 (825) 
 
 SCANDALUM MAGNATUM 
 
 came to be a mode of protecting the rightful 
 owner of the freehold, but the estate was 
 abolished by 8 & 9 Vict. c. 112, § 2, and it 
 never existed in the United States. 1 Washb. 
 Real Prop. *311. 
 
 SATIUS EST PETERE PONTES QUAM 
 sectari rivulos. It is better to seek the foun- 
 tain than to follow rivulets. 10 Coke, 118. 
 It is better to drink at the fountain than to 
 sip in the stream^s. 
 
 SATURDAY'S STOP. A space of time 
 from evensong on Saturday till sun rising 
 on Monday, in which it was not lawful to 
 take salmon in Scotland and the northern 
 parts of England. Cowell. 
 
 SAUNKEFIN (Law Pr.) End of blood; 
 failure of the direct line in successions. 
 Spelman; Cowell. 
 
 SAUVAGINE (Law Fr.) Wild animals. 
 De pessons et de autre sauvaqine. Britt. c. 
 33, fol. 85. 
 
 The wild disposition of an animal (fera 
 natura). Mes si ele eschape et repreigne la 
 sauvagine en son natural estate, but if it es- 
 cape, and resume its wildness, in its natural 
 estate. Id. 
 
 SAUVEMENT (Law Pr.) Safely. Sauve- 
 ment gardes, safely kept. Britt. c. 87. 
 
 SAVER-DE-FAULT. 
 
 de la Ley. 
 
 To excuse. Termes 
 
 SAVING THE STATUTE OF LIMITA- 
 tlons. A creditor is said to "save the statute 
 of limitations" when he saves or preserves 
 his debt from being barred by the operation 
 of the statute. Thus, in the case of a simple 
 contract debt, if a creditor commence an ac- 
 tion for its recovery within six years from 
 the time when the cause of action accrued, 
 he will be in time to save the statute. 
 
 SAVINGS BANKS. In American law. In- 
 stitutions for the safe custody and increase 
 of the savings of the industrious poor, and 
 persons of small means. They are banks to 
 receive deposits of money, however small, 
 which is to accumulate at interest, and to 
 be paid out to the depositors as required. 
 
 SAVOUR. To partake of the nature of; 
 to bear affinity to. 
 
 SAVOY. One of the old privileged places, 
 or sanctuaries. 4 Steph. (5omm. (7th Ed.) 
 227, note. 
 
 SAXON LAGE. The law of the West Sax- 
 ons. 
 
 SC, or SOIL. An abbreviation for "scili- 
 cet," that is to say. 
 
 SCABINI. In old European law. The 
 judges or assessors of the judges in the 
 court held by the count. Assistants or as- 
 sociates of the count; officers under the 
 count. The permanent selected judges of 
 the Pranks. Judges among the Germans, 
 Franks, and Lombards, who were held in 
 peculiar esteem. Spelman. 
 
 SCACC A R I U M . A chequered cloth, resem- 
 bling a chess board, which covered the ta- 
 ble in the exchequer, and on which, when 
 certain of the king's accounts were made up, 
 the sums were marked and scored with 
 counters. Hence the court of exchequer, or 
 curia scaccarii, derived its name. 3 Bl. 
 Comm. 44. 
 
 SCALAM. The old way of paying money 
 into the exchequer. Cowell. 
 
 SCALE. In early American law. To ad- 
 just, graduate, or value according to a scale. 
 "The court scaled the debt." Marshall, arg. 
 2 Wash. (Va.) 5, 6. A term used after the 
 establishment of American independence, to 
 signify a process of adjusting the difference 
 in value between paper money and specie, 
 rendered necessary by the great depreciation 
 of the former. The act of assembly of Vir- 
 ginia of February 10, 1781, establishing a 
 scale of depreciation, and declaring that out- 
 standing current money contracts should be 
 regulated by such scale, as at the date of 
 such contracts, is called "An act for scaling 
 paper money contracts." 2 Wash. tVa.) 
 [41] 52; Id. [98, 99] 127; Id. [103, 104] 132^ 
 134. 
 
 SCALPER, or SCALPING. See "Gambling 
 Contract." 
 
 SCAMNUM (or SCANNUM) CADUCUM 
 (Law Lat.) In old records. The cucking 
 stool, or ducking stool. Cowell. 
 
 SCANDAL. A scandalous verbal report or 
 rumor respecting some person. 
 
 SCANDALOUS MATTER. In equity plead- 
 ing. Unnecessary matter criminatory of the 
 defendant or any other person, alleged in the 
 bill, answer, or other pleading, or in the 
 interrogatories to or answers by witnesses. 
 Adams, Eq. 306. Matter which is relevant 
 can never be scandalous (Story, Eq. PI. § 
 270; 15 Ves. 477); and the degree of rele- 
 vancy is of no account in determining the 
 question (Cooper, Eq. PI. 19; 2 Ves. Jr. 24; 6 
 Ves. 514; 11 Ves. 256; 15 Ves. 477). Where 
 scandal is alleged, whether in the bill (2 
 Ves. Jr. 631), answer (Mitf. Eq. PL [Jeremy 
 Ed.] 313), or interrogatories to or answers 
 of witnesses (2 Younge & C. 445), It will be 
 referred to a master at any time (2 Ves. Jr. 
 631), and, by leave of court, even upon the 
 application of a stranger to the suit f6 Ves. 
 514; 5 Beav. Rolls, 82), and matter found 
 to be scandalous by him will be expunged 
 (Story, Eq. PI. §§ 266, 862; 4 Hen. & M. 
 [Va.] 414), at the cost of counsel introduc- 
 ing it, in some cases (Story, Eq. PI. § 266). 
 The presence of scandalous matter in the 
 bill is no excuse for its being in the answer. 
 19 Me. 214. 
 
 SCANDALUM MAGNATUM (Law Lat. 
 slander of great men). In old English law. 
 Words spoken in derogation of a peer, a 
 judge, or other great officer of the realm. 1 
 Vent. 60. This was distinct from mere slan- 
 der in the earlier law, and was considered 
 a more heinous offense. Buller, N. P. 4. 
 See 3 Bl. Comm. 124. The doctrine never 
 
SCAPELLARE 
 
 (826) 
 
 SCILICET 
 
 prevailed in the United States (151 Mass. 
 50), and is said to be obsolete In England 
 (Odgers, Lib. & Sland. 136). 
 
 SCAPELLARE (Law Lat.) In old Euro- 
 pean law. To cbop; to chip or haggle. Spel- 
 man. 
 
 SCAPHA (Lat.) In the Roman law. A 
 boat; a lighter. Dig. 14. 2. 4, pr. A ship's 
 boat. Id. 6. 1. 3. 1; Id. 21. 2. 44; Looc. de 
 Jur. Mar. lib. 1, c. 2, § 6. 
 
 SCARA (Law Lat.) In old European law. 
 A troop {turnia) ; a division of an army. A 
 phalanx (cuneus). Spelman. 
 
 SCAVAGE, SCHEVAGE, SCHEWAGE, or 
 SHEWAGE. A kind of toll or custom, ex- 
 acted by mayors, sheriffs, etc., of merchant 
 strangers, for wares showed or offered for 
 sale within their liberties. Prohibited by 19 
 Hen. VII. c. 7. Cowell. 
 
 SCAVAIDUS. The oflBcer who collected 
 the scavage money. Cowell. 
 
 SCEATTA, or SCAETTA (Saxon). A Sax- 
 on coin, of less denomination than a shilling. 
 Spelman. 
 
 SCHAN PENNY, SCHARN PENNY, or 
 schorn penny. A small duty or compensa- 
 tion. Cowell. 
 
 SCHEDULE. In practice. When an in- 
 dictment is returned from an inferior qourt 
 In obedience to a writ of certiorari, the state- 
 ment of the previous proceedings sent with 
 It is termed the "schedule." 1 Saund. 309a, 
 note 2. 
 
 Schedules are also frequently annexed to 
 answers in a court of equity, and to depo- 
 sitions and other documents, in order to 
 show more in detail the matter they contain 
 than could otherwise be conveniently shown. 
 
 The term is frequently used instead of "in- 
 "ventory." ■ 
 
 SCHEME. In English law, a scheme is a 
 document containing provisions for regulat- 
 ing the management or distribution of prop- 
 erty, or for making an arrangement between 
 persons having conflicting rights. Thus, in 
 the practice of the chancery division, where 
 the execution of a charitable trust in the 
 manner directed by the founder is difficult 
 or impracticable, or requires supervision, a 
 scheme for the management of the charity 
 will be settled by the court. Tud. Char. 
 Trusts, 257; Hunt, Eq. 248; Daniell, Ch. 
 Prac. 1765. 
 
 SCHETES. Usury. Cowell. 
 
 SCHIREMAN. Asheriff; the ancient name 
 for an earl. 
 
 SCHIRRENS GELD. A tax paid to sher- 
 iffs for keeping the shire or county court. 
 Cowell. 
 
 SCHISM BILL. The name of an act pass- 
 ed in the reign of Queen Anne, which re- 
 strained Protestant dissenters from educat- 
 ing their own children, and forbade all tu- 
 
 tors and schoolmasters to be present at any 
 conventicle or dissenting place of worship. 
 The queen died on the day when this act 
 was to have taken effect (August 1, 1714), 
 and it was repealed in the fifth year of Geo. 
 1. Wharton. 
 
 SCI. FA. An abbreviation of scire facias 
 (q. V.) 
 
 SCIENDUM (Lat.) In English law. The 
 name given to a clause inserted in the rec- 
 ord, by which it is made "known that the 
 justice here in court, in this same term, 
 delivered a writ thereupon to the deputy 
 sheriff of the county aforesaid, to be exe- 
 cuted in due form of law." Lee, Diet. "Rec- 
 ord." 
 
 SCIENDUM EST (Lat. it is to be known, 
 or understood). A phrase frequently used 
 in the civil law, in the commencement of 
 paragraphs or other divisions of a subject, 
 as preliminary to some explanation, or as 
 calling attention to some particular rule. 
 Sciendum Hague est,, omnia fldei commissa 
 primis temporiius inflrma fuisse, it is to be 
 known, then, that all trusts were, in their 
 origin, weak. Inst. 2. 23. 1. 
 
 SCIENTER (Lat. knowingly). The allega- 
 tion of knowledge on the part' of a defend- 
 ant or person accused, which is necessary to 
 charge upon him the consequences of the 
 crime or tort. 
 
 A man may do many acts which are justi- 
 fiable or not, as he is ignorant or not igno- 
 rant of certain facts. He may pass a coun- 
 terfeit coin, when he is ignorant of its be- 
 ing counterfeit, and is guilty of no offense; 
 but if he knew the coin to be counterfeit, 
 which is called the scienter, he is guilty of 
 passing counterfeit money. 
 
 SCIENTIA SCIOLORUM EST MIXTA IG- 
 norantia. The knowledge of smatterers is 
 mixed ignorance. 8 Coke, 159. 
 
 SCIENTIA UTRIUSQUE PAR PARES 
 
 contrahentes faclt. Equal knowledge on both 
 sides makes the contracting parties equal. 3 
 Burrows, 1910. 
 
 SCIENTII ET VOLUNTI NON FIT INJU- 
 ria. A wrong is not done to one who knows 
 and wills it. 
 
 SCILICET (Lat. scire, to know, licet, it Is 
 permitted; you may know; translated by "to 
 wit," in its old sense of "to know"). That 
 is to say; to wit; namely. It is often abbre- 
 viated "so." or "scil." 
 
 It is a clause to usher In the sentence of 
 another, to particularize that which was too 
 general before, distribute what was too 
 gross, or to explain what was doubtful and 
 obscure. It neither increases nor dimin- 
 ishes the premises or haliendum, for it gives 
 nothing of itself. It may make a restriction 
 when the preceding words may be restrain- 
 ed. Hob. 171; 1 P. Wms. 18; Co. Litt. 180b, 
 note 1. 
 
 When the scilicet is repugnant to the pre- 
 cedent matter, it is void; for example, when 
 a declaration in trover states that the plain- 
 
SCINTILLA 
 
 (827) 
 
 SCIRE FACIAS 
 
 tiff on the third day of May was possessed 
 of certain goods which, on the fourth day 
 of May, came to the defendant's hands, who 
 afterwards, to wit, on the first day of May, 
 converted them, the scilicet was' rejected as 
 surplusage. Cro. Jac. 428. And see 6 Bin. 
 (Pa.) 15; 3 Saund. 291, note 1. 
 
 Stating material and traversable matter 
 under a scilicet will not avoid the conse- 
 quences of a variance (1 McClel. & Y. 277; 
 4 Taunt. 321; 6 Term R. 462; 2 Bos. & P. 
 170, note 2; 1 Cow. [N. Y.] 676; 4 Johns. 
 [N. Y.] 450; 2 Pick. [Mass.] 223); nor will 
 the mere omission of a scilicet render im- 
 m;aterial matter material (2 Saund. 206a; 3 
 Term R. 68; 1 Chit. PI. 276), even in a 
 criminal proceeding (2 Campb. 307, note). 
 See 3 Term R. 68; 3 Maule & S. 173. 
 
 SCINTILLA (Lat.) A spark; a remaining 
 particle; the least particle. "A scintilla of 
 equity." Henley, Lord Keeper, 1 W. Bl. 180. 
 "There is not a scintilla of intention, upon 
 the face of the will, to show the contrary." 
 Lord EUenborough, 11 Bast, 322. "Not a 
 scintilla of benefit." -Id.; 1 Maule & S. 509. 
 See 6 Maule & S. 180. 
 
 SCINTILLA JURIS (Lat. a spark of law 
 or right). A legal fiction resorted to for the 
 purpose of enabling feoffees to uses to sup- 
 port contingent uses when they come into 
 existence, thereby to enable the statute of 
 uses (27 Hen. VIII.) to execute them. For 
 example, a shifting use; a grant to A. and 
 his heirs to the use of B. and his heirs, un- 
 til C. perform an act, and then to the use 
 of C. and his heirs. Here the statute exe- 
 cutes the use in B., which, being coexten- 
 sive with A.'s seisin, leaves no actual seisin 
 in A. When, however, C. performs the act, 
 B.'s use ceases, and C.'s springs up, and he 
 enjoys the fee simple; upon which the ques- 
 tion arises, out of what seisin C.'s use is 
 served. It is said to be served out of A.'s 
 original seisin; for upon the cesser of B.'s 
 use it is contended that the original seisin 
 reverted to A., for the purpose of serving 
 C.'s use, and is a possibility of seisin, or 
 scintilla juris. See 4 Kent, Comm. 238 et 
 seq., and the authorities there cited, for the 
 learning upon this subject; Burton, Real 
 Prop. 48, 49; Wilson, Springing Uses, 59, 60; 
 Washb. Real Prop. 
 
 SCIRE DEBES CUM QUO CONTRAHIS. 
 
 You ought to know with whom you deal. 
 11 Mees. & W. 405, 632; 13 Mees. & W. 171. 
 
 SCIRE FACIAS (Lat. that you make 
 Imown). The name of a writ (and of the 
 whole proceeding) founded on some public 
 record. 
 
 Its principal use was to revive a judg- 
 ment on which execution had not issued for 
 a year and a day (see "Revival"), or to en- 
 force some obligation of record, as a recog- 
 nizance on appeal (24 Pa. St. 69). 
 
 Scire facias is also used by government 
 as a mode to ascertain and enforce the for- 
 feiture of a corporate charter, "where there 
 Is a legal existing body capable of acting, 
 but who have abused their power. It cannot, 
 
 like quo warranto (which is applicable to all 
 cases of forfeiture), be applied where there 
 is a body corporate de facuo only, who take 
 upon themselves to act, but cannot legally 
 exercise their powers. In scire facias to for- 
 feit a corporate charter, the government 
 must be a party to the suit; for the judg- 
 ment is that the parties be ousted, and the 
 franchises be seized into the hands of the 
 government. 2 Kent, Comm. 313; 10 Barn. 
 & C. 240; Yelv. 190; 5 Mass. 230; 16 Serg. 
 & R. (Pa.) 140; 4 Gill & J. (Md.) 1; 9 Gill 
 & J. (Md.) 365; 4 Gill (Md.) 404. 
 
 Scire facias is also used to suggest further 
 breaches on a bond with a condition, where 
 a judgment has been obtained for some, but 
 not all, of the breaches, and to recover fur- 
 ther installments where a judgment has been 
 obtained for the penalty before all the in- 
 stallments are due. 1 Wm. Saund. 58, note 
 1; 4 Md. 375. 
 
 As to the effects of the judgment, and the 
 principle of forfeiture, see "Quo Warranto." 
 
 The pleadings in scire facias are peculiar. 
 The writ recites the judgment or other rec- 
 ord, and also' the suggestions which the 
 plaintiff must make to the court to entitle 
 him to the proceeding by scire facias. The 
 writ, therefore, presents the plaintiff's whole 
 case, and constitutes the declaration, to 
 which the defendant must plead. 1 Blackf. 
 (Ind.) 297. And when the proceeding is 
 used to forfeit a corporate charter, all the 
 causes of forfeiture must be assigned in dis- 
 tinct breaches in the writ. And the defend- 
 ant must either disclaim the charter, or de- 
 ny its existence, or deny the facts alleged 
 as breaches, or demur to them. The sugges- 
 tions in the writ disclosing the foundation 
 of the plaintiff's case must also be traversed 
 if they are to be avoided. The scire facias 
 is founded partly upon them and partly up- 
 on the record. 2 Inst. 470, 679. They are 
 substantive facts, and can be traversed by 
 distinct pleas embracing them alone, just as 
 any other fundamental allegation can be 
 traversed alone. All the pleadings after the 
 writ or declaration are in the ordinary 
 forms. There are no pleadings in scire fa- 
 cias to forfeit a corporate charter to be 
 found in the books, as the proceeding has 
 been seldom used. There is a case in 1 P. 
 Wms. 207, but no pleadings. There is a case 
 also in 9 Gill (Md.) 379, with a synopsis of 
 the pleadings. Perhaps the only other case 
 is in Vermont, and it is without pleadings. 
 A defendant cannot plead more than one 
 plea to a scire facias to forfeit a corporate 
 charter. St. 4 & 5 Anne, c. 16, and St. 9 
 Anne, c. 20, allowing double pleas, do not ex- 
 tend to the crown. 1 Chit. PL 479; 1 P. 
 Wms. 220. 
 
 There are various special forms of the 
 writ designated in accordance with the pur- 
 pose for or the record on which it is brought. 
 The principal are: 
 
 Scire facias sur mortgage, being a writ of 
 scire facias issued upon the default of a 
 mortgagor, requiring him to show cause why 
 the mortgage should not be foreclosed. 
 
 Scire facias ad disproiandum debitum, be- 
 ing a writ in use in Pennsylvania, which 
 lies by a defendant in foreign attachment 
 
SCIRE FECI 
 
 (828) 
 
 SCOTALE 
 
 against the plaintiff, in order to enable him, 
 within a year and a day next ensuing the 
 time of payment to the plaintiff in the at- 
 tachment, to disprove or avoid the debt re- 
 covered against him. Act relating to the 
 commencement of actions (section 61), 
 passed June 13, 1836. 
 
 Scire facias ad audiendum errores, being 
 a writ which is sued out after the plaintiff 
 in error has assigned his errors. Pitzh. Nat. 
 Brev. 20; Bao. Abr. "Error" (F). 
 
 Scire ■facias ad rehabendam terram, being 
 a writ which lay for an execution debtor to 
 recover back his land taken on execution 
 after he has satisfied the debt. Post. Scire 
 Facias, 58. 
 
 SCIRE FECI (Lat. I have made known). 
 In practice. The return of the sheriff, or 
 other proper officer, to the writ of scire fa- 
 cias, when it has been served. 
 
 SCIRE FIERI INQUIRY. In English law. 
 The name of a writ formerly used to re- 
 cover the amount of a judgment from an 
 executor. 
 
 The history of the origin of the writ is 
 as follows: When, on an execution de bonis 
 testatoris against an executor, the sheriff re- 
 turned nulla bona and also a devastavit, a 
 fieri facias, de bonis propriis, might former- 
 ly have been issued against the executor, 
 without a previous inquisition finding a de- 
 vastavit and a scire facias. But the most 
 usual practice upon the sheriff's return of 
 nulla bona to a fieri facias de bonis testa- 
 toris was to sue out a special writ of fieri 
 facias de bonis testatoris, with a clause in 
 it, et si tibi constare, poterit, that the exec- 
 utor had wasted the goods, then to levy de 
 bonis propriis. This was the practice in the 
 king's bench till the time of Charles I. 
 
 In the common pleas, a practice had pre- 
 vailed in early times upon a suggestion in 
 the special writ of fieri facias of a devasta- 
 vit by the executor, to direct the sheriff to 
 inquire by a jury whether the executor had 
 Wasted the goods, and if the jury found he 
 had, then a scire facias was issued out 
 against him, and, unless he made a good de- 
 fense thereto, an execution de bonis propriis 
 was awarded against him. 
 
 The practice of the two courts being dif- 
 ferent, several cases were brought into the 
 king's bench on error, and at last it be- 
 came the practice of both courts, for the 
 sake of expedition, to incorporate the fieri 
 facias inquiry and scire facias into one writ, 
 thence called a "scire fieri inquiry," — a name 
 compounded of the first words of the two 
 writs of scire facias and fieri facias, and that 
 of inquiry, of which it consists. 
 
 This writ recites the fieri facias de bonis 
 testatoris sued out on the judgment against 
 the executor, the return of nulla bona by 
 the sheriff, and then, suggesting that the ex- 
 ecutor had sold and converted the goods of 
 the testator to the value of the debt and 
 damages recovered, commands the sheriff to 
 levy the said debt and damages of the goods 
 of the testator in the hands of the executor, 
 if they could be levied thereof; but if it 
 should appear to him by the inquisition of 
 
 a jury that the executor had wasted the 
 goods of the testator, then the sheriff is to 
 warn the executor to appear, etc. If the 
 judgment had been either by or against 
 the testator or intestate, or both, the writ 
 of fieri facias recites that fact, and also that 
 the court had adjudged, upon a scire facias 
 to revive the judgment, that the executor or 
 administrator should have execution for the 
 debt, etc. Clift, Entr. 659; Lilly, Entr. 664. 
 Although this practice is sometimes adopt- 
 ed, yet the most usual proceeding is by ac- 
 tion of debt on the judgment, suggesting a 
 devastavit, because in the proceeding by 
 scire fieri inquiry the plaintiff is not enti- 
 tled to costs unless the executor appears and 
 pleads to the scire facias. 1 Saund. 219, note 
 8. See 2 Archb. Prac. 934. 
 
 SCIRE LEGES, NON HOC EST VERBA 
 
 earum tenere, sed vim et potestatem. To 
 know the laws is not to observe their mere 
 words, but their force and power. Dig. 1. 
 3. 17. 
 
 SCIRE PROPRIE EST, REM RATIONE 
 et per causam cognoscere. To know proper- 
 ly is to know a thing by its cause and in its 
 reason. Co. Litt. 183. 
 
 SCITE. The setting or standing of any 
 place; the seat or situation of a capital 
 messuage, or the ground on which It stood. 
 Jacob. 
 
 SCOLD. A woman who, by her habit of 
 scolding, becomes a nuisance to the neigh- 
 borhood. Is called a "common scold." See 
 "Common Scold.". 
 
 SCOT (Law Lat. scottum, scottus, scotta; 
 from Saxon sceat, a part or portion). In old 
 English law. A tax, or tribute; one's share 
 of a contribution. Or rather, a contribution 
 of several. 
 
 Camden, following Matthew of Westmin- 
 ster, defines this word to mean, "that which 
 is gathered together into one heap, from 
 several things" (illud quad ex diversis rebus^ 
 in unum acerpiim aggregatur). Cowell. Spel- 
 man observes that it properly signifies 
 what the authors of the middle ages called' 
 conjectus (a throwing together), because it 
 was thrown together by several into ona^ 
 (from Saxon sceote, to throw or cast, whence- 
 sceotan, to shoot). It is found associated 
 with the word "lot," in the laws of William 
 the Conqueror, and other early records; scot, 
 and lot (or, in the Saxon form, an hlot rf an 
 scote), signifying a customary contribution, 
 laid upon all subjects, according to their 
 ability. Cowell; Spelman, voc. "Scot," "Lot." 
 
 SCOT AND LOT. In English law. The 
 name of a customary contribution laid upon 
 all the subjects according to their ability. 
 
 SCOTS. Assessments by commissioners 
 of sewers. 
 
 SCOTALE. An extortion by oflicers of 
 the forests who kept ale houses, and com- 
 pelled people to drink there under fear of 
 their displeasure. Charta de Foresta, c. 7; 
 Manw, For. Laws, pt. 1, 216. 
 
SCOTCH PEERS 
 
 (829) 
 
 SEA 
 
 SCOTCH PEERS. Peers of the kingdom of 
 Scotland. Of these sixteen are elected by 
 the rest, and represent the whole body. They 
 are elected for one parliament only. See 
 6 Anne, c. 23, amended by 10 & 11 Vict. o. 
 52, 14 & 15 Vict. c. 87, and 15 & 16 Vict, 
 •c. 35. 
 
 SCOTTARE. To pay scot, tax, or custom- 
 ary dues. Cowell. 
 
 SCRAWL. A mark which is to supply the 
 place of a seal. 2 Pars. Cont. 100. See 
 ■"Scroll." 
 
 SCRIBA (Lat. from scrihcre. to write). A 
 scribe; a secretary. Scriba regis, a king's 
 secretary; a chancellor. Spelman. 
 
 SCRIBERE EST AGERE. To write is to 
 act. 2 Rolle, 89; 4 Bl. Comm. 80. 
 
 SCRIP. A certificate or schedule. Evi- 
 dence of the right to obtain shares in a 
 public company; sometimes called "scrip 
 certificate," to distinguish it from the real 
 title to shares. Wharton; 15 Ark. 12. The 
 possession of such scrip is prima facie evi- 
 dence of ownership of the shares therein 
 designated. Add. Cont. 203*. It is not 
 £oods, wares, or merchandise, within the 
 statute of frauds. 16 Mees. & W. 66. 
 
 SCRIPT. The original or principal instru- 
 ment, where there are part and counter- 
 part. 
 
 SCRIPTAE OBLIGATIONES SCRIPTIS 
 "tolluntur, et nudi consensus obligatio, con- 
 trario consensu dissolvitur. Written obliga- 
 gations are dissolved by writing, and obliga- 
 tions of naked agreeinent by naked agree- 
 ment to the contrary. 
 
 SCRIPTORIUM (Law Lat. from serihere, 
 to write). In old records. A place in mon- 
 •usteries, where writing was done. Spelman. 
 
 SCRIPTUM (Lat. from scribere, to write). 
 In old conveyancing. A writing; a thing 
 -written. Fleta, lib. 2, c. 60, § 25. This word, 
 alone, does not import or signify a deed, 
 that is, an instrument under seal. 2 Strange, 
 814. 
 
 Scriptum indent nitim. a writing indented; 
 an indenture or deed. Reynolds, J., 2 Strange, 
 S15. 
 
 Scriptum oMigatorium, a writing obliga- 
 tory. The technical name of a bond in old 
 Tleadings. T. Raym. 393. Ally writing un- 
 '■der seal. Id. 
 
 SCRIPTUM JNDENTATUM (Law Lat.) A 
 "writing indented; an indenture or deed. 
 
 SCRIPTURA (Lat. from scribere, to write). 
 In old English law. The act or fact of writ- 
 ing. Fleta, lib. 2, c. 60, § 25. 
 
 SCRIVENER. A person whose business it 
 is to write deeds and other instruments for 
 •others; a conveyancer. 
 
 Money Bcriveners are those who are en- 
 gaged in procuring money to be lent on 
 mortgages and other securities, and lending 
 such mon'sy accordingly. They act, also. 
 
 as agents for the purchase and sale of real 
 estates. 
 
 To be considered a money scrivener, a 
 person must be concerned in carrying on 
 the trade or profession as a means of mak- 
 ing a livelihood. He must, in the course of 
 his occupation, receive other men's moneys 
 into his trust and custody, to lay out for 
 them as occasion offers. 3 Campb. 538; 2 
 Esp. Cas. 555. 
 
 SCROLL. A printed or written mark in- 
 tended to supply the place of a seal. See 
 "Seal." 
 
 SCRUET ROLL (called, also, .scnff/ fliiium, 
 or simply scruet). In old English law. A 
 record of the bail accepted in cases of habeas 
 corpus. The award was set down in the 
 remembrance roll, together with the cause 
 of commitment, the writ and return were 
 put on file, the bail was recorded in the 
 scruet. 3 How. St. Tr. 134, 135. aTg. For 
 remembrance roll, see Reg. Michael. 1654, 
 § 15. 
 
 SCRUTATOR (Lat. from scrutarl, to 
 search). In old English law. A bailiff 
 whom the ki-ng of England appointed in 
 places that were his in franchise or interest, 
 whose duty was to look after the king's 
 water rights; as flotsam, jetsam, wreck, etc. 
 1 Harg. Tr. p. 23; Pat. 27 Hen. VI. parte 2, 
 m. 20; Pat. 8 Ed. IV. parte 1, m. 22. 
 
 SCUTAGE (from Lat. snitiim., a shield). 
 Knight service. Lift. § 99. The tax which 
 those who, holding by knight service, did 
 not accompany the king, had to pay on its 
 being assessed by parliament. Escuage cer- 
 tain was a species of socage where the com- 
 pensation for service was fixed. Lift. §§ 97, 
 98; Reg. Grig. 88; Wright, Ten. 121-134. 
 
 SCUTAGIO HABENDO. See "De Scuta- 
 gio Habendo." 
 
 SCYRA (Law Lat.) In old English law. 
 Shire; countv; the inhabitants of a county. 
 Writ cited. Hale, Hist. Com. Law, 119. 
 
 A fine imposed upon such as neglected to 
 attend the scyre gemote courts, which all ten- 
 ants were bound to do. 
 
 SCYRE GEMOTE. The name of a court 
 among the Saxons. It was the court of the 
 shire, in Latin called curia comitatus. and 
 the principal court among the Saxons. It 
 was holden twice a year for determining all 
 causes, both ecclesiastical and secular. 
 
 SE DEFENDENDO (Lat.) Defending him- 
 self. 
 
 Homicide se defendendo may be justifiable. 
 See "Self-Defense." 
 
 SEA. The ocean; the great mass of water 
 which surrounds the land, and which prob- 
 ably extends from pole to pole, covering 
 nearly three-quarters of the globe. Waters 
 within the ebb and flow of the tide are to be 
 considered the sea. Gilp. Dist. Ct. 526. 
 
 A large body of salt water communicating 
 
SEA BATTERIES 
 
 (830) 
 
 SEALS 
 
 witli the ocean Is also ,called a sea; as, the 
 Mediterranean sea, etc. 
 
 Very large inland bodies of salt water are 
 also called seas; as, the Caspian sea, etc. 
 
 The open sea is public and common prop- 
 erty, and any nation or person has ordinarily 
 an equal right to navigate it or to flsh 
 therein (1 Kent, Comm. 27; Angell, Tide 
 "Waters, 44-49; 1 Bouv. Inst. 170, 174), and 
 to land upon the seashore (1 Bouv. Inst. 
 173, 174) ; but it is generally conceded that 
 every nation has jurisdiction to the distance 
 of a cannon shot, or marine league, over the 
 waters adjacent to its shore (2 Cranch [U. 
 S.] 187, 234; Bynkershoek, Qu. Pub. Jur. 
 61; Vattel, 207). 
 
 SEA BATTERIES. Assaults by masters 
 in the merchant service upon seamen at sea. 
 
 SEA LAWS. Maritime laws, as those of 
 Oleron, Wisbuy, and the Hanse Towns. 
 
 SEA LETTER, or SEA BRIEF. In mari- 
 time law. A document which should be 
 found on board of every neutral ship. It 
 specifies the nature and quantity of the 
 cargo, the place from whence it comes, and 
 its destination. Chit. Law Nat. 197; 1 
 \ Johns. (N. Y.) 192. 
 
 SEA REEVE. An officer in maritime 
 towns and places, who takes care of the mar- 
 itime rights of the lord of the manor, watch- 
 es the shore, and collects the wreck. 
 
 SEAL. Anciently, wax with an impres- 
 sion. Sigillum est cera impressa quia cera 
 sine impressione non est sigiUiim. S Inst. 
 169; 21 Pick. (Mass.) 417; 2 Caines (N. Y.) 
 362. 
 
 In more modern law, wax, wafer, or any 
 tenacious substance upon which an impres- 
 sion may be made. 5 Cush. (Mass.) 359; 5 
 Johns. (N. Y.) 239. 
 
 In many of the states, a scroll made with 
 a pen or printed (4 111. 12), such as the 
 letters "L. S." (5 Wis. 549), or the word 
 "Seal" (28Grat. [Va.] 627), is- held sufficient, 
 and in some states this holding is inde- 
 pendent of statute (4 Ark. 195; 5 Cal. 315). 
 
 SEAL OF THE UNITED STATES. The 
 
 seal used by the United States in congress 
 assembled shall be the seal of the United 
 States, viz.: 
 
 Arms: Paleways of thirteen pieces, ar- 
 gent and gules; a chief azure; the escutch- 
 eon on the breast of the American eagle 
 displayed proper, holding in his dexter talon 
 an olive branch, and in his sinister a bundle 
 of thirteen arrows, all proper, and in his 
 beak a scroll, inscribed with this motto, 
 "E pluribus unum." 
 
 For the Crest: Over the head of the eagle 
 which appears above the escutcheon, a glory, 
 or breaking through a cloud proper, and 
 surrounding thirteen stars, forming a con- 
 stellation argent on an azure field. 
 
 Reverse: A pyramid unfinished. In the 
 zenith, an eye in a triangle, surrounded with 
 a glory proper. Over the eye, these words, 
 "Annvit caepiis." On the base of the pyrar 
 mid, the numerical letters mdcclxxvi, and 
 
 underneath, the following motto, "Novus 
 ordo seotomm." Resolution of Congress, 
 June 20, 1782; Gordon, Dig. art. 207. 
 
 SEAL OFFICE. In English practice. The 
 office at which certain judicial writs are 
 sealed with the prerogative seal, and with- 
 out which they are of no authority. The 
 officer whose duty it is to seal such writs is 
 called "sealer of writs." 
 
 SEAL PAPER. A document issued by the 
 lord chancellor, previously to the commence- 
 ment of the sittings, detailing the business 
 to be done for each day In his court, and 
 in the courts of the lords justices and vice 
 chancellors. The master of the rolls in like 
 manner issued a seal paper in respect of 
 the business to be heard before him. Smith, 
 Ch. Prac. 9. 
 
 SEALS. In Louisiana. A method of tak- 
 ing the effects of a deceased person into pub- 
 lic custody. 
 
 On the death of a person, according to 
 the laws of Louisiana, if the heir wishes to 
 obtain the benefit of inventory and the de- 
 lays for deliberating, he is bound, as soon 
 as he knows of the death of the deceased 
 to whose succession he is called, and before 
 committing any act of heirship, to cause the 
 seals to be affixed on the effects of the suc- 
 cession by any judge or justice of the peace. 
 Civ. Code La. art. 1027. 
 
 In ten days after this affixing of the seals, 
 the heir is bound to present a petition to 
 the judge of the place in which the succes- 
 sion is opened, praying for the removal of 
 the seals, and that a true and faithful inven- 
 tory of the effects of the succession be made. 
 Civ. Code La. art. 1028. 
 
 In case of vacant estates, and estates of 
 which the heirs are absent and not repre- 
 sented, the seals, after the decease, must be 
 affixed by a judge or justice of the peace 
 within the limits of his jurisdiction, and 
 may be fixed by him either ex officio or at 
 the request of the parties. Civ. Code La. 
 art. 1070. The seals are affixed at the re- 
 quest of the parties when a widow, a testa- 
 mentary executor, or any other person who 
 pretends to have an interest in a succession 
 or community of property, requires it. Id. 
 art. 1071. They are affixed ex officio when the 
 presumptive heirs of the deceased do not 
 all reside in the place where he died, or if 
 any of them happen to be absent. Id. art. 
 1072. 
 
 The object of placing the seals on the 
 effects of a succession is for the purpose of 
 preserving them, and for the interest of 
 third- persons. Code Civ. La. art. 1068. 
 
 The seals must be placed on the bureaus, 
 coffers, armoires, and other things which 
 contain the effects and papers of the de- 
 ceased, and on the doors of the apartments 
 which contain these things, so that they 
 cannot be opened without tearing off, break- 
 ing, or altering the seals. Code Civ. La. art. 
 1069. 
 
 The judge or justice of the peace who 
 affixes the seals is bound to appoint a guard- 
 ian, at the expense of the succession, to take 
 
SEALED AND DELIVERED 
 
 (831) 
 
 SEARCH, RIGHT OF 
 
 care of the seals and of the effects, of 
 which an account is taken at the end of the 
 proces ver'bal of the affixing of the seals. 
 The guardian must be domiciliated In the 
 place where the inventory is taken. Code 
 Civ. La. art. 1079. And the judge, when he 
 retires, must take with him the keys of all 
 things and apartments upon which the seals 
 have been affixed. Id. 
 
 The raising of the seals is done by the 
 judge of the place, or justice of the peace 
 appointed by him to that effect, in the pres- 
 ence of the witnesses of the vicinage, in the 
 same manner as for the affixing of the seals. 
 Code Civ. La. art. 1084. 
 
 SEALED AND DELIVERED. In convey- 
 ancing. The common formula of attestation 
 of deeds and other instruments, written im 
 mediately over the witnesses' names. This 
 has been retained without change from the 
 old practice, when sealing alone, without 
 signing, constituted a sufficient execution or 
 authentication. 2 Bl. Comm. 306. See 15 
 Ohio, 107. 
 
 In England, it has been held that the 
 words "sealed and delivered," in an attesta- 
 tion, does not import signing. 5 Maule & 
 S. 581; 3 Maule & S. 512; 4 Taunt. 213. But 
 the contrary has recently been held in the 
 supreme court of the United States. 8 How. 
 (U. S.) 10, citing 6 Man. & G. 386. 
 
 SEALED INSTRUMENT. A writing, the 
 maker of which has affixed his seal, or that 
 which is the legal equivalent of a seal, in 
 addition to his signature. Formerly the seal 
 alone was sufficient if it identified the maker. 
 
 SEALING A VERDICT. In practice. The 
 putting a verdict in writing, and placing it 
 in an envelope, which is sealed. To relieve 
 jurors after they have agreed, it is not 
 unusual for the counsel to agree that the 
 jury shall seal their verdict and then sepa- 
 rate. When the court is again in session, 
 the jury come in and give their verdict in 
 all respects as if it had not been sealed; 
 and a juror may dissent from it if since the 
 sealing he has honestly changed his mind. 
 8 Ohio, 405; 1 Gilm. 333; 3 Bouv. Inst, note 
 3257. 
 
 SEAMAN. A sailor; a mariner; one whose 
 business is navigation. 2 Boul. P. Dr. Com. 
 232; Code de Commerce, art. 262; Laws of 
 Oleron, art. 7; Laws of Wisbuy, art. 19. 
 
 In a statute, it has been held to include 
 persons engaged in fresh-water navigation. 
 2 Pet. Adm. (U. S.) 268. 
 
 The term "seamen," in its most enlarged 
 sense, includes the captain as well as other 
 persons of the crew; in a more confined sig- 
 nification, it extends only to the common 
 sailors. 3 Pardessus, note 667. But the 
 mate (1 Pet. Adm. [U. S.] 246), the cook 
 and steward (2 Pet. Adm. [U. S.] 268), and 
 engineers, clerks, carpenters, firemen, deck 
 hands, porters, and chamber maids, on pas- 
 senger steamers, when necessary for the 
 service of the ship (1 Conkl. Adm. 107; 2 
 Pars. Mar. Law, 582; 1 Sumn. [U. S.] 170 1, 
 are considered, as to their rights to sue in 
 the admiralty, as common seamen; and per- 
 
 sons employed on board of steamboats and 
 lighters engaged in trade or commerce on 
 tide water are within the admiralty juris- 
 diction; while those employed in ferry- 
 boats are not (Gilp. Dlst. Ct. 203, 532). Per- 
 sons who do not contribute their aid in 
 navigating the vessel or to its preservation 
 in the course of their occupation, as mu- 
 sicians, are not to be considered as seamen, 
 with a right to sue in the admiralty for their 
 wages. Gilp. Dist. Ct. 516. See "Lien." 
 
 SEAMANSHIP. The skill of a good sea- 
 man; an acquaintance with the art of navi- 
 gating and managing a ship or other vessel. 
 
 SEARCH. 
 
 In Criminal Law. An examination of 
 
 a man's house, premises, or person, for the 
 purpose of discovering stolen or contraband 
 goods, or proof of his guilt in relation to 
 some crime or misdemeanor of which he is 
 accused. 
 
 The constitution of the United States 
 (Amend, art. 4) protects the people from 
 unreasonable searches and seizures. 3 
 Story, Const. § 1895; Rawle, Const, c. 10, p. 
 127; 10 Johns. (N. Y.) 263; 11 Johns. (N. 
 Y.) 500; 1 U. S. St. at Large, 651; 3 Cranch 
 (U. S.) 447. 
 
 In Practice. An examination made in 
 
 the proper lien office for mortgages, liens, 
 judgments, or other incumbrances against 
 real estate. The certificate given by the offi- 
 cer as to the result of such examination is 
 also called a "search." 
 
 Conveyancers and others who cause search- 
 es to be made ought to be very careful that 
 they should be correct with regard to the 
 time during which the person against whom 
 the search has been made owned the prem- 
 ises, to the property searched against, which 
 ought to be properly described, and to the 
 form of the certificate of search. 
 
 SEARCH, RIGHT OF. In international 
 law. The right existing in a belligerent to 
 examine and inspect the papers of a neutral 
 vessel at sea. On the continent of Europe 
 this is called the "right of visit." Dalloz, 
 "Prises Maritimes," notes 104-111. 
 
 The right does not extend to examine the 
 cargo, nor does it extend to a ship of war, it 
 being strictly confined to the searching of 
 merchant vessels. The exercise of the right 
 is to prevent the commerce of contraband 
 goods. Although frequently resisted by pow- 
 erful neutral nations, yet this right appears 
 now to be fixed beyond contravention. The 
 penalty for violently resisting this right is 
 the confiscation of the property so withheld 
 from visitation. Unless in extreme cases of 
 gross abuse of his right by a belligerent, the 
 neutral has no right to resist a search. 1 
 Kent, Comm. 154; 2 Brown, Civ. & Adm. 
 Law, 319. 
 
 The right of search — or rather of visita- 
 tion — in time of peace, especially in its con- 
 nection with the efforts of the British gov- 
 ernment for the suppression of the slave 
 trade, has been the subject of much dis- 
 cussion (Wheaton, Right of Search; Life of 
 General Cass [by Smith] cc. 25, 26; Web- 
 
SEARCH WARRANT 
 
 (832) 
 
 SECOND-HAND EVIDENCE 
 
 ster, Works, vol. 6, 329, 335, 338), and the 
 documents relating to tli,is subject communi- 
 cated to congress from time to time, and 
 most of the works on international law, may 
 be profitably examined by those who desire 
 to trace the history and understand the mer- 
 its of the questions involved in the proposed 
 exercise of this right. See, also, Edinburgh 
 Review, vol. 11, p. 9; Foreign Quarterly 
 Review, vol. 35, p. 211; 3 Phillim. Int. Law, 
 Index, tit. "Visit and Search." 
 
 SEARCH WARRANT. In practice. A war- 
 rant requiring the officer to whom it is ad- 
 .dressed to search a house, or other place, 
 therein specified, for property therein al- 
 leged to have been stolen, and, if the same 
 rshall be found upon such search, to bring the 
 goods so found, together with the body of 
 -the person occupying the same, who is 
 named, before the justice or other officer 
 granting the warrant, or some other justice 
 .of the peace, or other lawfully authorized 
 officer. 
 
 SEARCHER. In English law. An officer 
 of the customs, whose duty it is to examine 
 and search all ships outward bound, to as- 
 certain whether they have any prohibited 
 or uncustomed goods on board. 
 
 SEASHORE. That space of land on the 
 border of the sea which is alternately cov- 
 ered and left dry by the rising and falling 
 of the tide; or, in other words, that space 
 
 ..of land between high and low water mark. 
 Harg. Tr. 12; 6 Mass. 435, 439; 1 Pick. 
 (Mass.) 180, 182; 5 Day (Conn.) 22; 12 Me. 
 237; 2 Zab. (N. J.) 441; 27 Eng. 'Law & Eq. 
 242; 4 De Gex, M. & G. 206. See "Tide;" 
 
 -"Tide Water." 
 
 SEATED LANDS. In the early land leg- 
 islation' of some of the United States, "seat- 
 ed" is used, in connection with "improved," 
 -to denote lands of which actual possession 
 was taken. 5 Pet. (U. S.) 468. 
 
 SEAWEED. A species of grass which 
 grows in the sea. When cast upon land, it 
 belongs to the owner of the land adjoining 
 the seashore, upon the! grounds that it in- 
 creases gradually, that it is useful as mar 
 nure and a protection to the ground, and 
 that it is some compensation for the en- 
 -croachment of the sea upon the land. 2 
 Johns. (N. Y.) 313, 323. See 5 Vt. 223. 
 
 The French differs from our law in this 
 respect, as seaweeds there, when east on 
 -the beach, belong to the first occupant. Dal- 
 loz, "Propriete," art. 3, § 2, note 128. 
 
 SEAWORTHINESS. In maritime law. 
 ■The sufficiency of the vessel in materials, 
 construction, equipment, officers, men, and 
 outfit, for the trade or service in which it is 
 employed. 
 
 Any sort of disrepair left in the ship, by 
 which she or the cargo may suffer, is a 
 breach sf the warranty of seaworthiness. A 
 deficiency of force in the crew, or of skill in 
 the niaster, mate, etc., is a want of sea- 
 worthiness. 1 Canapb. 1; 14 East, 481; 4 
 Duer (N. Y.) 234. But If there was once a 
 
 sufficient crew, their temporary absence will 
 not be considered a breach of the warranty. 
 2 Barn. & Aid. 73; 1 Johns. Cas. (N. Y.) 
 184; 1 Pet. (U. S.) 183. A vessel may be 
 rendered not seaworthy by being overloaded. 
 2 Barn. & Aid. 320. 
 
 It can never be settled by positive rules 
 of law how far this obligation of seaworthi- 
 ness extends in any particular case, for the 
 reason that Improvements and changes In 
 the means and modes of navigation frequent- 
 ly require new implements, or new forms of 
 old ones; and these, though not necessary 
 at first, become so when there is an estab- 
 lished usage that all ships of ^ certain qual- 
 ity, or those to be sent on certain voyages, 
 or used for certain purposes, shall have 
 them. 2 Pars. Mar. Law, 134. Seaworthi- 
 ness is, therefore, in general, a question of 
 fact for the jury. Id. 137; 1 Pet. (U. S.) 170, 
 184; 1 Bouv. Inst. 441. ' 
 
 SEBASTOMANIA. In medical jurispru- 
 dence. Religious insanity; demonomania. 
 
 SECK. A want of remedV by distress. 
 Litt. § 218. See "Rent." Want of present 
 fruit or profit, as In the case of the rever- 
 sion without rent or other service, except 
 fealty. Co. Litt. 151b, note 5. 
 
 SECOND DELIVERANCE. In practice. 
 The name of a writ given by the statute of 
 Westminster II. (13 Edw. I. c. 2), founded 
 on the record of a former action of replevin. 
 2 Inst. 341. It commands the sheriff, if the 
 plaintiff make him secure of prosecuting his 
 claim and returning the chattels which were 
 adjudged to the defendant by reason of the 
 plaintiff's default, to make deliverance. On 
 being nonsuited, the plaintiff in replevin 
 might, at common law, have brought an- 
 other replevin, and so ad infinitum, to the 
 intolerable vexation of the defendant. The 
 statute of Westminster restrains the plain- 
 tiff, when nonsuited, from so doing, but al- 
 lows him this writ, issuing out of the orig- 
 inal record, in order to have the same dis- 
 tress delivered again to him, on his giving 
 the like security as before. 3 Bl. Comm. 
 150; Pitzh. Nat. Brev. 68. 
 
 SECOND DISTRESS. By 17 Car. IL c. 7, 
 
 § 4, In all cases where the value of the cat- 
 tle distrained shall not be found to be of 
 the full value of the arrears distrained for, 
 the party to whom such arrears are due, his 
 executors or administrators, may distrain 
 again for the said arrears; but a second dis- 
 tress cannot, it seems, be at all justified, 
 where there is enough which might have 
 been taken upon the first. If the distrainer 
 had then thought proper; for a man who 
 has an entire duty, as rent, for example, 
 shall not split the entire sum, and distrain 
 for one part of it at one time, and for the 
 other part of it at another time, and so 
 toties quoties for several times, for that 
 would be great oppression. Wharton. 
 
 SECOND-HAND EVIDENCE. Hearsay.be- 
 cause the facts were perceived or discov- 
 ered by some other than the witness testi- 
 fying or by an agency extraneous to that 
 producing the evidence offered. 
 
SECOND SGRCHARGE, WRIT OF (833) 
 
 SECT A AD MOLENDRlNtfM 
 
 §gCOND SURCHARGE, WRIT OF. The 
 
 ■pam§ pf a writ issued in England against 
 £i co^Bipner who has a second time sur- 
 ieharged fte common. 3 Bl. Comm. 239. 
 
 SECONDS, Assistants at a duel. They 
 are equally guilty with the principals under 
 many of the statutes against duelling. See 
 "Duelling." 
 
 SECONDARY. In English law. An officer 
 who is second or next to the chief officer; 
 as, secondaries to the prothonotaries of the 
 courts of kin'g's bench or common pleas; 
 secondary of the remembrancer in the ex- 
 ,chequer, etc. Jacob. 
 
 SECONDARY (or DERIVATIVE) CON- 
 veyances. Those which presuppose some 
 other conveyance precedent, and only serve 
 to enlarge, confirm, alter, restrain, restore, 
 or transfer the interest granted by such 
 priginal conveyance. 2 Bl. Comm. 324*. 
 
 SECONDARY EVIDENCE. That species 
 «f proof which is admissible on the loss of 
 primary evidence, and which becomes by 
 that event the best evidence. 3 Bouv. Inst, 
 note 3055. See "Evidence." 
 
 SECONDARY USE. A use limited to take 
 jsffect in derogation of a preceding estate, 
 otherwise called a "shifting use," as a con- 
 veyance to the use of A. and his heirs, with 
 a proviso that, when B. returns from India, 
 then to the use of C. and his heirs. 1 Steph. 
 Comm. 546. 
 
 SECRET COMMITTEE. A secret commit- 
 tee of the house of commons is a committee 
 specially appointed to investigate a certain 
 matter, and to which secrecy being deemed 
 necessary in furtherance of its objects, its 
 proceedings are conducted with closed doors, 
 to the exclusion of all persons not members 
 of the committee. All other committees are 
 open to members of the house, although they 
 piay not be serving upon them. Brown. 
 
 SECRET PARTNERSHIP. See "Partner." 
 
 SECRET TRUSTS. Where a testator gives 
 property to a person, on a verbal promise by 
 the legatee ^or devisee that he will hold it 
 in trust for another person, this is called 
 a "secret trust." The English rule is, that 
 if the secret trust would have been valid 
 as an express trust, it will be enforced 
 against the legatee or devisee, while if it 
 would have been invalid as an express trust, 
 e. g., by contravening the provisions of the 
 mortmain act, the gift fails altogether, so 
 that neither the devisee or legatee, nor the 
 object of the trust, takes any benefit by it. 
 Lewin, Trusts, 51; Watson, Comp. Eq. 54. 
 
 SECRETARY OF DECREES AND IN- 
 junctions. An officer of the English court of 
 chancery. The office was abolished by St. 15 
 & 16 Vict. c. 87, § 23. 
 
 SECRETARY OF LEGATION. An officer 
 employed to attend a foreign mission, and to 
 perform certain duties as clerk. 
 
 His salary Is fixed by the act of congress 
 
 of May 1, 1810 (section 1), at such a sum 
 as the president of the United States may 
 allow, not exceeding two thousand dollars. 
 
 The salary of a secretary of embassy, or 
 the secretary of a minister plenipotentiary, 
 is the same as that of a secretary of lega- 
 tion. 
 
 Private secretaries of a minister must not 
 be confounded with secretaries of embassy 
 or of legation. Such private secretaries are 
 entitled to protection only as belonging to 
 the suite of the ambassador. 
 
 The functions of a secretary of legation 
 consist in his employment by his minister 
 for objects of ceremony; in making verbal 
 reports to the secretary of state or other 
 foreign ministers; in taking care of the 
 archives of the mission; in ciphering and 
 deciphering despatches; in sometimes mak- 
 ing rough draughts of the notes or letters 
 which the minister writes to his colleagues 
 or to the local authorities; in drawing up 
 proces verltaux ; in presenting passports to 
 the minister for his signature, arid deliver- 
 ing them to the persons for whom they are 
 intended; and, finally, in assisting the min- 
 ister, under whom he is placed, in every- 
 thing concerning the affairs of the mission. 
 In the absence of the minister, he is ad- 
 mitted to conferences, and to present notes 
 signed by the minister. 
 
 SECTA (Lat. segnor, to follow). The per- 
 sons, two or more in number, whom the 
 plaintiff produced in court, in the ancient 
 form of proceedings, immediately upon mak- 
 ing his declaration, to confirm the allega- 
 tions therein, before they were called in 
 question by the defendant's plea. Bracton, 
 214a. The word appears to have been used 
 as denoting that these persons followed the 
 plaintiff into court; that is, came in a mat- 
 ter in which the plaintiff was the leader, or 
 one principally concerned. The actual pro- 
 duction of "suit" Was discontinued very 
 early (3 Bl. Comm. 295), but the formula 
 "et inde producit sectam" (for which, in 
 more modern pleadings, "and thereupon he 
 brings suit" is substituted) continued till 
 the abolition of the Latin form of pleadings 
 (Steph. PI. 429, 430). The count in dower 
 and writs of right did not so conclude, how- 
 ever. 1 Chit. PI. 399. A suit or action. 
 Hob. 20; Bracton, 399b. A suit of clothes. 
 Co well; Spelman. 
 
 SECTA AD CURIAM. A writ that lay 
 against him who refused to perform his suit 
 either to the county court or the court baron. 
 Cowell. 
 
 SECTA AD FURNUM. Suit due a public 
 bake house. 
 
 SECTA AD JUSTICIAM FACIENDAM. In 
 
 old English law. A service which a man is 
 bound to perform by his fee. 
 
 SECTA AD MOLENDRINUM. A service 
 arising from the usage, time out of mind, 
 of carrying corn to a particular mill to be 
 ground. 3 Bl. Comm. 235. A writ adapted 
 to the injury lay at the old law. FitzK. Nat 
 Brev. 123. 
 
SECTA AD TORRALE 
 
 (834) 
 
 SECURITY, ETC. 
 
 SECTA AD TORRALE. Suit due a man's 
 kiln or malt house. 3 Bl. Comm. 235. 
 
 SECTA CURIAE. Suit at court. The serv- 
 ice due from tenants to the lord of attend- 
 ing his courts baron, both to answer com- 
 plaints alleged against themselves, and for 
 the trial of their fellow tenants. 2 Bl. 
 Comm. 54. 
 
 SECTA EST PUGNACIVILIS; SICUT AC- 
 tores armantur actionibus, et quasi accin- 
 guntur gladiis, ita rei (e contra) muniuntur 
 exceptionibus, et defenduntur quasi clypeis. 
 
 A suit Is a civil battle, for as the plaintiffs 
 are armed with actions, and, as it were, girt 
 with swords, so, on the other hand, the de- 
 fendants are fortified with pleas, and de- 
 fended, as it were, by helmets. Hob. 20; 
 Braoton, 339b. 
 
 SECTA FACIENDA PER ILLAM QUAE 
 habet eniciam partem. A writ to compel the 
 heir, who has the elder's part of the co- 
 heirs, to perform suit and services for all 
 the coparceners. Reg. Orig. 177. 
 
 SECTA QUAE SCRIPTO NITITUR A 
 scripto variari non debet. A suit which re- 
 lies upon a writing ought not to vary from 
 the writing. Jenk. Cent. Cas. 65. i 
 
 SECTA REGALIS. A suit so called by 
 which all persons were bound twice in the 
 year to attend in the sheriff's tourn, in order 
 that they might be informed of things re- 
 lating to the public peace. It was so called 
 because the sheriff's tourn wus the king's 
 leet, and it was held in order that the 
 people might be bound by oath to bear true 
 allegiance to the king. Cowell. 
 
 SECTA UNICA TANTUiVI FACIENDA 
 pro pluribus haereditatibus. A writ for an 
 heir who was distrained by the lord to do 
 more suits than one, that he should be al- 
 lowed to do one suit only in respect of the 
 land of divers heirs descended to him. Cow- 
 eJl. 
 
 SECTATORES. Suitors of court who, 
 among the Saxons, gave their judgment or 
 verdict in civil suits upon the matter of 
 fact and' law. 1 Reeve, Hist. Bng. Law, 22. 
 
 SECTION. A division of land one mile 
 square, containing six hundred and forty 
 acres, estab'ished by the United States gov- 
 ernnient survey of the public domain. See 
 "Ra-ige;" "Township." 
 
 SECTION OF LAND. A parcel of govern- 
 ment land containing six hundred and forty 
 acres. The lands of the United States are 
 surveyed into parcels of six hundred and 
 forty acres; each such parcel is called a 
 "section." 
 
 These sections are divided into half-sec- 
 tions, each of which contains three hundred 
 and twenty acres, and into quarter-sections 
 of one hundred and sixty acres each. See 2 
 Washb. Real Prop. 
 
 SECTORES (Lat.) In Roman law. Bid- 
 ders at an auction. Bab. Auct. 2. 
 
 SECUNDUM. According to. 
 
 -Secundum Aequum et Bonum. 
 
 Ac- 
 
 cording to what is just and right. 
 
 'Secundum Allegata et Probata. Ac- 
 cording to that which is alleged and proved. 
 
 Secundum Consuetudinem Manerii. 
 
 According to the custom of the manor. 
 
 Secundum Formam Chartae. Accord- 
 ing to the form of the charter (deed). 
 
 Secundum Formam Doni. According 
 
 to the form of the gift or grant. See 
 "Pormedon." 
 
 Secundum Formam Statuti. Accord- 
 ing to the form of the statute. 
 
 Secundum Legem Communem. Ac- 
 cording to the common law. 
 
 Secundum Naturam est, Commoda 
 
 Cujusque rei eum Sequi, quern Sequentur In- 
 commoda. It is natural that he who bears 
 the charge of a thing should receive the 
 profits. Dig. 50. 17. 10. 
 
 Secundum Normam Legis. According 
 
 to the rule of law; by the rule of law. 
 
 Secundum Regulam. According to the 
 
 rule; by rule. 
 
 Secundum Subjectam Materiam. Ac- 
 cording to the subject matter. 1 Bl. Comm. 
 229. All agreements must be construed se- 
 Gund-um subjectam materiam, if the matter will 
 bear it. 2 Mod. 80, arg. Delivery must be 
 seound-um subjectam materiam. 2 Kent, Comm. 
 439. 
 
 SECURITAS. 
 
 In Old English Law. Security; surety. 
 
 In the Civil Law. An acquittance or 
 
 release. Spelman; Calv. Lex. 
 
 SECURITATEM INVENIENDI. An an- 
 cient writ, lying for the sovereign, against 
 any of his subjects, to stay them from going 
 out of the kingdom to foreign parts; the 
 ground whereof is that every man is bound 
 to serve and defend the commonwealth as 
 the crown shall think fit. Pitzh. Nat. Brev. 
 115. 
 
 SECURITATIS PACIS. In old English 
 law. Security of the peace. A writ that lay 
 for one who was threatened with death or 
 bodily harm by another, against him who 
 so threatened. Reg. Orig. 88. 
 
 SECURITY. That which renders a ma+ter 
 sure; an Instrument which renders more 
 certain the performance of a contract. Any- 
 thing that makes money more assured in its 
 nayment, or more readily recoverable, as 
 distinguished from a mere evidence of debt. 
 
 A person who becomes the surety for an- 
 other, or who engages himself for the per- ' 
 formance of another's contract. See 3 
 Blackf. (Ind.) 431. 
 
 SECURITY FOR COSTS. Security given 
 by a party to an action to pay any costs 
 which may be adjudged against him there- 
 in. 
 
 Such security is required by statute in 
 various cases, as on appeal, on the bringing 
 of suit by a nonresident, etc. 
 
 SECURITY FOR GOOD BEHAVIOR. Giv- 
 ing surety of the peace (q. v.) 
 
SECURIUS, ETC. 
 
 (833) 
 
 SEISIN 
 
 SECURIUS EXPEDIUNTUR NEGOTIA 
 commissa pluribus, et plus vident oculi quam 
 oculus. Business intrusted to several speeds 
 best, and several eyes see more than one 
 eye. 4 Coke, 46. 
 
 SECUS (Lat.) Otherwise. 
 
 SED NON ALLOCATUR (Lat. but it is not 
 allowed). A phrase used in the old reports 
 to signify that the court disagreed with the 
 arguments of counsel. "It was argued," etc., 
 "sed non allocatur." 
 
 SED PER CURIAM (Lat. but by the court). 
 An expression sometimes found in the re- 
 ports, after the opinion of a single judge, to 
 introduce that of the court which differs 
 from that of the single judge. 
 
 SED VIDE (Lat.) But see. 
 
 SEDERUNT, ACTS OF. In Scotch law. 
 Certain ancient ordinances of the court of 
 session, conferring upon the courts power 
 to establish general rules of practice. Bell, 
 Diet. 
 
 SEDITION. In criminal law. The raising 
 commotions or disturbances in the state. It 
 is a revolt against legitimate authority. 
 Ersk. Inst. 4. 4. 14; Dig. 49. 16. 3. § 19. 
 
 The distinction between "sedition" and 
 "treason" consists in this, that though the 
 ultimate object of sedition is a violation of 
 the public peace, or at least such a course 
 of measures as evidently engenders it, yet 
 it does not aim at direct and open violence 
 against the laws, or the subversion of the 
 constitution. Alls. Crim. Law. 580. 
 
 The obnoxious act of July 14, 1798 (1 
 Story, U. S. Laws, 543), was called the "se- 
 dition law," because its professed object 
 was to prevent disturbances. 
 
 In the Scotch law, sedition is either verbal 
 or real. Verbal is inferred from the utter- 
 ing of words tending to create discord be- 
 tween the king and his people; real sedi- 
 tion is generally committed by convocating 
 together any considerable number of people, 
 without lawful authority, under the pretense 
 of redressing some public grievance, to the 
 disturbing of the public peace. Ersk. Inst. 
 4. 4. 14. 
 
 SEDUCTION. 
 
 As a Tort. At common law, the act of 
 
 a man in inducing a woman to have unlawful 
 sexual intercourse with him. The use of se- 
 ductive arts was not essential. The woman 
 herself had no action for damages except in 
 case of a breach of a marriage promise, the 
 only civil remedy being that of her parent, 
 based on loss of services. 89 111. 543; 49 
 Mich. 540. 
 
 By statute in many states, the woman has 
 the right to sue in her own name, but such 
 statutes generally provide that the seduction 
 must be under promise of marriage, or by 
 seductive arts and devices. 
 
 As a Crime. The crime is statutory, 
 
 and consists generally in inducing an unmar- 
 ried female of previous chaste character to 
 Hiihtnit in Rpxnal intercourse by promise of 
 
 marriage, or, in some states, by other se- 
 ductive means. 
 
 "The exact amount or what kind of se- 
 ductive art is necessary to establish the 
 offense cannot be defined. Every case must 
 stand on its own peculiar circumstances, 
 together with the condition in life, advan- 
 tages, age, and intelligence of the parties." 
 32 Iowa, 262. The intercourse must be ac- 
 complished by artifice and deception, and 
 not by a yielding of the woman from mere 
 lust. 79 Ala. 14. 
 
 Where a promise of marriage is required, 
 it need not be valid, if it is believed by the 
 woman to be so. 26 N. Y. 203. The woman 
 must be induced by the promise to submit. 
 108 Ind. 406. 
 
 "No one can contend with any degree of 
 plausibility that a virtuous female can be 
 seduced without any of those arts, wiles, 
 and blandishments so necessary to win the 
 hearts of the weaker sex. To say that such 
 a one was seduced by simply a blunt offer 
 of wedlock in fuUiro, in exchange for sexual 
 favors in presenti is an announcement that 
 smacks too much of a bargain and barter, 
 and not enough of betrayal. This is hire 
 or salary, not seduction." 97 Mo. 668. 
 
 SEIGNIOR IN GROSS. A lord without a 
 manor, simply enjoying superiority and serv- 
 ices. 
 
 SEIGNIOR, or SEIGNEUR. Among the 
 feudists, this name signified lord of the fee. 
 Fitzh. Nat. Brev. 23. The most extended 
 signification of this word includes not only 
 a lord or peer of parliament, but is applied 
 to the owner or proprietor of a thing; hence 
 the owner of a hawk, and fhe master of a 
 fishing vessel, is called a "seigneur." 37 
 Edw. III. c. 19; Barr. Obs. St. 258. 
 
 SEIGNIORAGE. A royalty or prerogative 
 of the sovereign, whereby an allowance of 
 gold and silver, brought in the mass to be 
 9xchanged for coin, is claimed. 
 
 In the United States. The mint charge 
 
 for coining bullion. 
 
 SEIGNIORESS. A female superior. 
 
 SEIGNIORY. In English law. The rights; 
 of a lord, as such, in lands. Swinb. Wills, 
 
 174. 
 
 SEISED IN DEMESNE AS OF FEE. The 
 
 precise technical phrase to express a fee sim- 
 ple in possession in a corporeal heredita- 
 ment, the words "in demesne" signifying 
 that he is seised as owner of the land itself, 
 and not merely of the seigniory or services; 
 and the words "as of fee" importing that he 
 Is seised of an estate of inheritance in fee 
 simple. 2 Bl. Comm. 105; Steph. Comm. 22. 
 
 SEISI. In old English law. Seised; pos- 
 sessed. 
 
 SEISIN. The completion of the feudal in- 
 vestiture, by which the tenant was admitted 
 into the feud, and performed the rites of 
 homage and fealty. Stearns, Real Actions, 2. 
 
 Possession with an Intent on the part of 
 
SEISIN, LIVERY OF 
 
 (836) 
 
 SEMBLE 
 
 him who holds it to claim a freehold in- 
 terest. 8 N. H. 58; 1 Washb. Real Prop. 35. 
 
 Immediately upon the investiture or liv- 
 ery of seisin, the tenant became tenant of 
 the freehold; and the term "seisin" orig- 
 inally contained the idea of possession de- 
 rived from a superior lord of whom the ten- 
 ant held. There could be but one seisin, 
 and the person holding it was regarded for 
 the time as the rightful owner. Litt. § 701; 
 1 Spence, Eq. Jur. 136. In the early history 
 of the country, livery of seisin seems to 
 have been occasionally practiced. See 1 
 Washb. Real Prop. 34, note; Cc ony Laws 
 (Mass.) 85, 86; Smith, Land!. & Ven. (Mor- 
 ris Ed.) 6, note. 
 
 In Connecticut, Massachusetts, Pennsyl- 
 vania, and Ohio, seisin means merely "own- 
 ership," and the distinction between seisin 
 in deed and in law is not known in practice. 
 Walk. Am. Law, 324, 330; 4 Day (Conn.) 
 305; 4 Mass. 489; 14 Pick. (Mass.) 224; 6 
 Mete. (Mass.) 439. A patent by the common- 
 wealth, in Kentucky, gives a right of entry, 
 but not actual seisin. 3 Bibb (Ky.) 57. 
 
 Seisin in fact is possession with intent 
 on the part of him who holds it to claim a 
 freehold interest. 
 
 Seisin in law is a right of immediate pos- 
 session according to the nature of the estate. 
 Cowell; Comyn, Dig. "Seisin" (A 1, 2). See 
 "Livery of Seisin." 
 
 SEISIN, LIVERY OF. See "Livery of Sei- 
 sin." 
 
 SEISIN OX. In Scotch law. A perquisite 
 formerly due to the sheriff when he gave 
 possession to an heir holding crown lands. 
 It was long since converted into a payment 
 in money, proportioned to the value of the 
 estate. Bell, Diet. 
 
 SEISINA (Law Lat.) Seisin. 
 
 SEISINAFACITSTIPITEM. Seisin makes 
 the stock. 2 Bl. Comm. 209; Broom, Leg. 
 Max. (3d London Ed.) 466; 1 Steph. Comm. 
 367; 4 Kent, Comm. 388, 389; 13 Ga. 238. 
 
 SEISINA HABENDA. A writ for delivery 
 of seisin to the lord, of lands and tenements, 
 after the sovereign, in right of his preroga- 
 tive, had had the year, day, and waste on a 
 felony committed, etc. Reg. Orig. 165. 
 
 SEIZIN. See "Seisin." 
 
 SEIZING OF HERIOTS. Taking the best 
 beast, etc., where an heriot is due, on the 
 death of the tenant. 2 Bl. Comm. 422. 
 
 SEIZURE. In practice. The act of taking 
 possession of the property of a person con- 
 demned by the judgment of a competent 
 tribunal to pay a certain sum of money, by 
 a sheriff, constable, or other officer lawfully 
 authorized thereto, by virtue of an execu- 
 tion, for the purpose of having such prop- 
 erty sold according to law to satisfy the 
 judgment. The taking possession of goods 
 for a violation of a public law; as, the tak- 
 ing possession of a ship for attempting an 
 illicit trade. 2 Cranch (U. S.) 187; 4 
 Wheat. (U. S.) 100; 1 Gall. (U. S.) 75; 2 
 
 Wash. C. C. (U. S.) 127, 567; 6 Cow. (N. Y.) 
 
 404. 
 
 SELECTI JUDICES (Lat.) In Roman law. 
 Judges who were selected very much like 
 our juries. They were returned by the prae- 
 tor, drawn by lot, subject to be challenged 
 and sworn. 3 Bl. Comm. 366. 
 
 SELECTMEN. The name of certain town 
 officers in several states of the United States, 
 who are invested by the statutes of the 
 states with extensive powers for the con- 
 duct of the town business. 
 
 SELF-DEFENSE. The protection byforce 
 of one's person or property from unlawful 
 injury. The force used must be no more 
 than is reasonably necessary to repel the 
 threatened injury, and must be proportioned 
 to the nature of the injury apprehended. 
 Thus, an assault with the hand cannot be 
 repelled by the use of a deadly weapon. 77 
 Ind. 274; 34 Ohio St. 98. 
 
 As a general rule, an assault threatening 
 death or serious bodily injury, the Infliction 
 of which would amount to a felony, may be 
 resisted to the taking of life (29 Ohio St. 
 186; 8 Mich. 150), but not an assault which 
 is but a misdemeanor (2 N. Y. 193). 
 
 Unlawful injury to property may be re- 
 sisted by force short of the taking of life 
 (148 Mass. 529; 56 Vt. 703), but the taking 
 of life in defense of property is only justi- 
 fiable when it is necessary in order to pre- 
 vent a felony attempted by violence or sur- 
 prise, as burglary, robbery, or arson (4 Bl. 
 Comm. 180; 25 Grat. [Va.] 887; 31 Conn. 
 479), but not secret felonies, such as lar- 
 ceny (71 Ala. 330). 
 
 SELF-REGARDING EVIDENCE. Evidence 
 which either serves or disserves the party is 
 so called. This species of evidence is either 
 self-serving (whl<;h is not in general re- 
 ceivable), or self -disserving, which Is in- 
 variably receivable, as being an admission 
 against the party offering it, and that either 
 in court or out of court. Brown. 
 
 SELION OF LAND. A ridge of ground 
 rising between two furrows, containing no 
 certain quantity, but sometimes more and 
 sometimes less. Termes de la Ley. 
 
 SELLER. One who disposes of a thing in 
 consideration of money; a vendor. 
 
 This term is more usually applied In the 
 sale of chattels; that of "vendor" in the 
 sale of estates. See "Sale." 
 
 SEMAYNE'S CASE. This case decided, in 
 2 Jac. I., that "every man's house [meaning 
 his dwelling-house only] is his castle," and 
 that the defendant may not break open 
 outer doors in general, but only inner doors, 
 but that (after request made) he may break 
 open even outer doors to find goods of an- 
 other wrongfully in the house. Brown. 
 
 SEMBLE (Fr. it seems). A term frequent- 
 ly used before the statement of a point of 
 law which has not been directly settled, but 
 about which the court have expressed an 
 opinion, and intimated what a decision 
 would be. 
 
SEMEL CIVIS, ETC, 
 
 (837) 
 
 SENATUS, ETC. 
 
 SEMEL CIVIS SEMPER CIVIS. Once a 
 citizen always a citizen. Tray. Lat. Max. 
 555. 
 
 SEMEL MALUS SEMPER PRAESUMl- 
 tur esse malus in eodem genere. Whoever 
 "is once bad is presumed to be so always in 
 the same degree. Ore. Car. 317. 
 
 SEMESTRIA. In the civil law, the col- 
 lected decisions of the emperors in their 
 councils. 
 
 SEMESTRIS, or SEMESTRE (Lat. from 
 sex, six, and mensis, month). Of, or for six 
 months. Dig. 27. 1. 41; St. Westminster II. 
 c. 5; 2 Inst. 361. 
 
 SEMI-MATRIMONIUM (Lat.) In Roman 
 law. Half-marriage. Concubinage was so 
 called. Tayl. Civ. Law, 273. 
 
 SEMI-NAUFRAGIUM (Lat.) A term used 
 by Italian lawyers, which literally signifies 
 "half-shipwreck," and by which they under- 
 stand the jetsam, or casting merchandise 
 into the sea to prevent shipwreck. Locre, 
 Esp. du Code de Com. art. 409. The state of 
 a vessel which has been so much injured by 
 tempest or accident that to repair the dam- 
 ages, after being brought into port, and pre- 
 pare her for sea, would cost more than her 
 worth. 4 Bost. Law Rep. 120. 
 
 SEMI-PROOF. In civil law. Presumption 
 of fact. This degree of proof is thus defined: 
 "Vlon est ignorandum, probationem semi- 
 plenam earn esse, per quain rei gestae fides 
 aliqua fit judici; non tamen tanta ut jure 
 debeat in pronuncianda sententia earn sequi." 
 Mascardus, de Prob. vol. 1, quaest. 11, note 
 1, 4. 
 
 SEMPER (Lat.) Always. 
 
 SEMPER IN DUBIIS BENIGNIORA PRAE- 
 ferunda sunt. In dubious cases, the more 
 liberal constructions are always to be pre- 
 ferred. Dig. 50. 17. 56. 
 
 SEMPER IN DUBIIS ID AGENDUM EST, 
 ut quam tutissimo loco res sit bona fide con- 
 tracta, nisi quum aperte contra leges scrip- 
 turn est. Always, in doubtful cases, that is 
 to be done by which a bona fide contract may 
 be in the greatest safety, except when its 
 provisions are clearly contrary to law. Dig. 
 34. 5. 21. 
 
 SEMPER IN OBSCURIS QUOD MINI- 
 mum est sequimur (sequere). In obscure 
 cases we always follow that which is least. 
 Dig. 50. 17. 9; Broom, Leg. Max. (3d Lon- 
 don Ed.) 613, note; 3 C. B. 962. 
 
 SEMPER IN STIPULATIONIBUS ET IN 
 caeteris contractibus id sequimur quod ac- 
 tum est. In stipulations and other contracts 
 we always follow that which was done (i. e., 
 agreed). Dig. 50. 17. 34. 
 
 SEMPER ITA FIAT RELATIO UT VA- 
 leat dispositio. Let the reference always be 
 so made that the disposition may avail. 6 
 Coke, 76. 
 
 SEMPER NECESSITAS PROBANDI IN- 
 cumbit ei qui agit. The claimant is always, 
 bound to prove; the burden of proof lies on. 
 him. 
 
 SEMPER PARATUS (Lat. always ready). 
 In pleading. The name of a plea by which 
 the defendant alleges that he has always 
 been ready to perform what is demanded of 
 him. 3 Bl. Comm. 303. The same as tout 
 temps prist. 
 
 SEMPER PRAESUMITUR PRO LEGITI- 
 matione puerorum, et filiatio non potest pro 
 bari. Th^f presumption is always in favor ot 
 legitimacj', for filiation cannot be proved, 
 Co. Litt. 126. See 1 Bouv. Inst, note 303; 5 
 Coke, 98b. 
 
 SEMPER PRAESUMITUR PRO MATRI- 
 monio. The presumption is always in favor 
 of the validity of a marriage. 
 
 SEMPER PRAESUMITUR PRO NEGAN- 
 
 te. The presumption is always in favor of 
 the one who denies. See 10 Clark & F. 534; 
 3 Bl. & Bl. 723. 
 
 SEMPER PRAESUMITUR PRO SENTEN- 
 tia. Presumption is always in favor of the 
 sentence. 3 Bulst. 42. 
 
 SEMPER QUI NON PROHIBET PRO SE 
 intervenire, mandare creditur. He who does- 
 not prohibit the intervention of another in 
 his behalf Is supposed to authorize it. 2 
 Kent, Comm. 616; Dig. 14. 6. 16; Id. 43. 
 3. 12. 4. 
 
 SEMPER SEXUS MASCULINUS ETIAM 
 foemininum continet. The male sex always 
 includes the female. Dig. 32. 62. 
 
 SEMPER SPECIALIA GENERALIBUS 
 
 insunt. Special clauses are always com- 
 prised in general ones. Dig. 50. 17. 147. 
 
 SEN. This is said to be an ancient word 
 which signified "justice." Co. Litt. 61a. 
 
 SENATE. The name of the less numerous, 
 of the two bodies constituting the legisla- 
 tive branch of the gevernment of the United 
 States, and of the several states. 
 
 SENATOR. A member of a senate. 
 
 SENATORES SUNT PARTES CORPORIS 
 regis. Senators are part of the body of the 
 king. Staundf. 72 (E) ; 4 Inst. 53, in marg. 
 
 SENATORS OF THE COLLEGE OF jus- 
 tice. The judges of the court of session in 
 Scotland are so called. Act 1540, c. 93. 
 
 SENATUS CONSULTA. Ordinances (pub- 
 lic acts) of the Roman senate. 
 
 SENATUS CONSULTUM MARCIANUM 
 
 (Lat.) In the civil law. The Marcian de- 
 cree of the senate. A decree enacted in the 
 consulate of Quintus Marcius and Spurius 
 Postumus, in relation to the celebration of 
 the Bacchanalianv mysteries. This decree 
 has been preserved entire to the present day, 
 and is given in full by Dr. Taylor, with a 
 
SENATUS CONSULTUM, ETC. 
 
 (838) 
 
 SENTENTIA, ETC. 
 
 commentary abounding in curious learning. 
 Tayl. Civ. Law, 546-584. It was obtained 
 from a copper plate dug up about the year 
 1640, in the territories of J. Bapt. Cigala, 
 in the kingdom of Naples, and now in the 
 imperial library at Vienna. Id. 547. 
 
 SENATUS CONSULTUM ORFICIANUM 
 (Lat.) In the civil law. The Orfician de- 
 cree of the senate. A decree enacted in the 
 consulate of Orficius and Rufus, in the reign 
 of the Emperor Marcus Antonius, by which 
 children, both sons and daughters, were ad- 
 mitted to the inheritance of their intestate 
 mothers. Inst. 3. 4. pr. 
 
 SENATUS CONSILIUM PEGASIANUM 
 (Lat.) In the civil law. The Pegasian de- 
 cree of the senate. A decree enacted in the 
 consulship of Pegasus and Pusio, in the 
 reign of Vespasian, by which an heir, who 
 was requested to restore, an inheritance, was 
 allowed to retain one-fourth of it for him- 
 self. Inst. 2. 23. 5. This was declared by 
 Justinian to be superseded by the Senatus 
 Consultum Trebellianum. (q. v.) Id. 2. 23. 7; 
 Heinec. Blem. Jur. Civ. lib. 2, tit. 23, § 668. 
 
 SENATUS CONSULTUM TREBELLIAN- 
 
 um (Lat.) In the civil law. The Trebellian 
 decree of the senate. A decree enacted in 
 the consulate of Trebellius Maximus and 
 Annaeus Seneca, in the reign of Nero, by 
 which it was provided that, if an inheritance 
 was restored under a trust, all actions which, 
 by the civil law, might be brought by or 
 against the heir should be given to and 
 against him to whom the inheritance was 
 restored. Inst. 2. 23, 4; Dig. 36. 1. See the 
 words of the decree. Id. § 2. 
 
 SENATUS CONSULTUM ULTIMAE NE- 
 cessitatis (Lat.) A decree of the senate of 
 the last necessity. The name given to the 
 decree which usually preceded the nomina- 
 tion of a dictator. 1 Bl. Comm. 136. 
 
 SENATUS CONSULTUM VELLEIANUM 
 (Lat.) In the civil law. The Velleian de- 
 cree of the senate. A decree enacted in the 
 consulship of Velleius, by which married 
 women were prohibited from making con- 
 tracts. Dig. 16, 1; Story, ConH. Laws, § 425. 
 
 SENATUS DECRETA. In the civil law. 
 Decisions of the senate; private acts con- 
 cerning particular persons merely. 
 
 SENDA. In Spanish law. A path; the 
 right of a path; thfe right of foot or horse 
 path. White, New Recop. bk. 2, tit. 6, § 1. 
 
 SENESCHALLO ET MARESHALLO 
 quod non teneat placita de libero tenemento. 
 A writ addressed to the steward and mar- 
 shal of England, inhibiting them to take 
 cognizance of an action in their court that 
 concerns freehold. Reg. Orig. 185. Abol- 
 ished. 
 
 SENESCHALLUS (Lat.) A steward. Co. 
 Lltt. 61a. 
 
 ' SENILE DEMENTIA. A gradual impair- 
 ment of the mental faculties by reason of 
 
 physical decay and resulting in second child- 
 hood. 
 
 SENILITY. Old age; a state of mental 
 impairment resulting from old age. See 2 
 Johns. Ch. (N. Y.) 232. 
 
 SENIOR. The elder. This addition Is 
 sometimes made to a man's name, when two 
 persons bear the same, in order to distin- 
 guish them. In practice, when nothing is 
 mentioned, the senior is intended. 3 Miss. 
 59. 
 
 Used in reference to securities, convey- 
 ances, etc., it signifies first in point ot time. 
 
 SENORIO. 
 
 property. 
 
 In Spanish law. Dominion or 
 
 SENSU HONESTO. To interpret words 
 sensu honesto is to take them so as not to 
 impute impropriety to the persons concerned. 
 
 SENSUS VERBORUM EST ANIMA LE- 
 gls. The meaning of words is the spirit of 
 the law. 5 Coke, 2. 
 
 SENSUS VERBORUM EST DUPLEX, Ml- 
 tis et asper, et verba semper acclplenda sunt 
 in mitlore sensu. The meaning of words Is 
 twofold, mild and harsh; anfl words are to 
 be received in their milder sense. 4 Coke, 
 13. 
 
 SENSUS VERBORUM EX CAUSA DICEN- 
 di acclpiendus est, et sermones semper ac- 
 clpiendl sunt secundum subjectam materl- 
 ,am. The sense of words is to be taken from 
 the occasion of speaking them, and discours- 
 es are always to be interpreted according to 
 the subject matter. 4 Coke, 14. 
 
 SENTENCE. A judgment or judicial dec- 
 laration made by a judge in a cause. The 
 term "judgment" is more usually applied to 
 civil, and "sentence" to criminal, proceed- 
 ings. A sentence (in criminal proceedings) 
 is the order of court made in the presence 
 of the defendant, and entered of record, pro- 
 nouncing the judgment, and ordering the 
 same to be carried into execution in the 
 manner prescribed by law. Clark, Crim. 
 Law Tex. 580. 
 
 Sentences are final, when they put an end 
 to the case; or interlocutory, when they set- 
 tle only some incidental matter which has 
 arisen in the course of its progress. See 
 Aso & M. Inst. bk. 3, tit. 8, c. 1. 
 
 SENTENTIA (Lat.) In civil law. Sense; 
 import; as distinguished from mere words. 
 Calv. Lex. 
 
 The deliberate expression of one's will. 
 Tayl. Civ. Law, 532. 
 
 The sentence of a judge or court. Inst. 4. 
 11. 4. 
 
 SENTENTIA A NON JUDICE LATA NE- 
 minl debet nocere. A sentence pronounced 
 by one who is not a judge should not harm 
 any one. Fleta, lib. 6, c. 6, § 7. 
 
 SENTENTIA CONTRA MATRIMONIUM 
 nunquam transit in rem judicatam. A sen- 
 tence against marriage never passes into a 
 
 i 
 
SENTENTIA PACIT, ETC. 
 
 (839) 
 
 SEQUATUR, ETC. 
 
 judgment (conclusive upon the parties). 7 
 Coke, 43. 
 
 SENTENTIA FACIT JUS, ET LEGIS IN- 
 terpretatio legis vim obtinet. The sentence 
 makes the law, and the Interpretation has 
 the force of law. 
 
 SENTENTIA FACIT JUS, ET RES JUDl- 
 cata pro veritate accipltur. Judgment cre- 
 ates the right, and what is adjudicated is 
 taken for truth. EUesmere, Postn. 55. 
 
 SENTENTIA INTERLOCUTORIA REVO- 
 carl potest, diflnltiva non potest. An inter- 
 locutory sentence or order may be revoked, 
 but not a final. Bac. Max. reg. 20. 
 
 SENTENTIA NON FERTUR DE REBUS 
 non liquldis. Sentence is not given upon a 
 thing which is not clear. 
 
 SEPARALITER (Lat, separately). A word 
 sometimes used in indictments to show that 
 the defendants are charged separately with 
 offenses which, without the addition of this 
 word, would seem, from the form of the in- 
 dictment, to be charged jointly; as, for ex- 
 ample, when two persons are indicted to- 
 gether for perjury, and the indictment' states 
 that A. and B. came before a commissioner, 
 etc., this is alleging that they were both 
 guilty of the same crime, when by law their 
 crimes are distinct, and the indictnient is 
 vicious; but if the word sevaraliter is used, 
 then the affirmation is that each was guilty 
 of a separate offense. 2 Hale, P. C. 174. 
 
 SEPARATE ACKNOWLEDGMENT. A 
 married woman's acknowledgment of a deed, 
 taken apart and privately from her hus- 
 band. 
 
 SEPARATE DEMISE IN EJECTMENT. A 
 
 demise in a declaration in ejectment used to 
 be termed a "separate demise" when made 
 by the lessor separately or individually, as 
 distinguished from a demise made jointly 
 by two or more persons, which was termed 
 a "joint demise." No such demise, either 
 separate or joint. Is now necessary in this 
 action. Brown. 
 
 SEPARATE ESTATE. That which belongs 
 to one only of several persons; as, the sep- 
 arate estate of a partner, which does not be- 
 long to the partnership. 2 Bouv. Inst, note 
 1519. 
 
 The separate estate of a married woman 
 is that which belongs to her, and over which 
 her husband has no right in equity. It may 
 consist of lands or chattels. 4 Barb. (N. Y.) 
 407; 1 Const. (S. C.) 452; 4 Bouv. Inst, note 
 3996. 
 
 SEPARATE EXAMINATION. See "Sepa- 
 rate Acknowledgment." 
 
 SEPARATE MAINTENANCE. The main- 
 tenance of a woman by her husband on an 
 agreement to live separately. An allowance 
 made by a husband to his wife for her sepa- 
 rate support and maintenance. Bouvier. 
 See 2 Rop. Husb. & Wife, 267 et seq.; 2 
 Steph. Comm. 309. 
 
 SEPARATIM. In old conveyancing. Sev- 
 erally. A word which made a several cove- 
 nant. 5 Coke, 23a. , 
 
 SEPARATION. A cessation of cohabita- 
 tion of husband and wife by mutual agree- 
 ment. 
 
 SEPARATION A MENSA ET THORO. A 
 
 partial dissolution of the marriage relation. 
 
 By the ecclesiastical or canon law of Eng- 
 land, which had exclusive jurisdiction over 
 marriage and divorce, marriage was regard- 
 ed as a sacrament, and indissoluble. This 
 doctrine originated with the Church of Rome, 
 and became established in England while 
 that country was Catholic; and though, aft- 
 er the Reformation, it ceased to be the doc- 
 trine of the Church of England, yet the law 
 remained unchanged until the recent statute 
 of 20 & 21 Vict. (1857) c. 85. Bish. Mar. & 
 Div. §§ 274, 278. Hence, as has been seen 
 in the article on divorce, a valid marriage 
 could not be dissolved in England except by 
 what has been termed the "omnipotent pow- 
 er of parliament." 
 
 This gave rise, in the ecclesiastical courts, 
 to the practice of granting divorces "from 
 bed and board," as they used to be called, 
 or "judicial separation," as they are called in 
 20 & 21 Vict. c. 85, § 7. Bish. Mar. & Div. 
 §§ 277, 278. From England this practice 
 was introduced into this country; and 
 though in some of the states it has entirely 
 given way to the divorce o vinculo matri- 
 monii, in others it is still in use, being gen- 
 erally granted for causes which are not suf- 
 ficient to authorize the latter. See "Di- 
 vorce." 
 
 SEPARATION ORDER. In England, where 
 a husband is convicted of an aggravated as- 
 sault upon his wife, the court or magistrate 
 may order that the wife shall be no longer 
 bound to cohabit with him. Such an order 
 has the same effect as a judicial decree of 
 separation on the ground of cruelty. It may 
 also provide for the payment of a weekly 
 sum by the husband to the wife and for the 
 custody of the children. Sweet. 
 
 SEPARATISTS. Seceders from the Church 
 of England. They, like Quakers, solemnly 
 affirm. Instead of taking the usual oath, be- 
 fore they give evidence. See 3 & 4 Wm. IV. 
 c. 82. 
 
 SEPTUM. An inclosure; any place paled 
 in. Cowell. 
 
 SEPULCHRE. The place where a corpse 
 is buried. The violation of sepulchres is a 
 misdemeanor at common law. 
 
 SEPULTURA. An offering to the priest 
 for the burial of a dead body. 
 
 SEQUAMUR VESTIGIA PATRUM NOS- 
 trorum. Let us follow the footsteps of our 
 fathers. Jenk. Cent. Cas. 
 
 SEQUATUR SUB SUO PERICULO. A 
 
 writ that lay where a summons acL warranti- 
 zandum, was awarded, and the sheriff re- 
 turned that he had nothing whereby he 
 
Sequela 
 
 (840) 
 
 SERJEANTS-AT-LAW 
 
 might be summoned, then issued an alias 
 and a pluries, and if he came not in on the 
 plurie's, this writ issued. Old Nat. Brev. 
 163. 
 
 SEQUELA (Law Lat.) In old English law. 
 Suit; process or prosecution. Sequela cau- 
 sae, the process of a cause. Cowell. 
 
 SEQUELA CURIAE. 
 
 ell. See "Suit." 
 
 Suit of court. Cow- 
 
 SEQUELA VILLANORUM. The f a m i 1 y 
 retinue and appurtenances to the goods and 
 chattels of villeins, which were at the abso- 
 lute disposal of the lord. Par. Ant. 216. 
 
 SEQUELS. Small allowances of meal or 
 maniafactured victuals made to the servants 
 at a mill where corn was ground, by tenure, 
 in Scotland. See "Thirlage." 
 
 SEQUESTER. 
 
 In Civil and Ecclesiastical Law. To 
 
 renounce. Example: When a widow comes 
 into court and disclaims having, anything to 
 do or to intermeddle with her deceased hus- 
 band's estate, she is said to "sequester." Ja- 
 cob. 
 
 In Chancery Practice. To take posses- 
 sion under a writ of sequestration (g. v.) 
 
 SEQUESTRARI FACIAS. A writ issued 
 for the purpose of enforcing a judgment 
 against a beneficed clergyman when a fl. fa. 
 has been issued and returned nulla bona. 
 It commands the bishop of the diocese to en- 
 ter into the benefice, and sequester the rents, 
 tithes, and profits until the debt is satis- 
 'fied. The bishop executes the writ by issu- 
 ing a sequestration. Chit. Gen. Prac. 1284; 
 Daniell, Ch. Prac. 927; Smith, Actions (11th 
 Ed.) 397. See "Levari Facias;" "Writ." 
 
 SEQUESTRATIO. In the civil law. The 
 separating or setting aside of a thing in con- 
 troversy, from the possession of both parties 
 that contend for it. It is two-fold, — "volun- 
 tary," done by consent of all parties; and 
 "necessary," when a judge orders it. Brown. 
 
 SEQUESTRATION. 
 
 In Chancery Practice. A remedy by 
 
 writ for the taking of property, and the rents 
 and profits thereof, either to enforce a de- 
 cree, or to preserve the subject matter of 
 the suit. See 3 Bl. Comm. 444. The writ 
 issued sometimes to the sheriff, but usually 
 to four or more colnmissioners. 
 
 The remedy is now practically superseded 
 by receivership proceedings and kindred rem- 
 edies. See 6 Fed. 766; 11 Paige (N. Y.) 603. 
 
 In Contracts. A species of deposits 
 
 which two or more persons, engaged in liti- 
 gation about anything, make of the thing in 
 contest with an indifferent person, who 
 binds himself to restore it, when the issue is 
 decided, to the party to whom it is adjudged 
 to belong. Code La. art. 2942; Story, Ballm. 
 § 45. See 19 Viner, Abr. 325; 1 Vern. 58, 
 420; 2 Ves. Jr. 23. 
 
 In Louisiana. A mandate of the court, 
 
 ordering the sheriff, in certain cases, to take 
 into his possession, and to keep, a thing of 
 which another person has the possession, 
 
 until after the decision of a suit, in order 
 that it be delivered to him who shall be ad- 
 judged entitled to have the property or pos- 
 session of that thing. This is what Is prop- 
 erly called a "judicial sequestration." See 1 
 Mart. (La.) 79; 1 La. 439; Civ. Code La. 
 arts. 2941, 2948. 
 
 In this acceptation, the word "sequestra- 
 tion" does not mean a "judicial deposit," be- 
 cause sequestration may exist together with 
 the right of administration, while mere de- 
 posit does not admit it. 
 
 SEQUESTRATOR. One to whom a seq- 
 uestration is made. 
 
 A depositary of this kind cannot exoner- 
 ate himself from the care of the thing se- 
 questered in his hands, unless for some cause 
 rendering it indispensable that he should re- 
 sign his trust. Civ. Code La. art. 2947. See 
 "Stakeholder." 
 
 Officers appointed by a court of chancery, 
 and named in a writ of sequestration. As 
 to their powers and duties, see 2 Madd. Ch. 
 Prac. 205; Blake, Ch. Prac. 103. 
 
 SEQUESTRO HABENDO. In English ec- 
 clesiastical law. A judicial writ for the dis- 
 charging a sequestration of the profits of a 
 church benefice, granted by the bishop at 
 the sovereign's command, thereby to compel 
 the parson to appear at the suit of another. 
 Upon his appearance, the parson may have 
 this writ for the release of the sequestra- 
 tion. Reg. Jud. 36. 
 
 SEQUI DEBET POTENTIA JUSTITIAIVI, 
 non praecedere. Power should follow jus- 
 tice, not precede it. 2 Inst. 454. 
 
 SERF. In feudal law. A term applied to 
 a class of persons who were bound to per- 
 form very onerous duties towards others. 
 Poth. des Personnes, pt. 1, tit. 1, a. 6, § 4. 
 
 There is this essential difference between 
 a "serf" and a "slave:" The serf was bound 
 simply to labor on the soil where he was 
 born, without any right to go elsewhere 
 without the consent of his lord, but he was 
 free to act as he pleased in his daily ac- 
 tion; the slave, on the contrary, is the prop- 
 erty of his master, who may require him to 
 act as he pleases in every respect, and who 
 may sell him as a chattel. Lepage, c. 3, art. 
 2, § 2. 
 
 SERGEANT-AT-ARIVIS. An ofiicer appoint- 
 ed by a legislative body, whose duties are to 
 enforce the orders given by such bodies, gen- 
 erally under the warrant of its presiding of- 
 ficer. 
 
 SERIATIIVI (Lat.) In a series; severally; 
 as, the judges delivered their opinions seri- 
 atim. 
 
 SERJEANT OF THE IVIACE. In English 
 law. An officer who attends the lord mayor 
 of London, and the chief magistrates of oth- 
 er corporate towns. Holthouse. 
 
 SERJEANTS-AT-LAW. Averyancient and 
 the most honorable order of advocates at the 
 common law. 
 
 They were called, formerly, "countors," or 
 
SERJEANTS' INN 
 
 (841) 
 
 SERVIENT 
 
 "serjeant-countors," or "countors of the 
 bench" (in the old law Latin phrase, band 
 narratores) , and are mentioned by Matthew 
 Paris in the life of John II., written in 1255. 
 1?hey are limited to fifteen in number, in 
 addition to the judges of the courts of West- 
 minster, who are always admitted before be- 
 ing advanced to the bench. 
 
 The most valuable privilege formerly en- 
 joyed by the Serjeants was the monopoly of 
 the practice in the court of common pleas. 
 A bill was introduced into parliament for 
 the purpose of destroying this monopoly, in 
 1755, which did not pass. In 1834, a war- 
 rant under the sign manual was directed to 
 the judges of the common pleas, command- 
 ing them to open the court to the bar at 
 large. The order was received and complied 
 with. In 1839, the matter was brought be- 
 fore the court and decided to be illegal. 10 
 Bing. 571; 6 Bing. N. C. 187, 232, 235. St. 
 9 & 10 Vict. c. 54, has since extended the 
 privilege to all barristers. 3 Bl. Comm. 27, 
 note. 
 
 SERJEANTS' INN. The inn to which the 
 Serjeants at law belonged, near Chancery 
 Lane; formerly called "Faryndon Inn." 
 
 SERJEANTIA IDEM EST QUOD SERVIT- 
 ium. Serjeanty is the same as service. Co. 
 Litt. 105. 
 
 SERJEANTY. In English law. A species 
 of service which cannot be due or per- 
 formed from a tenant to any lord but the 
 king, and is either grand or petit serjeanty. 
 
 SERMO INDEX ANIMl. Speech is an in- 
 dex of the mind. 5 Coke, 118. 
 
 SERMO RELATA AD PERSONAM, IN- 
 telligi debet de conditione personae. A 
 speech relating to the person is to be under- 
 stood as relating to his condition. 4 Coke, 
 16. 
 
 SERMONES SEMPER ACCIPIENDI SUNT 
 secundum subjectam materiam, at condltio- 
 nem personarum. Language is always to be 
 understood according to its subject matter, 
 and the condition of the persons. 4 Coke, 
 14. 
 
 SERVAGE. In feudal law. Where a ten- 
 int, besides payment of a certain rent, found 
 'one or more workmen for his lord's service. 
 Tomlins. 
 
 SERVANDA EST CONSUETUDO LOCI 
 ubi causa agltur. The custom of the place 
 where the action is brought is to be ob- 
 served. 3 Johns. Ch. (N. Y.) 190, 219. 
 
 SERVI. Bondsmen, or servile tenants. 
 They were of four sorts: (1) Such as sold 
 themselves for a livelihood; (2) debtors sold 
 because they were unable to pay their debts; 
 (3) captives in war, retained and employed 
 as perfect slaves; (4) nativi, servants born 
 as such, solely belonging to the lord. There 
 were also said to be servi testamentales, 
 those which were afterwards called "cove- 
 nant servants." Cowell. 
 
 SERVI REDEMPTIONE. Criminal slaves 
 in the time of Henry I. 1 Kemble, Sax. 197 
 (1849). 
 
 SERVICE. 
 
 In Feudal Law. That duty which the 
 
 tenant owed to his lord by reason of his fee 
 or estate. 
 
 The services, in respect of their quality, 
 were either free or base, and in respect of 
 their quantity, and the time of exacting 
 them, were either certain or uncertain. 2: 
 Bl. Comm. 62. 
 
 In Civil Law. A servitude. 
 
 In Practice. The execution of a writ 
 
 or process. Thus, to serve a writ of capias 
 signifies to arrest a defendant under the 
 process (Kirby [Conn.] 48; 2 Aik. [Vt.] 338; 
 11 Mass. 181) ; to serve a summons is to de- 
 liver a copy of It at the house of the party, 
 or to deliver it to him personally, or to 
 read it to him. Notices and other papers 
 are served by delivering the same at the 
 house of the party, or to him in person. 
 
 Service of process is either (1) actual, or 
 (2) constructive; constructive service being 
 such as is by law conclusively presumed to 
 give notice, e. g., by publication or posting. 
 
 Actual service is either (a) personal, by 
 actual delivery of the process to the person 
 to be served, or (b) substituted, being by 
 such a disposition as the law deems to be 
 the equivalent of personal service, e. g., by 
 leaving at his dwelling house. 
 
 When the service of a writ is prevented by 
 the act of the party on whom it is to be 
 served, it will, in general, be sufficient if the 
 officer do everything in his power to serve 
 it. 1 Man. & G. 238. 
 
 SERVICE OF AN HEIR. By the former 
 law of Scotland, before an heir could regu- 
 larly acquire a right to the ancestor's es- 
 tate, he had to be served heir. See Bell, 
 Diet. 
 
 SERVICE, SECULAR. Worldly service, as 
 contrasted with spiritual or ecclesiastical. 
 Cowell. 
 
 SERVICES FONCIERS. These are in 
 French law the easements of English law. 
 
 SERVIDUMBRE. In Spanish law. A serv- 
 itude. The right and use which one man 
 has in the buildings and estates of another, 
 to use them for the benefit of his own. Las 
 Partidas, 3. 31. 1. 
 
 SERVIENS-AD-CLAVAM. A serjeant-at- 
 mace. 
 
 SERVIENS AD LEGEM. Sergeant-at-law. 
 
 SERVIENS DOMINI REGIS (Law Lat.) In 
 old English law. King's Serjeant; a public 
 officer, who acted sometimes as the sheriff's 
 deputy, and had also judicial powers. Brac- 
 ton, fols. 145b, 150b, 330, 358. 
 
 SERVIENT. In civil law. Aterm applied 
 to an estate or tenement by or in respect 
 of which a servitude is due to another es- 
 tate or tenement. See "Easement." 
 
SERVILE, ETC. 
 
 (842) 
 
 SERVITUS 
 
 SERVILE EST EXPILATIONIS CRIMEN; 
 sola innocentia libera. The crime of theft Is 
 slavish; innocence alone is free. 2 Inst. 
 573. 
 
 SERVITIA PERSONALIA SEQUUNTUR 
 personam. Personal services follow the per- 
 son. 2 Inst. 374; Fleta, lib. 3, c. 11, § 1. 
 
 SERVITUS ACQUIETANDIS. A Judicial 
 writ for a man distrained for services to 
 one, when he owes and performs them to 
 another, for the acquittal of such services. 
 Reg. Jud. 27. 
 
 SERVITIUM. In feudal and old English 
 law. The duty of obedience and perform- 
 ance which a tenant was bound to render to 
 his lord by reason of his fee. Spelman. See 
 Co. Litt. 65a. 
 
 SERVITIUM FEODALE ET PRAEDIALE. 
 A personal service, but due only by reason 
 of lands which were held in fee. Bracton, 
 lib. 2, c. 16. ' 
 
 SERVITIUM FORINSECUM. A service 
 due, not to the chief lord, but to the king. 
 
 SERVITIUM, IN LEGE ANGLIAE, REGU- 
 lariter accipitur pro servltio quod per tenen- 
 tes dominis suis debetur ratlone feodi sui. 
 
 Service, by the law of England, means the 
 service which is due from the tenants to the 
 lords b^ reason of their fee. Co. Litt. 65. 
 
 SERVITIUM INTRINSECUM. The ordi- 
 nary service due the chief lord from his ten- 
 ants. 
 
 SERVITIUM LIBERUM. A service to be 
 done by feudatory tenants, who were called 
 "Uberi homines," and distinguished from 
 vassals, as was their service, for they were 
 not bound to any of the base services of 
 plowing the lord's land, etc., but were to 
 find a man and horse, or go with the lord 
 into the army, or to attend the court, etc. 
 
 It was called, also, "servitium liberum ar- 
 morum." 
 
 SERVITIUM MILITARE. Knight service; 
 inilitary service. 2 Bl. Comm. 62. 
 
 SERVITIUM REGALE. Royal service, or 
 the rights and prerogatives that, within a 
 royal manor, belong to the lord of the same, 
 which were generally reckoned to be the fol- 
 lowing, viz.: Power of judicature, in mat- 
 ters of property, and of life and death, in 
 felonies and murder; a right to waifs and 
 strays; assessments; minting of money; and 
 assize of bread, beer, and weights and meas- 
 ures. Cowell. 
 
 SERVITIUM SCUTI. Service of the shield; 
 that is, knight service. 
 
 SERVITIUM SOKAE. Service of the plow; 
 that is, socage. 
 
 SERVITORS OF BILLS. Such servants or 
 messengers of the marshal belonging to the 
 king's bench as were heretofore sent abroad 
 with bills or writs to summon men to that 
 court, being now called "tipstaves." Blount; 
 2 Hen. IV. c. 23. 
 
 SERVITUDE. 
 
 In Civil Law. The subjection of one 
 
 person to another person, or of a person to 
 a thing, or of a thing to a person, or of a 
 thing to a thing. 
 
 A right which subjects a land or tenement 
 to some service for the use of another land 
 or tenement which belongs to another mas- 
 ter. Domat, Civ. Law (Cushing Ed.) § 1018. 
 
 (1) A mixed servitude is the subjection of 
 persons to things, or things to persons. 
 
 (2) A natural servitude is one which aris- 
 es in consequence of the natural condition or 
 situation of the soil. 
 
 (3) A personal servitude is the subjection 
 of one person to another. If it consists in 
 the right of property which a person exer- 
 cises over another, it is slavery. When the 
 subjection of one person to another is not 
 slavery, it consists simply in the right of re- 
 quiring of another what he is bound to do 
 or not to do. This right arises from all 
 kinds of contracts or quasi contracts. Lois 
 des Bat. p. 1, c. 1, art. 1. 
 
 (4) A real or predial servitude is a charge 
 laid on an estate, for the use and utility of 
 another estate belonging to another propri- 
 etor. Code La. art. 643. When used with- 
 out any adjunct, the word "servitude" means 
 a real or predial servitude. Lois des Bat. p. 
 1, 0. 1. Real servitudes are divided into ru- 
 ral and urban. 
 
 (a) Rural servitudes are those which are 
 due by an estate to another estate, such as 
 the right of passage over the serving estate, 
 or that which owes the servitude, or to draw 
 water from it, or to water cattle there, or 
 to take coal, lime, and wood from it, and the 
 like. 
 
 (b) Urban servitudes are those which are 
 established over a building for the conven- 
 ience of another, such as the right of rest- 
 ing the joists in the wall of the serving 
 building, of opening windows which over- 
 look the serving estate, and the like. Dalloz. 
 
 This term is used as a translation of the 
 Latin term servitus in the French and 
 Scotch law (Dalloz; Paterson, Comp.), and 
 by many common-law writers (3 Kent, 
 Comm. 434; Washb. Basem.), and in the 
 Civil Code of Louisiana. "Service" is used 
 by Wood, Taylor, Harris, Cowper, and Gush- 
 ing in his translation of Domat. Much of 
 the common-law doctrine of easements is 
 closely analogous to, and probably in part 
 derived from, the civil-law doctrine of serv- 
 itudes. 
 
 In Modern Law. Real servitudes are 
 
 known as "easements;" the term "servitude" 
 being used only in the sense of the burden 
 imposed by an easement. 
 
 SERVITUS (Lat.) In Roman law. Servi- 
 tude; slavery; a state of bondage; a dispo- 
 sition of the law of nations by which, 
 against common right, one man has been 
 subjected to the dominion of another. Inst. 
 1. 2. 3; Bracton, 4b; Co. Litt. 116. 
 
 A service or servitude; a burden Imposed 
 by law, or the agreement of parties, upon 
 one estate for the advantage of another, or 
 
SERVITUS, ETC. 
 
 (843) 
 
 SESSIONS OF THE PEACE 
 
 for the benefit of another person than the 
 owner. 
 
 Servitus actus, a right of way on horse- 
 hack or in a carriage. Inst. 2. 3. pr. 
 
 Servitus altius non tollendi, a servitude 
 preventing the owner of a house from build- 
 ing higher than his neighbor. Inst. 2. 3. 4; 
 Paterson, Comp. 
 
 Servitus aquae ducendae, a right of lead- 
 ing water to one's own land over that of 
 another. Inst. 2. 3. pr. 
 
 Servitus aquae educendae, a right of con- 
 ducting water from one's own land unto a 
 neighbor's. Dig. 8. 3. 29. 
 
 Servitus aquae hauriendae, a right of 
 drawing water from another's spring or well. 
 Inst. 2. 3. 2. 
 
 Seri-ltns cloacae mittendae, a right of hav- 
 ing a sewer through a neighbor's estate. Dig. 
 8. 1. 7. 
 
 Servitus fumi immittendi, a right of con- 
 ducting smoke or vapor through a neigh- 
 bor's chimney or over his ground. Dig. 8. 
 5. 8. 
 
 Servitus itineris, a right of way on horse- 
 back or in a carriage. This Includes a serv- 
 itus actus. Inst. 2. 3. 
 
 Servitus luminum, a right to have an 
 open place for receiving light into a cham- 
 ber or other room. Domat, 1. 1. 4; Dig. 8. 
 
 2. 4. 
 
 Serritus oneris ferendi, a servitude of sup- 
 porting a neighbor's building. 
 
 Servitus pascendi, a right of pasturing 
 one's cattle on another's land. Inst. 2. 3. 2. 
 
 Servitus pecoris ad aquam adpulsam, a 
 right of driving one's cattle on a neighbor's 
 land to water. 
 
 Servitus praedii rustici, a rural servitude. 
 
 Servitus praedii urhani, an urban servi- 
 tude. 
 
 Servitus praediorum, a servitude on one 
 estate for the benefit of another. See "Prae- 
 dia." 
 
 Servitus projiciendi, a right of building a 
 projection Into the open space belonging to 
 a neighbor. Dig. 8. 2. 2. 
 
 Servitus prospectus, a right of prospect. 
 Dig. 8. 2. 15. This may be either to give 
 one a free prospect over his neighbor's land, 
 or to prevent a neighbor from having a pros- 
 pect over one's own land. Domat, 1. 1. 6. 
 
 Servitus stillicidii, a right of having the 
 water drip from the eaves of one's house 
 upon a neighbor's house or ground. 
 
 Servitus tigni immittendi, a right of in- 
 serting beams in a neighbor's wall. Inst. 2. 
 
 3. 1. 4; Dig. 8. 2. 2. 
 
 Servitus viae, a right of way on foot or 
 horseback, or with a loaded beast or wagon, 
 over a neighbor's estate. Inst. 2. 3. 
 
 See, generally, Inst. 2. 3; Dig. 8. 2; Diet, 
 de Jur.; Domat, Civ. Law; Bell, Diet; 
 Washb. Easem. 
 
 SERVITUS EST CONSTITUTIO JURE 
 gentium qua quis domino alieno contra na- 
 turam subjicitur. Slavery is an institution 
 l?y the law of nations, by which a man is 
 subjected to the dominion of another, con- 
 trary to nature. Inst. 1. 3. 2; Co. Lltt. 116. 
 
 SERVITUS NE LUMINIBUS OFFICIA- 
 tur. A servitude not to hinder lights; the 
 right of having one's lights or windows un- 
 obstructed or darkened by a neighbor's 
 building, etc. Inst. 2. 3.. 4. 
 
 SERVITUS NE PROSPECTUS OFFEND- 
 atur. A servitude not to obstruct one's pros- 
 pect. Dig. 8. 2. 15. 
 
 SERVITUS TIGNI IMMITTENDI. The 
 
 servitude of letting in a beam; the right of 
 inserting beams in a neighbor's wall. Inst. 
 2. 3. 1. 4; Dig. 8. 2. 2. 
 
 SERVITUS VIAE. The servitude or right 
 of way; the right of walking, riding, and 
 driving over another's land. Inst. 2. 3. pr. 
 
 SERVUS. A slave. 
 
 SESS, or ASSESS. Rate or tax. 
 
 S ESS 10. A sitting; a session. Sessio par- 
 Uamenti, the sitting of parliament. Cowell. 
 
 SESSION. The time during which a legis- 
 lative body, a court, or other assembly sits 
 for the transaction of business; as, a ses- 
 sion of congress, which commences on the 
 day appointed by the constitution, and ends 
 when congress finally adjourns before the 
 commencement of the next session; the ses- 
 sion of a court, which commences at the day 
 appointed by law, and ends when the court 
 finally rises. A term. 
 
 SESSION COURT. See "Court of Session." 
 
 SESSION, GREAT, OF WALES. A court 
 which was abolished by St. 1 Wm. IV. c. 70. 
 The proceedings now issue out of the courts 
 at Westminster, and two of the judges of 
 the superior courts hold the circuits In 
 Wales and Cheshire, as in other English 
 counties. 
 
 SESSIONS. A sitting of justices In court 
 upon their commission, or by virtue of their 
 appointment, and most commonly for the 
 trial of criminal cases. The title of several 
 courts in England and the United States, 
 chiefly those of criminal jurisdiction. 
 
 SESSIONS OF THE PEACE. In English 
 law. Sittings of justices of the peace for 
 the execution of the powers which are con- 
 fided to them as such. 
 
 (1) Petty sessions (or petit sessions) are 
 sittings held by one or more justices for the 
 trial of minor offenses, admitting to ball 
 prisoners accused of felony, and the like 
 purposes. 
 
 When sitting for purposes of preliminary 
 inquiry, the public cannot claim admittance; 
 but it is otherwise when sitting for purposes 
 of adjudication. 
 
 (2) Special sessions are sittings of two or 
 more justices on a particular occasion for 
 the exercise of some given branch of their 
 authority, upon reasonable notice given to 
 the other magistrates of the hundred or oth- 
 er division of the county, city, etc., for which 
 they are convened. See St. 7 & 8 Vict. c. 33. 
 
 The counties are distributed Into divisions, 
 and authority given by various statutes to 
 
SESSIONAL ORDERS 
 
 (844) 
 
 SETTLEMENT 
 
 the justices acting for the several divisions 
 to transact different descriptions of business, 
 such as licensing alehouses, or appointing 
 overseers of the poor, surveyors of the high- 
 ways, etc., at special sessions. 3 Steph. 
 Comm. 43, 44. 
 
 (3) General sessions of the peace are 
 courts of record, holden before the justices, 
 whereof one is of the quorum, for execution 
 of the general authority given to the jus- 
 tices by the commission of the peace and 
 certain acts of parliament. 
 
 The only description of general sessions 
 now usually held is the court of general 
 quarter sessions of the peace; but in the 
 county of Middlesex, besides the four quar- 
 ter sessions, four general sessions are held 
 in the intervals, and original intermediate 
 sessions occasionally take place. They may 
 be called by any two justices in the juris- 
 diction, one being of the quorum, or by the 
 Gustos rotulorum and one justice, but not by 
 one justice or the custos rotulorum alone. 
 
 (4) General quarter sessions of the peace. 
 See "Court of General Quarter Sessions of 
 
 • the Peace." 
 
 SESSIONAL ORDERS. Certain resolu- 
 tions which' are agree'd to by both houses at 
 the commencement of every session of the 
 English parliament, and have relation to the 
 - business and convenience thereof; but they 
 are not intended to continue in force be- 
 yond the session in which they are adopted. 
 They are principally of use as directing the 
 order of business. Brown. 
 
 SET. This word appears to be nearly 
 synonymous with "lease." A lease of mines 
 is frequently termed a "mining set." Brown. 
 
 SET ASIDE. To annul; to make void; as, 
 to set aside an award. 
 
 "When proceedings are irregular, they may 
 be set aside on motion of the party whom 
 they injuriously affect. 
 
 SET OF EXCHANGE. The different parts 
 of a bill of exchange, taken together. Each 
 part is a perfect instrument by itself; but 
 the parts are numbered successively, and up- 
 on payment of any one, the others become 
 useless. See Chit. Bills (1836 Ed.) 175; 
 Pars. Notes & Bills. 
 
 SET-OFF. In practice. A demand, grow- 
 ing out of a distinct transaction, which a 
 defendant makes against the plaintiff in the 
 suit for the purpose of liquidating the whole 
 or a part of his claim. See 7 Pla. 329. 
 
 A set-off vas unknown to the common law, 
 according to which mutual debts were dis- 
 tinct, and Inextinguishable except by actual 
 payment or release. 1 Rawle (Pa.) 293; 
 Babington, Set-Off, 1. 
 
 St. 2 Geo. II. c. 22, which has been gen- 
 erally adopted in the United States, with 
 some modifications, in cases of mutual debts, 
 however, allowed the defendant to set his 
 debt against the other, either by pleading it 
 in bar, or giving it in evidence, when prop- 
 er notice had been given of such intention, 
 under the general issue. The statute, be- 
 ing made for the benefit of the defendant, 
 
 is not compulsory (8 Watts [Pa.] 39) ; the 
 defendant may waive his right, and bring a 
 cross action against the plaintiff (2 Campb. 
 594; 5 Taunt. 148; 9 Watts [Pa.] 179). 
 
 It seems, however, that in some cases of 
 intestate estates and of insolvent estates, 
 perhaps owing to the peculiar wording of the 
 law, the statute has been held to operate on 
 the rights of the parties before action 
 brought or an act done by either of them. 
 2 Rawle (Pa.) 293; 3 Bin. (Pa.) 135; Bac. 
 Abr. "Bankrupt" (K). See 7 Gray (Mass.) 
 191, 425. 
 
 Set-off takes place only in actions on con- 
 tracts for the payment of money; as, as- 
 sumpsit, debt, and covenant. A set-off is not 
 allowed in actions arising ex delicto; as, up- 
 on the case, trespass, replevin, or detinue. 
 Buller, N. P. 181; 4 B. D. Smith (N. Y.) 
 162. 
 
 The matters which may be set off may be 
 mutual liquidated debts or damages; but un- 
 liquidated damages cannot be set off. 3 
 Bosw. (N. Y.) 560; 34 Pa. St. 239; 34 Ala. 
 (N. S.) 659; 20 Tex. 31; 2 Head (Tenn.) 
 467; 2 Mete. (Ky.) 143; 3 Iowa, 163; 8 
 Iowa, 325; 1 Blackf. (Ind.) 394; 8 Conn. 
 325; 6 Halst. (N. J.) 397; 5 Wash. C. C. (U. 
 S.) 232. The statutes refer only to mutual 
 unconnected debts; for at common law, when 
 the nature of the employment, transaction, 
 or dealings necessarily constitutes an ac- 
 count consisting of receipts and payments, 
 debts and credits, the balance only is con- 
 sidered to be the debt, and therefore in an 
 action it is not necessary in such cases 
 either to plead or give notice of set-off. 4 
 Burrows, 2221. 
 
 Distinguished from counterclaim and re- 
 coupment. Counterclaim is a term of statu- 
 tory origin, and includes both set-off and re- 
 coupment, and something more. It embraces 
 all sorts of claims which a defendant may 
 have against a plaintiff in the nature of a 
 cross action or demand, or for which a cross 
 or separate action would lie. 13 How. Pr. 
 (N. Y.) 84. 
 
 In recoupment, the defendant's claim must 
 arise from the same transaction as the plain- 
 tiff's, and in this it is distinguished from 
 set-off, which must arise in a distinct claim. 
 See "Recoupment." 
 
 SETTER. In Scotch law. The grantor of 
 a tack or lease. 1 Forbes, Inst. pt. 2, p. 153. 
 
 SETTLEMENT. A residence under such 
 circumstances as to entitle a person to sup- 
 port or assistance in case of becoming a 
 pauper. 
 
 It is obtained in various ways, to wit: 
 By birth; by the legal settlenuent of the fa- 
 ther, in the case of minor children; by mar- 
 riage; by continued residence; by the pay- 
 ment of requisite taxes; by the lawful exer- 
 cise of a public office; by hiring and service 
 for a specified time; by serving an appren- 
 ticeship; and perhaps some others, which 
 depend upon the local statutes of the dif- 
 ferent states. See 1 Bl. Comm. 363; 1 Doug. 
 9; 6 Serg. & R. (Pa.) 103, 565; 10 Serg. & 
 R. (Pa.) 179. 
 
 In Contracts. An agreement by which 
 
SETTLEMENT, ACT OF 
 
 (845) 
 
 SEVERANCE 
 
 two or more persons who have dealings to- 
 gether so far arrange their accounts as to 
 ascertain the balance due from one to the 
 other; payment in full. 
 
 The conveyance of an estate for the ben- 
 efit of some person or persons. 
 
 See "Marriage Settlement." 
 
 SETTLEMENT, ACT OF. See "Act of Set- 
 tlement." 
 
 SETTLEMENT, DEED OF. A deed made 
 for the purpose of settling property, i. e., 
 arranging the mode and extent of the en- 
 joyment thereof. The party who settles 
 property is called the "settlor;" and usually 
 his wife and children or his creditors or his 
 near relations are the beneficiaries taking 
 interests under the settlement. 
 
 SETTLEMENT, EQUITY OF. 
 to a Settlement." 
 
 See "Equity 
 
 SETTLING DAY. The day on which trans- 
 actions for the "account" are made up on 
 the English stock exchange. In consols, they 
 are monthly; in other investments, twice in 
 the month. 
 
 SEVER. In practice. To separate; to in- 
 sist upon a plea distinct from that of other 
 codefendants. 
 
 SEVERAL. Separate; distinct. A several 
 agreement or covenant is one entered into 
 by two or more persons separately, each 
 binding himself for the whole; a several ac- 
 tion is one in which two or more persons are 
 separately charged; a several inheritance is 
 one conveyed so as to descend or come to 
 two persons separately by moieties. "Sever- 
 al" is usually opposed to "joint." 
 
 SEVERAL ACTIONS. Separate actions, 
 the opposite of "joint actions," in which the 
 plaintiffs combine their causes. See "Join- 
 der of Actions." 
 
 SEVERAL COUNTS. 
 
 dictment." 
 
 See "Count; 
 
 "In- 
 
 SEVERAL COVENANT. A covenant by 
 two or more, separately; a covenant made 
 so as to bind the parties to it severally or 
 individually. 
 
 SEVERAL DEMISES. Prior to the com- 
 mon-law procedure acts of 1852-1860, it was 
 necessary, in England, that the plaintiff in 
 ejectment should make a demise, and that 
 he should have the legal estate in him for 
 that purpose. Wherefore, in case of any 
 doubt whether the legal estate was in A., or 
 in B., or in C, It was usual, in framing the 
 declaration, to insert a demise by each, and 
 the declaration was then said to contain 
 several demises; but now no demise at all Is 
 necessary to an action of ejectment. See 
 "Ejectment." 
 
 SEVERAL FISHERY. A right to fish In 
 private water, either exclusively, or in con- 
 junction with the owner of the soil. 1 Kent, 
 Comm. 410, and note. 
 
 SEVERAL INHERITANCE. An inherit- 
 ance conveyed so as to descend to two per- 
 sons severally, by moieties, etc. 
 
 SEVERAL TAIL. An entail severally to 
 two; as, if land is given to two men and 
 their wives, and to the heirs of their bodies 
 begotten. Here the donees have a joint es- 
 tate for their two lives, and yet they have a 
 several inheritance, because the issue of the 
 one shall have his moiety, and the issue of 
 the other the other moiety. Cowell. 
 
 SEVERAL TENANCY. A tenancy which 
 is separate, and not held jointly with an- 
 other person. 
 
 SEVERALTY, ESTATE IN. An estate 
 which is held by the tenant in his own right 
 only, without any other being joined or con- 
 nected with him in point of interest during 
 the continuance of his estate. 2 Bl. Comm. 
 179; Cruise, Dig. 479, 480. 
 
 SEVERANCE. The separation of a part 
 of a thing from another; for example, the 
 separation of machinery from a mill is a 
 severance, and in that case the machinery, 
 which, while annexed to the mill, was real 
 estate, becomes by the severance personalty, 
 unless such severance be merely temporary. 
 8 Wend. (N. Y.) 587. 
 
 In Pleading. When an action is brought 
 
 in the name of several plaintiffs, in which 
 the plaintiffs must of necessity join, and 
 one or more of the persons so named do not 
 appear, or make default after appearance, 
 the other may have judgment of severance, 
 or, as it is technically called, judgment ad 
 seguendum solum. 
 
 But in personal actions, with the excep- 
 tion of those by executors, and of detinue 
 for charters, there can be no summons and 
 severance. Co. Lift. 139. 
 
 After severance, the party severed can 
 never be mentioned in the suit, nor derive 
 any advantage from it. 
 
 When there are several defendants, each 
 of them may use such plea as he may think 
 proper for his own defense; and they may 
 join in the same plea, or sever, at their dis- 
 cretion (Co. Lift. 303a), except, perhaps, in 
 the case of dilatory pleas (Hob. 245, 250). 
 But when the defendants have once united 
 in the plea, they cannot afterwards sever at 
 the rejoinder, or other later stage of the 
 pleading. See, generally, Brooke, Abr. 
 "Summ. and Sev."; 2 Rolle, 488; Archb. Civ. 
 PI. 59. 
 
 Of Estates. The destruction of any 
 
 one of the unities of a joint tenancy. It is 
 so called because the estate is no longer a 
 joint tenancy, but is severed. 
 
 A severance may be effected In various 
 ways, namely: By partition, which is either 
 voluntary or compulsory; by alienation of 
 one of the joint tenants, which tur^s the 
 estate into a tenancy in common; by the 
 purchase or descent of all the shares of the 
 joint tenants, so that the whole estate be- 
 comes vested in one only. Comyn, Dig. "Es- 
 tates by Grant" (K 5) ; 1 Bin. (Pa.) 175. 
 
SEWER 
 
 (846) 
 
 SHERIFF 
 
 SEWER (Law Lat. sewera, severa). A 
 fresli-water trench compassed in on both 
 sides with a bank. Callis, Sewers (80) 99. 
 Callis calls it "a small current or little riv- 
 er;" "a diminutive of a river;" "a common 
 public stream." Id. 100. A passage to carry 
 water into the sea or a river. Cowell. A 
 ditch or trench carried through marshy 
 places, to carry off the water. Spelman. 
 
 In its modern and more usual sense, a 
 sewer means an underground or covered 
 channel used for the drainage of two or 
 more separate buildings, as opposed to a 
 ''drain," which is a channel used for carry- 
 ing oif the drainage of one building or set 
 of buildings in one curtilage. See "Drain" 
 (2). 
 
 SEXTANS (Lat.) In the Roman law. A 
 subdivision of the as, containing two unciae; 
 the proportion of two-twelfths, or one-sixth. 
 Tayl. Civ. Law, 492; 2 Bl. Comm. 462, note. 
 
 SBXTERY LANDS. Lands given to a 
 church or religious house for maintenance 
 of a sexton or sacristan. Cowell. 
 
 SEXTUS DECRETALIUM. 
 
 cretal. 
 
 The sixth de- 
 
 SHACK, COMMON OF. The right of per- 
 sons occupying lands lying together in the 
 same common field to turn out their cattle 
 after harvest to feed promiscuously in such 
 field. 
 
 SHAM PLEA. One which is palpably false 
 in fact, though it be good in form. 
 
 SHARE. A portion of anything. Some- 
 times shares are equal; at other times they 
 are unequal. ^ 
 
 In companies and corporations, the whole 
 of the capital stock is usually divided into 
 equal portions, called "shares." See "Cap- 
 ital Stock." The proportion which descends 
 to one of several children from his ancestor 
 is called a "share." The term "share and 
 share alike" signifies in equal proportions. 
 
 SHARE AND SHARE ALIKE. In equal 
 shares or proportions, i 
 
 SHARE WARRANT. A share warrant to 
 bearer is a warrant or certificate under the 
 seal of the company, stating that the bearer 
 of the warrant is entitled to a certain num- 
 ber or amount of fully paid up shares or 
 stock. 
 
 SHARPING CORN. A customary gift of 
 corn, which, at every Christmas, the farmers 
 in some parts of England give to their smith 
 for sharpening their plow irons, harrow 
 tines, etc. Blount. 
 
 SHAVE. Sometimes used to denote the 
 act of obtaining the property of another by 
 oppression a"d extortion; but it also denotes 
 the buying of existing notes and other se- 
 curities for money, at a discount. 2 Denio 
 (N. Y.) 293, 300. 
 
 SHEADING. A riding, tithing, or division 
 in the Isle of Man, where the whole island 
 is divided into six sheadings, in each of 
 
 which there is a coroner or chief constable 
 appointed by a delivery of a rod at the Tine- 
 wald Court or annual convention. King, Isle 
 of Man, 7. 
 
 SHEEP SILVER. A service turned into 
 money, which was paid because anciently 
 the tenants used to wash the lord's sheep. 
 
 SHELLEY'S CASE, RULE IN. "When the 
 ancestor, by any gift or conveyance, taketh 
 an estate of freehold, and in the same gift 
 or conveyance an estate is limited, either 
 mediately or immediately, to his heirs in fee 
 or in tail, 'the heirs' are words of limita- 
 tion of the estate, and not words of pur- 
 chase." 1 Coke, 104. 
 
 This rule has been the subject of much 
 comment. It is given by Mr. Preston (1 
 Prest. Est. pp. 263-419) as follows: "When 
 a person takes an estate of freehold, legally 
 or equitably, under a deed, will, or other 
 writing, and in the same instrument there 
 is a limitation by way of remainder, either 
 with or without the interposition of another 
 estate, of the same legal or equitable qual- 
 ity, to his heirs, or heirs of his body, as a 
 class of persons to take in succession from 
 generation to generation, the limitation to 
 the heirs entitles the ancestor to the whole 
 estate." See 15 B. Mon. (Ky.) 282; Harg. 
 Tr. 489, 551; 2 Kent, Comm. 214. 
 
 If the limitation be to "heirs of the body," 
 he takes an estate tail; if to "heirs" gener- 
 ally, a fee simple. 1 Day (Conn.) 299; 2 
 Yeates (Pa.) 410. 
 
 It does not apply where the ancestor's es- 
 tate is equitable, and that of the heirs legal. 
 1 Curt. C. C. (U. S.) 419. 
 
 SHEPWAY, COURT OF. A court held be- 
 fore the lord warden of the Cinque Ports. 
 A writ of error lay from the mayor and ju- 
 rats of each port to the lord warden in this 
 court, and thence to the queen's bench. The 
 civil jurisdiction of the Cinque Ports was 
 abolished by 18 & 19 Vict. c. 48. 
 
 SHEREFFE. The body of the lordship of 
 Caerdiff in South Wales. Pow. Hist. Wal. 
 123. 
 
 SHERIFF (Sax. scijrc, shire, reve, keeper). 
 A county oflicer representing the executive 
 or administrative power of the state within 
 his county. 
 
 The ofllce 'is said by Camdeb to have been 
 created by Alfred when he divided England 
 into counties; but Lord Coke is of opinion 
 that it is of still greater antiquity, and that 
 it existed in the time of the Romans, being 
 the deputy of the earl {comes), to whom the 
 custody of the' shire was originally commit- 
 ted, and hence known as vice comes. Cam- 
 den, 156; Co. Litt. 168a; Dalton, Sheriff, 5. 
 
 The office was anciently of great dignity, 
 and conferred considerable judicial power. 1 
 Bl. Comm. 117; 3 Bl. Comm. 80. 
 
 In the United States, he is the chief peace 
 officer of the county, is the custodian of the 
 county jail, and executes the civil and crim- 
 inal process and mandates of the courts 
 within his county. 
 
SHERIFF CL15RK 
 
 (847) 
 
 SHIP MASTER 
 
 SHERIFF CLERK. The clerk of the sher- 
 iff's court in Scotland. 
 
 SHERIFF DEPUTE. In Scotch law. The 
 principal sheriff of a county, who is also a 
 judge. 
 
 SHERIFF GELD. A rent formerly paid by 
 a sheriff, and it is prayed that the sheriff 
 in his account may be discharged thereof. 
 Rot. Pari. 50 Edw. III. 
 
 SHERIFF TOOTH. In English law. A 
 tenure by the service of providing enter- 
 tainment for the sheriff at his county courts; 
 a common tax, formerly levied for the sher- 
 iff's diet. Wharton. 
 
 SHERIFF'S COURT. In Scotch law. A 
 court having an extensive civil and criminal 
 jurisdiction. 
 
 Its judgments and sentences are subject 
 to review by the court of session and court 
 of justiciary. Alls. Prac. 25; Paterson, Comp. 
 941, note. 
 
 SHERIFF'S COURT IN LONDON. A tri- 
 bunal having cognizance of personal actions 
 under the London (city) small debts act of 
 1852 (21 & 22 Vict. c. 157, § 3). See 11 & 
 12 Vict. c. 121; 15 & 16 Vict. c. 127; 18 & 
 19 Vict. c. 122, § 99; 20 & 21 Vict. c. 157. 
 
 The sheriff's court in London is one of 
 the chief of the courts of limited and local 
 jurisdiction in London. 3 Steph. Comm. 449, 
 note (1); 3 Bl. Comm. SO, note (j). 
 
 SHERIFF'S JURY. In practice. A jury 
 composed of no determinate number, but 
 which may be more or less than twelve, sum- 
 moned by the sheriff for the purposes of an 
 inquisition or inquest of offlce. 3 Bl. Comm. 
 258. 
 
 SHERIFF'S OFFICERS. Bailiffs, who are 
 either bailiffs of hundreds or bound bailiffs. 
 
 SHERIFF'S TOURN. A court of record 
 in England, held twice every year, within a 
 month after Easter and Michaelmas, before 
 the sheriff, in different parts of the county. 
 
 It is, indeed, only the turn or circuit of 
 the sheriff to keep a court leet in each re- 
 spective hundred. It is the great court leet 
 of the county, as the county court is the 
 court baron; for out of this, for the ease of 
 the sheriff, was taken the court leet or view 
 of frank pledge (g. v.) 4 Steph. Comm. 
 339; 4 Bl. Comm. 273. 
 
 SHERIFFALTY. The office of sheriff. 
 
 SHERIFFWICK. The jurisdiction of a 
 sheriff. Doctor & Stud, dial 2, c. 42, p. 232. 
 Called, in modern law, "bailiwick." The of- 
 fice of a sheriff. Pinch, Law, bk. 4, c. 25. 
 
 SHERRERIE. A word used by the au- 
 thorities of the Roman Church, to specify 
 contemptuously the technical parts of the 
 law, as administered by nonclerical lawyers. 
 Bac. Abr. 
 
 SHEWER. In the practice of the English 
 high court, when a view by a jury is or- 
 
 dered, persons are named by the court to 
 show the property to be viewed, and are 
 hence called "shewers." There is usually a 
 shewer on behalf of each party. Archb. 
 Prac. 339 et seq. 
 
 SHEWING. In English law. To be quit 
 of attachment in a court, in plaints shewed 
 and not avowed. Obsolete. 
 
 SHIFTING CLAUSE. A shifting clause in 
 a settlement is a clause by which some other 
 mode of devolution is substituted for that 
 primarily prescribed. Examples of shifting 
 clauses are: The ordinary name and arms 
 clause, and the clause of less frequent oc- 
 currence, by which a settled estate is des- 
 tined as the foundation of a second family, 
 in the event of the elder bi'anch becoming 
 otherwise enriched. 3 Dav. , Conv. 273. 
 These shifting clauses take effect under the 
 statute of uses. 
 
 SHIFTING USE. Such a use as takes ef- 
 fect in derogation of some other estate, and 
 is limited expressly by the deed, or is al- 
 lowed to be created by some person named 
 in the deed. Glib. Uses (Sugden Ed.) 152, 
 note; 2 Washb. Real Prop. 284. 
 
 For example, a feoffment in fee is made to 
 the use of W. and his heirs till A. pays £40 
 to W., and then to the use of A. and his 
 heirs. A very common application is in the 
 case of marriage settlements. Williams, 
 Real Prop. 243. The doctrine of shifting 
 uses furnished a means of evading the prin- 
 ciple of law that a fee could not be limited 
 after a fee. See 2 Washb. Real Prop. 284 
 et seq.; Williams. Real Prop. 242; 1 Spence, 
 Eq. Jur. 452; 1 Vern. 402; 1 Edw. Ch. 34; 
 Plowd. 25; Poll. 65. See "Use." 
 
 SHIP. A vessel employed in navigation; 
 for example, the terms the ship's papers, the 
 ship's husband, shipwreck, and the like, are 
 employed whether the vessel referred to be 
 a brig, a schooner, a sloop, or a three-masted 
 vessel. 
 
 A vessel with three masts, employed in 
 navigation. 4 Wash. C. C. (U. S.) 530; Wes- 
 kett, Ins. 514. The boats arid rigging (2 
 Marsh. Ins. 727), together with the anchors, 
 masts, cables, and such-like objects, are con- 
 sidered as part of the ship (Pardessus, note 
 599; Dig. 22. 2. 44). 
 
 SHIP BREAKING. In Scotch law. The 
 offense of breaking into a ship. Arkley, 461. 
 
 SHIP BROKER. One who transacts busi- 
 ness relating to vessels and their employ- 
 ment between the owners of vessels and mer- 
 chants who send cargoes. 
 
 SHIP DAMAGE. In the charter parties 
 with the English Bast India Company these 
 words occur. Their meaning is, damage 
 from negligence, insufficiency, or bad stow- 
 age in the ship. Doug. 272; Abb. Shipp. 
 204. 
 
 SHIP MASTER. The captain or master 
 of a ship. He controls and manages the 
 ship and cargo, and represents the owners 
 for certain purposes. 
 
SHIP MONEY 
 
 (848) 
 
 SHIRE GEMOT 
 
 SHIP MDNEY. a tax levied on ports, 
 towns, cities, boroughs, and counties to pro- 
 vide money for equipping the navy. It ex- 
 isted in England, and was finally abolished 
 in the reign of Charles I. after he had at- 
 tempted to restore it. This attempt, and 
 Hampden's resistance, was one cause which 
 led to the king's death. 
 
 SHIP'S HUSBAND. In maritime law. An 
 agent appointed by the owner of a ship, and 
 invested with authority to make the requi- 
 site repairs, and attend to the management, 
 equipment, and other concerns of the ship. 
 He is the general agent of the owners in 
 relation to the ship, and may be appointed 
 in writing or orally. He is usually, but not 
 necessarily, a part owner. 1 Pars. Mar. Law, 
 .97. He must see to the proper outfit of the 
 vessel in the repairs adequate to the voy- 
 age, and in the tackle and furniture neces- 
 sary for a seaworthy ship; must have a 
 proper master, mate, and crew for the ship, 
 so that in this respect it shall be seaworthy; 
 must see to the due furnishing of provisions 
 *and stores according to the necessities of 
 the voyage; must see to the regularity of 
 the clearances from the custom house, and 
 the regularity of the registry; must settle 
 the contracts, and provide for the payment 
 ■of the furnishings which are requisite to the 
 performance of those duties; must enter in- 
 to proper charter parties, or engage the ves- 
 sel for general freight under the usual con- 
 ditions, and settle for freight and adjust av- 
 erages with the merchant; and must pre- 
 serve the proper certificates, surveys, and 
 documents, in case of future disputes with 
 insurers and freighters, and to keep regular 
 books of the ship. Bell, Comm. § 428; 4 
 Barn. & Adol. 375; 13 East, 538; 1 Younge 
 & C. 326; 8 Wend. (N. Y.) 144; 16 Conn. 12. 
 These are his general powers; but of course 
 they may be limited or enlarged by the own- 
 ers; and it may be observed that, without 
 special authority, he cannot borrow money 
 generally for the use of the ship, though, as 
 above observed, he may settle the accounts 
 for furnishings, or grant bills for them, 
 which form debts against the concern, 
 whether or not he has funds in his hands 
 with which he might have paid them. 1 Bell, 
 Comm. § 499. Although he may, in general, 
 levy the freight which is by the bill of lad- 
 jilg payable on the delivery of the goods, it 
 would seem that he would not have power 
 to take bills for the freight, and give up the 
 possession of the lien over the cargo, unless 
 it has been so settled by the charter party. 
 He cannot insure or bind the owners for 
 premiums. 17 Me. 147; 2 Maule & S. 485; 
 13 East, 274; 7 B, Mon. (Ky.) 595; 11 Pick. 
 (Mass.) 85; 5 Burrows, 2627; Paley, Ag. 
 (Lloyd Ed.) 23, note 8; Abb. Shipp. pt. 1, 
 c. 3, § 2; Marsh, Ins. bk. 1, c. 8, § 2; Liver- 
 more, Ag. 72, 73. 
 
 As the power of the master to enter into 
 contracts of affreightment is superseded in 
 the port of the owners, so it is by the pres- 
 ence of the ship's husband, or the knowledge 
 of the contracting parties that a ship's hus- 
 band has been appointed. 2 Bell, Comm. 
 199. The ship's husband, as such, has no 
 
 lien on the vessel or proceeds. 2 Curt. C. C. 
 (U. S.) 427. 
 
 SHIP'S PAPERS. The papers or docu- 
 ments required for the manifestation of the 
 ownership and national character of a vessel 
 and her cargo, and to show her compliance 
 with the revenue and navigation laws of the 
 country to which she belongs. 
 
 The want of these papers or any of them 
 renders the character of a vessel suspicious 
 (2 Boul. P. Dr. Com. 14); and the use of 
 false or simulated papers frequently subjects 
 the vessel to confiscation (15 East, 46, 70, 
 364; Molloy, bk. 2, c. 2, § 9), or avoids an 
 insurance, unless the insurer has stipulated 
 that she may carry such papers (Id.) 
 
 A ship's papers are of two sorts: First, 
 those required by the law of the particular 
 country to which the ship belongs; as, the 
 certificate of registry or of enrollment, the 
 license, the crew list, the shipping articles, 
 clearance, etc.; and, second, such as are re- 
 quired by the law of nations to be on board 
 of neutral ships as evidence of their title to 
 that character; as, the sea brief or letter, 
 or passport, the proofs of property in the 
 ship, as bills of sale, etc., the charter party, 
 the bills of lading, the Invoices, the crew 
 list or muster roll, the log book, and the 
 bill of health. McCuUoch, Comm. Diet. 
 "Ship's Papers." See Glenn, Int. Law, Ap- 
 pend, p. 365, for a list of ship's papers re- 
 quired by the laws of various nations. 
 
 SHIPPER. The consignor of goods to a 
 ship or common carrier for transportation. 
 
 SHIPPING. A generic term for all marine 
 craft, and for the things and matters which 
 are incident to it. 
 
 SHIPPING ARTICLES. An agreement, in 
 writing or print, between the master and 
 seamen or mariners on board his vessel (ex- 
 cept such as shall be apprenticed or servant 
 to himself or owners), declaring the voyage 
 or voyages, term or terms of time, for which 
 such seamen or mariners shall be shipped. 
 It is also required that at the foot of every 
 such contract there shall be a memorandum, 
 in writing, of the day and the hour on 
 which each seaman or mariner who shall so 
 ship and subscribe shall render himself on 
 board to begin the voyage agreed upon. 
 
 SHIPWRECK. The loss of a vessel at sea, 
 either by being swallowed up by the waves, 
 by running against anoiuer vessel or thing 
 at sea, or on the coast. 
 
 SHIRE. In English law. A district or di- 
 vision of country. Co. Litt. 50a. 
 
 SHIRE CLERK. He that keeps the coun- 
 ty court. 
 
 SHIRE GEMOT (spelled, also, scire gemote, 
 scir gemot, scyre gemote, shire mote; from 
 the Saxon scir or scyre, county, shire, and 
 gemote, a court, an assembly). 
 
 The Saxon county court. 
 
 It was held twice a year before the bishop 
 and alderman of the shire, and was the prin- 
 cipal court. Spelman, "Gemotum;" Cun- 
 
SHIRE MAN 
 
 (849) 
 
 SI PLURES, ETC. 
 
 nlngham, "Shire;" Crabb, Hist. Eng. Law, guide, and everything will be in a state of 
 28. uncertainty to every one. Co. Litt. 227. 
 
 SHIRE MAN, or SCYRE MAN. Before the 
 Conquest, the judge of the county, by whom 
 trials for land, etc., were determined. 
 
 SHOP. A building in which goods and 
 merchandise are sold at retail. See "Stores." 
 
 SHOPA. In old records, a shop. Cowell. 
 
 SHORE (Lat. Utus, litt us). Land on the 
 margin of the sea, or a lake, or river. That 
 space of land which is alternately covered 
 and left dry by the rising and falling of the 
 tide; the space between high and low water 
 marks. Hale de Jur. Mar. par. 1, c. 6; An- 
 gell. Tide Waters, 67, c. 3. See "Seashore." 
 The shore of a fresh water river is where 
 the land and water ordfnarily meet. 6 Cow. 
 (N. Y.) 547. But this is more properly 
 called the "bank" {ripa). A river in which 
 the tide does not ebb and flow has no 
 "shores," in the legal sense of the term. 
 Walworth, C, i Hill (N. Y.) 375. And a 
 lake without tides cannot properly be said 
 to have a shore. Angell, Tide Waters, ubi 
 supra. And see 3 Grat. (Va.) 655; 13 How. 
 (U. S.) 391. 
 
 SHORT CAUSE. In English chancery 
 practice, and in a few of the United States, a 
 cause the trial of which will take but a 
 short time, and which may accordingly be 
 put on a special calendar for speedy trial. 
 See 8 Misc. Rep. (N. Y.) 94. 
 
 SHORT INTEREST. See "Gambling Con- 
 tract." 
 
 SHORT MARKET. See "Gambling Con- 
 tract." 
 
 SHORT NOTICE. In English practice. 
 Pour days' notice of trial. Wharton, "Notice 
 of Trial at Common Law;" 3 Chit. St. 148; 
 1 Cromp. & M. 499. Where short notice has 
 been given, two days is sufficient notice 
 of continuance. Wharton. 
 
 SHORT SELLING. See "Gambling Con- 
 tract." 
 
 SHORT SUMMONS. Process returnable 
 in a shorter time than the ordinary sum- 
 mons or writ. It exists in New York and 
 in other states. 
 
 SHOWING CAUSE. The presentation, on 
 
 a hearing appointed for that purpose, of 
 
 reasons and facts to control the action of 
 
 the court in respect to a certain specified or- 
 
 ' der or determination. 
 
 SHRIEVALTY. The office of sheriff; the 
 period of that office. 
 
 SHYSTER. A lawyer who conducts busi- 
 ness in a knavish or dishonest way. 
 
 SI. In Latin phrases. If. 
 
 SI A JURE DISCEDAS VAGUS ERIS, ET 
 erant omnia omnibus incerta. If you depart 
 from the law, you will wander without a 
 
 SI ALICUJUS REI SOCIETAS SIT, ET 
 
 finis negotio imposltus est, finitur societas. 
 If there is a partnership in any matter, and 
 the business is ended, the partnership 
 ceases. 16 Johns. (N. Y.) 438, 489. 
 
 SI ALIQUID EX SOLEMNIBUS DEFICI- 
 at, cum aequitas poscit subveniendum est. 
 If anything be wanting from required forms, 
 when equity requires, it will be aided. 1 
 Kent, Comm. 157. 
 
 SI ASSUETIS MEDERI POSSIS NOVA 
 non sunt tentanda. If you can be relieved 
 by accustomed remedies, new ones should 
 not be tried. 10 Coke, 142. 
 
 SI CONSTET DE PERSONA. If it be cer- 
 tain who is the' person meant. 
 
 SI CONTINGAT (Lat. if it happen). Words 
 of condition in old conveyances. 10 Coke, 
 42a. 
 
 SI INGRATUM DIXERIS, OMNIA DIX- 
 
 eris. If you affirm that one is ungrateful, in 
 that you include every charge. A Roman 
 maxim. Tray. Lat. Max. 
 
 SI ITA EST. If it be so. Emphatic words 
 in the old writ of mandamus to a judge, 
 commanding him, if the fact alleged be 
 truly stated (si ita est), to affix his seal to 
 a bill of exceptions. 5 Pet. (U. S.) 192. 
 
 SI JUDICAS, COGNOSCE. If you judge, 
 
 understand. 
 
 SI MELIORES SUNT QUOS DUCIT 
 amor, plures sunt quos corrigit timer. If 
 those are better who are led by love, those 
 are the greater number corrected by fear. 
 Co. Litt. 392. 
 
 SI NON APPAREAT QUID ACTUM EST 
 erit consequens, ut id sequamur quod in re- 
 gione in qua actum est, frequentatur. If it 
 does not appear what was agreed upon, the 
 consequence will be that we must follow 
 that which is the usage of the place where 
 the agreement was made. Dig. 50. 17. 34. 
 
 SI NON OMNES (Lat. if dll cannot). IH 
 English practice. A writ of association of 
 justices whereby, if all in commission can- 
 not meet at the day assigned, it is allowed 
 that two or more may proceed with the busi- 
 ness. Cowell; Pitzh. Nat. Brev. Ill (C), 
 186a; Reg. Grig. 202, 206. 
 
 SI NULLA SIT CONJECTURAQUAE DU- 
 cat alio, verba inteliigenda sunt ex proprie- 
 tate, non grammatica sed populari ex usu. 
 If there be no inference which leads to a 
 different result, words are to be understood 
 according to their proper meaning, not in a 
 grammatical, but in a popular and ordinary, 
 sense. 2 Kent, Comm. 555. 
 
 SI PLURES CONDITIONES ASCRIP- 
 tae fuerunt donationi conjunctim, omnibus 
 est parendum; et ad veritatem copulativa 
 requiritur quod utraque pars sit vera, si divl- 
 
SI PLURES SINT, ETC. 
 
 (850) 
 
 SIDESMEN 
 
 sim, cuilibet vel alter! eorum satis est ob- 
 temperare; et in disjunctivis, sufficit alte- 
 ram partem esse veram. If some conditions 
 are conjunctively written in a gift, the 
 whole of them must be complied with; and 
 with respect to their truth, it is necessary 
 that every part be true, taken jointly; If 
 the conditions are separate, it is sufficient 
 to comply with either one or other of them; 
 and being disjunctive, that one or the other 
 be true. Co. Litt. 225. 
 
 SI PLURES SINT Fl D E J USSO R ES, 
 quodquit erunt numero, singuli in solidum 
 tenentur. If there are more sureties than 
 i one, how many soever they shall be, they 
 shall each be held for the whole. Inst. 3. 
 21. 4; Id. 4. 116; 1 W. Bl. 388. 
 
 SI PR I US (Law Lat.) In old practice. If 
 before. Formal words in the old writs for 
 summoning juries. Fleta, lib. 2, c. 65, § 12. 
 
 SI QUID UNIVERSITATI DEBETUR SIN- 
 gulis non debtetur, nee quod debet, universi- 
 tas singuli debent. If anything is due to a 
 corporation, it is not due to the individual 
 members of it, nor do the members indi- 
 vidually owe what the corporation owes. 
 Dig, 3. 4. 7; 1 Bl. Comm. 484. 
 
 SI QUIDEM m NOMINE, COGNOMINE, 
 praenomine, agnomine legatarii enaverit; 
 cum de persona constat, nihihominus valet 
 legatum. If the testator has erred in the 
 name, cognomen, praenomen, or title of the 
 legatee, whenever the person is rendered 
 certain, the legacy is nevertheless valid. 
 Inst. 2. 20. 29; Broom, Leg. Max. (3d Lon- 
 \don Ed.) 574; 2 Domat, bk. 2, tit. 1, s. 6, 
 §§ 10, 19. 
 
 SI QUIS (Lat.) In the civil law. If any 
 one. Formal words in the praetorian edicts. 
 The word "quis," though masculine in form, 
 was held to include women. Dig. 50. 16. 1. 
 
 SI QUIS GUSTOS FRAUDEIVl PUPILLO 
 fecerit, a tutela removendus est. If a guard- 
 ian behave fraudulently to his ward, he 
 shall he removed from the guardianship. 
 Jenk. Cent. Cas. 39. 
 
 of a patent is false, the patent itself is void. 
 10 Coke, 113. 
 
 SI TE FECERIT SECURUM (Lat. If he- 
 make you secure). Words which occur in 
 the form of writs, which originally re- 
 quired, or still require, that the plaintiff 
 should give security to the sheriff that he 
 will prosecute his claim, before the sheriff 
 can be required to execute such writ. 
 
 . SIB (Saxon). A relative or kinsman. Used 
 in the Scotch tongue, but not now in Ene- 
 lish. 
 
 SIC (Lat.) Thus; so; in such manner. 
 
 SIC ENIM DEBERE QUEM IVIELIOREM 
 agrum suum facere, ne vicini deteriorem fa- 
 ciat. Every one ought so to improve his 
 land as not to injure his neighbor's. 3 Kent, 
 Comm. 441. 
 
 SIC INTERPRETANDUM EST UT VER- 
 
 ba accipiantur cum effectu. Such an inter- 
 pretation is to be made that the words may 
 have an effect. 3 Inst. 80. 
 
 SIC SUBSCRIBITUR (Lat.) In Scotch 
 practice. So it is subscribed. Formal words 
 at the end of depositions, immediately pre- 
 ceding the signature. 1 How. St. Tr. 1379. 
 
 SIC UTERE TUO UT ALIENUIVl NON 
 laedas. So use your own as not to injure 
 another's property. 1 Bl. Comm. 306; 
 Broom, Leg. Max. (3d London Ed.) 206, note, 
 246, 327, 332, 336, 340, 848, 353; 2 Bouv. 
 Inst, note 2379; 5 Bxch. 797; 12 Q. B. 739; 
 4 Adol. & E. 384; 15 Johns. (N. Y.) 218; 
 17 Johns. (N. Y.) 99; 17 Mass. 334; 4 Mc- 
 Cord (S. C.) 472; 9 Coke, 59. 
 
 SICH. A little current of water, which is 
 dry in summer; a water furrow or gutter. 
 Cowell. 
 
 SICIUS. A sort of money current among 
 the ancient English, of the value of 2d. 
 
 SICUT (Lat.) As. 
 
 SI QUIS PRAEGNANTEM UXOREIVI RE- 
 llquit, non videtur sine liberis decessisse. If 
 
 a man dies, leaving his wife pregnant, he 
 shall not be considered as having died child- 
 less. 
 
 SI QUIS UNUM PERCUSSERIT, CUM 
 alium percutere vellet, in felonia tenetur. If 
 a man kill one, meaning to kill another, 
 he is held guilty of felony. 3 Inst. 51. 
 
 SI RECOGNOSCAT (Lat. if he acknowl- 
 edge). In old practice. A writ which lay 
 for a creditor against his debtor for money 
 numbered (pecunia niimerata) or counted; 
 that is, a specific sum of money, which the 
 debtor had acknowledged in the county 
 court, to owe him, as received in pecuniis 
 numeratis. Cowell. 
 
 SI SUGGESTIO NON SIT VERA, LITE- 
 rae patentes vacuae sunt. If the suggestion 
 
 SICUT ALIAS. As at another time, or 
 heretofore. This was a second writ sent out 
 when the first was not executed. 
 
 SICUT ME DEUS ADJUVET (Lat.) So 
 help me God. Fleta, lib. 1, c. 18, § 4. 
 
 SICUT NATURA NIL FACIT PER SAL- 
 tum, ita nee lex. As nature does nothing 
 by a bound or leap, so neither does the law. 
 Co. Litt. 238. 
 
 SIDE. See "Plea Side.'- 
 
 SIDE-BAR RULES. In English practice. 
 Rules which were formerly moved for by 
 attorneys on the side bar of the court, but 
 now may be had of the clerk of the rules, 
 upon a praecipe. These rules are, that the 
 sheriff return his writ, that he bring in the 
 body, for special imparlance, to be present 
 at the taxing of costs, and the like. 
 
 SIDESMEN (testes, synodales) . In eccle- 
 siastical law. A kind of impanelled jury. 
 
 .:^^Muj, 
 
SIENS 
 
 (8S1) 
 
 SIMILITER 
 
 consisting of two, three, or more persons, In 
 every parish, who were, upon oath, to pre- 
 sent all heretics and irregular persons. In 
 process of time they became standing offi- 
 cers in many places, especially cities. They 
 were called "synodsmen," — by corruption, 
 "sidesmen;" also "questmen." But their of- 
 fice has become absorbed in that of church 
 warden. 1 Burn, Ecc. Law, 399. 
 
 SIENS. Scions or descendants. 
 
 SIERVO (Spanish). In Spanish law. A 
 slave. Las Partidas, pt. 4, tit. 21, lib. 1. 
 
 SIETE PARTIDAS (Spanish). Seven parts. 
 See "Las Partidas." 
 
 SIGHT. Presentment. Bills of exchange 
 are frequently drawn payable at sight, or a 
 certain number of days or months after 
 sight. 
 
 SIGILLUM (Lat.) A seal. 
 
 SIGILLUM EST CERA IMPRESSA, QUIA 
 cera sine impressione non est sigillum. A 
 seal is a piece of wax impressed, because 
 wax without an impression is not a seal. 3 
 Inst. 169. But see "Seal." 
 
 SIGLA (Lat.) In Roman law. Marks or 
 signs of abbreviation used in writing. Code, 
 1. 17. 11. 13. 
 
 SIGN. A token of anything; a note or 
 token given without words. 
 To make a signature (g. v.) 
 
 SIGN MANUAL. In English law. The 
 signature of the king to grants or letters 
 patent. Inscribed at the top. 2 Bl. Comm. 
 347*. 
 
 Any one's name written by himself. Web- 
 ster; Wharton. The sign manual is not good 
 unless countersigned, etc. 9 Mod. 54. 
 
 SIGN A (Lat.) In civil law. Those species 
 of indicia which come more immediately 
 under the cognizance of the senses; such as 
 stains of blood on the person of one ac- 
 cused of murder, indications of terror at 
 being charged with the offense, and the like. 
 
 Signa, although not to be rejected as in- 
 struments of evidence, cannot always be re- 
 lied upon as conclusive evidence, for they 
 are frequently explained away. In the in- 
 stance mentioned, the blood may have been 
 that of a beast; and expressions of terror 
 have been frequently manifested by inno- 
 cent persons who did not possess much 
 firmness. See Best, Pres. Ev. 13, note (f) ; 
 Denisart. 
 
 SIGNATORIUS ANNULUS (Lat.) In the 
 civil law. A signet ring; a seal ring. Dig. 
 50. 16. 74. 
 
 SIGNATURE. 
 
 In Ecclesiastical Law. The name of 
 
 a sort of rescript, without seal, containing 
 the supplication, the signature of the pope 
 or his delegate, and the grant of a pardon. 
 Diet. Dr. Canonique. 
 
 In Practice. By signature is under- 
 
 stood the act of putting down a man's name 
 at the end of an instrument, to adopt its 
 statements, or attest its validity. The name 
 thus written is also called a "signature." 
 
 It is not necessary that a party should 
 write his name himself, to constitute a sig- 
 nature. His mark is now held sufficient, 
 though he was able to write. 8 Adol. & B. 
 94; 3 Nev. & P. 228; 3 Curt. C. C. (U. S.) 
 752; 5 Johns. (N. Y.) 144. A signature 
 made by a party, another person guiding his 
 hand with his consent, is sufficient. 4 Wash. 
 C. C. (U. S.) 262, 269. 
 
 SIGNET. A seal commonly used for the 
 sign manual of the sovereign. Wharton. 
 The signet is also used for the purpose of 
 civil justice in Scotland. Bell, Diet. 
 
 SIGNIFICATION (Lat. sigituin, a sign, fa- 
 cere, to make). In French law. The notice 
 given of a decree, sentence, or other judicial 
 act. 
 
 SIGNIFICAVIT (Lat.) In ecclesiastical 
 law. When this word is used alone, it means 
 the bishop's certificate to the court of chan- 
 cery in order to obtain the writ of excom- 
 munication; but where the words lorit of 
 signiflcavit are used, the meaning is the 
 same as writ de excommunicato capiendo. 
 2 Burn, Bee. Law, 248; Shelf. Mar. & Div. 
 502. 
 
 SIGNING JUDGMENT. 
 
 In English Practice. The plaintiff or 
 
 defendant, when the cause has reached such 
 a stage that he is entitled to a judgment, 
 obtains the signature or allowance of the 
 proper officer; and this is called "signing 
 judgment," and is instead of the delivery 
 of judgment in open court. Steph. PI. 111. 
 It is the leave of the master of the office to 
 enter up judgment, and may be had in va- 
 cation. 3 Barn. & C. 317; Tidd, Prac. 616. 
 
 In American Practice. It is an actual 
 
 signing of the judgment on the record, by 
 the judge or other officer duly authorized. 
 Graham, Prac. 341. 
 
 SIGNUM (Lat.) 
 
 In the Roman and Civil Law. A sign; 
 
 a mark; a seal. The seal of an instrument. 
 Calv. Lex. ' 
 
 In the Saxon Law. The sign of a cross 
 
 prefixed as a sign of assent and approbation 
 to a charter or deed. 
 
 SILENT LEGES INTER ARMA. Laws are 
 silent amidst arms. 4 Inst. 70. 
 
 SILK GOWN. The professional robe worn 
 by those barristers who have been appointed 
 queen's counsel (g. v.) It is the distinctive ■ 
 badge of queen's or king's counsel. 
 
 SILVA CAEDUA (Lat.) By these words, 
 in England, is understood every sort of 
 wood, except gross wood of the age of twen- 
 ty years. Bac. Abr. "Tythes" (C). 
 
 SIMILITER (Lat. likewise). In pleading. 
 The plaintiff's reply that, as the defendant 
 has put himself upon the country, he, the- 
 plaintiff, does the like. It occurs only when 
 
 I 
 
SIMILITUDO, ETC. 
 
 (852) 
 
 SIMUL CUM 
 
 the plea has the conclusion to the country, 
 and its effect is to join the plaintiff in the 
 issue thus tendered by the defendant. Co. 
 Litt. 126a. The word similiter was the ef- 
 fective word when the proceedings were in 
 Latin. 1 Chit. PI. 519; Archb. Civ. PI. 250. 
 See Steph. PI. 255; 2 Saund. 319b; Cowp. 
 407; 1 Strange, 551; 11 Serg. & R. (Pa.) 32. 
 
 SIMILITUDO LEGALIS EST, CASUUM 
 diversorum inter se collatorum similis ratio; 
 quod in uno similium valet, valebit in altero. 
 Dissinnilium, dissimilis est ratio. Legal sim- 
 ilarity is a similar req,son which governs 
 various cases when compa,red with each 
 other, for what avails in one similar case 
 will avail in the other. Of things dissimilar, 
 the reason is dissimilar. Co. Litt. 191. 
 
 SIMONIA EST VOLUNTAS SIVE DESl- 
 derium emendi vel vendendi spiritualia vel 
 spiritualibus adhaerentia. Contractus ex 
 turpi causa et contra bonos mores. Simony 
 is the will or desire of buying or selling 
 spiritualities, or things pertaining thereto. 
 It is a contract founded on a bad cause, and 
 against morality. Hob. 167. 
 
 SlIVIONY. In ecclesiastical law. The sell- 
 ing and buying of holy orders or an eccle- 
 siastical benefice. Bac. Abr. By "simony" 
 is also understood an unlawful agreement 
 to receive a temporal reward for something 
 holy or spiritual. Code, 1. 3. 31; AylifEe, 
 Par. 496. 
 
 SIMPLE AVERAGE. Particular average 
 (q. V.) 
 
 SIMPLE CONTRACT. A contract the evi- 
 dence of which is merely oral or in writing, 
 not under seal nor of record. 1 Chit. Cont. 
 1; 1 Chit. PI. 88. And see 11 Mass. 30; 11 
 East, 312; 4 Barn. & Aid. 588; 3 Starkie, 
 Ev. 995; 2 Bl. Comm. 472. 
 
 SIMPLE DEPOSIT. A deposit made, ac- 
 cording to the civil law, by one or more per- 
 sons having a common interest. 
 
 SIMPLE LARCENY. The felonious taking 
 and carrying away the personal goods of 
 another, unattended by acts of violence. It 
 is distinguished from "compound larceny," 
 which is stealing from the person or with 
 violence. See "Larceny." 
 
 SIMPLE OBLIGATION. An unconditional 
 obligation; one which is to 'be performed 
 without depending upon any event provided 
 by the parties to it. 
 
 SIMPLE TRUST. A simple or passive 
 trust corresponds with the ancient use, and 
 is where property is simply vested in one 
 person for the use of another, and the nature 
 of the trust, not being qualified by the set- 
 tler, is left to the construction of law. It 
 differs from a "special trust," in that the 
 trustee performs no duty. 7 Watts & S. 
 (Pa.) 25; 2 Bouv. Inst, note 1896. See 
 "Trust." 
 
 SIMPLE WARRANDICE. In Scotch law. 
 An obligation to warrant or secure from all 
 
 subsequent or future deeds of the grantor. 
 Whishaw. A simple warranty against the 
 grantor's own acts. 
 
 SIMPLEX (Lat.) Simple or single; as, 
 charta simplex is a deed poll or single deed. 
 Jacob. 
 
 SIMPLEX BENEFICIUM. In ecclesiastic- 
 al law. A minor dignity in a cathedral or 
 collegiate church, or any other ecclesiastical 
 benefice, as distinguished from a cure of 
 souls. It may therefore be held with any 
 parochial cure, without coming under the 
 prohibitions against pluralities. 
 
 SIMPLEX COMMENDATIO NON OBLI- 
 gat. A simple recommendation does not 
 bind. Dig. 4. 3. 37; 2 Kent, Comm. 485; 
 Broom, Leg. Max. (3d London Ed.) 700' 4 
 Taunt. 488; 16 Q. B. 282, 283; Cro. Jac' 4- 
 5 Johns. (N. Y.) 354; 4 Barb. (N. Y.) 95. 
 
 SIMPLEX DICTUM. In old English prac- 
 tice. Simple averment; mere assertion 
 without proof. Bracton, fol. 320. 
 
 SIMPLEX ET PURA DONATIO DICI PO- 
 terit, ubi nulla est adjecta conditio nee 
 modus. A gift is said to be pure and simple 
 when no condition or qualification is an- 
 nexed. Bracton, 1. 
 
 SIMPLEX JUSTITIARIUS (Law Lat.) In 
 old records. Simple justice. A name some- 
 times given to a puisne justice. Cowell. 
 
 SIMPLEX LOQUELA. In old English 
 practice. Simple speech; the mere declara- 
 tion or plaint of a plaintiff. Called in Fleta, 
 simplex vox. Lib. 2, c. 63,- § 9. 
 
 SIMPLEX OBLIGATIO. A single obliga- 
 tion; a bond without a condition. 2 Bl 
 Comm. 340. 
 
 SIMPLEX PEREGRINATIO (Law Lat.) In 
 
 old English law. Simple pilgrimage. Fleta 
 lib. 4, c. 2, § 2. 
 
 SIMPLICITAS EST LEGIBUS AMICA, ET 
 nimia subtilitas in jure reprobatur. Simplic- 
 ity is favorable to the law, and too much 
 subtlety is blameworthy in law. 4 Coke, 8. 
 
 SIMPLICITER (Lat.) Simply; without 
 ceremony; in a summary manner. 
 
 SIMUL CUM (Lat. together with). In 
 pleading. Words used in indictments and 
 declarations of trespass against several per- 
 sons, when some of them are known and 
 others are unknown. 
 
 In cases of riots, it is usual to charge that 
 A. B., together with others unknown, did 
 the act complained of. • 2 Chit. Crim. Law 
 488; 2 Salk. 593. 
 
 When a party sued with another pleads 
 separately, the plea is generally entitled in 
 the name of the person pleading, adding, 
 
 "sued with ," naming the other party! 
 
 When this occurred, it was, in the old 
 phraseology, called pleading with a simul 
 
SIMUL ET SEMEL 
 
 (853) 
 
 SITTINGS IN BANK 
 
 SIMUL ET SEMEL (Lat.) Together and 
 at one time. Fleta, lib. 2, c. 47, § 5; 1 
 Saund. 323a, note (6). 
 
 SIMULATED FACT. In the law of evi- 
 dence. A fabricated fact; an appearance 
 given ,to things by human device, with a 
 view to deceive and mislead. Burrill, Circ. 
 Ev. 131. 
 
 SIMULATIO LATENS. A species of feign- 
 ed disease, in which disease is actually pres- 
 ent, but where the symptoms are falsely ag- 
 gravated, and greater sickness is pretended 
 than really exists. Beck, Med. Jur. 3. 
 
 SIMULTATION (Lat. «(W«J, together). In 
 French law. The concert or agreement of 
 two or more persons to give to one thing the 
 appearance of another, for the purpose of 
 fraud. Merlin, Repert. 
 
 With us, such act might be punished by 
 indictment for a conspiracy, by avoiding the 
 pretended contract, or by action to recover 
 back the money or property which may have 
 been thus fraudulently obtained. 
 
 SINE (Lat.) Without. 
 
 SINE ANIMO REVERTENDI. Without the 
 intention of returning. 
 
 SINE ASSENSU CAPITULI (Lat. without 
 the consent of the chapter). In old English 
 , practice. A writ which lay where a dean, 
 bishop, prebendary, abbot, prior, or master 
 of a hospital aliened the lands holden in 
 the right of his house, abbey, or priory, 
 without the consent of the chapter; in 
 which case his successor might have this 
 writ. Fitzh. Nat. Brev. 195. 
 
 SINE CONSIDERATIONE CURIAE (Lat.) 
 Without the judgment of the court. 
 
 SINE DECRETO (Lat.) Without author- 
 ity of a judge. 2 Kames, Bq. 115. 
 
 SINE DIE (Lat.) Without day. A judg- 
 ment for a defendant in many cases is quod 
 eat sine die, that he may go without day. 
 While the cause is pending and undeter- 
 mined, it may be continued from term to 
 term by dies datus. See "Continuance;" Co. 
 Litt. 362b, 363a. When the court or other 
 body rise at the end of a session or term, 
 they adjotirn sine die. 
 
 SINE HOC QUOD (Law Lat. without this, 
 that). A technical phrase in old pleading, 
 of the same import with the phrase "absque 
 hoc" (q. V.) 
 
 SINE JUDICIO (Law Lat.) Without judg- 
 ment; without a judicial sentence. Fleta, 
 lib. 4, c. 14, § 1. 
 
 SINE LIBERIS (Lat.) Without children. 
 For the construction of this phrase in the 
 civil law, see Dig. 50. 16. 148; Id. 50. 17. 
 187. 
 
 SINE NUMERO (Law Lat. without stint 
 or limit). A term applied to common. 
 Fleta, lib, 4, c, 19, § 8. 
 
 SINE POSSESSIONE USUCAPIO PRO- 
 cedere non potest. There can be no pre- 
 scription without possession. 
 
 SINE PROLE. Without issue, 
 genealogical tables. 
 
 Used in 
 
 SINECURE. In ecclesiastical law. A term 
 used to signify that an ecclesiastical officer 
 is without a charge or cure. 
 
 In common parlance, it means the receipt 
 of a salary for an office when there are no 
 duties to be performed. 
 
 SINGLE BILL. One without any condi- 
 tion, and which does not depend upon any 
 future event to give it validity. 5 111. 483. 
 
 SINGLE BOND. 
 
 tion. 
 
 A bond without a condi- 
 
 SINGLE COMBAT, TRIAL BY. See "Bat- 
 tel." 
 
 SINGLE ORIGINAL. An original instru- , 
 ment which is not executed in duplicate. 
 
 SINGULAR SUCCESSOR. A purchaser is 
 so termed in the Scotch law, in contradis- 
 tinction to the heir of the landed proprietor, 
 who succeeds to the whole heritage by reg- 
 ular title of succession, whereas the pur- 
 chaser acquires rights solely by the single 
 title of the former proprietor. 
 
 SINGULI IN SOLIDUM TENENTUR. 
 
 Each is bound for the whole. 6 Johns. Ch. 
 (N. Y.) 242, 252. 
 
 SINKING FUND. A fund arising from par- 
 ticular taxes, imposts, or duties, which is 
 appropriated towards the payment of the 
 interest due on a public loan, and for the 
 gradual payment of the principal. See 9 
 Neb. 453. 
 
 SI ST. In Scotch practice. A stay or sus- 
 pension of proceedings; an order for a stay 
 of proceedings. Bell, Diet. 
 
 SITHCUNDMAM. The high constable of 
 a hundred. 
 
 SITTINGS AFTER TERM. Sittings in 
 banc after term were held by authority of 
 St. 1 & 2 Vict. c. 32. The courts were at 
 liberty to transact business at their sittings 
 as in term time, but the custom was to dis- 
 pose only of cases standing for argument or 
 judgment. Wharton. 
 
 SITTINGS IN BANK (or BANC). The sit- 
 tings which the respective superior courts of 
 common law hold during every term for the 
 purpose of hearing and determining the 
 various matters of law argued before them. 
 
 They are so called in contradistinction to 
 the sittings at nisi prius, which are held for 
 the purpose of trying issues of fact. The 
 former are usually held, in England, before 
 four of the judges, while at the latter one 
 judge only presides. Holthouse; 3 Steph. 
 Comm. 423. 
 
 In America, the practice is essentially the 
 same, all the judges, or a majority of them, 
 usually, sitting in ianc, and but one holding 
 
SITTINGS IN CAMERA 
 
 (854) 
 
 SLAVE 
 
 the court for jury trials, and the term has 
 the same application here as in England. 
 
 SITTINGS IN CAMERA. See "Chambers." 
 
 SITUS (Lat.) Situation; location. 5 Pet. 
 (U. S.) 524. 
 
 Real estate has always a fixed situs, while 
 personal estate has no such fixed situs; the 
 law rei sitae regulates real, but not the per- 
 sonal, estate. Story, Confl. Laws, § 379. 
 
 The rules as to the situs of personal prop- 
 erty have been stated as follows : 
 
 (1) Movable and tangible chattels are of 
 the county where they may be at the time. 
 
 (2) Shares in corporations or joint-stock 
 companies are of the county wher? the chief 
 oifice of the company is situated. 
 
 (3) Judgments and other debts of record 
 are of the county where the record is kept. 
 
 (4) Bonds and negotiable securities are 
 of the county where they happen to be at 
 the time. 
 
 (5) Promissory notes, bills oJE exchange, 
 and all simple contracts are of the county 
 where the debtor resides. 
 
 (6) Demands against a commonwealth are 
 of the county wherein is situated the seat 
 of government. 2 Minor, Inst. 853. 
 
 SIVE TOTA RES EVINCATUR, SIVE 
 pars habet regressum emptor in venditorem. 
 The purchaser who has been evicted in 
 whole or in part has an action against the 
 vendor. Dig. 21. 2. 1; Broom, Leg. Max. (3d 
 London Ed.) 690. 
 
 SIX ACTS, THE. The acts passed in 1819, 
 for the pacification of England, are so called. 
 They, in effect, prohibited the training of 
 persons to arms; authorized general search- 
 es and seizure of arms; prohibited meetings 
 of more than fifty persons for the discus- 
 sion of public grievances; repressed with 
 heavy penalties and confiscations seditious 
 and blasphemous libels; and checked pam- 
 phleteering by extending the newspaper 
 stamp duty to political pamphlets. Brown. 
 
 SIX CLERKS IN CHANCERY. Officers 
 who received and filed all proceedings, sign- 
 ed oflSce copies, attended court to read the 
 pleadings, etc. Abolished by 5 Vict. c. 5. 3 
 Bl. Comm. 443*; Spence, Eq. Jur.; Pleta, lib. 
 2, c. 13, § 15. 
 
 SIXHINDI. Servants of the same nature 
 as rodknights. Anc. Inst. Eng. 
 
 SKELETON BILL. In commercial law. A 
 blank paper, properly stamped, in those 
 countries where stamps are required, with 
 the name of a person signed at the bottom. 
 
 In such case, the person signing the paper 
 will be held as the drawer or acceptor, as 
 It may be, of any bill which shall after- 
 wards be written above his name, to the 
 sum of which the stamp Is applicable. 1 
 Bell, Comm. (5th Ed.) 390. 
 
 SLAINS. See "Letters of Slains." 
 
 SLANDER. In torts. Words maliciously 
 spoken or written of another, imputing to 
 him some crime, or tending to exclude him 
 
 from society, and cause him to be avoided 
 (see 87 N. C. 300), or which tend to his 
 prejudice in his profession, trade, or busi- 
 ness (36 Wis. 515). 
 
 SLANDER OF TITLE. In torts. A state- 
 ment tending to cut down the extent of title. 
 See 60 Cal. 160. An action for slander of 
 title is not properly an action for words 
 spoken, or for libel written and published, 
 but an action on the case for special damage 
 sustained by reason of the speaking or pub- 
 lication of the slander of the plaintiff's title. 
 This action is ranged under that division of 
 actions in the digests and other writers on 
 the text law, and is so held by the courts 
 at the present day. An action for slander 
 of title Is a sort of metaphorical expression. 
 Slander of title may be of such a nature as 
 to fall within the scope of ordinary slander. 
 Slander of title ordinarily means a state- 
 ment tending to cut down the extent of 
 title, which is injurious only if it is false. 
 It Is essential, to give a cause of action, that 
 the statement should be false. It is essen- 
 tial, also, that it should be malicious, — not 
 malicious in the worst sense, but with in- 
 tent to injure the plaintiff. If the state- 
 ment be true, if there really be the infirm- 
 ity in the title that is suggested, no action 
 will lie, however malicious the defendant's 
 intention might be. Heard, Lib. & Sland. §§ 
 10, 59,- et seq. 
 
 SLANDERER. A calumniator who mali- 
 ciously and without reason Imputes a crime 
 or fault to another, of which he is Innocent. 
 I For this offense,, when the slander is mere- 
 ly verbal, the remedy is an action on the 
 case for damages; when It is reduced to 
 writing or printing, it is a libel. 
 
 SLAVE. One over whose life, liberty, and 
 property another has unlimited control. 
 The jus vitae et necis Is included in pure or 
 absolute slavery. Such a power has no 
 foundation In natural law, aiid hence the 
 Justinian Code declared it contra naturam 
 esse. Inst. 1. 4. 2. 
 
 Every limitation placed by. law upon this 
 absolute control modifies and to that extent 
 changes the condition of the slave. In every 
 slaveholding state of the United States, the 
 life and limbs of a slave were protected 
 from violence infiicted by the master or third 
 persons. 
 
 Among the Romans, the slave was classed 
 among things (res). He was homo sed non 
 persona. Heinec. Elem. Jur. Civ. lib. 1, § 
 75. He was considered pro nullo et mortuo, 
 quia nee statu familiae nee civitatis nee 
 libertatis gaudet. Id. § 77. See, also, 4 
 Dev. (N. C.) 340; 9 Ga. 582. In the United 
 States, as a person, he was capable of com- 
 mitting crimes, of receiving his freedom, of 
 being the subject of homicide, and of mod- 
 ifying by his volition, very materially, the 
 rules applicable to other species of property. 
 His existence as a person being recognized 
 by the law, that existence was protected by 
 the law. 1 Hawks (N. C.) 217; 2 Hawks 
 (N. C.) 454; 1 Ala. 8; 1 Miss. 83; 11 Miss. 
 
SLAVE 
 
 (8SS) 
 
 SLIP 
 
 518; 2 Va. Cas. 394; 5 Rand. (Va.) 678; 1 
 Yerg. (Tenn.) 156; 11 Humph. (Tenn.) 172. 
 
 In the slaveholding states, the relations 
 of husband and wife and parent and child 
 were recognized by statutes in relation to 
 public sales, and by the courts in all cases 
 -where such relations were material to eluci- 
 date the motives of their acts. 
 
 A slave has no political rights, the gov- 
 ernment being the judge who shall be its 
 citizens. His civil rights, though neces- 
 sarily more restricted .than the freeman's, 
 are based upon the same foundation, — the, 
 law of the land. He has none but such asl 
 are by that law and the law of nature given! 
 to him. The civil-law rule "partus sequitur] 
 ventrem" was adopted in all the slavehold- 
 ing states, the status of the mother at the 
 time of birth deciding the status of the is- 
 sue. 1 Hen. & M. (Va.) 134; 2 Rand. (Va.) 
 .246; 4 Rand. (Va.) 600; 1 Hayw. (N. C.) 
 ^34; 1 Cooke (Tenn.) 381; 2 Bibb (Ky.) 
 -298; 2 Dana (Ky.) 432; 5 Dana (Ky.) 207; 
 2 Mo. 71; 3 Mo. 540; 8 Pet. (U. S.) 220; 
 14 Serg. & R. (Pa.) 446; 15 Serg. & R. 
 (Pa.) 18; 2 Brev. (N. C.) 307; 3 Har. & 
 McH. (Md.) 139; 20 Johns. (N. Y.) 1; 12 
 Wheat. (U. S.) 568; 2 How. (U. S.) 265, 
 496. In South Carolina, Georgia, Mississippi, 
 Virginia, Louisiana, and perhaps Maryland, 
 this rule was adopted by statute. 
 
 The slave cannot acquire property; his 
 acquisitions belong to his master. 5 Cow. 
 (N. Y.) 397; 1 Bailey (S. C.) 633; 2 Hill, 
 Ch. (S. C.) 397; 2 Rich. (S. C.) 424; 6 
 Humph. (Tenn.) 299; 2 Ala. 320; 5 B. Mon. 
 (Ky.) 186. The peculium of the Roman 
 slave was ex gratia, and not of right. Inst. 
 2. 9. 3; Heinec. Blem. Jur. Civ. lib. ii. tit. 
 xviii. In like manner, negro slaves in the 
 Upited States were, as a matter of fact, 
 .sometimes permitted by their masters, ex 
 Siratia, to obtain and retain property. The 
 same was true of ancient villeins in Eng- 
 land. The slave could not be a witness, ex- 
 ■cept for and against slaves or free negroes. 
 This was, perhaps, the rule of the common 
 law. None but a freeman was othesworth. 
 The privilege of being sworn was one of 
 the characteristics of a "liber et legalis 
 homo." To lose this privilege, amittere 
 iiberam legem, was a severe punishment. 3 
 Bl. Comm. 340; Portesc. c. xxvi.; Co. Litt. 
 6b. With this the civil law agreed. Hu- 
 merus, Praelec. lib. xxv. tit. v. § 2. In the 
 United States, the rule of exclusion which 
 we have mentioned was enforced in all cases 
 where the evidence was offered for or 
 against free white persons. 6 Leigh (Va.) 
 74. In most of the states this exclusion is 
 "by express statutes, while in others it exists 
 hy custom and the decision of the courts. 
 10 Ga. 519. In the slaveholding states, and 
 in Ohio, Indiana, Illinois, and Iowa, by stat- 
 nte, the rule has been extended to include 
 tree persons of color or emancipated slaves. 
 14 Ohio, 199; 3 Har. & J. (Md.) 97. The 
 «lave could be a suitor in court only for his 
 freedom. For all other wrongs, he appeared 
 through his master, for whose benefit the 
 recovery was had. 9 Gill & J. (Md.) 19; 1 
 Litt. (Ky.) 326; 1 Mo. 608; 4 Yerg. (Tenn.) 
 
 303; 3 Brev. (N. C.) 11; 4 Gill (Md.) 249; 
 9 La. 156; 4 T. B. Mon. (Ky.) 169. The 
 suit for freedom is favored. 1 Hen. & M. 
 (Va.) 143; 8 Pet. (U. S.) 44; 2 A. K. Marsh. 
 (Ky.) 467; 2 Call (Va.) 350; 4 Rand. (Va.) 
 134. Lapse of time worked no forfeiture by 
 reason of his dependent condition (3 Dana 
 [Ky.] 382; 8 B. Mon. [Ky.] 631; 1 Hen. & 
 •fS.. [Va.] 141), and such was the civil law 
 ((Code, 7. 22. 2. 3). The master was bound to 
 /maintain, support, and defend his slave, 
 however helpless or impotent. If he failed 
 to do so, public officers were provided to sup- 
 ply his deficiency at his expense. In Ten- 
 nessee, the master in such a case was re- 
 sponsible for all that he stole. 
 
 Cruel treatment was a penal offense of a 
 high grade. Emancipation of the slave was 
 the consequence of conviction in Louisiana; 
 and the sale of the slave to another master 
 was a part of the penalty in Alabama and 
 Texas. In some of the ancient German 
 states, and also by the "Code noir," another 
 and more effectual penalty was a total dis- 
 qualification of the master forever to hold 
 slaves. 
 
 Among the ancient Lombards, if a master 
 debauched his slave's wife, the slave and his 
 wife were thereby emancipated. Among the 
 Romans, double damages were given for the 
 corruption of a slave. The enfranchisement 
 of a slave is called "manumission." The 
 word is expressive of the idea. Thus, Litt. 
 § 204, "manvmittere quod idem est, quod 
 extra manum, vel potestatem alterius po- 
 nere." Manumission being merely the with- 
 drawal of the dominion of the master, the 
 right to manumit exists everywhere, unless 
 forbidden by law. No one but the owner 
 can manumit (4 J. J. Marsh. [Ky.] 103; 10 
 Pet. [U. S.] 583), and the effect is simply 
 to make a freeman, not a citizen. The state 
 must decide who shall be citizens. See 
 "Servus." 
 
 Slavery having been abolished in the 
 United States, it is only as affecting the 
 future rights and liabilities of those for- 
 merly slaves that the elaborate slave codes 
 of those states recognizing the status can 
 be of interest or value. 
 
 SLAVE TRADE. The traffic in slaves, or 
 the buying and selling of slaves for profit. 
 It is either foreign or domestic. The for- 
 mer is when the trade includes transporta- 
 tion from a foreign state; the latter, when 
 confined within a single state or states con- 
 nected in a federal union. 
 
 SLAVERY. The status or condition of a 
 slave. The keeping of slaves as a practice 
 or legal institution. 
 
 SLEEPING PARTNER. See "Partner." 
 
 SLEEPING RENT. An expression used 
 in English coal-mine leases to indicate a 
 fixed rent, as distinguished from a rent 
 based on the output. It is said to be so 
 called because payable though the mine was 
 "sleeping" ( unworked ) . 
 
 SLIP. In insurance law. An informal 
 memorandum of the particulars of a con- 
 
SLIPPA 
 
 (8S6) 
 
 SOCIDA 
 
 tract of insurance to be afterwards included, 
 usually called in the United States a "bind- 
 ing slip." 
 
 SLIPPA. A stirrup. There is a tenure of 
 land in Cambridgeshire by holding the sov- 
 ereign's stirrup. 
 
 SLOUGH SILVER. A rent paid to the cas- 
 tle of Wigmore in lieu of certain days' work 
 in harvest, heretofore reserved to the lord 
 from his tenants. Cowell. 
 
 SMALL DEBTS COURTS. The several 
 county courts established by 9 & 10 Vict, 
 c. 95, for the purpose of bringing justice 
 home to every man's door. 
 
 SMALL TITHES. All personal and mixed 
 tithes, and also hops, flax, saffrons, potatoes, 
 and sometimes, by custom, wood. Other- 
 wise called "privy tithes." 2 Steph. Comm. 
 (7th Ed.) 726. 
 
 SMARTMONEY. Vindictiveor exemplary 
 damages given beyond the actual damage, 
 by way of punishment and example, in cases 
 of gross misconduct of defendant. 15 Conn. 
 225; 14 Johns. (N. Y.) 352; 6 Hill (N. Y.) 
 466. That it cannot be given by jury, see 2 
 Greenl. Ev. (4th Ed.) § 253, note. See "Dam- 
 ages." 
 
 SMOKE SILVER. A modus of sixpence in 
 lieu of tithe wood. Twisdale, Hist. Vindi- 
 cat. 77. 
 
 SM UGGLING. The fraudulent taking into 
 a country, or out of it, merchandise which 
 is lawfully prohibited. More specifically, a 
 secret introduction of goods into a state 
 with intent to avoid payment of duty 
 thereon. Bac. Abr. 
 
 SO HELP ME GOD. A formal invocation 
 of the Deity to witness, by which an oath is 
 concluded. 
 
 SOBRE JUEZES. In Spanish law. Supe- 
 rior judges. Las Partidas, pt. 3, tit. 4, lib. 1. 
 
 SOBRINl, or SOBRINAE (Lat.) In the 
 civil law. The children of cousins german 
 in general. Cooper, Just. Inst, notes,* 573; 
 Dig. 38. 10, 3, pr. 
 
 SOC, SOK, or SOKA. In Saxon law. Ju- 
 risdiction; a power or privilege to admin- 
 ister justice and execute the laws; also a 
 shire, circuit, or territory. Cowell. 
 
 SOCA. A seigniory or lordship, enfran- 
 chised by the king, with liberty of holding 
 a court of his' socmen or socagers, i. e., his 
 tenants. 
 
 SOCAGE. This word, according to the 
 earlier common-law writers, originally sig- 
 nified a service rendered by a tenant to his 
 lord, by the soke or ploughshare; but Mr. 
 Somner's etymology, referred to by Black- 
 stone, seems more apposite, who derives it 
 from the Saxon word soc, which signifies lib- 
 erty or privilege, denoting thereby a free 
 or privileged tenure. A species of English 
 tenure, whereby the tenant held his lands 
 
 of the lord by any certain service in lieu 
 of all other services, so that the service was 
 not a knight's service. Its principal feature 
 was its certainty; as, to hold by fealty and 
 a certain rent, or by fealty homage and a. 
 certain rent, or by homage and fealty with- 
 out rent, or by fealty and certain corporal 
 service, as ploughing the lord's land for a 
 specified number of days. 2 Bl. Comm. 80. 
 
 The term "socage" was afterwards ex- 
 tended to all services which were not of a. 
 military character, provided they were 
 fixed; as, by the annual payment of a rose, 
 a pair of gilt spurs, a certain number of 
 capons, or of so many bushels of corn. 01" 
 some tenements, the servjce was to be hang- 
 man, or executioner of persons condemned 
 in the lord's court; for in olden times such 
 officers were not volunteers, nor to be hired 
 for lucre, and could only be bound thereto 
 by tenure. There were three different spe- 
 cies of these socage tenures, — one in frank 
 tenure, another in ancient tenure, and the 
 third in base tenure. The second and third 
 kinds are now called, respectively, "tenure 
 in ancient demesne," and "copyhold tenure." 
 The first is called "free and common socage," 
 to distinguish it from the other two; but, 
 as the term "socage" has long ceased to be 
 applied to the two latter, "socage" and 
 "free and common socage" now mean the 
 same thing. Bracton; Co. Litt. 17, 86. 
 
 By St. 12 Car. II. c. 24, the ancient tenures 
 by knight's service were abolished, and all 
 lands, with the exception of copyholds and 
 of ecclesiastical lands, which continued to 
 be held in free alms (frankalmoigne), were- 
 turned into free and common socage, and 
 the great bulk of real property in England 
 is now held under this ancient tenure. Many 
 grants of land in the United States, made,, 
 previous to the Revolution, by the British 
 crown, created the same tenure among us, 
 until they were formally abolished by the 
 legislatures of the different states. In 1787, 
 the state of New York converted all feudal 
 tenures within its boundaries into a tenure- 
 by free and common socage; but in 1830 it 
 abolished this latter tenure, with all its- 
 incidents, and declared that from thence- 
 forth all lands in the state should be held 
 upon a uniform allodial tenure, and vested 
 an absolute property in the owners accord- 
 ing to their respective estates. Similar pro- 
 visions have been adopted by other states; 
 and the ownership of land throughout the- 
 United States is now essentially free and 
 unrestricted. See "Tenure." 
 
 SOCAGER. A tenant by socage. 
 
 SOCAGIUM IDEM EST QUOD SERVI- 
 tum socae; et soca, Idem est quod caruca. 
 
 Socage is the same as service of the soc; 
 and "soc" is the same thing as a plow. Co. 
 Litt. 86. 
 
 SOGER (Lat.) The father of one's wife; 
 a father-in-law. 
 
 SOCIDA (Lat.) In civil law. The name- 
 of a contract by which one man delivers to- 
 another, either for a small recompense, or 
 
SOCIEDAD 
 
 (857) 
 
 SOKEMANS 
 
 for a part of the profits, certain animals, on 
 condition that, if any of them perish, they 
 shall he replaced by the bailer, or he shall 
 pay their value. 
 
 4 contract of hiring, with the condition 
 that the bailee takes upon him the risk of 
 the loss of the thing hired. Wolff. § 638. 
 
 SOCIEDAD. In Spanish law. Partnership. 
 Schmidt, Civ. Law, 153, 154. 
 
 SOCIETAS (Lat.) In civil law. A con- 
 tract in good faith made to share in common 
 the profit and loss of a certain business or 
 thing, or of all the possessions of the par- 
 ties. Calv. Lex.; Inst. 3. 26; Dig. 17. 21. 
 See "Partnership." 
 
 Also, companionship or partnership in 
 good or evil. Cicero, pro S. Rose. 34; Fleta, 
 lib. 1, c. 38, § 18. 
 
 SOCIETAS LEONINA (Lat.) In Roman 
 law. That kind of society or partnership 
 by which the entire profits should belong to 
 some of the partners, in exclusion of the 
 rest. 
 
 It was so called in allusion to the fable 
 of the lion and other animals, who, having 
 entered into partnership for the purpose of 
 hunting, the lion appropriated all the prey 
 to himself. Dig. 17. 2. 29. 2; Poth. Traite 
 de Societe, note 12. See 2 McCord (S. C.) 
 421; 6 Pick. (Mass.) 372. 
 
 SOCIETAS NAVALIS (Lat.) In European 
 law. Naval partnership or company; the 
 sailing of a number of vessels in company, 
 for mutual protection. Otherwise called ad- 
 miralitas. Locc. de Jur. Mar. lib. 2, c. 2; Id. 
 lib. 3, c. 7. 
 
 SOCIETE (Fr.) In French law. Partner- 
 ship. See "Commendam." 
 
 SOCIETE ANONYME. In French law. An 
 association where the liability of all the 
 partners is limited. It had in England until 
 lately no other name than that of "char- 
 tered company," meaning thereby a joint- 
 stock company whose shareholders, by a 
 charter from the crown, or a special enact- 
 ment of the legislature, stood exempted 
 from any liability for the debts of the con- 
 cern, beyond the amount of their subscrip- 
 tions. 2 Mill, Pol. Econ. 485. 
 
 SOCIETE EN COMMENDITE. In Louisi- 
 ana. A partnership formed by a contract 
 by which one person or partnership agrees 
 to furnish another person or partnership a 
 certain amount, either in property or money, 
 to be employed by the person or partnership 
 to whom it is furnished, in his or their own 
 name or firm, on condition of receiving a 
 share in the profits, in the proportion de- 
 termined by the contract, and of being liable 
 to losses and expenses to the amount fur- 
 nished, and no more. Civ. Code La. art. 
 2810; Code de Comm. 26, 33; i Pardessus, 
 Dr. Com. note 1027; Dalloz, "Societe Com- 
 merciale," note 166. See "Commendam." 
 
 SOCIETY. In its abstract sense (used 
 with no article prefixed), the public at 
 
 large; the people; the body politic. In a 
 concrete sense, a voluntary unincorporated 
 association of persons for a common pur- 
 pose. 
 
 SOCII MEI SOCIUS, MEUS SOCIUS NON 
 est. The partner of my partner is not my 
 partner. Dig. 50. 17. 47. 1. 
 
 SOCIUS. In the civil law, a partner. ' 
 SOCMAN. A tenant by socage. 1 
 
 SOCMANRY. Free tenure by socage.- 
 
 SOCNA. A privilege, liberty, or franchise. 
 Cowell. 
 
 SODOMITE. One whol has been guilty of 
 sodomy. Formerly, such offender was pun- 
 ished with great severity, and was deprived 
 of the power of making a will. 
 
 SODOMY. A carnal copulation by humaii 
 beings with each other against nature, oi' 
 with a beast. 2 Bish. Crim. Law, § 1029. 
 
 A distinction not generally recognized has 
 been made between bestiality and sodomy,- 
 the former being defined as carnal connec- 
 tion between a human being and a brute,- 
 and the latter as carnal connection between 
 two human beings against the order of 
 nature. 10 Ind. 355. 
 
 SOIT BAILE AUX COMMONS (Law Fr. 
 let it be delivered to the commons). The 
 form of indorsement on a bill when sent to 
 the house of commons. Dyer, 93a. 
 
 SOIT BAILE AUX SEIGNEURS (Law Fr. 
 let it be delivered to the lords). The form 
 of indorsement on a bill in parliament when 
 sent to the house of lords. Hob. Ilia. 
 
 SOIT DROIT FAIT AL PARTIE. In Eng- 
 lish law. Let right be done to the party. 
 A phrase written on a petition of right, and 
 subscribed by the king. See "Petition of 
 Rights." 
 
 SOIT FAIT COMME IL EST DESIRE 
 
 (Law Fr. let it be as it is desired). The 
 royal assent to private acts of parliament. 
 
 SOJOURNING (Fr. sejoiirner). Literally, 
 dwelling for a day. "The term 'sojourning' 
 means something more than 'traveling,' and 
 applies to a temporary, as contradistin- 
 guished from a permanent, residence." 1 
 Wheat. (U. S.) 5. 
 
 SOKE REEVE. The lord's rent gatherer 
 in the soca. Cowell. 
 
 SOKEMANRIES. Lands and tenements 
 which were not held by knight service, nor 
 by grand serjeanty, nor by petit, but by 
 simple services; being, as it were, lands 
 enfranchised by the king or his predecessors 
 from their ancient demesne. Their tenants 
 were "sokemans." Wharton. 
 
 SOKEMANS. In English law. Those who 
 held their land in socage. 2 Bl. Comm. 100. 
 
SOLA AC PER, ETC. 
 
 (8S8) 
 
 SOLICITOR-GENERAL 
 
 SOLA AC PER SE SENECTUS DONA- 
 tionem testamentum aut transactionem non 
 vitiat. Old age does not alone and of itself 
 vitiate a will or a gift. 5 Johns. Ch. (N. 
 Y.) 148, 158. 
 
 SOLAR DAY. That period of time which 
 iDegins at sunrise and ends at sunset; the 
 same as "artificial day." Co. Litt. 135a; 3 
 Chit. St. 1376, note. 
 
 SOLAR MONTH. A calendar month. Co. 
 Litt. 135b; 1 W. Bl. 450; 1 Maule & S. Ill; 
 1 Bing. 307; 3 Chit. St. 1375, note. 
 
 SOLARES. In Spanish law. Lots of 
 ground. This term is frequently found in 
 grants from the Spanish government of 
 lands in America. 2 White, Coll. 474. 
 
 SOLARIUM (Lat.) In the civil law. A 
 jent paid for the ground, where a person 
 lauilt on the public land. A ground rent. 
 Spelman; Calv. Lex. 
 
 SOLATIUM. Compensation; damages al- 
 lowed for injury to the feelings. 
 
 SOLD NOTE. The name of an instrument 
 in writing, given by a broker to a buyer of 
 merchandise, in which it is stated that the 
 goods therein mentioned have been sold to 
 him. 1 Bell, Comm. (5th Ed.) 435; Story, 
 Ag. § 28. Some confusion may be found in 
 the books as to the name of these notes. 
 They are sometimes called "bought dotes." 
 
 SOLE. Alone, single; used in contradis- 
 tinction to "joint" or "married." A sole ten- 
 ant, therefore, Is one who holds lands in his 
 own right, without being joined with any 
 other. A feme sole is a single woman; a 
 sole corporation is one composed of only 
 ■one natural person. 
 
 SOLE CORPORATION. A corporation con- 
 .sisting of one person and his legal suc- 
 cessors, thus having the attribute of per- 
 petuity, as a bishop of the Roman Catholic 
 •Church or of the Church of England. 
 
 SOLE TENANT. He that holds lands by 
 his own right only, without any other per- 
 .son being joined with him. Cowell. 
 
 SOLEMN. Formal; in regular form. 
 
 SOLEMN FORM. In English law. Pro- 
 bate may be granted either in solemn form 
 •or in common form. 
 
 Probate in solemn form is only employed 
 when there is or is likely to be a dispute as 
 to the validity of the will, and in such a 
 case the person who wishes its validity to 
 Tje established commences an action against 
 the person who disputes it. The action pro- 
 ceeds as to pleadings, trial, etc., in the same 
 way as an ordinary action. If the plaintiff 
 makes out his case, the court pronounces for 
 the validity of the will, and the executor 
 may then take probate of it as if it had not 
 been disputed. Coote, Prob. Prac. 250, 308. 
 As a general rule, probate in solemn form 
 is conclusive on all who are parties to the 
 
 proceedings, or cognizant of them. Browne, 
 Prob. Prac. 101. 
 
 Probate in common form is that "form 
 which is slight and summary for ordinary 
 and undisputed cases." 
 
 SOLEMN WAR. A war made in form by 
 public declaration. See "War." 
 
 SOLEMNES LEGUM FORMULAE (Lat). 
 In the civil law. Solemn forms of laws; 
 forms of forensic proceedings and of trans- 
 acting legal acts. One of the sources of 
 the unwritten law of Rome. Butler, Hor. 
 ■Jur. 47. 
 
 SOLEMNITAS ATTACHIAMENTORUM 
 
 (Law Lat.) In old English practice. So- 
 lemnity or formality of attachments. The 
 issuing of attachments in a certain formal 
 and regular order. Bracton, fols. 439, 440; 
 1 Reeve, Hist. Bng. Law, 480; Pleta, lib. 2, 
 c. 65, § 5. 
 
 SOLEMNITATES JURIS SUNT OBSER- 
 vandae. The solemnities of law are to be ob- 
 served. Jenk. Cent. Cas. 13. 
 
 SOLEMNITY. The formality established 
 by law to render a contract, agreement, or 
 other act valid. 
 
 A marriage, for example, would not be 
 valid if made in jest and without solemnity. 
 See "Marriage;" Dig. 4. 1. 7; Id. 45. 1. 30. 
 
 SOLICITATION OF CHASTITY. The ask- 
 ing a person to commit adultery or fornica- 
 tion. 
 
 This, of itself, is not an indictable of- 
 fense. Salk. 382; 2 Chit. Prac. 478. The 
 contrary doctrine, however, has been held in 
 Connecticut. 7 Conn. 267. In England, the 
 bare solicitation of chastity is punished in 
 the ecclesiastical courts. 2 Chit. Prac. 478. 
 See 2 Strange, 1100; 10 Mod. 384; Sayer, 
 33; 1 Hawk. P. C. c. 74; 2 Ld. Raym. 809. 
 
 The civil law punished arbitrarily the 
 person who solicited the chastity of another. 
 Dig. 47. 11. 1. See 3 Phillim. Ecc. Law, 508. 
 
 SOLICITOR. A person whose business is 
 to be employed in the care and management 
 of suits depending in courts of chancery. 
 
 A solicitor, like an attorney, will be re- 
 quired to act with perfect good faith towards 
 his clients. He must conform to the au- 
 thority given him. It is said that, to in- 
 stitute a suit, he must have a special au- 
 thority, although a general authority will 
 be sufficient to defend one. The want of a 
 written authority may subject him to the 
 expenses incurred in a suit. 3 Mer. 12; 
 Hovenden, Frauds, c. 2, pp. 28-61. See 1 
 Phil. Ev. 102; 2 Chit. Prac. 2. See "Attor- 
 ney." 
 
 SOLICITOR-GENERAL. In English law. 
 A law officer of the crown, appointed by 
 patent during the royal pleasure, and who 
 assists the attorney general in managing the 
 law business of the crown. Selden, 1. 6. 7. 
 He is first in right of preaudience. 3 Bl. 
 Comm. 28, n. (a), n. 9; Enc. Brit. 
 
SOLICITOR, ETC. 
 
 (859) 
 
 SOLVENCY 
 
 SOLICITOR OF THE TREASURY. The 
 
 title of one of the officers of the United 
 States, created by Act May 29, 1830 (4 U. S. 
 St. at Large, 414), which prescribes his du- 
 ties and his rights. 
 
 His powers and duties are: First, those 
 which were by law vested and required from 
 the agent of the treasury of the United 
 States. Second, those which theretofore be- 
 longed to the commissioner or 'acting' com- 
 missioner of the revenue, relating to the 
 superintendence of the collection of out- 
 standing direct and internal duties. Third, 
 to take charge of all lands which shall be 
 conveyed to the United States, or set off to 
 them in payment of debts, or which are 
 vested in them by mortgage or other secu- 
 rity; and to release such lands which had, 
 at the passage of the act, become vested in 
 the United States, on payment of the debt 
 for which they were received. Fourth, gen- 
 erally to superintend the collection of debts 
 due to the United States, and receive state- 
 ments from different officers in relation to 
 suits or actions commenced for the recov- 
 ery of the same. Fifth, to instruct the dis- 
 trict attorneys, marshals, and clerks of the 
 circuit and district courts of the United 
 States, in all matters and proceedings apper- 
 taining to suits in which the United States 
 are a party or interested, and to cause them 
 to report to him any information he' may 
 require in relation to the same. Sixth, to 
 report to the proper officer from whom the 
 evidence of debt was received the fact of 
 its having been paid to him, and also all 
 credits which have, by due course of law, 
 been allowed on the same. Seventh, to 
 make rules for the government of collectors, 
 district attorneys, and marshals, as may be 
 requisite. Eighth, to obtain from the dis- 
 trict attorneys full accounts of all suits in 
 their hands, and submit abstracts of the 
 same to congress. 
 
 His rights are: First, to call upon the 
 attorney general of the United States for 
 advice and direction as to the manner of 
 conducting the suits, proceedings, and pros- 
 ecutions aforesaid. Second, to receive a 
 salary of three thousand five hundred dol- 
 lars per annum. Third, to employ, with the 
 approbation of the secretary of the treas- 
 ury, a clerk, with a salary of one thousand 
 five hundred dollars, and a messenger, with 
 a salary of five hundred dollars. Fourth, 
 to receive and send all letters, relating to 
 the business of his office, free of postage. 
 
 SOLICITOR TO THE SUITORS' FUND. 
 
 An officer of the English court of chancery, 
 who is appointed in certain cases guardian 
 od litem. 
 
 SOLIDO. See "In Solidum." 
 
 SOLIDUM (Lat.) In the civil law. A 
 whole; an entire or undivided thing. See 
 "In Solidum." 
 
 SOLINUM (Law Lat.) In old English law. 
 Two plough lands, and somewhat less than 
 a half. Co. Litt. 5a. Spelman defines it a 
 plough land. , 
 
 SOLO CEDIT QUOD SOLO IMPLANTA- 
 
 tur. What is planted in the soil belongs to 
 the soil. Inst. 2. 1. 32; 2 Bouv. Inst, note 
 1572. 
 
 SOLO CEDIT QUOD SOLO INAEDIFICA- 
 tur. 'Whatever is built on the soil belongs 
 to the soil. Inst. 2. 1. 29. See 1 Mackeld. 
 Civ. Law, § 268; 2 Bouv. Inst, note 1571. 
 
 SOLUM PROVINCIALE. In Roman law. 
 The solum italicwni (an extension of the old 
 Ager Romanus) admitted full ownership, 
 and of th« application to it of usucapio; 
 whereas the solum provinciale (an extension 
 of the old Ager PubUcus) admitted of a pos- 
 sessory title only, and of longi temporis pos- 
 sessio only. Justinian abolished all distinc- 
 tions between the two, sinking the italicum 
 to the level of the provinciale. Brown. 
 
 SOLUM REX HOC NON FACERE PO- 
 test, quod non potest injuste agere. This 
 alone the king cannot do, — he cannot act 
 unjustly. 11 Coke, 72. 
 
 SOLUS DEUS HAEREDEM FACIT. God 
 alone makes the heir. Co. Litt. 5. 
 
 SOLUTIO (Lat. release). In civil law. 
 Payment. By this term is understood every 
 species of discharge or liberation, which is 
 called "satisfaction," and with which the 
 creditor is satisfied. Dig. 46. 3. 54! Code, 
 8. 43. 17; Inst. 3. 30. This term has rather 
 a reference to the substance of the obliga- 
 tion than to the numeration or counting of 
 the money. Dig. 50. 16. 176. 
 
 SOLUTIO INDEBITI (Lat.) In civil law. 
 The case where one has paid a debt, or done 
 an act or remitted a claim, because he 
 thought that he was bound in law to do so, 
 when he was not. In such cases of mistake 
 there is an implied obligation (,gitasi ex con- 
 tractu) to pay back the money, etc. Mac- 
 keld. Civ. Law, § 468.- 
 
 SOLUTIO PRETI! EMPTIONIS LOCO HA- 
 betur. The payment of the price stands in 
 the place of a sale. Jenk. Cent. Cas. 56. 
 
 SOLUTIONE FEODI MILITIS PARLIA- 
 mentl, or Feodi burgensis parliamenti. Old 
 writs whereby knights of the shire and bur- 
 gesses might have recovered their wages or 
 allowance if it had been refused. 35 Hen. 
 VIII. c. 11. 
 
 SOLUTUS (Lat. from ,so/roc, to loose). 
 
 In the Civil Law. Loosed; freed from 
 
 confinement; set at liberty. Dig. 50. 16. 48. 
 
 In Scotch Practice. Purged. A term 
 
 used in old depositions. See "Purged of 
 Partial Counsel." 
 
 SOLVABILITE (Fr.) In French law. Abil- 
 ity to pay; solvency. Emerig. Tr. des Assur. 
 c. 8, § 15. 
 
 SOLVENCY. The state of a person who is 
 able to pay all his debts; the opposite of 
 "insolvency" (q. v.) 
 
 Imports adequate means of a person to 
 pay his debts, which embraces within its 
 
SOLVENDO 
 
 (860) 
 
 SOUS SEING PRIVE 
 
 meaning the opportunity by reasonable dili- 
 gence to convert and apply to such purpose. 
 In other words, a person is deemed insolvent 
 who at the time in question is unable to 
 pay his debts in the ordinary course of busi- 
 ness. 
 
 It means that the debtor is In such a con- 
 dition that the demand may be collected 
 out of his property by due course of law. 
 Ability to raise money on credit for the pay- 
 ment of debts does not constitute solvency. 
 13 Wend. (N. Y.) 375, 377; 4 Hill (N. Y.) 
 650. 
 
 SOLVENDO (Lat. paying). An apt word 
 of reserving a rent in old conveyances. Co. 
 Litt. 47a. 
 
 SOLVENDO ESSE. To be in a state of 
 solvency, i. e., able to pay. 
 
 SOLVENDO ESSE NEMO INTELLIGI- 
 tur nisi qui solidum potest solvere. No one 
 
 is considered to be solvent unless he can pay 
 all that he owes. Dig. 50. 16. 114. 
 
 SOLVENT. One who has sufficient to pay 
 his debts and all obligations. Dig. 50. 16. 
 114. The opposite of insolvent (q. v.) 
 
 SOLVENDUS (Lat.) In old English law. 
 To be paid. Pleta, lib. 2, c. 64, § 3. 
 
 SOLVERE (Lat. to unbind; to untie). To 
 release; to pay. Solvere dicimus eum qui 
 fecit quod facere promisit. 1 Bouv. Inst, 
 note 807. 
 
 SOLVIT (Lat. from solvere, g. v.) He paid.; 
 paid. 10 East, 206. 
 
 SOLVIT AD DIEM (Lat. he paid at the 
 day). In pleading. The name of a plea to 
 an action on a bond, or other obligation to 
 pay money, by which the defendant pleads 
 that he paid the money on the day it was 
 due. See 1 Strange, 652; Rep. temp. Hardw. 
 133; Comyn, Dig. "Pleader" (2 W 29). 
 
 This plea ought to conclude with an aver- 
 ment, and not to the country. 1 Sid. 215; 
 12 Johns. (N. Y.) 253. See 2 Phil. Bv. 92; 
 Coxe (N. J.) 467. 
 
 SOLVIT POST DIEM (Lat. he paid after 
 the day). In pleading. The name of a 
 special plea in bar to an action of debt on 
 a bond, by which the defendant asserts that 
 he paid the money after the day it became 
 due. 1 Chit. PI. 480, 555; 2 Phil. Ev. 93. 
 
 SOLVITUR ADHUC SOCIETAS ETIAM 
 
 morte socii. A partnership is moreover dis- 
 solved by the death of a partner. Inst. 3. 
 26. 5; Dig. 17. 2. 
 
 SOLVITUR EO LIGAMINE QUO LIGA- 
 tur. In the same manner that a thing is 
 bound it is unloosed. 4 Johns. Ch. (N. Y.) 
 582. 
 
 SOMERSETT'S CASE. A celebrated deci- 
 sion of the English king's bench, in 1771-72, 
 affirming the extinction of villeinage, and 
 the nonexistence of any other form of slav- 
 ery in England. 
 
 SON ASSAULT DEMESNE (Law Pr. his 
 own first assault). In pleading. A form of 
 a plea to justify an assault and battery, by 
 which the defendant asserts that the plain- 
 tiff committed an assault upon him, and the 
 defendant merely defended himself. 
 
 When the plea is supported by evidence, 
 it is a sufficient justification, unless the re- 
 taliation by the defendant were excessive, 
 and bore no proportion to the necessity, or 
 to the provocation received. 1 East, P. C, 
 406; 1 Chit. Prac. 595. 
 
 SONTAGE. A tax of forty shillings an- 
 ciently laid upon every knight's fee. CowelL 
 
 SONTICUS (Lat.) In the civil law. That 
 which hurts or hinders; that which tends- 
 to delay or put off. 
 
 SOREHON, or SORN. An arbitrary exac- 
 tion, formerly existing in Scotland and Ire- 
 land. Whenever a chieftain had a mind to- 
 revel, he came down among the tenants with 
 his followers by way of contempt, called 
 "ffilHwitfitts," and lived on free quarters.. 
 See Bell, Diet. 
 
 SORNER. In Scotch law. A person who' 
 takes meat and drink from others by force 
 or menaces, without paying for it. Bell, Diet. 
 
 SORS (Lat.) 
 
 In Civil Lawf. A lot; chance; fortune. 
 
 Calv. Lex.; Ainsworth. Sort; kind. The 
 little scroll on which the thing to be drawn 
 by lot was written. Carpentier. A principal 
 or capital sum; e. g., the capital of a part- 
 nership. Calv. Lex. 
 
 In Old English Law. A principal lent 
 
 on interest, as distinguished from the in- 
 terest itself. Pryn, Collect. . tom. 2, p. 161; 
 Cowell. 
 
 SORTITIO (Lat. from sortiri, to cast or 
 draw lots). In the civil law. A casting or 
 drawing of lots; a determination or choice 
 by lot. Sortitio judicum, a drawing of judg- 
 es (judices) on criminal trials, resembling 
 the modern practice of drawing a jury. Hal- 
 ifax, Anal. bk. 3, c. 13, No. 20; 3 Bl. Comm. 
 366. 
 
 SOUL SCOT. A mortuary, or customary 
 gift due ministers, in many parishes of Eng- 
 land, on the death of parishioners. It was 
 originally voluntary, and intended as 
 amends for ecclesiastical dues neglected to 
 be paid in the lifetime. 2 Bl. Comm. 425*. 
 
 SOUND MIND. That state of a man's 
 mind which is adequate to reason, and comes 
 to a judgment upon ordinary subjects like 
 other rational men. 
 
 SOUNDING IN DAMAGES. When an ac- 
 tion is. brought, not for the recovery of 
 lands, goods, or sums of money (as is the 
 case in real or mixed actions, or the per- 
 sonal action of debt or detinue), but for 
 damages only, as in covenant, trespass, etc., 
 the action is said to be sounding in damages. 
 Steph. PI. 126, 127. 
 
 SOUS SEING PRIVE. In Louisiana. An 
 
SOUTH SEA FUND 
 
 (861) 
 
 SPECIAL AgStTMPSIT 
 
 ;aot or contract evidenced by writing under 
 the private signature of the parties to it. 
 'The term is used in opposition to the "au- 
 thentic act," which is an agreement entered 
 into in the presence of a notary or other 
 public officer. 
 
 The form of the instrument does not give 
 it its character so much as the fact that it 
 appears or does not appear to have been 
 -executed before the officer. 5 Mart. (La.; N. 
 ,S.) 196; 7 Mart. (La.; N. S.) 548. 
 
 The effect of a sous seing prive is not the 
 :same as that of the "authentic act." The 
 former cannot be given in evidence until 
 -proved, and, unless accompanied by posses- 
 ;sion it does not, in general, affect third per- 
 sons. 6 Mart. (La.; N. S.) 429, 432. The 
 latter, or authentic acts, are full evidence 
 -against the parties and those who claim un- 
 •der them. 8 Mart. (La.; N. S.) 132. 
 
 SOUTH SEA FUND. The produce of the 
 taxes appropriated to pay the interest of 
 ;such part of the English national debt as 
 was advanced by the South Sea Company 
 ;and its annuitants. The holders of South 
 Sea annuities have been paid off, or have 
 jeceived other stock in lieu thereof. 2 Steph. 
 •Comm. (7th Ed.) 578. 
 
 SOVEREIGNTY. The union and exercise 
 •of all human power possessed in a state. 
 It is a combination of all power; it is the 
 ■power to do everything in a state without 
 ;accountability, — to make laws, to execute 
 :and to apply them, to impose and collect 
 •taxes and levy contributions, to make war or 
 peace, to form treaties of alliance or of com- 
 merce with foreign nations, and the like. 
 tStory, Const. § 207. 
 
 Abstractly, sovereignty resides in the body 
 •of the nation, and belongs to the people; but 
 "these powers are generally exercised by dele- 
 ;gation. 
 
 When analyzed, sovereignty is naturally 
 ■divided into three great powers, namely, the 
 legislative, the executive, and the judiciary. 
 The first is the power to make new laws, and 
 to correct and repeal the old; the second 
 is the power to execute the laws, both at 
 home and abroad; and the last is the power 
 to apply the laws to particular facts, to 
 Judge the disputes which arise among the 
 ■citizens, and to punlsli crimes. 
 
 Strictly speaking, in our republican forms 
 •of government the absolute sovereignty of 
 the nation is in the people of the nation; 
 :and the residuary sovereignty of each state, 
 not granted to any of Its public function- 
 aries, is im the -people of the state. 2 Dall. 
 (U. S.) 471. And see, generally, 2 Dall. (U. 
 S.) 433, 455; 3 Dall. (U. S.) 93; 1 Story, 
 Const. § 208; 1 ToulUer, Dr. Civ. note 20; 
 TVlerlin, Repert. 
 
 SOWMmc and ROWMING. In Scotch 
 law. Terms used to express the form by 
 -which the numter of ca1;tle hrought upon a 
 ■common l)y those "having u servitude of pas- 
 turage may "be 'justly proportioned to the 
 Tights of the different persons possessed of 
 the .SBPyiitude. Bell, Ifi^clt. 
 
 SOWNE. In old Efelish law. To be levi- 
 able. An old exchequep term applied to 
 sheriff's returns. "Estreats that sowne not" 
 were such as could not be Collected. 4 Inst. 
 107; Cowell; Spelman. 
 
 SPADONES (Lat.) In civil law. Those 
 who, on account of their temperament or 
 some accident they have suffered, are unable 
 to procreate. Inst. 1. 11. 9; Dig. 1. 7. 2. 1. 
 And see "Impotence." 
 
 SPARSIM (Lat.) Here and there; in a 
 scattered manner; sparsedly; dispersedly. 
 It is sometimes used in law; for example, 
 the plaintiff may recover the place wasted, 
 not only where the injury has been total, 
 but where trees growing sparsim in a close 
 are cut. Bac. Abr. "Waste" (M) ; Brownl. 
 240; Co. Litt. 54a; 4 Bouv. Inst, note 3690. 
 
 SPATAE PLACITUM. A court for the 
 speedy execution of justice upon military 
 delinquents. Cowell. 
 
 SPEAKING DEMURRER. In pleading. 
 One which alleges new matter in addition 
 to that contained in the bill as a cause for 
 demurrer. 4 Brown, Ch. 254; 2 Ves. Jr. 83; 
 4 Paige, Ch. (N. Y.) 374. 
 
 SPECIAL. That which relates to a par- 
 ticular species or kind, o'r is confined to a 
 particular person, object, or class, opposed 
 to general; as, special verdict and general 
 verdict; special imparlance and general im- 
 parlance; special jury, or one selected for 
 a particular case, and general jury; special 
 issue and general issue, etc. 
 
 SPECIAL ACCEPTANCE. A qualified ac- 
 ceptance of a bill of exchange, as by stipu- 
 lating for payment at a certain time or 
 place. 
 
 SPECIAL ACT. A private statute (q. v.) 
 
 SPECIAL ADMINISTRATION. See "Ad- 
 ministration." 
 
 SPECIAL AGENT. An agent whose au- 
 thority is confined to a particular or an in- 
 dividual instance. It is a general rule that 
 he who is invested with a special authority 
 must act within the bounds of his authority, 
 and he cannot bind his principal beyond 
 what he is authorized to do. 2 Bouv. Inst, 
 note 1299; 2 Johns. (N. Y.) 48; 5 Johns. 
 (N. Y.) 48; 15 Johns. (N. Y.) 44; 8 Wend. 
 (N. Y.) 494; 1 Wash. C. C. (U. S.) 174. See 
 "Agent." 
 
 SPECIAL ALLOWANCES. In taxing the 
 costs of an action as between party and 
 party, the taxing officer is, in certain cases,, 
 empowered to make special allowances; i. e., 
 to allow the party costs which the orflinary 
 scale does not warrant. 
 
 SPECIAL APPEARANCE. See "Appear- 
 ance." 
 
 SPECIAL ASSUMPSIT. In practice. Ah 
 action of asstmipsit brought on a special: cxmi- 
 
SPECIAL BAIL 
 
 (862) 
 
 SPECIAL JURISDICTION 
 
 tract, which the plaintiff declares upon set- 
 ting out its particular language or its legal 
 effect. 
 
 It Is distinguished from a general assump- 
 sit, where the plaintiff, instead of setting out 
 the particular language or effect of the orig- 
 inal contract, declares as for a debt arising 
 out of the execution of the contract, where 
 that constitutes the debt. 3 Bouv. Inst, note 
 3426. 
 
 SPECIAL BAIL. See "Bail." 
 
 SPECIAL BASTARD. One born of par- 
 ents before marriage, the parents afterwards 
 intermarrying. See "Bastard." 
 
 SPECIAL CASE. The name given in Eng- 
 lish practice to an agreed statement of facts, 
 on which a cause is submitted to the court 
 without trial. Also the statement of facts 
 on which a point reserved for further con- 
 sideration or for reference to another court 
 is heard. 
 
 SPECIAL CLAIM. In English law. A 
 claim not enumerated in the orders of 22d 
 April, 1850, which required the leave of the 
 court of chancery to file it. Such claims are 
 abolished. 
 
 SPECIAL COMMISSION. In English law. 
 An extraordinary commission of oyer and 
 terminer and gaol delivery, issued by the 
 crown to the judges when it is necessary 
 that offenses should be immediately tried 
 and punished. Wharton. 
 
 SPECIAL CONSTABLE. A person ap- 
 pointed and sworn as a constable in an 
 emergency to augment the constabulary, or 
 to serve during disability or disqualification 
 of the constable. 
 
 SPECIAL CONTRACT. A specialty. 
 
 SPECIAL COUNT. A statement of the 
 facts of the particular case, as opposed to 
 the common counts (g. v.) 
 
 SPECIAL CUSTOM. A local custom. See 
 "Custom." 
 
 SPECIAL DAMAGES. The" damages re- 
 coverable for the actual injury incurred 
 through the peculiar circumstance of the 
 individual case, above and beyond those pre- 
 sumed by law from the general nature of 
 the wrong. See "Damages." 
 
 SPECIAL DEMURRER. In pleading. One 
 which excepts to the sufficiency of the plead- 
 ings on the opposite side, and shows spe- 
 cifically the nature of the objection and the 
 particular ground of the exception. 3 Bouv. 
 Inst, note 3022. See "Demurrer." 
 
 SPECIAL DEPOSIT. A deposit made of a 
 particular thing with the depositary. It is 
 distinguished from an irregular deposit. 
 
 In Banking Law. A deposit which is 
 
 to be returned in specie. 
 
 SPECIAL ELECTION. An election spe- 
 cially called for an emergency, as opposed 
 to general election (g. v.) 
 
 SPECIAL, ERRORS. Special pleas in er- 
 ror are those which assign for error matters 
 in confession and avoidance, as a. release of 
 errors, the act of limitations, and the like, 
 to which the plaintiff in error may reply or 
 demur. 
 
 SPECIAL EXAMINER. An examiner in 
 chancery appointed to take evidence in a 
 particular suit. 
 
 SPECIAL EXECUTOR. See "Executor." 
 
 SPECIAL FINDING. A finding by the 
 jury of a particular ultimate fact material 
 to the issue. 
 
 SPECIAL GUARANTY. See "Guaranty." 
 
 SPECIAL GUARDIAN. A guardian of lim- 
 ited or temporary" power in respect of his 
 ward, or of his ward's estate. A guardian 
 of a particular fund, appointed because of 
 the general guardian's adverse interest, or 
 one who exercises general powers during a 
 limited time, as where the general guardian 
 is disqualified or incapacitated, are exam- 
 ples. In the broadest sense, guardians ad 
 litem are special, but the term is not usu- 
 ally applied to them, and under the laws of 
 some states, notably New York, they are 
 distinct. 
 
 SPECIAL IMPARLANCE. In pleading. An 
 imparlance which contains the clause, "sav- 
 ing to himself all advantages and excep- 
 tions, as well to the writ as to the declara- 
 tion aforesaid." 2 Chit. PI. 407, 408. See 
 "Imparlance." 
 
 SPECIAL INDORSEMENT. An indorse- 
 ment of a note or bill, naming the indorsee. 
 
 SPECIAL INDORSEMENT OF WRIT. In 
 
 Euglish practice. The writ of summons in 
 an action may, under Order iii. 6, be in- 
 dorsed with the particulars of the amount 
 sought to he . recovered in the action, after 
 giving credit for any payment or set-off; 
 and this special indorsement (as it is called) 
 of the writ is applicable in all actions where 
 the plaintiff seeks merely to recover a debt 
 or liquidated demand in money payable by 
 the defendant, with or without interest, aris- 
 ing upon a contract, express or implied, as, 
 for instance, on a bill of exchange, prom- 
 issory' note, check, or other simple contract 
 debt, or on a bond or contract under seal 
 for payment of a liquidated amount of 
 money, or on a statute where the sum sought 
 to be recovered is a fixed sum of money, 
 or in the nature of a debt, or on a guar- 
 anty, whether under seal or not. Brown. 
 
 SPECIAL ISSUE. In pleading. A plea to 
 the action which denies some particular 
 material allegation, which is in effect a 
 denial of the entire right of action. It dif- 
 fers from the general issue, which traverses 
 or denies the whole declaration or indict- 
 ment. Gould, PI. c. 2, § 38. See "General 
 Issue." 
 
 SPECIAL JURISDICTION. Limited juris- 
 diction. 
 
SPECIAL JURY 
 
 (863) 
 
 SPECIAL SERVICE 
 
 SPECIAL JURY. One selected in a par- 
 ticular way by the parties. See "Jury." 
 
 SPECIAL LAW. See "Statute." 
 
 SPECIAL LEGACY. A "specific legacy" 
 («. v.) 
 
 SPECIAL LIEN. A particular lien. See 
 "Lien." 
 
 SPECIAL MALICE. Express malice. See 
 
 "Malice.' 
 
 I 
 SPECIAL MATTER. Matter of special 
 defense admitted under the general issue by 
 a relaxation of the common-law rules of 
 pleading. 3 Bl. Comm. 306. See "Special 
 Plea." 
 
 SPECIAL MEETING. A meeting called 
 for and limited to the transaction of a speci- 
 fied busiijess. Applied to corporate meet- 
 ings, including meetings of municipal coun- 
 cils or assembles. 
 
 SPECIAL NON EST FACTUM. The name 
 of a plea by which the defendant says that 
 the deed which he has executed is not his 
 own, or binding upon him, because of some 
 circumstance which shows that it was not 
 intended to be his deed, or because it was 
 not binding upon him for some lawful rea- 
 son; as, when the defendant delivered the 
 deed to a third person as an escrow to be 
 delivered upon a condition, and it has been 
 delivered without the performance of the 
 condition, he may plead non est factum, 
 state the fact of the conditional delivery, the 
 nonperformance of the condition, and add, 
 "and so it is not his deed;" or if the de- 
 fendant be a feme covert, she may plead non 
 est- factum, that she was a feme covert at the 
 time the deed was made, "and so it is not 
 her deed." Bac. Abr. "Pleas," etc. (H 3, I 
 2) ; Gould, PI. c. 6, pt. 1, § 64. See "Issint." 
 
 SPECIAL OCCUPANT. When an estate is 
 granted to a man and his heirs during the 
 life of cestui que vie, and the grantee die 
 without alienation, and while the life for 
 which he held continues, the heir will suc- 
 ceed, and is called a "special occupant." 2 
 Bl. Comm. 259. In the United States, the 
 statute provisions of the different states 
 vary considerably upon this subject. In 
 New York and New Jersey, special occu- 
 pancy is abolished. Virginia, and probably 
 Maryland, follow the English statutes. In 
 Massachusetts and other states, where the 
 real and personal estates of intestates are 
 distributed in the same way and manner, the 
 question does not seem to be material. 4 
 Kent, Comm. 27. 
 
 SPECIAL OFFICER. One who has been 
 appointed a constable for a particular occa- 
 sion, as in the case of an actual tumult or a 
 riot, or for the purpose of serving a particu- 
 lar process. 
 
 SPECIAL OWNER. One having a special 
 property. See "Property." 
 
 SPECIAL PAPER. A list kept in the Eng- 
 
 lish courts of common law, and now in the 
 queen's bench, common pleas, and exchequer 
 divisions of the high court, in which list 
 demurrers, special cases, etc., to be argued 
 are set down. It is distinguished from the 
 new trial paper, peremptory paper, crown 
 paper, revenue paper, etc., according to the 
 practice of the particular division. 
 
 SPECIAL PARTNER. See "Partner." 
 
 SPECIAL PARTNERSHIP. See "Partner- 
 ship." 
 
 SPECIAL PLEA. A plea by whiu al- 
 leged matter to distinguish away or palliate 
 the charge in the declaration. They were 
 various, limitations and estoppel being ex- 
 amples of matters so to be pleaded. 
 
 SPECIAL PLEA IN BAR. One which ad- 
 vances new matter. It differs from the gen- 
 eral in this, that the latter denies some ma- 
 terial allegation, but never advances new 
 matter. Gould, PI. c. 2, § 38. 
 
 SPECIAL PLEADER. In English prac- 
 tice. A lawyer whose professional occupa- 
 tion is to give verbal or written opinions 
 upon statements submitted to him, either in 
 writing or verbally, and to dr-""' pleadings, 
 civil or criminal, and such practical pro- 
 ceedings as may be out of the general course. 
 2 Chit. Prac. 42. 
 
 SPECIAL PLEADING. The science of 
 pleading. 
 
 The allegation of special or new matter 
 to avoid the effect of the previous allega- 
 tions of the opposite party, as distinguished 
 from a direct denial of matter previously 
 alleged on the opposite side. Gould, PI. c. 1, § 
 18; 3 Wheat. (U. S.) 246; Comyn, Dig. 
 "Pleader" (E 15)^ 
 
 SPECIAL PROCEEDINGS. A phrase used 
 in the codes of procedure to denote all pro- 
 ceedings other than actions. 
 
 SPECIAL PROPERTY. That property in 
 a thing which gives a qualified or limited 
 right. See "Property." 
 
 SPECIAL REQUEST. A request actually 
 made, at a particular time and place. This 
 term is used in contradistinction to a "gen- 
 eral request," which need not state the time 
 when nor place where made. 3 Bouv. Inst, 
 note 2843. 
 
 SPECIAL RESTRAINT OF TRADE. See 
 
 "Restraint of Trade." 
 
 SPECIAL RULE. A rule or order of court 
 made in a particular case, for a particular 
 purpose. It is distinguished from a "general 
 rule," which applies to a class of cases. It 
 differs also from a "common rule," or "rule 
 of course." 
 
 SPECIAL SERVICE. In Scotch law, That 
 form of service by which the heir is served 
 to the ancestor who was feudally vested in 
 the lands. Bell, Diet. 
 
SPECIAL SESSIONS 
 
 (864) 
 
 SPECIFICATIO 
 
 SPECIAL SESSIONS. In English law. A 
 meeting of two or more Justices of the peace 
 held for a special purpose (such as the 
 licensing of alehouses), either as required 
 hy statute, or when specially convoked, 
 which can only be convened after notice to 
 all the other magistrates of the division, to 
 give them an opportunity of attending. 
 See "Statute." 
 
 SPECIAL STATUTE. A private statute. 
 See "Statute." 
 
 SPECIAL TAIL. Where an estate tail is 
 limited to the children of two given parents, 
 as to "A. and the heirs of his body by B., 
 his wife." 1 Steph. Comm. 244. 
 
 SPECIAL TERM. A term of court called 
 for a special occasion, as distinguished from 
 the regular terms held at times appointed 
 by law. 
 
 SPECIAL TRAVERSE. See "Traverse." 
 
 SPECIAL TRUST. A special trust is one 
 where a trustee is interposed for the execu- 
 tion of some purpose particularly pointed 
 out, and is not, as in the case of a simple 
 trust, a mere passive depositary of the es- 
 tate, but is required to 'ixert himself ac- 
 tively in the execution of the settlor's in- 
 tention; as, where a conveyance is made to 
 trustees upon trust to reconvey, or to sell 
 ■for the payment of debts. 2 Bouv. Inst, note 
 3.896. See "Trust." 
 
 SPECIAL VERDICT. In practice.' A spe- 
 cial' verdict is one by which the facts of 
 
 "thW case are put on the record, and the law 
 is submitted to the judges. See "Verdict;" 
 
 'BaiiVAbr. "Verdict" (D). 
 
 SPEplALIA GENERALIBUS DEROGANT. 
 
 Spectai words derogate from general words. 
 A sp^ejal provision as to a particular sub- 
 ject-' matter is to be preferred to general 
 langttagfe, which might have governed in 
 the alisence of such special provision. L. 
 R. l-'e: IP. 546. 
 
 SPECIAj-TY. A writing sealed and deliv- 
 eretl,- contkining some agreement. 2 Serg. 
 & R. (Pa.f'503; Willes, 189; IP. Wms. 130; 
 
 .10 Ga. ^167. A writing sealed and delivered, 
 whiQh is' given as a security for the payment 
 of a.debt.'-i'fr which such debt is particularly 
 specifieii. -Bac. Abr. "Obligation" (A). 
 
 Although-ln the body of the writing it 
 is not said that the parties have set their 
 
 'hands and seals, yet if the instrument be 
 really sealed, it is a specialty, and, if it be 
 
 'not sealeji", it is not a specialty, although 
 the parties in the body of the writing make 
 mention of u seal. 2 Serg. & R. (Pa.) 504; 
 2 Coke, 5a. See "Bond;" "Debt;" "Obliga- 
 tion." 
 
 SPECIALTY DEBT. A debt due or ac- 
 knowledged to be due by deed or instrument 
 under seal. 2 Bl. Comm. 465. 
 
 SPECIE. Metallic money issued by pub- 
 lic authority. 
 This term is used in contradistinction to 
 
 "paper money," which in some countries is 
 emitted by the government, and is a mere 
 engagement which represents specie. Bank 
 paper in the United States Is also called 
 "paper money." See "In Specie." 
 
 SPECIES (Lat.) In the civil law. Form; 
 figure; fashion or shape; a form or shape 
 given to materials. 1 Mackeld. Civ. Law, 
 277, § 265. 
 
 A particular thing; as distinguished from 
 "genus." 
 
 SPECIES FACTI (Lat.) The particular 
 kind of act. Ainsworth. 
 
 SPECIFIC. Having a certain form or des- 
 ignation; observing a certain form; par- 
 ticular; precise. Burrill. 
 
 SPECIFIC DEVISES. Devises of lands 
 particularly specified in the terms of the de- 
 vise, as opposed to general and residuary 
 devises of land, in which the local or other 
 particular descriptions are not expressed. 
 For example, "I devise my Heindon Hall es- 
 tate" is a specific devise; but "I devise all 
 my lands," or, "all other my lands," is a 
 general devise or a residuary devise. But 
 all devises are, in effect, specific; even re- 
 siduary devises being so. L. R. 3 Ch. 420; 
 L. R. 10 Ch. 136; Brown. 
 
 SPECIFIC LEGACY. A bequest of a par- 
 ticular thing, so described that it may be 
 identified. The description may be such as 
 to distinguish a particular article among sev- 
 eral of the class owned by testator, or it 
 may embrace all the property of a class 
 owned by him. Thus, a legacy of "one set 
 of blacksmith's tools" is general (8 N. Y. 
 520) ; but a legacy of "the diamond ring pre- 
 sented to me by A.," or of "all the personal 
 property on the farm or in the house at the 
 time of my death" (30 Hun [N. Y.] 531), is 
 specific. 
 
 SPECIFIC PERFORMANCE. The actual 
 accomplishment of a contract by the party 
 bound to fulfill it. 
 
 An equitable remedy to compel the precise 
 or substantial performance of a contract. 
 
 The right to the remedy was in its origin 
 dependent on the inadequacy of the legal 
 remedy by suit for damages, but this rule 
 has been very much relaxed. 2 N. Y. 60; 7 
 111. 327. 
 
 SPECIFICATIO (Lat.) In civil law. The 
 process by which, from material either of 
 one kind or different kinds, either belong- 
 ing to the person using them or to another, 
 a new form or thing is created; as, if from 
 gold or gold and silver a cup be made, or 
 from grapes wine. Calv. Lex. Whether the 
 property in the new article was in the owner 
 of the materials, or in him who effected the 
 change, was a matter of contest between the 
 two great sects of Roman lawyers. Stair, 
 Inst. p. 204, § 41; Mackeld. Civ. Law, § 241. 
 
SPECIFICATION 
 
 (865) 
 
 SPIRITUOUS LIQUORS 
 
 SPECIFICATION. A particular and de- 
 tailed account of a thing. 
 
 For example, in order to obtain a patent 
 for an invention, it is necessary to file a 
 specification or an instrument of writing, 
 which must lay open and disclose to the pub- 
 lic every part of the process by which the 
 invention can be made useful. If the speci- 
 fication does not contain the whole truth 
 relative to the discovery, or contains more 
 than is requisite to produce the desired ef- 
 fect, and the concealment or addition was 
 made for the purpose of deception, the pat- 
 ent would be void; for if the specification 
 were insufficient on account of its want of 
 clearness, exactitude, or good faith, it would 
 be a fraud on society that the patentee 
 should obtain a monopoly without giving up 
 his Invention. 2 Kent, Comm. 300; 1 Bell, 
 Comm. pt. 2, c. 3, § 1, p. 112,; Perpigna, Pat. 
 67; Renouard des Brevets d'Inv. 252. See 
 "PatGDt." 
 
 In Military Law. The clear and par- 
 ticular description of the charges preferred 
 against a person accused of a military of- 
 fense. Tytler, Mil. Law, 109. 
 
 SPECIMEN. A sample; a part of some- 
 thing by which the other may be known. 
 
 Act Cong. July 4, 1836, § 6, requires the 
 inventor or discoverer of an invention or 
 discovery to accompany his petition and 
 specification for a patent with specimens of 
 ingredients, and of the composition of mat- 
 . ter sufficient in quantity for the purpose of 
 experiment, where the invention or discov- 
 ery is of the composition of matter. 
 
 SPECULATION. The hope or desire of 
 making a profit by the purchase and resale 
 of a thing. Pardessus, Dr. Com. note 12. 
 The profit so made; as, he made a good spec- 
 ulation. 
 
 SPECULATIVE DAMAGES. See "Dam- 
 ages." 
 
 SPECULUM (Lat.) Mirror or looking 
 glass. The title of several of the most an- 
 cient law books or compilations. One of 
 the ancient Icelandic books is styled tipecu- 
 Jum Regale. In the preface to this work, 
 four others, bearing the same title of Specu- 
 lum, are referred to. There is also a col- 
 lection of the ancient laws of Pomerania 
 and Prussia, under the same title. Barr. 
 Obs. St. 1, 2, note (b). 
 
 SPEEDY EXECUTION. An execution 
 which, by the direction of the judge at nisi 
 prius, issues forthwith, or on some early 
 day fixed upon by the judge for that pur- 
 pose after the trial of the action. Brown. 
 
 SPEEDY TRIAL. A trial brought on as 
 speedily as the prosecution can reasonably be 
 expected or required to be ready for it. 4 
 Nev. 113; 74 Iowa, 369. 
 
 SPENDTHRIFT. A person who, by ex- 
 cessive drinking, gaming, idleness, or de- 
 bauchery of any kind, shall so spend, waste, 
 or lessen his estate as to expose himself or 
 his family to want or suffering, or expose the 
 
 town to charge or expense for the support of 
 himself or family. Rev. St. Vt. c. 65, § 9. 
 
 SPENDTHRIFT TRUST. A trust created 
 for the purpose of providing for the main- 
 tenance of a person, and at the same time 
 putting the property from which such main- 
 tenance is derived beyond the reach of the 
 improvidence of the beneficiary. It is gen- 
 erally held that such trusts are Ineffective, 
 on the ground that the beneficial Interest of 
 the cestui que trust, wha-tever it may be, is 
 liable for his debts (5 Wall. [U. S.] 441; 15 
 Ohio St. 419) ; but in some states, such trust 
 provisions have been upheld (20 Mo. App. 1; 
 86 Tenn. 81). 
 
 SPERATE (Lat. spero, to hope). That of 
 which there is hope. 
 
 In the accounts of an executor and the in- 
 ventory of the personal assets, he should 
 distinguish between those which are sperate 
 and those which are desperate. He will be 
 prima facie responsible for the former, and 
 discharged for the latter. 1 Chit. Prac. 520; 
 2 Williams, Ex'rs, 644; Toller, Ex'rs, 248. 
 See "Desperate." 
 
 SPES EST VIGILANTISSOMNIUM. Hope 
 is the dream of the vigilant. 4 Inst. 203. 
 
 SPES IMPUNITATIS CONTINUUM AF- 
 fectum tribuit delinquendi. The hope of im- 
 punity holds out a continual temptation to 
 crime. 3 Inst. 236. 
 
 SPES RECUPERANDI (Lat. the hope of 
 recovery). A term applied to cases of cap- 
 ture of an enemy's property as a booty or 
 prize, while it remains in a situation in 
 which it is liable to be recaptured. As be- 
 tween the belligerent parties, the title to the 
 property taken as a prize passes the mo- 
 ment there is no longer any hope of recov- 
 ery. 2 Burrows, 683. 
 
 SPINSTER. An addition given, in legal 
 writings, to a woman who never was mar- 
 ried. Lovelace, Wills, 269. 
 
 SPIRITUAL CORPORATIONS. Corpora- 
 tions, the members of which are entirely 
 spiritual persons, and incorporated as such, 
 for the furtherance of religion, and perpetu- 
 ating the rights of the church. They are of 
 two sorts, — sole, as bishops, certain deans, 
 parsons, and vicars, or aggregate, as dean 
 and chapter, prior and convent, etc. 
 
 SPIRITUAL COURTS. Ecclesiastical 
 courts (g. V.) 
 
 SPIRITUAL LORDS. The archbishops, 
 and bishops of the house of lords. 2 Steph. 
 Comm. (7th Ed.) 328. 
 
 SPIRITUALITY OF BENEFICES. The 
 
 tithes of land, etc. 
 
 SPIRITUOUS LIQUORS. These are inflam- 
 mable liquids produced by distillation, and 
 forming an article of commerce. 1 Exch. 
 281. The term does not include fermented 
 liquors, 5 Blackf. (Ind.) U8. 
 
SPITAL 
 
 (866) 
 
 SPRINGING USE 
 
 SPITAL, or SPITTLE. A charitable foun- 
 dation; a hospital for diseased people. Cow- 
 ell., 
 
 SPLIT. See "Gambling Contract." 
 
 SPLITTING A CAUSE OF ACTION. The 
 
 bringing an action for only a part of the 
 cause of action. This is not permitted ei- 
 ther at law or in equity. 4 Bouv. Inst, note 
 4167. 
 
 SPOLIATION. 
 
 In English Ecclesiastical Law. The 
 
 name of a suit sued out in the spiritual court 
 to recover for the fruits of the church, or 
 for the church itself. Fitzh. Nat. Brev. 85. 
 
 A waste of church property by an ecclesi- 
 astical person. 3 Bl. Comm. 90. 
 
 In Torts. Destruction of a thing by 
 
 the act of a stranger; as, the erasure or al- 
 teration of a writing by the act of a stranger 
 Is called "spoliation." This has not the ef- 
 fect to destroy its character or legal effect. 
 1 Greeril. Ev. § 566. 
 
 In Admiralty Law. By spoliation is 
 
 also understood the total destruction of a 
 thing; as, the spoliation of papers by the 
 captured party is generally regarded as a 
 proof of guilt; but in America it is open to 
 explanation except in certain eases, where 
 there is a vehement presumption of bad 
 faith. 2 Wheat. (U. S.) 227, 241; 1 Dods. 
 Adm. 480, 486. See "Alteration." 
 
 SPOLIATOR (Lat. from spoUare, to de- 
 spoil). In old English law. A despoiler; 
 aa disseisor. Fleta, lib. 4, c. 2, §§ 19, 20, 22. 
 
 A destroyer (of a deed). See "In Odium 
 Spoliatoris." 
 
 SPOLIATUS DEBET ANTE OIVINIA RES- 
 tituti. He who has been despoiled ought to 
 be restored before anything else. 2 Inst. 
 714; 4 Bl. Comm. 353. 
 
 SPOLIUM. In the civil and common law. 
 A thing violently or unlawfully taken from 
 another. 1 Mackeld. Civ. Law, 261, note. 
 
 SPONDEO (Lat.) In the civil law. I un- 
 dertake; I engage. Inst. 3. 16. 1. 
 
 SPONDES? SPONDEO (Lat.) Do you un- 
 dertake? I do undertake. The most com- 
 mon form of verbal stipulation in the Ro- 
 man law. Inst. 3. 16. 1. 
 
 SPONDET PERITIAM ARTIS. He prom- 
 , ises to use the skill of his art. Poth. de 
 Contr. du Louage, note 425; Jones, Bailm. 
 22, 53, 62, 97, 120; Domat, liv. 1, tit. 4, § 8, 
 note 1; 1 Story, Bailm. § 431; 1 Bell, Comm. 
 (5th Ed.) 459; 1 Bouv. Inst, note 1004. 
 
 SPONSALIA, or STIPULATIO SPONSA- 
 iitia (Lat.) A promise lawfully made be- 
 tween persons capable of marrying each oth- 
 er, that at some future time they will mar- 
 ry. See "Espousals;" Ersk. Inst. 1. 6. 3. 
 
 SPONSIA JUDICIALIS. The feigned issue 
 of the Romans. See "Feigned Issue." 
 
 SPONSIO (Lat.) In the civil law. An 
 engagement or undertaking; particularly 
 
 such as was made in, the form, of an answer 
 to a formal interrogatory by, the other party. 
 Calv. Lex.; Dig. 50. 16. 7. 
 
 An engagement to pay a certain sum of 
 money to the successful party in a cause. 
 Calv. Lex. 
 
 SPONSIO LUDICRA (Lat.) 
 
 In Scotch Law. A trifling or ludicrous 
 
 engagement, such as a court will not sustain 
 an action for. 1 Karnes, Eq. Introd. 34. 
 
 In the Civil Law. An informal under- 
 taking, or one made without the usual for- 
 mula of interrogation. Calv. Lex. 
 
 SPONSIONS. In international law. Agree- 
 ments or engagements made by certain pub- 
 lic officers, as generals or admirals, in time 
 of war, either without authority or by ex- 
 ceeding the limits of authority under which 
 they purport to be made. 
 
 Before these conventions can have any 
 binding authority on the state, they must be 
 confirmed by express or tacit ratification. 
 The former is given in positive terms and in 
 the usual forms; the latter is justly implied 
 from the fact of acting under the agreement 
 as if bound by it, and from any other cir- 
 cumstance from which an assent may be fair- 
 ly presumed. Wheaton, Int. Law, pt. 3, c. 2, 
 § 3; Grotius de Jure Belli, lib. 2, c. 15, § 16; 
 Id. lib. 3, c. 22, §§ 1-3; Vattel, Law Nat. bk. 
 2, c. 14, §§ 209-212; Wolff. Inst. § 1156. 
 
 SPONSOR. In civil law. He who inter- 
 venes for another voluntarily and without be- 
 ing requested. The engagement ■ which he 
 enters into is only accessory to the principal. 
 See Dig. 17. 1. 18; Nov. 4. 1; Code de Comm. 
 arts. 158, 159; Code Nap. 1236; Wolff. Inst. 
 § 1556. 
 
 SPONTE OBLATA. A free gift or pres- 
 ent to the crown. 
 
 SPONTE VIRUM FUGIENS MULIER ET 
 adultera facta, doti sua careat, nisi sponte 
 retracta. A woman leaving her husband of 
 her own accord, and committing adultery, 
 loses her dower, unless her husband takes 
 her back of his own accord. Co. Litt. 37. 
 
 SPORTULA, or SPORTELLA. A dole or 
 largess, either of meat or money, given by 
 princes or great men to the poor. It was 
 properly the pannier or basket in which the 
 meat was brought, or with which the poor 
 went to beg it, thence the word was trans- 
 ferred to the meat itself, and thence to 
 money sometimes given in lieu of it. Enc. 
 Lond. 
 
 SPOUSALS. In old English law. Mutual 
 promises to marry. 
 
 SPOUSE BREACH. In old English law. 
 Adultery. Cowell. 
 
 SPREAD. See "Gambling Contract." 
 
 SPRINGING USE. A use limited to arise 
 on^a future event, where no preceding use 
 is limited, and which does not take effect in 
 derogation of any other interest than that 
 
SPUDZIE 
 
 (867) 
 
 STAMP 
 
 ■which, results to the grantor, or remains in 
 him in the meantime. Gilb. Uses (Sugden 
 Ed.) 153, note; 2 Crabb, Real Prop. 498. 
 
 A future use, either vested or contingent, 
 limited to arise without any preceding lim- 
 itation. Cornish, Uses, 91. 
 
 In differs from a remainder in not requir- 
 ing any other particular estate to sustain it 
 than the use resulting to the one who cre- 
 ates it, intermediate between its creation and 
 the subseauent taking effect of the springing 
 use. Dyer, 274; Poll. 65; 1 Bdw. Ch. (N. Y.) 
 34; 4 Dru. & W. 27; 1 Mod. 238; 1 Me. 271. 
 It differs from an executory devise in that 
 a devise is created by will, a use by deed. 
 Fearne, Cont. Rem. 385 (Butler's note) ; Wil- 
 son, Uses. It differs from a shifting use, 
 though often confounded therewith. See, 
 generally, 2 Washb. Real Prop. 281. See 
 "Use." 
 
 SPULZIE (.spo!(flHo). In Scotch law. The 
 taking away movables without the consent 
 of the owner or order of law. Stair, Inst. 
 96, § 16; Bell, Diet. 
 
 SPURIUS (Lat.) In the civil law. Abas- 
 tard; the offspring of promiscuous cohabi- 
 tation, otherwise called vulgo quaesitus, or 
 coiicevtus. Inst. 1. 10. 12. 
 
 One born of an unlawful intercourse (ex 
 nuptiiK liiiiiftis, 6r c.r daiiiiiato cuitii). Inst. 
 1. 10. 12; Bracton, fol. 63. 
 
 SPY. One who penetrates secretly or in 
 disguise or by false pretenses within mili- 
 tary lines for the purpose of obtaining infor- 
 mation to be used to the disadvantage of 
 the forces so spied upon. 
 
 SQUATTER. One who settles on the 
 lands of others without any legal authority. 
 This term is applied particularly to persons 
 who settle on the public land. 3 Mart. (La.; 
 N. S.) 293; 5 Biss. (U. S.) 530. 
 
 SQUEEZED. See "Gambling Contract." 
 
 STAB. To make a wound with a pointed 
 instrument. A stab differs from a cut or a 
 wound. 3 La. Ann. 514; Russ. & R. 356; 
 Russ. Crimes, 597; Bac. Abr. "Maihem" (B). 
 
 STAB I U A. A writ called by that name, 
 founded on a custom in Normandy, that 
 where a man in power claimed land in the 
 possession of an inferior, he petitioned the 
 prince that it might be put into his hands 
 till the right was decided, whereupon he had 
 this writ. Wharton. 
 
 STABIT PRAESUMPTIO DONEC PRO- 
 betur in contrarium. A presumption will 
 stand good until the contrary is proved. 
 Hob. 297; 3 Bl. Comm. 371; Broom, Leg. 
 Max. (3d London Ed.) 852; 16 Mass. 87. 
 
 STABLE STAND. In forest law. One of 
 the four evidences or presumptions whereby 
 a man was convicted of an intent to steal 
 the king's deer in the forest. This was when 
 a man was found at his standing in the for- 
 est with a cross-bow or long-bow bent, ready 
 to shoot at any deer, or else standing close 
 
 by a tree with greyhounds in a leash, ready 
 to slip. Cowell. 
 
 STABULARll (Lat. pi. of stalmlarinis) . In 
 the civil law. Stable keepers; hostlers; (jul 
 Ktdliiiliiin exox-i'iil. Dig. 4. 9. 1. 5; Story, 
 Bailm. § 464. 
 
 STAGE RIGHT. Words which it has been 
 attempted to introduce as a substitute for 
 "the right of representation and perform- 
 ance," but it can hardly be said to be an ac- 
 cepted term of English or American law. 
 
 STAGNUM (Lat.) A pool. It is said to 
 consist of land and water, and therefore by 
 the name of stagnum the water and the land 
 may be passed. Co. Litt. 5. 
 
 STAKEHOLDER. A third person chosen 
 by two or more persons to keep in deposit 
 property the right or possession of which is 
 contested between them, and to be delivered 
 to the one who shall establish his right to it. 
 Thus, each of them is considered as depos- 
 iting the whole thing. This distinguishes 
 this contract from that which takes place 
 when two or more tenants in common de- 
 posit a thing with a bailee. Domat, Lois 
 Civ. liv. 1, tit. 7, § 4; 1 Vern. 44, note 1. 
 
 A person having in his hands money or 
 other property claimed by several others is 
 considered in equity as a stakeholder. 1 
 Vern. 144. 
 
 STALE DEMAND. A claim which has 
 been for a long time undemanded; as, for 
 example, where there has been a delay of 
 twelve years unexplained. 3 Mason (U. S.) 
 161. 
 
 STALLAGE (Saxon, stal). The liberty or 
 right of pitching or erecting stalls in fairs 
 or markets, or the money paid for the same. 
 Blount; Wharton; 6 Q. B. 31. 
 
 STALLARIUS (Lat.) In Saxon law. The 
 praefectus stabuli, now master of the horse 
 (Saxon, stalsiaivlum) . Blount. Sometimes 
 one who has a stall in a fair or market. 
 Pleta, lib. 4, c. 28, p. 13. 
 
 STAMP. An impression made by order of 
 the government, on paper, which must be 
 used in reducing certain contracts to writ- 
 ing, for the purpose of raising a revenue. 
 See Starkie, Bv.; 1 Phil. Bv. 444. 
 
 A paper bearing an impression or device 
 authorized by law, and adapted ft)r attach- 
 ment to some subject of duty or excise. 
 
 The term in American law is used often 
 in distinction from "stamped paper," which 
 latter meaning, as well as that of the device 
 or impression itself, is included in the broad- 
 er signification of the word. 
 
 Stamps or stamped paper are prepared un- 
 der the direction of officers of the govern- 
 ment, and sold at a price equal to the duty 
 or excise to be collected. The stamps are 
 affixed and cancelled; and where stamped 
 paper is used, one use obviously prevents 
 a second use. The internal revenue acts of 
 the United States of 1862 and subsequent 
 years require stamps to be affixed to a great 
 
STAND 
 
 (868) 
 
 STATE'S EVIDENCE 
 
 variety of subjects, under severe penalties 
 in the way of fines, and also under penalty 
 of invalidating written instruments, and ren- 
 dering them incapable of being produced in 
 evidence. NeLther the system nor the law 
 upon the subject, however, has become suf- 
 ficiently established to warrant a full exam- 
 ination of the matter here. 
 
 STAND. To abide by a thing; to submit 
 to a decision; to comply with an agreement; 
 to have validity; as, the judgment must 
 stand. 
 
 STANDARD. 
 
 In War. An ensign or flag used in 
 
 war. 
 
 In Measures. A weight or measure 
 
 of certain dimensions, to which all other 
 weights and measures must correspond; as, 
 a standard bushel. Also, the quality of cer- 
 tain metals, to which all others of the same 
 kind ought to be made to 'conform; as, stand- 
 ard gold, standard silver. 
 
 STANDING ASIDE. A practice prevailing 
 in England and a few of the United States 
 in the selection of jurors in a criminal case, 
 whereby the prosecuting attorney may per- 
 emptorily put aside a juror without chal- 
 lenge until the panel is exhausted, at which 
 time the jurors so put aside are called, and 
 cause must be shown against them. 
 
 STANDlKiG MUTE. Refusal of one charg- 
 ed with crime to plead to the charge, or, 
 after plea of not guilty, to put himself upon 
 the tountry. 
 
 STANDING SEISED TO USES. See "Cov- 
 enant to Stand Seized to Uses." 
 
 STANNARY COURTS (slammvy, from Lat. 
 stannum, Cornish, stean, tin, — a tin mine) . 
 In English law. Courts of record, in Devon- 
 shire and Cornwall, England, for the admin- 
 istration of justice among the tinners there- 
 in. They are of the same limited and ex- 
 clusive nature as those of the counties pala- 
 tine. 
 
 STAPLE. In international law. The right 
 of staple, as exercised by a people upon for- 
 eign merchants, is defined to be that they 
 may not allow them to set their merchan- 
 dises and wares to sale but in a certain 
 place. 
 
 This practice is not in use in the United 
 States. 1 Chit. Com. Law, 103; 4 Inst. 238; 
 Maione, Lex. Merc. 237; Bac. Abr. "Execu- 
 tion" (B 1). See "Statute Staple." 
 
 STAR CHAMBER. See "Court of Star 
 Chamber." 
 
 STARE DECISIS. To abide by or adhere 
 to decided cases. It is a general rule that, 
 when a point has been settled by a decision, 
 it becomes a precedent -^hich should be fol- 
 lov/ed in subsequent cases before the same 
 court. The rule is based wholly on policy, 
 in the interest of uniformity and certainty 
 of the law, but is frequen'ly departed from. 
 See "Rule of Property." 
 
 STARE DECISIS, ET NON QUIETA MO- 
 vere. To adhere to precedents, and not to 
 unsettle things which are established. 9 
 Johns. (N. Y.) 395, 428; 11 Wend. (N. Y.) 
 504, 507; 23 Wiend. (N. Y.) 336, 340; 25 
 Wend. (N. Y.) 119, 142; 4 Hill (N. Y.) 271, 
 323; 4 Hill (N. Y.) 592, 595; 22 Barb. (N. Y.) 
 97, 106. 
 
 STARE IN JUDICIO (Lat.) To appear be- 
 fore a tribunal, either as plaintiff or defend- 
 ant. 
 
 STAT PRO RATIONS VOLUNTAS. The 
 
 will stands in place of a reason. 1 Barb. (N 
 Y.) 408, 411; 16 Barb. (N. Y.) 514, 525. 
 
 STAT PRO RATIONE VOLUNTAS POP- 
 
 uli. The will of the people stands in place 
 of a reason. 25 Barb. (N. Y.) 344, 376. 
 
 STATE (Lat. stare, to place, establish). 
 
 In Governmental Law. A self-suflicient 
 
 body of persons united together in one com- 
 munity for the defense of their rights, and 
 to do right and justice to foreigners. In this 
 Sense, the state means the whole people 
 united into one body politic; and the "state," 
 and the "people of the state," are equivalent 
 expressions. 1 Pet. Cond. Rep. (U. S.) 37-39; 
 2 Dall. (Pa.) 425; 3 Dall. (Pa.) 93; 2 Wil- 
 son, Lect. 120; Dane, Abr. Append. § 50, p. 
 63; 1 Story, Const. § 361. A body govern- 
 mental and politic, comprising all the hu- 
 man beings within a certain defined terri- 
 tory, organized for the purpose of govern- 
 ing, and which does supremely govern, with- 
 in the limits of that territory. The posi- 
 tive or actual organization of the legislative 
 or judicial powers; thus, the actual govern- 
 ment of the state is designated by the name 
 of the state; hence the expression, the state 
 has passed such a law or prohibited such an 
 act. The section of territory occupied by a 
 state; as, the state of Pennsylvania. 
 
 One of the commonwealths which form the 
 United States of America. 
 
 In Practice. To make known specific- 
 ally; to explain particularly; as, to state an 
 account, or to show the different items in an 
 account; to state the cause of action in a 
 declaration. 
 
 STATE OF FACTS AND PROPOSAL. In 
 
 English lunacy practice, when a person has 
 been found a lunatic, the next step Is to 
 submit to the master a scheme called a 
 "state of facts and proposal," showing what, 
 is the position in life, property, and income 
 of the luratic, who are his next of kin and 
 heir at law, who are proposed as his com- 
 mittees, and what annual sum is proposed to 
 be allowed for his maintenance, etc. From 
 the state of facts and the evidence adduced 
 in support of it, the master frames his re- 
 port. Elmer, Lun. 22; Pope, Lun. 79. A 
 similar practice formerly prevailed in chan- 
 cery. 
 
 STATE TRIALS. Trials of political of- 
 fenders. Also the rame of a series of re 
 ports of such trials held in England. 
 
 STATE'S EVIDENCE. A term used in the 
 
STATED TERM 
 
 (86t») 
 
 STATUTE 
 
 United States corresponding to the king's 
 (or queen's) evidence of England. 
 
 STATED TERM. A regular term of court, 
 held at the time fixed by law or rule. 
 
 STATEMENT. See "Particular State- 
 ment." 
 
 STATEMENT OF AFFAIRS. In English 
 bankruptcy practice, a bankrupt or debtor 
 who has presented a petition for liquidation 
 or composition must produce at the first 
 meeting of creditors a statement of his af- 
 ' fairs, gluing a list of his creditors, secured 
 and unsecured, with the value of the securi- 
 ties, a list of bills discounted, and a state- 
 ment of his property. Bankruptcy Act 186a, 
 § 19. 
 
 STATEMENT OF CLAIM. A written or 
 printed statement by the plaintiff in an ac- 
 tion in the English high court, showing the 
 facts on which he relies to support his claim 
 against the defendant, and the relief which 
 he claims. It is delivered to the defendant 
 or his solicitor. The delivery of the state- 
 ment of claim is usually the next step after 
 appearance, and is the commencement of the 
 pleadings. The next step in the action is 
 the statement of defense. 
 
 STATEMENT OF DEFENSE. In the prac- 
 tice of the English high court, where the 
 defendant in an action does not demur to 
 the whole of the plaintiff's claim, he deliv- 
 ers a pleading called a "statement of de- 
 fense." The statement of defense deals with 
 the allegations contained in the statement 
 of claim (or the indorsement on the writ, 
 if there is no statement of claim), admit- 
 ting or denying them, and, if necessary, stat- 
 ing fresh facts in explanation or avoidance 
 of those alleged by the plaintiff. 
 
 STATEMENT OF PARTICULARS. In 
 
 English practice, when the plaintiff claims 
 a debt or liquidated demand, but has not in- 
 dorsed the writ specially (i. e., indorsed on 
 It the particulars of his claim under Order 
 iii. r. 6), and the defendant fails to appear, 
 the plaintiff may file a statement of the 
 particulars of his claim, and after eight 
 days enter judgment for the amount, as if 
 the writ had been specially indorsed. Rules 
 of Court xiii. 5. 
 
 ST ATI M (Lat.) Immediately. 
 
 STATING PART OF A BILL. See "Bill." 
 
 STATION. In civil law. A place where 
 ships may ride in safety. Dig. 49. 12. 1. 13; 
 Id. 50. 15. 59. 
 
 STATIONERS' HALL. St. 5 & 6 Vict. c. 
 45, authorizes, in every case of copyright, 
 the registration of the title of the proprietor 
 at Stationers' Hall, and provides that, with- 
 out previous registration, no action shall be 
 commenced, though an omission to register 
 is not otherwise to affect the copyright itself. 
 It was founded A. D. 1553. 2 Hall, Hist. 
 Lit. pt. 2, c. 8, p. 366; 3 Steph. Comm. (7th 
 Ed.) 37. 
 
 STATU LIBER! (Lat.) In Louisiana. 
 Slaves for a time, who have acquired 
 the right of being free at a time to come, 
 or on a condition which is not fulfilled, or 
 in a certain event which has not happened, 
 but who in the meantime remain in a state 
 of slavery. Civ. Code La. art. 37. See 3 La. 
 176; 6 La. 571; 4 Mart. (La.) 102; 7 Mart. 
 (La.) 351; 8 Mart. (La.) 219. This is sub- 
 stantially the defmition of the civil law. 
 Hist, de la Jur. lib. 40; Dig. 40. 7. 1; Code, 
 7. 2. 13. 
 
 STATUS (Lat.) The condition of persons. 
 It also means "estate," because it signifies 
 the condition or circumstances in which the 
 owner stands with regard to his property. 2 
 Bouv. Inst, note 1689. 
 
 STATUS DE MANERIO. The assembly of 
 the tenants in the court of the lord of a 
 manor, in order to do their customary suit. 
 
 STATUS QUO (Lat.) The existing state 
 of things at any given date. Status quo ante 
 bellum, the state of things before the war. 
 
 STATUTA PRO PUBLICO COMMODO 
 late Interpretantur. Statutes made for the 
 public good ought to be liberally construed. 
 Jenk. Cent. Cas. 21. 
 
 STATUTA SUO CLUDUNTUR TERRITO- 
 rio, nee ultra terrltorlum disponunt. Stat- 
 utes are confined to their own territory, and 
 have no extraterritorial effect. 4 Allen 
 (Mass.) 324. 
 
 STATUTABLE, or STATUTORY. That 
 which is introduced or governed by statute _ 
 law, as opposed to the common law or equi- 
 ty. Thus, a court is said to have statutory 
 jurisdiction when jurisdiction is given to it 
 in certain matters by statute. 
 
 STATUTE. A law established by the act 
 of the legislative power; an act of the legis- 
 lature; the written will of the legislature, 
 solemnly expressed according to the forms 
 necessary to constitute it the law of the 
 state. 
 
 This word is used to designate the written 
 law, in contradistinction to the unwritten 
 law. See "Common Law." 
 
 Among the civilians, the term "statute" is 
 generally applied to laws and regulations of 
 every sort. Every provision of law which 
 ordains, permits, or prohibits anything is 
 designated a "statute," without considering 
 from what source it arises. Sometimes the 
 word is used in contradistinction -from the 
 imperial Roman law, which, by way of em- 
 inence, civilians call the "common law." 
 
 In Old Common Law. A bond or ob- 
 ligation of record. See "Statute Merchant;" 
 "Statute Staple." 
 
 Classification: 
 
 (1) An affirmative statute is one which is 
 enacted in affirmative terms. Such a stat- 
 ute does not necessarily take away the com- 
 mon law. 2 Inst. 200; Dwarr. St. 474. If, 
 for example, a statute without negative 
 words declares that, when certain requisites 
 shall have been complied with, deeds shall 
 
STATUTE 
 
 (870) 
 
 STATUTE OF ELIZABETH 
 
 have a certain effect as evidence, this does 
 not prevent their being used in evidence, 
 though the requisites have not heen com- 
 plied with, in the same manner as they 
 might have been before the statute was 
 passed. 2 Gaines (N. Y.) 169. Nor does 
 such an affirmative statute repeal a preced- 
 ent statute if the two can both be given 
 effect. Dwarr. St. 474. 
 
 (2) A declaratory statute is one which is 
 passed in order to put an end to a doubt as 
 to what is the common law or the meaning 
 of another statute, and which declares what 
 it is and ever has been. 
 
 (3) A negative statute is one expressed in 
 negative terms, and so controls the common 
 law that it has no force in opposition to the 
 statute. Bac. Abr. "Statute" (G). 
 
 (4) Penal statutes are those which com- 
 mand or prohibit a thing under a certain 
 penalty. Espinasse, Pen. Act. 5; Bac. Abr. 
 See, generally, Bac. Abr.; Comyn, Dig. "Par- 
 liament;" Viner, Abr.; Dane, Abr. Index; 
 Chit. Prac; 1 Kent, Comm. 447-459; Barr. 
 Obs. St.; Boscawen, Pen. St.; Espinasse, Pen. 
 Act; Dwarr. St.; Sedgw. Const. Law. A 
 statute affixing a penalty to an act, though 
 it does not in words prohibit it, thereby 
 makes it illegal. 14 Johns. (N. Y.) 273; 1 
 Bin. (Pa.) 110; 37 Eng. Law & Bq. 475; 14 
 N. H. 294; 4 Iowa; 490; 7 Ind. 77. 
 
 (5) Mandatory statutes are such as imper- 
 atively require compliance. 
 
 (6) Directory statutes are such as may be 
 violated without invalidating the acts done 
 in violation of it. 
 
 (7) Permissive statutes are those which 
 allow something without requiring it. 
 
 (8) A perpetual statute is one for the con- 
 tinuance of which there is no limited time, 
 although it be not expressly declared to be 
 so. 
 
 If a statute which did not itself contain 
 any limitation is to be governed by another 
 which is temporary only, the former will al- 
 so be temporary and dependent upon the ex- 
 istence of the latter. Bac. Abr. "Statute" 
 (D). 
 
 (9) A temporary statute is one which is 
 limited in its duration at the time of its 
 enactment. 
 
 It continues in force until the time of its 
 limitation has expired, unless sooner re- 
 pealed. A statute which, by reason of its 
 nature, has only a single and temporary op- 
 eration — e. (jr., an appropriation bill — is also 
 called a "temporary statute." 
 
 The most ancient English statute extant is 
 Magna Charta. Formerly the statutes enact- 
 ed after the beginning of the reign of Edw. 
 III. were called Nova Statuta, or new stat- 
 utes, to distinguish them from the ancient 
 statutes. The modern English statutes are 
 divided into public general acts, local and 
 personal acts declared public, private acts 
 printed, and private acts not printed. In par- 
 liamentary practice are adopted other dis- 
 tinctions, resting upon different grounds. 
 
 (10) A remedial statute is one made to 
 supply such defects and abridge such super- 
 fluities in the common law as may have been 
 discovered. 1 Bl. Comm. 86. 
 
 These remedial statutes are themselves di- 
 vided into 
 
 (a) "Enlarging" statutes, by which the 
 common law is made more comprehensive 
 and extended than it was before, and into 
 
 (b) "Restraining" statutes, by which it is 
 narrowed down to that which is just and 
 proper. The term "remedial statute" is also 
 applied to those acts which give the party 
 injured a remedy, and in some respects 
 such statutes are penal. Espinasse, Pen. 
 Act. 1. 
 
 (11) Public statutes are those which- af- 
 fect the public at large, whether their op- 
 eration be throughout the state, or in a par- 
 ticular locality. 93 N. C. 600. 
 
 (12) Private statutes are such as affect in 
 a peculiar manner certain persons or class- 
 es. 43 N. Y. 10. 
 
 By the civilians, statutes are considered 
 as real, personal, or mixed. 
 
 (1) Mixed statutes are those which con- 
 cern at once both persons and property; but 
 in this sense almost all statutes are mixed, 
 there being scarcely any law relative to per- 
 sons which does not at the same time relate 
 to things. 
 
 (2) Personal statutes are those which have 
 principally for their object the person, and 
 treat of property only incidentally. Such are 
 those which regard birth, legitimacy, free- 
 dom, the right of instituting suits, majority 
 as to age, incapacity to contract, to make a 
 will, to plead in person, and the like. A per- . 
 sonal statute is universal in its operation, 
 and in force everywhere. 
 
 (3) Real statutes are those which have 
 principally for their object property, and 
 which do not speak of persons except in re- 
 lation to property. Story, Confl. Laws, § 13. 
 Such are those which concern the disposi- 
 tion which one may make of his property 
 either alive or by testament. A real statute, 
 unlike a personal one, is confined in its op- 
 eration to the country of its origin. 
 
 STATUTE FAIR. In English law. A fair 
 at which laborers of both sexes stood and 
 offered themselves for hire; sometimes call- 
 ed, also, "Mop." 
 
 STATUTE MERCHANT. A' security en- 
 tered before the mayor of London, or some 
 chief warden of a city, in pursuance of 13 
 Edw. I. St. 3, c. 1, whereby the lands of the 
 debtor are conveyed to the creditor till out 
 of the rents and profits of them his debt 
 may be satisfied. Cruise, Dig. tit. 14, § 7; 2 
 Bl. Comm. 160. 
 
 STATUTE OF ALLEGIANCE DE FACTO. 
 
 Act 11 Hen. VII. c. 1, requiring subjects to 
 give their allegiance to the actual king for 
 the time being, and protecting them in so do- 
 ing. 
 
 STATUTE OF DISTRIBUTION. A statute 
 regulating the distribution of the estate of 
 an intestate. 
 
 STATUTE OF ELIZABETH. St. 13 Bliz. 
 c. 5, relating to fraudulent conveyances. 
 
STATUTE OF FRAUDS 
 
 (871) 
 
 STAY OF EXECUTION 
 
 STATUTE OF FRAUDS. See "Frauds, 
 Statute of." 
 
 STATUTE OF USES. See "Use." 
 
 STATUTE OF WILLS. The statute 32 
 Hen. VIII. c. 1, by which the right of testa- 
 mentary disposal of property in lands is 
 created. 2 Bl. Comm. 375. 
 
 STATUTE ROLL. A roll upon which an 
 English statute, after receiving the royal as- 
 sent, was formerly entered. 
 
 STATUTE STAPLE. The statute of the 
 staple (27 Bdw. III. st. 2) confined the sale 
 of all commodities to be exported to certain 
 towns in England, called "estaple" or "sta- 
 ple," where foreigners might resort. It au- 
 thorized a security for money, commonly 
 called "statute staple," to be taken by trad- 
 ers for the benefit of commerce. The mayor 
 of the place is entitled to take a recognizance 
 of a debt in proper form, which has the 
 effect to convey the lands of the debtor to 
 the creditor till out of the rents and profits 
 of them he may be satisfied. 2 Bl. Comm. 
 160; Cruise, Dig. tit. 14, § 10; 2 Rolle, Abr. 
 446; Bac. Abr. "Execution" (B 1); 4 Inst. 
 23S. 
 
 STATUTI (Lat.) In Roman law. Those 
 advocates whose names were inscribed in the 
 registers of matriculation, and formed a 
 part of the college of advocates. The num- 
 ber of advocates of this class was limited. 
 They were distinguished from the supernu- 
 meraries from the time of Constantino to 
 Justinian. See Calv. Lex. 
 
 STATUTORY EXPOSITION. When t'e 
 language of a statute is ambiguous, and any 
 subsequent enactment involves a particular 
 interpretation of the former act, it is said 
 to contain a statutory exposition of the for- 
 mer act. 
 
 STATUTORY RELEASE. A conveyance 
 which superseded the old compound assur- 
 ance by lease and release. It was created by 
 St. 4 & 5 Vict. c. 21, which abolished the 
 lease for a year. 
 
 STATUTUM (Lat. statuerc. to establish). 
 
 In the Civil Law. Established; deter- 
 mined. A term applied to judicial action. 
 Dig. 50. 16. 46. pr. 
 
 In Old English Law. A statute: an act 
 
 of parliament. Fleta, lib. 2, c. 47, § 10. 
 
 STATUTUM AFFIRMATIVUM NON DE- 
 rogat communi legi. An affirmative statu+e 
 does not take from the common law. Jenk. 
 Cent. Cas. 24. 
 
 STATUTUM DE MERCATORIBUS. The 
 statute of Acton Burnell {q. v.) 
 
 STATUTUM EX GRATIA REGIS DICI- 
 tur, quando rex dignatur cedere de jure sue 
 regio, pro commodo at quiete populi sul. A 
 statute is said to be by the grace of the 
 king when the king deigns to yield some por- 
 tion of his royal rights for the good and 
 quiet of his people. 2 Inst. 378. 
 
 STATUTUM GENERALITER EST IN- 
 telligendum quando verba statuti sunt spe- 
 clalia, ratio autem generalis. When theiwords 
 of a statute are special, but the reason of it 
 general, it is to be understood generally. 10 
 Coke, 101. 
 
 STATUTUM HIBERNIAE DE COHAE- 
 redibus. St. 14 Hen. III. The third public 
 act in the statute book. It has been pro- 
 nounced not to be a statute. In the form of 
 it, it appears to be an instruction given by 
 the king to his justices in Ireland, directing 
 them how to proceed in a certain point where 
 they entertained doubt. It Eeems the jus- 
 tices itinerant in that country had a doubt, 
 when land descended to sisters, whether the 
 younger sisters ought to hold of the eldest, 
 and do homage to her for their several por- 
 tions, or of the chief lord, and do homage 
 to him; and certain knights had been sent 
 over to know what th^ practice was in Eng- 
 land in such a case. 1 Reeve, Hist. Eng. 
 Law, 259. 
 
 STATUTUM SESSIONEM. In old Eng- 
 lish law. The statute session; a meeting in 
 every hundred of constables and household- 
 ers, by custom, for the ordering of servants, 
 and debating of differences between masters 
 and servants, rating of wages, etc. 5 Ellz. 
 c. 4. 
 
 STATUTUM SPECIALE STATUTO SPE- 
 ciali non derogat. One special statute does 
 does not take away from another special stat- 
 ute. Jenk. Cent. Cas. 199. 
 
 STATUTUM WALLIAE (Lat.) The stat- 
 ute of Wales. The title of a statute passed 
 in the twelfth year of Edw. I., being a sort 
 of constitution for the principality of Wales, 
 which was thereby, in a great measure, put 
 on the footing of England with respect to 
 its laws and the administration of justice. 2 
 Reeve, Hist. Eng. Law, 93-99. 
 
 STAY. The arresting of a judicial proceed- 
 ing or process. 
 
 STAY LAWS. Laws suspending remedies 
 against debtors. They are adopted during 
 periods of financial distress or depression. 
 There were numerous instances in acts 
 passed by the legislatures of the American 
 states which had been in rebellion against 
 the Union during the few years which en- 
 sued after the war of the rebellion had 
 closed. 
 
 STAY OF EXECUTION. An arrest of the 
 issuance of execution process on a judgment. 
 It may be by direction of the judgment cred- 
 itor for some cause which he conceives to 
 be to his advantage, or it may be by compo- 
 sition or agreement, or it may be by way of 
 a remedy in favor of the judgment debtor, 
 by which, on the giving of approved security 
 usually, the issue of process is postponed 
 for a time fixed by statute. The statutory 
 stay by giving security is the most com- 
 monly observed, and is the one to which the 
 term usually refers. 
 
STAY OF PROCEEDING 
 
 (872) 
 
 STILLICIDIUM 
 
 STAY OF PROCEEDING. A suspension of 
 proceedings in a cause, either by an order 
 of tlie court in the cause, or by some pro- 
 ceeding such as (in some states) an appeal 
 which operates ipso facto as a suspension. 
 
 STEALING. This term imports, e.r ri ter- 
 mini,! nearly the same as larceny (2 G. 
 Greene [Iowa] 311), but in common parlance 
 it does not always import a felony; as, for 
 example, you stole an acre of my land. 
 , In slander cases, it seems that the term 
 "stealing" takes its complexion from the sub- 
 ject matter to which it is applied, and will 
 be considered, as intended of a felonious 
 stealing, if a felony could have been com- 
 mitted of such subject matter. Starkie, 
 Sland. & L. 80; 12 Johns. (N. Y.) 239; 3 Bin. 
 (Pa.) 546. 
 
 STEALTH. Theft is so called by Finch. 
 "Stealth is the wrongful taking of goods 
 without pretense of title." Pinch, Law, bk. 
 3, c. 17. 
 
 STEEL BOW GOODS. Instruments of hus- 
 bandry, cattle, corn, etc., delivered by a land- 
 lord to his tenant on condition that the like 
 number of goods of like quality should be 
 returned on expiration of the lease. Bell, 
 Diet.; Stair, Inst. 285, § 81. 
 
 STELLONATUS. In civil law. A name 
 given generally to all species of frauds com- 
 mitted in making contracts. 
 
 This word is said to be derived from the 
 Latin stellio, a kind of lizard remarkable for 
 its cunning and the change of its color, be- 
 cause those guilty of frauds used every art 
 and cunning to conceal them. But more par- 
 ticularly it was the crime of a person who 
 fraudulently assigned, sold, or engaged the 
 thing which he had before assigned, sold, or 
 engaged to another, unknown to the person 
 with whom he was dealing. Dig. 47. 20. 3; 
 Code, 9. 34. 1; Merlin, Repert.; Civ. Code 
 La. art. 2069; 1 Brown, Civ. Law, 426. 
 
 STERBRECHE, or STREBRICH. The 
 
 breaking, obstructing, or straitening of a 
 way. Termes de la Ley. 
 
 STERE. A French measure of solidity, 
 used in measuring wood. It is a cubic me- 
 ter. See "Measure." 
 
 STERILITY. Barrenness; incapacity to 
 produce a child. It is curable and incurable. 
 See "Impotence." 
 
 Incapacity of the male to impregnate, or 
 of the female to conceive, when copulation 
 is natural and complete. Keysor, Med. Leg. 
 Manual, 219. 
 
 STERLING. Current money of Great Brit- 
 ain,.butancientlya small coin worth about one 
 penny, and so called, as some suppose, be- 
 cause it was stamped with the figure of a 
 small star, or, as others suppose, because it 
 was first stamped in England in the reign of 
 King John by merchants from Germany, call- 
 ed "Esterlings." "Pounds sterling" originally 
 signified„so many pounds in weight of these 
 coins. Thus, we find in Matthew Paris, A. 
 
 D. 1242, the expression, Accepit a rege pro sti 
 pendlo tredecim libras esterUngorum. The sec- " 
 ondary or derived sense is a certain value in 
 current money, whether in coins or other 
 currency. Lowndes, 14; Watts. 
 
 STET BILLA. If the plaintiff in a plaint 
 in the mayor's court of London has attached 
 property belonging to the defendant, and ob- 
 tained execution against the garnishee, the 
 defendant, if he wishes to contest the plain- 
 tiff's claim, and obtain restoration of his 
 property, must issue a scire facias ad dispro- 
 bandiim, deiituvi. If the only question to 
 be tried is the plaintiff's debt, the plaintiff, 
 in appearing to the scire facias, prays stet 
 biJhi, "that his bill original," i. e., his origi- 
 nal plaint, "may stand, and that the defend- 
 ant rnay plead thereto." The action then 
 proceeds in the usual way as if the proceed- 
 ings in attachment (which are founded on 
 a fictitious default of the defendant in ap- 
 pearing to the plaint) had not taken place. 
 Brand. For. Attachm. 115, and forms. See 
 "Attachment." 
 
 STET PROCESSUS (Lat.) In practice. 
 An order made, upon proper cause shown, 
 that the process remain stationary. As, 
 where a defendant, having become insolvent, 
 would, by moving judgment in the ease of 
 nonsuit, compel a plaintiff to proceed, the 
 court will, on an affidavit of the fact of in- 
 solvency, award a stet processus. See 7 
 Taunt. 180; 1 Chit. Bailm. 738; 10 Wentw. 
 PI. 43. 
 
 STEVEDORE. A person employed in load- 
 ing and unloading vessels. He has no mari- 
 time lien on the ship for wages. Dunl. Adm. 
 Prac. 98. 
 
 STEWARD OF ALL ENGLAND. In old 
 
 English law. An officer who was invested 
 with various powers, and, among others. It 
 was his duty to preside on the trial of peers. 
 
 STEWS. In English law. Places former- 
 ly permitted in England to women of pro- 
 fessed lewdness, and who for hire would 
 prostitute their bodies to all comers. 
 
 These places were so called because the 
 dissolute persons who visited them prepared 
 themselves by bathing, — the word stews "be- 
 ing derived from the old French estuves, 
 stove, or hot bath. 3 Inst. 205. 
 
 STIFLING A PROSECUTION. Agreeing, 
 in consideration of receiving a pecuniary or 
 other advantage, to abstain from prosecut- 
 ing a person for an offense not giving rise 
 to a civil remedy, e. g., perjury. As a gen- 
 eral rule, such an agreement invalidates any 
 transaction of which it forms part. 6 Q. B. 
 308; 1 Campb. 45; L. R. 1 H. L. 200. 
 
 STILLICIDIUM (Lat.) In civil law. The 
 rainwater that falls from the roof or eaves 
 of a house by scattered drops. When it is 
 gathered into a spout, it is called flumen. 
 
 Without the constitution of one or other of 
 these servitudes, no proprietor can build so 
 as to throw the rain that falls from his house 
 directly on his neighbor's grounds; for it IS 
 
STINT 
 
 (873) 
 
 STOCK EXCHANGE 
 
 a restriction upon all property, nemo potest 
 immittere in alienum; and he who, in build- 
 ing, breaks through that restraint, truly 
 builds on another man's property; because 
 to whomsoever the area belongs, to him also 
 belongs whatever is above it, cujiis est so- 
 lum, ejus est usque ad coelum. 3 Burge, 
 Confl. Laws, 405. See "Servitus;" Inst. 3. 2. 
 1; Dig. S. 2. 2. 
 
 STINT. The proportionable part of a man's 
 cattle which he may keep upon the common. 
 The general rule is that the commoner shall 
 not turn more cattle upon the common than 
 are sufficient to manure and stock the land 
 to which his right of common is annexed. 
 There may be such a thing as common with- 
 out stint or number; but this is seldom 
 granted, and a grantee cannot grant it over. 
 3 Bl. Comm. 239; 1 Ld. Raym. 407. 
 
 STIPENDIARY ESTATES. Estates grant- 
 ed in return for services, generally of a mil- 
 itary kind. 1 Steph. Comm. 174. 
 
 STIPENDIARY MAGISTRATES. In Eng- 
 lish law. Paid magistrates. 
 
 STIPULATED DAMAGE. Liquidated dam- 
 age. See "Damages." 
 
 STIPULATIO (Lat.) In Roman law. A 
 contract made in the following manner, viz.: 
 The person to whom the promise was to be 
 made proposed a question to him from whom 
 it was to proceed, fully expressing the na- 
 ture and extent of the engagement, and, the 
 question so proposed being answered in the 
 affirmative, the obligation was complete. 
 
 It was essentially necessary that both par- 
 ties should speak ( so that a dumb man could 
 not enter Into a stipulation), that the person 
 making the promise should answer conform- 
 ably to the specific question proposed, with- 
 out any material interval of time, and with 
 the intention of contracting an obligation. 
 No consideration was required. 
 
 STIPULATIO AQUILIANA (Lat.) In Ro- 
 man law, a particular application of the stip- 
 ulatio, which was used to collect together 
 into one verbal contract all the liabilities of 
 every kind and quality of the debtor, with a 
 view to their being released or discharged 
 by an acoeptilatio, that mode of discharge 
 being applicable only to the verbal contract. 
 Brown. 
 
 STIPULATION. A material article in an 
 agreement. 
 
 The term appears to have derived its 
 meaning from the use of stipulatio above 
 given; though it is applied more correctly 
 and more conformably to its original mean- 
 ing to denote the insisting upon and requir- 
 ing any particular engagement. 2 Poth. Obi. 
 (Evans Ed.) 19. It is commonly applied to 
 agreements between counsel in respect to 
 matters of proceeding. 
 
 In Admiralty Practice. Arecognizance 
 
 of certain persons (called in the old law fide 
 jussors) in the nature of bail for the ap- 
 pearance of a defendant. 3 Bl. Comm. 108. 
 
 These stipulations are of three sorts, name- 
 
 ly: Judicatum solvi, by which the party is 
 absolutely bound to pay such sum as may be 
 adjudged by the court; de judicio sisti, by 
 which he is bound to appear from time to 
 time during the pendency of the suit, and 
 to abide the sentence; de ratio, or de rata, 
 by which he engages to ratify the acts of his 
 proctor. This stipulation is not usual in the 
 admiralty courts of the United States. 
 
 The securities are taken In the following 
 manner, namely: Cautio fide jussoria. by 
 sureties; pignoraiilia, by deposit; juratoria, 
 by oath, — this security is given when the 
 party is too poor to find sureties, at the dis- 
 cretion of the court; nude promissoria. by 
 bare promise, — this security is unknown in 
 the admiralty courts of the United States. 
 Hall, Adm. Prac. 12; Dunl. Adm. Prac. 150, 
 151. See 17 Am. Jur. 51. 
 
 STIPULATOR. In the civil law, the party 
 who asked the question in the contract of 
 stipulation; the other party, or he who an- 
 swered, being called the "promissor." But, 
 in a more general sense, the term was ap- 
 plied to both the parties. Calv. Lex. 
 
 STIRPES (Lat.) Descents. The root, 
 stem, or stock of a tree. Figuratively, it 
 signifies in law that person from whom a 
 family is descended, and also the kindred or 
 family. See "Per Stirpes." 2 Bl. Comm. 209. 
 
 STOCK. The capital of a merchant or 
 tradesman, including his money, merchan- 
 dise, and credits. See "Capital." The goods 
 and wares he has for sale and traffic. 
 
 Of Corporations. The amount of mon- 
 ey or property subscribed and paid in, or 
 agreed to be paid in, by the shareholders. 
 It is ordinarily divided into equal shares of 
 a determined value, and apportioned among 
 the stockholders in proportion to the amount 
 which they have paid in, or for which they 
 are liable. 
 
 Distinction has been made between the 
 capital stock, which is an asset of the cor- 
 poration, and the shares of stock, which are 
 the property of the several shareholders. 34 
 Eng. & Am. Corp. Cas. 223. 
 
 STOCK BROKER. See "Brokers." 
 
 STOCK EXCHANGE. A building or room 
 in which stock brokers meet to transact 
 their business of purchasing or selling 
 stocks. 
 
 An association of stock brokers for the 
 purpose of transacting their business. 
 
 In large cities, the stock business is trans- 
 acted through the medium of the members of 
 the board of brokers. This is an association 
 of stock brokers governed by rules and regu- 
 lations made by themselves, to which all the 
 members are obliged to subject themselves. 
 Admission is procured by ballot, and a mem- 
 ber defaulting in his obligations forfeits his 
 seat. A regular register of all the trans- 
 actions is kept by an officer of the associa- 
 tion, and questions arising between the mem- 
 bers are generally decided by an arbitration 
 committee. The official record of sales Is 
 the best evidence of the price of any stock 
 on any particular day. The stocks dealt in 
 
STOCK JOBBING 
 
 (874) 
 
 STRAW BAIL 
 
 at the sessions of the board are those which 
 are placed on the list by a regular vote of 
 the association; and when it is proposed to 
 add a stock to the list, a committee is ap- 
 pointed to examine into the matter, and the 
 board is generally guided by the report of 
 such committee. Sewell, Bankr. 
 
 STOCK JOBBING. A fictitious transac- 
 tion in stocks by way of speculation. Also 
 the title of an act relating to such transac- 
 tions. See "Gambling Contract." 
 
 STOCKS. In criminal law. A machine, 
 commonly made of wood, with holes in it. 
 In which to confine persons accused of or 
 guilty of crime. 
 
 It was used either to confine unruly of- 
 fenders by way of security, or convicted 
 criminals for punishment. This barbarous 
 punishment has been generally abandoned in 
 the United States. 
 
 STOCKHOLDER. The holder of shares of 
 stock In a corporation or joint-stock com- 
 pany. 
 
 STOP ORDER. 
 
 In English Chancery Practice. An 
 
 order to prevent a fund in court from being 
 paid out or otherwise dealt with without 
 notice to, a claimant. 
 
 In Commercial Usage. An order to 
 
 buy or sell on margins and close out at a set 
 price. See under "Gambling Contract." 
 
 STOPPAGE IN TRANSITU. A resumption 
 by the seller of the possession of goods not 
 paid for, while on their way to the vendee, 
 and before he has acquired actual possession 
 of them. 15 Me. 314. 
 
 For most purposes, the possession of the 
 carrier Is considered to be that of the buyer; 
 but by virtue of this right, which is an ex- 
 tension of the right of Hen, the vendor may 
 reclaim the possession before tiiey reach the 
 vendee, in case of the insolvency of the lat- 
 ter. 12 Pick. (Mass.) 313; 4 Gray (Mass.) 
 336; 2 Caines (N. Y.) 98; 8 Mees. & W. 341. 
 
 To give a right of stoppage in transitu, the 
 sale must have been on credit, but the giv- 
 ing of a note is not payment unless so 
 agreed (13 Me. 103), the buyer must be In- 
 solvent, and such insolvency must have been 
 unknown at the time of the sale (102 N. C. 
 390; 27 Barb. [N. Y.] 663), and the goods 
 must be In transit, i. e., they must not have 
 come into the actual or constructive posses- 
 sion of the buyer (16 Neb. 614; 40 Iowa, 
 627). 
 
 STORES. The victuals and provisions col- 
 lected together for the subsistence of a ship's 
 company, of a camp, and the like. 
 
 Shops; places where goods are kept for 
 sale. 
 
 A shop is a place where goods are sold by 
 retail, and a store a place where goods are 
 deposited, but in this country shops for the 
 sale of goods are frequently called "stores." 
 15 Gray (Mass.) 197. 
 
 STOUTHRIEFF. In Scotch law. Former- 
 ly this word included In its signification 
 every species of theft accompanied with vio- 
 
 lence to the person; but of late years it has 
 become the vox signata for forcible and mas- 
 terful depredation within or near the dwell- 
 ing house; while "robbery" has been more 
 particularly applied to violent depredation 
 on the highway or accompanied by house 
 breaking. Alls. Sc. Law, 227. 
 
 STOWAGE. In maritime law. The prop- 
 er arrangetaent in a ship of the different ar- 
 ticles of which a cargo consists, so that they 
 may not injure each other by friction, or be 
 damaged by the leakage of the ship. 
 
 STRADDLE. See "Gambling Contract." 
 STRAMINEUS HOMO. A man of straw. 
 
 STRANDING. In maritime law. The run- 
 ning of a ship or other vessel on shore. It 
 is either accidental or voluntary. 
 
 Accidental stranding takes place where 
 the ship is driven on shore by the winds and 
 waves. 
 
 Voluntary stranding takes place where the- 
 ship is run on shore either to preserve her 
 from a worse fate, or for some fraudulent 
 purpose. Marsh. Ins. bk. 1, c. 12, § 1. 
 
 STRANGER. A person born out of the 
 United States; but in this sense the term 
 "alien" is more properly applied until he be- 
 comes naturalized. 
 
 A person who is not privy to an act or 
 contract. Example, he who is a stranger to 
 the issue shall not take advantage of the 
 verdict. Brooke, Abr. "Record," pi. 3; Vlner, 
 Abr. 1. And see Comyn, Dig. "Abatement" 
 (H 54). 
 
 When a man undertakes to do a thing, and 
 a stranger interrupts him, this Is no excuse. 
 Comyn, Dig. "Condition" (L 14). When a, 
 party undertakes that a stranger shall do a 
 certain thing, he becomes liable as soon as 
 the stranger refuses to perform it. Bac. Abr: 
 "Conditions" (Q 4). 
 
 STRATAGEIVI. A deception, either by 
 words or actions, in times of war. In order to 
 obtain an advantage over an enemy. 
 
 Stratagems, though contrary to morality, 
 have been justified unless they have been ac- 
 companied by perfidy, injurious to the rights 
 of humanity, as in the example given by 
 Vattel of an English frigate, which, during 
 a war between France and England, appear- 
 ed off Calais and made signals of distress 
 in order to allure some vessel to come to its 
 relief, and seized a shallop and its crew who 
 had generously gone out to render it assist- 
 ance. Vattel, Droit des Gens, llv. 3, c. 9, 
 § 178. 
 
 Sometimes stratagems are employed in 
 making contracts. This Is unlawful and 
 fraudulent, and avoids the contract. See 
 "Fraud." 
 
 STRATOCRACY. A military government; 
 government by military chiefs of an army. 
 
 STRAW BAIL. Nominal or worthless bail. 
 Professional sureties, so called. It Is said, 
 from an ancient custom of such persons of 
 wearing a straw about their clothing, that 
 
STRAW MEN 
 
 (875) 
 
 STULTILOQUIUM 
 
 they might be known to one in search of 
 bail. 
 
 Common bail (g. v.) 
 
 STRAW MEN. Men who used in former 
 days to ply about courts of law, so called 
 from their manner of making known their 
 occupation (i. e., by a straw in one of their 
 shoes), recognized by the name of "straw 
 shoes." An advocate or lawyer who wanted 
 a convenient witness knew by these signs 
 where to find one, and the colloquy between 
 the parties was brief. "Don't you remem- 
 ber?" said the advocate. The party looked 
 at the fee, and gave no sign; but the fee 
 increased, and the powers of memory in- 
 creased with it. "To be sure I do." "Then 
 come into court and swear it!" And straw 
 shoes went into court and swore it. Athens 
 abounded in straw shoes. Quart. Rev. xxxiii. 
 344. 
 
 STRAY. See "Estray." 
 
 STREET. A public thoroughfare or high- 
 way In a city or village. 4 Serg. & R. (Pa.) 
 106; 11 Barb. (N. Y.) 399. See "Highway." 
 
 STREIGHTEN. In the old books. To 
 narrow or restrict. "The habendwm should 
 not streighten the devise." 1 Leon. 58. 
 
 STREPITUS (Law Lat.) In old records. 
 Estrepement or strip; a species of waste or 
 destruction of property. Spelman. 
 
 STRICT CONSTRUCTION. A rule of ju- 
 dicial interpretation or exposition which fol- 
 lows closely the letter of the statute or in- 
 strument construed disfavoring any exten- 
 sion or relaxation of it by implication, favor, 
 or equity. 
 
 STRICT FORECLOSURE. See "Foreclo- 
 sure." 
 
 STRICT SETTLEMENT. A settlement of 
 lands to the parent for life, and after his 
 death to his first and other sons in tail, 
 with an interposition of trustees to preserve 
 the contingent remainders. 
 
 STRICTISSIMI JURIS (Lat. the most 
 strict right or law). In general, when a 
 person receives an advantage, as the grant 
 of a license, he is bound to conform strictly 
 to the exercise of the rights given him by it, 
 and in case of a dispute it will be strictly 
 construed. See 3 Story (U. S.) 159. 
 
 STRICTO JURE (Lat.) In strict law. 1 
 Kent, Comm. 65. 
 
 STRICTUM JUS (Lat.) Mere law, in con- 
 tradistinction to equity. 
 
 STRIKE. Used as an abbreviated form of 
 "strike out" or "strike off," as a motion "to 
 strike" evidence. 
 
 STRIKING A DOCKET. In English prac- 
 tice. Entering the creditor's affidavit and 
 bond in bankruptcy. 1 Deac. Bankr. 106. 
 
 STRIKING A JURY. In English practice. 
 Where, for nicety of the matter in dispute. 
 
 or other cause, a special jury is necessary, 
 upon motion and rule granted thereon, the" 
 sheriff is to attend the prothonotary or prop- 
 er officer with the book of freeholders, and 
 to take indifferently forty-eight of the prin- 
 cipal freeholders, when the attorneys on 
 each side, being present, are to strike off 
 twelve respectively, and the remaining twen- 
 ty-four are returned. 3 Bl. Comm. 357. Es- 
 sentially the same practice prevails in some 
 of the states. 
 
 STRIKING OFF THE ROLL. Disbarment. 
 
 STRONG HAND. The words "with strong 
 hand" imply a degree of criminal force, 
 whereas the words vi et armis ("with force 
 and arms") are mere formal words in the 
 action of trespass, and the plaintiff is not 
 bound to prove any force. The statutes re- 
 lating to forcible entries use the words "with 
 a strong hand," as describing that degree of 
 force which makes an entry or detainer of 
 lands criminal. See "Forcible Entry or De- 
 tainer." 
 
 STRUCK. In pleading. A word essential 
 in an indictment for murder, when the death 
 arises from any wounding, beating, or bruis^ 
 ing. 1 Bulst. 184; 5 Coke, 122; 3 Mod. 202; 
 Cro. Jac. 655; Palmer, 282; 2 Hale, P. C. 184, 
 186, 187; Hawk. P. C. bk. 2, c. 23, § 82; 1 Chit, 
 Crim. Law, *243; 6 Bin. (Pa.) 179. < 
 
 STRUCK JURY. A special jury obtained 
 by striking. See "Striking a Jury." 
 
 STRUCK OFF. A term applied to a case 
 which the court, having no jurisdiction over, 
 and not being able to give judgment, order 
 to be taken off the record. This is done by 
 an entry to that effect. 
 
 STRUCK OFF, or KNOCKED DOWN. 
 
 Property is understood to be "struck off' or 
 "knocked down" when the auctioneer, by the 
 fall of his hammer, or by any other audible 
 or visible announcement, signifies to the 
 bidder that he is entitled to the property on 
 paying the amount of his bid, according to 
 the terms of the sale. 7 Hill (N. Y.) 431, 
 439. 
 
 STRUMPET. A harlot, or courtesan. The 
 word was formerly used as an addition. 
 Jacob. 
 
 STUFF GOWN. The robe of barristers 
 who have not been made queen's or king's 
 counsel. See "Silk Gown." 
 
 STULTIFY (Lat. stultii.i. stupid). To' 
 make one out mentally incapacitated for the 
 performance of an act. 
 
 It has been laid down by old authorities' 
 (Litt. § 405; 4 Coke, 123; Cro. Eliz. 398) 
 that no man should be allowed to stultify 
 himself, i. e., plead disability through men- 
 tal unsoundness. This maxim was soon 
 doubted as law (1 Hagg. Ecc. 414; 2 Bl. 
 Comm. 292), and has been completely over- 
 turned (4 Kent, Comm. 451). 
 
 STULTILOQUIUM. In old English law. 
 Vicious or disorderly pleading, for which a 
 fine was imposed by King John, supposed 
 
STUPIDITY 
 
 (876) 
 
 SUBJECT 
 
 to be the origin of the fines for 'bea'apleader 
 ('(?. V.) Crabb, Hist. Eng. Law, 135. 
 
 STUPIDITY. In medical jurisprudence. 
 That state of the mind which cannot per- 
 ceive and embrace the data presented to it 
 by the senses, and therefore the stupid per- 
 son can, in general, form no correct judg- 
 ment. It is a want of the perceptive powers. 
 Ray, Med. Jur. c. 3, § 40. See "Imbecility." 
 
 STUPRUM (Lat.) In Roman kw. The 
 ■criminal sexual intercourse which took place 
 between a man and a single woman, maid, or 
 widow, who before lived honestly. Inst. 4. 
 18. 4; Dig. 48. 5. 6; Id. 50. 16. 101; 1 Bouv. 
 Inst. Theolo. ps. 3, quaest. 2, art. 2, p. 252. 
 
 STYLE. As a verb, to call, name, or en- 
 title one; as a noun, the title or appellation 
 ■of a person. 
 
 The names in which a cause is entitled. 
 
 SUA SPONTE (Lat.) Of his or its own 
 motion. 
 
 SUAPTE NATURA (Lat.) In its own na- 
 ture. Suapte natura steriUs', barren In its 
 own nature and quality; intrinsically bar- 
 ren. 5 Maule & S. 170. 
 
 SUB (Lat.) Under; upon. 
 
 SUB CONDITIONE. Upon condition; un- 
 der condition. 
 
 SUB DISJUNCTIONE (Law Lat.) In the 
 alternative. Fleta, lib. 2, c. 60, § 21. 
 
 SUB J U DICE (Lat.) Under or before a 
 judge or court; under judicial consideration; 
 undetermined. 12 Bast, 409. 
 
 SUB MODO (Lat.) Under a qualification. 
 A legacy may be- given suli modo, that Is, 
 subject to a condition or qualification. 
 
 SUB PEDE SIGILL! (Lat.) Under the foot 
 ■of the seal; under seal. This expression Is 
 used when It Is required that a record should 
 be certified under the seal of the court. 
 
 SUB POTESTATE (Lat.) Under or sub- 
 ject to the power of another; as, a wife Is 
 under the power of her husband; a child Is 
 subject to that of his father; a slave to that 
 of his master. 
 
 SUB SALVO ET SECURO CONDUCTU. 
 
 Under safe and secure conduct. 1 Strange, 
 430. Words In the old writ of habeas corpus. 
 
 SUB SILENTIO (Lat.) Under silence; 
 without any notice being taken. Sometimes 
 passing a thing sub silentio Is evidence of 
 consent. 
 
 SUB SPE RECONCILIATIONIS (Lat.) Un- 
 der the hope of reconcilement. 2 Kent, 
 Comm. 127. 
 
 SUB SUO PERICULO (Law Lat.) At his 
 own risk. Pleta, lib. 2, c. 5, § 5. 
 
 SUBAGENT. A person appointed by an 
 agent to perform some duty, or the whole of 
 the business relating to his agency. See 
 "Agent." 
 
 SUB-BALLIVUS (Law Lat.) In old Eng- 
 lish law. An under bailiff; a sheriff's dep- 
 uty. Fleta, lib. 2, c. 68, § 2. 
 
 SUBCONTRACT. A contract by one who 
 has contracted for the performance of labor 
 or service with a third party for the whole 
 or part performance of that labor or service. 
 9 Mees. & W. 710; 3 Gray (Mass.) 362; 17 
 Wend. (N. Y.) 550; 22 Wend. (N. Y.) 395; 
 1 E. b. Smith (N. Y.) 716; 2 B. D. Smith (N. 
 Y.) 558. See "Contract." 
 
 SUBDITUS (Lat.) In old English law. A 
 vassal; a dependent; any one under the 
 power of another. Spelman; Bracton, fol. 
 412. 
 
 SUBDIVIDE. To divide a part of a thing 
 which has already been divided. For ex- 
 amfple, when a person dies leaving children, 
 and grandchildren, the children of one of 
 his own who Is dead, his property is divided 
 into as many shares as he had children, in- 
 cluding the deceased, and the share of the 
 deceased is subdivided Into as many shares 
 as he had children. 
 
 SUBDUCT. In English probate practice, 
 to subduct a caveat is to withdraw it. 
 
 SUBHASTARE (Lat.) In the civil law. 
 To sell at public auction, which was done 
 sub hasta, under a spear; to put or sell un- 
 der the spear. Calv. Lex: 
 
 SUBHASTATIO (Lat.) In the civil law. A 
 sale by public auction, which was done under 
 a spear, fixed up at the place of sale as a 
 public sign of it. Calv. Lex. The Roman 
 custom of setting up a spear at an auction 
 seems to have been derived from the cir- 
 cumstance that at first only those things 
 which were taken in war were sold in that 
 manner. Adams, Rom. Ant. 59. 
 
 SUBINFEUDATION. The act of an inferi- 
 or lord by which he carved out a part of an 
 estate which he held of a superior, and 
 granted it to an inferior tenant to be held of 
 himself. 
 
 It was an indirect mode of transferring 
 the fief, and resorted to as an artifice to 
 elude the feudal restraint upon alienation. 
 This was forbidden by the statute of Quia 
 Emptores. 18 Edw. I.; 2 Bl. Comm. 91; 3 
 Kent, Comm. 406. 
 
 SUBJACENT SUPPORT. An easement of 
 sui)port of the soil as against an adjoining 
 tract of land, so that the dominant tract 
 shall not fall In by reason of undermining 
 or withdrawal of support from beneath. 
 Tledeman, Real Prop. § 618; 66 Pa. St. 429. 
 
 SUBJECT. 
 
 In Scotch Law. The thing which Is 
 
 the object of an agreement. 
 
 In Governmental Law. An Individual 
 
 member of a nation, who is subject to the 
 laws. This term is used in contradistinction 
 to "citizen," which Is applied to the same 
 individual when considering his political 
 rights. 
 
 In monarchical governments, by "subject" 
 
SUBJECT MATTER 
 
 (877! 
 
 SUBROGATION 
 
 Is meant one who owes permanent allegiance 
 to the monarch. See "Body Politic;" Greenl. 
 Ev. § 286; Phil. Bv. 732, note 1. 
 
 SUBJECT MATTER. The right which' one 
 party claims as against the other, and 
 claims the judgment of the court upon. 41 
 Mich. 93. The cause of action. 15 N. Y. 
 509. 
 
 SUBJECTION (Lat. siih, under, jacio, to 
 put, throw). The obligation of one or more 
 persons to act at the discretion or according 
 to the judgment and will of others. Private 
 subjection is subjection to the authority of 
 private persons. Public subjection is sub- 
 jection to the authority of public persons. 
 
 SUBLATA CAUSA TOLLITUR EFFEC- 
 tus. Remove the cause and the effect will 
 cease. 2 Bl. Comm. 203. 
 
 SUBLATA VENERATIONE MAGISTRA- 
 tuum, respublica ruit. The commonwealth 
 perishes, if respect for magistrates be taken 
 away. Jenk. Cent. Cas. 48. 
 
 SUBLATO FUNDAMENTO CADIT OPUS. 
 
 Remove the foundation, the structure or 
 work falls. Jenk. Cent. Cas. 106. 
 
 SUBLATO PRINCIPALI TOLLITUR AD- 
 junctum. If the principal be taken away, 
 the adjunct is also taken away. Co. Litt. 
 389. 
 
 SUBLEASE. A lease by a tenant to an- 
 other person of a part of the premises held 
 by him, or a part of his term; an under 
 lease. If the whole premises be let by the 
 tenant for his entire term, so that there is 
 no reversion in him, it is not a subletting, 
 but an assignment of his lease. 
 
 SUBMERGENCE. The sudden disappear- 
 ance of riparian lands under the water, 
 whereby they are lost to the owner. See 
 100 N. Y. 424. 
 
 SUBMISSION (Lat. suimissio, — sub, under, 
 mittere, to put,— ^a putting under). Used of 
 persons or things. A putting one's person or 
 property under the control of another; a 
 yielding to authority. A citizen is bound to 
 submit to the laws, a child to his parents, a 
 guardian to his ward. A victor may enforce 
 the submission of his enemy. 
 
 In Trial Practice. The leaving of a 
 
 cause with the court or jury for decision. 
 
 , To Arbitration. An agreement by 
 
 which parties submit a matter of difference 
 to the decision of one or more arbitrators. 4 
 N. Y. 157. 
 
 To Court. This, usually known as 
 
 "submission of controversy," is the submis- 
 sion of an agreed statement of facts to the 
 court, without trial of the Issues, for a de- 
 cision thereon. 
 
 SUBNERVARE. To hamstring by cutting 
 the sinews of the legs and thighs. 
 
 It was an old custom meretrices et irwpudi- 
 oas muUeres subnervare. Wharton. 
 
 SUBNOTATIONS (Lat.) In civil law. The 
 
 answers of the prince to questions which 
 had been put to him respecting some obscure 
 or doubtful point of law. See "Rescript." 
 
 SUBORN (Lat. svbonitirc, from .vib, under, 
 and ornare, to prepare). In criminal law. 
 To procure another to commit perjury. 
 Steph. Crlm. Law, 74. Literally, to instruct 
 one privily, or in an underhanded manner, 
 what to say; to prepare secretly, or under- 
 hand; to procure unlawfully. Sayer, 292. 
 Subornare est quasi subtus in aure ipsum 
 male ornare, to suborn is to instruct one 
 privily, as by whispering in his ear, with a 
 bad design. 3 Inst. 167. 
 
 SUBORNATION OF PERJURY. In crim- 
 inal law. The procuring another to commit 
 legal perjury, who, in consequence of the 
 persuasion, takes the oath to which he has 
 been incited. Hawk. P. C. bk. 1, c. 69, § 10. 
 
 SUBPOENA (Lat. s)il), under, pociui, pen- 
 alty). 
 
 In Practice. A process to cause a wit- 
 ness to appear and give testimony, command- 
 ing him to lay aside all pretenses and ex- 
 cuses, and appear before a court or magis- 
 trate therein named, at a time therein men- 
 tioned, to testify for the party named, under 
 a penalty therein mentioned. This is called 
 distinctively a subpoena ad testificandum. 
 
 A subpoena duces tecum is one whereby 
 the witness is commanded to bring with him 
 books or papers in his possession or under 
 his control, to produce the same in evidence. 
 
 In Chancery Practice. A mandatory 
 
 writ or process directed to and requiring one 
 or more persons to appear at a time to come 
 and answer the matters charged against him 
 or them. The writ of subpoena was origi- 
 nally a process in the courts of common law 
 to enforce the attendance of a witness to 
 give evidence; but this writ was used in the 
 court of chancery for the same purpose as a 
 citation in the courts of civil and canon law, 
 to compel the appearance of a defendant, 
 and to oblige him to answer upon oath the 
 allegations of the plaintiff. 
 
 It was invented by John Waltham, bishop 
 of Salisbury, and chancellor to Richard II., 
 under the authority of the statutes of West- 
 minster II. and 13 Edw. I. c. 34. which en- 
 abled him to devise new writs. Cruise, Dig. 
 tit. 11, c. 1, §§ 12-17. See Viner, Abr.; 1 
 Swanst. 209. 
 
 SUBREPTIO (Lat.) In civil law. Obtain- 
 ing gifts of escheat, etc, from the king by 
 concealing the truth. Bell, Diet.; Calv. Lex. 
 "Subripere." 
 
 SUBREPTION. In French law. The fraud 
 committed to obtain a pardon, title, or grant, 
 by alleging facts contrary to truth. 
 
 SUBROGATIO EST TRANSFUSIO UNI- 
 us creditoris in alium, eadem vel mitiori 
 conditione. Subrogation is the substituting 
 one creditor in the place of another in the 
 same or a better condition. Merlin, Quest, 
 de Droit. "Subrogation." 
 
 SUBROGATION. The substitution of an- 
 
SUBROGATION 
 
 (878) 
 
 SUBROGEE 
 
 pther person in the place of a claimant, to 
 ■whose rights he succeeds in relation to the 
 claim. That change which puts another per- 
 son in the place of the creditor, and which 
 makes the right, the mortgage, or the se- 
 curity which the creditor has pass to the 
 person who is subrogated to him, — that is to 
 say, who enters into his right. Domat, Civ. 
 Law, pt. i. lib. iii. tit. i. § vi. 
 
 It is a legal fiction by force of which an 
 obligation extinguished by payment made 
 by a third party is considered as continuing 
 to subsist for the benefit of this third per- 
 son, who makes but one and the same per- 
 son with the creditor in the view of the 
 law. Subrogation is the act of putting one 
 thing in place of another, or one person in 
 place of another. Guyot, Rep. Univ. "Sub- 
 rogation," § ii. 
 
 Subrogation gives to the substitute all the 
 rights of the party for whom he is substi- 
 tuted. 4 Md. Ch. 253. Among the earlier 
 civil-law writers, the term seems to have 
 been used synonymously with "substitu- 
 tion;" or, rather, "substitution" included 
 "subrogation," as well as its present more 
 limited signification. See Domat, Civ. Law, 
 passim; Both. Obi. passim. The term "sub- 
 stitution" is now almost altogether confined 
 io the law of devises and chancery practice. 
 See "Substitution." 
 
 The word "subrogation" is origipally 
 found only in the civil law, and has been 
 adopted, with the doctrine itself, thence into 
 equity. It is an equitable doctrine (3 Ired. 
 Eq. [N. C] 386), but in the law, as distin- 
 guished from equity, it hardly appears as a 
 term, except perhaps in those states where, 
 as in Bennsylvania, equity is administered 
 through the forms of law, and those where 
 the distinction between legal and equitable 
 remedies has been abolished. There the 
 term "subrogation," adopted from the Roman 
 law, has of late years come into quite general 
 use. ' 6 Ba. St. 504. The equitable doctrine of 
 marshalling assets is plainly derived from 
 the Roman law of subrogation or substitu- 
 tion; and although the word is, or, rather, 
 has been, used sparingly in the common law, 
 many of the doctrines of subrogation are 
 familiar to the court? of common law. 
 
 Subrogation differs from cession in this, 
 that while cession only substitutes the one 
 to whom the debt is ceded in place of the 
 oeder, in subrogation the debt would have 
 become extinguished but for the effect of 
 the subrogation; and also because, although 
 subrogation supposes a change in the person 
 of the creditor, it does not imt)ly novation; 
 but, through the fiction of the law, the party 
 who is subrogated is considered as making 
 only one and the same person with the cred- 
 itor, whom he succeeds. Masse, Dr. Comm. 
 "Bayment in Subrogation." 
 
 It is one thing to decide that a surety is 
 entitled, on payment, to have an assigrtment 
 of the. debt, and quite another to decide that 
 he is entitled to be subrogated or substituted 
 as to the equities and securities to the place 
 of the creditor, as against the debtor and 
 his cosureties. Story, Eq. Jur. § 493, note; 
 2 McLean (U. S.) 451; 1 Dev. (N. C.) 137. 
 
 The legal subrogation of the civilians is 
 generally intended by the term "subroga- 
 tion." Some original interest is essential 
 to entitle one to subrogation. Thus, a surety 
 paying the debt is subrogated to the rights 
 of the creditor against the principal (23 
 Minn. 74; 28 N. Y. 271), and the holder of 
 a lien who pays a prior lien is subrogated to 
 the rights of the lienholder whom he pays 
 (2 Allen [Mass.] Ill) ; but a mere stranger 
 or volunteer paying a debt has no right to 
 subrogation (93 N. Y. 235; 76 Va. 262). 
 
 In the Civil Law. Subrogation of per- 
 sons is of three sorts: 
 
 First, the canonists understand by subro- 
 gation the succession of a priest to the rights 
 of action of the occupant of a benefice who 
 has died during a suit. Guyot, Rep. Univ. 
 "Subrogation of Persons," § i. 
 
 Second, the second sort arose from a local 
 custom of the Bourbonnais, and had for its 
 object the protection of the debtor from the 
 effects of collusion on the part of the at- 
 taching creditor. 
 
 Third, subrogation in fact to aliens and 
 pledgees, which is only the change of one 
 creditor for another. See Guyot, ut supra, 
 and, also. Masse, Dr. Comm. 
 
 Nearly all the instances in which the com- 
 mon law has adopted the doctrines of sub- 
 rogation have arisen under this latter class. 
 
 Subrogation is either legal or conventional. 
 
 Legal subrogation is that resulting by 
 operation of law from the satisfying of a 
 claim as to which the person making pay- 
 ment has some original privilege. 14 Cal. 
 565. 
 
 Conventional subrogation results, as its 
 name indicates, from the agreement of the 
 parties, and can take effect only by agree- 
 ment. This agreement is, of course, with 
 the party to be subrogated, and may be ei- 
 ther by the debtor or creditor. Civ. Code 
 La. 1249. 
 
 Thus, it may happen when the creditor re- 
 ceiving payment from the third person sub- 
 rogates the payor to his right against the 
 debtor. This must happen by express agree- 
 ment; but no formal words are required. 
 This sort of subrogation only takes place 
 where there is a payment of the debt by a 
 third party, — not where there is an assign- 
 ment, in which case, subrogation results 
 from the assignment. 
 
 This principle is recognized by the com- 
 mon law in cases where, upon payment, the 
 securities are transferred to a party having 
 an interest in the payment. Or, in case the 
 debtor borrows money from a third party to 
 pay a debt, he may subrogate the lender to 
 the rights of the creditor; for by this change 
 the rights of the other creditors are not in- 
 juriously affected. To make this mode of 
 subrogation valid, the borrowing and dis- 
 charge must take place before a notary. In 
 the borrowing, it must be declared that the 
 money has been borrowed to make payment, 
 and in the discharge, that it has been made 
 with money furnished' by the creditor. 
 Masse, Dr. Comm. lib. 5, tit. 1, c. 5, §§ 1, 2. 
 
 SUBROGEE. A person who is subrogat- 
 
SUBSCRIBING WITNESS 
 
 (879) 
 
 SUBSTITUTED 'SERVICE 
 
 ed; one who succeeds to the rights of an- 
 other by subrogation. 
 
 SUBSCRIBING WITNESS. One who sub- 
 scribes his name to a writing in order to be 
 able at a future time to prove its due execu- 
 tion; an attesting witness. 
 
 In order to make a good subscribing wit- 
 ness, it is requisite he should sign his name 
 to the Instrument himself, at the time of its 
 execution, and at the request or with the as- 
 sent of the party. 6 Hill (N. Y.) 303; 11 
 Mees. & W. 168; 1 Greenl. Bv. (4th Ed.) § 
 569a; 5 Watts (Pa.) 399. 
 
 SUBSCRIPTIO (Lat. from siibserihcrc). 
 In the civil law. A writing under, or un- 
 derwriting; a writing of the name uader 
 or at the bottom of an Instrument by way 
 of attestation or ratification; subscription. 
 
 'The subscHptio testium (subscription of wit- 
 nesses)' was one of the formalities in the 
 execution of wills, being required by the 
 imperial constitutions in addition to the 
 
 rseals of the witnesses. Inst. 2. 10. 3. 
 
 That kind of imperial constitution which 
 was granted In answer to the prayer of a 
 petitioner who was present. Calv. Lex. 
 
 SUBSQRIPTION (Lat. siih, under, scribo, 
 to write). The placing a signature at the 
 bottom of a written or printed engagement, 
 or it is the attestation of a witness by so 
 writing his name; but it has been holden 
 that the attestation of an Illiterate witness 
 by making his mark is a sufficient subscrip- 
 tion. 7 Bing. 457; 2 Ves. Sr. 454; 1 Atk. 177; 
 1 Ves. Jr. 11; 3 P. Wms. 253; 1 Ves. & B. 
 ;392. 
 
 "Subscribe," according to both its popular 
 .and literal signification, requires a signature 
 .at the end of a document. 4 Colo. 282. 
 
 The act by which a person contracts, in 
 writing, to furnish a sum of money for a 
 particular purpose; as, a subscription to a 
 charitable institution, a subscription for a 
 book, for a newspaper, and the like, 
 
 SUBSCRIPTION LIST. A list of subscrib- 
 ers to some agreement with each other or a 
 third person. 
 
 SUBSELLIA (Lat. from sub, under, and 
 ■ sella, a seat). In the Roman law. Lower 
 seats or benches, occupied by the indices 
 (judges or jurors), and by inferior magis- 
 trates when they sat in judgment, as dis- 
 tinguished from the tribunal of the praetor. 
 Calv. Lex.; Budaeus. 
 
 SUBSEQUENS MATRIMONIUM TOLLIT 
 ipeccatum praecedens. A subsequent mar- 
 riage [of the parties] removes a previous 
 fault, i. e., previous Illicit intercourse, and 
 legitimates the offspring. A rule of Roman 
 law. 
 
 SUBSIDY. A legislative grant of money 
 in aid of a private enterprise deemed to pro- 
 mote the public welfare. 
 
 In English Law. An aid, tax, or trib- 
 ute granted by parliament to the -king for 
 -the urgeiit occasions <of the kingdom, to he 
 
 levied on every subject of ability, according 
 to the value of his lands or goods. Jacob. 
 
 In International Law. The assistance 
 
 given in money by one nation to another to 
 enable it the better to carry on a war, when 
 such nation does not join directly in the 
 war. Vattel, liv. 3, § 82. See "Neutrality." 
 
 SUBSIGNARE (Lat. from .s»6, under, and 
 signare, to seal or sign). In the civil law. 
 To undersign; to subscribe. According to 
 the strict etymology, to seal under, or seal. 
 But the word is said, in the Digests, to have 
 been used among the ancient Romans in the 
 sense of "writing." Subsignatum dicitur 
 quod ab aliquo subscriptiim est, nam veteres 
 subsignationis verba pro adscriptione uti 
 solebant, that is said to be undersigned 
 which is underwritten by any one, for the 
 ancients were accustomed to use the word 
 subsignatio for adscriptio. Dig. 50. 16. 39. 
 Some copies of the Digests have subscrip- 
 tione in place of adscriptione. 
 
 SUBSTANCE (Lat. sub, under, stare, to 
 stand). That which is essential. It is used 
 in opposition to form. 
 
 It Is a general rule that on any issue it is 
 sufflclent to prove the substance of the is- 
 sue. For example, in a case where the de- 
 fendant pleaded payment of the principal 
 sum and all Interest due, and it appeared in 
 evidence that a gross sum was paid, not 
 amounting to the full interest, but accepted 
 by the plaintiff as full payment, the proof 
 was held to be sufficient. 2 Strange, 690; 1 
 Phil. Ev. 161. 
 
 It is also used in the sense of "property." 
 Cowp. 307. 
 
 SUBSTANTIVE LAW. That portion of 
 the body of the law which contains the 
 rights and duties and the regulations of 
 government, as opposed to that part which 
 contains the rules and remedies by which 
 the substantive law is administered. The 
 latter is called, in opposition to "substantive 
 law," the "adjective law," or the "remedial 
 law!" The exact boundary between the two 
 Is difficult of definition, and has been the 
 cause of much learned discussion. 
 
 SUBSTITUTE (Lat. xiihslitutus). One 
 placed under another to transact business 
 for him. In letters of attorney, power is 
 generally given to the attorney to nominate 
 and appoint a substitute. 
 
 Without such power, the authority given 
 to one person cannot, in general, be dele- 
 gated to another, because it is a personal 
 trust and confidence, and is not, therefore, 
 transmissible. The authority is given to 
 him to exercise his judgment and discretion, 
 and it cannot be said that the trust and con- 
 fidence reposed in him shall be exercised at 
 the discretion of another. 2 Atk. 88; 2 Ves. 
 Jr. 645. But an authority may be delegated 
 to another when the attorney has express 
 power to do so. Bunb. 166; T. Jones, 110. 
 See Story, Ag. §§ 13, 14. When a man is 
 drawn into the militia, he may in some cases 
 hire a substitute. 
 
 SUBSTITUTED SERVICE. See "Service." 
 
SUBSTI'tuTES 
 
 (880) 
 
 SUCCESSION 
 
 SUBSTITUTES. In Scotch law. Where 
 an estate is settled on a long series of heirs, 
 substituted one after another, in tailzie, the 
 person first called in the tailzies is the in- 
 stitute; the rest the heirs of tailzie, or the 
 substitutes. Ersk. Inst. 3. 8. 8. See "Tail- 
 zie." 
 
 SUBSTITUTIO (Lat. from substituere, to 
 substitute). A putting of one person in the 
 place of another. 
 
 In the Civil Law. The appointment 
 
 of one person as heir in place of another, 
 in the event of the first not taking the in- 
 heritance. As, si ille Jiaeres non erit, ille 
 haeres esto, if such a one will not be heir, 
 let such a one be heir. Inst. 2. 15, pr. And 
 a testator might appoint one heir after an- 
 other in this way, to what extent he pleased 
 (ira quantum velit testator substituere po- 
 test), which was called making several 
 grades of heirs (plures gradus haeredum) , 
 the person last named, without further al- 
 ternative, being termed "necessary heir" 
 (necessarius haeres), or heir at all events. 
 Id. 
 
 SUBSTITUTIO HAEREDIS (Lat.) In Ro- 
 man law, it was competent for a testator, 
 after instituting a haeres (called the "haeres 
 institutus"), to substitute another (called 
 the "haeres suistitutus") in his place in a 
 certain event. If the event upon which the 
 substitution was to take effect was the re- 
 fusal of the instituted heir to accept the in- 
 heritance at all, then the substitution was 
 called "vulgaris" (or common) ; but if the 
 event was the death of the infant (:piipiUus) 
 after acceptance, and before attaining his 
 majority (of fourteen years if a male, and 
 of twelve years if a female), then the sub- 
 stitution was called "pupillaris" (or for 
 minors) . Brown. 
 
 SUBSTITUTION il^at. suhstitutio) . In civ- 
 il law. The putting of one person in the 
 place of another, so that he may, in default 
 of ability in the former, or after him, have 
 the benefit of a devise or legacy. 
 
 Direct substitution is merely the institu- 
 tion of a second legatee in case the first 
 should be either incapable or unwilling to 
 accept the legacy; for example, if a testator 
 should give to A. his estate, but provides 
 that, in case he cannot legally receive if, or 
 he willfully refuses it, it shall go to B. 
 
 Fidei commissary substitution is that 
 which takes place when the person substi- 
 tuted is not to receive the legacy until after 
 the first legatee, and, consequently, must re- 
 ceive the thing bequeathed from the hand$ 
 of the latter; for example, t institute A. my 
 heir, and I request that at his death he shall 
 deliver my succession to B. Merlin, Repert. ; 
 5 TouUier, Dr. Civ. 14. See "Subrogation." 
 
 SUBSTITUTIONAL, or SUBSTITUTION- 
 ary. Where a will contains a gift of prop- 
 erty to a class of persons, with a clause pro 
 viding that, on the death of a member of the 
 class before the period of distribution, his 
 share is to go to his issue, if any, so as to 
 substitute them for him, the gift to the issue 
 
 is said to be substitutional or substitution- 
 ary. A bequest to such of the children of A. 
 as shall be living at the testator's death, 
 with a direction that the issue of such as 
 shall have died shall take the shares which 
 their parents would have taken, if living at 
 the testator's death, is an example. Under 
 such a gift, the issue of children dead at the 
 date of the will cannot take anything. 2 
 Jarm. Wills, 771 et seq. 
 
 SUBSTITUTIONARY EXECUTOR. A per- 
 son nominated by the testator to be execu- 
 tor in the event that the person primarily 
 nominated shall fail to qualify or cease to 
 act. 
 
 SUBSTRACTION. In French law. The 
 act of taking something fraudulently. It is 
 generally applied to the taking of the goods 
 of the estate of a deceased person fraudu- 
 lently. See "Bxpilation." 
 
 SUBTENANT. An under tenant. 
 
 SUBTRACTION (Lat. siib, away, traho, to 
 draw). The act of withholding or detaining 
 anything unlawfully. 
 
 SUBTRACTION OF CONJUGAL RIGHTS. 
 
 The act of a husband or wife living sepa- 
 rately from the other without a lawful 
 cause. 3 BI. Comm. 94. 
 
 SUBVASSORES (Law Lat.) In old Scotch 
 law. Base holders; inferior holders; they 
 who held their lands of knights. Skene de 
 Verb. Sign. 
 
 SUCCESSIO (Lat.) In the civir law. A 
 coming in place of another, on his decease; 
 a coming into the estate which a deceased 
 person had at the time of his death. This 
 was either by virtue of an express appoint- 
 ment of the deceased person by his will (ex 
 testamento) , or by the general appointment 
 of law in case of intestacy (o6 intestato). 
 Inst. 2. 9. 7;, Heinec. Elem. Jur. Civ. lib. 2, 
 tit. 10; Id. lib. 3, tit. 13. 
 
 SUCCESSION. 
 
 In Louisiana. The right and trans- 
 mission of the rights and obligations of the 
 deceased to his heirs. The estate, rights, 
 and charges which a person leaves after his 
 death, whether the property exceed the char- 
 ges, or the charges exceed the property, or 
 whether he has left only charges without 
 property. The succession not only includes 
 the rights and obligations of the deceased 
 as they exist at the time of his death, but 
 all that has accrued thereto since the open- 
 ing of the succession, as also of the new 
 charges to which it becomes subject. That 
 right by which the heir can take possession 
 of the estate of the . deceased, such as it 
 may be. 
 
 (1) Irregular succession is that which is 
 established by law in favor of certain per- 
 sons, or of the state in default of heirs, ei- 
 ther legal or instituted by testament. 
 
 (2) Legal succession is that which is es- 
 tablished in favor of the nearest relations of 
 the deceased. 
 
 (3) Testamentary succession is that which 
 
SUCCESSION TAXES 
 
 (881) 
 
 SUI JURIS 
 
 results from the constitution of the heir, 
 contained In a testament executed in the 
 form prescribed by law. See "Heir;" "De- 
 scent;" Poth. des Success.; Toullier, Dr. 
 Civ. lib. 3, tit. 1. 
 
 In Common Law. The mode by which 
 
 one ' set of persons, members of a corpora- 
 tion aggregate, acquire the rights of another 
 set which preceded them. This term in 
 strictness is to be applied only to such cor- 
 porations. 2 Bl. Comm. 430. 
 
 SUCCESSION TAXES. Taxes levied on 
 the successions due or inheritance of a de- 
 cedent's estate. They are variously called 
 "inheritance taxes," "collateral inheritance 
 taxes," "transfer taxes," and perhaps other 
 names. The local statutes imposing them 
 determine the modes for their collection, 
 and the persons or properties liable. 
 
 SUCCESSOR. One who follows or comes 
 into the place of another. 
 
 This term Is applied more particularly to 
 a sole corporation, or to any corporation. 
 The word "heir" is more correctly applicable 
 to a common person who- takes an estate by 
 descent. 12 Pick. (Mass.) 322; Co. Litt. 8b. 
 
 A person who has been appointed or elected 
 to some office after another person. 
 
 SUCCURRITUR MINORI; FACILIS EST 
 lapsus juventutls. A minor is to be aided; 
 youth Is liable to err. Jenk. Cent. Cas. 47. 
 
 SUCKEN, or SUCHEN. In Scotch law. 
 
 The whole lands restricted to a mill, — that is, 
 
 whose tenants are bound to grind there. The 
 
 ■possessors of these lands are called "suck- 
 
 eners." Bell, Diet. 
 
 SUE. To commence or continue legal pro- 
 ceedings for the recovery of a right. See 
 "Action;" "Suit." 
 
 SUE OUT. In practice. To obtain judi- 
 cially; to issue. Applied only to process; 
 particularly such as is granted specially. 
 To sue out a writ is to obtain and issue it; 
 to issue it on leave obtained for the pur- 
 pose. 
 
 SUERTE. In Spanish law. A small lot of 
 ground. 5 Tex. 83. 
 
 SUFFER. To suffer an act to be done, by 
 a person who can prevent it, is to permit or 
 consent to it; to approve of it, and not to 
 hinder it. It implies a willingness of the 
 mind. 19 Conn. 505. 
 
 SUFFERANCE, TENANCY AT. See "Ten- 
 ancy." 
 
 SUFFERANCE WHARVES. Wharves on 
 which goods may be landed before any duty 
 is paid. They are appointed for the purpose 
 by the commissioners of the customs. 16 
 & 17 Vict. c. 107, § 13; 2 Steph. Comm. 500, 
 note. 
 
 SUFFERING A RECOVERY. A recovery 
 was effected by the party wishing to convey 
 the land suffering a fictitious action to be 
 brought against him by the party to whom 
 
 the land was to be conveyed (the demand- 
 ant), and allowing the demandant to recover 
 a judgment against him for the land in 
 question. The vendor, or conveying party, 
 in thus assisting or permitting the demand- 
 ant so to recover a judgment against him, 
 was thence technically said to "suffer a re- 
 covery." Brown. 
 
 SUFFRAGAN (Law Lat. suffragaiiciis). A 
 titular bishop ordained to assist the bishop 
 of the diocese in his spiritual functions, or 
 to take his place. The number was limited 
 to two to each bishop by 26 Hen. VIII. c. 
 14. So called because by his suffrage ecclesi- 
 astical causes were to be judged. Termes de 
 la Ley. 
 
 SUFFRAGE. Vote; the act of voting; the 
 right to vote. 
 
 SUGGESTIO FALSI (Lat.) A statement 
 of a falsehood. This amounts to a fraud 
 whenever the party making it was bound to 
 disclose the truth. 
 
 The following is an example of a case 
 where chancery will interfere and set aside a 
 contract as fraudulent, on account of the 
 suggestio falsi: A purchaser applied to the 
 seller to purchase a lot of wild land, and 
 represented to him it was worth nothing, 
 except for a sheep pasture, when he knew 
 there was a valuable mine on the lot, of 
 which the seller was ignorant. The sale was 
 set aside. 2 Paige, Ch. (N. Y.) 390; 4 Bouv. 
 Inst, note 3837 et seq. See "Concealment;" 
 "Misrepresentation ; " "Representation ; " "Sup- 
 pressio Verl." 
 
 SUGGESTION. In practice. Information. 
 It is applied to those cases where, during 
 the pendency of a suit, some matter of fact 
 occurs which puts a stop to the suit in its 
 existing form, such as death or Insolvency 
 of a party. The counsel of the other party 
 announces the fact in court, or enters it 
 upon the record. The fact is usually ad- 
 mitted, if true, and the court issues the prop- 
 er order thereupon. See 2 Sellon, Prac. 191. 
 
 In wills, when suggestions are made to a 
 testator for the purpose of procuring a de- 
 vise of his property in a particular way, and 
 when such suggestions are false, they gen- 
 erally amount to a fraud. Bac. Abr. "Wills" 
 (G 3) ; 5 Toullier, Dr. Civ. note 706. 
 
 SUGGESTIVE INTERROGATION. A 
 
 phrase which has been used by some writers, 
 to signify the same thing as "leading ques- 
 tion." 2 Benth. Ev. bk. 3, c. 3. It is used in 
 the French law. 
 
 SUI GENERIS (Lat.) Of its own kind; 
 the only one of its kind. 
 
 SUI HAEREDES (Lat.) In the civil law.. 
 One's own heirs; proper heirs. Insi. 2. 19., 
 2; Dig. 38. 16. 
 
 SUI JURIS (Lat. of his own right). Pos- 
 sessing all the rights to which a freeman is 
 entitled; not being under the power of an- 
 other, as a slave, a minor, and the like. 
 
 To make a valid contract, a person must. 
 
SUICIDE 
 
 (882) 
 
 SUITORS' FUND 
 
 in general, be sui juris. Every one of full 
 age is presumed to be sui juris. Story, 
 Ag. 10. 
 
 SUICIDE. Self-destruction. At common 
 law, suicide was a felony entailing forfeiture 
 of estate. 1 Hale, P. C. c. 27. 
 
 Since tbe abolition of forfeitures, punish- 
 ment of suicide is, of course, impossible, but 
 an attempt to commit suicide is indictable 
 (9 Cox, C. C. 247); and one who persuades 
 another to suicide is guilty of murder (4 
 Bl. Comm. 189; 123 Mass. 422), though, if 
 he be not present at the commission of the 
 suicide,- it is held that he cannot be pun- 
 ished, because he is an accessory before the 
 fact, and the prior conviction of the prin- 
 cipal is impossible (9 Car. & P. 79). 
 
 SUING AND LABORING CLAUSE. A 
 
 clause in an English policy of marine in- 
 surance, generally in the following form: 
 "In case of any loss or misfortune, it shall 
 be lawful for the assured, their factors, 
 servants, and assigns, to sue, labor, and 
 travel for, in, and about the defense, safe- 
 guard, and recovery of the" property in- 
 sured, "without prejudice to this insurance; 
 to the charges whereof we, the assurers, will 
 contribute." Thfe object of the clause is to 
 encourage the assured to exert themselves 
 in preserving the property from loss. 15 
 C. B. (N. S,) 291; 2 Q. B. Div. 501; 4 App. 
 Cas. 755. 
 
 SUIT. In its broadest sense, any proceed- 
 ing in a court of justice by which a party 
 pursues a remedy which the law affords him. 
 In this sense, it is a broader term than "ac- 
 tion," including proceedings in petition. 2 
 Pet. (U. S.) 449; 14 Pet. (U. S.) 540. 
 
 "Suit" applies to criminal proceedings (143 
 Mass. 136), and proceedings both in equity 
 and at law (20 How. Pr. [N. Y.] 381). 
 
 In a narrower sense, "suit" has been held 
 synonymous with "action." 4 Wall. (U. S.) 
 112. And "suit" is commonly applied to 
 proceedings in equity, and "action" to pro- 
 ceedings at law. 9 Barb. (N. Y.) 300. 
 
 In Louisiana. A suit is a real, per- 
 sonal, or mixed demand made before a com- 
 petent judge, by which the parties pray to 
 obtain their rights and a decision of their 
 disputes. Code Prac. art. 96. In that accepta- 
 tion, the words "suit," "process," and "cause" 
 are in that state almost synonymous. 
 
 At Common Law. The term had sev- 
 eral meanings, not included in the idea of 
 proceedings in court, as: 
 
 (1) Suit of court, an attendance which a 
 tenant owes to his lord's court. Cowell; 
 Jacob, 4. 
 
 (2) Suit covenant, where one has cove- 
 nanted to do suit and service in his lord's 
 court. 
 
 (3) Suit custom, where service, is owed 
 time out of mind. 
 
 (4) The following one in chase; as, fresh 
 suit.' 
 
 (5) A petition to a king, or a great per- 
 son, or a court. 
 
 SUIT SILVER, or SUTER SILVER. A 
 
 small rent or sum of money paid in some 
 
 manors to excuse the freeholders' appear- 
 ance at the courts of their lord. Cowell. 
 
 SUITAS (Law Lat.) In the civil law. The' 
 condition or quality of a suus haeres, or 
 proper heir. Halifax, Anal. bk. 2, c. 9, No. 
 11; Calv. Lex. This term seems to have been 
 framed by the later civilians. 
 
 SUITE (French). Those persons who, by 
 his authority, follow or attend an ambassa- 
 dor or other public minister. 
 
 In general, the suite of a minister are pro- 
 tected from arrest, and the inviolability of 
 his person is communicated to those who 
 form his suite. Vattel, lib. 4, c. 9, § 120- 1 
 Ball. (Pa.) 177; Baldw. (U. S.) 240. See 
 "Ambassador." 
 
 SUITOR. One who is a party to a suit or 
 action in court; one who is a party to an 
 action. In its ancient sense, "suitor" meant 
 one who was bound to attend the county 
 court; also, one who formed part of the 
 secta. 
 
 SUITORS' DEPOSIT ACCOUNT. Former- 
 ly suitors in the English court of chancery 
 derived no income from their cash paid in- 
 to court unless it was invested at their re- 
 quest and risk. Now, however, it is pro- 
 vided by the Court of Chancery (Funds) 
 Act 1872, that all money paid into court, 
 and not required by the suitor to be invest- 
 ed, shall be placed on deposit, and shall 
 bear interest at two per cent, per annum for 
 the benefit of the suitor entitled to it. The 
 sum required for the payment of this inter- 
 est is produced by placing all money in 
 court not required for meeting current de- 
 mands in the hands of the commissioners 
 for the reduction of the national debt, who 
 invest it in government securities. This ar- 
 rangement is called the "suitors' deposit ac- 
 count." See Chancery Funds Consolidated 
 Rules, 1874; Report of Chancery Funds Com- 
 missioners (1864) Ivii. 
 
 SUITORS' FEE FUND. A fund arising 
 partly from the fees of the English court of 
 chancery, and partly from the surplus in- 
 come of the suitors' fund (g. v.) Out of it 
 the salaries and other expenses of the court 
 of chancery were paid. By the Courts of 
 Justice (Salaries and Funds) Act 1866, the 
 suitors' fee fund was transferred to the com- 
 missioners for the reduction of the national 
 debt, and the salaries and expenses formerly 
 paid out of it were charged on the consoli- 
 dated fund. Rep. Chanc. Fund Comm. 1864. 
 
 SUITORS' FUND. A fund belonging to 
 the EngUsh court of chancery, and consisting 
 of two parts. Fund A consisted of govern- 
 ment stocks resulting from the investment of 
 so much of the money in court belonging to 
 the suitors as was not required for current 
 purposes, Part of the income arising from 
 these Investments was employed in paying 
 certain expenses of the court, and the bal- 
 ance was invested in government stocks, 
 which formed fund B. Subsequently the 
 surplus income of both funds was annually 
 added to the suitors' fee fund (g. v.) By 
 
SULCUS 
 
 (883) 
 
 SUMMONS 
 
 the Courts of Justice, etc.. Act 1869, the 
 suitors' fund was transferred to the com- 
 missioners for the reduction of the national 
 deht, and the consolidated fund was made 
 liahle for the due payment of the money 
 which belonged to the suitors, and had been 
 Invested a^ above stated. Chanc. Funds 
 Comm. Rep. 1864. 
 
 SULCUS. A small brook or stream of 
 water. Cowell. 
 
 SUM. A summary or abstract; a compen- 
 dium; a collection. 
 
 SUM IN GROSS. An entire sum, as dis- 
 tinguished from one composed of separate or 
 specified parts. 16 Wend. (N. Y.) 61, 262. 
 
 SUMMA CARITAS feST FACERE JUSTI- 
 tiam singulis et omni tempore quando ne- 
 cesse fuerit. The greatest charity is to do 
 justice to every one, and at any time when- 
 ever it may be necessary. 11 Coke, 70. 
 
 SUMMA EST LEX QUAE PRO RELIGI- 
 one facit. That is the highest law which fa- 
 vors religion. 10 Mod. 117, 119; 2 Chanc. 
 Gas. 18. 
 
 SUMMA RATIO EST QUAE PRO RELIG- 
 jone facit. That consideration is strongest 
 which determines in favor of religion. Co. 
 Litt. 341a; Broom, Leg. Max. (3d London 
 Ed.) 18; 5 Coke, 14b; 10 Coke, 55a; 2 
 Chanc. Cas. 18. 
 
 SUMMAM ESSE RATIONEM QUAE PRO 
 religione facit. That consideration is strong- 
 est which determines in favor of religion. 
 Dig. 11. 7. 43, cited in Grotius de Jure Belli, 
 lib. 3, c. 12, § 7. See 10 Mod. 117, 119. 
 
 SUMMARY PROCEDURE ON BILLS OF 
 exchange. This phrase refers to St. 18 & 19 
 Vict. c. 67, passed in 1855, for the purpose 
 of facilitating the remedies on bills and 
 notes by the prevention of frivolous or fic- 
 titious defenses. By this statute, a defend- 
 ant in an action on a bill or note, brought 
 within six months after it has become pay- 
 able, is prohibited from defending the action 
 without the leave of the court or a judge. 
 See 2 Steph. Comm. 118, note; Lush, Prac. 
 1027. 
 
 SUMMARY PROCEEDING. A form of tri- 
 al in which the ancient established course 
 of legal proceedings is disregarded, especial- 
 ly in the matter of trial by jury, and, in the 
 case of the heavier crimes, presentment by 
 a grand jury. See 8 Gray (Mass.) 329. 
 
 In no case can the party be tried sum- 
 marily unless when such proceedings are au- 
 thorized by legislative authority, except per- 
 haps in cases of contempts; for the common 
 law is a stranger to such a mode of trial. 4 
 Bl. Comm. 280. See 2 Kent, Comm. (6th 
 Ed.) 73; 2 Conn. 819; 4 Conn. 535; 37 Me. 
 172; 4 Hill (N. Y.) 145; 8 Gray (Mass.) 
 329; 4 Dev. (N. C.) 15; 10 Yerg. (Tenn.) 59. 
 
 SUMMARY TRIALS. A modern term em- 
 ployed to designate criminal trials before 
 magistrates, justices of the peace, or other 
 
 inferior judicial officers or courts, which 
 trials are not according to the common-law 
 trial by jury on indictment, but are con- 
 ducted in a less formal and cautious man- 
 ner. Only the minor offenses are tried thus. 
 It seems that the term should include a 
 trial on indictment if it lacks the element 
 of trial by a common-law jury. 
 
 SUMMER-HUS SILVER. A payment to 
 the lords of the wood on the Wealds of 
 Kent, who used to visit those places in sum- 
 mer, when their under tenants were bound 
 to prepare little summer houses for their 
 reception, or else pay a composition in mon- 
 ey. Custumale de Newington juxta Sitting- 
 burn, M. S.; Cowell. 
 
 SUMMING UP. In practice. The act of 
 making a speech before a court and jury, 
 after all the evidence has been heard, in 
 favor of one of the parties in the cause, is 
 called "summing up." When the judge de- 
 livers his charge to the jury, he usually sums 
 up the evidence in the case. 6 Harg. St. Tr. 
 832; 1 Chit. Crim. Law, 632. See "Charge." 
 
 SUMMON. In practice. To notify the de- 
 fendant that an action has been instituted 
 against him, and that he is required to an- 
 swer to it at a time and place named. This 
 is done by a proper oflicer's either giving the 
 defendant a copy of the summons, or having 
 it at his house, or by reading the summons 
 to him. 
 
 SUMMONERS. Petty officers who cite 
 men to appear in any court. 
 
 SUMMONITIO (Law Lat.) In old English 
 practice. A summoning or summons; a writ 
 by which a party was summoned to appear 
 in court, of which there were various kinds. 
 Spelman; Pleta, lib. 6, c. 6. 
 
 A command or precept of the king that one 
 be before him to answer or do something, 
 or that one be and have such a one to answer 
 or to do something. Bracton, fol. 333. 
 
 SUMMONITIONES AUT CITATIONES 
 nullae liceant fieri intra palatium regis. Let 
 
 no summonses or citations be served within 
 the king's palace. 3 Inst. 141. 
 
 SUMMONITORES SCACCARll. Officers 
 who assisted in collecting the revenues by 
 citing the defaulters therein into the court 
 of exchequer. 
 
 SUMMONS. 
 
 In Common-Law Practice. The name 
 
 of a writ commanding the sheriff, or other 
 authorized officer, to notify a party to ap- 
 pear in court to answer a complaint made 
 against him, and in the said writ specified, 
 on a day therein mentioned. Viner, Abr.; 2 
 Sellon, Prac. 356; 3 Bl. Comm. 279. 
 
 The writ of summons was substituted by 
 St. 2 Wm. IV. c. 39, for the original writs 
 by which actions were formerly commenced. 
 
 In Code Practice. .The proceeding 
 
 to commence an action in many of the code 
 states consists of a notice to defendant, 
 requiring him to serve an answer to the 
 
SUMMONS AND SEVERANCE 
 
 (884) 
 
 GSUPERDEMANDA 
 
 complaint. It is ordinarily signed by tlie 
 plaintiff or his attorney, bears no teste, and 
 is not process. It may be served by any 
 disinterested person or by the attorney. 
 
 In other code states the summons runs in 
 the name of the state or people, is issued by 
 the clerk under seal, and is served by the 
 sheriff. 
 
 Some of the states permit the use of either 
 of these two modes of summons. See "Pro- 
 
 SUMMONS AND SEVERANCE. See "Sev- 
 erance." 
 
 SiUMMUM JUS (Lat.) Strict right; ex- 
 treme right. 3 Bl. Comm. 392; 1 Burrows, 
 54. The extremity or rigor of the law. 
 Burr. Sett. Cas. 588. Lord Bacon applies 
 the phrase to strict law, untempered by 
 equity. Works, IV. 274. 
 
 SUMMUM JUS, SUMMA INJURIA. The 
 rigor or height of law is the height of wrong. 
 Hob. 125. 
 
 SUMPTUARY LAWS. Laws relating to 
 the expenses of the people, and made to re- 
 strain excess in apparel, food, drink, furni- 
 ture, etc. 
 
 They originated in the view that luxury 
 is, in some of its degrees, opposed to public 
 policy, and that the state is bound to inter- 
 fere against it. Montesq. Esprit des Lois, bk. 
 7, c. 2, 4, and Tacitus, Ann. bk. 2, c. 33; Id. 
 bk. 3, c. 52. 
 
 In England, in 1336, it was enacted (10 
 Edw. III. c. 3), that, inasmuch as many mis- 
 chiefs had happened to the people of the 
 realm by excessive and costly meats, by 
 which, among other things, many who as- 
 pired in this respect beyond their means 
 were impoverished and unable to aid them- 
 selves or their liege lord in time of need, 
 all men were forbidden to have served more 
 than two courses at a meal, each of but two 
 sorts of victual, except on the principal 
 feasts of the year, and then only three 
 courses were allowed. Blackstone states 
 that this is still unrepealed. 4 Bl. Comm. 
 170. Subsequent statutes — that of 1363, and 
 those of 1463 and 1482 — regulated the dress, 
 and to some extent the diet, of the people, 
 with careful regard to their rank. The sub- 
 stance of these statutes will be found in 
 Knight's History of England, vol 2, pp. 272- 
 274. They were repealed by 1 Jao. I. c. 25. 
 
 SUNDAY. The first day of the week. In 
 some of the New England states it begins at 
 sunsetting on Saturday, and ends at the 
 same time the next day; but in other parts 
 of the United States it generally commences 
 at twelve o'clock on the night between Sat- 
 urday and Sunday, and ends in twenty-four 
 hours thereafter. 6 Gill & J. (Md.) 268. 
 And see Bac. Abr. "Heresy, etc." (D), "Sher- 
 iff" (N 4); 1 Salk. 78; 1 Sellon, Prac. 12. 
 The "Sabbath," the "Lord's Day," and "Sun- 
 day" all mean the same thing. 6 Gill & J. 
 (Md.) 268. See 3 Watts (Pa.) 56, 59; 6 
 Vv'a^ts (Pa.) 231. 
 
 SUO NOMINE (Lat.) In his own name. 
 
 SUO PERICULO (Lat.) At his own peril 
 or risk. 
 
 SUPER ALTUM MARE (Lat.) Upon the 
 high sea. See "High Seas." 
 
 SUPER FIDEM CHARTARUM, MORTUIS 
 testibus, erit ad patriam de necessitate re- 
 currendum. The truth of charters is neces- 
 sarily to be referred to a jury when the wit- 
 nesses are dead. Co. Litt. 6.- 
 
 SUPER JURARE. A term anciently used 
 when a criminal endeavored to excuse him- 
 self by his own oath, or the oath of one or 
 two witnesses, and the crime objected 
 against him was so plain and notorious that 
 he was convicted on the oaths of many more 
 witnesses. Wharton. 
 
 SUPER PRAEROGATIVA REGIS. A writ 
 which formerly lay against the king's ten- 
 ant's widow for marrying without the royal 
 license. Pitzh. Nat. Brev. 174. 
 
 SUPER STATUTO. 1 Edw. Ill c. 12. A 
 writ that lay against the king's tenant hold- 
 ing in chief, who aliened the king's land 
 without his license. 
 
 SUPER STATUTO DE ARTICULIS CLE- 
 
 rl. A writ which lay against a sheriff or 
 other officer who distrained in the king's 
 highway, or on lands anciently belonging to 
 the church. 
 
 SUPER STATUTO FACTO POUR SENE- 
 schal et marshal de roy, etc. A writ which 
 lay against a steward or marshal for holding 
 plea in his court, or for trespass or contracts 
 not made or arising within the king's house- 
 hold. 
 
 SUPER STATUTO VERSUS SERVAN- 
 tes et laboratores. A writ which lay against 
 him who kept any servants who had left the 
 service of another, contrary to law. 
 
 SUPER VISUM CORPORE (Lat.) Upon 
 view of the body. When an inquest is held 
 over a body found dead, it must be super 
 visum coi'porc. See "Coroner." 
 
 SUPERCARGO. In maritime law. A per- 
 son specially employed by the owner of a 
 cargo to take charge of and sell to thfe best 
 advantage merchandise which has been ship- 
 ped, and to purchase returning cargoes and 
 to receive freight, as he may be authorized. 
 
 Supercargoes have complete control over 
 the cargo and everything which immediately 
 concerns it, unless their authority is either 
 expressly or impliedly restrained. 12 Bast, 
 381. Under certain circumstances, they are re- 
 sponsible for the cargo (4 Mass. 115. See 1 
 Gill & J. [Md.] 1), but the supercargo has 
 no power to interfere with the government 
 of the ship (3 Pardessus, note 646; 1 Boul. 
 P. Dr. Com. 421). 
 
 SUPERDEMANDA (Law Lat.) In old 
 E-nglish practice. An over demand; a de- 
 mand of more than was just or due. Cadit 
 in misericordiam pro superdemanda, be^ 
 comes subject to amercement for his . over 
 demand. Bracton, fol. 179b. 
 
SUPERFICIARIUS 
 
 (885) SUPPLEMENT, LETTERS OF 
 
 SUPERFICIARIUS (Lat) In civil law. 
 He who has built upon the soil of another, 
 which he has hired for a number of years or 
 forever, yielding a yearly rent. This is not 
 very different from the owner of a lot on 
 ground rent in Pennsylvania. Dig. 43. 18. 1. 
 
 SUPERFICIES (Lat.) In civil law. What- 
 ever has been erected on the soil. 
 
 SUPERFLUA NON NOCENT. Superflui- 
 ties do no injury. Jenk. Cent. Gas. 184. 
 
 SUPERFLUOUS LANDS. In English law. 
 Lands acquired by a railway company under 
 its statutory powers, and not required for 
 the purposes of its undertaking. The com- 
 pany is bound, within a certain time, to sell 
 such lands, and, if it does not, they vest in 
 and become the property of the owners of 
 the adjoining: lands. 13 Ch. Div. 607. 
 
 SUPERINDUCTIO (Lat.) In the civil 
 law. A species of obliteration. Dig. 28. 4. 
 1.1. 
 
 SUPERINSTITUTION. Where a church 
 is full by institution, and a second institu- 
 tion is granted to the same church, this is a 
 superinstitution, and necessarily raises the 
 question who is entitled to the benefice. It 
 is said that the party who obtains a super- 
 institution may try his title by ejectment, 
 but that, in consequence of its inconven- 
 iences, this method is discouraged, and the 
 more usual remedy of a quare impedit adopt- 
 ed. Phillim. Ecc. Law, 476. 
 
 SUPERIOR. One who has a right to com- 
 mand; one who holds a superior rank; as, 
 a soldier is bound to obey his superior. 
 
 In estates, some are superior to others. 
 An estate entitled to a servitude or easement 
 over another estate is called the "superior" 
 or "dominant," and the other the "inferior" 
 or "servient," estate. 1 Bouv. Inst, note 1612. 
 
 SUPERIOR AND VASSAL. In Scotch law. 
 A feudal relation corresponding with the 
 English "lord and tenant." Bell, Diet. 
 
 SUPERIOR COURT. 
 
 In English Law. A term applied col- 
 lectively to the three courts of common law 
 at Westminster, namely, the king's bench, 
 the common pleas, the exchequer. 
 
 It denotes a court of intermediate juris- 
 diction between the courts of inferior or 
 limited jurisdiction and the courts of last 
 resort. 
 
 In American Law. A court of interme- 
 diate jurisdiction between the interior courts 
 and those of last resort. 
 
 In Delaware it is the court of last resort; 
 and in some of the states there is a superior 
 court for cities. 
 
 SUPERIORITY. In Scotch law. The do- 
 minium directum of lands, without the prof- 
 it. 1 Forbes, Inst. pt. 2, p. 97; Bell, Diet. 
 
 SUPERNUMERARII (Lat.) In Roman 
 law. Those advocates who were not statuti 
 (g- V.) 
 
 The statuti were inscribed in the matricu- 
 
 lation books, and formed a part of the college 
 of advocates in each jurisdiction. The su- 
 pernumeraries were not attached to any bar 
 in particular, and could reside where they 
 pleased. They took the place of advocates 
 by title as vacancies occurred in that body. 
 
 SUPERONERATIO (Law Lat. fiiipeirme- 
 nare) . Surcharging a common, i. e., putting 
 in beasts of a number or kind other than the 
 right of common allows. It can only be of 
 a common appendant or appurtenant. Brac- 
 ton, fol. 229, and Fleta, lib. 4, c. 23, § 4, give 
 two remedies, novel disseisin and writ of 
 admeasurement, by which latter remedy no 
 damages are recovered till the second of- 
 fense. Now, distraining, trespass, and case 
 are used as remedies. 3 Bl. Comm. 238*. 
 
 SUPERONERATIONE PASTURAE. A ju- 
 dicial writ that lay against him who was im- 
 pleaded in the county court for the sur- 
 charge of a common with his cattle, in a case 
 where he was formerly impleaded for it in 
 the same court, and the cause was removed 
 into one of the superior courts. Obsolete. 
 
 SUPERPLUSAGIUM. Overplus; surplus; 
 residue or balance. Spelman. 
 
 SUPERSEDE. To stay, stop, interfere 
 with, or annul; e. g., to supersede the pro- 
 ceedings in outlawry, or in bankruptcy, or 
 in lunacy, etc. 
 
 SUPERSEDEAS (Lat. that you set aside). 
 A stay of proceedings. The name of a writ 
 containing a command to stay the proceed- 
 ings at law. It is either express, by the 
 issuance of a writ of supersedeas, or im- 
 plied, by the issuance of a writ as of cer- 
 tiorari, a writ of error when bail is given, 
 etc., which operate as a supersedeas. 
 
 SUPERSTITIOUS USE. In English law. 
 When lands, tenements, rents, goods, or chat- 
 tels are given, secured, or appointed for and 
 towards the maintenance of a priest or chap- 
 lain to say mass; for the maintenance of 
 a priest or other man to pray for the soul 
 of any dead man in such a church or else- 
 where; to have and maintain perpetual 
 obits, lamps, torches, etc., to be used at cer- 
 tain times to help to save the souls of men 
 out of purgatory, — in such cases, the king, 
 by force of several statutes, is authorized 
 to direct and appoint all such uses to such 
 purposes as are truly charitable. Bac. Abr. 
 "Charitable Uses and Mortmain" (D) ; Duke, 
 Char. Uses, 105; 6 Ves. 567; 4 Coke, 104. 
 
 In the United States, where all religious 
 opinions are free, and the right to exercise 
 them is secured to the people, a bequest to 
 support a Catholic priest, and perhaps cer- 
 tain other uses in England, would not be 
 considered as superstitious uses. 1 Pa. St. 
 49; 8 Pa. St. 327; 17 Serg. & R. (Pa.) 388; 
 1 Wash. C. C. (U. S.) 224. Yet many of 
 the superstitious uses of the English law 
 would fail to be considered as charities, and 
 would undoubtedly come under the prohibi- 
 tion against perpetuities. 
 
 SUPPLEMENT, LETTERS OF. In Scotch 
 
SUPPLEMENTAL 
 
 (886) 
 
 SUPREME COURT 
 
 practice. A process by which a party not 
 residing within the jurisdiction of an in- 
 ferior court may he cited to appear before 
 it. Bell, Diet. 
 
 SUPPLEMENTAL. That which is added 
 to a thing to complete it; as, a supple- 
 mental affidavit, which is an additional affi- 
 davit to make out a case; a supplemental 
 bill. 
 
 SUPPLEMENTAL AFFIDAVIT. In prac- 
 tice. An affidavit made in addition to a 
 previous affidavit, for the purpose of sup- 
 plying some deficiency in it. 
 
 SUPPLEMENTAL ANSWER. One which 
 was filed in chancery for the purpose of cor- 
 recting, adding to, and explaining an an- 
 swer already filed. Smith,' Ch. Prac. 334. 
 
 SUPPLEMENTAL BILL. In equity prac- 
 tice. A bill brought as an addition to an 
 original bill to supply some defect in its 
 original frame or structure which cannot 
 be supplied by amendment. See 1 Paige 
 Ch. (N. Y.) 200; 15 Miss. 456; 22 Barb. (N. 
 Y.) 161; 14 Ala. (N. S.) 147; 18 Ala. (N. S.) 
 771. It may be brought by a plaintiff or 
 defendant (2 Atk. 533; 2 Ball & B. 140; 1 
 Story, C. C. [U. S.l 218), and as well after 
 as before a decree (3 Md. Ch. 306; 1 Macn. 
 & G. 405; Story, Eq. PI. § 338; Hinde, 
 Chanc. Prac. 43), but must be within a 
 reasonable time (2 Halst. [N. J.] 465). See 
 "Original Bill." 
 
 SUPPLEMENTAL BILL, BILL IN THE 
 nature of a. See "Bill in the Nature, etc." 
 
 SUPPLEMENTAL CLAIM. Afurtherclaim 
 which was filed when further relief was 
 sought after the bringing of a claim. Smith, 
 Ch. Prac. 655. 
 
 SUPPLEMENTAL COMPLAINT. In code 
 practice. A complaint supplying some de- 
 fect or omission in the original complaint, 
 not curable by amendment. 
 
 SUPPLETORY OATH. In ecclesiastical 
 law. An oath given by the judge to the 
 plaintiff or defendant upon half proof, as by 
 one witness, already made. The oath, added 
 to the half proof, enables the judge to de- 
 cide. It is discretionary with the judge. 
 Strange, 80; 3 Bl. Comm. 370*. 
 
 SUPPLICATIO (Lat.) In civil law. A pe- 
 tition for pardon of a first offense; also, a 
 petition for reversal of judgment; also, 
 equivalent to dupUcatio, which is our "re- 
 joinder." Calv. Lex. 
 
 SUPPLICAVIT (Lat.) In English law. 
 The name of a writ issuing out of the king's 
 bench or chancery for taking sureties of 
 the peace. It is commonly directed to the 
 justices of the peace, when they are averse 
 to acting in the affair in their judicial ca- 
 pacity. 4 Bl. Comm. 233. See Viner, Abr.; 
 Comyn, Dig. "Chancery" (4 R), "Forcible 
 Entry" (D 16, 17). 
 
 SUPPLICIUM (Lat.) In civil law. A cor- 
 
 poral punishment ordained by law; the pun- 
 ishmeiit of death; so called because it was 
 customary to accompany the guilty man to 
 the place of execution, and there offer sup- 
 plications for him. 
 
 SUPPLIES. In English law. Extraordi- 
 nary grants to the king by parliament tO' 
 supply the exigencies of the state. Jacob. 
 
 SUPPORT. In the law of ea,sements. The 
 right to rest the beams or framework of a 
 building into a wall of an adjoining build- 
 ing. Also rights of lateral and subjacent 
 support which pertain to owners of adjoin- 
 ing lands. See "Party Walls;" "Lateral Sup- 
 port." 
 
 In the law of decedents' estates the term 
 "support" is sometimes used as a synonym 
 for the allowance of articles or money set 
 apart for the survivor and children. 
 
 SUPPRESSIO VERI (Lat.) Concealment 
 of truth. See "Fraud." 
 
 SUPPRESSIO VERI, EXPRESSIO FALSI. 
 
 Suppression of the truth is (equivalent to) 
 the expression of what is false. 11 Wend. 
 (N. Y.) 374, 417. 
 
 SUPPRESSIO VERI, SUGGESTIO FALSI. 
 
 Suppression of the truth is equivalent to 
 the suggestion of what is false. 23 Barb. 
 (N. Y.) 521, 525. 
 
 SUPRA (Lat.) Above; upon. 
 
 SUPRA PROTEST (over protest). In 
 mercantile law. A term applied to an ac- 
 ceptance of a bill by a third person, after 
 protest for nonacceptance by the drawee. 3 
 Kent, Comm. 87. 
 
 SUPREMA VOLUNTAS (Lat.) The last 
 vrtll. Et suprema voluntas quod mandat 
 flerique judet, parere necesse est, and what 
 a last will commands and orders to be done 
 must be obeyed. Doderidge, J., Latch, 137. 
 
 SUPREMACY. Sovereign dominion, au- 
 thority, and pre-eminence; the highest state. 
 In the United States, the supremacy resides 
 in the people, and is exercised by their con- 
 stitutional representative, — the president 
 and congress. See "Sovereignty." 
 
 SUPREMACY, ACT OF. See "Act of Su- 
 premacy." 
 
 SUPREMACY, OATH OF. In English law. 
 An oath to uphold the supreme power of 
 the kingdom in the person of the reigning 
 sovereign. 
 
 SUPREME. That which is superior to all 
 other things; as, the supreme power of the 
 state, which is an authority over all others; 
 the supreme court, which is superior to all 
 other courts. 
 
 SUPREME COURT. A court of superior 
 jurisdiction in many of the states of the 
 United States and the federal court of last 
 resort. 
 
 The name is properly applied to the court 
 of last resort, and Is so used in most of the 
 
SUPREME COURT OF ERRORS j(887) 
 
 SURETYSHIP 
 
 states. In nearly all the states there is a 
 supreme court, but in one or two there is a 
 court of appellate jurisdiction from the su- 
 preme court. 
 
 SUPREME COURT OF ERRORS. InAmer- 
 ican law. An appellate tribunal, and the 
 court of last resort, in the state of Connecti- 
 cut. 
 
 SUPREME COURT OF JUDICATURE. 
 
 The court formed by the English Judicature 
 act of 1873, as modified by the judicature 
 act of 1875, the appellate jurisdiction act of 
 1876, and the judicature acts of 1877, 1879, 
 and 1881, in substitution for the various su- 
 perior courts of law, equity, admiralty, pro- 
 bate, and divorce, existing when the act was 
 passed, including the court of appeal in 
 chancery and bankruptcy, and the exchequer 
 chamber. It consists of two permanent divi- 
 sions, viz., a court of original jurisdiction, 
 called the "high court of justice," and a 
 court of appellate jurisdiction, called the 
 "court of appeal." Its title of "supreme" is 
 now a misnomer, as the superior appellate 
 jurisdiction of the house of lords and privy 
 council, which was originally intended to 
 be transferred to it, has been allowed to re- 
 main. 
 
 SUPREME JUDICIAL COURT. In Amer- 
 ican law. An appellate tribunal, and the 
 court of last resort. In the states of Maine, 
 Massachusetts, and New Hampshire. 
 
 SUPREMUS (Lat.) In the civil law. 
 Last; the last. 
 
 SUPREMUS EST, QUEM NEMO SEQUI- 
 tur. He is last whom no one follows. Dig. 
 50. 16. 92. 
 
 SUR (French). Upon. In the titles of 
 real actions, "siir" was used to point out 
 what the writ was founded upon. Thus, a 
 real action brought by the owner of a re- 
 version or seigniory, in certain cases where 
 his tenant repudiated his tenure, was called 
 "a writ of right sur disclaimer." So, a writ 
 of entry sur disseisin was a real action to 
 recover the possession of land from a dis- 
 seisor. 
 
 SUR CUI IN VITA. A writ that lay for 
 the heir of a woman whose husband had 
 aliened her land in fee, and she had omitted 
 to bring the writ of oui in vita for the re- 
 covery thereof, in which case, her heir 
 might have this writ against the tenant 
 after her decease. Cowell. See "Cui in 
 Vita." 
 
 SURCHARGE. To put more cattle upon a 
 common than the herbage will sustain, or 
 than the party hath a right to do. 3 BI. 
 Comm. 237. 
 
 In case of common without stint, it could 
 only happen when insufficient herbage was 
 left for the lord's own cattle. 1 Rolle, Abr. 
 399. 
 
 The remedy was by distraining the beasts 
 beyond the proper number; an action of 
 
 trespass which must have been brought by 
 the lord of the manor; an action on the case, 
 or a writ of admeasurement of pasture. 2 
 Bl. Comm. 238, note. 
 
 In Equity Practice. To prove the 
 
 omission of an item from an account which 
 is before the court as complete, which should 
 be inserted to the credit of the party sur- 
 charging. Story, Eq. Jur. § 526; 2 Ves. Jr. 
 565; 11 Wheat. (U. S.) 237; 8 Rich. Bq. 
 (S. C.) 248. It is opposed to "falsify" {g. v.) 
 Leave tp surcharge and falsify is granted in 
 preference to opening an account, in case 
 of an account stated by the parties or re- 
 ported by an auditor, where the party ob- 
 taining the liberty would be concluded by 
 the account were it not granted. See "Ac- 
 count;" "Auditor." 
 
 SURDUS (Lat.) In the civil law. Deaf; 
 a deaf person. Inst. 2. 12. 3. Surdus et 
 mutus, a deaf and dumb person. Id.; Dig. 
 28. 1. 6. 1; Id. 28. 1. 7; Id. 50. 17. 124; Fleta, 
 lib. 6, c. 38, § 1; Id. c. 40, § 2. 
 
 SURETY. A person who binds himself for 
 the payment of a sum of money, or for the 
 performance of something else, for another, 
 who is already bound for the same. See 
 "Suretyship." 
 
 SURETY COMPANY. An association or 
 corporation engaged in the business of of- 
 fering itself, in consideration of a premium 
 paid, as a surety for the fidelity. of persons 
 in positions of trust, or for the responsibil- 
 ity of persons bound to the performance of 
 any act. 
 
 SURETY OF THE PEACE. Surety of the 
 peace is a species of preventive justice, and 
 consists in obliging those persons whom 
 there is a probable ground to suspect of 
 future-mlsbehavior, to stipulate with, and to 
 give full assurance to, the public that such 
 offense as is apprehended shall not take 
 place, by finding pledges or securities for 
 keeping the peace, or for their good be- 
 havior. Brown. 
 
 SUR ETYS HIP. An undertaking to answer 
 for the debt, default, or miscarriage of an- 
 other, by which the surety becomes bound 
 as the principal or original debtor is bound. 
 
 It differs from "guaranty" in this, that 
 suretyship is a primary obligation to see 
 that the debt is paid, while guaranty is a 
 collateral undertaking, essentially in the al- 
 ternative, to pay the debt if the debtor does 
 not pay it. 24 Pick. (Mass.) 252. And, ac- 
 cordingly, a surety may be sued as a prom- 
 isor to pay the debt, while a guarantor must 
 be sued specially on his contract. 8 Pick. 
 (Mass.) 423. 
 
 While guaranty applies only to contracts 
 not under seal, and principally to mercan- 
 tile obligations, suretyship may apply to all 
 obligations under seal or by parol. The 
 subjects are, however, nearly related, and 
 many of the principles are common to both. 
 There must be a principal debtor liable, 
 otherwise the promise becomes an original 
 contract; and, the promise being collateral, 
 the surety must be bound to no greater ex- 
 
SURMISE 
 
 (888) 
 
 SURRENDER 
 
 tent than the principal. Suretyship is one 
 of the contracts included in the statute of 
 frauds (29 Car. II. c. 3). 
 
 Kent, C. J., -divides secondary undertak- 
 ings into three classes: (1) Cases in which 
 the guaranty or promise is collateral to the 
 principal contract, but is made at the same 
 time, and becomes an essential ground of the 
 credit given to the principal or direct debtor. 
 Here there is not, and need not be, any other 
 consideration than that moving between the 
 creditor and original debtor. (2) Cases in 
 which the collateral undertaking is subse- 
 quent to the creation of the debt, and was 
 not the inducement to it, though the sub- 
 sisting liability is the ground of the prom- 
 ise, without any distinct and unconnected 
 inducement. Here there must be some fur- 
 ther consideration shown, having an imme- 
 diate respect to such liability; for the con- 
 sideration for the original debt will not at- 
 tach to this subsequent promise. (3) When 
 the promise to pay the debt of another arises 
 out of sorae new and original consideration 
 of benefit or harm moving between the new- 
 ly-contracting parties. 8 Johns. (N. Y.) 29; 
 21 N. Y. 415; 21 Me. 459; 15 Pick. (Mass.) 
 159. 
 
 A simpler division is into two classes: 
 
 (1) Where the principal obligation exists 
 before the collateral undertaking is made. 
 
 (2) Where there is no principal obligation 
 prior in time to the collateral undertaking. 
 In the last class, the principal obligation 
 may be contemporaneous with or after the 
 collateral undertaking. The first class in- 
 cludes Kent's second and third, the second 
 includes Kent's first, to which must be added 
 cases where the guaranty referring to a 
 present or future principal obligation does 
 not share the consideration thereof, but 
 proceeds on a distinct consideration. More- 
 over, there are other original undertakings 
 out of the statute of frauds, and valid, 
 though by parol, besides his third class. 
 These are where the credit is given exclu- 
 sively to the promisor, though the goods or 
 consideration pass to another. Under this 
 division, undertakings of the first class are 
 original, (1) when the principal obligation 
 is thereby abrogated; (2) when, without 
 such abrogation, the promisor, for his own 
 advantage, apparent on the bargain, under- 
 takes for some new consideration moving 
 to him from the promisee; (3) where the 
 promise is in consideration of some loss or 
 disadvantage to the promisee; (4) where the 
 promise is made to the principal debtor on 
 a consideration moving from the debtor to 
 the promisor. Theobald, Sur. 37 et seq., 49 
 et seq. 
 
 SURMISE (Law Pr. and Eng.) In old 
 practice. Suggestion. "The plaintiff, upon 
 a surmise of goods come to the hands of the 
 executors, shall have a sci. fa." 1 Leon. 68, 
 286; Hardr. 82, 311. 
 
 SURNAME. A name which is added to the 
 Christian name. In mode'rn times, these 
 have become family names. 
 
 They are called "surnames," because orig- 
 inally they were written over (sur) the name 
 
 in judicial writings and contracts. They were 
 and are still used for the purpose of distin- 
 guishing persons of the same name. They 
 were taken from something attached to the 
 persons assuming them; as, John Carpenter, 
 Joseph Black, Samuel Little, etc. See 
 "Name." 
 
 SURPLUS. That which is left from a 
 fund which has been appropriated for a par- 
 ticular purpose; the remainder of a thing; 
 the overplus; the residue. See 18 Ves. 466. 
 
 SURPLUSAGE. 
 
 In Accounts. A greater disbursement 
 
 than the charges amount to; a balance over. 
 1 Lew. 219. 
 
 In Pleading. Allegations of matter 
 
 wholly foreign and impertinent to the cause. 
 All matter beyond the circumstances neces- 
 sary to constitute the action is surplusage. 
 Cowp. 683; 5 Bast, 275; 10 Bast, 205; 2 
 Johns. Cas. (N. Y.) 52; 1 Mason (U. S.) 57; 
 16 Tex. 656. 
 
 SURPLUSAGIUM NON NOCET. Surplus- 
 age does no harm. 3 Bouv. Inst, note 2949; 
 Broom, Leg. Max. (3d London Ed.) 559. 
 
 SURPRISE. In equity practice. The act 
 by which a party who is entering into a con- 
 tract is taken unawares, by which sudden 
 confusion or perplexity is created, which 
 renders it proper that a court of equity 
 should relieve the party so surprised. 2 
 Brown, Ch. 150; 1 Story, Eq. Jur. § 120, note. 
 
 The situation in which a party is placed, 
 without any default of his own, which will 
 be injurious to his interests. 8 Mart. (La.; 
 N. S.) 407. 
 
 Mr. Jeremy (Eq. Jur. 366, 383, note) 
 seems to think that the word "surprise" is a 
 technical expression, and nearly synony- 
 mous with "fraud." It is sometimes used 
 in this sense when it is deemed presumptive 
 of, or approaching to, fraud. 1 Ponbl. Eq. 
 123; 3 Chanc. Cas. 56, 74, 103, 114. See 6 
 Ves. 327, 338; 16 Ves. 81, 86, 87; 2 Brown, 
 Ch. 326; 1 Cox, 340. 
 
 SURREBUTTER. In pleading. The plain- 
 tiff's answer to the defendant's rebutter. It 
 is governed by the same rules as the replica- 
 tion. See 6 Comyn, Dig. 185; 7 Comyn, Dig. 
 389. 
 
 SURREJOINDER. In pleading. The plain- 
 tiff's answer to the defendant's rejoinder. 
 It is governed in every respect by the same 
 rules as the replication. Steph. PI. 77; 
 Archb. Civ. PI. 284; 7 Comyn, Dig. 389. 
 
 SURRENDER. A yielding up of an estate 
 for life or years to him who has an imme- 
 diate estate in reversion or remainder, by 
 which the lesser estate is merged in the 
 greater by mutual agreement. Co. Litt. 
 337b. 
 
 The deed by which the surrender is made. 
 
 A surrender is of a nature directly oppo- 
 site to a release; for, as the latter operates 
 by the greater estate descending upon the 
 less, the former is the falling of a less es- 
 tate into a greater, by deed. A surrender 
 
SURRENDER BY BAIL 
 
 (889) 
 
 SURVIVOR 
 
 immediately divests the estate of the sur- 
 renderer, and vests it in the surrenderee, 
 even without the assent of the latter. Shep. 
 Touch. 300, 301. 
 
 The technical and proper words of this 
 conveyance are, surrender and yield up; 
 hut any form of words by which the inten- 
 tion of the parties is sufficiently manifested 
 will operate as a surrender. Perk. § 607; 1 
 Term R. 441; Comyn, Dig. "Surrender" (A). 
 
 The surrender may be express or implied. 
 The latter is when an estate incompatible 
 with the existing estate is accepted, or the 
 lessee takes a new lease of the same lands. 
 16 Johns. (N. Y.) 28; 2 Wils. 26; 1 Barn. 
 
 6 Aid. 50; 2 Barn. & Aid. 119; 5 Taunt. 
 518. And see 6 East, 86; 9 Barn. & C. 288; 
 
 7 Watts (Pa.) 123; Cruise, Dig. tit. 32, c. 7; 
 Comyn, Dig.; 4 Kent, Comm. 102; Rolls, 
 Abr.; 11 East, 317, note. 
 
 SURRENDER BY BAIL. The delivery of 
 a principal again into custody by his bail. 
 
 SURRENDER OF COPYHOLD. The yield- 
 ing of a copyhold into the hands of the lord. 
 The usual method of transferring copy- 
 holds was by a surrender of the copyhold 
 to the lord, to the use of the intended trans- 
 feree, and the acceptance of him by the lord. 
 
 SURRENDER OF CRIMINALS. The act 
 
 by whicii the public authorities deliver a 
 person accused of a crime, and who is found 
 in their jurisdiction, to the authorities with- 
 in whose jurisdiction it is alleged the crime 
 has been committed. See "Extradition." 
 
 SURRENDER TO USES OF WILL. A 
 
 right of copyholders in some manors to de- 
 vise their copyholds by surrendering them 
 to the uses of their wills during their lives. 
 
 SURRENDEREE. One to whom a surren- 
 der has been made. 
 
 SURRENDEROR. One who makes a sur- 
 render; as, when the tenant gives up the 
 estate and cancels his lease before the ex- 
 piration of the term. One who yields up a 
 freehold estate for the purpose of convey- 
 ing it. 
 
 SURREPTITIOUS. That which is done in 
 a fraudulent, stealthy manner. 
 
 SURROGATE (Lat. surrogatus, from suh- 
 rogare, or surrogare, to substitute). 
 
 In English Law. A deputy or substi- 
 tute of the chancellor, bishop, ecclesiastical 
 or admiralty judge, appointed by him. He 
 must take an oath of office. He can grant 
 licenses, hold courts, and adjudicate cases to 
 the same extent and with the same author- 
 ity as his principal, provided his grant of 
 powers has been coextensive with those pos- 
 sessed by his principal. The office has arisen 
 by usage, but is sanctioned by canon 128, 
 and recognized by St. 26 Geo. II. c. 33, 56 
 Geo. III. c. 82, and 10 Geo. IV. c. 53, by 
 which latter act it was provided that the 
 surrogates of the arches and consistory of 
 London are to continue after the death of 
 the judges of those courts till new appoint- 
 
 ments are made. 1 Phillim. Ecc. Law, 205; 3 
 Burn, Ecc. Law, 667. 
 
 In American Law. A term used in 
 
 some states to denote the judge to whom 
 jurisdiction of the probate of wills, the grant 
 of administration, and of guardianship is 
 confided. In some states, he is called "sur- 
 rogate," in others, "judge of probate," "reg- 
 ister," "judge of the orphans' court," etc. 
 He is ordinarily a county officer, with a 
 local jurisdiction limited to his county. 
 
 SURSISA (Law Lat.; from Law Pr. sur- 
 law. In the United States. A state tribunal, 
 with similar jurisdiction to the court of or- 
 dinary, court of probate, etc. (q. v.) relating 
 to matters of probate, etc. 2 Kent, Comm. 
 409, note (b). 
 
 SURSISA (Law Lat. from Law Pr. Kur- 
 sise, q. v.) In old English law. Neglect; 
 default. Potest clefendere summonitionem et 
 sursisam., he may defend [deny] the sum- 
 mons and the default. Bracton, fol. 356. 
 
 SURSISE (Law Pr. from nKisixcf, <j. r.) 
 In old English law. Neglect; omission; de- 
 fault; a. ceasing or cessation. De somounses, 
 et de sursises. et de essoines. Britt. c. 120. 
 E ki le cri orat e sursera. la sursise li Bei 
 amend, and whoever hears the cry [hue and 
 cry], and neglects to pursue it, shall make 
 amends for the neglect to the king. LL. Gul. 
 Conq. lib. 48. 
 
 SURSISER, or SURCESSER (Law Fr.) 
 To neglect; to omit doing a thing; to sur- 
 cease; to fail to obey process. 8i levesque 
 sursist iiostre somounse, si soit attache de 
 vener par destresse. if the bishop fail to 
 obey our summons, he shall be attached to 
 appear by distress. Britt. c. 26. See "Sur- 
 sise." 
 
 SURSUM REDDERE (Law Lat.) In old 
 conveyancing. To render up; to surrender. 
 
 SURSUM REDDITIO (Law Lat.) In old 
 conveyancing. A surrender. 
 
 SURVEY. The act by which the quantity 
 of a piece of land is' ascertained. The paper 
 containing a statement of the courses, dis- 
 tances, and quantity of land is also called a 
 "survey." 
 
 By "survey" is also understood an exam- 
 ination; as, a survey has been made of your 
 house, and now the insurance company will 
 insure it. 
 
 SURVEY OF A VESSEL. An examination 
 of a vessel to determine her condition.' It 
 is frequently had where some disaster has 
 befallen the ship before proceeding to make 
 repairs, or take measures for saving her. 
 
 SURVIVOR. One who survives another; 
 one who outlives another; One of two or 
 more persons who lives after the other or 
 others have deceased; the longest liver of 
 two or more joint tenants, or of any two or 
 more persons who have a joint interest in 
 anything. See 2 Bl. Comm. 183, 184. 
 
 One or more of certain individuals named 
 or referred to, who are living when any 
 
SURVIVORSHIP 
 
 (890) 
 
 SUUS JUDEX 
 
 other or others of them happen to die. See 
 
 1 Cush. (Mass.) 118; 11 Grat. (Va.) 67. 
 This is the natural and proper meaning 
 
 of the term, which is usually given to it 
 by the courts, in the construction of wills. 
 
 2 Jarm. Wills, 609-616 (435-439, Perkins' Ed. 
 1849). In some cases, however, "survivor" 
 has been construed to mean "other," where 
 it has appeared necessary in order to give 
 effect to the apparent intention of the tes- 
 tator. See Id. 616-619 (440-442, Perkins' 
 Ed.) ; 2 Williams, Ex'rs, 1256. 
 
 SURVIVORSHIP. The living of one of 
 two or more persons after the death of the 
 other or others. 
 
 Survivorship is where a person becomes 
 entitled to property by reason of his having 
 survived another person who had an interest 
 in it. The most familiar example is in the 
 case of joint tenants, the rule being that, on 
 the death of one of two joint tenants, the 
 whole property passes to the survivor. 
 
 SURVIVORSHIP, CLAUSE OF. An ex- 
 press clause in a devise or deed of gift to 
 tenants in common that the property Is to 
 go to the survivor. Sometimes called the 
 "clause of accruer." 
 
 SLIS' PER COLL'. In English law. In the 
 English practice, a calendar is made out of 
 attainted criminals, and the judge signs the 
 calendar with their separate judgments in 
 the margin. In the case of a capital felony, it 
 is written opposite the prisoner's name, "Let 
 him be hanged by the neck," which, when 
 the proceedings were in Latin, was "sus- 
 pendatur per coUum." or, in the abbreviated 
 form, "Sus' per coll'." 4 Bl. Comm. 403. 
 
 SUSPENDER. In Scotch law. He in 
 whose favor a suspension is made. 
 
 In general, a suspender is required to 
 give caution to pay tjie debt in the event it 
 shall be found due. Where the suspender 
 cannot, from his low or suspected circum- 
 stances, procure unquestionable security, the 
 • lords admit juratory caution; but the rea- 
 sons of suspension are in that case to be 
 considered with particular accuracy at pass- 
 ing the bill. Act 8 Nov. 1682; Brsk. Inst. 
 4. 3. 6. 
 
 SUSPENDERE (LawLat.) In old English 
 law. To hang; to execute by hanging. Sus- 
 pensus, hanged. See "S^us' per Coll'." 
 
 SUSPENSE. When a rent, profit a prenr 
 dre, and the like, are, in consequence of the 
 unity of possession of the rent, etc., of the 
 land out of which they issue, not in esse for 
 a time, they are said to be in suspense, tunc 
 dormiunt; but they may be revived or 
 awakened. Co. Lift. 313a. 
 
 SUSPENSION. A temporary stop of a 
 right, of a law, and the like. 
 
 In times of war, the habeas corpus act may 
 be suspended by lawful authority. 
 
 There may be a suspension of an pfflcer's 
 duties or powers when he is charged with 
 crimes. Wood, Inst. 510. 
 
 Suspension of a right in an estate is a 
 
 partial extinguishment, or an extinguish- 
 ment for a time. It differs from an extin- 
 guishment in this, a suspended right may 
 be revived; one extinguished is absolutely 
 dead. Bac. Abr. "Extinguishment" (A). 
 
 The suspension of a statute for a limited 
 time operates so as to prevent its operation 
 for the time; but it has not the effect of a- 
 repeal. 3 Call. (Pa.) 365. 
 
 In Scotch Law. That form of law by 
 
 which the effect of a sentence condemnatory, 
 that has not yet received execution, is stayed 
 or postponed till the cause be again consid- 
 ered. Ersk. Inst. 4. 3. 5. Suspension is- 
 competent, also, even where there is no de- 
 cree, for putting a stop to any illegal act 
 whatsoever. Ersk. Inst. 4. 3. 7. 
 
 Letters of suspension bear the form of a 
 summons, which contains a warrant to cite 
 the charter. 
 
 In Ecclesiastical Law. An ecclesias- 
 tical censure, by which a spiritual person is 
 either interdicted the exercise of his ecclesi- 
 astical function, or hindered from receiving 
 the profits of his benefice. It may be par- 
 tial or total; for a limited time, or forever, 
 when it is called "deprivation" or "amotion." 
 Ayliffe, Par. 501. 
 
 SUSPENSION OF A RIGHT. The act by 
 
 which a party is deprived of the exercise of 
 his right for a time. 
 
 When a right is suspended by operation 
 of law, the right is revived the moment the 
 bar is removed; but when the right is sus- 
 pended by the act of the party. It is gone 
 forever. 
 
 SUSPENSION OF ARTVIS. An agreement 
 between belligerents, made for a short time, 
 or for a particular place, to cease hostilities 
 between them. 
 
 SUSPENSION, PLEAS IN. Those alleg- 
 ing matter of temporary incapacity to pro- 
 ceed with the action. Steph. PI. 45. 
 
 SUSPENSIVE CONDITION. One which 
 prevents a contract from going into opera- 
 tion until it has been fulfilled; as, if I 
 promise to pay you one thousand dollars on 
 condition that the ship Thomas Jefferson 
 shall arrive from Havre, the contract is sus- 
 pended until the arrival of the ship. 1 BoUv.- 
 Inst, note 731. 
 
 SUUM CIQUE TRIBUERE (Lat.) To ren- 
 der unto every man that which belongs to- 
 him. One of the three precepts to which 
 Justinian said that the law might be re- 
 duced. Inst. 1. 1. 3. The others are alterum- 
 non laedere and honeste vivere fq. v.) 
 
 SUUS HAERES (Lat.) In civil law. Thft 
 proper heir, as it were, not called in front 
 outside. 
 
 Those descendants who were under the- 
 power of the deceased at the time of his: 
 death, and who are most nearly related to 
 him. Calv. Lex. 
 
 SUUS JUDEX (Lat.) In old English law. 
 A proper judge; a judge having cognizance 
 of a cause. Literally, one's own judge. 
 Bracton, fol. 401. 
 
SUZEREIGN 
 
 (891) 
 
 SYNOD 
 
 SUZEREIGN (Norman Fr. suz, under, and 
 re or rey, king). A lord who possesses a 
 flef whence other fiefs issue. Diet, de 
 I'Academie Francaise. A tenant in capite or 
 immediately under the king. Note 77 of But- 
 ler & Hargrave's notes, Co. Litt. lib. 3. 
 
 SWAIN MOTE, SWEIN MOTE, or SWAIN 
 gemote (from Saxon swang, an attendant, or 
 boclandman, or freeholder, and mote, or ge- 
 mote, a meeting). In forest law. A court 
 holden before the verderors, as judges, by 
 the steward of 'the swein mote, thrice In 
 every year, the sweins or freeholders with- 
 in the forest composing the jury. Its prin- 
 cipal jurisdiction is, first, to inquire into 
 the oppressions and grievances committed 
 by the officers of the forest, and, secondly, 
 to receive and try presentments certified 
 from the court of attachments against of- 
 fenses in vert and venison. 3 Bl. Comm. 
 '71, 72; Cowell. 
 
 SWEAR. To take an oath administered 
 by some officer duly empowered. See "Af- 
 firmation;" "Oath." 
 
 To use such profane language as is forbid- 
 den by law. This is generally punished by 
 statutory provisions in the several states. 
 See "Profaneness." 
 
 SWEARING THE PEACE. Showing to a 
 magistrate that one has just cause to be 
 afraid of another in consequence of his 
 menaces, in order to have him bound over to 
 keep the peace. See "Surety of the Peace." 
 
 SWINDLER. A cheat; one guilty of de- 
 frauding divers persons. 1 Term R. 748; 2 
 H. Bl. 531; Starkie, Sland. & L. 135. See 10 
 How. Pr. (N. Y.) 128. 
 
 Swindling is usually applied to a transac- 
 tion where the guilty party procures the de- 
 livery to him, under a pretended contract, of 
 the personal property of another, with the 
 felonious design of appropriating it to his 
 own use. 2 Russ. Crimes, 130; Alls. Crim. 
 Law Sc. 250; 2 Mass. 406. 
 
 SWORN BROTHERS. Persons who, by 
 mutual oaths, covenant to share in each 
 other's fortunes. See Sedg. Bdw. Conf. c. 35. 
 
 SYB AND SOM (Saxon). Peace and se- 
 curity. Words occurring in the laws of Ca- 
 nute. Ealluni Cristrniim nianiium syb and 
 som gemene, to all Christian men let there 
 be common peace and security. LL. Bcc. 
 Canuti R. c. 17. 
 
 SYLLABUS. A headnote of a reported 
 decision, briefly stating a conclusion on a 
 point of law presented in the case. 
 
 SYLVA CAEDUA (Lat.) In ecclesiastical 
 law. Wood of any kind which was kept on 
 purpose to be cut, and which, being cut, 
 grew again from the stump or root. Lyndw. 
 Prov. 190; 4 Reeve, Hist. Eng. Law, 90. 
 
 SYMBOLAEOGRAPHY. The art or cun- 
 ning rightly to form and make written in- 
 struments. It is either judicial or extra- 
 
 judicial; the latter being wholly occupied 
 with such instruments as concern matters 
 not yet judicially in controversy, such as 
 instruments of agreements or contracts, and 
 testaments or last wills. Wharton. 
 
 SYMBOLIC DELIVERY. The delivery of 
 some thing as a representation or sign of 
 the delivery of some other. 
 
 Where an actual delivery of goods cannot 
 be made, a symbolical delivery of some par- 
 ticular thing, as a halfpenny, will vest the 
 property equally with an actual delivery. 
 Long, Sales, 162; 8 How. (U. S.) 399; 6 
 Md. 10; 19 N. H. 419; 39 Me. 496; 11 Cush. 
 (Mass.) 282; 3 Cal. 140. 
 
 SYMBOLUM ANIMAE. A mortuary, or 
 soul scot. 
 
 SYMOND'S INN. Formerly an inn of 
 chancery. 
 
 SYNALLAGMATIC CONTRACT. In civil 
 law. A contract by which each of the 
 contracting parties binds himself to the 
 other. Such are the contracts of sale, hir- 
 ing, etc. Poth. Obi. 9. 
 
 SYNCOPARE. To cut short, or pronounce 
 things so as not to be understood. Cowell. 
 
 SYNDIC. In French law. The assignee 
 of a bankrupt. 
 
 One who is chosen to conduct the affairs 
 and attend to the concerns of a body cor- 
 porate or community. In this sense, the 
 word corresponds to director or manager. 
 Rodman, Notes to Code de Com. p. 351; Civ. 
 Code La. art. 429; Dalloz. 
 
 SYNDICATE. Persons united for the pur- 
 pose of an enterprise too large for individ- 
 uals to undertake. 
 
 A group of financiers who buy up the 
 shares of a company in order to sell them at 
 a profit by creating a scarcity. See 108 Pa, 
 St. 162. 
 
 SYNDICUS (Greek). One chosen by a 
 college, municipality, etc., to defend its 
 cause. Calv. Lex. See "Syndic." 
 
 SYNGRAPH (Greek). A deed, bond, or 
 other instrument of writing, under the hand 
 and seal of all the parties. It was so called 
 because the parties "wrote together." 
 
 Formerly such writings were attested by 
 the subscription and crosses of the wit- 
 nesses; afterwards, to prevent frauds and 
 concealments, they made deeds of mutual 
 covenant in a script and rescript, or in a 
 part and counterpart, and in the middle be- 
 tween the two copies they wrote the word 
 syngraphvs in large letters, which, being 
 cut through the parchment, and one being 
 delivered to each party, on being afterwards 
 put together, proved their authenticity. 
 
 Deeds thus made were denominated syn- 
 grapfis by the canonists, and by the common 
 lawyers, chirographs. 2 Bl. Comm. 296. 
 
 SYNOD. An ecclesiastical assembly. 
 
(892) 
 
 TAG FREE 
 
 T 
 
 T. Every person who was convicted of 
 felony, short of murder, and admitted to the 
 benefit of clergy, was at one time marked 
 with this letter upon the brawn of the 
 thumb. The practice is abolished. 7 & 8 
 Geo. IV. c. 27. 
 
 T. R. E. In old records, tempore Regis Ed- 
 wardi, in the time of King Edward. Of 
 common occurrence in Domesday Book, 
 where the valuation of manors as it was in 
 the time of Edward the Confessor is re- 
 counted. 
 
 TABARD. A short gown; a herald's coat; 
 a sur coat. 
 
 TABARDER. One who wears a tabard or 
 short gown. The name is still used as the 
 title of certain bachelors of arts on the old 
 foundation of Queen's College, Oxford. Enc. 
 Lond. 
 
 — TABELLA (Lat.) In civil law. A small 
 table on which votes were often written. 
 Cicero, in Rull. 2. 2. Three tablets were 
 given to the judges; one with the letter "A" 
 for absoluHo, one with "C"- for condemna- 
 tio, and one with "N L" for non liquet, not 
 proven. Calv. Lex. 
 
 TABELLIO (Lat.) In Roman law. An of- 
 ficer among the Romans, who reduced to writ- 
 ing, and into proper form, agreements, con- 
 tracts, wills, and other instruments, and wit- 
 nessed their execution. 
 
 The term tabelHo is derived from the 
 Latin tabula, seu taiella, which, in this 
 sense, signified those tablets or plates cov- 
 ered with wax which were then used in- 
 stead of paper. 8 Toullier, Dr. Civ. note 
 53; Delauriere, sur Ragneau, Notaire. 
 
 Tabelliones differed from notaries in many 
 respects. They had judicial jurisdiction in 
 some cases, and from their judgments there 
 were no appeals. Notaries were then the 
 clerks or aiders of the tabelliones ; they re- 
 ceived the agreements of the parties, which 
 they reduced to short notes; and these con- 
 tracts were not binding until they were writ- 
 ten in extenso, which was done by the ta- 
 belliones. Enc. de M. D'Alembert, "Tabel- 
 lion;" Jacob, "Tabellion;" Merlin, Repert. 
 "Notaire," § 1; 3 Giannone, Istoria di Na- 
 poli, p. 86. 
 
 TABERNA (Lat. from tabula, a board). 
 
 In the Civil Law. A shop, as being 
 
 inclosed with boards (quod tabulis claudd- 
 tur). Dig. 14. 3. 3; Id. 14. 3. 5. 10. 13; Id. 
 14. 3. 8; Id. 14. 3. 13. 2; Id. 14. 3. 18. 
 
 Any building fit for habitation (omne 
 utile ad habitandum aedificium) . Dig. 50. 
 16. 183. 
 
 A wine shop. Calv. Lex. 
 
 In lOld English Law. A drinking 
 
 house; a tavern. Taverns and wakes (taher- 
 
 nae vigiliaeque) are spoken of in Pleta as 
 places of nocturnal resort by servants, to 
 the neglect of their duties. Pleta, lib. 2, 
 c. 72, § 9. And see Id. c. 82, § 3. 
 
 TABERNACULUM (Law Lat.) In old rec- 
 ords. A public inn or house of entertain- 
 ment. Consuet. Dom. de Parendon, MS. fol. 
 48; Cowell. 
 
 TABERNARIUS (Lat. from taherna, a 
 shop). 
 
 ^In the Civil Law. A shop keeper. Dig. 
 
 14. 3. 5. 7. 
 
 In Old English Law. A taverner or 
 
 tavern keeper. Pleta, lib. 2, c. 12, § 17. 
 
 TABLE DE MARBRE (Pr.) In old French 
 law. Table of Marble; a principal seat of 
 the admiralty, so called. These Tables de 
 Marbre are frequently mentioned in the Or- 
 donnance of the Marine. Ord. Mar. liv. 1, tit. 
 1, art. 10; Id. tit. 2, art. 13; Id. tit. 3, art. 3. 
 
 TABLE RENTS. Rents paid to bishops 
 and other ecclesiastics, appropriated to their 
 table or housekeeping. Jacob. 
 
 TABLES. A synopsis in which many par- 
 ticulars are brought together in a general 
 view, as, genealogical tables, which are com- 
 posed of the names of persons belonging to 
 a family. 2 Bouv. Inst, notes 1963, 1964. 
 
 TABLEAU OF DISTRIBUTION. In Lou- 
 isiana. A list of creditors of an insolvent 
 estate, stating what each is entitled to. 4 
 Mart. (La.; N. S.)535. 
 
 TABULA IN NAUFRAGIO (Lat. a plank 
 in a wreck). In English law. A figurative 
 term used to denote the power of a third 
 mortgagee, who, having obtained his mort- 
 gage without any knowledge of a second 
 mortgage, may acquire the first incumbrance, 
 and squeeze out and have satisfaction before 
 the second. 2 Ves. Jr. 573; 2 Ponbl. Eq. bk. 
 3, c. 2, § 2; 2 Vent. 337; 1 Chanc. Cas. 162; 
 1 Story, Eq. Jur. §§ 414, 415. See "Tack- 
 ing." 
 
 TABULAE. In civil law. Contracts and 
 written instruments of all kinds, especially 
 wills. So called because originally written 
 on tablets and with wax. Calv. Lex. 
 
 TABULAE NUPTIALES. In the civil law, 
 a written record of a marriage; or the 
 agreement as to the dos. 
 
 TABULARIUS. 
 
 tary. 
 
 In the civil law. A no- 
 
 TAC. A kind of customary payment by a 
 tenant. Blount, Ten. 155. 
 
 TAC FREE. Free from payments, etc.; 
 e. fir., "tac free de omnibus propriis porcis 
 
TACIT 
 
 (893) 
 
 TALES 
 
 suis infra metas de G," i. e., paying nothing 
 for his hogs running within that limit. 
 Jacoh. 
 
 TACIT (from Lat. taceo, to be silent). 
 That which, although not expressed, is un- 
 derstood from the nature of the thing, or 
 from the provision of the law; implied. 
 
 TACIT LAW. A law which derives its au- 
 thority from the common consent of the 
 people without any legislative enactment. 
 1 Bouv. Inst. 120. 
 
 TACIT RELOCATION. In Scotch law. 
 The tacit or implied renewal of a lease when 
 the landlord, instead of warning a tenant, 
 has allowed him to continue without mak- 
 ing a new agreement. Bell, Diet. "Reloca- 
 tion." 
 
 TACIT TACK. See "Tacit Relocation." 
 
 TACITA QUAEDAM HABENTUR PRO 
 expressis. Certain things, though unexpress- 
 ed, are considered as expressed. 8 Coke, 40. 
 
 TACITE, (Lat.) Silently; impliedly; tac- 
 itly. 
 
 TACK. In Scotch law. A contract of lo- 
 cation by which the use of land or any other 
 immovable subject is let to the lessee or 
 tacksman for a certain yearly rent, either 
 in money, the fruits of the ground, or serv- 
 ices. Ersk. Inst. 2. 6. 8. This word is nearly 
 synonymous with "lease." 
 
 TACK DUTY. Rent reserved upon a lease. 
 
 TACKING. 
 
 Of Securities. 
 
 The union of securi- 
 
 ties given at different times, so as to pre- 
 vent any intermediate purchaser's claiming 
 title to redeem or otherwise discharge one 
 lien, which is prior, without redeeming or 
 discharging other liens, also which are sub- 
 sequent, to his own title. Jeremy, Bq. Jur. 
 bk. 1, c. 2, § 1, pp. 188-191; 1 Story, Bq. Jur. 
 § 412. 
 
 The doctrine is not recognized in the 
 United States. 37 Vt. 345. 
 
 — • — Of Possession. The connecting of 
 successive possessions by persons in privity, 
 so as to make a continuous adverse posses- 
 sion. 80 Hun (N. Y.) 287. 
 
 TACKSIVIAN. In Scotch law. A tenant. 
 
 TACTIS SACROSANCTIS (Law Lat.) In 
 old Bnglish law. Touching the holy (evan- 
 gelists). Fleta, lib. 3, c. 16, § 21. "A bishop 
 may swear visis evangeliis [looking at the 
 Gospels], and not tactis, and it is good 
 enough." Vaughan, C. J., Freem. 133. 
 
 TACTIS SACROSANCTIS SCRIPTURIS 
 
 (Lat.) In old European law. Touching the 
 holy Scriptures. Feud. lib. 2, tit. 2, pr. Sac- 
 rosanctis evangeliis tactis. Code, 3. 1. 14. 1. 
 
 TACTO PER SE SANCTO EVANGELIC 
 
 (Law Lat.) Having personally touched the 
 holy Gospel. Cro. Bliz. 105. The descrip- 
 tion of a corporal oath. 
 
 TAIL. See "Estates." 
 
 TAIL AFTER POSSIBILITY OF ISSUE 
 extinct. The estate of a surviving tenant 
 in Special tail after the death, without sur- 
 viving issue, of the person from whose body 
 the issue to inherit was to spring. 2 Bl. 
 Comm. 124. 
 
 TAIL FEIVIALE. An estate tail limited to 
 the female heirs of the donee. 
 
 TAIL GENERAL. An estate tail granted 
 to one and the heirs of his body in general. 
 2 Bl. Comm. 113. 
 
 TAIL IVIALE. An estate tail limited to the 
 male heirs of the donee. 
 
 TAIL SPECIAL. An estate tail granted to 
 one and certain only of the heirs of his 
 body, as those to be begotten on his then 
 wife. 2 Bl. Comm. 113. 
 
 TAILLE (French). 
 
 In Old French Law. A tax or assess- 
 ment levied by the king, or by any great 
 lord, upon his subjects. Brande. 
 
 In Old English Law. The fee which 
 
 is opposed to fee simple, because it is so 
 minced or pared that it is not in the owner's 
 free power to dispose of it, but it is, by the 
 first giver, cut or divided from all other, and 
 tied to the issue of the donee, — in short, an 
 estate tail. 
 
 TAILZIE. In the Scotch law, an arbitrary 
 line of succession laid down by a proprietor, 
 in substitution of a legal line of succession. 
 A deed of tailzie creates a Scotch entail by 
 which, until 11 & 12 Vict. c. 36, 16 & 17 
 Vict. c. 94, and 31 & 32 Vict, c- 84, an estate 
 might be tied up forever. See, also, 38 & 
 39 Vict. c. 61. 
 
 TAINT. Attainder {q. r.) 
 
 TAKE. A technical expression which sig- 
 nifies to receive; as, a devisee will take un- 
 der the will. The devisee takes only when 
 the possession of the testator has ceased. 41 
 N. J. Law, 70. 
 
 To seize; as, to take and carry away, ei- 
 ther lawfully or unlawfully. 
 
 To choose; e. g., ad capiendas assisas, to 
 choose a jury. 
 
 To obtain; e. g., to take a verdict in court, 
 to get a verdict. 
 
 TAKER. One to whom an estate comes. 
 The "first taker" is he who holds the im- 
 mediate estate, with expectant estates fol- 
 lowing, or the first of a line of grantees. 
 
 TAKING. An element of "larceny" {q. r.) 
 
 TALE. In Bnglish law. The ancient 
 name of the declaration or count. 3 Bl. 
 Comm. 293. 
 
 TALES (Lat. fdUs, such, like). In prac- 
 tice. A number of jurors added to a defi- 
 cient panel suflScient to supply the defi- 
 ciency. 
 
 A list of such jurymen as were of the 
 tales, kept in the king's bench oflace in Eng- 
 land. 
 
TALES DE CIRCUMSTANTIBUS (894) 
 
 TANGIBLE PROPERTY 
 
 TALES DE CIRCUMSTANTIBUS (Lat. a 
 like number of the bystanders). A sufficient 
 number of jurors selected from tbe bystand- 
 ers to supply a deficiency in the panel. 
 
 The order of the judge for taking such 
 bystanders as jurors. 
 
 Whenever, from any cause, the panel of 
 jurors is insufficient, the judge may issue 
 the above order, and the officer immediately 
 executes it. See 2 Hill (S. C.) 381; 2 Pa. 
 St. 412; Coxe (N. J.) 283; 1 Blackf. (Ind.) 
 63; 2 Har. & J. (Md.) 426; 1 Pick. (Mass.) 
 43, note. The number to be drawn on suc- 
 cessive panels is in the discretion of the 
 court. 17 Ga. 497. 
 
 TALESMAN. A person summoned to act 
 as a juror from among the bystanders in 
 the court. 
 
 TALIO (Lat. from talis, such, like). In 
 the civil law. Like for like; punishment in 
 the same kind; the punishment of an in- 
 jury by an act of the same kind, as an eye 
 for an eye, a limb for a limb, etc. Called 
 similitiido supplicii, likeness of punishment; 
 reciprooa poena, reciprocal punishment. Calv. 
 Lex.; Adams, Rom. Ant. 291. 
 
 TALIS INTERPRETATIO SEMPER Fl- 
 ^nda est, ut evitetur absurdum, et incon- 
 veniens, et ne judicium sit lllusorium. In- 
 terpretation is always to be made in such a 
 manner that what is absurd and incon- 
 venient is to be avoided, and so that the 
 judgment be not nugatory. 1 Coke, 52. 
 
 TALIS NON EST EADEM, NAM NUL- 
 |um simile est idem. What is like is not 
 the same, for nothing similar is the same. 4 
 Coke, 18. 
 
 TALIS RES, VEL TALE RECTUM, QUAE 
 vel quod non est In homine adtunc super- 
 stite sed tantummodo est et consistit lii 
 ponsideratione et intelligentia legis, et quod 
 alii dlxerunt talem rem vel tale rectum fore 
 In nubibus. Such a thing or such a right 
 as is not vested in a person then living, but 
 merely exists in the consideration and con- 
 templation of law, is said to be in abeyance, 
 and others have said that such a thing or 
 such a right is in the clouds. Co. Litt. 342. 
 
 TALITER PROCESSUM EST. Upon 
 -pleading the judgment of an inferior court, 
 the proceedings themselves, and this general 
 ment, and on which the same was founded, 
 must, to some extent, appear in the pleading, 
 but the rule is that they may be alleged with 
 a general allegation that "such proceedings 
 were had," instead of a detailed account of 
 the proceedings themselves, and this general 
 allegation is called the "taliter processum 
 est." A like concise mode of stating former 
 proceedings in a suit is adopted at the pres- 
 ent day in chancery proceedings upon peti- 
 tions, and in actions in the nature of bills of 
 revivor and supplement. Brown. 
 
 TALLAGE (Pr. tniller, to cut). In Eng- 
 lish law. A term used to denote subsidies, 
 taxes, customs, and, indeed, any imposition 
 whatever by the government for the purpose 
 
 of raising a revenue. Bac. Abr. "Smuggling, 
 etc." (B); Portescue de Laud. 26; Madd. c' 
 17; 2 Inst. 531, 532; Spelman. 
 
 TALLAGERS. Tax or toll gatherers: men- 
 tioned by Chaucer. 
 
 TALLAGIUM (perhaps from Prench taille 
 cut off). A term including all taxes. 2 
 Inst. 532; Stat, de tal. non Concedendo 
 temp. Edw. I.; Stow, Annals, 445; 1 Bl! 
 Comm. 311*. Chaucer has talaigiers for 
 "tax gatherers." 
 
 TALLAGIUM FACERE. To give up ac- 
 counts in the exchequer, where the method 
 of accounting was by tallies. 
 
 TALLATIO. A keeping account by tal- 
 lies. Cowell. 
 
 TALLIA. Commons in meat or drink; tax 
 or tribute. 
 
 TALLY (Ft. tailler; Ital. tagliare, i. e., 
 scindere, to cut off). A stick cut into two 
 parts, on each whereof is marked, with 
 notches or otherwise, what is due between 
 debtor and creditor. Hence the tallier of the 
 exchequer is now called the "teller." Lex. 
 Const. 205; Cowell. One party must have 
 one part, and the other the other, and they 
 must match. Tallies in the exchequer are 
 abolished by 2 Geo. III. c. 82. There was 
 the same usage in Prance. Diet, de I'Acad. 
 Franc; Poth. Obi. pt. 4, c. 1, art. 2, § 8. 
 
 TALLY TRADE. A system of dealing, by 
 which dealers furnish certain articles on 
 credit, upon an agreement for the payment 
 of the stipulated price by certain weekly or 
 monthly installments. McCulloch, Diet. A 
 tally was a common security for money in 
 the days of Edw. I. 2 Reeve, Hist. Eng. Law, 
 c. xi. p. 253. 
 
 TALTARUM'S CASE. A ease reported in 
 Y. B. 12 Edw. IV. 19-21, which is said to 
 have established the foundation of common 
 recoveries, and their efficacy to bar an en- 
 tail. 
 
 TALZIE. See "Tailzie." 
 
 TAM QUAM. A phrase used where a pro- 
 ceeding is applied or referred to two things 
 or persons. 
 
 A writ of error from inferior courts, when 
 the error is supposed to be as well in giving 
 the judgment as in awarding execution upon 
 it. Tam in redditione judicii, quam in adju- 
 dioatione executionis. 
 
 A venire tam quam was one by which a 
 jury was summoned, as well to try an issue- 
 as to inquire of the damages on a default. 
 2 Tidd, Prac. 722, 895. 
 
 TAM EN (Lat.) Notwithstanding; never- 
 theless; yet. 
 
 TANGIBLE PROPERTY. That which may 
 be felt or touched. It must necessarily be 
 corporeal, but it may be real or personal. 
 
TANISTRY 
 
 (89S) 
 
 TAXATIO ECCLESIASTIdA 
 
 TANISTRY (a tlianis). In Irish law. A 
 species of tenure founded on immemorial 
 usage, by which lands, etc., descended seniori 
 ■et dignissimo viri sanguinis et cognominis, 
 i. e., to the oldest and worthiest man of the 
 blood and name. Jacob. 
 
 TANTEO (Spanish). In Spanish law. Pre- 
 emption. White, New Recop. bk. 2, tit. 2, 
 «. 3. 
 
 TANTUM BONA VALENT, QUANTUM 
 vendi possunt. Things are worth what they 
 will sell for. 3 Inst. 305. 
 
 TARDE VENIT (Lat.) In practice. The 
 name of a return made by the sheriff to a 
 writ, when it came into his hands too late to 
 be executed before the return day. 
 
 The sheriff is required to show that he has 
 yielded obedience to the writ, or give a good 
 excuse for his omission; and he may say, 
 quod breve adeo tarde venit quod exequi non 
 possunt. It is usual to return the writ with 
 an indorsement of tarde venit. Comyn, Dig. 
 ■"Retorn" (D 1). 
 
 TARE. An allowance in the purchase and 
 sale of merchandise for the weight of the 
 box, bag, or cask, or other thing, in which 
 the goods are packed. It is also an allow- 
 .ance made for any defect, waste, or diminu- 
 tion in the weight, quality, or quantity of 
 goods. It differs from "tret" (g. v.) 
 
 TARIFF. Customs, duties, toll, or tribute 
 payable upon merchandise to the general 
 government is called "tariff." The rate of 
 customs, etc., also bears this name, and the 
 list of articles liable to duties is also called 
 the "tariff." 
 
 TAURI LIBER! LIBERTAS. A common 
 bull, because he was free to all the tenants 
 within such a manor, liberty, etc. 
 
 TAVERN. A place of entertainment; a 
 Tiouse kept up for the accommodation of 
 strangers. Webster. Originally, a house for 
 the retailing of liquors to be drunk on the 
 .spot. Webster. 
 
 In almost all the states, . the word has 
 ■come to mean the same as "inn," with no 
 particular reference to the sale of liquors. 
 See 2 Kent, Comm. (9th Ed.) 597*, note (a) ; 
 S N. H. 258. 
 
 TAVERN KEEPER. An innkeeper (q. r.) 
 
 TAVERNER (Law Pr. and Eng.; Fr. tairi- 
 ■nier, from taierne). In old English law. 
 A seller of wine; one who kept a house 
 • or shop for the sale of wine. E t ii k i s 
 soit enquis, de taverners que aunt vendu 
 ivyns encontre la, droit assise, and afterwards 
 It shall be inquired of taverners who have 
 sold wines against the right assize. Britt. 
 c. 30. A retailer of wines. Hardr. 338. 
 "Taverner" is used as the addition of a per- 
 son in a writ in the Register. Reg. Orig. 
 195. But ■"tavern keeper" has now, for the 
 most part, taken its place. 
 
 TAX. A contribution imposed by govern- 
 ment on IndlvldTials for the service of the 
 
 state. 13 Pa. St. 104. It is distinguished 
 from a subsidy, as being certain and orderly, 
 Jacob. 
 
 A sum of money assessed under the au- 
 thority of the state on the personal prop- 
 erty of an individual for the use of the 
 state. 60 Me. 124. 
 
 It is distinguished from a local assess- 
 ment, as being imposed without reference to 
 peculiar benefits to particular individuals 
 or property. 84 N. Y. 108; 22 Minn. 494. 
 
 "Excise" and "impost" are sometimes used 
 as synonymous with "tax," but in strictness 
 apply only to taxes upon production or con- 
 sumption, and upon imports, respectively. 
 
 Taxes are either: 
 
 (1) Direct or Indirect, direct being those 
 assessed on the property, person, business, 
 etc., of those who are to pay them, and in- 
 direct being a tax levied on commodities 
 before they reach the cohsumer. Cooley, 
 Tax'n, 6, , 
 
 (2) Ad valorum or specific, ad valorum 
 being those imposed in proportion to value, 
 and specific those consisting of a fixed sum 
 imposed upon an article or thing by name. 
 
 (3) General or local, general being those 
 Imposed on property throughout the state, 
 and local being those imposed on the locality 
 specially benefitted. 
 
 Taxes are also classified according to the 
 nature of the property on which they are 
 imposed, as income taxes, inheritance taxes, 
 personal property taxes, etc. 
 
 TAX DEED. An instrument whereby the 
 officer of the law undertakes to convey the 
 title of the rightful proprietor to the pur- 
 chaser at the tax sale, or sale of the land 
 for nonpayment of taxes. 
 
 TAX LEVY. The amount of tax to be 
 raised, or the oflUcial act by which the 
 amount is determined upon. 
 
 TAX LIEN. A statutory lien on lands to 
 secure the payment of taxes, which exists in 
 favor of the public. 
 
 TAX LISTS. The assessment roll; the 
 list of persons or property against whom or 
 which taxes are levied. 
 
 TAX SALE. A sale of lands for the non- 
 payment of taxes assessed thereon. 
 
 TAX TITLE. A title to land derived 
 thronigh the sale of it for delinquent taxes, 
 or through the foreclosure of a tax lien. 
 
 TAXATI. Soldiers of a garrison or fleet, 
 assigned to a certain station. Spelman. 
 
 TAXATIO (Lat.) In the civil law. The 
 modification by a judge of the amount of 
 damages claimed or sworn to by the plaintiff. 
 
 TAXATIO ECCLESIASTICA. The valua- 
 tion of ecclesiastical benefices made through 
 every diocese in England, on occasion of 
 Pope Innocent IV. granting to King Henry 
 III. the tenth of all spirituals for three 
 years. This taxation was first made by 
 Walter, bishop of Norwich, delegated by the 
 
TAXATIO EXPENSARUM 
 
 (896) 
 
 TEMPLARS 
 
 pope to this office in 38 Hen. III., and hence 
 called, "Taxatio Norwicencis." It is also 
 called "Pope Innocent's Valor." Wharton. 
 
 TAXATIO EXPENSARUM (Law Lat.) In 
 old English practice. Taxation of costs. 
 
 TAXATIO NORWICENCIS. See "Taxatio 
 Ecclesiastica." 
 
 TAXATION. The process of taxing or im- 
 posing a tax. Webster. 
 
 ■ In Practice. Adjustment. Fixing the 
 
 amount; e. g., taxation of costs. 3 Chit. Gen. 
 Prac. 602. 
 
 TAXATION OF COSTS. In practice. Fix- 
 ing the amount of costs to which a party is 
 entitled. 
 
 It is a rule that the jury must assess the 
 damages and costs separately, so that it may 
 appear to the court that the costs were not 
 considered in the damages; and when the 
 jury give costs in an amount insufficient to 
 answer the costs of the suit, the plaintiff 
 may pray that the officer may tax the costs, 
 and such taxation is inserted in the judg- 
 ment. This is said to be done ex assensu of 
 the plaintiff, because at his prayer. Bac. 
 Abr. "Costs" (K). The costs are taxed in 
 the first instance by the prothonotary or 
 clerk of the court. See 2 Wend. (N. Y.) 244; 
 1 Cow. (N. Y.) 591; 7 Cow. (N. Y.) 412; 2 
 Yerg. (Tenn.) 245, 310; B Yerg. (Tenn.) 412; 
 Harper (S. C.) 326; 1 Pick. (Mass.) 211; 
 10 Mass. 26; 16 Mass. 370. A bill of costs, 
 having been once submitted to such an offi- 
 cer for taxation, cannot be withdrawn from 
 him and referred to another. 2 Wend. (N. 
 Y.) 252. 
 
 TAXERS. Two officers yearly chosen in 
 Cambridge,-^ England, to see the true gauge 
 of all the weights and measures. 
 
 TAXING MASTERS. Officers of the Eng- 
 lish supreme court, who examine and allow 
 or disallow items in bills of costs. See 1 
 Chit. Archb. Prac. (12th Ed.) 507; Smith, 
 Ch. Prac. 12, 62, 829; 2 Daniell, Ch. Prac. 
 (5th Ed.) 1308. 
 
 TAXING OFFICER. Each house of par- 
 liament has a taxing officer, whose duty it 
 is to tax the costs incurred by the promoters 
 or opponents of private bills. May, Pari. 
 Prac. 843. 
 
 TAXT WARD. An annual payment made 
 to a superior in Scotland, instead of the du- 
 ties due to him under the tenure of ward- 
 holding. Abolished. 
 
 TEAM, or THEAME. A royalty or privi- 
 lege granted, by royal charter, to a lord of 
 a manor, for the having, restraining, and 
 judging of bondmen and villeins, with their 
 children, goods, chattels, etc. Glany. 1, 5, 
 c. ii. 
 
 TEAMSTER. One who drives horses in 
 a wagon for the purpose of carrying goods 
 
 TECHNICAL. That which properly be- 
 longs to an art. 
 
 In the construction of contracts it is a 
 general rule that technical words are to be 
 taken according to their approved and 
 known use in the trade in which the con- 
 tract is entered into, or to which it relates, 
 unless they have manifestly been under- 
 stood in another sense by the parties. 2 
 Bos. & P. 164; 6 Term R. 320; 3 Starkie, 
 Ev. 1036. 
 
 TEIND COURT. In Scotch law. A court 
 which has jurisdiction of matters relating 
 to the augmentation of stipends, and the 
 valuation and sale of tithes. 
 
 It is held before justices of the court of 
 sessions organized as a separate court, with 
 distinct clerks and ministerial officers. Bell, 
 Diet. 
 
 TEINDS. In Scotch law. That liquidated 
 proportion of the rents or goods of the people 
 which is due to churchmen for performing 
 divine service, or exercising the other spirit- 
 ual functions proper to their several offices. 
 Ersk. Inst. 2. 10. 2. 
 
 TEINLAND. Thainland (q. v.) 
 
 TELEGRAPH lAE. Written evidence of 
 things past. Blount. 
 
 TELLER (tallier, one who keeps a tally). 
 An officer in a bank or other institution; a 
 person appointed to receive votes; a name 
 given to certain officers in the English ex- 
 chequer. 
 
 TELLERS IN PARLIAMENT. In the lan- 
 guage of parliament, the "tellers" are the 
 members of the house selected to count the 
 members when a division takes place. In 
 the house of lords, a division is effected by 
 the "noncontents" remaining within 'the 
 bar, and the "contents" going below It, a 
 teller being appointed for each party. In 
 the commons, the "ayes" go Into the lobby 
 at one end of the house, and the "noes" Into 
 the lobby at the other end, the house itself 
 being perfectly empty, and two tellers being 
 appointed for each party. May, Pari. Prac. 
 
 TELLIGRAPHUM. An Anglo-Saxon char- 
 ter of land. 1 Reeve, Hist. Eng. Law, c. 1, 
 
 p. 10. 
 
 TELLWORC. That labor which a tenant 
 was bound to do for his lord for a certain 
 number of days. 
 
 TEMENTALE,orTENEMENTALE. Atax 
 of two shillings upon every ploughland; a 
 decennary (g. v.) 
 
 TEMERE (Lat.) In the civil law. Rash- 
 ly; inconsiderately; without sufficient cause. 
 A plaintiff was said temere litigare, who de- 
 manded a thing out of malice, or sued with- 
 out just cause, and who could show no 
 ground or cause of action. Brissonlus. 
 
 TEMPLARS. A religious order of knight- 
 hood, Instituted about the year 1119, and so 
 
 for hire. He is liable as a common carrier, called because the members dwelt in a part 
 Story, Bailm. § 496. See "Carrier." | of the temple of Jerusalem, and not far from 
 
TEMPLE 
 
 (897) 
 
 TENANT 
 
 the sepulchre of our Lord. They entertained 
 Christian strangers and pilgrims charitably, 
 and their profession was at first to defend 
 travellers from highwaymen and robbers. 
 The order was suppressed A. D. 1307, and 
 their substance given partly to the knights 
 of St. John of Jerusalem, and partly to oth- 
 er religious orders. Brown. 
 
 TEMPLE. Two English inns of court, 
 thus called because anciently the dwelling 
 place of the Knights Templar. On the sup- 
 pression of the order, they were purchased 
 by some professors of the common law, and 
 converted into hospitia or Inns of court. 
 They are called the "Inner" and "Middle 
 Temple," in relation to Essex House, which 
 was also a part of the house of the Tem- 
 plars, and called the "Outer Temple," be- 
 cause situated without Temple Bar. Enc. 
 Lond. 
 
 TEMPORAL LORDS. The peers of Eng- 
 land; the bishops are not in strictness held 
 to be peers, but merely lords of parliament. 
 2 Steph. Comm. 330, 345. 
 
 TEMPORALIS ACTIO (Lat.) An action 
 which could only be brought within a cer- 
 tain period. 
 
 TEMPORALIS EXCEPTIO (Lat.) A tem- 
 porary exception which barred an action for 
 a time only. 
 
 TEMPORALITIES (Law Lat. temporalia). 
 Revenues, lands, tenements, and lay fees 
 which bishops have from livery of the king, 
 and in virtue of which they sit in parlia- 
 ment. 1 Rolle, Abr. 881. 
 
 TEMPORARY. Which is to last for a lim- 
 ited time. See "Statute." 
 
 TEMPORIS EXCEPTIO (Lat.) In civil 
 law. A plea of lapse of time in bar of an 
 action, like our statute of limitations. Dig. 
 "De Diversis Temporalibus Actionibus." 
 
 TEMPUS (Lat.) In civil and old English 
 law. Time in general. A time limited; a 
 season; e. g., tempus pessonis, mast time in 
 the forest. 
 
 TEMPUS CONTINUUM (Lat.) In civil 
 law. A period of time which runs continu- 
 ally having once begun, feast days being 
 counted as well as ordinary days, and it 
 making no difference whether the person 
 against whom it runs is present or absent. 
 Calv. Lex. 
 
 TEMPUS ENIM MODUS TOLLENDI OB- 
 llgatlones et actiones, quia tempus currit 
 contra desldes et sui juris contemptores. 
 For time is a means of destroying obliga- 
 tions and actions, because time runs against 
 the slothful and contemners of their own 
 rights. Fleta, lib. 4, c. 5, § 12. 
 
 TEMPUS SEMESTRE. Half a year, and 
 not six lunar months. Westminster II. c. 5. 
 
 TEMPUS UTILE (Lat.) In civil law. A 
 period of time which runs beneficially; i. e., 
 feast days are not included, nor does it run 
 
 against one absent in a foreign country, or 
 on business of the republic, or detained by 
 stress of weather. But one detained by sick- 
 ness is not protected from its running; for 
 it runs where there is power to act by an 
 agent, as well as where there is power to act 
 personally; and the sick man might have 
 deputed his agent. Calv. Lex. 
 
 TENANCY. The state or condition of a 
 tenant; the estate held by a tenant. 
 
 TENANT (Lat. teni'O, tenure, to hold). One 
 who holds or possesses lands or tenements 
 by any kind of title, either in fee, for life, 
 for years, or at will. In a popular sense, 
 he is one who has the temporary use and 
 occupation of lands or tenements which be- 
 long to another, the duration and other 
 terms of whose occupation are usually de- 
 fined by an agreement called a "lease," while 
 the parties thereto are placed in the relation 
 of landlord and tenant. 5 Man. & G. 54; 
 Bouv. Inst. Index. 
 
 Tenants in Common. Such as hold 
 
 lands and tenements by several and distinct 
 titles, and not by a joint title, but occupy in 
 common, the only unity recognized between 
 them being that of possession. They are 
 accountable to each other for the profits of 
 the estate; and if one of them turns another 
 out of possession, an action of ejectment will 
 lie against him. They may also have recip- 
 rocal actions of waste against each other. 2 
 Bl. Comm. 191. See "Estate In Common;" 
 7 Cruise, Dig.; Bac. Abr. "Joint Tenants, and 
 Tenants in Common;" Comyn, Dig. "Abate- 
 ment" (B' 10, F 6), "Chancery" (3 V 4), 
 "Devise" (N 8), "Estates" (K 8, R 2) ; 1 
 Vern. 353; Archb. Civ. PI. 53, 73. 
 
 Tenant by tlie Curtesy. A species of 
 
 life tenant who, on the death of his wife 
 seised of an estate of inheritance, after 
 having issue by her which is capable of 
 inheriting her estate, holds her lands for 
 the period of his own life. After the birth 
 of such a child, the tenant is called "tenant 
 by the curtesy" Initiate (Co. Litt. 29a; 2 
 Bl. Comm. 126); but to consummate the 
 tenancy, the marriage must be lawful, the 
 wife must have possession, and not a mere 
 right of possession, the issue must be bom 
 alive, during the lifetime of the mother, 
 and the husband must survive the wife. 
 See "Curtesy." 
 
 Tenant in Dower. Another species of 
 
 'ife tenant, occurring where the husband of 
 a woman is seised of an estate of inheritance, 
 and dies, and the wife thereby becomes en- 
 titled to hold the third part of all the lands 
 and tenements of which he was seised at 
 any time during the coverture to her own 
 use, for the term of her natural life. See 
 "Dower;" 2 Bl. Comm. 129; Coniyn, Dig. 
 "Dower" (A). 
 
 Tenant of the Demesne. One who is 
 
 tenant of a mesne lord; as, where A. is 
 tenant of B. and C. of A.; B. is the lord, 
 A. the mesne lord, and C. the tenant of 
 the demesne. Hammond, N. P. 392, 393. 
 
 Tenant in Fee. Under the feudal law, 
 
 one who held his lands either immediately 
 
TENANT 
 
 (898) 
 
 TENANT 
 
 or derivatively from the sovereign, in con- 
 sideration of the military or other services 
 he was bound to perform. If he held direct- 
 ly from thi king, he was called a "tenant 
 in fee," in capite. With us, the highest es- 
 tate which a man can have in land has 
 direct reference to his duty to the state. 
 From it he ultimately holds his title, to it 
 he owes fealty and service, and if he fails 
 in his allegiance to it, or dies without heirs 
 upon whom this duty may devolve, his lands 
 revert to the state under which he held. 
 Subject to this qualification, however, a' ten- 
 ant in fee has an absolute unconditional 
 ownership in land, which, upon his death, 
 vests in his heirs; and hence he enjoys what 
 is called an "estate of inheritance." See 
 "Estates;" 2 Bl. Comm. 81; Litt, § 1; Plowd. 
 555. 
 
 Joint Tenants. Two or more persons 
 
 to whom lands or tenements have been grant- 
 ed to hold in fee simple, for life, for years, 
 or at will. In order to constitute an estate 
 in joint tenancy, the tenants thereof must 
 have one and the same interest, arising by 
 the same conveyance, commencing at the 
 same time, and held by one and the same 
 undivided possession. 2 Bl. Comm. 180. The 
 principal incident to this estate is the right 
 of survivorship, by which, upon the death of 
 one joint tenant, the entire tenancy remains 
 to the surviving cotenant, and not to the 
 heirs or other representatives of the deceas- 
 ed, the last survivor taking the whole estate. 
 It is an estate which can only be created 
 "by the acts of the parties, and never by 
 operation of law. Co. Litt. 184b; 2 Cruise, 
 Dig. 43; 4 Kent. Comm. 358; 2 Bl. Comm. 
 179; 7 Cruise, Dig. "Joint Tenancy;" Brest. 
 Est. 
 
 Tenant for Life. One who has a free- 
 hold interest in lands, the duration of which 
 is confined to the life or lives of some par- 
 ticular person or persons, or to the happen- 
 ing or not happening of some uncertain 
 •event. 1 Cruise, Dig. 76. When he holds 
 the estate by the life of another, he is usually 
 •called tenant pur autre vie. 2 Bl. Comm. 
 120; Comyn, Dig. "Estates" (F 1). See "Es- 
 tate for Life;'" "Emblements." 
 
 Tenant by tlie iVIanner. One who has 
 
 a less estate than a fee in land, which re- 
 mains in the reversioner. He is so called 
 ■because in avowries and other pleadings it 
 is specially shown in what manner he is ten- 
 ant of the land, in contradistinction to the 
 veray tenant, who is called simply "tenaut." 
 See "Veray." 
 
 Tenant Paravail. The tenant of a ten- 
 ant. - He is so called because he has the 
 avails or profits of the land. 
 
 Tenant in Severalty. He who holds 
 
 lands and tenements in his own right only, 
 without any other person being joined or 
 connected with him in point of interest dur- 
 ing his estate therein. 2 Bl. Comm. 179. 
 
 Tenant at Sufferance. He who comes 
 
 into possession by a lawful demise, but after 
 "his term is ended continues the possession 
 wrongfully by holding over. He has only a 
 naked possession, stands in no privity to the 
 landlord, and may, consequently, be removed 
 
 without notice to quit. Co. Litt. 57b; 2 
 Leon. 46; 3 Leon. 153; 1 Johns. Cas. (N. Y.) 
 123; 4 Johns. (N. Y.) 150, 312; 5 Johns. (N. 
 Y.) 128. 
 
 Tenant in Tail. One who holds an es- 
 tate in fee, which by the instrument creating 
 it is limited to some particular heirs, exclu- 
 sive of others; as, to the heirs of "his body," 
 or to the heirs, "male or female," of his 
 body. The whole system of entailment, ren- 
 dering estates unalienable, is so directly op- 
 posed to the spirit of our republican institu- 
 tions as to have become very nearly extinct 
 in the United States. Most of the states, at 
 an early period of our independence, passed 
 laws declaring such estates to be estates 
 in fee simple, or provided that the tenant 
 and the remainderman might join in con- 
 veying the land in fee simple. In New 
 Hampshire, Chancellor Kent says, entails 
 may still be created; while in some of the 
 states they have not been expressly abolish- 
 ed by statute, but in practice they are now 
 almost unknown. See "Entail;" 2 Bl. 
 Comm. 113. 
 
 Tenant at Will. One who holds rent 
 
 free by permission of the owner, or where 
 he enters under an agreement to purchase, 
 or for a lease, but has not paid rent. For- 
 merly all leases for uncertain periods were 
 considered to be tenancies at will merely; 
 but in modern times they are construed into 
 tenancies from year to year; and, in fact, the 
 general language of the books now is that 
 the former species of tenancy cannot exist 
 without an express agreement to that effect. 
 8 Cow. (N. Y.) 75; 4 Ired. (N. C.) 291; 3 
 Dana (Ky.) 66; 12 Mass. 325; 23 Wend. (N. 
 Y.) 616; 12 N. Y. 346. The great criterion 
 by which to distinguish between tenancies 
 from year to year and at will is the payment 
 or reservation of rent. 5 Bing. 361; 2 Bsp. 
 718. 
 
 A tenancy at will must always be at the 
 will of either party, and such a tenant may 
 be ejected at any time, ahd without notice; 
 but as soon as he once pays rent, he be- 
 comes tenant from year to year. 1 Watts & 
 S. (Pa.) 90; Tayl. Landl. & Ten. § 56; Co. 
 Litt. 55; 2 Lilly, Reg. 555; 2 Bl. Comm. 145. 
 See Comyn, Dig. "Estates" (H 1) ; 12 Mass. 
 325; 17 Mass. 282; 1 Johns. Cas. (N. Y.) 33; 
 2 Caines Cas. (N. Y.) 314; 2 Caines (N. Y.) 
 169; 9 Johns. (N. Y.) 13, 235, 331. 
 
 Tenant for Years. He to whom anoth- 
 er has let lands, tenements, or heredita- 
 ments for a certain number of years, agreed 
 upon between them, and the tenant enters 
 thereon. Before entry, he has only an in- 
 choate right, which is called an interesse 
 termini; and it is of the essence of this es- 
 tate that its commencement as well as its 
 termination be fixed and determined, so that 
 the lapse of time limited for its duration 
 will, ipso facto, determine the tenancy; if 
 otherwise, the occupant will be tenant from 
 year to year, or at will, according to circum- 
 stances. See "Lease;" Tayl. Landl. & Ten. § 
 54; 2 Bl. Comm. 140. 
 
 Tenant from Year to Year. Where 
 
 lands or tenements have been let without any 
 particular limitation for the duration of the 
 
TENANT A VOLUNTE 
 
 (899) 
 
 TENEMENTAL LAND 
 
 tenancy; hence any general occupation with 
 permission, whether a tenant is holding over 
 after the expiration of a lease for years, or 
 otherwise, becomes a tenancy from year to 
 year. 3 Burrows, 1609; 1 Term R. 163; 3 
 East, 451; 3 Barn. & C. 478; 9 Johns. (N. Y.) 
 330; 3 Zab. (N. J.) 311. The principal fea- 
 ture of this tenancy Is that it is not determi- 
 nable even at the end of the current year, 
 unless a reasonable notice to quit is served 
 by the party intending to dissolve the ten- 
 ancy upon the other. 4 Cow. (N. Y.) 349; 
 3 Hill (N. Y.) 547; 11 Wend. (N. Y.) 616; 8 
 Term R. 3; 5 Bing. 185. 
 
 TENANT A VOLUNTE (Law Fr.) Ten- 
 ant at will. Litt. § 68. 
 
 TENANT BY COPY OF COURT ROLL 
 
 (shortly, "tenant by copy"). The old-fash- 
 ioned name for a copyholder. Litt. § 73. 
 
 TENANT RIGHT. In leases from the 
 crown, corporations, or the church, it is 
 usual to grant a further term to the old 
 tenants in preference to strangers; and, as 
 this expectation is seldom disappointed, such 
 tenants are considered as having an ulterior 
 interest beyond their subsisting term; and 
 this interest is called the "tenant right." 
 Bac. Abr. "Leases and Terms for Years" (U). 
 
 TENANT TO THE PRAECIPE. Before 
 the English fines and recoveries act, if l^nd 
 was conveyed to a person for life, with re- 
 mainder to another in tail, the tenant in 
 tail in remainder was unable to bar the en- 
 tail without the concurrence of the tenant 
 for life, because a common recovery could 
 only be suffered by the person seised of the 
 land. In such a case, if the tenant for life 
 wished to concur in barring the entail, he 
 usually conveyed his life estate to some oth- 
 er person in order that the praecipe in the 
 recovery might be issued against the latter, 
 who was therefore called the "tenant to the 
 praecipe." Williams, Seisin, 169. 
 
 TENANTS BY THE VERGE. These "are 
 in the same nature as tenants by copy of 
 court roll [i. e., copyholders]. But the rea- 
 son why they be called 'tenants by the 
 verge' is, for that when they will surrender 
 their tenements into the hands of their 
 lord to the use of another, they shall have 
 a little rod (by the customs) in their hand, 
 the which they shall deliver to the steward 
 or to the bailife, * * * and the steward 
 or bailife, according to the custome, shall 
 deliver to him that taketh the land the same 
 rod, or another rod, in the name of seisin; 
 and for this cause they are called 'tenants 
 by the verge;' but they have no other evi- 
 , dence [title deed] but by copy of court roll." 
 Litt. § 78; Co. Litt. 61a. 
 
 TENAUNT (Law Fr. from tenrr. to hold). 
 In old English law. Tenant; a tenant. 
 
 TENDE. To tender or offer. Old Nat. 
 Brev. 123. 
 
 TENDER (Lat. tcmlcrc, to extend, to of- 
 fer). An offer to deliver something, made 
 
 in pursuance of some contract or obligation, 
 under such circumstances as to require no 
 further act from the party making it to com- 
 plete the transfer. 
 
 To constitute a valid tender, there must be 
 an actual production (46 Barb. [N. Y.] 227), 
 at the time (90 N. Y. 442) and place (6 
 Barb. [N. Y.] 258) where the obligation was 
 due, of the full amount (41 Vt. 66) in cur- 
 rent funds (34 N. Y. 649) by the person who 
 is under obligation, or his agent (11 Ga. 570), 
 and an offer to the creditor or his agent 
 (46 Barb. [N. Y.] 227) absolutely and with- 
 out condition, to which the creditor may 
 rightfully object (39 N. Y. 481), of the exact 
 amount due, but tender of an excessive 
 amount is good if no change is asked in re- 
 turn (25 Ind. 261), and the tender must be 
 kept good by continued readiness to pay or 
 deliver the amount or property tendered (24 
 Vt. 536; 86 111. 431). 
 
 TENDER OF AMENDS. An offer by a 
 person who has been guilty of any wrong 
 or breach of contract to pay a sum of money 
 by way of amends. If a defendant in an ac- 
 tion make tender of amends, and the plain- 
 tiff decline to accept it, the defendant may 
 pay the money into court, and plead the 
 payment into court as a satisfaction of the 
 plaintiff's claim. Mozley & W. 
 
 TENDER OF ISSUE. The conclusion of a 
 pleading whereby the pleader offers to refer 
 the averments thereof to a trial. The com- 
 mon tender of an issue of fact is, "and of this 
 he puts himself upon the country." Steph. 
 PI. 54, 230. 
 
 TENEMENT (from Lat. teneo, to hold). 
 Everything of a permanent nature which 
 may be holden. 
 
 Its original meaning, according to some, 
 was house or homestead. Jacob. In modern 
 use, it also signifies rooms let in houses. 
 l6 Wheat. (U. S.) 204. 
 
 In its most extensive signification, "tene- 
 ment" comprehends everything which may 
 be holden, provided it be of a permanent 
 nature; and not only lands and inheritances 
 which are holden, but also rents and profits 
 a prendre of which a man has any frank 
 tenement, and of which he may be seised ut 
 de lihero tenemento, are included under this 
 term. Co. Litt. 6a; 2 Bl. Comm. 17; 1 Washb. 
 Real Prop. 10; 17 Pick. (Mass.) 105. But 
 the word "tenement" simply, without other 
 circumstances, has never been construed to 
 pass a fee. 10 Wheat. (U. S.) 204. See 4 
 Bing. 293; 1 Term R. 358; 3 Term R. 772; 3 
 East, 113; 5 Bast, 239; 1 Barn. & Adol. 161; 
 Comyn, Dig. "Grant" (B 2), "Trespass" (A 
 2) ; 1 Washb. Real Prop. 10. 
 
 Bracton says that tenements acquired by a 
 villein were as to the lord in the same con- 
 dition as chattels, because bought with the 
 chattels which rightfully belong to the lord. 
 Bracton, 26. 
 
 TENEMENTAL LAND. Land distribut- 
 ed by a lord among his tenants, as opposed 
 to the demesnes which were occupied by him- 
 self and his servants. 2 Bl. Comm. 90. 
 
TENEMENTIS LEGATIS 
 
 (900) 
 
 TENOR 
 
 TENEMENTIS LEGATIS. An ancient 
 Writ, lying to the city of London, or any 
 other corporation (where the old custom was 
 that men might devise by will lands and 
 tenements, as well as goods and chattels), 
 for the hearing and determining any con- 
 troversy touching the same. Reg. Orig. 244. 
 
 TENEMENTUM (Law Lat. from tenere, to 
 hold). In old English law. A tenement; a 
 thing held by service; a fee, fief, or feudal 
 estate; an estate which a tenant holds of a 
 lord. Spelman. Devenio homo vester, de 
 tenemento quod de voMs teneo, I become 
 your man, of the tenement which I hold of 
 you. Bracton, fol. 80. Liierum tenemen- 
 tum, a free tenement, or freehold, as dis- 
 tinguished from villenagium. 
 
 TENENDAS (Lat.) In Scotch law. The 
 name of a clause in charters of heritable 
 rights, which derives its name from its first 
 words, tenendas praedictas terras, and ex- 
 presses the particular tenure by which the 
 lands are to be holden. Brsk. Inst. bk. 2, 
 tU. 3, note 10. 
 
 TENENDUM (Lat.) That part of a deed 
 which was formerly used in expressing the 
 tenure by which the estate granted was hold- 
 en; but since all freehold tenures were con- 
 verted into socage, the tenendum is of no 
 further use, even in England, and is there- 
 fore joined to the habendum in this manner, 
 — to have and to hold. The words "to hold" 
 have now no meaning in our deeds. 2 Bl. 
 Comm. 298. See "Habendum." 
 
 TEN ENS. A tenant; the defendant in a 
 real action. 
 
 TENENTIBUS IN ASSISA NON ONER- 
 andls. A writ that formerly lay for him to 
 whom a disseisor had alienated the land 
 whereof he disseised another, that he shojuld 
 not be molested in assize for damages, if 
 the disseisor had wherewith to satisfy them. 
 Reg. Orig. 214. 
 
 TENEO (Lat. I hold). Said by Lord Coke 
 to have the following significations: 
 
 To have, as an estate. Co. Litt. lb. 
 
 To hold of some superior. Id. 
 
 To keep, as a covenant. Id. 
 
 To bind, as an obligation. Id. 
 
 To judge or deem. Id. 
 
 See these senses applied to the word "ten- 
 ant." Id. See "Tenere." 
 
 TENER (Law Pr.) In old English law. 
 To hold. A aver et tener a luy et a ses 
 heire's, to have and to hold to him and his 
 heirs. Litt. § 625. 
 
 To' keep. Tener hors de droit heire, to 
 keep out the right heir. Britt. c. 65. 
 
 TENERE (Lat.) 
 
 —^ — In the Civil Law. To hold. A term 
 expressive of mere fact, without reference 
 to right; or expressive of what was termed 
 corporeal and natural possession. Habere 
 (to have) and possidere (to possess), on 
 the other hand, were terms expressive of 
 
 right, or what was termed "ctvil" posses- 
 sion. Calv. Lex. See "Habere." 
 
 To observe or keep. Calv. Lex. 
 
 To bind. Id. 
 
 To be of force or validity. Id. 
 
 In Old English Law. To hold by serv- 
 ice, in the feudal sense. De tenemento quod 
 de vobis teneo, of the tenement which I hold 
 of you. Bracton, fol. 80; Co. Litt. lb. 
 
 To hold judicially. Tenere placitum, to 
 hold plea; to take cognizance of an action; 
 to exercise or entertain jurisdiction. Pro- 
 hibew,us vobis ne teneatis placitum,, we pro- 
 hibit you that you do not hold plea. Reg. 
 Orig. 34. Tenere placita, lo hold pleas; to 
 have a court of one's own. Pinch, Law, bk 
 2, c. 14. 
 
 To hold, or be seised of; to have. Co 
 Litt. lb. 
 
 TENERI (Lat.) In contracts. That part 
 of a bond where the obligor declares him- 
 self to be held and firmly bound to the obli- 
 gee, his heirs, executors, administrators, and 
 assigns, is called the teneri. 3 Call (Va ) 
 350. 
 
 TENET (Lat. he holds). In pleading. A 
 term used in stating the tenure in an action 
 for waste done during tenancy. 
 
 When the averment is in the tenet, the 
 plaintiff, on obtaining a verdict, will recover 
 tUe place wasted, namely, that part of the 
 premises in which the waste was exclusively 
 done, if it were done in a part only, together 
 with treble damages. But when the aver- 
 ment is in the tenuit, the tenancy being at 
 an end, he will have judgment for his dam- 
 ages only. 2 Greenl. Bv. § 652. 
 
 TENHEDED, or TIENHEOFED. A dean. 
 
 TENHEVED (Saxon tienheofod, from tien, 
 ten, and heofod, head). In old English law. 
 The head of a tithing, or decennary; a tith- 
 ingman, chief pledge, head borough or bors- 
 holder. Spelman. 
 
 TENMENTALE, or TENMANTALE. The 
 
 number of ten men, which number, in the 
 time of the Saxons, was called a "decen- 
 nary;" and ten decennaries made what was 
 called a "hundred." Also a duty or tribute 
 paid to the crown, consisting of two shillings 
 for each ploughland. Enc. Lond. 
 
 TENNE. A term of heraldry, meaning or- 
 ange color. In engravings it should be rep- 
 resented by lines in bend sinister crossed 
 by others bar-ways. Heralds who blazon by 
 the names of the heavenly bodies call it 
 "dragon's head,"^ and those who employ 
 jewels, "jacinth." It is one ■ of the colors 
 called "stainand." Wharton. 
 
 TENOR. 
 
 In Pleading. A term used to denote 
 
 that an exact copy is set out. 5 Wend. (N. 
 Y.) 273; 14 Ohio St. 61; 1 Mass. 203; 1 Bast, 
 180, and the cases cited in the notes. 
 
 In Chancery Pleading. A certified 
 
 copy of records of other courts removed into 
 chancery by certiorari. Gresl. Ev.'309.- 
 
TENOR EST, ETC. 
 
 (901) 
 
 TENURE 
 
 TENOR EST QUI LEGEM DAT FEUDO. 
 
 It is the tenor of the feudal grant which 
 regulates its effect and extent. Craig, Jus 
 Feud. (3d Ed.) 66. See Co. Litt. 19a; 2 Bl. 
 Comm. 310; 2 Coke, 71; Broom, Leg. Max. 
 (3d London Ed.) 410; Wright, Ten. 21, 52, 
 152. 
 
 TENORE INDICTAMENTI MITTENDO. A 
 
 writ whereby the record of an indictment, 
 and the process thereupon, was called out of 
 another court into the Queen's (or king's) 
 Bench. Reg. Orig. 69. 
 
 TENORE PRAESENTIUM. By the tenor 
 of these presents, i. e., the matter contained 
 therein, or rather the intent and meaning 
 thereof. Cowell. 
 
 TENSERIAE. A sort of ancient tax or 
 military contribution. Wharton. 
 
 TENTERDEN'S ACT. St. 9 Geo. IV. c. 14, 
 extending the statutes of frauds to certain 
 other contracts. 
 
 TENTHS. 
 
 In English Law. A temporary aid is- 
 suing out of personal property, and granted 
 to the king by parliament; formerly the real 
 tenth part of all the movables belonging to 
 the subject. 1 Bl. Comm. 308. 
 
 In English Ecclesiastical Law. The 
 
 tenth part of the annual profit of every liv- 
 ing in the kingdom, formerly paid to the 
 pope, but by St. 26 Hen. VIII. c. 3, transfer- 
 red to the crown, and afterwards made a part 
 of the fund called "Queen Anne's Bounty." 
 1 Bl. Comm. 284-286. 
 
 TENUIT (Lat. he held). In pleading. A 
 term used in stating the tenure in an ac- 
 tion for waste done after the termination of 
 the tenancy. See "Tenet." 
 
 TENURA EST PACTIO CONTRA COM- 
 munem feudi naturam ac rationem, in con- 
 tractu interposita. Tenure is a compact con- 
 trary to the common nature and reason of 
 the fee, put into a contract. Wright, Ten. 21. 
 
 TENURE (from Lat. tenere, to hold). In 
 the most general sense, the mode or right of 
 holding, as "tenure of office." More specific- 
 ally, the mode by which a man holds an es- 
 tate in lands. 
 
 Such a holding as is coupled with some 
 service, which the holder is bound to per- 
 form so long as he continues to hold. 
 
 The thing held is called a "tenement;" the 
 occupant, a "tenant;" and the manner of his 
 holding constitutes the "tenure." 
 
 Classification of feudal tenures: 
 
 (1) The principal species of tenure which 
 grew out of the feudal system was the 
 tenure by knight's service. This was essen- 
 tially military in its character, and required 
 the possession of a certain quantity of land, 
 called a "knight's fee," the measure of which, 
 in the time of Edward I., was estimated at 
 twelve ploughlands, of the value of twenty 
 pounds per annum. He who held this por- 
 tion of land was bound to attend his lord to 
 the wars forty days in every year, if called 
 
 upon. It seems, however, that if he held 
 but half a knight's fee, he was only bound 
 to attend twenty days. Many arbitrary and 
 tyrannical incidents or lordly privileges were 
 attached to this tenure, which at length be- 
 came so odious and oppressive that the whole 
 system was destroyed at a blow by St. Charles 
 II. c. 24, which declared that all such lands 
 should thenceforth be held in free and com- 
 mon socage. — a statute, says Blackstone, 
 which was a greater acquisition to the civil 
 property of this kingdom than even Magna 
 Charta itself; since that only pruned the 
 luxuriances which had grown out of military 
 tenures, and thereby preserved them in vigor, 
 but the statute of King Charles extirpated 
 the whole, and demolished both root and 
 branches. See "Feudal Law;" Co. Litt. 69; 
 St. Westminster I., c. 36. 
 
 (2) Tenure in socage seems to have been 
 a relic of Saxon liberty which, up to the time 
 of the abolition of military tenures, had been 
 evidently struggling with the innovations of 
 the Normans. Its great redeeming quality 
 was its certainty; and in this sense it is by 
 the old law writers put in opposition to the 
 tenure by knight's service, where the tenure 
 was altogether precarious and uncertain. 
 Littleton defines it to be where a tenant 
 holds his tenement by any certain service, in 
 lieu of all other services, so that they be not 
 services of chivalry or knight's services; as, 
 to hold by fealty and twenty shillings rent, 
 or by homage, fealty, and twenty shillings 
 rent, or by homage and fealty without any 
 rent, or by fealty and a certain specified 
 service, as, to plough the lord's land for 
 three days. Litt. 117; 2 Bl. Comm. 79. See 
 "Socage." 
 
 (3) Other tenures have grown out of the 
 two last-mentioned species of tenure, and are 
 still extant in England, although some of 
 them are fast becoming obsolete. Of these is 
 the tenure by grand serjeanty, which consists 
 in some service immediately respecting the 
 person or dignity of the sovereign; as, to 
 carry the king's standard, or to be his con- 
 stable or marshal, his butler or chamberlain, 
 or to perform some similar service. While 
 the tenure by petit serjeanty requires some 
 inferior service, not strictly, military or per- 
 sonal, to the king; as, the annual render of 
 a bow or sword. The late duke of Welling- 
 ton annually presented his sovereign with a 
 banner, in acknowledgment of his tenure. 
 There are also tenures by copyhold' and in 
 frankalmoigne, in burgage and of gavelkind; 
 but their nature, origin, and history are ex- 
 plained in the several articles appropriated 
 to those terms. 2 Bl. Comm. 66; 2 Inst. 233. 
 
 (4) Tenures were distinguished by the 
 old common-law writers, according to the 
 quality of the service, into free or base. The 
 former were such as were not unbecoming a 
 soldier or a freeman to perform, as, to serve 
 the lord in the wars; while the latter were 
 only considered fit for a peasant, as, to plough 
 the land, and the like. They were further 
 distinguished with reference to the person 
 from whom the land was held; as, a tenure 
 in capite, where the holding was of the per- 
 son of the king, and tenure in gross, where 
 
TENURE, ETC. 
 
 (902) 
 
 TERM TO CONCLUDE 
 
 the holding was of a subject. Before the 
 statute of Quia Emptores (18 Edw. I.), any 
 person might, by a grant of land, have created 
 an estate as a tenure of his person, or of his 
 house or manor; and although by Magna 
 Oharta a man could not alienate so much of 
 his land as not to leave enough to answer 
 the services due to the superior lord, yet, as 
 that statute did not remedy the evil then 
 complained of, it was provided by the stat- 
 ute above referred to, that if any tenant 
 should alien any part of his land in fee, the 
 alienee should hold immediately of the lord 
 of the fee, and should be charged with a pro- 
 portional part of the service due in respect 
 to the quantity of land held by him. The 
 consequence of which was that, upon every 
 such alienation, the services upon which the 
 estate was originally granted became due to 
 the superior lord, and not to the immediate 
 o grantee. 4 Term R. 443; i East, 271; Crabb, 
 Real Prop. § 735. 
 Wharton's classification is as follows: 
 
 (A) Lay tenures. 
 
 I. Prank tenement, or freehold. 
 
 (1) The military tenures (abol- 
 
 ished, except grand ser- 
 jeanty, and reduced to free 
 socage tenures) were: 
 Knight service proper, or 
 tenure in chivalry; grand 
 •serjeanty; cornage. 
 
 (2) Free socage, or plough serv- 
 
 ice; either petit serjeanty, 
 tenure in burgage, or gavel- 
 kind. 
 II. Villeinage. 
 
 (1) Pure villeinage (whence copy- 
 
 holds at the lord's [nom- 
 inal] will, which is regu- 
 lated according to custom). 
 
 (2) Privileged villeinage, some- 
 
 times called "villein socage" 
 (whence tenure in ancient 
 demense, which is an exalt- 
 ed species of copyhold, held 
 according to custom, and 
 not according to the lord's 
 will), and is of three kinds: 
 Tenure in ancient demesne ; 
 ' privileged copyholds, cus- 
 
 tomary freeholds, or free 
 copyholds; copyholds of 
 base tenure. 
 
 (B) Spiritual tenures. 
 
 I. Frankalmoigne, or free alms. 
 II. Tenure by divine service. 
 
 TENURE BY DIVINE SERVICE. See "Di- 
 vine Service." 
 
 TENURE OF OFFICE. See "Tenure." 
 
 TERCE. In Scotch law. A life rent com- 
 petent by law to widows who have not ac- 
 cepted of special provisions in the third part 
 ' of the heritable subjects in which the hus- 
 band died infeft. 
 
 The terce takes places only where the mar- 
 riage has subsisted for a year and a day, or 
 where a child has been born alive of it. No 
 terce is due out of lands in which the hus- 
 band was not infeft, unless in case of a 
 
 fraudulent omission. Craig, Inst. 423, § 28. 
 The terce is not limited to lands, but extends 
 to teinds, and to servitudes ,and .other bur- 
 dens affecting lands. Brsk. Inst. 2. 9. 26; 
 Burge, Confl. Laws, 429-435. 
 
 TERCER. In the Scotch law, a widow that 
 possesses the third part of her husband's 
 land, as her legal jointure. 1 Kames, Eq. 
 pref. 
 
 TERM. 
 
 In Construction. Word; expression; 
 
 speech. 
 
 Terms are words or characters by which 
 we announce our sentiments, and make 
 known to others things with which we are 
 acquainted. These must be properly con- 
 strued or interpreted in order to understand 
 the parties using them. 
 
 In Contracts. The space of time 
 
 granted to a debtor for discharging his ob- 
 ligation. These are express terms, resulting 
 from the positive stipulation^ of the agree- 
 ment, as, where one undertakes to pay a cer- 
 tain sum on a certain day, and also terms 
 which tacitly result from the nature of the 
 things which are the object of the engage- 
 ment, or from the place where the act is 
 agreed to be done. For instance, if a builder 
 engage to construct a house for me, I must 
 allow a reasonable time for fulfilling his en- 
 gagement. 1 Wis. 314. 
 
 In Estates. The limitation of an es- 
 tate; as, a term for years, for life, and the 
 like. The word "term" does not merely sig- 
 nify the time specified in the lease, but the 
 estate, also, and interest that passes by that 
 lease, and therefore the term may expire 
 during the continuance of the time; as, by 
 surrender, forfeiture, and the like. 2 Bl. 
 Comm. 145; 8 Pick. (Mass.) 339. 
 
 Of Court. The space of time during 
 
 which a court holds a session. The stated 
 periods during which courts sit for the dis- 
 patch of business. Sometimes the term is a 
 monthly, at others it is a quarterly, period, 
 according to the constitution of the court. 
 
 TERM ATTENDANT ON THE INHER- 
 itance. See "Attendant Terms." 
 
 TERM FOR YEARS. An estate for years, 
 and the time during which such estate is 
 to be held, are each called a "term;" hence 
 the term may expire before the time, as, by 
 a surrender. Co. Lift. 45. See "Estate for 
 Years." 
 
 TERM IN GROSS. A term of years is 
 said to be either in gross (outstanding) or 
 attendant upon the inheritance. It is out- 
 standing, or in gross, when it is unattached 
 or disconnected from the estate or inherit- 
 ance, as where it is in the hands of some ■ 
 third party having no interest in the inherit- 
 ance. It is attendant when vested in some 
 trustee in trust for the owner of the inherit- 
 ance. Brown. 
 
 TERM PROBATORY. The time during 
 which evidence may be taken in a cause. 
 
 TERM TO CONCLUDE. In English eccle- 
 
TERM, ETC. 
 
 (903) 
 
 TERRE TENANT 
 
 siastical practice. An appointment by the 
 judge of a time at which both parties are 
 understood to renounce all further exhibits 
 and allegations. 
 
 TERM TO PROPOUND ALL THINGS. In 
 
 English ecclesiastical practice. An appoint- 
 ment by the judge of a time at which both 
 parties are to exhibit all the acts and in- 
 struments which make for their respective 
 causes. 
 
 TERMINABLE PROPERTY. Such prop- 
 erty (e. g., leaseholds, terminable annuities, 
 etc.) as has no permanent duration, but must 
 and will, end at a certain time, usually de- 
 termined beforehand. 
 
 TERM IN ARE (Lat.) In old English law. 
 To end or determine; to dispose of judi- 
 cially; to decide. 
 
 TERMINATING BUILDING SOCIETIES. 
 
 Societies, in England, where the members 
 commence their monthly contributions on a 
 particular day, and continue to pay them un- 
 til the realization of shares to a given 
 amount for each member, by the advance of 
 the capital of the society to such members 
 as required it, and the payment of interest 
 as well as principal by them, so as to insure 
 such realization within a given period of 
 years. They have been almost superseded 
 by permanent building societies. 
 
 TERMINER (LawFr.;from Lat. termiraare, 
 g. V.) To determine. A oyer et terminer 
 toutes quereles, to hear and determine all 
 complaints. Britt. fol. 1. 
 
 TERMING. In Spanish law. A common; 
 common land. Common because of vicinage. 
 White, New Recop. bk. 2, tit. 1, c. 6, § 1, 
 note. 
 
 TERMINUM (Lat.) In civil law. A day 
 set to the defendant. Spelman. In this 
 sense, Bracton, Glanville,. and some others 
 sometimes use it. Reliquiae Spelmanianae, 
 p. 71; Beames, Glanv. 27, note. 
 
 TERMINUM QUI PRETERIIT, WRIT OF 
 entry ad. A writ which lay for the rever- 
 sioner, when the possession was withheld by 
 the lessee, or a stranger, after the determina- 
 tion of a lease for years. Brown. 
 
 TERMINUS (Lat.) A boundary or limit, 
 either of space or time. A bound, goal, or 
 borders parting one man's land from anoth- 
 er's. Est inter eos non de terminis, sed tota 
 possessione contentio. Cic. Acad. 4, 43. It 
 is used also for an estate for a term of years ; 
 e. g., "interesse termini." 2 Bl. Comm. 143. 
 
 Terminus a quo. The starting point of a 
 private way is so called. Hammond, N. P. 
 196. 
 
 Terminus ad quem. The point of termina- 
 tion of a private way is so called. 
 
 TERMINUS ANNORUM CERTUS DEB- 
 et esse et determlnatus. A term of years 
 ought to be certain and determinate. Co. 
 Litt. 45. 
 
 TERMINUS ET (AC) FEODUM NON 
 possunt constare simul in una eademque 
 persona. A term and the fee cannot both 
 be in one and the same person at the same 
 time. Plowd. 29; 3 Mass. 141. 
 
 TERMINUS JURIS (Law Lat.) In Eng- 
 lish ecclesiastical practice. The time of one 
 or two years, allowed by law for the deter- 
 mination of appeals. Halifax, Anal. bk. 3, 
 c. 11, No. 38. 
 
 TERMOR. One who holds lands and ten- 
 ements for a term of years, or life. Litt. § 
 100; 4 Tyrwh. 561. 
 
 TERRA. Earth; land. 
 
 Terra Afflrmata. Land let to farm. 
 
 Terra Boscalis. Woody land. 
 
 Terra Culta. Cultivated land. 
 
 Terra Debiiis. Weak or barren land. 
 
 Terra Dominica (or Indominlcata). 
 
 The demesne land of a manor. Cowell. 
 
 Terra Excultabllis. Land which may 
 
 be plowed. Mon. Angl. i. 426. 
 
 Terra Extendenda. A writ addressed 
 
 to an escheator, etc., that he inquire and 
 find out the true yearly value of any land, 
 etc., by the oath of twelve men, and to cer- 
 tify the extent into the chancery. Reg. 
 Writs, 293. 
 
 Terra Frusca (or Frisca). Fresh land, 
 
 not lately plowed. Cowell. 
 
 Terra Hydata. Land subject to the 
 
 payment of hydage. Selden. 
 
 ^Terra Lucrabills. Land gained from 
 
 the sea, or iiiclosed out of a waste. Cowell. 
 
 Terra Manens Vacua Occupant! Con- 
 
 ceditur. Land lying unoccupied is given to 
 thi? first occupant. 1 Sid. 347. 
 
 Terra Normanorum. Land held by a 
 
 Norman. Par. Ant. 197. 
 
 Terra Nova. Land newly converted 
 
 from wood ground or arable. Cowell. 
 
 ^Terra Putura. Land in forests, held 
 
 by the tenure of furnishing food to the keep- 
 ers therein. 4 Inst. 307. 
 
 Terra Sabulosa. Gravelly or sandy 
 
 ground. 
 
 Terra Testamentalis. Gavelkind land, 
 
 being disposable by will. Spelman. 
 
 Terra Transit cum Onere. Land 
 
 passes with the incumbrances. Co. Litt. 
 231; Broom, Leg. Max (3d London Ed.) 
 437, 630. 
 Terra Vestlta. Land sown with corn. 
 
 Cowell. 
 
 Terra Wainabilis. Tillable land. Cow- 
 ell. 
 
 Terra Warrenata. Land that has the 
 
 liberty of free warren. 
 
 TERRAE DOMINICALES REGIS. The de- 
 mesne lands of the crown. 
 
 TER RAGES. An exemption from all un- 
 certain services. Cowell. 
 
 TERRARIUS. In old English law. A 
 landholder. 
 
 TERRE TENANT (improperly spelled ter 
 tenant). One who has the actual possession 
 of land; but, in a more technical sense, he 
 who is seised of the land; and in the latter 
 
TERRIER 
 
 (904) 
 
 TEST PAPER 
 
 sense, tlie owner of the land, or the person 
 seised, is the terre tenant, and not the lessee. 
 4 "Watts & S. (Pa.) 256; Bac. Abr. "Uses and 
 Trusts." It has been holden that mere oc- 
 cupiers of the land are not terre tenants. 
 See 16 Serg. & R. (Pa.) 432; 3 Pa. 229; 2 
 Saund. 7, note 4; 2 Bl. Comm. 91, 328. 
 
 TERRIER. In English law. A roll, cata- 
 logue, or survey of lands, belonging either to 
 a single person or a town, in which are stat- 
 ed the quantity of acres, the names of the 
 tenants, and the like. 
 
 By the ecclesiastical law, an inquiry is 
 directed to be made from time to time of the 
 temporal rights of the clergyman of every 
 parish, and to be returned into the registry 
 of the bishop. This return is denominated a 
 "terrier." 1 Phil. Ev. 602. 603. 
 
 TERRIS BONIS ET CATALLIS REHA- 
 bendls post purgationem. A writ for a clerk 
 to recover his lands, goods, and chattels, 
 formerly seized, after he had cleared himself 
 of the felony of which he was accused, and 
 delivered to his ordinary to be purged. Reg. 
 Orig. 
 
 TERRIS ET CATALLIS TENTIS ULTRA 
 debltum levatum. A judicial writ for the re- 
 storing of lands or goods to a debtor who is 
 distrained above the amount of the debt. 
 Reg. Jud. 
 
 TERRIS LIBERANDIS. A writ that lay 
 for a man convicted by attaint, to bring the 
 record and process before the king, and take 
 a fine for his imprisonment, and then to de- 
 liver to him his lands and tenements again, 
 and release him of the strip and waste. Reg. 
 Orig. 232. Also it was a writ for the de- 
 livery of lands to the heir, after homage and 
 relief performed, or upon security taken 
 that he should perform them. Id. 293. 
 
 TERRITORIAL COURTS. The courts es- 
 tablished In the territories of the United 
 States. 
 
 TERRITORY. A part of a country sepa- 
 rated from the rest, and subject to a par- 
 ticular jurisdiction. 
 
 The word is derived from terreo, and is 
 said to be so called because the magistrate 
 within his jurisdiction has the power of in- 
 spiring a salutary fear. Dictum est ab eo- 
 quod magistratus intra fines ejus terendi jus 
 habet. Henrion de Tansy, Auth, Judiciaire, 
 98. In speaking of the ecclesiastical jurisdic- 
 tions, Francis Duaren observes that the ec- 
 clesiastics are said not to have territory, nor 
 the power of arrest or removal, and are not 
 unlike the Roman magistrates of whom Gel- 
 lius says vocationem habehant non prehen- 
 sionem. De Sacris Bccles. Minist. lib. 1, c. 4. 
 
 In American Law. A portion of the 
 
 country subject to and belonging to the 
 United States which is not within the bound- 
 ary of any of the states. 
 
 TERROR (Lat.) That state of the mind 
 which arises from the event or phenomenon 
 that may serve as a prognostic of some 
 catastrophe; affright from apparent danger. 
 
 One of the constituents of the offense of riot 
 is that the acts of the persons engaged in it 
 should be to the terror of the people, as a 
 show of arms, threatening speeches, or tur- 
 bulent gestures; but it is not requisite, in 
 order to constitute this crime, that personal 
 violence should be committed. 3 Campb. 369; 
 1 Hawk. P. C. c. 65, § 5; 4 Car. & P. 373, 538. 
 See Rolle, 109; Dalton, Just. c. 186; Viner, 
 Abr. "Riots" (A 8). 
 
 TERTIA DENUNCIATIO (Lat.) In old 
 English law. Third publication or proc- 
 lamation of intended marriage. Gum barir 
 num, et tertia denunoiatio flat, when the 
 banns and third publication are made. Brac- 
 ton, fol. 307b. 
 
 TERTIUS INTERVENIENS (Lat.) In civ- 
 il law. One who, claiming an interest in 
 the subject or thing in dispute in action be- 
 tween other parties, asserts his right to act 
 with the plaintiff, to be joined with him, and 
 to recover the matter in dispute, because he 
 has an interest in it, or to join the defend- 
 ant, and with him oppose the interest of the 
 plaintiff, which it is his interest to defeat. 
 He differs from the intervener, or he who 
 interpleads in equity. 4 Bouv. Inst. n. 3819, 
 note. 
 
 TEST. Something by which to ascertain 
 the truth respecting another thing. 7 Pa. St. 
 428; 6 Whart. (Pa.) 284. 
 
 TEST ACT. Act 25 Car. II. c. 2, by which 
 it was enacted that all persons holding any 
 office, civil or military (excepting some very 
 inferior ones), or receiving pay from the 
 crown, or holding a place of trust under it, 
 should take the oath of allegiance and su- 
 premacy, and subscribe a declaration against 
 transubstantiation,and receive the sacrament 
 according to the usage of the Church of 
 England, under a penalty of £500 and dis- 
 ability to the office. 4 Bl. Comm. 59. Abol- 
 ished, 9 Geo. IV. c. 17, so far as taking 
 sacrament is concerned, and new form of 
 declaration substituted. Enc. Brit. 
 
 TEST ACTION. An action brought to de- 
 termine a doubtful right affecting many per- 
 sons. It may be an action selected from a 
 number of pending actions brought to en- 
 force such- a right, the parties agreeing 
 that all actions shall follow the decision 
 in the test action, or a single action may 
 be brought by one person at the instance 
 of all to determine the right. Test cases 
 are sometimes had in criminal practice 
 where the validity of a statute or ordi- 
 nance is questioned, and a prosecution is 
 lodged against one person, with the tacit 
 understanding that further prosecutions 
 will be postponed, or will he determined 
 according to the result of that one. 
 
 TEST OATH. An oath required as a con- 
 dition precedent to the right to fill a public 
 office. Generally, an oath of present alle- 
 giance, or of denial of connection with some 
 past insurrection. 
 
 TEST PAPER. A paper submitted to the 
 
TESTABLE 
 
 (90S) 
 
 TESTAMENT 
 
 jury as a test or standard by ■which to de- 
 termine the genuineness of other writings. 
 7 Pa. St. 428; 6 Whart. (Pa.) 284. Only ad- 
 missible when no collateral issue can be rais- 
 ed concerning it. See 14 N. Y. 439; 1 Greenl. 
 Bv. § 581. 
 
 TESTABLE. A person is said to be test- 
 able when he has capacity to make a will. 
 A man of twenty-one years of age and of 
 sane mind is testable. The capacity to 
 make a will must be distinguished from a 
 special power to dispose of property by 
 will. Thus, a power given to a married 
 woman by a settlement to dispose of prop- 
 erty by will does not make her testable. 
 L. R. 7 H. L. 593. But if property is set- 
 tled on a married woman for her separate 
 use, she is testable so far as that property 
 is concerned. 
 
 TESTACY. The condition of one dying 
 having made a will. Opposed to "intes- 
 tacy" {g. V.) It may exist as to all prop- 
 erty, or may be hut "partial," as to such 
 only as is disposed of. 
 
 TESTAMENT. In civil law. The appoint- 
 ment of an executor or testamentary heir, 
 according to the formalities prescribed by 
 law. Domat, liv. 1, tit. 1, § 1. 
 
 At first there were only two sorts of testa- 
 ments among the Romans, — that called cala- 
 tis comitiis, and another called in procinciu. 
 In the course of time, these two sorts of 
 testament having become obsolete, a third 
 form was introduced, called per aes et llbram, 
 which was a fictitious sale of the inheritance 
 to the heir apparent. The inconveniences 
 which were experienced from these fictitious 
 sales again changed the form of testaments, 
 and the praetor introduced another, which 
 required the seal of seven witnesses. The 
 emperors having increased the solemnity of 
 these testaments, they were called "written" 
 or "solemn" testaments, to distinguish them 
 from "nuncupative" testaments, which could 
 be made without writing. Afterwards mili- 
 tary testaments were introduced in favor of 
 soldiers actually engaged in military service. 
 
 (1) A testament calatis comitiis, or made 
 in the comitio,— that is, the assembly of 
 the Roman people, — was an ancient man- 
 ner of making wills, used in times of peace 
 among the Romans. The comitia met twice 
 a year for this purpose. Those who wished 
 to make such testaments caused to be con- 
 voked the assembly of the people by these 
 words, calatis comitiis. None could make 
 such wills that were not entitled to be at 
 the assemblies of the people. This form of 
 testament was repealed by the law of the 
 Twelve Tables. 
 
 (2) A civil testament is one made accord- 
 ing to all the forms prescribed by law, in 
 contradistinction to a military testament, in 
 making which some of the forms may be 
 dispensed with. Civil testaments are more 
 ancient than military ones; the former were 
 in use during the time of Romulus, the lat- 
 ter were introduced during the time of Corio- 
 lanus. See Hist, de la Jur. Rom. de M. Ter- 
 rason, p. 119. 
 
 (3) A common testament is one which is 
 made jointly by several persons. Such tes- 
 taments are forbidden in Louisiana (Civ. 
 Code La. art. 1565), and by the laws of 
 Prance (Civ. Code 968), in the same words, 
 namely: "A testament cannot be made by 
 the same act, by two or more persons, either 
 for the benefit of a third person, or under 
 the title of a reciprocal or mutual disposi- 
 tion." 
 
 (4) A testament ab irato is one made in a 
 gust of passion or hatred against the pre- 
 sumptive heir, rather than from a desire to 
 benefit the devisee. When the facts of un- 
 reasonable anger are proved, the will is an- 
 nulled as unjust, and as not having been 
 freely made. See "Ab Irato." 
 
 (5) A mystic testament (called a "solemn 
 testament," because it requires more formal- 
 ity than a nuncupative testament) is a form 
 of making a will which consists principally 
 in enclosing it in an envelope and sealing it 
 in the presence of witnesses. 
 
 This kind of testament is used in Louisi- 
 ana. The following are the provisions of the 
 Civil Code of that state on the subject, name- 
 ly: The mystic or secret testament, other- 
 wise called the "close testament," is made in 
 the following manner: The testator must 
 sign his dispositions, whether he has written 
 them himself, or has caused them to be writ- 
 ten by another person. The paper contain- 
 ing these dispositions, or the paper serving 
 as their envelope, must be closed and seal- 
 ed. The testator shall present it thus clos- 
 ed and sealed to the notary and to seven 
 witnesses, or he shall cause it to be closed 
 and sealed in their presence; then he shall 
 declare to the notary, in the presence of the 
 witnesses, that that paper contains his testa- 
 ment written by himself, or by another by 
 his direction, and signed by him, the testator. 
 The notary shall then draw up the act of 
 superscription, which shall be written on 
 that paper, or on the sheet that serves as its 
 envelope, and that act shall be signed by 
 the testator and by the notary and the wit- 
 nesses. 5 Mart. (La.) 182. All that is above 
 prescribed shall be done without interruption 
 or turning aside to other acts; and in case 
 the testator, by reason of any hindrance that 
 has happened since the signing of the testa- 
 ment, cannot sign the act of superscription, 
 mention shall be made of the declaration 
 made by him thereof, without its being nec- 
 essary in that case to increase the number of 
 witnesses. Those who know not how or are 
 not able to write, and those who know not 
 how or are not able to sign their names, can- 
 hot make dispositions in the form of the mys- 
 tic will. If any one of the witnesses to the 
 act of superscription knows not how to sign, 
 express mention shall be made thereof. In 
 all cases the act must be signed by at least 
 two witnesses. Civ. Code La. arts. 1577- 
 1580. 
 
 (6) A nuncupative testament was one made 
 verbally, in the presence of seven witnesses. 
 It was not necessary that it should have been 
 in writing; the proof of it was by parol evi- 
 dence. See "Nuncupative Will." 
 
 In Louisiana, testaments, whether nun- 
 
TESTAMENTA, ETC. 
 
 (906) 
 
 TESTE OF A WRIT 
 
 cupative or mystic, must be drawn up in 
 writing, eitlier by the testator himself, or by 
 some other person under his dictation. The 
 custom of making verbal statements, that 
 is to say, resulting from the mere deposition 
 of witnesses who were present when the tes- 
 tator made known to them his will, without 
 his having committed it or caused it to be 
 committed to writing, is abrogated. Nun- 
 cupative testaments may be made by public 
 act, or by act under private signature. Civ. 
 Code La. arts. 1568-1570. 
 
 (7) An olographic testament is one which 
 is written wholly by the testator himself. In 
 order to be valid, it must be entirely written, 
 dated, and signed by the hand of the testator. 
 It is subject to no other form. See Civ. Code 
 La. art. 1581. 
 
 See "Will." 
 
 TESTAMENTA LATISSIMAM INTER- 
 pretationem habere debent. Wills ought to 
 have the broadest interpretation. Jenk. 
 Cent. Cas. 81. 
 
 TESTAMENTARY. Belonging to a testa- 
 ment; as, a testamentary gift; a testamentary 
 guardian, or one appointed by will or testa- 
 ment; letters testamentary, or a writing un- 
 der seal, given by an officer lawfully au- 
 thorized, granting power to one named as 
 executor to execute a last will or testament. 
 
 TESTAMENTARY CAPACITY. Mental 
 capacity sufficient to make a valid will. 
 
 TESTAMENTARY CAUSES. In English 
 law. Causes relating to probate of testa- 
 ments and administration, and accounts upon 
 the same. They are enumerated among ec- 
 clesiastical causes by Lord Coke. 5 Coke, 1, 
 and tables of cases at the end of tjie part. 
 Over these causes probate court has now ex- 
 clusive jurisdiction, by 20 & 21 Vict. c. 77, 
 amended by 21 & 22 Vict. c. 95. 
 
 TESTAMENTARY GUARDIAN. A guard- 
 ian appointed by'last will of a father to have 
 custody of his child and his real and per- 
 sonal estate till he attains the age of twenty- 
 one. In England, the power to appoint such 
 guardian was given by 12 Car. II. c. 24. The 
 principles of this statute have been generally 
 adopted in the United States (12 N. H. 437), 
 but not in Connecticut (1 Swift, Dig. 48). 
 
 TESTAMENTUM (Lat.) 
 
 In the Civil Law. A testament; a 
 
 will, or last will. 
 
 In Old English Law. A testament or 
 
 will; a disposition of property made in con- 
 templation of death. Bracton, fol. 60. 
 
 A general name for any instrument of con- 
 veyance, including deeds and charters, and 
 so called either because it furnished written 
 testimony of the conveyance, or because it 
 was authenticated by witnesses {testes). 
 Spelman. 
 
 TESTAMENTUM EST VOLUNTATES 
 nostra justa sententia, de eo quod quis post 
 mortem suam fieri velit. A testament is the 
 just expression of our will concerning that 
 which any one wishes done after his death; 
 
 or, as Blackstone translates, "the legal decla- 
 ration of a man's intentions which he wills to 
 be performed after his death." 2 Bl. Comm. 
 499; Dig. 28. 1. 1; Id. 29. 3. 2. L 
 
 TESTAMENTUM, 1. E., TESTATIO MEN- 
 tis, facta nullo praesente metu perlculi, sed 
 cogitatione mortalitatis. A testament, i. e., 
 the witnessing of one's intention, made un- 
 der no present fear of danger, but in ex- 
 pectancy of death. Co. Litt. 322. 
 
 TESTAMENTUM INOFFICIOSUM (Lat.) 
 In the civil law. An unoflicious testament. 
 
 TESTAMENTUM OMNE MORTE CON- 
 summatum. Every will is completed by 
 death. Co. Litt. 232. 
 
 TESTATE. The condition of one who ^ 
 leaves a valid will at his death. 
 
 TESTATION. Witness; evidence. 
 
 TESTATOR (Lat.) One who has made a 
 testament or will. 
 
 TESTATORIS ULTIMA VOLUNTAS EST 
 perimplenda secundum veram intentionem 
 suam. The last will of a testator is to be 
 fulfilled according to his real intention. Co. 
 Litt. 322. 
 
 TESTATRIX (Lat.) A woman who makes 
 a will or testament. 
 
 TESTATUM (Lat.) 
 
 In Practice. The name of a writ which 
 
 is issued by the court of one county to the 
 sheriff of another county in the same state, 
 when the defendant cannot be found in the 
 county where the coqrt is located; for exam- 
 ple, after a judgment has been obtained, and 
 a CO. sa. has been issued, which has been 
 returned non est inventus, a testatum, ca. sa. 
 may be issued to the sheriff of the county 
 where the defendant is. See Viner, Abr. 
 "Testatum," 259. 
 
 In Conveyancing. That part of a deed 
 
 which commences with the words "this in- 
 denture witnesseth." 
 
 TESTATUS (Lat.) In the civil law. Tes- 
 tate; one who has made a will. Testatus 
 et intestatus, testate and intestate. Dig. 
 
 50. 17. 7. 
 
 TESTE MEIPSO (Lat.) In old English law 
 and practice. A solemn formula of attesta- 
 tion by the sovereign, used at the conclusion 
 of charters, and other public instruments, 
 and also of original writs out of chancery. 
 Spelman. 
 
 TESTE OF A WRIT (Lat.) In practice. 
 The concluding clause, commencing with the 
 word "witness," etc. A signature in attesta- 
 tion of the fact that a writ is issued by au- 
 thority. 
 
 The act of congress of May 8, 1792 (1 
 Story, U. S. Laws, 227), directs that all writs 
 and process issuing from the supreme or a 
 circuit court shall bear teste of the chief 
 justice of the supreme court, or, if that 
 
TESTED 
 
 (907) 
 
 THANESHIP 
 
 - office be vacant, of the associate justice next 
 In precedence; and that all writs or process 
 Issuing from a district court shall bear teste 
 of the judge of such court, or, if the said 
 office be vacant, of the clerk thereof. See 
 Serg, Const. Law, Index; 20 Viner, Abr. 262; 
 Steph. PI. 25. 
 
 TESTED. Bearing teste. 
 TESTES (Lat.) Witnesses. 
 
 TESTES QUI POSTULAT DEBET DARE 
 eis sumptus competentes. Whosoever de- 
 mands witnesses must find them in compe- 
 tent provision. 
 
 TESTES, TRIAL PER. A trial had before 
 a judge without the intervention of a jury, 
 in which the judge is left to form in his 
 own breast his sentence upon the credit of 
 the witnesses examined; but this mode of 
 trial, although it was common in the civil 
 law, was seldom resorted to in the practice 
 of the common law, but it is now becoming 
 common when each party waives his right to 
 a trial by jury. Brown. See "Trial." 
 
 TESTIBUS DEPONENTIBUS IN PARI 
 numero dignioribus est credendum. When 
 the number of witnesses is equal on both 
 sides, the more worthy are to be believed. 
 4 Inst. 279. 
 
 TESTIFY. To give evidence according to 
 law; the examination of a witness who de- 
 clares his knowledge of facts. 
 
 TESTIIVI0N1AP0NDERANDASUNT,N0N 
 numeranda. Evidence is to be weighed, not 
 enumerated. 
 
 TESTIMONIAL. A certificate under the 
 hands of a justice of the peace testifying 
 the place and time when and where a sol- 
 dier or mariner landed, and the place of 
 his dwelling and birth, whither he is to 
 pass. Cowell; 3 Inst. 85. The document 
 holds a kind of doubtful position midway 
 between a certificate and a permit, or pass. 
 Brown. 
 
 TESTIMONIAL PROOF. In civil law. A 
 term used in the same sense as "parol evi- 
 dence" is used at common law, and in con- 
 tradistinction to "literal proof," which is 
 written evidence. 
 
 TESTIMONIES. In Spanish law. An at- 
 tested copy of an Instrument by a notary. 
 Newman & Barretti; Tex. Dig. 
 
 TESTIMONIUM CLAUSE. In conveyanc- 
 ing. That clause of a deed or instrument 
 with which it concludes: "In witness where- 
 of, the parties to these presents have here- 
 unto set their hands and seals." 
 
 TESTIMONY. The statement made by a 
 witness under oath or affirmation. 
 
 For distinction between "testimony" and 
 "evidence," see "Evidence." 
 
 TESTIS (Lat.) A witness. 
 
 TESTIS DE VISU PRAEPONDERAT ALI- 
 
 is. An eye witness outweighs others. 4 
 Inst. 470. 
 
 TESTIS LUPANARIS SUFFICIT AD FAC- 
 tum in lupanari. A lewd person is a sufficient 
 witness to an act committed in a brothel. 
 Moore, 817. 
 
 TESTIS NEMO IN SUA CAUSA ESSE 
 potest. No one can be a witness in his own 
 cause. Otherwise in England, by St. 14 & 
 15 Vict. 99, and many of the states of the 
 United States. 
 
 TESTIS OCULATUS UNUS PLUS VALET 
 quam aurltl decern. One eye witness is worth 
 ten ear witnesses. 4 Inst. 279. See 3 Bouv. 
 Inst, note 3154. 
 
 TESTMOIGNE. This is an old and bar- 
 barous French word, signifying, in the old 
 books, evidence. Comyn, Dig. 
 
 TESTMOIGNES NE POENT TESTIFIE 
 le negative, mes I'affirmatlve. Witnesses can- 
 not witness to a negative; they must wit- 
 ness to an affirmative. 4 Inst. 279. 
 
 TEXTUS ROFFENSIS (Law Lat.) In old 
 English law. The Rochester text. An an- 
 cient manuscript containing many of the 
 Saxon laws, and the rights, customs, tenures, 
 etc., of the church of Rochester, drawn up by 
 Ernulph, bishop of that see from A. D. 1114 
 to 1124. Cowell. Blount gives it a greater 
 antiquity. 
 
 THAINLAND, or THANELAND. In old 
 English law. The land which was granted 
 by the Saxon kings to their thalns or thanes 
 was so called. Crabb, Com. Law, 10. 
 
 THALER. A silver coin of Germany. The 
 composition and value of this piece formerly 
 varied considerably in different portions of 
 the country, — the value ranging from ninety- 
 five to one hundred and five cents. But the 
 convention of the German states in 1838 fix- 
 ed the weight of the thaler at 343'.8 grains 
 troy, and the fineness at 750 thousandths, 
 which is the only standard now in use. The 
 value, at this rate, is seventy-two cents. 
 The name (thaler) is supposed to have orig- 
 inated from the German word thai, a dale, 
 or valley, — the first thalers having been coin- 
 ed in the valley of Joachim, from which it 
 obtained the name of "Joachim's thaler." 
 From this coin the word "dollar," as applied 
 to Spanish and American coins, is derived. 
 
 THANE (Saxon //(f///V/", to serve). In Sax- 
 on law. A word which sometimes signifies 
 a nobleman; at others, a freeman, a magis- 
 trate, an officer, or minister. A tenant of 
 the part of the king's lands called the king's 
 "thaneage." Termes -de la Ley. 
 
 THANEAGE OF THE KING. In old Eng- 
 lish law. A certain part of the king's land 
 or property, of which the ruler or governor 
 was called "thane." Cowell; Blount. 
 
 THANESHIP. The office and dignity of a 
 thane; the seigniory of a thane. 
 
THAVIES INN 
 
 (908) 
 
 THINGS REAL, 
 
 THAVIES INN. An inn of chancery. See 
 "Inns of Chancery." 
 
 THEFT. A popular term for larceny, 
 adopted in lieu of the latter term by the 
 Penal Code of Texas. 
 
 In Scotch Law. The secret and feloni- 
 ous abstraction of the property of another 
 for sake of lucre, without his consent. Alls. 
 Grim. Law, 250. 
 
 THEFT BOTE. The act of receiving a 
 man's goods from the thief, after they had 
 been stolen by him, with the intent that he 
 shall escape punishment. 
 
 This is an offense punishable at common 
 law by fine and imprisonment. Hale, P. C. 
 130. See "Compounding a Felony." 
 
 THEFT BOTE EST EMENDA FURTI 
 capta, sine consideratione curiae domini re- 
 gis. Theft bote is the tiaying money to have 
 goods stolen returned, without having any 
 respect for the court of the king. 3 Inst. 134. 
 
 THELONIO IRRATIONABILl HABENDO. 
 
 A writ that formerly lay for him that had 
 any part of the king's demesne in fee farm, 
 to recover reasonable toll of the king's ten- 
 ants there, if his demesne had been accus- 
 tomed to be tolled. Reg. Grig. 87. 
 
 THELONIUiVI. An abolished writ for citi- 
 zens or burgesses to assert their right to ex- 
 emption from toll. Fitzh. Nat. Brev. 226. 
 
 THELUSSON ACT. An English statute 
 (39 & 40 Geo. III. c. 98), forbidding the 
 holding of property for the purpose of ac- 
 cumulation beyond a period of twenty-one 
 years from the death of the testator. It 
 was so called because its necessity and 
 passage were suggested by the curious will 
 of one Thelusson, who provided that his 
 estate should be accumulated until the 
 body of it should constitute the largest- es- 
 tate, as the testator designed, in the world. 
 
 THEM, or THEIVIE. The power or right of 
 having jurisdiction over villeins, their^ off- 
 spring, and cattle. 
 
 THEIVIMAGIUM. A duty or acknowledg- 
 ment paid by inferior tenants in respect of 
 theme. Cowell. 
 
 THEOCRACY. A species of government 
 which claims to be immediately directed by 
 God. 
 
 La religion, qui, dans I'antiquite, s'associa 
 souvent au despotisme, pour regner par son 
 'bras ou a son ombrage, a quelquefois tente cLe 
 regner seule. Vest ce gu'elle appelait le regne 
 de Dieu', la tJieocratie. Religion, which in 
 former times frequently associated itself with 
 despotism, to reign by its power or under its 
 shadow, has sometimes attempted to reign 
 alone; and this she has called the "reign of 
 God,"-^theooracy. Matter, de I'lnfluence des 
 Moeurs sur les Lois, et de I'lnfluence des 
 Lois sur les Moeurs, 189. 
 
 THEODOSIAN CODE. See "Code." 
 
 THEOF. In Saxon law. Offenders who 
 joined in a body of seven to commit depreda- 
 tions. Wharton. 
 
 THESAURUS, or THESAURIUM. The 
 
 treasury; a treasure. 
 
 THESAURUS ABSCONDITUS. 
 
 hidden, or buried. Spelman. 
 
 Treasure 
 
 THESAURUS COMPETIT DOIVIINO REGI, 
 et non domino liberatis, nisi sit per verba 
 special ia. A treasure belongs to the king, 
 and not to the lord of a liberty, unless it be 
 through special words. Fitz. Coron. 281. 
 
 THESAURUS INVENTUS. Treasure trove 
 (g. v.) 
 
 THESAURUS INVENTUS EST VETUS 
 dispositio pecuniae, etc., cujus non extat 
 Tnodo memoria, adeo ut jam dominum non 
 habeat. Treasure trove is an ancient hiding 
 of money, etc., of which no recollection ex- 
 ists, so that it now has no owner. 3 Inst. 132. 
 
 THESAURUS NON COIVIPETIT REGI, 
 nisi quando nemo scit qui abscondit thesau- 
 rum. Treasure does not belong to the king 
 unless no one knows who hid it. 3 Inst. 132. 
 
 THESAURUS REGIS EST VINCULUIVI 
 pacis et bellorum nervus. The Mng's treas- 
 ure is the bond of peace and the sinews of 
 war. Godb. 293. 
 
 THESIVIOTHETE. A law maker; a law 
 giver. 
 
 THIEF. One who has been guilty of lar- 
 ceny or theft. 
 
 THIEVES. The term "thieves" is broad 
 enough in law to cover both compound and 
 simple larceny, and, in common parlance, 
 to include the latter; and when used in a 
 policy of insurance upon the cargo of a 
 vessel, it is not restricted in its applica- 
 tion to external or" assailing thieves, as 
 pirates, rovers, etc., but covers a simple 
 larceny committed by a stranger to the ship. 
 1 Hill (N. Y.) 25, affirmed in 26 Wend. (N. 
 Y.) 563. And see 5 Paige (N. Y.) 285. 
 
 THINGS. By this word is understood every 
 object, except man, which may become an 
 active subject of right. Code du Canton de 
 Berne, art. 332. In this sense it is opposed, 
 in the language of the law, to the word "per- 
 sons." See "Property;" "Res." 
 
 THINGS IN ACTION. A chose in action. 
 Civ. Code Cal. § 953. See "Chose." 
 
 THINGS PERSONAL. Goods, money, and 
 all other movables which may attend the 
 Dwner's person wherever he thinks proper 
 to go. 2 Bl. Comm. 16. Things personal 
 consist of 'goods, money, and all other mov- 
 ables, and of such rights and profits as re- 
 late to movables. 1 Steph. Comm. 156. 
 
 THINGS REAL, or REALTY. Such things 
 as are permanent, fixed, and immovable, 
 which cannot be carried out of their place, 
 as lands and tenements. 2 Bl. Comm. 16. 
 
THINGUS 
 
 (909) 
 
 THREAT 
 
 This definition has been objected to, as not 
 embracing incorporeal rights. Mr. Stephen 
 defines things real to "consist of things 
 substantial and immovable, and of the 
 rights and profits annexed to or issuing out 
 of these." 1 Steph. Comm. 156. Things 
 real are otherwise described to consist of 
 'lands, tenements, and hereditaments. See 
 "Real." 
 
 THINGUS. A thane or nobleman; knight 
 or freeman. Cowell. 
 
 THIRD BOROW. In old English law. A 
 constable. Lambard, Duty of Const. 6; 28 
 Hen. VIII. c. 10. 
 
 THIRD-NIGHT-AWN-HINDE. By the laws 
 of St. Edward the Confessor, if any man lay 
 a third night in an inn, he was called a 
 "third-night-awn-hinde," and his host was 
 answerable for him if he committed any of- 
 fense. The first night, forman-night, or 
 uncuth (unknown), he was reckoned a stran- 
 ger; the second night, twa-night, a guest; 
 and the third night, an awn-hinde, a do- 
 mestic. Bracton, lib. 3. 
 
 THIRD PARTIES. A term used to include 
 all persons who are not parties to the con- 
 tract, agreement, or instrument of writing 
 by which their interest in the thing con- 
 veyed is sought to be affected. 1 Mart. (La.; 
 N. S.) 384. See, also, 2 La. 425; 6 Mart. 
 (La.) 528. 
 
 But it is difBcult to give a very definite 
 idea of "third persons;" for sometimes 
 those who are not parties to the contract, 
 but who represent the rights of the original 
 parties, as executors, are not to be consid- 
 ered third persons. See 1 Bouv. Inst, note 
 1335 et seq. 
 
 THIRD PENNY. In old English law. Of 
 the fines and other profits of the county 
 courts (originally, when those courts had 
 superior jurisdiction, before other courts 
 were created) two parts were reserved to 
 the king, and a third part, or penny, to the 
 earl of the county. See "Denarius Tertius 
 Comitatus;" Kennett, Par. Ant. 418;. Cowell. 
 
 THIRDINGS. The third part of the corn 
 growing on the land, due to the lord for 
 a heriot on the death of his tenant, within 
 the manor of Turfat, in Hereford. Blount. 
 
 THIRDS. Occurring in a will, construed 
 to mean the same thing as dower. 2 Keyes 
 (N. Y.) 558; 2 Abb. Pr. (N. S.; N. Y.) 418, 
 afiirming 46 Barb. (N. Y.) 609. 
 
 THIRLAGE. In Scotch law. A servitude 
 by which lands are astricted or thirled to a 
 particular mill, and the possessors bound to 
 grind their grain there, for the payment of 
 certain multures and sequels as the agreed 
 price of grinding. Ersk. Inst. 2. 9. 18. 
 
 THIS DAY SIX MONTHS (or THREE 
 
 months). Fixing "this day six months or 
 three months" for the next stage of a bill 
 is one of the modes in which the house of 
 lords and the house of commons reject 
 
 bills of which they disapprove. A bill re- 
 jected in this manner cannot be reintro- 
 duced in the same session. 
 
 THISTLE TAKE. It was a custom with- 
 in the manor of Halton, in Chester, that if, 
 in driving beasts over a common, the driver 
 permit them to graze or take but a thistle, 
 he shall pay a halfpenny apiece to the lord 
 of the fee. And at Fiskerton, in Notting- 
 hamshire, by ancient custom, if a native 
 or a cottager killed a swine above a year 
 old, he -paid to the lord a penny, which pur- 
 chase of leave to kill a hog was also called 
 "thistle take." Cowell. 
 
 THOROUGHFARE. A street or way open- 
 ing at both ends into another street or public 
 highway, so that one can go through and get 
 out of it without returning. It dififers from 
 a cul de sac, which is open only at one end. 
 
 Whether a street which is not a thorough- 
 fare is a highway seems not fully settled. 
 1 Vent. 189; 1 Hawk. P. C. c. 76, § 1. In a 
 case tried in 1790, where the locus in quo 
 had been used as a common street for fifty 
 years, but was no thoroughfare. Lord Ken- 
 yon held that it would make no difference; 
 for otherwise the street would be a trap to 
 make people trespassers. 11 East, 375. This 
 decision in several subsequent cases was 
 much criticised, though not directly over- 
 ruled. 5 Taunt.#126; 5 Barn. & Aid. 456; 
 3 Bing. 447; 1 Campb. 260; 4 Adol. & E. 698. 
 But in a recent English case, the decision 
 of Lord Kenyon was affirmed by the unani- 
 mous opinion of the court of queen's bench. 
 The doctrine established in the latter case 
 is that it is a question for the jury, on the 
 evidence, whether a place which is not a 
 thoroughfare is a highway or not. 14 Bng. 
 Law & Eq. 69. And see 28 Eng. Law & Eq. 
 30. In the United States there are but few 
 cases in which this question has been dis- 
 cussed; though in Rhode Island it has been 
 determined that a street terminating upon 
 private land, and extending neither to an- 
 other way, a mill, a market, nor other pub- 
 lic place, is incapable of dedication to the 
 public as a highway. 2 R. I. 172. And a 
 similar decision has been made in New 
 York. 23 N. Y. 103. And see 23 N. H. 331; 7 
 Johns. (N. Y.) 106. 
 
 THOUGHT. The operation of the mind. 
 No one can be punished for his mere 
 thoughts, however wicked they may be. 
 Human laws cannot reach them, — first, be- 
 cause they are unknown; and secondly, un- 
 less made manifest by some action, they are 
 not injurious to any one; but when they 
 manifest themselves, then the act which is 
 the consequence may be punished. Dig. 50. 
 16. 225. 
 
 THREAD. Aflgurative expression used to 
 signify the central line of a stream or water- 
 course. Harg. Law Tr. 5; 4 Mason (U, S.) 
 397; Holt. 490. See "Fllum Aquae." 
 
 THREAT. A menace of destruction or in- 
 jury to the lives, character, or property of 
 those against whom it is made. 
 
 Threats in themselves are not indictable 
 
THEEN&ES 
 
 (910) 
 
 TIMBERLODE 
 
 or actionable, but If a threat Is accompa- ' 
 Hied by appearance of present ability and in- 
 tention to carry out the threat, it is an as- 
 sault (1 Ired. [N. C] 125) ; and, if made 
 with the purpose of extorting money, it is 
 a misdemeanor at common law (1 Hawk. [P. 
 C] c. 53, § 1). If business is interrupted, 
 or freedom of locomotion is restrained, it is 
 actionable. 27, Mich. 267. I 
 
 THRENGES. Vassals, but not of the low- 
 ■est degree; those who held lands of the chief 
 lord. I 
 
 THRITHING. A division consisting of j 
 three or four hundreds. 
 
 THUDE WEALD. A woodward, or person 
 that looks after a wood. 
 
 THURINGIAN CODE. One of the "bar- 
 Ijarian codes," as they are termed; supposed 
 by Montesquieu to have been given by 
 Theodoric, king of Austrasia, to the Thurin- 
 .glans, who were his subjects. Esprit des 
 Lois, lib. 28, c. 1. 
 
 THWERTNICK. The custom of giving en- 
 tertainments to a sheriff, etc., for three 
 nights. 
 
 TICKETS OF LEAVE. In English crimi- 
 nal law, licenses to be ar large, which are 
 granted to convicts for good conduct, but 
 .are recallable upon subsequent misconduct. 
 See 6 & 7 Vict. c. 7; 16 & 17 Vict. c. 99, § 
 9; 20 & 21 Vict. c. 3, § 5; 27 & 28 Vict. c. 47, 
 §§ 4-10; 34 & 35 Vict. c. 112; 4 Steph. Comm. 
 (7th Ed.) 451, note. 
 
 TIDE. The ebb and flow of the sea. 
 
 The law takes notice of three kinds of 
 tides, viz., the high spring tides, which are 
 the fluxes of the sea at those tides which 
 happen at the two equinoctials; the spring 
 tides, which happen twice, every month, at 
 the full and change of the moon; the neap 
 or ordinary tides, which happen between the 
 full and change of the moon, twice in twenty- 
 four hours. Angell, Tide Waters, 68. The 
 •changeable condition of the tides produces, 
 of course, corresponding changes in the line 
 •of high-water mark. Now, inasmuch as the 
 soil of all tidal waters up to the limit of high- 
 water mark, at common law, is in the crown, 
 or, in this country, in the state, it Is im- 
 portant to ascertain what is high-water mark, 
 in legal contemplation, considered as the 
 boundary of the royal or public ownership. 
 In a recent English case this ownership has 
 Tjeen held to be limited by the average of the 
 medium high tides between the spring and 
 the neap in each quarter of a lunar revolu- 
 tion during the year, excludijig only extraor- 
 dinary catastrophes or overflows. 4 De Gex, 
 M. & G. 206; 3 Barn. & Aid. 967; 5 Barn. & 
 Aid. 268; 2 Doug. 629; 7 Pet. (U. S.) 324; 1 
 Pick. (Mass.) 180; 2 Johns. (N. Y.) 357. See 
 ""River." 
 
 TIDE WATER. Water which flows and 
 Teflows with the tide. All arms of the sea, 
 ibays, creeks, coves, or rivers, in which the 
 
 tide ebbs and flows, are properly denominat- 
 ed "tide waters." 
 
 The term "tide water" is not limited to 
 water which is salt, but embraces, also, so 
 much of the water of fresh rivers as is pro- 
 pelled backwards by the ingress and pressure 
 of the tide. 5 Coke, 107; 2 Doug. 441; 6 
 Clark & F. 628; 7 Pet. (U. S.) 324. The 
 supreme court of the United States has de- 
 cided that, although the current of the river 
 Mississippi at New Orleans may be sti strong 
 as not to be turned backwards by the tide, 
 yet if the effect of the tide upon the current 
 is so great as to occasion a regular rise and 
 faJ of the water, it might properly be said 
 to be within the 'ebb and flow of the tide. 
 7 Pet. (U. S.) 324. The flowing, however, of 
 the waters of a lake into a river, and their 
 reflowing, being caused by the occasional 
 swell and subsidence of the lake, and not by 
 the ebb and flow of regular tides, do not con- 
 stitute such a river a tidal, or, technically, 
 navigable, river. 20 Johns. (N. Y.) 98. And 
 see 17 Johns. (N. Y.) 195; 2 Conn. 481; 
 Woolr. Waters, c. ii.; Angell, Tide Waters, c. 
 ill. 
 
 TIDESMAN. In English law, a tidewaiter 
 or custom-house otflcer, who watches on 
 board of merchant ships till the duty on 
 goods be paid, and the ships unladen. 
 
 TIEL. An old manner of spelling tel; such 
 as, nul tiel record, no such record. 
 
 TIEMPO INHABIL (Spanish). In Louisi- 
 ana. A time when a man is not able to pay 
 his debts. 
 
 A man cannot dispose of his property, at 
 such a time, to the prejudice of his creditors. 
 4 Mart. (La.; N. S.) 292; 3 Mart. (La.) 270; 
 10 Mart. ("La.) 70. 
 
 TIERCE (Law Pr.; from Lat. tertim). 
 Third. Tierce mien, third hand. Britt. c. 
 120. 
 
 TIGNI IMMITTENDI (Lat.) In civil law. 
 A servitude which confers the right of in- 
 serting a beam or timber from the wall of 
 one house into that of a neighboring house, 
 in order that it may rest on the latter, and 
 that the wall of the latter may bear this 
 weight. Dig. 8. 2. 36; Dig. 8. 5. 14. 
 
 TIGNUM. In the civil law, any material 
 for building. 
 
 TIHLER. In old Saxon law, an accusa- 
 tion. 
 
 TIMBER TREES. Oak, ash, elm, and such 
 other trees as are commonly used for build- 
 ing. 2 Bl. Comm. 28. But it has been con- 
 tended, arguendo, that to make it timber, the 
 trees must be felled and severed from the 
 stock. 6 Mod. 23; Starkie,' Slander, 79; 12 
 Johns. (N. Y.) 239. See "Waste." 
 
 TIMBERLODE. A service by which ten- 
 ants were bound to carry timber felled from 
 the woods to the lord's house. Cowell. 
 
TIME IMMEMORIAL 
 
 (911) 
 
 TITLE 
 
 TIME IMMEMORIAL. Time out of mind. 
 
 In England this is said to be before the 
 beginning of the reign of Richard I. 2 Bl. 
 Comm. 31. 
 
 TIME OUT OF MEMORY. See "Time Im- 
 memorial." 
 
 TIMORES VANI SUNT AESTIMANDI 
 qui non cadunt In constantem virum. Pears 
 which do not affect a brave man are vain. 7 
 Coke, 17. 
 
 TINBOUNDING. A custom regulating the 
 manner in which tin is obtained from waste 
 land, or land which has formerly been waste 
 land, within certain districts in Cornwall 
 and Devon. Bain. M. & M. 146 et seq. 
 The custom is described in the leading case 
 on the subject as follows: "Any person 
 may enter on the waste land of another, and 
 may mark out by four corner boundaries a 
 certain area; a written description of tie 
 plot of land so marked out with metes and 
 bounds, and the name of the person, is re- 
 ■corded in the local Stannaries court, and 
 is proclaimed on three successive court 
 days. If no objection is sustained by any 
 other person, the court awards a writ to 
 the bailiff to deliver possession of the said 
 ■"bounds of tinwork' to the 'bounder,' who 
 thereupon has the exclusive right to search 
 for, dig, and take for his own use all tin 
 and tin ore within the enclosed limits, pay- 
 ing as a royalty to the owner of the waste 
 a certain proportion of the produce under 
 the name of 'toll tin.' " 10 Q. B. 26, cited in 
 Elt. Comm. 113. The right of tinbounding 
 is not a right of common (see "Common"), 
 but is an interest in land, and, in Devon- 
 shire, a corporeal hereditament (Elt. Comm. 
 114). In Cornwall, tin bounds are personal 
 estate. Bain. M. & M. 150. See "Stannary 
 Courts." 
 
 TINEL LE ROY. The Idng's hall, wherein 
 iis servants used to dine and sup. 13 Rich. 
 II. St. 1, c. 3. 
 
 TINEMAN, or TIENMAN. A petty officer 
 in the forest, who had the care of vert and 
 venison at night, and other servile duties. 
 Oowell. 
 
 TINEWALD. The ancient parliament or 
 annual convention of the people in the Isle 
 ■of Man. 
 
 TINKERMEN. Fishermen who destroyed 
 the young fry on the river Thames, by nets 
 and unlawful engines. Cowell. 
 
 TINSEL OF THE FEU. The loss of an 
 ■estate held in feu in Scotland, from allow- 
 ing two years' feu duty to remain unpaid. 
 Bell, Diet. 
 
 TIPPLING HOUSE. A place where spirit- 
 Tious liquors are sold and drunk in violation 
 •of law. Sometimes the mere selling is con- 
 sidered as evidence of keeping a tippling 
 "house. 
 
 TIPSTAFF. An officer appointed by the 
 marshal of the court of king's bench to at- 
 
 tend upon the judges with a kind of rod or 
 staff tipped with silver. 
 
 In the United States, the courts sometimes 
 appoint an officer who is known by this 
 name, whose duty it is to wait on the court 
 and serve its process. 
 
 TITHES. In English law. A right to the 
 tenth part of the produce of lands, the stocks 
 upon lands, and the personal industry of 
 the inhabitants. These tithes are raised for 
 the support of the clergy. 
 
 TITHING. In English law. Formerly, a 
 district containing ten men, with their fami- 
 lies. In each tithing there was a tithing- 
 man, whose duty it was to keep the peace, 
 as a constable now is bound to do. St. Ar- 
 mand, in his Historical Essay on the Legis- 
 lative Power of England (page 70), express- 
 es an opinion that the tithing was composed 
 not of ten common families, but of ten fam- 
 ilies of lords of a manor. 
 
 TITHINGMAN. In Saxon law. The head 
 or chief of a decennary of ten families. He 
 was to decide all lesser causes between 
 neighbors. Now tithingmen and constables 
 are the same thing. Jacob. 
 
 In New England, a parish officer to keep 
 good order in church. Webster. 
 
 TITIUS. A Roman name commonly used 
 in the civil law in illustrating rules of ex- 
 ample, or to designate a fictitious person, 
 like the John Doe of English law. 
 
 TITLE. The means whereby the owner of 
 lands' hath the just possession of his prop- 
 erty. Co. Litt. 345; 2 Bl. Comm. 195. See 
 1 Ohio, 349. This is the definition of title 
 to lands only. 
 
 (1) A bad title is one which conveys no 
 property to the purchaser of an estate. 
 
 (2) A doubtful title is one which the 
 court does not consider to "be so clear that 
 it will enforce its acceptance by a purchaser, 
 nor so defective as to declare it a bad title, 
 but only subject to so much doubt that a 
 purchaser ought not to be compelled to ac- 
 cept it. 1 Jac. & W. 568; 9 Cow. (N. Y.) 
 344. 
 
 (3) A good title is that which entitles a 
 man by right to a property or estate, and 
 to the lawful possession of the same. 
 
 (4) A marketable title is one which a 
 court of equity considers to be so clear that 
 it will enforce its acceptance by a purchaser. 
 
 The doctrine of marketable titles is purely 
 equitable and of modern origin. Atkins, Ti- 
 tles, 26. At law every title not bad is mar- 
 ketable. 5 Taunt. 625 ; 6 Taunt. 263; 1 
 Marsh. 258. See 2 Pa.' Law J. 17. 
 
 There are several stages or degrees requi- 
 site to form a complete title to lands and 
 tenements. The lowest and most imperfect 
 degree of title is the mere .possession, or ac- 
 tual occupation of the estate, without any 
 apparent right to hold or continue such pos- 
 peSBion. This happens when one man dis- 
 seises another. The next step to a good and 
 perfect title is the right of possession, which 
 may reside in one man while the actual 
 possession is not in himself, but in another. 
 
TITLE, COVENANTS FOR (912) 
 
 TOKEN 
 
 This right of possession is of two sorts, — an 
 apparent right of possession, which may be 
 .defeated by proving a better, and an actual 
 right of possession, which will stand the test 
 against all opponents. The mere right of 
 property, the jus proprietatis, without either 
 possession or the right of possession. 2 Bl. 
 Comm. 195. 
 
 Title to real estate Is acquired by descent, 
 by purchase, and by adverse possession. 
 
 Title to personal property may accrue in 
 three different ways, — by original acquisi- 
 tion, by transfer by act of law, by transfer 
 by act of the parties. 
 
 Title by original acquisition is acquired 
 by occupancy (see "Occupancy") ;. by acces- 
 sion (see "Accession"); by intellectual la- 
 bor (see "Literary Property"). 
 
 The title to personal property is acquired 
 and lost by transfer by act of law, in various 
 ways, — by forfeiture, succession, marriage, 
 judgment, insolvency, intestacy (g. v.) 
 
 Title is acquired and lost by transfer by 
 the act of the party, by gift, by contract or 
 sale. 
 
 In Legislation. That part of an act of 
 
 the legislature by which it is known and dis- 
 tinguished from other acts; the name of the 
 act. 
 
 In Literature. The particular division 
 
 of a subject, as a law, a book, and the like; 
 for example. Digest, book 1, title 2. The 
 name of a newspaper, book, etc. 
 
 Personal Relations. A distinctive ap- 
 pellation denoting the rank to which the in- 
 dividual belongs in society. 
 
 The constitution of the United States for- 
 bids the grant by the United States or any 
 state of any title of nobility. Titles are be- 
 stowed by courtesy on certain officers. The 
 president of the United States sometimes re- 
 ceives the title of "Excellency;" judges and 
 members of congress, that of "Honorable;" 
 and m-embers of the bar and justices of the 
 peace are called "Esquires." Cooper, Just. 
 Inst. 416; Brackenridge, Law Misc. 
 
 Titles are assumed by foreign princes, and 
 among their subjects they may exact these 
 marks of honor; but in their intercourse 
 with foreign nations they are not entitled to 
 them as a matter of right. Wheaton, Int. 
 Law, pt. 2, c. 3, § 6. 
 
 In Pleading. The right of action which 
 
 the plaintiff has. The declaration must show 
 the plaintiff's title, and if such title be not 
 shown in that instrument, the defect cannot 
 be cured by any of the future pleadings. 
 Bac. Abr. "Pleas, etc." (B 1). 
 
 In Practice. That part of a pleading 
 
 or other paper in a cause that states the 
 names of the parties plaintiff and defendant 
 thereto. 
 
 TITLE, COVENANTS FOR. They com- 
 prise "covenants for seisin, for right to con- 
 vey, against incumbrances, for quiet enjoy- 
 mert. sometimes for further assurance, and 
 almost always of warranty." Rawle, Cov. 
 § 21. 
 
 TITL^ DEEDS. Those deeds which are 
 evidences of the title of the owner of an es- 
 tate. 
 
 The person who is entitled to the inher- 
 
 itance has a right to the possession of the 
 title deeds. 1 Car. & M. 653. 
 
 TITULADA. InSpanishlaw. Title. White, 
 New Recop. bk. 1, tit. 5, c. 3,, § 2. 
 
 TITULARS OF ERECTION. See "Lords 
 of Erection. 
 
 TITULUS (Lat.) 
 
 In the Civil Law. Title; the source or 
 
 ground of possession; the means whereby 
 possession of a thing is acquired, whether 
 such possession be lawful or not. 
 
 In Old Ecclesiastical Law. A temple 
 
 or church; the material edifice. So called 
 because the priest in charge of it derived 
 therefrom his name and title. Spelman. 
 
 TITULUS EST JUSTA CAUSA POSSI- 
 dendi id quod nostrum est. Title is a just 
 cause of possessing that which is ours. 8 
 Coke, 153 (305); Co. Lift. 345b. 
 
 TITULUS EST JUSTA CAUSA POSSI- 
 dendi id quod nostrum est; dicitur a tuen- 
 
 do. A title is the just right of possessing 
 that which is our own; it is so called from 
 "tuendo," defending. 8 Coke, 153. 
 
 TO HAVE AND TO HOLD. The words in 
 a conveyance which show the estate in- 
 tended to be conveyed. Thus, in a convey- 
 ance of land in fee simple, the grant is to 
 "A. and his heirs, to have and to hold the 
 said [land] unto and to the use of the said 
 A., his heirs and assigns, forever." See "Wil- 
 liams, Real Prop. 198. 
 
 Strictly speaking, however, the words 
 "to have" denote the estate to be taken, 
 while the words "to hold" signify that it 
 is to be held of some superior lord, i. e., by 
 way of tenure (g. v.) The former clause 
 is called the "habendum," the latter, the 
 "tenendum." Co. Lift. 6a. 
 
 TO WIT. That is to say; namely; scilicet; 
 videlicet. 
 
 TOALIA. A towel. There is a tenure of 
 lands by the service of waiting with a towel 
 at the king's coronation. Cowell. 
 
 TOFT. A plaCe or piece of ground on which 
 a house formerly stood, which has been de- 
 stroyed by accident or decay. It also signi- 
 fies a messuage. 
 
 TOGATI (Lat.) In Roman law. Under the 
 empire, when the toga had ceased to be the 
 usual costume of the Romans, advocates were 
 nevertheless obliged to wear it whenever 
 they pleaded a cause. Hence they were call- 
 ed togati. This denomination received an 
 official or legal sense in the imperial consti- 
 tutions of the fifth and sixth centuries; and 
 the words togati, consortium (corpus, ordo, 
 collegium) togatorum, frequently occur in 
 those acts. 
 
 TOKEN. A document or sign of the exist- 
 ence of a fact. . 
 
 Tokens are either public or general, or 
 privy tokens. They are either true or false. 
 When a token is false, and indicates a gen- 
 eral intent to defraud, and is used for that 
 
TOLERATION 
 
 (913) 
 
 TOLSESTER 
 
 purpose, it will render the offender guilty of 
 the crime of cheating (12 Johns. [N. Y.] 
 292) ; but if it is a mere privy token, as, 
 counterfeiting a letter in another man's 
 name, in order to cheat but one individual, 
 it would not be indictable (9 Wend. [N. Y.] 
 182; 1 Dall. [Pa.] 47; 2 Const. [S. C] 139; 
 2 Va. Cas. 65; 4 Hawks [N. C] 348; 6 Mass. 
 72; 12 Johns. [N. Y.] 293; 2 Dev. [N. C] 
 199; 1 Rich. [S. C] 244). 
 
 In Common Law. In England, this 
 
 name is given to pieces of metal, made in 
 the shape of money, passing among private 
 persons by consent at a certain value. 2 
 Chit. Com. Law, 182. 
 
 TOLERATION (Lat.) In some countries, 
 where religion is established by law, certain 
 sects who do not agree with the established 
 religion are nevertheless permitted to exist; 
 and this permission is called "toleration." 
 They are permitted and allowed to remain 
 rather as a matter of favor than a matter of 
 right. 
 
 In the United States there is no such 
 thing as toleration; all men have an equal 
 right to worship God according to the dic- 
 tates of their consciences. 
 
 "We sometimes hear it said that all re- 
 ligions are tolerated in Ohio, but the ex- 
 pression is not strictly accurate. It is not 
 by mere toleration that every individual here 
 is protected in his belief or disbelief. He 
 reposes not on the leniency of government, 
 or the liberality of any class or sect of men, 
 but upon his natural indefeasible rights of 
 conscience, which are beyond the control or 
 interference of any human authority." 2 
 Ohio St. 392. 
 
 TOLERATION ACT. St. 1 Wm. & Mary, 
 St. 1, c. 18, confirmed by 10 Anne, c. 2, by 
 which all persons dissenting from the 
 Church of England (except Papists and per- 
 sons denying the Trinity) were relieved 
 from such of the acts against Nonconform- 
 ists as prevented their assembling for reli- 
 gious worship according to their own forms, 
 or otherwise restrained their religious lib- 
 erty, on condition of their taking the oaths 
 of allegiance and supremacy, and subscrib- 
 ing a declaration agaiast transubstantia- 
 tion; and in the case of dissenting min- 
 isters, subscribing also to certain of the 
 Thirty-nine Articles. The clause of this 
 act which excepted persons denying the 
 Trinity from the benefits of its enactments 
 was repealed by 5? Geo. III.-c. 160. 4 Broom 
 & H. Comm. 67. 
 
 TOLL. A sum of money for the use of 
 something, generally applied to the consid- 
 eration wLiich is paid for the use of a road, 
 bridge, or the like, of a public nature. 
 
 The compensation paid to a miller for 
 grinding another person's grain. 
 
 The rate of taking toll for grinding is reg- 
 ulated by statute in most of the states. See 
 2 Washb. Real Prop.; 6 Q. B. 31. 
 
 A Saxon word originally signifying a 
 payment in towns, markets, or fairs for 
 goods and cattle bought and sold there. It 
 is now also popularly applied to the charges 
 whichf canal and railroad companies require 
 
 for the transportation of goods; but it does 
 not necessarily Import an immediate pay- 
 ment. The word means nothing more than 
 a compensation for the privilege or service 
 granted; and the period of payment de- 
 pends, as in other cases, on the understand- 
 ing of the parties. 
 
 Various definitions of the term collected, 
 and the nature of tolls, considered. 29 Barb. 
 (N. Y.) 589; 3 Abb. Ct. App. Dec. (N. Y.) 1 
 Keyes (N. Y.) 72. 
 
 ■To bar, defeat, or take away; as, to toll 
 an entry into lands is to deny or take away 
 the right of entry. To toll the statute of 
 limitations is to interrupt its running. 
 
 TOLL BOOTH. A prison; a custom house; 
 an exchange; also the place where goods are 
 weighed. 
 
 TOLL DISH. A vessel by which the toll 
 of corn for grinding is measured. 
 
 TOLL THOROUGH. In English law. Atoll 
 for passing through a public highway, or 
 over a ferry or bridge. Cowell. 
 
 TOLL. TRAVERSE. In English law. A 
 toll for passing over private grounds. Cow- 
 ell. 
 
 TOLL TURN. In English law. A toll on 
 beasts returning from a market. 1 Crabb, 
 Real Prop. p. 101, § 102. A toll paid at the 
 return of beasts from fair or market, though 
 they were not sold. Cowell. 
 
 TOLLS. In a general sense, tolls signify 
 any manner of customs, subsidy, prestation, 
 imposition, or sum of money demanded for 
 exporting or importing of any wares or mer- 
 chandise, to be taken of the buyer. 2 Inst. 
 58. 
 
 TOLLAGE. Payment of toll ; money charg- 
 ed or paid as toll; the liberty or franchise 
 of charging toll. 
 
 TOLLE VOLUNTATEM ET ERIT OMNIS 
 actus indlfferens. Take away the will, and 
 every action will be indifferent. Bracton, 
 tol. 2. 
 
 TOLLER, or TOLER (Law Pr. from Lat. 
 tollere, q. v.) To take away; to bar or de-' 
 feat. Disoents que tollent entries, descents 
 which toll or bar entries. Litt. § 385. 
 
 TOLLERE (Lat.) In the civil law. To 
 lift up or raise; to elevate; to build up. 
 See "Servitus Altius non Tollendi." 
 
 To take away; to dissolve or destroy. 
 Tollitur omnis obligatio solutione ejus quod 
 debet ur, every obligation is dissolved by 
 the payment of that which is due. Inst. 3. 
 30, pr. See Fleta, lib. 2, c. 60, § 5. 
 
 To put an end to an action. Calv. Lex. 
 To quash, or annul a judgment. Id.; Spie- 
 gelius. 
 
 To bring up, or educate. Calv. Lex.; Ad- 
 ams, Rom. Ant. 51. 
 
 TOLSESTER. An old excise; a duty paid 
 by tenants of some manors to the lord foi 
 liberty to brew and sell ale. Cowell. 
 
TOLSEY . 
 
 (914) 
 
 TORT 
 
 TOLSEY. The same as toll booth (g. v.') 
 Also, a place where merchants meet; a lo- 
 cal tribunal for small civil causes held at 
 the Guildhall, Bristol. 
 
 TOUT. A writ whereby a cause depending 
 in a court baron was taken and removed in- 
 to a county court. Old Nat. Brev. 4. 
 
 TOLTA. Wrong; rapine; extortion. Cow- 
 ell. 
 
 TONNAGE. The capacity of a ship or ves- 
 sel; the duties paid on the tonnage of a ship. 
 
 This term- is most usually applied to the 
 capacity of a vessel in tons, as determined 
 by the legal mode of measurement; and, as 
 a general rule, in the United States, the of- 
 ficial tonnage of a vessel is considerably be- 
 low the actual capacity of the vessel to carry 
 freight. 
 
 For the rule for determining the tonnage 
 of British vessels under the law of England, 
 see McCulloch, "Tonnage;" Bng. March. 
 Shipp. Act 1854, §§ 20-29. 
 
 In the United States it is provided that the 
 tonnage of a vessel shall be her entire in- 
 ternal cubic capacity in tons of one hundred 
 cubic feet each, to be ascertained in the 
 manner prescribed by the statute. Rev. St. 
 U. S. § 4153. 
 
 TONNAGE RENT. When the rent reserv- 
 ed by a mining lease or the like consists of 
 a royalty on every ton of minerals gotten in 
 the mine, it is often called a "tonnage rent." 
 There is generally a dead rent in addition. 
 See "Rent." 
 
 TONNAGIUM (Law Lat.) In old English 
 law. A custom or impost upon wines and i 
 other merchandise exported or imported, 
 according to a certain rate per ton. Spel- 
 man; Cowell. 
 
 TO N N ET I G H T. In old English law. The 
 quantity of a ton or tun, in a ship's freight 
 or bulk, for which tonnage or tunnage was 
 paid to the king. Pat. 2 Rich. II.; Cowell. 
 
 TONODERACH. In old Scotch law. A 
 thief taker {qui fures exquirit). LL. Ken. 
 Reg. § 5; Spelman. 
 
 TONSURA (Lat. Irom tondere, to shave 
 or clip). In old English law. A shaving 
 or polling; the having the crown of the head 
 shaven; tonsure. One of the peculiar 
 badges of a clerk or clergyman. Haiitus et 
 tonsura clericalis, the clerical habit and 
 tonsure without which no man originally 
 could be admitted to the privilege of clergy. 
 2 Hale, P. C. 372; 4 BI. Comm. 366; Nov. 5, 
 c. 2. 
 
 TONTINE. In French law. The name of 
 a partnership composed of creditors or re- 
 cipients of perpetual or life rents or annui- 
 ties, formed on the condition that the rents 
 of those who may die shall accrue to the sur- 
 vivors, either in whole or in part. 
 
 This kind of partnership took its name 
 from Tonti, an Italian, who first conceived 
 the idea and put it in practice. Merlin, Re- 
 pert; Dalloz; 5 Watts (Pa.) 351. 
 
 TONTINE INSURANCE. A system of life 
 insurance whereby the surplus funds of the 
 insurer are accumulated during a period 
 called the "tontine period," and then distrib- 
 uted to such of the policy holders as then 
 survive. See 38 Hun (N. Y.) 309. 
 
 TOOK AND CARRIED AWAY. In crim- 
 inal pleading. Technical words necessary in 
 an indictment for simple larceny. Bac. Abr. 
 "Indictment" (G 1); Comyn, Dig. "Indict- 
 ment" (G 6); Cro. Car. 37; 1 Chit. Crim. 
 Law, 244. See "Asportation." 
 
 TOOLS. Those implements which are com- 
 monly used by "the hand of one man in some 
 manual labor necessary for his subsistence. 
 It has been held to include also the imple- 
 ments of a professional man. 17 Mich. 342. 
 
 The apparatus of a printing office, such as 
 types, presses, etc., are not, therefore, in- 
 cluded under the term "tools." 13 Mass. 82; 
 10 Pick. (Mass.) 423; 3 Vt. 133. And see 2 
 Pick. (Mass.) 80; 5 Mass. 313. 
 
 TORT (Fr. fori; from Lat. iorgMere.to twist, 
 foritts, twisted, wrested aside). A private or 
 civil wrong or injury; a wrong independent 
 of contract. 1 Hilliard, Torts, 1. 
 
 The commission or omission of an act by 
 one without right, whereby another receives 
 some injury, directly or indirectly, in person, 
 property, or reputation. 
 
 "The word 'tort' means nearly the same 
 thing as the expression 'civil wrong." It de- 
 notes an injury inflicted otherwise than by 
 mere breach of contract; or, to be more nice- 
 ly accurate, a tort is a disturbance of an- 
 other in rights which the law has created, 
 either in the absence of contract, or in con- 
 sequence of a relation which a contract had 
 established between the parties." Bish. Non- 
 Cont. Law, § 4. 
 
 (1) Distinguished from contract. As rec- 
 ognized by the law for the enforcement of 
 rights and redress of injuries, torts may be 
 distinguished from contracts by these quali- 
 ties: That parties jointly committing torts 
 are severally liable without right to contri- 
 bution from each other; that the death of 
 either party destroys the right of action; 
 that persons under personal disabilities to 
 contract are liable for their torts; that at- 
 tachment, arrest, and imprisonment are al- 
 lowed on claims arising under contracts. 1 
 Hilliard, Torts, 3. A tort, howev,er, mav. 
 grow out of. or make part of, or be coinci- 
 dent with, a contract; as In the familiar 
 case of a fraudulent sale or fraudulent rec- 
 ommendation of a third person. Indeed, the 
 wrong of fraud almost necessarily implies 
 an accompanying contract. In these cases, 
 the law often allows the party injured an 
 election of remedies; that is, he may pro- 
 ceed against the other party either as a 
 debtor or contractor, or as a wrongdoer. 10 
 Hilliard, Torts, 28; 10 C. B. 83; 24 Conn. 
 392. 
 
 (2) Distinguished from crime. The dis- 
 tinction of public wrongs from private 
 crimes, and misdemeanors from civil inju- 
 ries, seems principally to consist in this, that 
 private wrongs or civil injuries' are an in- 
 fringement or privation of the civil rights 
 
TOJRTFJJASOR 
 
 (915), 
 
 TOURN 
 
 ■which belong to individuals merely as indi- 
 yiduals. "Public wrongs or crimes and mis- 
 demeanors are a breach and violation of the 
 public rights and duties due to the whole 
 community in its social aggregate capacity." 
 4 Bl. Comm. 5. 
 
 TORTFEASOR. A wrongdoer; one who 
 commits or is guilty of a tort. 
 
 TORTURA LEGUM PESSIMA. The tor- 
 ture or wresting of laws is the worst kind 
 of torture. 4 Bac. Works, 434. 
 
 TORTURE. Bodily pain or hurt inflicted 
 with the object of compelling a disclosure 
 of guilt or of knowledge in respect of a 
 crime or its perpetrator. It was imposed 
 by various means, and under sanction of 
 law. 
 
 TOT. In old English practice. A word 
 written by the foreign opposer or other offi- 
 cer opposite to a debt due the king, to de- 
 note that it was a good debt, which was hence 
 said to be "totted." St. 42 Edw. III. c. 9. 
 
 TOTA CURIA (Law Lat.) In the old re- 
 ports. The whole court. 
 
 TOTAL LOSS. In insurance. A total loss 
 in marine insurance is either the absolute 
 destruction of the insured subject by the di- 
 rect action of the perils insured against, or 
 a constructive — sometimes called "technical" 
 — total loss, in which the assured is deprived 
 of the possession of the subject, still subsisting 
 in specie, or where there may be remnants 
 of it or claims subsisting on account of it, 
 and the assured, by the express terms or 
 legal construction of the policy, has the right 
 to recover its value from the underwriters, 
 so far as, and at the rate at which, it is 
 insured, on abandonment and assignment of 
 the still subsisting subject or remnants or 
 claims arising out of it. 2 Phil. Ins. c. xvii. ; 
 2 Johns. (N. Y.) 286 
 
 A constructive total loss may be by cap- 
 ture; seizure by unlawful violence; as, pira- 
 cy (1 Phil. Ins. § 1106; 2 Bug. Law & Eq. 
 85) ; or damage to ship or goods over half of 
 the value at the time and place of loss (2 
 Phil. Ins. § 1608; 1 Curt. [U. S.] 148; 9 
 Cush. [Mass.] 415; 5 Denio [N. Y.] 342; 6 
 Denio [N. Y.] 28Z; 19 Ala. [N. S.] 108; 1 
 Johns. Cas. [N.Y.] 141; 6 Johns. [N.Y.] 219) ; 
 or loss of the voyage (2 Phil. Ins. §§ 1601, 
 1606, 1619; 4 Me. 431; 24 Miss. 461; 19 N. Y. 
 272; 1 Mart. [La.] 221); though the ship 
 or goods may survive in specie, but so as 
 not to be fit for use in the same character 
 for the same service or purpose ( 2 Phil. Ins. 
 § 1605; 2 Caines, Cas. [N. Y.] 324; Valin, 
 tom. 2, tit. Ass. a. 46); or by jettison (2 
 Phil. Ins. §§ 1616, 1617; 1 Caines [N. Y.] 
 196) ; or by necessity to sell on account of 
 the action and effect of the peril insured 
 against (2 Phil. Ins. § 1623; 5 Gray [Mass.] 
 154; 1 Cranch [U. S.] 202); or by loss of 
 insured freight consequent on the loss of car- 
 go or ship (2 Phil. Ins. §§ 1642. 1645: 18 
 Johns. [N. Y.] 208). 
 
 There may be a claim for a total loss in 
 addition to a partial loss. 2 Phil. Ins. § 
 
 1743; 17 How. (U. S.) 595. A total loss 
 of the ship is not necessarily such of cargo 
 (2 Phil. Ins. §§ 1601 et seq., 1622; 3 Bin. 
 [Pa.] 287); nor is submersion necessarily a 
 total loss (2 Phil. Ins. § 1607; 7 East, 38); 
 nor is temporary delay of the voyage (2 
 Phil. Ins. §§ 1618, 1619; 5 Barn. & Aid. 
 597). 
 
 A constructive total loss, and an abandon- 
 ment thereupon of the ship, is a construct- 
 ive total loss of freight; and a constructive 
 total loss and abandonment of cargo has a 
 like effect as to commissions or profits there- 
 on; and the validity of the abandonment 
 will depend upon the actual facts at the 
 time of the abandonment, as the same may 
 subsequently prove to have been. 2 Phil. 
 Ins. § 1630 et seq.; 3 Johns. Cas. (N. Y.) 93. 
 
 TOTIDEM VERBIS (Lat.) In so many 
 words. 
 
 TOTIES QUOTIES (Lat.) As often as 
 the thing shall happen. 
 
 TOTUM PRAEFERTUR UNICUIQUE 
 parte. The whole is preferable to any single 
 part. 3 Coke, 41a. 
 
 TOUCHANDSTAY. Words frequently in- 
 troduced in policies of insurance, giving the 
 party insured the right to stop and stay at 
 certain designated points in the course of 
 the voyage. A vessel which has the power 
 to touch and stay at a place in the course of 
 the voyage must confine herself strictly to 
 the terms of the liberty so given; for any 
 attempt to trade at such a port during such 
 a stay, as, by shipping or landing goods, will 
 amount to a species of deviation which will 
 discharge the underwriters, unless the ship 
 have also liberty to trade as well as to touch 
 and stay at such a place. 1 Marsh. Ins. 275; 
 1 Esp. 610; 5 Esp. 96. 
 
 TOUJOURS ET UNCORE PRIST (Law 
 Pr. always and still ready). This is the 
 name of a plea of tender; as, where a man 
 is indebted to another, and he tenders the 
 amount due, and afterwards the creditor 
 brings a suit, the defendant may plead the 
 tender, and add that he has always been and 
 is still ready to pay what he owes, which 
 may be done by the formula toujours et un- 
 core prist. He must then pay the money In- 
 to court; and if the issue be found for him, 
 the defendant will be exonerated from costs, 
 and the plaintiff made justly liable for them. 
 3 Bouv. Inst, note 2923. See "Tout Temps 
 Prist." 
 
 TOUR D'ECHELLE. In French law. A 
 right which the owner of an estate has of 
 placing ladders on his neighbor's property to 
 facilitate the reparation of a party wall, or 
 of buildings which are supported by that 
 wall. It is a species of servitude. Lois des 
 Bat. pt. 1, c. 3, sec. 2, art. 9, § 1. 
 
 The space of ground left unoccupied 
 around a building for the purpose of en- 
 abling the owner to repair it with conven- 
 ience. This is not a servitude, but an actual 
 corporeal property. 
 
 TO URN. In old English law. A court of 
 
TOUT 
 
 (916) 
 
 TRADE-MARK 
 
 record, having criminal jurisdiction, in each 
 county, held before the sheriff twice a year, 
 in one place after another, following a cer- 
 tain circuit or rotation. 
 
 TOUT (Fr.) AH. 
 
 TOUT CE QUE LA LOI NE DEFEND PAS 
 est permis. Everything is permitted which 
 is not forbidden by law. 
 
 TOUT TEMPS PRIST (Law Pr. always 
 ready). In pleading. A plea by which the 
 defendant signifies that he has always been 
 ready to perform what is required of him. 
 The object of the plea is to save costs; as, 
 for example, where there has been a tender 
 and refusal. 3 Bl. Comm. 303; Comyn, Dig. 
 "Pleader" (2 Y 5). So, in a writ of dower, 
 where the plea is detinue of charters, the 
 demandant might reply, "Always ready." 
 Rast. Entr. 229b; Stearns, Real Actions, 310. 
 See "Uncore Prist." 
 
 TOUT UN SOUND (Law Fr.) All one 
 sound; idem sonans. 
 
 TOUTE EXCEPTION NON SURVEILLEE 
 tend a prendre la place du princlpe. Every 
 exception not watched tends to assume the 
 place of the principle. 
 
 TOWN. 
 
 In the United States. In some states, 
 
 a division of a county next smaller in ex- 
 tent than the county. In the New England 
 states, the town is for many purposes the 
 unit of civil government. In other states, 
 the county is the unit, and the town has lo- 
 cal government in only a few matters. 
 
 In many states, the term "township" Is 
 used for the largest subdivision of the coun- 
 ty, and in such states a "town" is a village 
 or small city. 
 
 In English Law. The term "town" or 
 
 "vill" comprehends under it the several spe- 
 cies of cities, boroughs, and common towns. 
 1 Bl. Comm. 114. 
 
 TOWN CLERK. An officer who manages 
 the public business of a town. 
 
 TOWN COLLECTOR. An officer of a town 
 charged with collecting the township taxes. 
 
 TOWN COMMISSIONER. One of the 
 board of officers in whom, under the laws 
 of some of the states, the management of 
 the business of a town is vested. Abbott. 
 
 TOWN CRIER. An officer in a town whose 
 business it is to make proclamations. 
 
 TOWN MEETING. An assemblage of the 
 voters of a town to select town officers and 
 discuss other business of the town. 
 
 TOWN PLAT. The acknowledgment and 
 recording of a town plat vests the legal title 
 to the ground embraced in the streets and 
 alleys in the corporation of the town. There- 
 fore it Is held that the proprietor who has 
 thus dedicated the streets and alleys to the 
 public cannot maintain trespass for an in- 
 jury to the soil or freehold. The corpora- 
 tion alone can seek redress for such injury. 
 
 11 111. 554; 13 111. 54, 308. This is not so, how- 
 ever, with a highway. The original owner 
 of the fee must bring his action for an in- 
 jury to the soil. 13 111. 54. See "Highway." 
 If the streets or alleys of a town are dedi- 
 cated by a different mode from that pointed 
 out by the statute, the fee remains in the 
 proprietor, burdened with the public ease- 
 ment. 13 111. 312. 
 
 TOWN REEVE. The reeve or chief offi- 
 cer of a town. 
 
 TOWN TAX. One levied to meet the sep- 
 arate expenses of a town. Opposed to "state 
 tax," "county tax." 
 
 TOWNS IMPROVEMENT. The English 
 Towns Improvement Clauses Act 1847 was 
 passed to consolidate in one act certain pro- 
 visions usually contained in acts for paving, 
 draining, cleansing, lighting, and improving 
 towns. Local acts appointing commission- 
 ers for the improvement of towns generally 
 incorporate the provisions of this act, but 
 such acts are now rarely passed, as the pro- 
 visions of the general health acts, the local 
 government acts, the sanitary acts, and the 
 public health acts have practically super- 
 seded them. 
 
 TOWNSHIP. The public lands of the Unit- 
 ed States are surveyed first into tracts called 
 "townships," being in extent six miles 
 square. The subdivisions of a township are 
 called "sections," each a mile square, and 
 containing six hundred and forty acres. 
 These are subdivided into quarter sections, 
 and from that into lots of forty acres each. 
 This plan of subdividing the public lands 
 was adopted by Act Cong. May 18, 1796. See 
 Brightly, Dig. U. S. Laws, 493. 
 
 In some states the largest subdivision of 
 a county. See "Town." 
 
 TRACEA. In old English law. The track 
 or trace of a felon, by which he was pur- 
 sued with the hue and cry; a footstep, hoof 
 print, or wheel track. Bracton, fols. 116, 
 121b. 
 
 TRACTENT FABRILIA FABRI. Letsmiths 
 perform the work of smiths. 3 Coke, Bpist. 
 
 TRADAS IN BALLIUM. You deliver to 
 bail. In old English practice. The name of 
 a writ which might be issued in behalf of 
 a party who, upon the writ de odio et atia, 
 had been found to have been maliciously ac- 
 cused of a crime, commanding the sheriff 
 that, if the prisoner found twelve good and 
 'awful men of the county who would be 
 mainpernors for him, he should deliver him 
 in bail to those twelve, until the rext assize. 
 Bracton, fol. 123; 1 Reeve, Hist. Bng. Law, 
 252. 
 
 TRADE. In the broadest sense, any sort 
 of dealings for profit, whether labor or bar- 
 ter. In a stricter sense, thfe sale or exchange 
 of merchandise. 
 
 The occupation of a mechanic. 
 
 TRADE-MARK. A symbol, emblem, or 
 mark used by a person to indicate that the 
 
TRADE-MARKS, ETC. 
 
 (917) 
 
 TRADITIO BREVIS MANUS 
 
 article to which it is affixed is manufactured 
 or sold by him, or that he carries on business 
 at a particular place. 35 L. J. Ch. 61. 
 
 Its original use was by manufacturers, but 
 its use has been extended to other than 
 tradesmen, to indicate the nature of their 
 business, their identity, or the place where 
 their business is carried on. Slater, Trade- 
 Marks, 232; 55 Barb. (N. Y.) 151; 7 Cush. 
 (Mass.) 322; 2 Barb. Ch. (N. Y.) 101. 
 
 The office of a trade-mark is to indicate 
 the origin, ownership, nature, etc., of goods 
 manufactured or sold, or the person by whom, 
 or the place where, they are so manufac- 
 tured or sold. The essentials, therefore, of 
 a good trade-mark, are that it be truthful in 
 its express or implied statements, and that 
 it be incapable of truthful application to 
 other goods. 57 How. Pr. (N. Y.) 1; 39 
 Conn. 450. 
 
 Descriptive words, or words indicating 
 quality or attributes, which may be truth- 
 fully applied by others to the same class of 
 goods, cannot constitute a valid trade-mark. 
 136 111. 215; 67 Ga. 562. 
 
 Arbitrary or fanciful names, constituting 
 the majority of trade-marks, derive their 
 value from the fact that they have come to 
 identify the goods of the user, and cannot, 
 therefore, be truthfully used by others. 51 
 Fed. 829; 63 Hun (N. Y.) 330. 
 
 TRADE-MARKS REGISTRATION ACT 
 
 1875. St. 38 & 39 Vict. c. 91, amended by 
 the acts of 1876 and 1877. It provides for 
 the establishment of a register of trade- 
 marks under the superintendence of the 
 commissioners of patents, and for the reg- 
 istration of trade-marks as belonging to par- 
 ticular classes of goods, and for their as- 
 signment in connection with the good-will 
 of the business in which they are used. 
 Registration is substituted for public use 
 as the mode of acquiring the right to a 
 trade-mark, so that now no one can enforce 
 his right to a trade-mark until it is reg- 
 istered. For the purposes of the act, a trade- 
 mark consists (1) of a name of an indi- 
 vidual or firm printed, impressed, or woven 
 in some particular and distinctive manner; 
 (2) of a written signature or copy of a 
 written signature of an individual or firm; 
 or (3) of a distinctive device, mark, head- 
 ing, label, or ticket. See 3 Ch. Div. 659. 
 There may be added to any one or more of 
 these essential particulars any letters, 
 words, or figures. Certain kinds of marks 
 used as trade-marks before the passing of 
 the act may be registered under the act, al- 
 though not coming within the statutory 
 definition. See generally, as to the act, Se- 
 bastian, Trade-Marks; 4 App. Cas. 479; 15 
 Ch. Div. 181. 
 
 TRADE-NAME. A trade-name is a name 
 which by user and reputation has acquired 
 the property of indicating that a certain 
 trade or occupation is carried on by a par- 
 ticular person. The name may be that of 
 a person, place, or thing, or it may be what 
 is called a "fancy name" (i. e., a name hav- 
 ing no sense, as applied to the particular 
 trade), or word invented for the occasion. 
 
 and having no sense at all. Seb. Trade- 
 Marks, 37. 
 
 TRADE UNION. An association of work- 
 men, usually, but not necessarily, employed 
 in the same trade, for the purpose of com- 
 bined action in securing the most favorable 
 wages and conditions of labor. 
 
 TRADE USAGE. A usage connected with 
 the practice of a particular trade. 
 
 TRADER. One who makes it his business 
 to buy merchandise, or goods and chattels, 
 and to sell the same for the purpose of mak- 
 ing a profit. The quantum of dealing is im- 
 material, when an intention to deal generally 
 exists. 3 Starkie, 56; 2 Car. & P. 135; 1 
 Term R. 572. 
 
 A farmer who, in addition to his usual 
 business, occasionally buys a horse not cal- 
 culated for his usual occupation, and sells 
 him again to make a profit, and who, in the 
 course of two years, ha,d so bought and sold 
 five or six horses, two of which had been 
 sold, after he had bought them, for the sake 
 of a guinea profit, was held to be a trader. 
 
 1 Term R. 537, note; 1 Price, 20. Another 
 farmer, who bought a large quantity of pota- 
 toes, not to be used on his farm, but merely 
 to sell again for a profit, was also declared 
 to be a trader. 1 Strange, 513. See 7 Taunt. 
 409; 5 Bos. & P. 78; 11 East, 274. 
 
 A butcher who kills only such cattle as he 
 has reared himself is not a trader; but if 
 he buy them and kill and sell them with a 
 view to profit, he is a trader. 4 Burrows, 21, 
 47. See 2 Rose, 38; 3 Campb. 233; Cooke, 
 Bankr. Law, 48, 73; 2 Wils. 169; 1 Atk. 128; 
 Cowp. 745. 
 
 A brickmaker who follows the business for 
 the purpose of enjoying the profits of his 
 real estate merely is not a trader; but when 
 he buys the earth by the load or otherwise, 
 and manufactures it into bricks, and sells 
 them with a view to profit, he is a trader. 
 Cooke, Bankr. Law, 52, 63; 7 East, 442; 3 
 Car. & P. 500; Moody & M. 263; 2 Rose, 422; 
 
 2 Glyn & J. 183; 1 Brown, Ch. 173. 
 
 For further examples the reader is refer- 
 red to 4 Man. & R. 486; 9 Barn. & C. 577; 1 
 Term R. 34; 1 Rose, 316; 2 Taunt. 178; 2 
 Marsh. 236; 3 Moore & S. 761; 10 Bing. 292; 
 Peake, 76; 1 Vent. 270; 3 Brod. & B. 2; 6 
 Moore, 56. 
 
 TRADICION (Spanish). In Spanish law. 
 Delivery. White, New Recop. bk. 2, tit. 2, 
 c. 9. 
 
 TRADITIO (Lat.) 
 
 In the Civil Law. Delivery; transfer 
 
 of possession; a giving possession of a cor- 
 poreal thing; a derivative mode of acquir- 
 ing, by which the owner of a corporeal thing, 
 having the right and the will of aliening it, 
 transfers it for a lawful consideration to the 
 receiver. Heinec. Blem. Jur. Civ. lib. 2, tit. 
 1, § 380. 
 
 In Old English Law. Delivery or liv- 
 ery. 
 
 TRADITIO BREVIS MANUS (Lat.) In 
 civil law. The delivery of a thing by the 
 mere consent of the parties; as, when Peter 
 
TRADITIO CLAVIUM 
 
 (918) 
 
 TRANSCRIPTIO, ETC. 
 
 holds the property of Paul as bailee, and 
 afterwards he buys it, it is not necessary 
 that Paul should deliver the property to 
 Peter, and he should redeliver it to Paul. 
 The mere consent of the parties transfers the 
 title to Paul. 1 Duv. note 252; 21 Me. 231; 
 Poth. ad Pand. lib. 50, cdlxxiv.; 1 Bouv. Inst, 
 note 944. 
 
 TRADITIO CLAVIUM (Lat.) In the civil 
 law. Delivery of keys; a symbolical kind of 
 delivery, by which the ownership of mer- 
 chandise in a warehouse might be trahsfer- 
 red to a buyer. Inst. 2. 1. 44. 
 
 TRADITIO LOQUI FACIT CHARTAM. 
 
 Delivery makes the deed speq,k. 5 Coke, 1. 
 
 TRADITIO NIHILAMPLIUS TRANSFER- 
 re debet vel potest, ad eum qui accipit, quam 
 est apud eum qui tradit. Delivery cannot and 
 ought not to transfer to him who receives 
 more than was in possession of him who 
 made the delivery. Dig. 41. 1. 20. , 
 
 TRADITIO REI (Lat.) Delivery of the 
 thing. See 5 Maule & S. 82. 
 
 TRADITION (Lat. trans, over, do, dare, to 
 give) . In civil law. The act by which a 
 thing is delivered by one or more persons to 
 one or more others. 
 
 The delivery of possession by the proprie- 
 tor with an intention to transfer the prop- 
 erty to the receiver. Two things are, there- 
 fore, requisite in order to transmit property 
 in this way, — ^the intention or consent of the 
 former owner to transfer it, and the actual 
 delivery in pursuance of that intention. 
 
 Tradition is either real or symbolical. 
 Real tradition takes place where the i'psa cor- 
 pora of movables are put into the hands of 
 the receiver. Symbolical tradition is used 
 where the thing is incapable of real delivery, 
 as, in immovable subjects^ such as lands and 
 houses, or such as consist in jure (things in- 
 corporeal), as, things of fishing, and the 
 like. The property of certain movables, 
 though they are capable of real delivery, may 
 be transferred by symbol. Thus, if the sub- 
 ject be under lock and key, the delivery of 
 the key is considered as a legal tradition of 
 all that is contained in the repository. Cu- 
 jas. Observations, liv. 11, c. 10; Inst. 2. 1. 40; 
 Dig. 41. 1. 9; Ersk. Inst. 2. 1. 10. 11; Civ. 
 Code La. art. 2452 et seq. See "Delivery." 
 
 TRADITOR (Law Lat.) In old English law. 
 A traitor; one guilty of high treason. Pleta, 
 lib. 1, c. 21, § 8. 
 
 TRADITUR IN BALLIUIVI (Law Lat.) In 
 old practice. Is delivered to bail. Emphatic 
 words of the old Latin bail piece. 1 Salk. 
 105. 
 
 TRAFFIC. Commerce; trade; sale or ex- 
 change of merchandise, bills, money, and the 
 like. 
 
 TRAINBANDS. The militia; the part of 
 a company trained to martial exercises. 
 
 TRAISTIS. In old Scotch law. A roll con- 
 taining the particular dittay taken up upon 
 malefactors, which, with the porteous, is de- 
 
 livered by the justice clerk to the coroner, 
 to the effect that the persons whose names 
 are contained in the porteous may be at- 
 tached, conform to the dittay contained in 
 the traistis. So called, because committed to 
 the traist [trust], faith, and credit of the 
 clerks and coroner. Skene de Verb. Sign. 
 
 TRAITOR. One guilty of treason. See 
 charge of Judge Sprague, District Court of 
 Massachusetts, 1682; Bish. Crimes. 
 
 The punishment of a traitor is death. 
 
 TRAITOROUSLY. In pleading. A tech- 
 nical word, which is essential in an indict- 
 ment for treason in order to charge the 
 crime, and which cannot be supplied by any 
 other word or any kind of circumlocution. 
 Having been well laid in the statement of 
 the treason itself, it is not necessary to state 
 every overt act to have been traitorously 
 committed. See Bac. Abr. "Indictment" (G 
 1); Comyn, Dig. "Indictment" (G 6); Hawk. 
 P. C. bk. 2,. c. 25, § 55; 1 East, P. C. 115; 
 2 Hale, P. C. 172, 184; 4 Bl. Comm. 307; 3 
 Inst. 15; Cro. Car. 37; Carth. 319; 2 Salk. 
 683; 4 Harg. St. Tr. 701; 2 Ld. Raym. 870; 
 Comb. 259; 2 Chit. Crim. Law, 104, note (b). 
 
 TRANSACTIO (Lat.) In the civil law. The 
 settlement of a suit or matter in controversy, 
 by the litigating parties, between themselves, 
 without referring it to arbitration. Halifax, 
 Civ. Law, bk: 3, c. 8, No. 14. An agreement 
 by which a suit, either pending or about to 
 be commenced, was forborne, or discontinued 
 on certain terms. Calv. Lex. See Dig. 2. 
 15; Pleta, lib. 4, c. 17, § 2. 
 
 TRANSACTION (from Lat. trans and ago, 
 to carry over). In civil law. An agreement 
 between two or more persons, who, for the 
 purpose of preventing or putting an end to 
 a lawsuit, adjust their difference, by mutual 
 consent, in the manner which they agree on. 
 In Louisiana this contract must be reduced 
 to writing. Civ. Code La. art. 3038. 
 
 Transactions regulate only the differences 
 which appear to be clearly comprehended in 
 them by the intentions of the parties, wheth- 
 er they be explained in a general or particu- 
 lar manner, unless it be the necessary conse- 
 quence of what is expressed; and they do 
 not extend to differences which the parties 
 never intended to include in them. Civ. Code 
 La. art. 3040. 
 
 To transact, a man must have the capacity 
 to dispose of the things included in the 
 transaction. 1 Domat, Lois Civ. 1. 13. 1; 
 Dig. 2. 15. 1; Code, 2. 4. 41. In the common 
 law, this is called a compromise. See "Com- 
 promise." 
 
 TRANSCRIPT (Lat.) A copy of an orig- 
 inal writing, deed, or record. 
 
 In Appellate Practice. The copy of 
 
 the record transmitted to the appellate court. 
 
 TRANSCRIPTIO PEDIS FINIS LEVATI 
 mittendo In cancellarium. A writ which cer- 
 tified the foot of a fine levied before justices 
 in eyre, etc., into the chancery. Reg. Grig. 
 669. 
 
TRANSCRIPTIO, ETC. 
 
 (919) 
 
 TRANSLATIVE FACT 
 
 TRANSCRIPTIO RECOGNITIONIS FAC- 
 tae coram justiclarlls itinerantlbus, etc. An 
 
 old writ to certify a cognizance taken by 
 justices in eyre. Reg. Orig. 152. 
 
 TRANSFER (Lat. trans, over, fero, to bear 
 or carry). The act by which the owner of 
 a thing delivers it to another person, with 
 the intent of passing the rights which he has 
 in it to the latter. 1 Ala. 669; 36 Conn. 426. 
 
 TRANSFER OF A CAUSE. Removal of 
 it to another court. 
 
 TRANSFERABLE. Capable of being pass- 
 ed to another. Railway passage tickets and 
 personal privileges or licenses are often made 
 "Not Transferable," i. e., valid only in the 
 purchaser's hands. 
 
 TRANSFEREE. He to whom a transfer is 
 made. 
 
 TRANSFERENCE. In Scotch law. The 
 name of an action by which a suit which 
 was pending at the time the party died is 
 transferred from the deceased to his repre- 
 sentatives, in the condition in which it stood 
 formerly. If it be the pursuer who is dead, 
 the action is called a transference active; if 
 the defender, it is a transference passive. 
 Ersk. Inst. 4. 1. 32. 
 
 TRANSFEROR. One who makes a trans- 
 fer. 
 
 TRANSFERUNTUR DOMINIA SINE TIT- 
 ulo et traditione, per usucaptionem, sell, per 
 longam contlnuam et paclficam possessio- 
 nem. Rights of dominion are tranferred 
 without title or delivery, by usucaption, to 
 wit, long and quiet possession. Co. Litt. 
 113. 
 
 TRANSGRESSIO EST CUM MODUS NON 
 servatur nee mensura, debit enim quilibet 
 in suo facto modum habere et mensuram. 
 Transgression is when neither mode nor 
 measure is preserved, for every one in his 
 act ought to have a mode and measure. Co. 
 Litt. 37. 
 
 TRANSGRESSION (Lat. trans, over, r/rcs- 
 sio, a step). The violation of a law. 
 
 TRANSGRESSIONE M U LTI P L I C AT A, 
 crescat poena inflictio. When transgression 
 is multiplied, let the infliction of punishment 
 be increased. 2 Inst. 479. 
 
 TRANSHIPMENT. In maritime law. The 
 act of taking the cargo out of one ship, and 
 loading It in another. 
 
 When this is done from necessity, it does 
 not affect the liability of an insurer on the 
 goods. 1 Marsh. Ins. 166; Abb. Shipp. 240. 
 But when the master tranships goods with- 
 out necessity, he is answerable for the loss 
 of them by capture by public enemies. 1 
 Gall. (U. S.) 443. 
 
 TRANSIRE. In English law. A warrant 
 for the custom house to let goods pass; a 
 permit. See, for a form of a transire, Harg. 
 Law Tr. 104. 
 
 TRANSIT IN REM JUDICATAM. Itpasses 
 into a judgment. Broom, Leg. Max. (3d Lon- 
 don Ed.) 298; 11 Pet. (U. S.) 100. See, also, 
 18 Johns. (N. Y.) 463; 2 Sumn. '(U. S.) 436; 
 6 East, 251. 
 
 TRANSIT TERRA CUM ONERE. The land 
 passes with its burden. Co. Litt. 231a; Shep. 
 Touch. 178; 5 Barn. & C. 607; 7 Mees. & W. 
 530; 3 Barn. & Aid. 587; 18 C. B. 845; 24 
 Barb. (N. Y.) 365; Broom, Leg. Max. (3d 
 London Ed.) 437, 630. 
 
 TRANSITIVE COVENANT. One binding 
 the representatives of the covenantor. 
 
 TRANSITORY ACTION. In practice. An 
 action the cause of which might have arisen 
 in one place or county as well as another. 
 
 In general, all personal actions, whether 
 ex contractu, (5 Taunt. 25; 6 East, 352; 2 
 Johns. Cas. [N. Y.] 335; 2 Gaines [N. Y.] 
 374; 3 Serg. & R. [Pa.] 500; 1 Chit. PI. 243), 
 or ex delicto (1 Chit. PI. 243), are transi- 
 tory. 
 
 Such action might, at common law, be 
 brought in any county, but in the United 
 States statutes have been passed prescribing 
 in what counties the suit may be brought. 
 
 TRANSITUS (Lat.) A transit. See "Stop- 
 page in Transitu." 
 
 TRANSLADO (Spanish). A transcript. 
 
 TRANSLATION. The reproduction in one 
 language of what has been written or spoken 
 in another. 
 
 In pleading, when a libel or an agreement 
 written in a foreign language must be aver- 
 red, it is necessary that a translation of it 
 should also be given. 
 
 In evidence, when a witness is unable to 
 speak the English language so as to convey 
 his ideas, a translation of his testimony must 
 be made. In that case, an interpreter should 
 be sworn to translate to him, on oath, the 
 questions propounded to him, and to trans- 
 late to the court and jury. 
 
 The bestowing of a legacy which had been 
 given to one, on another. This is a species 
 of ademption; but it differs from it in this, 
 that there may be an ademption without a 
 translation, but there can be no translation 
 without an ademption. Bac. Abr. "Legacies" 
 (C). 
 
 The transfer of property; but in this sense 
 it is seldom used. 2 Bl. Comm. 294. See 
 "Interpreter." 
 
 In Ecclesiastical Law. The removal 
 
 from one place to another; as, the bishop 
 was translated from the diocese of A. to 
 that of B. In the civil law, "translation" 
 signifies the transfer of property. Clef des 
 Lois Rom. 
 
 TRANSLATITIUM EDICTUM. So much 
 of the edict promulgated by the former prae- 
 tor as was retained and republished by his 
 successor. 
 
 TRANSLATIVE FACT. A fact by means 
 of which a right is transferred or passes 
 from one person to another. 
 
TRANSMISSION 
 
 (920) 
 
 TREASON 
 
 TRANSMISSION (from Lat. trans, over, 
 mitto, to send). In civil law. The right 
 which heirs or legatees may have of passing 
 to their successors the inheritance or legacy 
 to which they were entitled, if they happen 
 to die without having exercised their rights. 
 Domat, liv. 3, tit. 1, § 10; 4 Toullier, Dr. 
 Civ. note 186; Dig. 50. 17. 54; Code, 6. 51. 
 
 TRANSPORTATION (from Lat. frares, over, 
 beyond, porta, to carry). In English law. 
 A punishment inflicted by virtue of sundry 
 statutes. It was unknown to the common 
 law. 2 H. BI. 223. It is a part of the 
 judgment or sentence of the court that the 
 party shall be transported or sent into exile. 
 1 Chit. Crim. Law, 789-796; Princ. Pen. Law, 
 c. 4, § 2, 
 
 TRANSUMPTS. In the Scotch law, an ac- 
 tion of transumpt is an action competent 
 to any one having a partial interest in a 
 writing, or immediate use for it, to sup- 
 port his title or defenses in other actions. 
 It is directed against the custodier of the 
 writing, calling upon him to exhibit it, in 
 order that a transumpt, i. e., a copy, may 
 be judicially made and delivered to the pur- 
 suer. Bell, Diet. 
 
 TRASSATUS. One who is drawn, or 
 drawn upon. The drawee of a bill of ex- 
 change. Heinec. de Camb. c. 6, §§ 5, 6. 
 
 TRAVAIL. The act of child bearing. 
 
 A woman is said to be in her travail from 
 the time the pains of child bearing com- 
 mence, until her delivery. 5 Pick. (Mass.) 
 63; 6 Me. 460. 
 
 TRAVERSE (Law Fr. traverser, to turn 
 over, to deny). To deny; to put off. 
 
 In Civil Pleading. To deny or contro- 
 vert anything which is alleged in the previ- 
 ous pleading. Lawes, PI. 116. A denial. 
 Willes, 224. A direct denial in formal words: 
 "Without this, that, etc." {absque hoc). 1 
 Chit. PI. 523, note (a). A traverse may deny 
 all the facts alleged (1 Chit. PI. 525), or 
 any particular material fact (20 Johns. [N. 
 Y.] 406). 
 
 (1) A common traverse is a direct denial, 
 in common language, of the adverse allega- 
 tions, without the absque hoc, and conclud- 
 ing to the country. It is not preceded by 
 an inducement, and hence cannot be used 
 where an inducement is requisite. 1 Saund. 
 103b, note 1. 
 
 (2) A general traverse is one preceded by 
 a general inducement, and denying all that 
 is last before alleged on the opposite side, 
 in general terms, instead of pursuing the 
 words of the allegation which it denies. 
 Gould, PI. vii. 5, 6. Of this sort of traverse 
 the replication de injuria sua propria absque 
 tali causa, in answer to a justification, is a 
 familiar example. Bac. Abr. "Pleas" (HI); 
 Steph. PI. 171; Gould, PI. c. 7, § 5; Archb. 
 Civ. PI. 194. 
 
 (3) A special traverse is one which com- 
 mences with the words absque hoc, and pur- 
 sues the material portion of the words of 
 the allegation which It denies. Lawes, PI. 
 116-120. It is regularly preceded by an in- 
 
 ducement consisting of new matter. Gould, 
 PI. c. 7, §§ 6, 7; Steph. PI. 188. A special 
 traverse does not complete an issue, as does 
 a common traverse. 20 Viner, Abr. 33&; 
 Yelv. 147, 148; 1 Saund. 22, note 2. 
 
 (4) A traverse upon a traverse is one 
 growing out of the same point or subject 
 matter as is embraced in a preceding trax-- 
 erse on the other side. Gould, PI. c. 7, § 42, 
 note. It is a general rule that a traverse 
 well intended on one side must be accepted 
 on the other. And hence it follows, as a 
 general rule, that there cannot be a trav- 
 erse upon a traverse if the first traverse is 
 material. The meaning of the rule is that, 
 when one party has tendered a material trav- 
 erse, the other cannot leave it and tender 
 another of his own to the same point upon 
 the inducement of the first ' traverse, but 
 must joic in that first tendered; otherwise 
 the parties might alternately tender trav- 
 erses to each other in unlimited succession, 
 without coming to an issue. Gould, PI. c. 
 7, § 42. The rule, however, does not apply 
 where the first traverse is immaterial, nor 
 where it is material if the plaintiff would 
 thereby be ousted of some right or liberty 
 which the law allows. Poph. 101; F. Moore, 
 350; Hob. 104; Cro. Eliz. 99, 418; Comyn, 
 Dig. "Pleader" (G 18); Bac. Abr. "Pleas" 
 (H 4) ; Bouv. Inst. Index. 
 
 In Criminal Practice. To put off or 
 
 delay the trial of an indictment till a suc- 
 ceeding term. More properly, to deny or 
 take issue upon an indictment. Dick. Sess. 
 151; 4 Bl. Comm. 351. 
 
 TRAVERSE JURY. A petit or trial jury. 
 
 TRAVERSE OF AN OFFICE. Proof that 
 an inquisition made of lands or goods by 
 the escheator is defective and untruly made. 
 
 TRAVERSER. One who traverses or de- 
 nies. 
 
 TRAVERSING ANSWER or TRAVERS- 
 ing note. In suits under the old English 
 practice in chancery, where the defendant 
 refused or neglected to file an answer to 
 the bill, the plaintiff might file either a 
 traversing answer or a traversing note, 
 which produced the same effect as if the 
 defendant had filed an answer traversing 
 the case made by the bill. Daniell, Ch. Prac. 
 436. The modern practice dispenses with 
 these fictions. See Rules of Court xxix. pas- 
 sim. See, also, "Pro Confesso." 
 
 TREACHER,TRECHETOUR,or TREACH- 
 our. A traitor. 
 
 TREADIVIILL. An instrument of prison 
 discipline in England. It is composed of a 
 large revolving cylinder, having ledges or 
 steps fixed around its circumference. The 
 prisoners walk up these ledges, and their 
 weight moves the; cylinder around. 
 
 TREASON. 
 
 At Common Law. This word imports 
 
 a betraying, treachery, or breach of alle- 
 giance. 4 Bl. Comm. 75. 
 
 Treason was either: 
 
 (1) High treason, which was the compass- 
 
TREASON FELONY 
 
 (921) 
 
 TREATY 
 
 ing of the king's death, the aiding and com- 
 forting of his enemies, the forging or coun- 
 terfeiting of his coin, the counterfeiting of 
 the privy seal, or the killing of the chancel- 
 lor, or either of the king's justices. 
 
 (2) Petit treason, which was where a wife 
 murdered her husband, a servant his master, 
 or an ecclesiastic his lord or ordinary. 4 
 Bl. Comm. 73. 
 
 In the United States. The constitu- 
 tion of the United States (article 3, § 3) 
 defines treason against the United States to 
 consist only in levying war against them, or 
 in adhering to their enemies, giving them 
 aid or comfort. This offense is punished 
 with death. Act April 30, 1790 (1 Story, 
 U. S. Laws, 83 ) . By the same article of the 
 constitution, no person shall be convicted of 
 treason unless on the testimony of two wit- 
 nesses to the same overt act, or on confes- 
 sion in open court. See, generally, 3 Story, 
 Const. 39, p. 667; 1 Bl. Comm. Append. 275, 
 276; 3 Wilson, Law Lect. 96-99; Poster, Disc. 
 (I); Fed. Cas. No. 14,692; 4 Cranch (U. S.) 
 126, 469-508; 1 Dall. (U. S.) 35; 2 Dall. (U. 
 S.) 246, 355; 3 Wash. C. C. (U. S.) 234; 1 
 Johns. (N. Y.) 553; 11 Johns. (N. Y.) 549; 
 Comyn, Dig. "Justices" (K) ; 1 Bast, P. C. 
 37-158; 2 Chit. Crim. Law, 60-102; Archb. 
 Crim. PI. 378-387. 
 
 TREASON FELONY. An offense under 
 11 & 12 Vict. c. 12, consisting of compassing, 
 etc., to depose her majesty, or to levy war 
 to intimidate parliament, etc. Mozley & W. 
 
 TREASONABLE. Having the nature or 
 guilt of treason. 
 
 TREASURE TROVE. Found treasure. This 
 name is given to such money or coin, gold, 
 silver, plate, or bullion, which, having be'en 
 hidden or concealed in the earth or other 
 private place so long that its owner is un- 
 known, has been discovered by accident. 
 Should the owner be found, jt must be re- 
 stored to him; and in case of not finding 
 him, the property, according to the English 
 law, belongs to the king. In the latter case, 
 by the civil law, when the treasure was 
 found by the owner of the soil, he was con- 
 sidered as entitled to it by the double title 
 of owner and finder; when found on anoth- 
 er's property, one-half belonged to the own- 
 er of the estate and the other to the finder; 
 when found on public property, it belonged 
 one-half to the public treasury and the other 
 to the finder. Lecon. du Dr. Rom. §§ 350- 
 352. This includes not only gold and silver, 
 but whatever may constitute riches; as, vas- 
 es, urns, statues, etc. 
 
 The Roman definition includes the same 
 things under the word pecunia; but the 
 thing found must have a commercial value; 
 for ancient tombs would not be considered 
 a treasure. The thing must have been hid- 
 den or concealed in the earth, and no one 
 must be able to establish his right to it. It 
 must be found by a pure accident, and not 
 in consequence of search. Dalloz, "Proprie- 
 te," art. 3, § 3. 
 
 According to the French law, le tresor est 
 toute chose cachee ou enfouie. sur laquelle 
 
 personne ne pent justifler sa propriete, et 
 qui est decouverte par le pur effet du hasard. 
 Code Civ. 716. See 4 Toullier, Dr. Civ. note 
 34. See, generally, 20 Viner, Abr. 414; 7 
 Comyn, Dig. 649; 1 Brown, Civ. Law, 237; 1 
 Bl. Comm. 295; Poth. Traite du Droit de 
 Propriete, art. 4. 
 
 TREASURER'S REMEMBRANCER. He 
 
 whose charge was to put the lord treasurer 
 and the rest of the judges of the exchequer 
 in remembrance of such things as were 
 called on and dealt in for the sovereign's 
 behoof. There is still one in Scotland. 
 
 TREASURY. That fiscal department of 
 the government which controls the pay- 
 ments of the public money in accordance 
 with the votes of the legislature. 
 
 TREASURY BENCH. In the English 
 house of commons, the first row of seats on 
 the right hand of the speaker is so called, 
 because occupied by the first lord of the 
 treasury, or principal minister of the crown. 
 Brown. 
 
 TREASURY CHEST FUND. A fund, in 
 England, originating in the unusual balan- 
 ces of certain grants of public money, and 
 which is used for banking and loan purposes 
 by the commissioners of the treasury. Its 
 amount was limited by St. 24 & 25 vlct. c. 
 127, and has been further reduced to one mil- 
 lion pounds, the residue being transferred to 
 the consolidated fund by St. 36 & 37 Vict. c. 
 56. Wharton. 
 
 TREATY. Treaties are agreements made 
 and entered into by one independent state 
 with another, in conformity with law, by 
 which it places itself under an obligation. 
 
 The following are not considered treaties: 
 
 (1) Agreements entered into by a state 
 with private individuals. 
 
 (2) Agreements between a state and the 
 church, and especially concordats of the dif- 
 ferent states with the pope. 
 
 (3) Agreements by sovereigns or sover- 
 eign dynasties, whether among themselves or 
 with foreign states, relative to their per- 
 sonal or dynastic pretensions to the govern- 
 ment of a country. Glenn, Int. Law, 139; 
 Hall, Int. Law, 323, note 1. 
 
 ' Treaty of Alliance. One entered into 
 by two or more states with a view of secur- 
 ing concerted action for the purpose desig- 
 nated in the treaty. Alliances may be either 
 equal or unequal, and either offensive or de- 
 fensive, or both. Davis, Int. Law, 82, note. 
 
 Treaty of Guaranty. One entered into 
 
 for the purpose of securing the observance 
 of a treaty already existing, or the perma- 
 nence of an existing state of affairs. The 
 treaty of London of 1832. bv which France, 
 Great Britain, and Russia guarantied the sov- 
 ereignty and independe-'ce of Greece, is an 
 example. 
 
 Treaty of Peace. A treaty of peace 
 
 is an agreement or contract made by bellig- 
 erent powers, in which they agree to lay 
 down their arms, and by which they stipu- 
 
TREATY 0"F ^^AETS 
 
 ($22) 
 
 TRESPASS, ETC. 
 
 late the conditions of peace and regulate the 
 manner in which it is to be restored and 
 supported. Vattel, bk. 4, c. 2, § 9. 
 
 TREATY OF PARIS. An agreement, more 
 properly, perhaps, termed a "declaration," 
 signed at Paris April 16, 1856, by represent- 
 atives of Great Britain, Austria, Prance, 
 Prussia, Russia, Sardinia, and Turkey. 
 
 The points agreed on relate to maritime 
 law in time of war and are: 
 
 (1) Privateering is abolished. 
 
 (2) The neutral flag covers eneiaay's 
 goods except contraband of war. 
 
 (3) Neutral goods, except contraband of 
 war, are not subject to" capture under the 
 enemy's flag. 
 
 (4) Blockade, to be effective, must be 
 maintained by a force sufficient to prevent 
 access to the coast of the enemy. 
 
 TREATY OF WASHINGTON. A treaty 
 signed on May 8, 1871, between Great Brit- 
 ain and the United States of America, with 
 reference to certain differences arising out 
 of the war between the northern and south- 
 ern states of the Union, the Canadian flsh- 
 eries, and other matters. Wharton. 
 
 TREBLE COSTS. 
 
 In English Practice. The taxed costs 
 
 and three-fourths the same added thereto. 
 It is computed by adding one-half for double 
 costs, and, in addition, one-half of one-half 
 for treble costs. 1 Chit. 137; 1 Chit. Prae. 
 27. 
 
 In American Law. In Pennsylvania 
 
 the rule is different. When an act of as- 
 sembly gives treble costs, the party is al- 
 lowed three times the usual costs, with the 
 exception that the fees of the ofl5cers are 
 not to be trebled when they are not regularly 
 or usually payable by the defendant. 2 Rawle 
 (Pa.) 201. 
 
 In New York, the English method is fol- 
 lowed. 9 Wend. (N. Y.) 443. 
 
 TREBLE DAMAGES. In actions arising 
 ex contractu, some statutes give treble dam- 
 ages, and these statutes have been liberally 
 construed to mean actually treble damages; 
 for example, if the jury give twenty dollars 
 damages for a forcible entry, the court will 
 award forty dollars more, so as to make the 
 total amount of damages sixty dollars. 4 
 Barn. & G. 154; McClel. 567. 
 
 The construction on the words "treble 
 damages" is different from that which has 
 been put on the words "treble costs." See 6 
 Serg. & R. (Pa.) 288; 1 Browne (Pa.) 9; 1 
 Cow. (N. Y.) 160, 175, 176, 584; 8 Cow. (N. 
 Y.) 115. 
 
 TREBUCKET. The name of an engine 
 of punishment, said to be synonymous with 
 "tumbrel." 
 
 TREIVIAGIUM, TREMESIUM, or TERMIS- 
 sium. The season or time of sowing sum- 
 mer corn, being about March, the third 
 month, to which the word may allude. 
 Cowell. 
 
 TRES FACIUNT COLLEGIUM. Three- 
 form a corporation. Dig. 50. 16. 85; 1 Bl. 
 Comm. 469. 
 
 TRESAYLE. An abolished writ sued on 
 ouster by abatement on the death of the 
 grandfather's grandfather. 
 
 TRESPASS. Any misfeasance or act of 
 one man, whereby another is injuriously 
 treated or damnifled. 3 Bl. Comm. 208; 7 
 Conn. 125. 
 
 Any unlawful act committed with violence, 
 actual or implied, to the person, property, or- 
 rights of another. 
 
 Any unauthorized entry upon the realty 
 of another, to the damage thereof. 
 
 The word is used oftener in the last two 
 somewhat restricted significations than in 
 the first sense here given. In determining 
 the nature of the act, neither the amount of 
 violence or the intent with which it is of- 
 fered, nor the extent of the damage accom- 
 plished or the purpose for which the act 
 was committed, are of any importance; since 
 a person who enters upon the land of an- 
 other without leave, to lead off his own run- 
 away horse, and who breaks a blade of 
 grass in so doing, commits a trespass. 2 
 Humph. (Tenn.) 325; 6 Johns. (N. Y.) 5. 
 
 It is said that "some" damage must be- 
 committed to make an act a trespass. It is 
 undoubtedly true that damage is required 
 to constitute a trespass for which an action 
 will lie; but, so far as the tort itself is con- 
 cerned, it seems more than doubtful if the- 
 mere commission of an act affecting anoth- 
 er, without legal authority, does not consti- 
 tute trespass, though, until damage is done, 
 the law will not regard it. Inasmuch as the 
 law does not regard trifles. 
 
 The distinction between the different class- 
 es of trespass is of importance in determin- 
 ing the nature of the remedy. 
 
 A trespass committed with force is said to 
 be done "vi et armis;" one committed by 
 entry upon tfhe realty, "by breaking the 
 close." 
 
 In Practice. A form of action which 
 
 lies to recover damages for the injury sus- 
 tained by the plaintiff, as the immediate con- 
 sequence of some wrong done forcibly to his 
 person or property, against the person com- 
 mitting the same. Force is the essential of 
 the action, and distinguishes it from "tres- 
 pass on the case." 
 
 TRESPASS DE BONIS ASPORTATIS 
 
 (Lat. (Je 'bonis asportatis, for goods which 
 have been carried away). In practice. A 
 form of action brought by the owner of 
 goods to recover damages for unlawfully 
 taking and carrying them away. 1 Me. 117. 
 It is no answer to the action that the de- 
 fendant has returned the goods. 1 Bouv. 
 Inst, note 36 (H). 
 
 TRESPASS FOR MESNE PROFITS". A 
 form of action, supplemental to ah action of 
 ejectment, brought against the tenant in pos- 
 session to recover the profits which he has 
 unlawfully received during the time of his 
 occupation. 3 Bl. Comm. 205; 4 Burrows, 
 1668. The person who actually received the 
 
TRESPASS ON THE CASE 
 
 (923) 
 
 TRIAL AT -BAR 
 
 profits is to be made defendant, whether de- 
 fendant to the ejectment or not. 11 Wheat. 
 (U. S.) 280. It lies after a recovery in eject- 
 ment (5 Cow. [N. Y.] 33; 11 Serg. & R. [Pa.] 
 55), or entry (6 N. H. 391), but not tres- 
 pass to try title (Const. [S. C] 102; 1 Mc- 
 Cord [S. C] 264); and the judgment in 
 ejectment is conclusive evidence against the 
 defendant for all profits which have accrued 
 since the date of the demise stated in the 
 declaration in ejectment (1 Blackf. [Ind.] 
 56; 2 Rawle [Pa.] 49) ; but suit for any 
 antecedent profits is open to a new defense, 
 and the tenant may plead the statute of lim- 
 itations as to all profits accruing beyond the 
 period fixed by law (3 Bl. Comm. 205, note; 
 2 Root [Conn.] 440). 
 
 TRESPASS ON THE CASE. In practice. 
 The form of action by which a person seeks 
 to recover damages caused by an injury un- 
 accompanied with force, or which results in- 
 directly from the act of the defendant. It 
 is more generally called simply "case." See 
 "Case;" 3 Bouv. Inst, notes 3482-3509. 
 
 TRESPASS QUARE CLAUSUM FREGIT 
 
 (Lat. quare clausum frepit. because he has 
 broken the close). In practice. The form 
 of action which lies to recover damages for 
 injuries to the realty consequent upon entry 
 without right, but not by force, upon the 
 plaintiff's land. 
 
 TRESPASS TO TRY TITLE. An action 
 authorized in a few states by statutes allow- 
 ing title to be tried in trespass q. o. f. The 
 nature and scope of the action differs with 
 the various statutes. In South Carolina, the 
 action is in the nature of ejectment, while 
 in Texas it is an action to quiet title. 
 
 TRESPASS VI ET ARNWSi.L.a.t.victarmis, 
 with force and arms). In practice. The 
 form of action which lies to recover damages 
 for an injury which is the immediate conse- 
 quence of a forcible wrongful act done to 
 the person or personal property. 2 Const. 
 (S. C.) 294. It is distinguished from case 
 in this, that the injury in case is the indirect 
 result of the act done. See "Case;" 4 Bouv. 
 Inst, note 3583. 
 
 TRESPASSER. One who does an unlaw- 
 ful act, or a lawful act in an unlawful man- 
 ner, to the injury of the person or property 
 of another. 
 
 TRESPASSER AB INITIO. A term ap- 
 plied to denote that one who has commenced 
 a lawful act in a proper manner has per- 
 formed some unlawful act, or some lawful 
 act in an unlawful manner, so connected 
 with the previous act that he is to be re- 
 garded as having acted unlawfully from the 
 beginning. See 8 Coke, 146; 5 Taunt. 198; 
 7 Adol. & E. 176; 11 Mees. & W. 740; 15 
 Johns. (N. Y.) 401. See "Ab Initio." 
 
 TRESTONARE. To turn or divert an- 
 other way. Cowell. 
 
 TRET. An allowance made for the water 
 or dust that may be mixed with any com- 
 modity. It differs from "tare." 
 
 TREYT. Withdrawn, as a juror. Written 
 also "treat." Cowell. 
 
 TRIA CAPITA. In the Roman law, were 
 civitus, libertas, and familia, i. e. citizen- 
 ship, freedom, and family rights. See 
 "Caput;" "Status." 
 
 TRIAL. The examination before a com- 
 petent tribunal, according to the law of the 
 land, of the facts put in issue in a cause for 
 the purpose of determining such issue. 4 
 Mason (U. S.) 232. 
 
 The methods of trial at common law were: 
 
 (1) By certificate, where the evidence of 
 the person certifying is the only proper cri- 
 terion of the point in dispute. 3 Bl. Comm. 
 333. 
 
 (2) By inspection or examination, where 
 the judges upon the testimony of their sens- 
 es decide the point in dispute. 
 
 (3) By witnesses, without the interven- 
 tion of a jury (3 Bl. Comm. 336). . 
 
 (4) By jury, which is that form of trial 
 in which the facts are determined by twelve 
 men impartially selected from the body of 
 the county. See "Jury." 
 
 (5) By the record, where an issue of nuT 
 tiel record is joined in any action. 
 
 (6) By grand assize, a peculiar method of 
 trial allowed in writs of right. See "Grand 
 Assize." 
 
 (7) By wager of battel, which, in the old 
 English law, was a barbarous mode of try- 
 ing facts, among a rude people, founded on 
 the supposition that heaven would always 
 interpose and give the victory to the cham- 
 pions of truth and innocence. This mode of 
 trial was abolished in England as late as 
 St. 59 Geo. III. c. 46, A. D. 1818. It never 
 was in force in the United States. See 3 
 Bl. Comm. 337; 1 Hale, Hist. Com. Law, 188.. 
 See a modern case, 1 Barn. & Aid. 405. 
 
 (8) By wager of law, which mode of trial 
 has fallen into complete disuse; but, in 
 point of law, it seems in England to be still 
 competent in most cases to which it an 
 ciently applied. The most important and 
 best-established of these cases is the issue 
 of nil deiet, arising in "action of debt on 
 simple contract, or the issue of non detinet, 
 in an action of detinue. In the declaration 
 in these actions, as in almost all others, the 
 plaintiff concludes by offering his suit (of 
 which the ancient meaning was followers or 
 witnesses, though the words are now re- 
 tained as mere form) to prove the truth of 
 his claim. On the other hand, if the de- 
 fendant, by a plea of nil debet or non detinet, 
 deny the debt or detention, he may conclude 
 by offering to establish the truth of such 
 plea "against the plaintiff and his suit, in 
 such manner as the court shall direct." 
 Upon this, the court awards the wager of 
 law (Co. Entr. 119a; Lilly, Entr. 467; 3 Chit. 
 PI. 479), and the form of this proceeding, 
 when so awarded, is that the defendant 
 brings into court with him eleven of his 
 neighbors, and for himself makes oath that 
 he does not owe the debt or detain the 
 property. 
 
 TRIAL AT BAR. Trial before all th& 
 judges at the bar of the court in which the 
 
TRIAL AT NISI PRIUS 
 
 (924) 
 
 TRIPARTITE 
 
 suit is brought. Steph. PI. 84. Seldom used 
 except in cases of great importance. 
 
 TRIAL AT NISI PRIUS. Trial before a 
 Justice of assize; the usual method of trial. 
 3 Bl. Comm. 353. 
 
 TRIAL LIST. A list of cases marked down 
 for trial for any one term. 
 
 TRIATIO IBi SEMPER DEBET FIERI, 
 ubi juratores meliorem possunt habere 
 notltiam. Trial ought always to be had 
 where the jurors can have the best infor- 
 mation. 7 Coke, 1. 
 
 TRIBUERE (Lat.) In the civil law. To 
 give. Calv. Lex. To distribute. 
 
 TRIBUNAL. The seat of a judge; the place 
 where he administers justice. The whole 
 body of judges who compose a jurisdiction. 
 The jurisdiction which the judges exercise. 
 
 The term is Latin, and derives its origin 
 from the elevated seat where the tribunes 
 administered justice. 
 
 TRIBUNAUX DE COMMERCE. In the 
 
 French law, courts consisting of a presi- 
 dent, judges, and substitutes elected in an 
 assembly of the principal traders. No per- 
 son under thirty years is eligible as a mem- 
 ber of the tribunal, and the president must 
 be forty years of age, at the least. The tri- 
 bunal takes cognizance of all cases arising 
 between merchants, and also of all dis- 
 agreements arising among partners. The 
 course of procedure is as in civil cases, and 
 with an appeal to the regular courts. 
 Brown. 
 
 TRIBUTE. A contribution wiiich is some- 
 times raised by the sovereign from his sub- 
 jects to sustain the expenses of the state. It 
 is also a sum of money paid by one nation 
 to another under some pretended right. 
 Wolff. § 1145. 
 
 TRICESIMA. An ancient custom in a bor- 
 ough in the county of Hereford, so called, 
 because thirty burgesses paid Id. rent for 
 their houses to the bishop, who was lord of 
 the manor. 
 
 TRIDING MOTE. The court held for a 
 triding or trithing. Cowell. 
 
 TRIENNIAL ACT. An act limiting the 
 duration of every parliament to three years, 
 unless sooner dissolved. It was passed by 
 the long parliament in 1640, and afterwards 
 repealed, and the term was fixed at seven 
 years by the septennial act (St. 1 Geo. I. st. 
 2, c. 38). 
 
 TRIENS (Lat.) In the Roman law. A sub- 
 division of the as. containing four unciae;. 
 the proportion of four-twelfths or one-third. 
 Tayl. Civ. Law, 492; 2 BI. Conim. 462, note 
 (m). 
 
 TRIGAMUS. In old English law. One who 
 "has been thrice married; one who, at dif- 
 ferent times and successively, has had three 
 "wives; a trigamist. 3 Inst. 88. 
 
 TRIGILD. In Saxon law. A triple gild, 
 geld, or payment; three times the value of 
 a thing, paid as a composition or satisfac- 
 tion. Spelman, voc. "Geldum." 
 
 TRINITY HOUSE. In English law. The 
 short name usually given to a society incor- 
 porated in the reign of Henry VIII., and 
 charged by successive acts of parliament 
 with duties relating to the marine, especial- 
 ly in relation to pilotage, and the erection 
 and maintenance of lighthouses, beacons, and 
 sea marks. 
 
 TRINITY MASTERS. Elder brethren of 
 the Trinity House. If a question arising in 
 an admiralty action depends upon technical 
 skill and experience in navigation, the 
 judge or court is usually assisted at the 
 hearing by two trinity masters, who sit as 
 assessors, and advise the court on questions 
 of a nautical character. Williams & B. Adm. 
 Jur. 271; Sweet. 
 
 TRINITY SITTINGS. Sittings of the Eng- 
 lish court of appeal and of the high court 
 of justice in London and Middlesex, com- 
 mencing on the Tuesday after Whitsun week, 
 and terminating on the 8th of August. 
 
 TRINITY TERM. In English law. One of 
 the four terms of the courts. It begins on 
 the 22d day of May, and ends on the 12th 
 of June. St. 11 Geo. IV., and 1 Wm. IV. c. 70. 
 It was formerly a movable term. 
 
 TRINOBANTES, TRINONANTES, or TRI- 
 novantes. Inhabitants of Britain, situated 
 next to the Cantii, northward, who occu- 
 pied, according to Camden and Baxter, that 
 country which now comprises the counties 
 of Essex and Middlesex, and some part of 
 Surrey. But if Ptolemy be not mistaken, 
 their territories were not so extensive in his 
 time, as London did not then belong to them. 
 The name seems to be derived from the 
 three following British words: Tri, now, 
 hunt, i. e., inhabitants of the new city (Lon- 
 don). Enc. Lond. 
 
 TRINODA NECESSITA&(Lat.) The three- 
 fold necessary public duties to which all 
 lands were liable by Saxon law, viz., for re- 
 pairing bridges, for maintaining castles or 
 garrisons, and for expeditions to repel inva- 
 sions. In the immunities enumerated in 
 king's grants, these words were inserted, 
 "exceptis his tribus, expeditione, pontis et 
 arcis constructione." Kennett, Par. Ant. 46; 
 1 Bl. Comm. 263. . 
 
 TRIORS. In practice. Persons appointed 
 according to law to try whether a person 
 challenged to the favor is or is not qualified 
 to serve on the jury. They do not exceed 
 two in number, without the consent of the 
 prosecutor and defendant, or unless some 
 special case is alleged by one of them, or 
 when only one juror has been sworn and two 
 triors are appointed with him. Co. Litt. 
 158a; Bao. Abr. "Juries" (E 12). 
 
 TRIPARTITE. Consisting of three parts; 
 as, a deed tripartite, between A. of the first 
 part, B. of the second part, and C. of the 
 third part. 
 
TRIPLICACION 
 
 (92S) > 
 
 TRUCK ACT 
 
 TRIPLICACION (Law Pr.) In old plead- 
 ing. A rejoinder in pleading; the defend- 
 ant's answer to the plaintiff's replication. 
 Britt. c. 77. 
 
 TRIPLICATIO (Lat.) In civil law. The 
 reply of the plaintiff (actor) to the rejoinder 
 {dupUcatio) of the defendant (reus). It 
 corresponds to the surrejoinder of common 
 law. Inst. 4. 14; Bracton, lib. 5, tit. 5, c. 1. 
 
 TRIPLUM (Lat.) In the civil law. The 
 triple value of a thing. Actio in triplum, 
 an action for the triple value. Inst. 4. 6. 
 21. 24. 
 
 TRISTIS. A forest immunity. Manw. For. 
 Law, 1, 86. 
 
 TRITHING -(Saxon, frithinga). The third 
 part of a county, consisting of three or 
 four hundreds. 
 
 A court within the circuit of the trithing, 
 in the nature of a court leet, but inferior to 
 the county court. Camd. 102. The ridings 
 of Yorkshire are only a corruption of try- 
 things. 1 Bl. Comm. 116; Spelman, 52; 
 Cowell. 
 
 TRITHING MOTE. The court held for a 
 trithing or riding. 
 
 TRITHING REEVE. A governor of a 
 trithing. 
 
 TRIUMVIR. A trithing man or constable 
 of three hundred. Cowell. 
 
 TRIUMVIRI (or TREVIRI, or TRESVIRI) 
 , capltales (Lat.) In Roman law. Officers 
 who had charge of the prison, through 
 whose intervention punishments were in- 
 flicted. Sallust, in Catilin. They had eight 
 lictors to execute their orders. Vicat. 
 
 TRIVERBIAL DAYS. In the civil law. 
 Juridical days; days allowed to the praetor 
 for deciding causes; days on which the prae- 
 tor might speak the three characteristic 
 words of his office, viz., do. d/ico, addico. 
 Calv. Lex. Otherwise called "dies fasti." 3 
 Bl. Comm. 424, and note (w). 
 
 TRIVIAL. Of small importance. It is a 
 rule in equity that a demurrer will lie to a 
 bill on the ground of the triviality of the 
 matter in dispute, as being below the dignity 
 of the court. 4 Bouv. Inst, note 4237. See 
 Hopk. 112; 4 Johns. Ch. (N. Y.) 183; 4 
 Paige, Ch. (N. Y.) 364. 
 
 TRONAGE. In English law. A customary 
 duty or toll for weighing wool; so called 
 because it was weighed by a common trona, 
 or beam. Fleta, lib. 2, c. 12. 
 
 TRONATOR. A weigher of wool. Cowell. 
 
 TROPHY MONEY. Money formerly col- 
 lected and raised in London, and the sev- 
 eral counties of England, towards provid- 
 ing harness and maintenance for the militia, 
 etc. 
 
 TROVER (Fr./ro(aT/-,toflnd). In practice. 
 A form of action which lies to recover dam- 
 ages against one who has, without right. 
 
 converted to his own use goods or personal 
 chattels in which the plaintiff has a general 
 or special property. 
 
 The action was originally an action of 
 trespass on the case where goods were 
 found by the defendant and retained against 
 the plaintiff's rightful claim. The manner 
 of gaining possession soon came to be dis- 
 regarded, as the substantial part of the ac- 
 tion is the conversion to the defendant's 
 use; so that the action lies whether the 
 goods came into the defendant's possession 
 by finding or otherwise, if he fails to deliver 
 them up on the rightful claim of the plain- 
 tiff. It differs from detinue and replevin in 
 this, that it is brought for damages, and not 
 for the specific articles; and from trespass 
 in this, that the injury is not necessarily a 
 forcible one, as trover may be brought in any 
 case where trespass for injury to personal 
 property will lie; but the converse Is not 
 true. In case possession was gained by a 
 trespass, the plaintiff, by bringing his action 
 in this form, waives his right to damages 
 for the taking, and is confined to the injury 
 resulting from the conversion. 17 Pick. 
 (Mass.) 1; 21 Pick. (Mass.) 559; 17 Me. 434; 
 7 T. B. Mon. (Ky.) 209. 
 
 TRUCE. In international law. An agree- 
 ment between belligerent parties by which 
 they mutually engage to forbear all acts of 
 hostility against each other for some time, 
 the war still continuing. Burlam. Nat. Law, 
 pt. 4, c. 11, § 1. 
 
 Truces are of several kinds, — general, ex- 
 tending to all the territories and dominions 
 of both parties, and particular, restrained 
 to particular places, as, for example, by sea, 
 and not by land, etc. Burlam. Nat. Law, pt. 
 4, c. 11, § 5. They are also absolute, inde- 
 terminate, and general; or limited and de- 
 termined to certain things; for example, to 
 bury the dead. Id. See 1 Kent, Comm. 159; 
 Halleck, Int. Law, 654; Wheaton, Int. Law, 
 682. 
 
 TRUCE OF GOD (Law Lat. ^rew~a Dei; Sax- 
 on treuge or trewa, from German treu; Fr. 
 treve de Dieu). In the middle ages, a limita- 
 tion of the right of private warfare intro- 
 duced by the church. This truce provided 
 that hostilities should cease on holidays, 
 from Thursday evening to Sunday evening 
 of each week, the whole season of Advent 
 and Lent, and the octaves of great festivals. 
 The penalty for breach of the truce was ex- 
 communication. The protection of this truce 
 was also extended constantly to certain 
 places, as, churches, convents, hospitals, etc., 
 and certain persons, as, clerygmen, peasants 
 in the field, crusaders (Clermont, 1095), and, 
 in general, all defenseless persons. It was 
 first introduced into Acquitaine in 1077, and 
 into England vmder William the Conqueror. 
 Enc. Am. 
 
 TRUCK ACT. St. 1 & 2 Wm. IV. c. 37, 
 passed to abolish what is commonly called 
 the "truck system," under which employ- 
 ers were in the practice of paying the 
 wages of their work people in goods, or of 
 requiring them to purchase goods at cer- 
 tain shops. This led to laborers being com- 
 
TRUE BILL 
 
 (926) 
 
 TRUST DEED 
 
 pelled to take goods of inferior quality at 
 a high price. The act applies to all artifi- 
 cers, workmen, and laborers, except those 
 engaged in certain trades, especially iron 
 and metal works, quarries, cloth, silk, and 
 glass manufactories. It does not apply to 
 domestic or agricultural servants. Smith, 
 Mast. & S. 166; St. 23 & 24 Vict. c. 151, § 28. 
 
 TRUEBILL. In practice. Words indorsed 
 on a bill of indictment when a grand jury, 
 after having heard the witnesses for the gov- 
 ernment, are of opinion that there is suffi- 
 cient cause to put the defendant on his trial. 
 Formerly the indorsement was Billa vera 
 when legal proceedings were in Latin. It is 
 still the practice to write on the back of the 
 bill Ignoramus. When the jury do not find 
 It to be a true bill, the better opinion is that 
 the omission of the words "a true bill" does 
 not vitiate an indictment. 11 Gush. (Mass.) 
 473; 13 N. H. 488. See 5 Me. 432, and Ben- 
 nett's note. 
 
 TRUE, PUBLIC, and NOTORIOUS. These 
 three qualities used to be formally predicated 
 in the libel in the ecclesiastical courts of 
 the charges which it contained, at the end 
 of each article severally. 
 
 TRUST. A right of property, real or per- 
 sonal, held by on« party for the benefit of 
 another. 
 
 The party holding is called the "trustee," 
 and the party for whose benefit the right is 
 held is called the cestui que trust, or, using 
 a better term, the "beneficiary." 
 
 Somestimes the equitable title of the bene- 
 ficiary, sometimes the obligation of the trus- 
 tee, and, again, the right held, is called the 
 ■"trust." But the right of the beneficiary is 
 in the trust, the obligation of the trustee re- 
 sults from the trust, and the right held is 
 the subject matter of the trust. Neither of 
 them is the trust itself. All together they 
 constitute the trust. 
 
 An equitable right, title, or interest in 
 property, real or personal, distinct from its 
 legal ownership. 
 
 A personal obligation for paying, deliver- 
 ing, or performing anything where the per- 
 son trusting has no real right or security, 
 for by that act he confides altogether to the 
 faithfulness of those intrusted. 
 
 An obligation upon a person, arising out 
 of a confidence reposed in him, to apply 
 property faithfully and according to such 
 confidence. Willis, Trust, 1; 4 Kent, Comm. 
 295; 2 Ponbl. Eq. 1; 1 Saunders, Uses, 6; 
 Cooper, Bq. PI. Introd. 27; 3 Bl. Comm. 431. 
 
 The Roman fidei commissa were, under the 
 name of "uses," first Introduced by the clergy 
 into England in the reign of Richard n. or 
 Edward III., and, while perseveringly pro- 
 hibited by the clergy, and wholly discoun- 
 tenanced by the courts of common law, they 
 grew into public favor, and gradually de- 
 veloped into something like a regular branch 
 of law, as the court of chancery rose into 
 Importance and power. For a long time the 
 ■beneficiary, or cestui que trust, was without 
 adequate protection; but the statute of uses, 
 passed in 27 Henry VIII., gave adequate pro- 
 tection to the interests of the cestui que trust. 
 
 Prior to this statute, the terms "use" and 
 "trust" were used, if not indiscriminately, 
 at least without accurate distinction be- 
 tween them. The distinction, so far as there 
 was one, was between passive uses, where 
 the feofCee had no active duties imposed on 
 him, and active trusts, where the feofCee had 
 something to do in connection with the es- 
 tate. The statute of uses sought to unite the 
 seisin with the use, making no distinction 
 between uses and trusts, the result being 
 that, by a strict construction, both uses and 
 trusts were finally taken out of its intended 
 operation, and were both included under the 
 term "trust." The statute was passed in 
 1538; but trusts did not become settled on 
 their present basis till Lord Nottingham's 
 time, in 1676. 2 Washb. Real Prop. Index, 
 "Trust;" 1 Greenl. Cruise, Dig. 338. 
 
 (1) Trusts are either active, being those in 
 which the trustee has some duty to perform, 
 or passive (sometimes called "dry"), which 
 require the performance of no duty by the 
 trustee, but by force of which the legal title 
 merely rests in the trustee. 
 
 (2) Trusts are either executed or execu- 
 tory, executed trusts being those fully de- 
 clared by the person creating it, so that 
 nothing need be done to make it complete, 
 while an executory trust is one requiring 
 some further act to complete the intention 
 of the creator, as a conveyance to B. in trust 
 to convey to C. 
 
 (3) Trusts are either for value or volun- 
 tary, accordingly as they are or are not based 
 on a valuable consideration. 
 
 (4) Trusts are public or private, accord- 
 ingly as their object is for the general pub- 
 lic good, or for the benefit of certain Indi- 
 viduals. 
 
 (5) Trusts are, as to the manner of their 
 creation, either express or implied. 
 
 Express trusts are those which are created 
 in express terms in the deed, writing, or will. 
 The terms to create an express trust will be 
 sufficient if it can be fairly collected upon 
 the face of the instrument that a trust was 
 intended. Express trusts are usually found 
 in preliminary sealed agreements, such as 
 marriage articles, or articles for the pur- 
 chase of land; in formal conveyances, such 
 as marriage settlements, terms for years, 
 mortgages, assignments for the payment of 
 debts, .raising portions, or other purposes; 
 and in wills and testaments, when the be- 
 quests involve fiduciary interests for private 
 benefit or public charity. They may be cre- 
 ated even by parol. 6 Watts & S. (Pa.) 97. 
 
 Implied trusts are those which, without 
 being expressed, are deducible from the na- 
 ture of the transaction as matters of intent, 
 or which are superinduced upon the trans- 
 action by operation of law, as matters of 
 equity, independently of the particular in- 
 tention of the parties. The term is used in 
 this general sense. Including constructive 
 and resulting trusts, and also in a more re- 
 stricted sense, excluding those classes. 
 
 TRUST DEED. A form of mortgage in 
 use in Missouri and some other states, and 
 in the District of Columbia. A deed is made 
 
TRUSTEE 
 
 (927) 
 
 TUN 
 
 in trust with a power of sale, and the power 
 is exercised for the mortgagee's benefit. 
 Similar deeds are frequently made by rail- 
 road companies or other corporations to 
 secure bond issues where of necessity the 
 creditors secured are very numerous. 
 
 TRUSTEE. A person in whom some es- 
 tate, interest, or power in or affecting prop- 
 erty of any description is vested for the 
 benefit of another. 
 
 One to whom property has been conveyed 
 i;o be held or managed for another. 
 
 In Scotch Law. He who creates a 
 
 trust. 
 
 TRUSTEE ACTS. Sts. 13 & 14 Vict. c. 
 60, and 15 & 16 Vict. c. 55, passed to enable 
 the court of chancery (now the high court 
 of justice, on petition presented in the 
 chancery division) to appoint new trustees 
 of a settlement, will, or other instrument 
 creating a trust, whenever a trustee's death, 
 lunacy, absence or refusal to act, or other 
 reason, makes it necessary to apply to the 
 court. In other words, when the power of 
 appointing new trustees contained in the in- 
 strument, or provided by statute, cannot be 
 exercised. They also empower the court, 
 where property is held upon trust or mort- 
 gage by a lunatic or person of unsound 
 mind, or out of the jurisdiction of the court, 
 to transfer it by a vesting order (g. v.) to 
 some other person, or to make an order ap- 
 pointing some person to execute a deed in 
 -the place of a trustee or mortgagee, so as 
 -to give it the same effect as if the trustee 
 or mortgagee had executed it. Lewin, 
 Trusts; Shelf. R. P. St. 647; Daniell, Ch. 
 Prac. 1798; Pope, Lun. 263. See "Petition." 
 
 TRUSTEE EX MALEFICIO. One who, by 
 reason of his own wrong or fraud in acquir- 
 ing property, is regarded as holding it as a 
 -trustee for the purpose of rectifying thfe 
 "wrong. 
 
 TRUSTEE IN BANKRUPTCY. A trustee 
 in bankruptcy is a person in whom the 
 property of a bankrupt is vested in trust 
 for the creditors, not for the bankrupt. 10 
 Ch. Div. 388, 434. His duty is to discover, 
 realize, and distribute it among the credit- 
 -ors, and for that purpose to examine the 
 bankrupt's property, accounts, etc., to in- 
 vestigate proofs made by creditors, and to 
 .admit, reject, expunge, or reduce them, ac- 
 •cording to circumstances. He also has to 
 keep various accounts of his dealings with 
 "the property, and of the course of the bank- 
 ruptcy, which are audited by the committee 
 -of inspection and the comptroller in bank- 
 ruptcy. Robson, 488. 
 
 TRUSTEE PROCESS. In practice. A 
 meaps of reaching goods, property, and cred- 
 :its of a debtor in the hands of third persons, 
 for the benefit of an attaching creditor. 
 
 It is a process, so called, in the New Eng- 
 land states, and similar to the garnishee 
 ■process of others. It is a process given by 
 tstatute 15 of the statutes of Massachusetts. 
 M\ goods, effects, and credits so intrusted or 
 "deposited in the hands of others that the 
 
 same cannot be attached by ordinary process 
 of law may by an original writ of process, 
 the forrh of' 'which is given by the statute, 
 be attached in whose hands or possession 
 soever they may be found, and they shall, 
 from the service of the writ, stand bound and 
 be held to satisfy such judgment as the plain- 
 tiff may recover against the principal defend- 
 ant. Gushing, Trustee Process, 2. 
 
 The trustees, on suing out and service of 
 the process, according to statute, and its en- 
 try in court, may come into court and be 
 examined on oath as to property of the 
 principal in their hands. If the plaintiff 
 recovers against the principal, and there are 
 any trustees who have not discharged them- 
 selves under oath, he shall have execution 
 against them. Gushing, Trustee Process, 4; 
 2 Kent, Comm. (8th Ed.) 497, note. 
 
 TRUSTEE RELIEF ACTS. In England, 
 if a person has in his hands a sum of money 
 subject to a trust, and he does not know 
 who is beneficially entitled to it, he may, in- 
 stead of incurring the responsibility of pay- 
 ing it to the wrong person, or of institut- 
 ing an action for the execution of the trust, 
 pay it into court under the trustee relief 
 acts (10 & 11 Vict. c. 96, and 12 & 13 Vict, 
 c. 74). 
 
 TRUSTOR. A word occasionally, though 
 rarely, used as a designation of the creator, 
 donor, or founder of a trust. 
 
 TRY. To examine by judicial modes in 
 order to determine. 
 
 TUAS RESTIBI HABETO (Lat.) Have or 
 take your things to yourself. The form of 
 words by which, according to the old Roman 
 law, a man divorced his wife. Dig. 24. 2. 21. 
 Otherwise expressed, "Tuas res titi agito." 
 
 TUB MAN. In English law. A barrister 
 who has a preaudience in the exchequer, and 
 also one who has a particular place in court, 
 is so called. 
 
 TUCHAS. In Spanish law. Objections or 
 exceptions to witnesses. White, New Recop. 
 bk. 3, tit. 7, c. 10. 
 
 TUERTO. In Spanish law. Tort. Las 
 Partidas, pt. 7, tit. 6, lib. 5. 
 
 TUMBREL. An instrument of punishment, 
 made use of by the Saxons, chiefly for the 
 correction of scolding women by ducking 
 them in water, consisting of a stool or chair 
 fixed to the end of a long pole. 
 
 TUMULTUOUS PETITIONING. By St. 13 
 Car. II. St. 1, c. 5, signing of more than 
 twenty names to any petition to the crown 
 or either house of parliament for the altera- 
 tion of matters established by law in church 
 or state, unless the contents thereof had 
 been approved by three justices, or the ma- 
 jority of the grand jury at assizes or quar- 
 ter sessions, or the delivery of a petition by 
 more than ten persons. 4 Steph. Comm. 255. 
 
 TUN. A measure of wine or oil, contain- 
 ing four hogsheads. 
 
TUNGREVE 
 
 (928) 
 
 TUTOR 
 
 TUNGREVE (Saxon tungaraera, i. e., villae 
 praepositus) . A reeve or bailiff. Spelman; 
 Cowell. 
 
 One who in estates, which we call "man- 
 ors," sustains the character of master, and 
 in his stead disposes and arranges every- 
 thing. Qui in vilUs (quae dicimus maneriis) 
 domini personam sustinet, ejusque vice om- 
 nia disponit atque moderatur. 
 
 TURBA (Lat.) In the civil law. A multi- 
 tude; a crowd or mob; a tumultuous assem- 
 bly of persons. Said to consist of ten or 
 fifteen, at the least. Dig. 47. 8. 4. 2. 3 ; Calv. 
 Lex. 
 
 TURBARY. In English law. A right to 
 dig turf; an easement. 
 
 TURN, or TOURN. The great court leet 
 of the county, as the old county court was 
 the court baron. Of this the sheriff is judge, 
 and the court is incident to his office; where- 
 fore it is called the "sheriff's tourn," and it 
 had its name originally from the sheriff 
 making a turn or circuit about his shire, 
 and holding this court in each respective 
 hundred. 2 Hawk. P. C. c. 10. 
 
 TURNKEY. A person under the superin- 
 tendence of a jailer, whose employment is to 
 open and fasten the prison doors, and to pre- 
 vent the prisoners from escaping. 
 
 It is his duty to use due diligence; and he 
 may be punished for gross neglect or willful 
 misconduct in permitting prisoners to es- 
 cape. 
 
 TURNPIKE. A gate set across a road, to 
 stop travellers and carriages until toll is 
 paid for passage thereon. In the United 
 States, turnpike roads are often called "turn- 
 pikes," just as mail coach, hackney coach, 
 stage coach, are shortened to mail, hack, and 
 stage. Bnc. Am. 
 
 TURNPIKE ROAD. A road or highway 
 over which the public have the right to 
 travel upon payment of toll, and on which 
 the parties entitled to such toll have fhe 
 right to erect gates and bars to insure its 
 paymeilt. 6 Mees. & W. 428; 1 Ry. Cas. 665; 
 22 Eng. Law & Eq. 113; 16 Pick. (Mass.) 
 175; 8 Barb (N. Y.) 492. 
 
 TURPIS CAUSA (Lat.) A base or vile 
 consideration, forbidden by law, which makes 
 the contract void; as, a contract the consid- 
 eration of which is the future illegal co- 
 habitation of the obligee with the obligor. 
 
 TURPIS EST PARS QUAE NGN CONVE- 
 
 nit cum sue toto. That part is bad which ac- 
 cords not with its whole. Plowd. 161. 
 
 TURPITUDE (Lat. tiirpitudo, from turpis, 
 base). Everything done contrary to justice, 
 honesty, modesty, or good morals is said to 
 be done with turpitude. 
 
 TURPITUDO (Lat.) Turp;tude. 
 
 TUTA EST CUSTODIA QUAE SIBIMET 
 creditur. That guardianship is secure which 
 trusts to itself alone. Hob. 340. 
 
 TUTELA (Lat.) A power given by the 
 civil law over a free person to defend him, 
 when, by reason of his age, he is unable to 
 defend himseif. Women, by the civil law, 
 could only be tutors of their own children. 
 A child under the power of his father was 
 not subject to tutelage, because not a free 
 person, caput liberum. D. lib. 26, tit. 1, ff. 
 de tutelis; Inst. lib. 1, tit. 13, de tutelis; 
 Inst. lib. 3, tit. 28, de obligationibus quae ex 
 quasi cont. nascuntur. Nov. 72. 94. 155. 118. 
 
 Tutela legitima was where the tutor was 
 appointed by the magistrate. I^eg. 1, D. ff. 
 de leg. tut. 
 
 Tutela testamentaria was where the tutor 
 was appointed by will. D. lib. 26, tit. 2, ff. 
 de testament, tut.; C. lib. 5, tit. 28, de testa- 
 ment, tut.; Inst. lib. 1, tit. 14, qui testa- 
 mento tatores dart possunt. 
 
 T-UTELA LEGITIMA (Lat.) In the civil 
 law. Legal tutelage; tutelage created by 
 act of law, as where none had been created 
 by testament. Inst. 1. 15. pr. 
 
 TUTELA TESTAMENTARIA (Lat.) In 
 the civil law. Testamentary tutelage or 
 guardianship; that kind of tutelage which 
 was created by will. Calv. Lex. 
 
 TUTELAE ACTIO (Lat.) In the civil law. 
 An action of tu^telage; an action which lay 
 for a ward or pupil, on the termination of 
 tutelage, against the tutor or guardian, to 
 compel an account. Calv. Lex. 
 
 TUTELAGE. Guardianship; state of be- 
 ing under a guardian. 
 
 TUTELAM REDDERE (Lat.) In the civil 
 law. To render an account of tutelage. Calv. 
 Le-'. Tutelam rep^scere, to demand an ac- 
 count of tutelage. 
 
 TUTEUR OFFICIEUX. In French law, a 
 person over fifty years of age may be ap- 
 pointed a tutor of this sort to a child over 
 ■\fteen years of age, with the consent of the 
 parents of sv.ch child, or (in their default) 
 the conseil de famille. The duties which 
 such a tutor becomes subject to are analo- 
 gous to those in English law of a person who 
 puts himself in loco parentis to any one. 
 Brown. See "In Loco Parentis." 
 
 TUTEUR SUBROGE. In French law, in 
 the case of an infant under guardianship, 
 a second guardian is appointed to him, the 
 duties of the latter (who is called the "sui- 
 roge tuteur") only arising where the inter- 
 ests of the infant and his principal guardian 
 are in conflict. Code Nap. 420; Brown. 
 
 TUTIUS ERRATUR EX PARTE MITIORI. 
 
 It is safer to err on the side of mercy. 3 
 Inst. 220. 
 
 TUTIUS SEMPER EST ERRARE AC- 
 quietando, quam In punlendo; ex parte mise- 
 rlcordia quam ex parte justitia. It is always 
 safer to err in acquitting than punishing; 
 on the side of mercy than on the side of jus- 
 tice. Branch, Princ; 2 Hale, P. C. 290. 
 
 TUTOR. In civil law. One who has been 
 
TUTOR ALIENUS 
 
 (929) 
 
 TYLWITH 
 
 lawfully appointed to the care of the person 
 and property of a minor. 
 
 By the laws of Louisiana, minors under 
 the age of fourteen years, if males, and un- 
 der the age of twelve years, if females, are, 
 both as to their persons and their estates, 
 placed under the authority of a tutor. Civ. 
 Code La. art. 263. Above that age, and until 
 their majority or emancipation, they are 
 placed under the authority of a curator. Id. 
 
 TUTOR ALIENUS (Lat.) In English law. 
 The name given to a stranger who enters 
 into the lands of an infant within the age of 
 fourteen and takes the profits. 
 
 He may be called to an account by the in- 
 fant, and be charged as guardian in socage. 
 Litt. § 124; Co. Litt. 89b, 90a; Harg. Law 
 Tr. note 1. 
 
 TUTOR PROPRIUS (Lat.) The name 
 given to one who is rightly a guardian in 
 socage, in contradistinction to a tutor 
 alienus. 
 
 TUTORSHIP. The power which an indi- 
 vidual, sui juris, has to take care of the per- 
 son of one who is unable to take care of him- 
 self. Tutorship differs from curatorship. 
 
 TUTRIX (Lat.) A woman who is appoint- 
 ed to the office of a tutor. 
 
 TWELFHINDI. The higtest rank of men 
 in the Saxon government, who were valued 
 at 1,200s. If any injury were done to such 
 persons, satisfaction was to be made ac- 
 cording to their worth. Cowell. 
 
 TWELVE-DAY WRIT. A writ issued un- 
 der St. 18 & 19 Vict. c. 67, for summary pro- 
 cedure on bills of exchange and promissory 
 notes, abolished by rule of court in 1880. 
 Wharton. 
 
 TWELVE TABLES. Lawsof ancient Rome, 
 composed in part from those of Solon and 
 other Greek legislators, and in part from the 
 unwritten laws and customs of the Romans. 
 
 These laws first appeared in the year of 
 Rome 303, inscribed on ten plates of brass. 
 The following year two others were added, 
 and the- entire code bore the name of the 
 "Laws of the Twelve Tables." The princi- 
 ples they contained were the germ of all the 
 Roman law, the original source of the juris- 
 prudence of the greatest part of Europe. 
 
 See a fragment of the Law of the Twelve 
 Tables in Cooper, Just. 656; Gibb. Hist. Rom. 
 Emp. c. 44; Code, § 27. 
 
 TWELVEMONTH. In the singular, in- 
 cludes the whole year, but in the plural 
 twelve months of twenty-eight days each. 6 
 Coke, 62; 2 Bl. Comm. 140, note. 
 
 TWICE IN JEOPARDY. See "Jeopardy." 
 
 TWYHINDI. The lower order of Saxons, 
 valued at 200s. in the scale of pecuniary 
 mulcts infiicted for crimes. Cowell. 
 
 TYBURN TICKET. In English law. A 
 certificate given to the prosecutor of a felon 
 to conviction. 
 
 By 10 & 11 Wm. III. c. 23, the original 
 proprietor or first assignee of such certifi- 
 cate is exempted from all and all manner of 
 parish and ward offices within the parish or 
 ward where the felony shall have been com- 
 mitted. Bac. Abr. "Constable" (C). 
 
 TYHTLAN (Saxon). In Saxon law. An 
 accusation, impeachment, or charge of any 
 offense. Xex componat aliquis pro ulla 
 tyhtlan, si non intersit testimonium praepos- 
 iti regis, nor shall any one compound for 
 any accusation, unless there be present evi- 
 dence on behalf of the king. LL. Ethelr. 
 c. 2; Cowell. 
 
 TYLWITH (Brit, from tyle, the site of a 
 house, or tylath, a beam in a building). A 
 tribe or family branching or issuing out of 
 another. Cowell. 
 
U R 
 
 (930) 
 
 UBI NULLA, ETC. 
 
 u 
 
 U. R. Ut rogas, as you desire. In Roman 
 law, a vote in favor of a proposed law or a 
 candidate. See "Rogare." 
 
 UBERRIMA FIDES (Lat. most perfect 
 good faith). A phrase used to express the 
 perfect good faith, concealing nothing, with 
 which a contract must be made; for ex- 
 ample, in the case of insurance, the insured 
 must observe the most perfect good faith 
 towards the insurer. 1 Story, Bq. Jur. § 317; 
 
 3 Kent, Comm. (4th Bd.) 283. 
 
 UBI ALIQUID CONCEDITUR, CONCEDI- 
 tur et Id sine quo res ipsa esse non potest. 
 Wlhen anything is granted, that also is 
 granted without which the thing granted 
 cannot exist. Broom, Leg. Max. (3d London 
 Bd.) 429; 13 Mees. & W. 706. 
 
 UBI ALIQUID IMPEDITUR PROPTER 
 unum, eo remoto, tollitur impedimentum. 
 "When anything is impeded by one single 
 cause, if that be removed, the impediment 
 Is removed. 5 Coke, 77a. 
 
 UBI CESSAT REMEDIUIVl ORPINARIUM 
 ibi decurritur ad extraordinarium. When a 
 common remedy ceases to be of service, re- 
 course must be had to an extraordinary one. 
 
 4 Coke, 93. 
 
 UBI CULPA EST, IBI POENA SUBESSE 
 debet. Where the crime is committed, there 
 the punishment should be inflicted. Jenk. 
 Cent. Cas. 325. 
 
 UBI DAMNA DANTUR, VICTUS VICTO- 
 ri in expensis condemnari debet. Where 
 damages are given, the losing party should 
 be adjudged to pay the costs of the victor. 
 2 Inst. 289; 3 Bl. Comm. 399. 
 
 UBI EADEiVI RATIO, IBI IDEIVI LEX. 
 
 Where there is the same reason, there is the 
 same law. 7 Coke. 18; Broom, Leg. Max. (3d 
 London Ed.) 145. 
 
 UBI ET DANTIS ET ACCIPIENTIS TUR- 
 pitudo versatur, non posse repti diclmus; 
 quotiens autem accipientis turpitude versa- 
 tur, repeti posse. Where there is turpitude 
 on the part of both giver and receiver, we 
 say it cannot be recovered back, but as often 
 as the turpitude is on the side of the re- 
 ceiver alone, it can be recovered back. 17 
 Mass. 562. 
 
 UBI FACTUIVI NULLUIVI, IBI FORTIA 
 nulla. Where there is no act, there can be 
 no force. 4 Coke, 43. 
 
 UBI JUS, IBI REIVIEDIUM. Where there 
 is a right, there is a remedy. 1 Term R. 
 512; Co. Litt. 197b; 3 Bouv. Inst, note 2411; 
 4 Bouv. Inst. 3726. 
 
 UBI JUS INCERTU1V1, IBI JUS NULLUM. 
 
 Where the law is uncertain, there is no law. 
 
 UBI LEX ALIQUEM COGIT OSTENDERE 
 causam, necesse est quod causa sit Justa et 
 legitima. Where the law compels a man to 
 show cause, it is necessary that the cause 
 be just and legal. 2 Inst. 269. 
 
 UBI LEX EST SPECIALIS, ET RATIO 
 ejus generalis, generaliter accipienda est. 
 
 Where the law is special, and the reason of 
 it is general, it ought to be taken as being 
 general. 2 Inst. 43. 
 
 UBI LEX NON DISTINGUIT, NEC NOS 
 distinguere debemus. Where the law does 
 not distinguish, we ought not to distinguish. 
 7 Coke, 5. 
 
 UBI MAJOR PARS EST, IBI TOTUM. 
 
 Where is the greater part, there is the whole. 
 P. Moore, 578. 
 
 UBI MATRIMONIUM, IBI DOS. Where 
 there is marriage, there is dower. Brac- 
 ton, 92. 
 
 UBI NON ADEST NORMA LEGIS, OMNIA 
 quasi pro suspectis habenda sunt. When the 
 law fails to serve as a rule, almost every- 
 thing ought to be suspected. Bac. Aph. 25. 
 
 UBI NON EST ANNUA RENOVATIO, IBI 
 decimae non debent solvi. Where there is 
 no annual renovation, there tithes ought 
 not to be paid. 
 
 UBI NON ESTCONDENDl AUCTORITAS, 
 ibi non est parendi necessitas. Where there 
 is no authority to establish, there is no ne- 
 cessity to obey. Day. 69. 
 
 UBI NON EST DIRECTALEX.STANDUM 
 est arbitrio Judicis, vel procedendum ad si- 
 miiia. Where there Is no direct law, the 
 judgment of the judge must be depended 
 upon, or reference made to similar cases. 
 
 UBI NON EST LEX,IBI NON ESTTRANS- 
 gressio quoad mundum. Where there is no 
 law, there is no transgression, as it regards 
 the world. 4 Coke, lb. 
 
 UBI NON EST MANIFESTA INJUSTITIA, 
 judices habentur pro bonis viris, et judica- 
 tum pro veritate. Where there is no mani- 
 fest injustice, the judges are to be regarded 
 as honest men, and their judgment as truth. 
 1 Johns. Cas. (N. Y.) 341, 345. 
 
 UBI NON EST PRINCIPALIS, NON Po- 
 test esse accessorius. Where there is no 
 principal, there can be no accessory. 4 
 Coke, 43. 
 
 UBI NULLA EST CONJECTURA QUAE 
 ducat alio, verba intelligenda sunt ex pro- 
 prietate non grammatica sed popular! ex usu. 
 
 Where there is no inference which would 
 lead in any other direction, words are to be 
 understood according to their proper mean- 
 
UBI NULLUM, ETC. 
 
 (931) 
 
 ULTRA VIRES 
 
 ing, nongrammatical, but according to popu- 
 lar usage. Grotius de Jure Belli, lib. 2, c. 
 16, § 2. 
 
 UBI NULLUM MATRIMONIUM, IBI NUL- 
 lum dos. Where there is no marriage there 
 is no dower. Co. Litt. 32a. 
 
 UBI PERICULUM, IBI ET LUCRUM COL- 
 locatur. He at whose risk a thing is, should 
 receive the profits arising from it. 
 
 UBI PUGNANTIA INTER SE IN TESTA- 
 mento juberentur, neutrum ratum est. When 
 two directions conflicting with each other 
 are given in a will, neither is held valid. 
 Dig. 50. 17. 188, pr. 
 
 UBI QUID GENERALITER CONCEDI- 
 tur, in est haec exceptio, si non aliquid sit 
 contra jus fasque. Where a thing is con- 
 ceded generally, this exception arises, that 
 there shall be nothing contrary to law and 
 right. 10 Coke, 78. 
 
 UBI GUIS DELINQUIT IBI PUNIETUR. 
 
 Let a man be punished where he commits the 
 offense. 6 Coke, 47. 
 
 UBI RE VERBI. When in fact. 
 
 UBI REVERA (Lat.) Where in reality; 
 where in truth, or in point of fact. Cro. 
 Eliz. 645; Cro. Jac. 4. 
 
 UBI VERBA CONJUNCTA NON SUNT, 
 sufficit alteratum esse factum. Where words 
 are used disjunctively, it is sufficient that 
 either one of the things enumerated be per- 
 formed. Dig. 50. 17. 110. 3. 
 
 UBICUNQUE EST INJURIA, IBI DAM- 
 num sequitur. Wherever there is a wrong, 
 there damage follows. 10 Coke, 116. 
 
 UBICUNQUE FUERIMUS IN ANGLIA 
 
 (Law Lat. Wheresoever we shall be in Eng- 
 land). The style of the return of writs in 
 the court of king's or queen's bench; it be- 
 ing in theory a movable court, attendant 
 upon the sovereign's person. 3 Bl. Comm. 
 41, 284. See Fleta, lib. 2, c. 2, § 6; Id. lib. 
 2, c. 64, § 19. 
 
 UDAL. A term mentioned by Blackstone, 
 as used in Finland to denote that kind of 
 right in real property which is called in 
 English law "allodial." 2 Bl. Comm. 45, note 
 (f). The term is used in Orkney and Zet- 
 land. 1 Forbes, Inst. pt. 3, pp. 6, 82. 
 
 UKAAS, or UKASE. The name of a law 
 or ordinance emanating from the czar of 
 Russia. 
 
 ULLAGE. In commercial law. The amount 
 wanting when a cask, on being gauged, is 
 found only partly full. 
 
 ULNA FERREA. The standard ell of 
 iron, which was kept in the exchequer for 
 the rule of measure. Mon. Angl. ii. 383. 
 
 ULNAGE. Alnage; a duty for measuring 
 cloth. 
 
 ULTIMA RATIO. The last resort. 
 
 ULTIMA VOLUNTAS (Lat.) In old Eng- 
 lish law. Last will; the last will. In testa- 
 mento suo, in ultima voluntate sua, in his 
 testament, in his last will. Reg. Grig. 244b. 
 
 ULTIMA VOLUNTAS TESTATORIS EST 
 perimplenda secundum veram intentionem 
 suam. The last will of a testator is to be 
 fulfilled according to his true intention. Co. 
 Litt. 322; Broom, Leg. Max. (3d London 
 Ed.) 505. 
 
 ULTIMATE FACTS. The main, or pri- 
 mary facts in an issue. The facts which 
 prove the ultimate facts are eTidentiary 
 facts or probative facts. The ultimate facts 
 are to be pleaded, while the others are not, 
 being "evidence." 
 
 ULTIMATUM (Lat.) The last proposition 
 made in making a contract, a treaty, and the 
 like; as, the government of the United 
 States has given its ultimatum, — has made 
 the last proposition it will make to complete 
 the proposed treaty. The word also means 
 the result of a negotiation, and it comprises 
 the final determination of the parties con- 
 cerned in the object in dispute. 
 
 ULTIMUM SUPPLICIUM (Lat.) The last 
 or extreme punishment; the penalty of death. 
 
 ULTIMUM SUPPLICIUM ESSE MORTEM 
 solam interpretamur. The extremest punish- 
 ment we consider to be death alone. Dig. 
 48. 19. 21. 
 
 ULTIMUM TEMPUS PARIENDI (Lat.) 
 The extreme period of bearing; the extreme 
 period between the conception and the birth 
 of a child. 2 Steph. Comm. 317. 
 
 ULTIMUS HAERES (Lat.) The last or re- 
 mote heir; the lord. So called in contra- 
 distinction to the haeres proximus and the 
 haeres remotior. Dalr. Feud. Prop. 110. 
 
 ULTRA. 
 
 side of. 
 
 In Latin phrases. Beyond; out- 
 
 ULTRA MARE (Lat. beyond sea). One of 
 the old essoins or excuses for not appearing 
 in court at the return of process. Bracton, 
 fol. 338. 
 
 ULTRA POSSE NON POTEST ESSE, ET 
 vice versa. What is beyond possibility can- 
 not exist, and the reverse, what cannot exist 
 is not possible. Wingate, Max. 100. 
 
 ULTRA REPRISES. After deductions. 
 
 ULTRA VIRES (Lat.) The modern tech- 
 nical designation, in the law of corporations, 
 of acts beyond tlie scope of their powers, as 
 defined by their charters or acts of incorpo- 
 ration. 
 
 It was early contended that a corporation 
 could not exceed its powers; that the acts 
 of its agents beyond the charter powers of 
 the corporation were not the acts of the cor- 
 poration; but it is now well settled that 
 "corporations, like natural persons, have 
 power and capacity to do wrong. They may, 
 in their dealings and contracts, break over 
 the liability imposed upon them by their 
 
ULTRONEUS WITNESS 
 
 (932) 
 
 UNDE COGNATI 
 
 charters, and when they do so, their exemp- 
 tion from liability cannot be claimed on the 
 mere ground that they have no attributes or 
 faculties which render it possible for them 
 thus to act." 119 Ind. 324. 
 
 There is much conflict in the cases as to 
 the validity of an ultra vires oontVact. In 
 some states, it is held that, if the corpora- 
 tion had no authority to make the contract, 
 it is void, but if it was within the general 
 scope of the corporate power, and the want 
 of po'B'fer in that case was because of par- 
 ticular facts, it is valid (43 Wis. .420; 8 
 Ohio, 257) ; while in several states it is held 
 that "the plea of ultra vires should not pre- 
 vail, whether it is imposed for or against 
 the corporatioji, when it would not advance 
 justice, but, on the contrary, would accom- 
 plish a legal wrong (63 N. Y. 62; 151 111. 
 531). 
 
 ULTRONEUS WITNESS. In Scotch law. 
 A witness who offers his testimony without 
 being regularly cited. The objection only 
 goes to his credibility, and may be removed 
 by a citation at any time before the witness 
 is sworn. See Bell, Diet. "Evidence." 
 
 UMPIRAGE. The decision of an umpire. 
 This word is used for the judgment of an 
 umpire, as the word "award" is employed to 
 designate that of arbitrators. 
 
 UMPIRE. A person selected by two or 
 more arbitrators who cannot agree as to 
 the subject matter referred to them, for the 
 purpose of deciding the matter in dispute. 
 Sometimes the term is applied to a single 
 arbitrator selected biy the parties them- 
 selves. Kyd, Awards, 6, 75, 77; Caldwell, 
 Abr. 38; Dane, Abr. Index; 3 Viner, Abr. 
 93; Comyn, Dig. "Arbitrament" (P); 4 Dall. 
 (U. S.) 271, 432; 4 Scott, N. S. 378; Bouv. 
 Inst. Index. 
 
 UN NE DOIT PRISE ADVANTAGE DE 
 son tort demesne. One ought not to take ad- 
 vantage of his own wrong. 2 And. 38. 40. 
 
 UNA CUM OMNIBUS ALMS (Lat. to- 
 gether with all other things). A phrase ip 
 old conveyancing. Hob. 175. 
 
 UNA PERSONAVIX POTEST SUPPLERE 
 vices duarum. One person can scarcely sup- 
 ply the place of two. 4 Coke, 118. 
 
 UNA VOCE (Lat.) With one voice; unan- 
 imously. 
 
 UNALIENABLE. Incapable of being sold. 
 
 Things which are not in commerce, as 
 public roads, are in their nature unalien- 
 able. Some things are unalienable in con- 
 sequence of particular provisions in the law 
 forbiddiiig their sale or transfer; as, pen- 
 sions granted by -the government. The nat- 
 ural rights of life and liberty are unalien- 
 able. 
 
 U N AN I M ITY (Lat. unus, one, aninmSrTaini) . 
 The agreement of all the persons concerned 
 in a thing, in design and opinion. 
 
 Generally, a simple majority of any num- 
 ber of persons is sufficient to do such acts as I 
 
 the whole number can do, — for example, a 
 majority of the legislature can pass a law; 
 but there are some cases in which unanimity 
 is required, — for example, a traverse jury 
 composed of twelve individuals cannot de- 
 cide an issue submitted to them unless they 
 are unanimous. 
 
 UNCEASESATH. An oath by relations 
 not to avenge a relation's death. Blount. 
 
 UNCERTAINTY. Vagueness or obscurity 
 of language in written instruments. 
 
 UNCI A. The twelfth part of the Roman 
 as. Dess. Diet, du Dig. "As." The as was 
 used to express an integral sum; hence uncia 
 for one-twelfth of anything, commonly one- 
 twelfth of a pound, i. e., an ounce. Id.; 2 Bl. 
 Comm. 462, note (m). » ' " 
 
 UNCIA TERRAE (Lat.) This phrase often 
 occurs in charters of the British kings, and 
 denotes some quantity of land. It was 
 twelve modii, each modius possibly one hun- 
 dred feet square. Mon. Angl. tom. 3, pp. 198, 
 205. 
 
 UNCIARIUS HAERES. In the Roman law, 
 an heir to one-twelfth of an estate or in- 
 heritance. Calv. Lex. 
 
 UNCLAIMED DIVIDENDS. In English 
 bankruptcy practice, dividends remaining 
 unclaimed for five years are forfeited to the 
 government (Bankruptcy Act 1869, § 116), 
 but may, upon satisfactory proof of right 
 thereto, be paid over to the creditors en- 
 titled (38 & 39 Vict. c. 77, § 32). And in 
 chancery, the lord chancellor may, under 
 St. 16 & 17 Vict. c. 98, § 3, order dividends 
 unclaimed for fifteen years to be carried to 
 "the suitors' unclaimed dividend account;" 
 and these, under 32 & 33 Vict. c. 91, are 
 transferred to the public on their indemnity. 
 Dividends not being claimed for ten years 
 on stock in the Bank of England, the stock 
 is forthwith transferred to the government 
 on the like indemnity. Brown. 
 
 UNCONSCIONABLE BARGAIN. A con- 
 tract which no man in his senses, not under 
 delusion, would make, on the one hand, and 
 which no fair and honest man would accept, 
 on the other. 4 Bouv. Inst, note 3848. 
 
 UNCONSTITUTIONAL. That which is 
 contrary to the constitution. 
 
 UNCORE PRIST (Law Fr. still ready). In 
 pleading. A plea or replication that the 
 party pleading is still ready to do what is 
 required. Used in connection with the 
 words tout temps prist, the whole denotes 
 that the party always has been and still is 
 ready to do what is required, thus saving 
 costs where the whole cause is admitted, or 
 preventing delay where it is a replication, if 
 the allegation is made out. 3 Bl. Comm. 303. 
 
 UNCUTH. In Saxon law. Unknown; a 
 stranger. A person entertained in the house 
 of another was, on the first night of his fen- 
 tertainment, so called! Bracton, fol. 124b. 
 
 UNDE COGNATI (Lat.) In the civil law. 
 
UNDE LEGITIMI 
 
 (933) 
 
 UNDUE INFLUENCE 
 
 A species of the bonorum possessio granted 
 to cognates, or relations on the part of 
 the mother. Inst. 3. 10. 1. 2; Dig. 38. 8; 
 Helnec. Elem. Jur. Civ. lih. 3, tit. 10, § 724; 
 Halifax, Anal. bk. 2, o. 11, No. 5. 
 
 UNDE LEGITIMI (Lat.) In the civil law. 
 A species of the bonorum possessio granted 
 to agnates, or the lawful heirs. Inst. 3. 10. 
 
 I. 2; Dig. 38. 7; Heinec. Elem. Jur. Civ. lib. 
 3, tit. 10, § 723; Halifax, Anal. bk. 2, c. 11, 
 No. 5. 
 
 UNDE LIBERI (Lat.) In the civil law. 
 A species of the bonorum possessio granted 
 to emancipated children, or the proper heirs 
 •of the deceased. Heinec. Elem. Jur. Civ. 
 lib. 3, tit. 10, § 722; Halifax, Anal. bk. 2, c. 
 
 II, No. 5; Inst. 3. 10. 1. 2; Dig. 38. 6. 
 
 UNDE NIHIL HABET. See "Dower." 
 
 UNDE VI (Lat. wherefrom by force). In 
 the civil law. The technical name of that 
 species of interdict which was granted to 
 recover the possession of an immovable 
 thing wherefrom a person had been ejected 
 T)y force. Inst. 4. 15. 6; Heinec. Elem. Jur. 
 Civ. lib. '4, tit. 15, § 1303; 1 Mackeld. Civ. 
 Law, 250, § 253. 
 
 UNDE VI R ET UXOR (Lat.) In the 
 civil law. A species of the bonorum posses- 
 sio granted to a husband or wife, and 
 by which they succeeded each other, on 
 failure of the cognati. Inst. 3. 10. 1. 2; Dig. 
 38. 11; Heinec. Elem. Jur. Civ. lib. 3, tit. 10, 
 § 725; Halifax, Anal. bk. 2, c. 11, No. 5. 
 
 UNDEFENDED. In pleading. Without 
 ■defense or denial. Where judgment passes 
 by default against a defendant, the lan- 
 guage in which the default is recorded is 
 that the defendant "says nothing in bar or 
 preclusion of the action, whereby the plain- 
 tiff remains therein undefended against the 
 said defendant." Archb. Forms, 336. 
 
 UNDER-CHAMBERLAINS OF THE Ex- 
 chequer. Two officers who cleaved the tal- 
 lies written by the clerk of the tallies, and 
 read the same, that the clerk of the pell and 
 comptrollers thereof might see their entries 
 were true. They also made searches for rec- 
 ords in the treasury, and had the custody 
 of Domesday Book. Abolished. 
 
 UNDER LEASE. An alienation by a ten- 
 ant of a part of his lease, reserving to him- 
 self a reversion. It differs from an "assign- 
 ment," which is a transfer of all the tenant's 
 interest in the lease. 3 Wils. 234; W. Bl. 
 766. And even a conveyance of the whole 
 ■estate by the lessee, reserving to himself the 
 rent, with a power of re-entry for nonpay- 
 ment, was held to be not an assignment, but 
 an under lease. Strange, 405. In Ohio it 
 lias been decided that the transfer of a 
 part only of the lands, though for the whole 
 term, is an under lease. 2 Ohio, 216. In 
 Kentucky, such a transfer, on the contrary, 
 is considered as an assignment. 4 Bibb 
 (Ky.) 538. See "Lease." 
 
 UNDER SHERIFF. In English law. A 
 person appointed by the sheriff of a county 
 to perform all his ordinary duties in his be- 
 half. Sometimes confounded with a deputy 
 sheriff, but the latter term is properly ap- 
 plicable to those whom the sheriff appoints 
 to execute process in his behalf, and who 
 have no other powers than such as apper- 
 tain to that particular duty. 1 Bl. Comm. 
 345, note. 
 
 UNDERTAKING. In the primary sense 
 of the word, an undertaking is a promise. 
 In the old books, "undertaker" means a 
 promisor. 1 Salk. 27. 
 
 "Undertaking" is frequently used in the 
 special sense of a promise given in the 
 course of legal proceedings by a party or 
 his counsel, generally as a condition to ob- 
 taining some concession from the court or 
 the opposite party. 
 
 UNDERTENANT. One who holds by vir- 
 tue of an underlease. 
 
 UNDER TUTOR. In Louisiana. In every 
 tutorship there shall be an under tutor, 
 whom it shall be the duty of the judge to 
 appoint at the time letters of tutorship are 
 certified for the tutor. 
 
 It is the duty of the under tutor to act for 
 the minor whenever the interest of the minor 
 is in opposition to the interest of the tutor. 
 Civ. Code La. arts. 300, 301; 1 Mart. (La.;, 
 N. S.) 462; 9 Mart. (La.) 643; 11 La. 189; 
 Poth. des Personnes, partie prem. tit. 6, § 5, 
 art. 2. See "Procurator;" "Protutor." 
 
 UNDERTOOK. Assumed; promised. This 
 is a technical word, which ought to, be in- 
 serted in every declaration of assumpsit 
 charging that the defendant undertook to 
 perform the promise which is the founda- 
 tion of the suit; and this, though the prom- 
 ise be founded on a legal liability, or would 
 be implied in evidence. Bac. Abr. "Assump- 
 sit" (P) ; 1 Chit. PI. 88, note (p). 
 
 UNDERWRITER. In insurance. The party 
 who agrees to insure another on life or prop- 
 erty, in a policy of insurance. He is also 
 called the "insurer." 
 
 UNDIVIDED. Held by the same title by 
 two or more persons, whether their rights 
 are equal as to value or quantity, or un- 
 equal. 
 
 Tenants in common, joint tenants, and 
 partners hold an undivided right in their re- 
 spective properties until partition has been 
 made. The rights of each owner of an un- 
 divided thing extend over the whole and 
 every part of it, totum in iota, et totum in 
 qualibet parte. See "Per My et Per Tout." 
 
 UNDRES (Saxon). In old English law. 
 Minors or persons under age. 
 
 UNDUE INFLUENCE. Any improper con- 
 straint, machination or urgency of persua- 
 sion whereby the will of a person is over- 
 powered, and he is induced to act other- 
 wise than he would have done. It has been 
 said to imply more subtle influence than 
 "duress" (see Story, Eq. Jur. § 239), but has 
 
UNGELD 
 
 (934) 
 
 UNITY OF SEISIN 
 
 been held to include threats and violence, 
 in which use it is synonymous with 
 "duress" (33 N. J. Eq. 494). As used in re- 
 spect to wills, it includes duress. 
 
 UNGELD. In Saxon law. An outlaw; a 
 person whose murder required no composi- 
 tion to be made, or weregeld to be paid, by 
 his slayer. 
 
 UNICATAXATIO (Lat.) In practice. The 
 ancient language of a special award of ve- 
 nire, where of several defendants one pleads, 
 and one lets judgment go by default, where- 
 by the jury who are to try and assess dam- 
 ages on the issue are also to assess damages 
 against the defendant suffering judgment by 
 default. Lee. 
 
 UNIFORMITY, ACT OF. St. 13 & 14 Car. 
 II. c. 4, which regulates the terms of mem- 
 bership in the Church of England and the 
 colleges of Oxford and Cambridge. See St. 
 9 & 10 Vict. c. 59. The act of uniformity has 
 been amended by St. 35 & 36 Vict. c. 35, 
 which inter alia provides a shortened form 
 of morning and evening prayer. Wharton. 
 
 UNIFORMITY OF PROCESS. In English 
 law. An act providing for uniformity of 
 process in personal actions in his majesty's 
 courts of law at Westminster. 2 Wm. IV. c. 
 39 (23d May, 1832) ; 3 Chit. St. 494. 
 
 UNILATERAL CONTRACT. A contract 
 lacking in mutuality of obligation. 
 
 In the Civil Law. When the party to 
 
 whom an engagement is made makes no ex- 
 press agreement on his part, the contract is 
 called "unilateral," even in cases where the 
 law attaches certain obligations to his ac- 
 ceptance. Civ. Code La. art. 1758; Code 
 Nap. 1103. A loan of money and a loan for 
 use are of this kind. Poth. Obi. pt. 1, c. 1, § 
 1, art. 2; Lee. Elm. § 781. 
 
 UNINTELLIGIBLE. That which cannot be 
 understood. 
 
 When a law, a contract, or will is unin- 
 telligible, it has no effect whatever. 
 
 UN 10 (Lat.) In canon law. A consolida- 
 tion of two churches into one. Cowell. 
 
 UNIO PROLIUM (Lat. union of offspring). 
 A species of adoption used among the Ger- 
 mans, which takes place when a widower 
 having children marries a widow who also 
 h-as children. These parents then agree that 
 the children of both marriages shall have 
 the rights to their succession, as those which 
 may be the fruits of their marriage. Lee. 
 Elm. § 187. 
 
 UNION. 
 
 In the English Poor Law. Two or 
 
 more parishes which have been consolidated 
 for the better administration of the poor 
 law therein. 
 
 In Ecclesiastical Law. Two or more 
 
 benefices which have been united into one 
 benefice. Such a union may be made under 
 St. 1 & 2 Vict. 0. 106, passed "to abridge the 
 holding of benefices in plurality," and 
 amended by St. 13 & 14 Vict. o. 98; and 
 
 under St. 23 & 24 Vict. c. 142, passed "to 
 make better provision for the union of con- 
 tiguous benefices in cities, towns and 
 boroughs" (in substitution for St. 18 & 19 
 Vict. c. 127), amended by St. 34 & 35 Vict, 
 c. 90. 
 
 UNITAS PERSONARUM. The unity of 
 persons, as that between husband and wife, 
 or ancestor and heir. 
 
 UNITED STATES COURT COMMISSION- 
 ers. Ofiicers, more properly "Commission- 
 ers of the Circuit Courts of the United 
 States," authorized by Rev. St. U. S. § 627,. 
 to be appointed by the circuit court in each 
 district to exercise such powers as may 
 be expressly conferred on them by statute. 
 They have the powers of committing magis- 
 trates in respect to federal offenses (Rev. 
 St. § 1014), and other quasi judicial pow- 
 ers. 
 
 UNITY. In the law of estates. The agree- 
 ment or coincidence of certain qualities in 
 the title of a joint estate or an estate in 
 common. It is the peculiar characteristic 
 of an estate in joint tenancy and is fourfold, 
 unity of interest, unity of title, unity of 
 time, and unity of possession. In other 
 words, joint tenants have one and the same 
 interest accruing by one and the same con- 
 veyance, commencing at one and the same 
 time, and held by one and the same undivid- 
 ed possession. 2 Bl. Comm. 180. 
 
 UNITY OF INTEREST. One of the prop- 
 erties of a joint estate; all the joint tenants, 
 being entitled to one period of duration or 
 quantity of interest in the lands. 2 Bl. 
 Comm. 181. 
 
 UNITY OF POSSESSION. This term is^ 
 used to designate the possession by one per- 
 son of several estates or rights. For ex- 
 ample, a right to an estate to which an ease- 
 ment is attached, or the dominant estate, and 
 to an estate which an easement incumbers, 
 or the servient estate may become the prop- 
 erty of one person, in which case the ease- 
 ment is extinguished. 3 Mason (U. S.) 172; 
 Poph. 166; Latch, 153. And see Cro. Jac. 
 121. But a distinction has been made be- 
 tween a thing that has being by prescrip- 
 tion, and one that has its being ex jure na- 
 turae. In the former case, unity of posses- 
 sion will extinguish the easement; in the- 
 latter, — for example, the case of a water- 
 course, — the unity will not extinguish it. 
 Poth. Contr. 166. 
 
 By the Civil Code of Louisiana (article 
 801), every servitude is extinguished when 
 the estate to which it is due and the estate 
 owing it are united in the same hands. But 
 it is necessary that the whole of the two es- 
 tates should belong to the same proprietor; 
 for if the owner of one estate only acquires^ 
 the other in part or in common with an- 
 other person, confusion does not take effect. 
 See "Merger." 
 
 UNITY OF SEISIN. The condition which 
 exists where a person seised of land which 
 is subject to an easement, profit a prendre, 
 or similar right, also becomes seised of the 
 
UNITY OF TIME 
 
 (935) 
 
 UNLAWFUL ASSEMBLY 
 
 land to whicti the easement or other right is 
 annexed. Tbp term is usually applied to 
 cases where the seisin is that of a tenant in 
 fee simple, and is equally high or predurable 
 in both pieces of land, so that the easement 
 or other right is extinguished by the unity of 
 seisin. 
 
 UNITY OF TIME. One of the essential 
 properties of a joint estate; the estates of 
 the tenants being vested at one and the same 
 period. 2 Bl. Comm. ISl. 
 
 UNITY OF TITLE. One of the essentials 
 of a Joint estate; the estate of all the ten- 
 ants being created by one and the same act. 
 
 UNIUS OMNINO TESTIS RESPONSIO 
 non audiatur. Let not the evidence of one 
 witness be heard at all. Code, 4. 20. 9; 3 Bl. 
 Comm. 370. 
 
 UNIUSCUJUSQUE CONTRACTUS INITI- 
 um spectandum est, et causa. The beginning 
 and cause of every contract must be con- 
 sidered. Dig. 17. 1. 8; Story, Bailm. § 56. 
 
 UNIVERSAL AGENT. One who is ap- 
 pointed to do all the acts which the princi- 
 pal can personally do, and which he may 
 lawfully delegate the power to another to do. 
 Such an agency may potentially exist, but it 
 must be of the rarest occurrence. Story, 
 Ag. 18. 
 
 UNIVERSAL LEGACY. In civil law. A 
 testamentary disposition by which the tes- 
 tator gives to one or several persons the 
 whole of the property which he leaves at his 
 decease. Civ. Code La. art. 1599; Civ. Code 
 art. 1003; Poth. Donations Testamentaires, 
 c. 2, sec. 1, § 1. 
 
 UNIVERSAL PARTNERSHIP. The name 
 of a species of partnership by which all the 
 partners agree to put in common all their 
 property, universorum bonorum, not only 
 what they then have, but also what they 
 shall acquire. Poth. du Contr. de Societe, 
 note 29. 
 
 UNIVERSAL REPRESENTATION. In 
 
 Scotch law. The heir universally represents 
 his ancestor, i. e., is responsible for his 
 debts. Originally, this responsibility extend- 
 ed only to the amount of the property to 
 which he succeeded; but afterwards certain 
 acts on part of the heir were held sufficient 
 to make him liable for all the debts of the 
 ancestor. Bell, Diet. "Passive Titles." 
 
 UNIVERSALIA SUI^T NOTIORA SINGU- 
 laribus. Things universal are better known 
 than things particular. 2 Rolle, 294; 2 C. 
 Rob. Adm. 294. 
 
 UNIVERSITAS (Lat.) In the civil law. A 
 corporation aggregate. Dig. 3. 4. 7. Literal- 
 ly, a whole formed out of many individuals. 
 1 Bl. Comm. 469. 
 
 UNIVERSITAS FACTI (Lat.) In the civil 
 law. A plurality of corporeal things of the 
 same kind, which are regarded as a whole; 
 
 e. g., a herd of cattle, a stock of goods. 1 
 Maokeld. Civ. Law, 154, § 149; Inst. 2. 20. 18. 
 
 UNIVERSITAS JURIS (Lat.) In civil law. 
 A quantity of things of various kinds, cor- 
 poreal and incorporeal, taken together as a 
 whole, e. g., an estate. It is used in contra- 
 distinction to universitas factt, which -is a 
 whole made up of corporeal units. Mackeld. 
 Civ. Law, § 149. 
 
 UNIVERSITAS RERUM (Lat.) In civil 
 law. Several things not mechanically unit- 
 ed, but which, taken together, in some legal 
 respects are regarded as one whole. Mack- 
 eld. Civ. Law, § 149. 
 
 UNIVERSITAS VEL CORPORATIO NON 
 
 dicitur allquld facere nisi id sit collegiallter 
 deliberatum, etiamsi major pars id faciat. 
 
 An university or corporation is not said to 
 do anything unless it be deliberated upon 
 coUegiately, although the majority should do 
 it. Dav. 48. 
 
 UNIVERSITY. The name given to certain 
 societies or corporations which are semina- 
 ries of learning where youth are sent to 
 finish their education. Among the civilians, 
 by this term is understood a corporation. 
 
 "university COURT. See "Chancellors' 
 Courts in the Two Universities." 
 
 UNIVERSUS (Lat.) The whole; all to- 
 gether. Calv. Lex. 
 
 In Old English Law. The whole; all. 
 
 Universitatem vestram scire voltimus, we 
 will that all of you know. Cart. Conf . 49 Hen. 
 III. 
 
 UNJUST. That which is done against the 
 perfect rights of another; that which is 
 against the established law; that which is 
 opposed to a law which is the test of right 
 and wrong. 1 Toullier, Dr. Civ. tit. prel. 
 note 5; Aust. Jur. 276, note; Lee. Elm. § 
 1080. 
 
 UNKQUTH. Unknown. The law French 
 form of the Saxon "uncouth," or "uncuth." 
 Britt. c. 12. 
 
 UNLAGE (Saxon, from iin. without, and 
 lag, law). An unjust law. LL. Hen. I. c. 
 34, 84; Cowell. 
 
 UN LA RICH. In old Scotch law. That 
 which is done without law or against law. 
 Spelman. 
 
 UNLAW. In Scotch law. A witness was 
 formerly inadmissible who was not worth 
 the king's unlaw, i. e., the sum of £10 Scots, 
 then the common fine for absence from court 
 and for small delinquencies. Bell, Diet. 
 
 UNLAWFUL. That to which the law is 
 opposed. It is not strictly synonymous with 
 "illegal," though so lused quite often. "Il- 
 legal" means positively forbidden, while 
 "unlawful" may include things which are 
 immoral, or against public policy. Sweet. 
 
 UNLAWFUL ASSEMBLY. In criminal 
 law. A disturbance of the public peace by 
 
UNLAWFULLY 
 
 (936) 
 
 URBAN SERVITUDES 
 
 three or more persons who meet together 
 with an intent mutually to assist each other 
 in the execution of some unlawful enter- 
 prise of a private nature, with force and vi- 
 olence. If they move forward towards its 
 execution, it is then a rout; and if they ac- 
 tually execute their design, it amounts to 
 a riot. 4 Bl. Comm. 140; 1 Russ. Crimes, 
 254; Hawk. P. C. o. 65, § 9; Comyn, Dig. 
 "Forcihle Entry" (D 10); Viner, Abr. "Ri- 
 ots, etc." (A). 
 
 UNLAWFULLY. In pleading. This word 
 is frequently, used in indictments in the de- 
 scription of the offense. It is necessary 
 when the crime did not exist at common 
 law, and when a statute, in describing an of- 
 fense which it creates, uses the word (1 
 Moody, Cr. Cas. 339); but it is unnecessary 
 whenever the crime existed at common law 
 and is manifestly illegal (1 Chit. Grim. Law, 
 *241; Hawk. bk. 2, c. 25, § 96; 2 Rolle, Abr. 
 82; Bac. Abr. "Indictment" (G 1); 1 111. 
 199; 2 111. 120. 
 
 UNLIQUIDATED DAMAGES. Such dam- 
 ages as are unascertained. In general, such 
 damages cannot be set off. No interest will 
 be allowed on unliquidated damages. 1 
 Bouv. Inst, note 1108. 
 
 UNNATURAL OFFENSE. Sodomy or bug- 
 gery. 
 
 UNO ABSURDO DATO, INFINITA SE- 
 quuntur. One absurdity being allowed, an 
 infinity follow. 1 Goke, 102. 
 
 UNO ACTU (Lat.) In a single act; by one 
 and the same act. 
 
 UNO FLATU (Lat.) In one breath. 3 Man. 
 & G. 45. Vno flatu, et uno intuitu, at one 
 breath, and in one view. 3 Story (U. S.) 
 504. 
 
 UNGUES (Law Fr.) Still; yet. This bar- 
 barous word is frequently used in pleas, as 
 ne ungues executor, ne unques guardian; ne 
 ungues accouple; and the like. 
 
 UNQUES PRIST (Law Fr.) Always ready. 
 The same as "uncore prist." 
 
 UNSEATED LAND. Wild or unoccupied 
 land. See "Seated Lands." 
 
 UNSEAWORTHY. See "Seaworthiness." 
 
 UNSOLEMN WAR. That war which is not 
 carried on by the highest power in the 
 states between which it exists, and which 
 lacks the formality of a declaration. Gro- 
 tius de Jure Belli, et Pac. lib. 1, c. 3, § 4. 
 A formal declaration to enemy is now dis- 
 used, but there must be a formal public act 
 proceeding. from the corhpetent source. With 
 us, it has been said, it must be an act of 
 congress. 1 Kent, Comm. 55; 1 Hill (N. Y.) 
 409. See "War." 
 
 UNSOUND MIND, or UNSOUND MEM- 
 ory. These words have been adopted in sev- 
 
 eral statutes, and sometimes indiscriminate- 
 ly used, to signify not only "lunacy," which 
 is periodical madness, but also a permanent 
 adventitious insanity, as distinguished from 
 idiocy. 1 Ridg. Pari. Cas. 518; 3 Atk. 171. 
 
 The term "unsound mind" seems to have 
 been used in those statutes in the same 
 sense as "insane;" but they have been said 
 to import that the party was in some such 
 state as was contradistinguished from idio- 
 cy and from lunacy, and yet such as made 
 him a proper subject of a commission to 
 inquire of idiocy and lunacy. Shelf. Lun. 
 5; Ray, Med. Jur. prel. § 8; 8 Ves. 66; 12 
 Ves. 447; 19 Ves. 286; 1 Beck, Med. Jur. 
 573; Cooper, Ch. Cas. 108; 2 Madd. Chanc. 
 Prac. 731, 732. 
 
 UNTHRIFT. A person of outrageous 
 prodigality. 
 
 UNUMQUODQUE EODEM MODO QUO 
 colligatum est dissolvitur. In the same man- 
 ner in which anything is bound, it is loos- 
 ened. 2 Rolle, 39. 
 
 UNUMOUODQUE EST ID QUOD EST 
 
 principalius In ipso. That which is the prin- 
 cipal part of a thing is the thing itself. Hob. 
 123. 
 
 UNUMQUODQUE LIGAMEN DISSOLVI- 
 tur eodem llgamine quod ligatur. Every ob- 
 ligation is dissolved in the same manner In 
 which it is contracted. 12 Barb. (N. Y.) 
 366, 375. 
 
 UNUMQUODQUE PRINCIPORUM EST 
 sibimetipsi fides; et perspicua vera non sunt 
 probanda. Every principle is its own evi- 
 dence, and plain truths are not to be proved. 
 Co. Lift. 11; Branch, Princ. 
 
 UPLIFTED HAND. When a man accused 
 of a crime is arraigned, he is required to 
 raise his hand, probably in order to identify 
 the person who pleads. Perhaps for the 
 same reason, when a witness adopts a par- 
 ticular mode of taking an oath, as, when he 
 does not swear upon the gospel, but upon 
 Almighty God, he is requested to hold up his 
 hand. 
 
 UPPER BENCH. The king's bench was 
 so called during Cromwell's protectorate, 
 when Rolle was chief justice. 3 Bl. Comm. 
 202. 
 
 UPSET PRICE. In sales by auctions, an 
 amount for which property to be sold is 
 put up, so that the first bidder at that price 
 is declared the buyer. Wharton. 
 
 UPSUN. In Scotch law. Between the 
 hours of sunrise and sunset. Poinding must 
 be executed with "upsun" (i. e., while the 
 sun is up). 1 Forbes, Inst. pt. 3, p. 32. 
 
 URBAN. Relating to a city; relating to 
 houses. 
 
 URBAN SERVITUDES. Servitudes at- 
 tached to an urban estate, such as the right 
 
URBS 
 
 (937) 
 
 USE 
 
 of support, of drip, of drain, etc. 3 Kent, 
 Comm. 436. 
 
 URBS (Lat.) In civil law. A walled city. 
 Often used for civitas. Ainsworth. It is the 
 same as oppidum, only larger. Urbs, or 
 urbs aurea, meant Rome. Du Cange. In the 
 case of Rome, urbs included the suburbs. 
 Dig. 50. 16. 2. pr. It is derived from urbum, 
 a part of the plough by which the walls of 
 a city are first marked out. Ainsworth. 
 
 URE (Norman-French; from Lat. opera, a 
 work). "Operation" or "effect." To put in 
 ure, therefore, is to put in operation. See 
 St. 13 Eliz. c. 2, § 1. 
 
 USAGE. Long and uniform practice. In 
 its most extensive meaning, this term in- 
 cludes "custom" and "prescription," though 
 it differs from them. In the narrower sense, 
 it is applied to the habits, modes, and course 
 of dealing which are observed in trade gen- 
 erally, as to all mercantile transactions, or 
 to some particular branches of trade. See 9 
 Wend. (N. Y.) 349. 
 
 USANCE. In commercial law. The time 
 which, by usage or custom, is allowed in cer- 
 tain countries for the payment of a bill of 
 exchange. Poth. Contr. du Change, note 15. 
 
 USE. A confidence reposed in another, 
 who was made tenant of the land, or terre 
 tenant, that he would dispose of the land 
 according to the intention of the cestui que 
 use, or him to whose use it was granted, and 
 suffer him to take the profits. Plowd. 352; 
 Gilb. Uses, 1; Bac. Law Tr. 150, 306; Cor- 
 nish, Uses, 13; 1 Fonbl. Eq. 363; 2 Fonbl. 
 Eq. 7; Saunders, Uses, 2; Co. Litt. 272b; 1 
 Coke, 121; 2 Bl. Comm. 328; 2 Bouv. Inst, 
 note 1885 et seq. 
 
 A right in one person, called the cestui que 
 use, to take the profits of land of which 
 another has the legal title and possession, 
 together with the duty of defending the 
 same, and of making estates thereof accord- 
 ing to the direction of the cestui que use. 
 
 Uses were derived from the fidei commissa 
 of the Roman law. It was the duty of a 
 Roman magistrate, the praetor fidei commis- 
 sarius, whom Bacon terms the particular 
 chancellor for uses, to enforce the observ- 
 ance of this confidence. Inst. 2. 23. 2. They 
 were introduced into England by the eccle- 
 siastics in the reign of Edward III., before 
 1377, for the purpose of avoiding the stat- 
 utes of mortmain, and the clerical chancel- 
 lors of those times held them to be fidei 
 commissa, and binding in conscience. To 
 obviate many inconveniences and difficulties 
 which had arisen out of the doctrine and 
 introduction of uses, the statute of 27 Henry 
 VIII. c. 10, commonly called the "Statute of 
 Uses," or, in conveyances and pleadings, the 
 statute for transferring uses into posses- 
 sion, was passed. It enacts that, "when any 
 person shall be seised of lands, etc., to the 
 use, confidence, or trust of any other per- 
 son or body politic, the person or corpora- 
 tion entitled to the use in fee simple, fee 
 tail, for life, or years, or otherwise, shall 
 from thenceforth stand and be seised or pos- 
 
 sessed of the land, etc., of and in the like 
 estate as they have in the use, trust, or con- 
 fidence, and that the estates of the persons 
 so seised to the uses shall be deemed to be 
 in him or them that have the use, in such 
 quality, manner, form, and condition as they 
 had before in the use." The statute thus 
 executes the use, — that is, it conveys the 
 possession to the use, and transfers the use 
 to the possession, and, in this manner, mak- 
 ing the cestui que use complete owner of the 
 lands and tenements, as well at law as in 
 equity. 2 Bl. Comm. 333; 1 Saund. 254, 
 note 6. 
 
 A modern use has, therefore, been defined 
 to be an estate of right which is acquired 
 through the operation of the statute of 27 
 Henry VIII. c. 10; and which, when it may 
 take effect according to the rules of the com- 
 mon law, is called the "legal estate," and, 
 when it may not, is denominated a "use," 
 with a term descriptive of its modification. 
 Cornish, Uses, 35. 
 
 The common-law judges decided, in the 
 construction of this statute, that a use could 
 not be raised upon a use (Dyer, 155 [A]), 
 and that, on a feoffment to A. and his heirs 
 to the use of B. and his heirs in trust for 
 C. and his heirs, the statute executed only 
 the first use, and that the second was a mere 
 nullity. The judges also held that, as the 
 statute mentioned only such persons as were 
 seised to the use of others, it did not ex- 
 tend to a term of years, or other chattel in- 
 terests, of which a termor is not seised, but 
 only possessed. Bac. Law Tr. 335; Poph. 
 76; Dyer, 369; 2 Bl. Comm. 336. The rigid 
 literal construction of the statute by the 
 courts of law again opened the doors of the 
 chancery courts. 1 Madd. Chanc. Prac. 448, 
 450. 
 
 Uses and trusts are often spoken of to- 
 gether by the older and some modern writ- 
 ers; the distinction being those trusts which 
 were of a permanent nature, and required 
 no active duty of the trustee, being called 
 "uses;" those in which the trustee, had an 
 active duty to perform, as, the payment of 
 debts, raising portions, and the like, being 
 called "special" or "active" trusts, or simply 
 "trusts." 1 Spence, Eq. Jur. 448. 
 
 For the creation of a use, a. consideration 
 either valuable, as money, or good, as rela- 
 tionship in certain degrees, was necessary. 
 Crompt. 49b; 3 Swanst. 591; 7 Coke, 40; 
 Plowd. 298; 17 Mass. 257; 4 N. H. 229, 397; 
 14 Johns. (N. Y.) 210. See "Resulting Use." 
 The property must have been in esse, and 
 such that seisin could be given. Crabb, Real 
 Prop. §§ 1610-1612; Cro. Eliz. 401. Uses 
 were alienable, although in many respects 
 resembling choses in action, which were not 
 assignable at common law. Cornish, Upes, 
 19; 2 Bl. Comm. 331. When once raised, it 
 might be granted or devised in fee, in tail, 
 for life, or for years. 1 Spence, Eq. Jur. 
 455. 
 
 The effect of the statute of uses was much 
 restricted by the construction adopted by 
 the courts. It practically resulted, it has 
 been said, in the addition of these words, "to 
 the use," to every conveyance. Williams, 
 Real Prop. 133. The intention of the stat- 
 
USE AND OCCUPATION 
 
 (938) 
 
 USUCAPIO, ETC. 
 
 ute was to destroy the estate of the feoffee 
 to use, and to transfer It by the very act 
 which created it to the cestui que use, as if 
 the seisin or estate of the feoffee, together 
 with the use, had, uno flatu, passed from the 
 feoffer to the cestui que use. A very full 
 and clear account of the history and present 
 condition of the law of uses is given by 
 Professor Washburn (2 Real Prop. 91-156), 
 which is of particular value to the American 
 student. Consult, also, Spence, Bq. Jur.; 
 Cornish, Uses; Bac. Law Tracts; Greenl. 
 Cruise, Dig. 
 
 ClEtssification : 
 
 (1) A springing use is one limited to arise 
 on a future event, where no preceding estate 
 is limited, and which does not take effect in 
 derogation of any other interest than that 
 of the grantor. 
 
 (2)^ A shifting use is one which takes ef- 
 fect in derogation of some other estate, and 
 is either limited by the deed by which it is 
 created, or authorized to be created by some 
 one named in the deed. 
 
 (3) A contingent use is one limited to take 
 effect as a remainder. 
 
 (4) Resulting use. Where the use re- 
 turns to the person who raised it because 
 of impossibility of execution or by expira- 
 tion, it is sometimes called a "resulting 
 use." 2 Bl. Comm. 335. 
 
 In Civil Law. A right of receiving so 
 
 much of the natural profits of a thing as is 
 necessary to daily sustenance. It differs 
 from "usufruct," which is a right not only 
 to use, but to enjoy. 1 Browne, Civ. Law, 
 184; Lee. Elm. §§ 414, 416. 
 
 USE AND OCCUPATION. The character 
 of the holding of another's land where 
 there is no lease; also the name of an ac- 
 tion of assumpsit by which a recpvery is 
 had for use and occupation. 
 
 USEE. A person for whose use a suit is 
 brought. See 24 Miss. 77. 
 
 USER. The actual exercise of a franchise 
 or Incorporeal hereditament. User of a 
 corporate franchise is an acceptance there- 
 of; or nonuser may be a cause for dissolu- 
 tion. An easement may be prescribed upon 
 user continued for the required time ad- 
 verse to the owner of the land. Nonuser 
 with intent to abandon extinguishes a pre- 
 scriptive easement. 
 
 USER DE ACTION (LawPr.) In old prac- 
 tice. The pursuing or bringing an action. 
 Cowell. 
 
 USES TO BAR DOWER. When a convey- 
 ance of land is made in England to a per- 
 son who was married to his present wife on 
 or before the first of January, 1834, and 
 he wishes to prevent her right to dower 
 from attaching to the land, it is conveyed 
 to the following uses: (1) To such uses as 
 the purchaser shall appoint; (2) in default 
 of appointment, to the use of him and his 
 assigns during his life; (3) in the event 
 of the determination of that estate, by for- 
 feiture or otherwise, in his lifetime, to the 
 use of a trustee during the life of the pur- 
 
 chaser, in trust for him; with (4) an ulti- 
 mate limitation to his heirs and assigns 
 forever. By this means, the purchaser has 
 a full power of alienation, without having 
 a greater estate in possession than an es- 
 tate for life, to which the wife's dower does 
 not attach, and the intermediate estate of 
 the trustee prevents the remainder in fee 
 simple from vesting in the purchaser in pos- 
 session, and so becoming liable to dower, 
 by any accidental merger of the life estate. 
 See Williams, Real Prop. 305, and Append. 
 (D). See, also, "Dower." 
 
 USHER. This word is said to be derived 
 from huissier, and is the name of an inferior 
 officer in some English courts of law. Archb. 
 Prac. 25. 
 
 USHER OF THE BLACK ROD. The gen- 
 tleman usher of the black rod is an officer of' 
 the house of lords appointed by letters pat- 
 ent from the crown. His duties are, by him- 
 self or deputy, to desire the attendance of 
 the commons in the house of peers when the 
 royal assent is given to bills, either by the 
 queen or king in person or by commission, 
 to execute orders for the commitment of 
 persons guilty of breach of privilege, and 
 also to assist in the introduction of peers 
 when they take the oaths and their seats. 
 May, Pari. Law; Brown. 
 
 USO. In Spanish law. Usage; that which 
 arises from certain things which men say 
 and do and practice uninterruptedly for a 
 great length of time, without any hindrance 
 whatever. Las Partidas, pt. 1, tit. 2, lib. 1. 
 
 USQUE (Lat.) Up to; until. 
 
 USQUE AD MEDIUM FILUM VIAE (Lat.) 
 To the middle thread of the way. See "Ad 
 Medium Pilum;" 7 Gray (Mass.) 22, 24. 
 
 USUAL COVENANTS. The usual cove- 
 nants expressed in a deed are "seisin" or 
 "right to convey," "quiet enjoyment," "fur- 
 ther assurance," "warranty," and "against 
 incumbrances." In a lease, the covenant of 
 quiet enjoyment is the only one that is 
 always usual, the question being deter- 
 mined by circumstances and the custom of 
 a locality. Rawle, Cov.; Tayl. Landl. & Ten. 
 § 45. 
 
 USUAL TERMS. A phrase In the com- 
 mon-law practice, which meant pleading is- 
 suably, rejoining gratis, and taking short 
 notice of trial. When a defendant obtained 
 further time to plead, these were the terms 
 usually Imposed. 
 
 USUARIUS (Lat.) In the civil law. One 
 who had the mere use of a thing belonging 
 to another for the purpose of supplying his 
 daily wants; a usuary. Dig. 7. 8. 10. pr. ; 
 Calv. Lex. 
 
 USUCAPIO CONSTITUTA EST UT ALI- 
 quis litium finis esset. Prescription was 
 Instituted that there might be an end to 
 litigation. Dig. 41. 10. 5; Broom, Leg. Max. 
 (3d London Ed.) 801, note; Wood, Civ. Law 
 (3d Ed.) 123. 
 
USUCAPTION 
 
 (939) 
 
 USURY 
 
 USUCAPTION. In civil law. The man- 
 ner of acquiring property in things by the 
 lapse of time required by law. 
 
 It differs from "prescription,"' which has 
 the same sense, and means, in addition, the 
 manner of acquiring and losing, by the ef- 
 fect of time regulated by law, all sorts of 
 rights and actions. Merlin, Repert. "Pre- 
 scription;" Ayliffe, Pand. 320; Wood, Inst. 
 165; Lee. Elm. § 437; 1 Browne, Civ. Law, 
 264. note; Vattel, bk. 2, c. 2, § 140. 
 
 USUFRUCT. In civil law. The right of 
 enjoying a thing the property of which is 
 vested in another, and to draw from the 
 same all the profit, utility, and advantage 
 which it may produce, provided it be with- 
 out altering the substance of the thing. 
 
 Perfect usufruct is of things which the 
 usufructuary can enjoy without altering 
 their substance, though their substance may 
 be diminished or deteriorated naturally by 
 time or by the use to which they are applied ; 
 as, a house, a piece of land, animals, furni- 
 ture, and other movable effects. 
 
 Imperfect or quasi usufruct is of things 
 which would be useless to the usufructuary 
 if he did not consume and expend them or 
 change the substance of them; as, money, 
 grain, liquors. In this case, the alteration 
 may take place. Civ. Code La. art. 525 et 
 seq. ; 1 Browne, Civ. Law, 184; Poth. Tr. du 
 Douaire, note 194; AylifCe, Pand. 319; Poth. 
 ad Pand. tom. 6, p. 91; Lee. Elm. § 414; 
 Inst. lib. 2, tit. 4; Dig. lib. 7, tit. 1, lib. 1; 
 Code, lib. 3, tit. 33. 
 
 USUFRUCTUARY. In civil law. One who 
 has the right and enjoyment of a usufruct. 
 
 Domat, with his usual clearness, points 
 out the duties of the usufructuary, which 
 are to make an inventory of the things sub- 
 ject to the usufruct, In the presence of those 
 having an interest in them; to give security 
 for their restitution when the usufruct shall 
 be at an end; to take good care of the 
 things subject to the usufruct; to pay all 
 taxes and claims which arise while the thing 
 is in his possession as a ground rent, and to 
 keep the thing in repair at his own expense. 
 Lois Civ. liv. 1, tit. 11, § 4. See "Estate for 
 Life." 
 
 USU FRUIT. In the French law, the same 
 as the usufruct of the English and Roman 
 law. 
 
 USURA (Lat. from vkiis, use). In the civil 
 law. Money given for the use of money; 
 interest. Dig. 50. 16. 121. Commonly used 
 in the plural, usurae. Dig. 22. 1. 
 
 Usura centesima, usurae centesimae or 
 usurae asses, twelve per cent, per annum, or 
 one per cent, monthly. The highest rate of 
 interest allowed before the time of Justinian. 
 2 Bl. Comm. 462, and note (m) ; Halifax, 
 Anal. bk. 2, c. 15, No. 6; Calv. Lex. 
 
 XJsurae deunoes, eleven per cent. 2 Bl. 
 Comm. ubi supra. 
 
 Usurae dextances, ten per cent. Id. 
 
 Usurae dodrantes, nine per cent. Id. 
 
 Usurae pesses, eight per cent. Id. 
 
 Usurae septunces, seven per cent. Id. 
 
 Usurae semisses, six per cent. Id. 
 
 Usurae qutnounces, five per cent. Id. 
 Usurae quadrantes, four per cent. This 
 was the rate established by Justinian. Id. 
 Usurae trientes, three per cent. Id. 
 Usurae sextances, two per cent. Id. 
 Usurae unciae, one per cent. Id. 
 
 USURA EST COMMODUM CERTUM 
 quod propter usum rei mutuatae recipitur. 
 Sed secundarlo spirare de aliqua retrlbu- 
 tlone, ad voluntatem ejus qui mutuatus est, 
 hoc non est vitiosum. Usury is a certain 
 benefit which is received for the use of a 
 thing lent. But to have an understanding 
 [literally, to breathe or whisper], in an in- 
 cidental way, about some compensation to 
 be made at the pleasure of the borrower, is 
 not lawful. Branch, Princ; 5 Coke, 70b; 
 Glanv. lib. 7, c. 16. 
 
 USURA MARITIMa. Interest taken on 
 bottomry or respondentia 'bonds, which is 
 proportioned to the risk, and is not af- 
 fected by the usury laws. 
 
 USURA, or USURAE (Lat.) In the civil 
 law. Interest on money. Dig. 22. 1. 
 
 USURARE (Law Lat.) In old English 
 law. To pay interest; to carry or be charge- 
 able wth interest. Artie. Magna Cart. Johan. 
 c. 34; Fleta, lib. 2, c. 57, § 7. 
 
 USURARIUS (Law Lat.) In old English 
 law. An usurer. Fleta, lib. 2, c. 52, § 14. 
 
 USURPATIO (Lat. from iixiirimre). In the 
 civil law. The interruption of a usucaption 
 by some act on the part of the real owner. 
 Dig. 41. 3. 2; Calv. Lex. 
 
 USURPATION. The unlawful assumption 
 of the use of property which belongs to an- 
 other; an interruption or the disturbing a 
 man in his right and possession. Tomlins. 
 
 According to Lord Coke, there are two 
 kinds of usurpation, — first, when a stranger, 
 without right, presents to a church, and his 
 clerk is admitted; and, second, when a sub- 
 ject uses a franchise of the king without 
 lawful authority. Co. Litt. 277b. 
 
 In Governmental Law. The tyrannical 
 
 assumption of the government by force, con- 
 trary to and in violation of the constitution 
 of the country. 
 
 USURPATION OF ADVOWSON. An in- 
 jury which consists in the absolute ouster or 
 dispossession of the patron from the advow- 
 son or right of presentation, and which hap- 
 pens when a stranger who has no right pre- 
 sents a clerk, and the latter is thereupon ad- 
 mitted and Instituted. 
 
 USURPER. One who assumes the right 
 of government by force, contrary to and in 
 violation of the constitution of the country. 
 Toullier, Dr. Civ. note 32. 
 
 USURY. The excess over the legal rate 
 charged to a borrower for the use pf money. 
 Originally, the word was applied to all inter- 
 est reserved for the use of money, and in the 
 early ages, taking such interest was not al- 
 lowed. 
 
usus 
 
 (940) 
 
 UTLAGE 
 
 USUS (Lat.) In Roman law. A precari- 
 ous enjoyment of land, corresponding with 
 the right of haMtatio of houses, and being 
 closely analogous to the tenancy at suffer- 
 ance or at will of English law. The usua- 
 rius (i. e., tenant by usus) could only hold 
 on so long as the owner found him con- 
 venient, and had to go so soon as ever he 
 was in the owner's way (molestus). The 
 usuarius could not have a friend to share 
 the produce. It was scarcely permitted to 
 him (Justinian says) to have even his wife 
 with him on the land; and he could not let 
 or sell, the right being strictly personal to 
 himself. Brown. 
 
 USUS BELLICI (Lat.) In international 
 law. Warlike uses or objects. It is the 
 usus bellici which determine an article to 
 be contraband. 1 Kent, Comm. 141. 
 
 USUS EST DOMINIUM FIDUCIARIUM. A 
 
 use is a fiduciary ownership. Bac. Uses. 
 
 USUS- ET STATUS SIVE POSSESSIO 
 potius differunt secundum rationem fori, 
 quam secundum rationem rei. Use and es- 
 tate, or possession, differ more in the rule 
 of the court than in the rule of the matter. 
 Bac. Uses. 
 
 USUS FRUCTUS. In the civil law. Usu- 
 fruct; the right of using and enjoying the 
 profits of a thing belonging to another, with- 
 out impairing its substance. 
 
 UT (Lat.) In old English law. That. A 
 particle particularly appropriated to express 
 a inodus, or qualification, as si was used to 
 express a condition. Bracton, fol. 18b. Co. 
 Litt. 204a. This shows that modus and eon- 
 ditio had essentially a different import. The 
 use of ut in tliis peculiar application was 
 taken from the civil law. 
 
 UT AUDI VI (Lat.) As I heard. Freem. 
 5, 19; Bunb. 165; Dyer, 30b. A reporter's 
 note. 
 
 UT CREDO . (Lat.) As I believe. Dyer, 
 76b. A reporter's note. 
 
 UT CURRERE SOLEBAT (Lat.) As it 
 was wont to run; applied to a watercourse. 
 
 UT DE FEODO (Law Lat.) As of fee. 
 
 UT POENA AD PAUCOS, METUS AD 
 omnes pervenlat. That punishment mayhap- 
 pen to a few; the fear of it affects all. 4 
 Inst. 63. 
 
 UT RES MAGIS VALEAT QUAM PERE- 
 
 at. That the thing may rather have effect 
 than be destroyed. 
 
 UT ROGAS. See "Rogare." 
 
 UT SUMMAE POTESTATIS REGIS EST 
 posse quantum velit, sic magnitudinus est 
 velle quantum possit. As the highest power 
 of a king is to be able to do all he wishes, 
 so the highest greatness of him is to wish 
 all he is able to do. 3 Inst. 236. 
 
 UTAS (Law Lat.; Law Fr. utave). In old 
 English practice. Octave; the octave (.ootor 
 viO ; the eighth day following any term or 
 feast; as the Vtas of St. Michael, the Utas 
 of St. Hilary. Cowell; Y. B. H. 9 Edw. III. 4; 
 Dyer, 78 (Fr. Ed.) 
 
 UTERINE (Lat. uterinus). Born of the 
 same mother (ex eodem utero). A uterine 
 brother or sister is one born of the same 
 mother, but by a different father. 
 
 UTERO GESTATION. Pregnancy. 
 
 UTERQUE (Lat.) Both; each. "The jus- 
 tices, being In doubt as to the meaning of 
 this word in an indictment, demanded the 
 opinions of grammarians, who delivered 
 their opinions that this word doth aptly sig- 
 nify 'one of them.' " 1 Leon. 241. 
 
 UTFANGETHEF. Literally, an out-taken 
 thief. The privilege of the lord of a manor 
 to punish a thief dw'elling outside his liberty 
 for crimes committed therein. 
 
 UTI (Lat.) In the civil law. To use. 
 Strictly, to use for necessary purposes; as 
 distinguished from "frui," to enjoy. Heinec. 
 Elem. Jur. Civ. lib. 2, tit. 4, § 415. 
 
 UTI FRUI (Lat.) In the civil law. To 
 have the full use and enjoyment of a thing, 
 without damage to its substance. Calv. Lex. 
 Hence "usus fructus" (q. v.) 
 
 UTI POSSIDETIS (Lat. as you possess). 
 In international law. A phrase used to sig- 
 nify that the parties to a treaty are to re- 
 tain possession of what they have acquired 
 by force during the war. 
 
 UTILE PER INUTILE NON VITIATUR. 
 
 What is useful is not vitiated by the useless. 
 3 Bouv. Inst, notes 2949, 3293; 2 Wheat. (U. 
 S.) 221; 2 Serg. & R. (Pa.) 298; 17 Serg. & 
 R. (Pa.) 297; 6 Mass. 303; 12 Mass. 438; 9 
 Ired. (N. C.) 254. See 18 Johns. (N. Y.) 
 93, 94. 
 
 UTILIDAD (Spanish). In Spanish law. 
 The profit of a thing. White, New Recop. bk. 
 2, tit. 2, c. 1. 
 
 UTI LIS (Lat.) In the civil law. Useful; 
 beneficial; equitable; available. Actio uti- 
 Us, an equitable action. Calv. Lex. Dies 
 utilis, an available day. 
 
 UTLAGATUS. In old English law. An 
 outlaw. 
 
 UTLAGATUS EST QUASI EXTA LEGEM 
 positus. Caput gerit luplnum. An outlaw is, 
 as it were, put out of the protection of the 
 law. He bears the head of a wolf. 7 Coke, 
 
 14. 
 
 UTLAGATUS PRO CONTUMACIA ET 
 fuga, non propter hoc convictus est de facto 
 principal!. One who is outlawed for contu- 
 macy and flight is not on th^t account con- 
 victed of the principal fact. Fleta. 
 
 UTLAGE (Law Fr.) An outlaw. Britt, c. 
 12. 
 
UTLEP 
 
 (941) 
 
 UXORCIDE 
 
 UTLEP, or UTLEPE (Saxon). In old Eng- 
 lish law. Escape; the escape of a robber or 
 robbers {escapium latronum). Fleta, lib. 1, 
 c. 47, § 14. 
 
 UTRUBI. In Scotch law. An interdict as 
 to movables, by which the colorable pos- 
 session of a iona fide holder is continued 
 until the final settlement of a contested 
 right. Corresponding to uti possidetis as to 
 heritable property. Bell, Diet. 
 
 UTTER. To publish; to pass or give cur- 
 rency to. 
 
 In Criminal Law. The presentation or 
 
 passing as genuine of a forgery or counter- 
 feit. 
 
 To constitute the crime of uttering a 
 forged instrument, the instrument must, 
 with knowledge of its forged character, be 
 asserted to be good, either directly or in- 
 directly, by words or actions. 1 Whart. 
 Crim. Law, § 703; 2 Bin. (Pa.) 332. 
 
 The instrument need not be passed; it is 
 enough if it is presented or offered as gen- 
 uine. 25 Mich. 388; 48 Mo. 520. 
 
 UTTER BAR. See "Outer Bar." 
 
 UTTER (or OUTER) BARRISTER. In 
 
 English law. Those barristers who plead 
 without the bar, and are distinguished from 
 "benchers," or those who have been read- 
 ers, and who are allowed to plead within the 
 bar, as the king's counsel are. The same 
 as "ouster barrister." 
 
 UXOR (Lat.) In civil law. 
 fully married. 
 
 A woman law- 
 
 UXOR ET FILIUS SUNT NOMINA NA- 
 turae. Wife and son are names of nature. 
 4 Bac. Works, 350. 
 
 UXOR NON EST SUI JURIS, SED SUB 
 potestate viri. A wife is not her own mis- 
 tress, but is under the power of her husband. 
 3 Inst. 108. 
 
 UXOR SEQUITUR DOMICILIUM VIRI. A 
 
 wife follows the domicile of her husband. 
 Tray. Lat. Max. 606. 
 
 UXORCIDE. A wife murderer; the kill- 
 ing of a wife. It is regarded in law and 
 punished as homicide (g. v.) 
 
V F 
 
 (942) 
 
 VAGABOND 
 
 V 
 
 V. F. An abbreviation of verba fecit 
 (spoke). Tayl. Civ. Law, 564. 
 
 V. G. VerM gratia, for the sake of ex- 
 ample. 
 
 V. V. B. C. An abbreviation of voiis voles 
 bein coment, you see well bow. Common in 
 tbe Year Book. See Y. B. M. 2 Hen. VI. 1. 
 
 VACANCY. A place wbicb is empty. Tbe 
 term is principally applied to cases wbere an 
 office is not filled; and it has been held to 
 include an office newly created, and not yet 
 filled. 108 Mo. 153. As used in statutes, it 
 has been held to include temporary vacan- 
 cies. 38 Ohio St. 23. 
 
 By the constitution of the United States, 
 the president has the power to fill up vacan- 
 cies that may happen during the recess of 
 the senate. Whether the president can cre- 
 ate an office and fill it during the recess of 
 tbe senate seems to have been much ques- 
 tioned. Story, Const. § 1553. See Sergeant, 
 Const. Law, c. 31; 1 111. 70. 
 
 There has been much discussion whether 
 a failure to elect constitutes a vacancy;, the 
 question generally arising where the gov- 
 ernor has power to fill vacancies between tbe 
 session^ of the legislature, and seeks to ap- 
 point after adjournment of the legislature, 
 without agreeing on a selection. The better 
 reason is to tbe effect that a vacancy exists, 
 and it has been so held (15 R. I. 621; 91 N. 
 Y. 634) ; but the United States senate, con- 
 struing section 3, art. 1, Const. U. S., pro- 
 viding, "if vacancies [in the senate] happen 
 by resignation or otherwise during the re- 
 cess of the legislature," the governor may 
 appoint, has uniformly held that there was 
 no power of appointment in the governor 
 where the legislature had adjourned after a 
 failure to elect. 
 
 VACANT POSSESSION. A term applied 
 to an estate which has been abandoned by 
 the tenant. The abandonment must be com- 
 plete in order to make the possession vacant, 
 and therefore, if the tenant have goods on 
 the premises, it will not be so considered. 2 
 Chit. 177; 2 Strange, 1064; Buller, N. P. 97; 
 Comyn, Landl. & Ten. 507, 517. 
 
 VACANT SUCCESSION. An inheritance 
 for which the heirs are unknown. 
 
 VACANTIA BONA (Lat.) In civil law. 
 Goods without an owner. Such goods es- 
 cheat. 
 
 VACATE. To annul; to render an act 
 void; as, to vacate an entry which has been 
 made on a record when the court has been 
 imposed upon by fraud, or taken by sur- 
 prise. 
 
 VACATIO (Lat.) In tbe civil law. Ex- 
 emption; immunity; privilege; dispensa- 
 
 tion; exemption from the burden of office. 
 Calv. Lex. 
 
 VACATION. That period of time between 
 the end of one term and beginning of an- 
 other. During vacation, rules and orders are 
 made in such cases as are urgent, by a judge 
 at his chambers. 
 
 VACATUR (Law Lat. it is vacated). In 
 practice. A rule or order by which a pro- 
 ceeding is vacated; a vacating. 
 
 VACUA POSSESSIO. The vacant posses- 
 sion, i. e., free and unburdened possession, 
 which (e. g.) a vendor had and has to give 
 to a purchaser of lands. 
 
 VADES. In the civil law, pledges; sure- 
 ties; bail; security for the appearance of a 
 defendant or accused person in court. Calv. 
 
 Lex. 
 
 VADIARE DUELLUM. To wage combat. 
 Where two contending parties, on a chal- 
 lenge, do give and take a mutual pledge of 
 fighting. Cowell. 
 
 VADIMONIUM (Lat.) In the Roman law. 
 Bail or security; the giving of bail for ap- 
 pearance in court; a recognizance. Calv. 
 Lex. 
 
 VADIUM, 
 curity. 
 
 In the civil law. Pledge or se- 
 
 VADIUM MORTUUM (Lat.) A mortgage 
 or dead pledge. It is a security given by the 
 borrower of a sum of money, by which he 
 grants to the lender an estate in fee, on con- 
 dition that, if the money be not repaid at 
 the time appointed, the estate so put in 
 pledge shall continue to the lender as dead 
 or gone from the mortgagor. 2 Bl. Comm. 
 257; 1 Powell, Mortg. 4. 
 
 VADIUM PONERE. To take bail or 
 pledges for a defendant's appearance. 
 
 VADIUM VIVUM (Lat.) A species of se- 
 curity by which the borrower of a sum of 
 money made over his estate to the lender 
 until he had received that sum out of the 
 issues and profits of the land. It was so 
 called because neither the money nor the 
 lands were lost, and were not left in dead 
 pledge, but this was a living pledge, for the 
 profits of the land were constantly paying 
 off the debt. Litt. § 206; 1 Powell, Mortg. 
 3; Termes de la Ley. 
 
 VADLET. In old English law. The king's 
 eldest son; hence the valet or knave follows 
 the king and queen in a pack of cards. 
 Barr. Obs. St. 344. 
 
 VAGABOND (Pr. Sind Eng.; from Lat. 
 vagabundus, from vagari, to wander). A 
 wandering person; one who habitually goes 
 
VAGABUNDUM, ETC. 
 
 (943) 
 
 VAL,UE RECEIVED 
 
 about from place to place; one who has no 
 settled residence or domicile. Les vagabonds 
 sont les gens sans domicile, vagabonds are 
 people without a domicile. Vattel, liv. 1, c. 
 19, s. 219. A vagabond is said to be a per- 
 son who, without travelling in quest of a 
 domicile, has really and truly no certain 
 domicile at all. Phillim. Dom. 23. 
 
 In English and American law, "vagabond" 
 is always used in a bad sense, denoting one 
 who is without a home; a strolling, idle, 
 worthless person. Va'gabonds are described 
 in old English statutes as "such as wake on 
 the night and sleep on the day, and haunt 
 customable taverns and ale houses, and routs 
 about; and no man wot from whence they 
 came, nor whither they go." 4 Bl. Comm. 
 169. Rogues and vagabonds are classed to- 
 gether by St. 17 Geo. 11. c. 5; 5 Geo. IV. c. 
 83; 1 & 2 Vict. c. 38; 4 Steph. Comm. 309. 
 In American law, the term "vagrant" is em- 
 ployed in the same sense. See "Vagrant." 
 
 VAGABUNDUM NUNCUPAMUS EUM 
 qui nullibi domicilium contraxit habitationis. 
 We call him a vagabond who has acquired 
 nowhere a domicile or residence. Phillim. 
 Dom. 23, note. 
 
 VAGRANT. A person who lives idly, with- 
 out any settled home. A person who refuses 
 to work, or goes about begging. This latter 
 meaning is the common one in statutes pun- 
 ishing vagrancy. See 1 Wils. 331; 5 Bast, 
 339; 8 Term R. 26. 
 
 VAGRANT ACT. In English Jaw, St. 5 
 Geo. IV. c. 83, which is an act fqr the pun- 
 ishment of idle and disorderly persons. 2 
 Chit. St. 145. 
 
 VAGUENESS. Uncertainty. 
 
 Certainty is required in contracts, wills, 
 pleadings, judgments, and, indeed, in all the 
 acts on which courts have to give a judg- 
 ment, and if they be vague so as not to be 
 understood, they are, in general, invalid. 5 
 Barn. & C. 583; 1 Russ. & M. 116; 1 Chit. 
 Prac. 123. A charge of frequent intemper- 
 ance and habitual indolence is vague and 
 too general. 2 Mart. (La.; N. S.) 530. See 
 "Certainty." 
 
 VALE. In Spanish law. A promissory 
 note. White, New Recop. bk. 3, tit. 7, c. 5, 
 § 3. 
 
 VALEAT QUANTUM VALERE POTEST. 
 It shall have effect as far as it can have ef- 
 fect. Cowp. 600; 4 Kent, Comm. 493; Shep. 
 Touch. 87. 
 
 VALEC, VALECT, or VADELET. A young 
 gentleman; also a servitor or gentleman of 
 ' the chamber. Cowell. 
 
 VALESHERIA. In old English law. The 
 proving by the kindred of the slain, one on 
 the father's side, and another on that of the 
 mother, that a man was a Welshman. 
 
 VALID (Lat. ralirlu.t). Strong; effectual; 
 of binding force. An act, deed, will, and the 
 like, which has received all the formalities 
 required by law, is said to be valid or good 
 in law. 
 
 VALIDITY. Freedom from vices of sub- 
 stance; effectiveness in point of law. It is 
 broader than "form" or "requisites," as they 
 are often applied; "form" signifying only 
 regularity or technical phraseology, while 
 "requisites" imports only positive require- 
 ments or essentials, and not matters ex- 
 traneous to the act or instrument itself. 
 
 VALOR BENEFICIORUM (Lat.) In eccle- 
 siastical law. The value of every ecclesias- 
 tical benefice and preferment, according to 
 which the first fruits and tenths are collected 
 and paid. The valuation by which the clergy 
 are at present rated was made 26 Hen. VIII., 
 and is commonly called the "King's Books." 
 1 Bl. Comm. 284*, note 5. 
 
 VALOR MARITAGII (Lat.) The amount 
 forfeited under the ancient tenures by a 
 ward to a guardian who had offered her a 
 marriage without disparagement, which' she 
 refused. It was so much as a jury would 
 assess, or as any one would give bona fide, 
 for the value of the marriage. Litt. 110. 
 
 A writ which lay against the ward, on 
 coming of full age, for that he was not mar- 
 ried by his guardian, for the value of the 
 marriage, and this, though no convenient 
 marriage had been offered. Termes de la 
 Ley. ' 
 
 VALUABLE CONSIDERATION. An equiv- 
 alent in money or value for a thing pur- 
 chased. See "Consideration." 
 
 VALUATION. The act of ascertaining the 
 worth of a thing. The estimated worth of 
 a thing. 
 
 It differs from "price," which does not al- 
 ways afford a true criterion of value; for a 
 thing may be bought very dear or very 
 cheap. In some contracts, as in the case of 
 bailments or insurances, the thing bailed 
 or insured is sometimes valued at the time 
 of making the contract, so that, if lost, no 
 dispute may arise as to the amount of the 
 loss. 2 Marsh. Ins. 620; 1 Caines (N. Y.) 
 80; 2 Caines (N. Y.) 30; Story, Bailm. §§ 
 253, 254; Park, Ins. 98; Weskett, Ins.; Phil. 
 Ins. See "Policy." 
 
 VALUATION ASSESSORS. In Pennsyl- 
 vania, the assessors who estimate the value 
 of property for taxation. 
 
 VALUE. The utility of an object. The 
 worth of an object in purchasing other 
 goods. The first may be called "value in 
 use;" the latter, "value in exchange." It is 
 a relative term, "and has no fixed criteria. 
 See 21 Minn. 322. 
 
 "Value" differs from "price." The latter 
 is applied to live cattle and animals. In a 
 declaration, therefore, for taking cattle, they 
 ought to be said to be of such a price; and 
 in a declaration for taking dead chattels, or 
 -those which never had life, it ought to lay 
 them to be of such a value. 2 Lilly, Abr. 
 629. 
 
 VALUE RECEIVED. A phrase usually em- 
 ployed in a bill of exchange or promissory 
 note, to denote that a consideration has been 
 given for it. 
 
 The expression value received, when put in 
 
VALUED POLICY 
 
 (944) 
 
 VAVASORY 
 
 a bill of exchange, will bear two interpreta- 
 tions, — the drawer of the bill may be pre- 
 sumed to acknowledge the fact that he has 
 received value of the payee (3 Maule & S. 
 351), or when the bill has been made payable 
 to the order of the drawer, it implies that 
 value has been received by the acceptor (5 
 Maule & S. 65). In a promissory note, the 
 expression imports value received from the 
 payee. 5 Barn. & C. 360. See 5 "Wheat. (U. 
 S.) 282. 
 
 VALUED POLICY. A valued policy is one 
 where the value has been set on the ship or 
 goods insured, and this value has been in- 
 serted in the policy in the nature of liqui- 
 dated damages, to save the necessity of 
 proving it in case of loss. 1 Bouv. Inst, 
 note 1230. See "Policy." 
 
 VALVASORS, or VIDAMES. An obsolete 
 title of dignity next to a peer. 2 Inst. 667; 2 
 Steph. Comm. (7th Ed.) 612. 
 
 VANA EST ILLA POTENTIAQUAE NUN- 
 quam venit in actum. Vain is that power 
 which is never brought Into action. 2 Coke, 
 
 51. 
 
 VANI TIMORES SUNT AESTIMANDI, 
 qui non cadunt in constantem virum. Vain 
 are those fears which affect not a fiTm man. 
 7 Coke, 27. 
 
 VANI TIMORIS JUSTA EXCUSATIO 
 
 non est. A frivolous fear is not a legal ex- 
 cuse. Dig. 50. 17. 184; 2 Inst. 483; Broom, 
 Leg. Max. (3d London Ed.) 256, note. 
 
 VANTARIUS (Law Lat.) In old records. 
 A fore footman. Spelman; Cowell. 
 
 VARDA. In old Scotch law. Ward; cus- 
 tody; guardianship. Answering to "warda," 
 in old English law. Spelman. M had also 
 the sense of "award." Skene de Verb. Sign. 
 
 VARIANCE. In pleading and practice. A 
 disagreement or difference between two parts 
 of the same legal proceeding which ought to 
 agree together. Variances are between the 
 writ and the declaration, and between the 
 declaration, or bill in equity, and the evi- 
 dence. 
 
 VARRANTIZATIO (Law Lat.) In old 
 Scotch law. Warranty. Crag, de Jur. Feud. 
 152. 
 
 VAS (Lat.) In the civif law. A pledge; a 
 surety; one who became bail or surety for 
 another in a criminal proceeding or civil ac- 
 tion. Calv. Lex. The plural, vacLes (q. v.), 
 was more commonly used. 
 
 VASALLUS (Law Lat.) In feudal law. A 
 vassal; the grantee of a fief; a feudatory. 
 Feud. lib. 1, tit. 26; Id. lib. 2, tit. 2 et passim. 
 Skene writes the word vassallus. 
 
 VASLETTUS (Law Lat.) A valet or ward. 
 Cowell; Spelman. 
 
 VASSAL. In feudal law. The name given 
 to the holder of a fief bound to perform 
 
 feudal service. This word was then always 
 correlative to that of "lord," entitled to such 
 service. 
 
 The vassal himself might be lord of some 
 other vassal. 
 
 In after times, this word was used to sig- 
 nify a species of slave who owed servitude, 
 and was in a state of dependency on a su- 
 perior lord. 2 Bl. Comm. 53; Merlin, Re- 
 pert. 
 
 VASSELERIA. The tenure or holding of 
 a vassal. Cowell. 
 
 VASTITAS (Law Lat. from vastnm, q. v.) 
 In old English law. A waste. Fleta, lib. i, 
 c. 22, § 6. 
 
 VASTUM (Law Lat.) Waste; a waste or 
 common lying open to the cattle of all ten- 
 ants who have a right of commoning. Par. 
 Ant. 351; Cowell. 
 
 VASTUIVI FORESTAE VEL BOSCI (Law 
 Lat.) In old records. Waste of a forest 
 or wood. That part of a forest or wood 
 wherein the trees and underwood were so 
 destroyed that it lay in a manner waste and 
 barren. Par. Ant. 351, 497; Cowell. 
 
 VAUDERIE. Sorcery; witchcraft; the pro- 
 fession of the Vaudois. 3 Hallam, Mid. Ages, 
 c. ix., pt. 2, p. 386, note. 
 
 VAVASOR or VAVASOUR (Law Lat.) In 
 old English law. The vassal or tenant of a 
 baron; one who held undqr a baron, and 
 who had also tenants under him. 
 
 One who in dignity was next to a baron; 
 a title of dignity next to a baron. Camd. 
 Brit. 109. See "Valvasors." Bracton, in 
 enumerating the various ranks of persons 
 under the king, mentions them in the fol- 
 lowing order: Dukes, counts or earls, bar- 
 ons, magnates or vavasors, and knights 
 (duces, comites, barones, magnates sive va- 
 vasor es, et milites). Bracton, fol. 5b. Ami 
 again, immediately after describing barons, 
 as powerful men under the kipg (potentes 
 sub rege), he proceeds to a description of 
 vavasors as men of great dignity (viri mag- 
 nae dignitatis), adding the following ety- 
 mology of the word: Vavasor enim nihil 
 melius did poterit quam vas sortitus ad va- 
 letudinem, for a vavasor cannot be better 
 described than a vessel or pledge (vas) 
 chosen for strength. Id. 
 
 The term vavasor first came into use in 
 England after the Conquest, being another 
 form of valvasor, which was employed in 
 the feudal law of the continent. LL. Gul. 
 Conq. 1. 24. As a title of dignity, it occurs 
 as late as the time of Chaucer, but after- 
 wards fell into disuse, and is now wholly 
 antiquated. 1 Bl. Comm. 403. The etymol- 
 ogy of the word given by Bracton seems to 
 present vas (a vessel), validus (strong), and 
 sortitus (chosen), as its constituent ele- 
 ments, which is very different from that 
 given of valvasor (q. v.) 
 
 VAVASORY. The lands that a vavasour 
 held. Cowell. 
 
VECTIGAL 
 
 (945) 
 
 VENDOR 
 
 tr 
 
 VECTIGAL (Lat. from vehere,to carry). In 
 the civil law. A custom or impost upon 
 goods brought into or carried out of a state 
 {quod jjrd' rebus civitati invecHs vel evectis 
 publico solvitur). Calv. Lex. 
 
 In a general sense, a tax or tribute of 
 any kind, paid for the use of the state. Id. 
 See Dig. 50. 16. 17. 1; Id. 6. 3; Id. 39. 4. See 
 a list or tariff of articles subject to this im- 
 position. Id. 39. 4. 16. 7. 
 
 VECTIAGALIA (Lat.) InRomanlaw. Du- 
 ties which were paid to the prince for the 
 importation and exportation of certain mer- 
 chandise. They differed from "tribute," 
 which was a tax paid by each individual. 
 Code, 4. 61. 5. 13. 
 
 VECTIGAL JUDICIARIUM. Pines paid to 
 the crown to defray the expenses of main- 
 taining courts of justice. 3 Salk. 33. 
 
 VECTIGAL, ORIGINE IPSA, JUS CAESA- 
 rum et regum patrimoniale est. Tribute, in 
 its origin, is the patrimonial right of em- 
 perors and kings. Dav. 12. 
 
 VECTURA (Law Lat. from vehere, to car- 
 ry). In maritime law. Freight. Locc. de 
 Jur. Mar. lib. 3, c. 6, § 7 et seq. 
 
 VEE (Law Fr. from vra: to forbid). In 
 old English law. Refusal; refusal to deliv- 
 er or return a thing. Defende tort et force, 
 et la torcenouse detenue, et le vee des bestes 
 avaunditz, defends the wrong and the force, 
 and the wrongful taking, and the wrongful 
 detention, and the refusal of the beasts afore- 
 said. Britt. c. 2. Respoyne al vee, answer 
 to the refusal. Id. 
 
 VEE DE NAME (Law Fr.; Law Lat. ir- 
 titum namium). In old English law. Re- 
 fusal of a thing distrained; refusal to de- 
 liver or return a thing taken as a distress; 
 sometimes translated "withernam" (<?. v.) 
 Plees de vee de name. Britt. cc. 19, 20, 103. 
 
 VEIES (Law Fr.) Distresses forbidden to 
 be replevied; the refusing to let the owner 
 have his cattle which were distrained. Kel- 
 ham. 
 
 VE JOURS. An obsolete word, which sig- 
 nified viewers or experts. 
 
 VELABRUM. In old English law, a toll 
 booth. Cro. Jac. 122. 
 
 VELITIS JUBEATIS QUIRITES? (Lat.) 
 Is it your will and pleasure, Romans? The 
 form of proposing a law to the Roman peo- 
 ple. Tayl. Civ. Law, 155. 
 
 VELLE (Lat.) In the civil law. To will; 
 to be willing; to consent. Calv. Lex. 
 
 VELLE NON CREDITUR QUI OBSEQUI- 
 tur imperio patris vel domini. He is not 
 
 presumed to consent who obeys the orders 
 of his father or his master. Dig. 50. 17. 4. 
 
 VELTRARIA. The office of dog leader or 
 coiurser. Cowell. 
 
 VELTRARIUS. One who leads grey- 
 hounds. Blount. 
 
 VENAL. Something that is bought. The 
 term is generally applied in a bad sense; 
 as, a venal office is an office which has been 
 purchased. 
 
 VENARIA. Beasts caught in the woods 
 by hunting. 
 
 VENATIO (LawLat. from te»n)j, to hunt). 
 In old English law. The chase or hunt. 
 Cowell. 
 
 VEND. To sell a chattel. As commonly 
 used, it suggests an offering for sale to any 
 buyer. 
 
 VENDEE. A purchaser; a buyer. 
 
 VENDENS EANDEM REM DUOBUS FAL- 
 sari us est. He is fraudulent who sells the 
 same thing twice. Jenk. Cent. Cas. 107. 
 
 VENDIBLE. Capable of being sold; sala- 
 able. 
 
 VENDITAE. In old European law. A 
 tax on things sold in markets and fairs. 
 Spelman. 
 
 VENDITIO (Lat.) In the civil law. In a 
 strict sense, sale; the act of selling; the 
 contract of sale, otherwise called "emptio 
 venditio." Inst. 3. 24; Dig. 18. 1; Calv. Lex. 
 
 In a large sense, any mode or species of 
 alienation; any contract by which the prop- 
 erty or ownership of a thing may be trans- 
 ferred. Id. 
 
 VENDITION. A sale; the act of selling. 
 
 VENDITIONI EXPONAS (Lat. that you 
 expose to sale). In practice. The name of 
 a writ of execution, directed to the sheriff, 
 commanding him to sell goods or chattels, 
 and in some states lands, which he has taken 
 in execution by virtue of a fieri facias, and 
 which remain unsold. 
 
 Under this writ, the sheriff is bound to 
 sell the property in his hands, and he can- 
 not return a second time that he can get no 
 buyers. Cowp. 406. And see 2 Saund. 47. 1; 
 2 Chit. 390; Comyn, Dig. "Execution" (C 8); 
 Graham, Prac. 359; 3 Bouv. Inst, note 3395. 
 
 VENDITOR (Lat.) In civil and old Eng- 
 lish law. A seller; a vendor. Inst. 3. 24; 
 Code, 4. 54; Bracton, fol. 41. 
 
 VENDITOR REGIS (Lat.) In old English 
 law. The king's salesman, or person who 
 exposed to sale goods or chattels seized or 
 distrained to answer any debt due to the 
 king. Cowell. This office was granted by 
 Bdw. I. to Philip de Lordiner, but was seized 
 into king's hands for abuse thereof. 2 
 Edw. II. 
 
 VENDOR. The seller; one who disposes 
 of a thing in consideration of money. Gen- 
 erally applied only to the seller of realty. 
 
VENDOR'S LIEN 
 
 (946) 
 
 VENUE 
 
 VENDOR'S LIEN. An equitable lien al- 
 lowed the vendor of land sold for the pur- 
 Chase money, where the deed expresses, con- 
 trary to the lEact, that the purchase money is 
 paid. Unless waived, the lien remains till 
 the whole purchase money is paid. 16 Ves. 
 329; 4 Russ. 336; 1 W. Bl. 123; 2 P. Wms. 
 291; 1 Jac. & W. 234; 1 Vern. 267. 
 
 VENDUE. A public auction. 
 VENDUE MASTER. An auctioneer. 
 
 VENIA AETATIS. In the civil law. The 
 privilege of age. A privilege granted by a 
 prince or sovereign, in virtue of which a per- 
 son is entitled to act, sui juris, as if he were 
 of full age. Calv. Lex.; Story, Confl. Laws, 
 § 60, note. 
 
 VENIAE FACILITAS INCENTIVUM EST 
 delinquendi. Facility of pardon is an incen- 
 tive to crime. 3 Inst. 236. 
 
 VENIRE (Lat. to come). The name of a 
 writ (more commonly called venire facias) 
 by which a jury is summoned. 
 
 - VENIRE FACIAS (Lat. that you cause to 
 come). In practice. According to the Eng- 
 lish law, the proper process to be issued on 
 an indictment for any petit misdemeanor, 
 on a penal statute, is a writ called venire 
 facias. 
 
 It is in the nature of a summons to cause 
 the party to appear. 4 Bl. Comm. 18; 1 
 Chit. Crim. Law, 351. 
 
 VENIRE FACIAS AD RESPONDENDUM. 
 
 A writ to summon a person, against whom 
 an indictment for a misdemeanor has been 
 found, to appear and be arraigned for the 
 offense. A justice's warrant is now more 
 commonly used. Archb. Crim. PI. 81. 
 
 VENIRE^FACIAS DE NOVO (Lat.) In 
 practice. The name of a new writ of venire 
 facias. This is awarded when, by reason of 
 some irregularity or defect in the proceed- 
 ing on the first venire, or the trial, the proper 
 effect of the venire has been frustrated, or 
 the verdict become void in law; as, for ex- 
 ample, when the jury has been improperly 
 chosen, or an uncertain, ambiguous, or de- 
 fective verdict has been rendered. Steph. 
 PI. 120; ] Sellon, Prac. 150. 
 
 VENIRE FACIAS JURATORES (Lat; fre- 
 quently called venire simply). In practice. 
 The name of a writ directed to the sheriff, 
 commanding him to cause to come from the 
 body of the county, before the court from 
 which it issued, on some day certain and 
 therein specified, a certain number of quali- 
 fied citizens who are to act as jurors in 
 the said court. Steph. PI. 104; 2 Graydon, 
 Forms, 314. And see 6 Serg. & R. (Pa.) 414; 
 Comyn, Dig. "Bnquest" (C 1), etc., "Plead- 
 er" (2 S 12, 3 O 20), "Process" (D 8); 3 
 Chit. Prac. 797. See "Jury." 
 
 VENIRE FACIAS TOT MATRONAS. A 
 writ to summon a jury of matrons to exe- 
 cute the writ de ventre inspiciendo fq. v.) 
 
 VENIREMAN. A juror summoned by ve- 
 nire. 
 
 VENIT ET DEFENDIT (Law Lat.) In old 
 pleading. Comes and defends. The proper 
 words of appearance and defense in an ac- 
 tion. 1 Ld. Raym. 177. 
 
 Venit et defendit vim et injuriam, comes 
 and says. Y. B. M. 1 Edw. II. 2; 2 Salk. 
 443. 
 
 VENIT ET DIGIT. In old pleading. Comes 
 and says. Y. B. M. 1 Edw. II. 2. 2 Salk. 
 544. 
 
 VENTE A REMERE. In French law. A 
 sale made, reserving a right to the seller to 
 repurchase the property sold by returning 
 the price paid for it. 
 
 The term is used in Canada and Louisi- 
 ana. The time during which a repurchase 
 may be made cannot exceed ten years, and, 
 if by the agreement it so exceed, it shall be 
 reduced to ten years. The time fixed for 
 redemption must be strictly adhered to, and 
 cannot be enlarged by the judge, nor exer- 
 cised afterwards. Civ. Code La. arts. 1545- 
 1549. 
 
 The following is an instance of a vente a 
 remere. A. sells to B. for the purpose of 
 securing B. against indorsements, with a 
 clause that "whenever A. should relieve B. 
 from such indorsements, without B.'s having 
 recourse on the land, then B. would reconvey 
 the same to A. for A.'s own use." This is a 
 vente a remere, and until A. releases B. 
 from his indorsements, the property is B.'s, 
 and forms no part of A.'s estate. 7 Mart. 
 (La.; N. S.) 278. See 1 Mart. (La.; N. S.) 
 528; 3 La. 153; 4 La. 142; Tropl. Vente, c. 
 6; 6 Toullier, Dr. Civ. p. 257. 
 
 VENTER, or VENTRE (Lat. the belly). 
 The wife (so applied in matters relating to 
 child bearing). For example, a man has 
 three children by the first and one by the 
 second venter. A child is said to be in ventre 
 sa mere before it is born; while it is a 
 foetus. 
 
 VENTRE INSPICIENDO (Lat.) In Eng- 
 lish law. A writ directed to the sheriff, com- 
 manding him that, in the presence of twelve 
 men, and as many women, he cause examina- 
 tion to be made whether a woman therein 
 named is with child or not, and if with child, 
 then about what time it will be born, and 
 that he certify the same. It is granted in a 
 case when a widow, whose husband had 
 lands in fee simple, marries again soon after 
 her husband's death, and declares herself 
 pregnant by her first husband, and, under 
 that pretext, withholds the lands from the 
 next heir. Cro. Eliz. 506; Fleta, lib. 1, c. 15. 
 
 VENUE (Law Lat. risnetem, neighborhood. 
 The word was formerly spelled visne. Co. 
 Litt. 125a). In practice. The county in 
 which the facts are alleged to have occurred, 
 and from which the jury are to come to try 
 the issue. Gould, PI. e. 3, § 102; Archb. Civ. 
 PI. 86; Cowp. 176; 1 How. (U. S.) 241. In 
 modern practice, it is used' as synonymous 
 
VERAY 
 
 (947) 
 
 VERBA NIHIL, ETC. 
 
 with "place of trial." See 7 How. Pr. (N. 
 Y.) 462. 
 
 The designation of the county in which 
 the cause is to be tried in pleadings and 
 writs. Comyn, Dig. "Pleader" (C 20). Gen- 
 erally, in modern pleading, in civil practice, 
 no special allegation is needed in the body of 
 the declaration, the venue in the margin 
 being understood to be the place of occur- 
 rence till the contrary is shown. 1 Hempst. 
 236. See statutes and rules of court of the 
 various states, and Reg. Gen. Hilary Term, 
 4 Hen. IV. 
 
 VERAY. An ancient manner of spelling 
 vrai, true. 
 
 In the English law there are three kinds 
 of tenants, — veray, or true tenant, who is 
 one who holds in fee simple; tenant by the 
 manner (g. v.), who is one who has a less 
 estate than a fee which remains in the re- 
 versioner; veray tenant by the manner, 
 who is the same as tenant by the manner, 
 with this difference only, that the fee simple, 
 instead of remaining in the lord, is given 
 by him or by the law to another. Hammond, 
 N. P. 394. 
 
 VERBA ACCIPIENDA SUNT SECUND- 
 um subjectum materiam. Words are to be 
 interpreted according to the subject matter. 
 6 Coke, 6, note. 
 
 VERBA ACCIPIENDA UT SORTIENTUR 
 effectum. Words are to be taken so that 
 they may have some effect. 4 Bac. Works, 
 258. 
 
 VERBA AEQUIVOCA AC IN DUBIO SEN- 
 su posita, intelliguntur digniori et potentio- 
 ri sensu. Equivocal words, and those in a 
 doubtful sense, are to be taken in their 
 best and most effective sense. 6 Coke, 20. 
 
 VERBA ALIQUID OPERARI DEBENT— 
 debent intelligi ut aliquid operentur. Words 
 ought to have some effect; words ought to 
 be interpreted so as to give them some ef- 
 fect. 8 Coke, 94. 
 
 VERBA ALIQUID OPERARI DEBENT, 
 verba cum effectu sunt accipienda. Words 
 are to be taken so as to have effect. Bac. 
 Max. reg. 3, p. 47. See 1 Duer, Ins. 210, 211, 
 216. 
 
 VERBA ARTIS EX ARTE. Terms of art 
 should be explained 'from the art. 2 Kent, 
 Comm. 556, note. 
 
 VERBA CANCELLARIAE. Words of the 
 chancery. The technical style of writs 
 framed in the office of chancery. Fleta, lib. 
 4, c. 10, § 3. 
 
 VERBA CHARTARUM FORTIUS Accipi- 
 untur contra proferentem. The words of 
 deeds are to be taken most strongly against 
 the person offering them. Co. Litt. 36a; Bac. 
 Max. reg. 3; Noy, Max. (9th Ed.) p. 48; 3 
 Bos. & P. 399, 403; 1 Cromp. & M. 657; 8 
 Term R. 605; 15 East, 546; 1 Ball & B. 335; 
 2 Pars. Cont. 22; Broom, Leg. Max. (3d 
 London Ed.) 72, note, 529. 
 
 VERBA CUM EFFECTU ACCIPIENDA 
 sunt. Words are to be interpreted so as to 
 give them effect. Bac. Max. reg. 3. 
 
 VERBA CURRENTIS MONETAE, TEMP- 
 us solutionis designant. The words "cur- 
 rent money" refer to the time of payment. 
 Dav. 20. 
 
 VERBA DEBENT INTELLIGI CUM EF- 
 fectu. Words should be understood effect- 
 ively. 2 Johns. Cas. (N. Y.) 97, 101. 
 
 VERBA DEBENT INTELLIGI UT ALI- 
 quid operantur. Words ought to be so un- 
 derstood that they may have some effect. 8 
 Coke, 94a. 
 
 VERBA DICTA DE PERSONA, INTELLI- 
 gi debent de conditione personae. Words 
 spoken of the person are to be understood 
 of the condition of the person. 2 Rolle, 72. 
 
 VERBA FORTIUS ACCIPIUNTUR CON- 
 tra proferentem. Words are to be taken 
 most strongly against him who uses them. 
 Bac. Max. 11, reg. 3. 
 
 VERBA GENERALIA GENERALITER 
 
 sunt intelligenda. General words are to be 
 generally understood. 3 Inst. 76. 
 
 VERBA GENERALIA RESTRINGUNTUR 
 ad habilitatem rei vel aptitudinem personae. 
 General words must be restricted to the na- 
 ture of the subject matter, or the aptitude 
 of the person. Bacon, Max. reg. 10; 11 C. B. 
 254, 356. 
 
 VERBA ILLATA (RELATA) INESSE VI- 
 dentur. Words referred to are to be con- 
 sidered as if incorporated. Broom, Max. (3d 
 London Ed.) 600, 603; 11 Mees. & W. 183, 
 188; 10 C. B. 261, 263, 266. 
 
 VERBA IN DIFFERENTI MATERIA PER 
 prius, non per posterius, intelligenda sunt. 
 
 Words referring to a different subject are to 
 be interpreted by what goes before, not by 
 what follows. Calv. Lex. 
 
 VERBA INTELLIGENDA SUNT IN CASU 
 posslbiii. Words are to be understood in 
 reference to a possible case. Calv. Lex. 
 
 VERBA INTENTIONI, ET NON E CON- 
 tra, debent inservire. Words ought to wait 
 upon the intention, not the reverse. 8 Coke, 
 94; 2 BL Comm. 379. 
 
 VERBA ITA SUNT INTELLIGENDA, UT 
 res magis valeat quam pereat. Words are to 
 be so understood that the subject matter may 
 be preserved rather than destroyed. Bac. 
 Max. reg. 3; Plowd. 156; 2 Bl. Comm. 380; 2 
 Kent, Comm. 555. 
 
 VERBA MERE AEQUIVOCA, S! PER 
 communem usum loquendi in intellectu certo 
 sumuntur, talis intellectus praeferendus est. 
 When words are merely equivocal, if by 
 common usage of speech they acquire a cer- 
 tain meaning, such meaning is to be pre- 
 ferred. Calv. Lex. 
 
 VERBA NIHIL OPERARI MELIUS EST 
 quam absurde. It is better that words should 
 
VERBA NON TAM, ETC. 
 
 (948) 
 
 VERDICT 
 
 have no operation than to operate absurdly. 
 Calv. Lex. 
 
 VERBA NON TAM INTUENDA, QUAM 
 causa et natura rei, ut mens contrahentium 
 ex eis potius quam ex verbis appareat. 
 Words are not to be looked at so"* much as 
 the cause and nature of the thing, since the 
 intention of the contracting parties may ap- 
 pear from those rather than from the words. 
 Calv. Lex. 
 
 VERBA OFFENDl POSSUNT, IMO AB 
 eis recedere licet, ut verba ad sanum intei- 
 lectum reducantur. You may disagree with 
 words, nay, you may recede from them, in 
 order that they may be reduced to a sensible 
 meaning. Calv. Lex. 
 
 VERBA ORDINATIONIS QUANGO VERI- 
 ficari possunt in sua vera significatione, tra- 
 hi ad extraneum intellectum non debent. 
 When the words of an ordinance can be made 
 true in their true signification, they ought 
 not to be warped to a foreign meaning. Calv. 
 Lex. 
 
 VERBA POSTERIORA PROPTER CERTI- 
 tudinem addita, ad priora quae certitudine 
 indigent, sunt referenda. Subsequent words 
 added for the purpose of certainty are to be 
 referred to preceding words in which cer- 
 tainty/is wanting. Wingate, Max. 167; 6 
 Coke, 236. 
 
 VERBA PRAESENTI (Lat.) Presentwords; 
 words instantly operative. 
 
 VERBA PRECARIA (Lat.) In the civil 
 law. Precatory words {g. v.), such as peto 
 (I beg), vago (I ask), volo (I will), cupio 
 (I desire), etc. 
 
 VERBA PRO RE ET SUBJECTA MATE- 
 ria accipi debent. Words should be received 
 most favorably to the thing and the subject 
 matter. Calv. Lex. 
 
 VERBA QUAE ALIQUID OPERARI POS- 
 sunt non debent esse superflua. Words 
 which can have any effect ought not to be 
 treated as surplusage. Calv. Lex. 
 
 VERBA QUANTUMVIS GENERALIA, AD 
 
 aptitudinem restringuntur, etiamsi nullam 
 aliam paterentur restrictionem. Words, how- 
 soever general, are restrained to fitness (i. 
 e., to harmonize with the subject matter), 
 though they would bear no other restric- 
 tion. Spiegelius. 
 
 VERBA RELATA HOC IVIAXIIVIE OPER- 
 antur per referentiam ut in eis inesse vi- 
 dentur. Words to which reference is made 
 in an instrument have the same effect and 
 operation as if they were inserted in the 
 clause referring to them. Co. Litt. 359; 
 Broom, Leg. Max. (3d London Ed.) 599; 14 
 East, 568. 
 
 VERBA SECUNDUIVl MATERIAIVI SUB- 
 jectam intelligi nemo est qui nescit. There 
 is no one who is ignorant that words should 
 be understood according to the subject mat- 
 ter. Calv. Lex. 
 
 VERBA SEIVIPER ACCIPIENDA SUNT IN 
 mitiori sensu. Words are always to be taken 
 in their milder sense. 4 Coke, 17. 
 
 VERBA STRICTA SIGNIFICATIONIS AD 
 latam extendi possunt, si subsit ratio. Words 
 of a strict signification can be given a wide 
 signification if reason require. Calv. Lex.; 
 Spiegelius. 
 
 VERBA SUNT INDICES ANIMI. Words 
 are indications of the intention. Latch, 106. 
 
 VERBAL. Parol; by word of mouth; as, 
 verbal agreement; verbal evidence. Some- 
 times incorrectly used for "oral." , 
 
 VERBAL NOTE. In diplomatic language, 
 a memorandum or note not signed, sent 
 when an affair has continued a long time 
 without any reply, in order to avoid the ap- 
 pearance of an urgency which perhaps the 
 affair does not require, and, on the other 
 hand, not to afford any ground for supposing 
 that it is forgotten, or that there is no in- 
 tention of prosecuting it any further, is 
 called a "verbal note." 
 
 VERBAL PROCESS. In Louisiana. A 
 written account of any proceeding or opera- 
 tion required by law, signed by the person 
 commissioned to perform the duty, and at- 
 tested by the signature of witnesses. See 
 "Proces Verbal." 
 
 VERBIS STANDUM UBI NULLA AMBI- 
 guitas. One must abide by the words where 
 there Is no ambiguity. Tray. Lat. Max. 612. 
 
 VERBUM IMPERF.ECTI TEMPORIS REIVl 
 adhuc imperfectam significat. The imper- 
 fect tense of the verb indicates an incom- 
 plete matter. 6 Wend. (N. Y.) 103, 120. 
 
 VER"DER0R (from Pr. verdciir, from rcrt 
 or vera, green; Law Lat. viridarius). An 
 officer in king's forest, whose oflJce is prop- 
 erly to look after the vert, for food and shel- 
 ter for the deer. He is also sworn to keep 
 the assizes of the forest, and receive and 
 : enroll the attachments and presentments of 
 trespasses within the forest, and certify 
 them to the swain mote or justice seat. Cow- 
 ell; Burn, Ecc. Law; Manw. For. Law, pt. 
 1, p. 332. 
 
 VERDICT. In practice. The unanimous 
 decision made by a jury and reported to the 
 court on the matters lawfully submitted to 
 them in the course of a trial of a cause. 
 
 (1) A general verdict is one by which the 
 jury pronounce at the same time on the fact 
 and the law, either in favor of the plaintiff 
 or defendant. Co. Lltt. 228; 4 Bl. Comm. 
 461. The jury may find such a verdict 
 whenever they think fit to do so. 
 
 (2) A partial verdict in a criminal case 
 is one by which the jury acquit the defend- 
 ant of a part of the accusation against him, 
 and find him guilty of the residue. 
 
 The following are examples of this kind 
 of a verdict, namely: When they acquit 
 the defendant on one count, and find him 
 guilty on another, which is indeed a species 
 of general verdict, as he is' generally ac- 
 quitted on one charge, and generally con- 
 
VERDICT 
 
 (949) 
 
 VERGE 
 
 victed on another; -when the charge is of an 
 offense of a higher, and includes one of an 
 inferior, degree, the jury may convict of the 
 less atrocious by finding a partial verdict. 
 Thus, upon an indictment for burglary, the 
 defendant may be convicted of larceny, and 
 ! acauitted of the nocturnal entry; upon an 
 indictment for murder, he may be convicted 
 of manslaughter; robbery may be softened 
 to simple larceny; a battery into a common 
 assault. 1 Chit. Crim. Law, 638, and the 
 cases there cited. 
 
 (3) A privy verdict is one delivered priv-, 
 ily to a judge out of court. A verdict of 
 this kind is delivered to the judge after 
 the jury have agreed, for the convenience 
 of the jury, who, after having given it, sepa- 
 rate. This verdict is of no force whatever, 
 and this practice, being exceedingly liable 
 to abuse, is seldom if ever allowed in the 
 United States. The jury, however, are al- 
 lowed in some states, in certain cases, to 
 seal their verdict and return it into court, 
 as, for example, where a verdict is agreed 
 upon during the adjournment of the court 
 for the day. 
 
 (4) A public verdict is one delivered in 
 open court. This verdict has its full effect, 
 and, unless set aside, is conclusive on the 
 facts, and, when judgment is rendered upon 
 it, bars all future controversy, in personal 
 actions. A private verdict must afterwards 
 be given publicly in order to give it any ef- 
 fect. 
 
 (5) A special verdict is one by which the 
 facts of the case are put on the record, and 
 the law is submitted to the judges. 1 Lltt. 
 (Ky.) 376; 4 Rand. (Va.) 504; 1 Hen. & M. 
 (Va.) 235; 1 Wash. C. C. (U. S.) 499; 2 
 Mason (U. S.) 31. 
 
 The jury have an option, instead of find- 
 ing the negative or aflBrmative of the issue, 
 as in a general verdict, to find all the facts 
 of the case as disclosed by the evidence be- 
 fore them, and, after so setting them forth, 
 to conclude to the following effect: "That 
 they are ignorant, in point of law, on which 
 side they ought upon those facts to find the 
 issue; that if, upon the whole matter, the 
 court shall be of opinion that the issue is 
 proved for the plaintiff, they find for the 
 plaintiff accordingly, and assess the damages 
 at such a sum, etc.; but if the court are of 
 an opposite opinion, then they find vice 
 versa." This form of finding is called a 
 "special verdict." In practice they have 
 
 „ nothing to do with the formal preparation 
 of the special verdict. When it is agreed 
 that a verdict of that kind is to be given, 
 the jury merely declare their opinion as to 
 any fact remaining in doubt, and then the 
 verdict is adjusted without their further in- 
 terference. It is settled, under the correc- 
 tion of the judge, by the counsel and attor- 
 neys on either side, according to the state 
 of the facts as found by the jury, with re- 
 spect to all particulars on which they have 
 delivered an opinion, and, with respect to 
 other particulars, according to the state of 
 
 " facts which it is agreed that they ought to 
 find upon the evidence before them. The 
 
 , special verdict, when its form is thus set- 
 
 ■ tied, is, together with the whole proceedings 
 
 on the trial, then entered on record; and 
 the question of law, arising on the facts 
 found, is argued before the court in banc, 
 and decided by that court as in case of a 
 demurrer. If either party be dissatisfied 
 with their decision, he may afterwards re- 
 sort to a court of error. Steph. PI. 113; 1 
 Archb. Prac. 189; 3 Bl. Comm. 377; Bac. 
 Abr. "Verdict" (D, B). 
 
 There is another method of finding a 
 special verdict. This is when the jury find 
 a verdict generally for the plaintiff, but sub- 
 ject, nevertheless, to the opinion of the 
 judges or the court above on a special case, 
 stated by the counsel on both sides, with 
 regard to a matter of law. 3 Bl. Comm. 378. 
 And. see 10 Mass. 64; 11 Mass. 358. See, 
 generally, Bouv. Inst. Index. 
 
 (6) A sealed verdict is one arrived at and 
 delivered, to be returned to the court when 
 it shall again convene after a recess or ad- 
 journment for the day, during which the 
 agreement of the jurors is reached. It is 
 inclosed in a sealed packet, and is opened 
 and read at the ensuing sitting of the court, 
 in the presence of the jury. It is permitted 
 by special direction of the court in order 
 to avoid confining the jury for a long period 
 after agreeing, and enables them to sepa- 
 rate subject to the duty to attend the open- 
 ing of the verdict. 
 
 VERDICT SUBJECT TO OPINION OF 
 
 court. A verdict returned by the jury, the 
 entry of judgment upon which is subject to 
 the determination of points of law reserved 
 by the court upon the trial. 
 
 VERDIT (Law Fr. from irr, true, and dit, 
 a saying). In old English law Verdict; a 
 declaration by a jury of the truth of a mat- 
 ter in issue, submitted to them for trial. 
 
 VEREBOT (Saxon). In old records. A 
 packet boat, or transport vessel. Cowell. 
 
 VEREDICTUM (Law Lat. from vrn: truly, 
 or verus, true, and dictum, a saying). In 
 old English law. A verdict; a declaration of 
 the truth of a matter in issue, submitted to 
 a jury for trial. 
 
 VEREDICTUM, QUASI DICTUM VERI- 
 tatis; ut judicium, quasi juris dictum. A 
 
 verdict is, as it were, the saying of the 
 truth, in the same manner that a judgment 
 is the saying of the law. Co. Lift. 226. 
 
 VERGE. "At common law, the coroner of 
 the county had no jurisdiction within the 
 compass of the king's court, which bounds 
 the jurisdiction of the lord high steward of 
 the household, and comprehends a circuit 
 of twelve miles round the residence of the 
 court [wherever held]. This jurisdiction is 
 usually called the 'verge,' within which the 
 coroner of the king's household, or, as com- 
 monly called, the 'coroner of the verge,' had 
 jurisdiction over all matters within the duty 
 of a coroner, exclusive of the coroner of the 
 county. A jurisdiction so exclusive, particu- 
 larly as the king's court was movable, was 
 found to be attended with many incon- 
 
VERGELT 
 
 (950) 
 
 VESTED LEGACY 
 
 veniences, * * * and therefore it was 
 found expedient to impart, in some cases, 
 to the coroner of the county, a jurisdiction 
 concurrent with that of the coroner of the 
 verge." Jervls, Cor. 5, 59; Sts. 28 Edw. I. c. 
 3, and 33 Hen. VIII. c. 12. § 3. 
 
 VERGELT. In Saxon law. A mulct or 
 fine for a crime. See "Wergild." 
 
 VERGENS AD INOPIAM (Law Lat.) In 
 Scotch law. Verging towards poverty; in 
 declining circumstances. 2 Kames, Bq. 8. 
 
 VERGERS. In English law. Officers who 
 carry white wands before the justices of 
 either bench. Cowell. Mentioned in Pleta 
 as officers of the king's court, who oppressed 
 the people by demanding exorbitant fees. 
 Pleta, lib. 2, c. 38. 
 
 VERIFICATION (Lat. verwn, true, facio, 
 to make). 
 
 In Common-Law Pleading. An aver- 
 ment by the party making a pleading that 
 he is prepared to establish the truth of the 
 facts which he has pleaded. 
 
 The usual form of verification of a plea 
 containing matter of fact is, "And this he is 
 ready to verify," etc. See 1 Chit. PI. 537, 
 616; Lawes, Civ. PI. 144; 1 Saund. 103, note 
 1; Willes, 5; 3 Bl. Comm. 309. 
 
 In Code Pleading. The affidavit of the 
 
 party, or his agent or attorney, to the truth 
 of a pleading. 
 
 ^In Practice. The examination of the 
 
 truth of a writing; the certificate that the 
 writing is true. See "Authentication." 
 
 VERITAS (Lat. from verus, true). Truth; 
 verity. 
 
 VERITAS, A QUOCUNQUE DICITUR, A 
 Deo est. Truth, by whomsoever pronounced, 
 is from God. 4 Inst. 153. 
 
 VERITAS DEiVlONSTRATIONIS TOLLIT 
 
 errorem nominis. The truth of the descrip- 
 tion removes the error of the name. 1 Ld. 
 Raym. 303. See "Legatee." 
 
 VERITAS HABENDA EST IN JURATO- 
 re; Justitia et judicium in judice. Truth is 
 the desideratum in a juror; justice and 
 judgment in a judge. Bracton. 185b. 
 
 VERITAS NIHIL VERETUR NISI AB 
 scondi. Truth fears nothing but conceal- 
 ment. 9 Coke, 20. 
 
 VERITAS NIMIUIVI ALTERCANDO AIVIIT- 
 titur. By too much altercation truth is lost. 
 Hob. 344. 
 
 VERITAS NOIVIINIS TOLLIT ERROREM 
 demonstrationis. The truth of the name 
 takes away the error of description. Bac. 
 Max. reg. 25; Broom, Leg. Max. (3d London 
 Ed.) 571; 8 Taunt. 313; 2 Jones, Bci. (N. 
 C.) 72. 
 
 VERITAS, QUAE MINIIVIE DEFENSA- 
 tur opprimitur; et qui non improbat, appro- 
 bat. Truth which is not sufficiently defend- 
 
 ed is overpowered; and he who does not 
 disapprove, approves. 3 Inst. 27. 
 
 VERITATEIVl QUI NON LIBERE PRO- 
 nunciat, proditor est veritatis. He who does 
 not speak the truth freely-is a traitor to the 
 truth. 4 Inst. Epil. 
 
 VERITY. The quality of being very true 
 or real. Webster. Complete and absolute 
 truth. The record of a court of record is 
 said to import verity. 
 
 VERS (Law Pr.; from Law Lat. versus, 
 q. V.) In old practice. Against. Excepcions 
 vers le juge, ou vers le pleyntyfe, vers qui il 
 purra dire, exceptions against the judge, or 
 against the plaintiff, against whom he may 
 say. Britt. c. 57. 
 
 VERSARI (Lat.) In the civil law. To be 
 employed; to be exercised; to be continually 
 engaged; to be conversant. Versari male in 
 tutela, to misconduct one's self in a guard- 
 ianship. Calv. Lex. Versari in lucro, to be 
 in gain, or a gainer. Id. 
 
 VERSUS (Law Lat.) In practice. Against; 
 an abbreviation of the Latin adversus. Used 
 by Bracton indifferently with contra (q. v.) 
 Actio competit contra eum, an action lies 
 against him. Bracton, fol. 103b. Actio datur 
 versus eum, an action is given against him. 
 Id. Retained in modern practice, in, the 
 titles of causes, but commonly in its con- 
 tracted forms, vs. and v. The Prench form, 
 vers, frequently occurs in Britton. 
 
 VERT. Everything bearing green leaves 
 in a forest. Bac. Abr. "Courts of the Por- 
 est;" Manw. Por. Law, 146. 
 
 VERY LORD AND VERY TENANT. An 
 
 immediate lord and tenant. Blount. 
 
 VEST. To give an immediate fixed right 
 of present or future enjoyment. An estate 
 is vested in possession when there exists a 
 right of present enjoyment; and an estate is 
 vested in interest when there is a present 
 fixed right of future enjoyment. Pearne, 
 Cont. Rem. 2. See Rop. Leg. 757; Comyn, 
 Dig.; Vern. 323, note; 5 Ves. 511. 
 
 VESTED IN INTEREST. A legal term ap- 
 plied to a present fixed right of future en- 
 joyment; as reversions, vested remainders, 
 such executory devises, future uses, condi- 
 tional limitations, and other future interests 
 as are not referred to, or made to depend 
 on, a period or event that is uncertain. 
 Wharton. 
 
 VESTED IN POSSESSION. An existing 
 right of present enjoyment. 
 
 VESTED LEGACY. A legacy is said to be 
 vested when the words of the testator mak- 
 ing the bequest convey a transmissible in- 
 terest, whether present or future, to the leg- 
 atee in the legacy. Thus, a legacy to one 
 to be paid when he attains the age of 
 twenty-one years is a vested legacy, be- 
 cause it is given unconditionally and abso- 
 
VESTED REMAINDER 
 
 (951) 
 
 VETUvSTAS 
 
 lutely, and therefore vests an immediate in- 
 terest in the legatee, of which the enjoy- 
 ment only is deferred or postponed. Brown. 
 
 VESTED REMAINDER. See "Remain- 
 der." 
 
 VESTED RIGHT. A right resting on a 
 perfect obligation. 1 Hill (N. Y.) 324. A 
 fixed immediate right of present or future 
 enjoyment. 24 Miss. 90. 
 
 An expectancy (8 N. Y. 110), e. g., an 
 inchoate right of dower (104 111. 403), is not 
 a vested right. 
 
 There is no vested right in a remedy. 58 
 Wis. 621; 57 Pa. St. 433; 1 Neb. 419. 
 
 VESTIGIUM (Law Lat.) In the law of 
 evidence. A trace, or track; a mark left 
 by a physical object. Vestigia carectae, the 
 tracks of a cart. Pleta, lib. 1, c. 25, § 6. 
 
 VESTIMENTUM (Law Lat. from rcsfiir, 
 to clothe). In old English law. Clothing. 
 A figurative expression denoting the charac- 
 ter, quality, or circumstance of right, as 
 opposed to the negation or destitution of 
 right, which was compared to a state of 
 nakedness. Possessio est nuda donee ex tem- 
 pore et seysina paciflca acquiratur vesti- 
 mentum, the possession is naked until a 
 clothing [i. e., of right] be acquired by time 
 and peaceable seisin. Bracton, fol. 160. 
 
 In Feudal Law. Investiture; seisin. 
 
 Lord Mansfield, C. J., 1 Burrows, 109, quot- 
 ing Bracton, fol. 160. 
 
 In Old English Law. The technical 
 
 form of a contract, requisite to give it effect. 
 Fleta, lib. 2, c. 56, §§ 3, 4. 
 
 VESTING ORDER. In English law. A 
 decree passing title in lieu of a conveyance 
 for that purpose. Wharton. 
 
 VESTRY. 
 
 In England. A parochial assembly. 
 
 In the United States. A body of men, 
 
 chosen by the parish of an Episcopal church, 
 to have the care and management, in con- 
 junction with the wardens, of the church's 
 temporal affairs. Webster. 
 
 VESTRY CESS. A rate levied in Ireland 
 for parochial purposes, abolished by 27 Vict, 
 c. 17. 
 
 VESTRY CLERK. An officer appointed 
 to attend vestries, and take an account of 
 their proceedings, etc. 1 Steph. Comm. (7th 
 Ed.) 122, note; 2 Steph. Comm. 699, note; 
 13 & 14 Vict. c. 57, §§ 6-8. 
 
 VESTRYMEN. A select numbgr of pa- 
 rishioners elected in large and populous par- 
 ishes to take care of the concerns of the 
 parish; so called because they used ordina- 
 rily to meet in the vestry of the church. 
 Cowell. 
 
 VESTURA. A jrop of grass or corn. Cow- 
 ell. Also a garment; metaphorically applied 
 to a possession or seisin. 
 
 VESTURA TERRAE. See "Vesture of 
 Land." 
 
 VESTURE. In old English law. Profit of 
 land. "How much the vesture of an acre is 
 worth." Cowell. 
 
 VESTURE OF LAND. A phrase including 
 all things, trees excepted, which grow upon 
 the surface of the land and clothe it ex- 
 ternally. 
 
 He who has the vesture of land has a 
 right, generally, to exclude others from en- 
 tering upon the superficies of the soil. Co. 
 Litt. 4b; Hammond, N. P. 151. See 7 East, 
 200; 1 Vent. 393; 2 Rolle, Abr. 2. 
 
 VETERA STATUTA (Lat.) The name of 
 Vetera statuta — ancient statutes— has been 
 given to the statutes commencing with 
 Magna Charia, and ending with those of 
 Edward II. Crabb, Hist. Eng. Law, 222. 
 
 VETITUM NAMIUM (Law Lat. velifuw, 
 forbidden, namium, taking). Where the 
 bailiff of a lord distrains beasts or goods of 
 another, and the lord forbids the bailiff to 
 deliver them when the sheriff comes to make 
 replevin, the owner of the cattle may de- 
 mand satisfaction in placitum de vetito 
 namio. 2 Inst. 140; Rec. in Thesaur. Scacc; 
 2 Bl. Comm. 148. 
 
 VETO (Lat. I forbid). A term including 
 the refusal of the executive officer whose as- 
 sent is necessary to perfect a law which has 
 been passed by the legislative body, and the 
 message which is usually sent, stating such 
 refusal, and the reasons therefor. 
 
 By the constitution of the United States 
 government, the president has a power to 
 prevent the enactment of any law, by refus- 
 ing to sign the same after its passage, un- 
 less it be subsequently enacted by a vote of 
 two-thirds of each house. Const. U. S. art. 
 1. § 7. When a bill is engrossed, and has re- 
 ceived the sanction of both houses, it is 
 transmitted to the president for his appro- 
 bation. If he approves of it, he signs it. If 
 he does not, he sends it, with his objections, 
 to the house in which it originated, and that 
 house enter the objections on their journal, 
 and proceed to reconsider the bill. See 
 Story, Const. § 878; 1 Kent, Comm. 239. 
 Similar powers are possessed by the govern- 
 ors of many of the states. 
 
 The veto power of the British sovereign 
 has not been exercised for more than a cen- 
 tury. It was exercised o-ce during the reign 
 of Queen Anne. 10 Edinb. Rev. 411; Parke, 
 Lect. 126. But anciently the king frequently 
 replied, Le roy s'avisera, which was in effect 
 withholding his assent. In France the king 
 had the initiative of all laws, but not the 
 veto. See 1 Toullier, Dr. Civ. nn. 39, 42, 52, 
 note 3. 
 
 VETUS JUS (Lat.) The old law; old law. 
 A term used in the civil law, sometimes to 
 designate the law of the Twelve Tables, and 
 sometimes merely a law which was in force 
 previous to the passage of a subsequent law. 
 Calv. Lex. A law principle or doctrine of 
 long standing. 
 
 VETUSTAS (Lat. from ret us, old). In 
 the civil law. Antiquity; ancient or former 
 
VEXATA QUAESTIO 
 
 (952) 
 
 VICE 
 
 law or practice; the same with antiquitas. 
 Inst. 3. 1. 15. 
 
 VEXATA QUAESTIO. A vexed question; 
 a point often discussed, but undetermined. 
 
 VEXATIOUS SUIT. A suit whicli lias been 
 instituted maliciously, and witliout probable 
 cause, whereby a damage has ensued to the 
 defendant. 
 
 VI AUT CLAM. In the civil law. By 
 force or covertly. Dig. 43. 24. 
 
 VI BONORUM RAPTORUM (Lat.) In the 
 civil law. Of goods taken away by force. 
 The name of an action given by the praetor 
 as a remedy for the violent taking of an- 
 other's property. Inst. 4. 2; Dig. 47. 8; 
 Heinec. Elem. Jur. Civ. lib. 4. tit. 2. 
 
 V I ET A R Ml S ( Lat. ) With force and arms. 
 See "Trespass." 
 
 VIA (Lat.) A cart way, which also in- 
 cludes a foot way and a horse way. See 
 "Way." 
 
 VIA ANTIQUA VIA EST TUTA. The old 
 
 way is the safe way. 1 Johns. Ch. (N. Y.) 
 527, 530. 
 
 VIA PUBLICA (Lat.) In the civil law. A 
 public way or road, the land itself belonging 
 to the public. Dig. 43. 8. 2. 21. 
 
 VIA REGIA (Lat.) In English law. The 
 king's highway for all men. Co. Lift. 56a. 
 The highway or common road, called "the 
 king's" highway, because authorized by him, 
 and under his protection. Cowell. Called 
 also via regalia. Fleta, lib. 1. c. 24. § 8. 
 
 VIA TRITA EST TUTISSIMA. The beat- 
 en road is the safest. 10 Coke, 142 ; 4 Maule 
 & S. 168. 
 
 VIA TRITA, VIA TUTA. The old way is 
 
 the safe way. 5 Pet. (XT. S.) 223. 
 
 VIABILITY (from the French lie). Capa- 
 bility of living. A term used to denote the 
 power a new-born child possesses of contin- 
 uing its independent existence. 
 
 That a child may be viable, it is neces- 
 sary that not only the organs should be in a 
 normal state, but likewise all the physiolog- 
 ical and pathological causes which are capa- 
 ble oi opposing the establishment or pro- 
 longation of its life be absent. 
 
 Although a child may be born with every 
 appearance of health, yet, from some mal- 
 formation, it may not possess the physical 
 power to maintain life, but which must cease 
 from necessity. Under these circumstances, 
 it cannot be said to exist more than tempo- 
 rarily, — no longer, indeed, than is necessary 
 to prove that a continued existence is im- 
 possible. 
 
 It is important to make a distinction be- 
 tween a viable and a nonviable child, al- 
 though the latter may outlive the former. 
 The viable child may die of some disease on 
 the day of its birth, while a nonviable child 
 may live a fortnight. The former possesses 
 the organs essential to life, in their integ- 
 rity; while the latter has some imperfection 
 
 which prevents the complete establishment 
 of life. 
 
 As it is no evidence of nonviability that a 
 child dies within a few hours of its birth, 
 neithet is it a proof of viability if a child 
 appears to be well, and the function of res- 
 piration be fully established. 
 
 There are many affections which a child 
 may have at birth that are not necessarily 
 mortal, such as transposition of some of the 
 organs, and other malformations. There are 
 also many diseases which, without being 
 necessarily mortal, are an impediment to the 
 establishment of independent life, affecting 
 different parts of the system, such as inflam- 
 mation, in addition to many malformations. 
 There is a third class, in which are many af- 
 fections that are necessarily mortal, such as 
 a general softening of the mucous membrane 
 of the stomach and intestines, developed be- 
 fore birth, or the absence of the stomach, 
 and a number of other malformations. These 
 distinctions are of great importance; for 
 children affected by peculiarities of the first 
 order must be considered as viable; affec- 
 tions of the second may constitute extenu- 
 ating circumstances in questions of infanti- 
 cide; while those of the third admit of no 
 discussion on the subject of their viability. 
 
 The question of viability presents itself to 
 the medical jurist under two aspects, — first, 
 with respect to infanticide, and, second, with 
 respect to testamentary grants and inheri- 
 tances. Billard, Infants (Translation by 
 James Stewart, ^A. D.) Appendix; Briand, 
 Med. Leg. lere Partie, c. 6, art. 2. See 2 
 Savignay, Dr. Rom. Append. III., for a learn- 
 ed discussion of this subject. 
 
 VIABLE (Lat. titae haMlis, capable of liv- 
 ing). A term applied to a child who is born 
 alive in such an advanced state of formation' 
 as to be capable of living. Unless he is born 
 viable, he acquires no rights, and cannot 
 transmit them to his heirs, and is Consid- 
 ered as if he had never been born. 
 
 VIAE SERVITUS (Lat.) A right of way 
 over another's land. 
 
 VIANDER. In old English law. A return- 
 ing officer. 7 Mod. 13. 
 
 VICARAGE. In ecclesiastical law. The 
 living or benefice of a vicar, usually con- 
 sisting of the small tithes. 1 Burn, Ecc. 
 Law, 75, 79. 
 
 VICARIUS NON HABET VICARIUM. A 
 
 deputy cannot appoint a deputy. Branch, 
 Max. 38; Broom, Leg. Max. (3d London Edi) 
 758; 2 Bouv. Inst, note 1300. 
 
 VICE (Lat.; ablative of rieis, place). In 
 the place or stead. Vice mea, in my place. 
 Used in the composition of words denoting 
 a delegated or deputed authority. 
 
 A term used in the civil law and in Lou- 
 isiana, by which is meant a defect in a 
 thing; an imperfection. For example, epi- 
 lepsy in a slave, roaring an^d crib biting in a 
 horse, are vices. Redhibitory vices are those 
 for which the seller will be compelled to 
 annul a sale and take back the thing sold. 
 Poth. Vente, 203; Civ. Code La. arts. 2498- 
 2507. 
 
VICE-ADMIRALTY COURTS 
 
 (9S3) 
 
 VIDUA REGIS 
 
 VICE-ADMIRALTY COURTS. In English 
 law. Courts established in the queen's pos- 
 sessions beyond the seas, with jurisdiction 
 over maritime causes, including those relat- 
 ing to prize. 3 Steph. Comm. 435; 3 Bl. 
 Comm. 69. 
 
 VICE CHAMBERLAIN. A great officer 
 under the lord chamberlain, who, in the ab- 
 sence of the lord chamberlain, has the con- 
 trol and command of the officers appertain- 
 ing to that part of the royal household which 
 is called the "chamber." Cowell. 
 
 VICE CHANCELLOR. An equity judge 
 who acts as assistant to the chancellor, hold- 
 ing a separate court, from which an appeal 
 lies to the chancellor. 
 
 VICE CHANCELLOR OF THE UNIVER- 
 sitles. See "Chancellors' Courts in the Uni- 
 versities." 
 
 VICE COMES (Lat.) The sheriff. 
 
 VICE COMES DICITUR QUOD VICEM 
 comitis suppleat. "Vice cowcfi" [sheriff] is 
 so called because he supplies the place of 
 the "comes" [earl]. Co. Litt. 168. 
 
 VICE COMES NON MISIT BREVE (Lat. 
 the sheriff did not send the writ). An entry 
 made on the record when nothing has been 
 done by virtue of a writ which has been di- 
 rected to the sheriff. 
 
 VICE COMITISSA (Law Lat.) In old Eng- 
 lish law. A viscountess. Spelman. Vice 
 comitissa dotissa. viscountess dowager. Com. 
 185. 
 
 VICE CONSTABLE OF ENGLAND. An 
 
 ancient officer in the time of Edward IV. 
 
 VICE CONSUL. An officer who performs 
 the duties of a consul within a part of the 
 district of a consul, or who acts in the place 
 of a consul. See 1 Phil. Ev. 306. 
 
 VICE DOMINUS. A sheriff; ingulp. 
 
 VICE GERENT. A deputy or lieutenant. 
 
 VICE MARSHAL. An officer who was ap- 
 pointed to assist the earl marshal. 
 
 VICE VERSA (Lat.) On the contrary; on 
 opposite sides. 
 
 VICEROY. One empowered to act in 
 place of the king; as a colonial governor. 
 
 VICINAGE. The neighborhood; the venue. 
 VICINETUM (Lat.) The neighborhood; 
 vicinage; the venue. Co. Litt. 158b. 
 
 VICINI VICINIORA PRAESUMUNTUR 
 scire. Neighbors are presumed to know 
 things of the neighborhood. 4 Inst. 173. 
 
 VICINIA (Lat. from liciiing, near). In the 
 civil law. Nearness of dwelling; neighbor- 
 hood; a neighborhood; a neighboring place. 
 Distinguished from confinmm. as being ap- 
 plied to urban estates. Calv. Lex. 
 
 VICIOUS INTROMISSION. In Scotch law. 
 A meddling with the movables of a deceased, 
 
 without confirmation or probate of his will 
 or other title. Wharton. 
 
 VICIS ET VENELLIS MUNDANDIS. An 
 ancient writ against the mayor or bailiff of 
 a town, etc., for the clean keeping of their 
 streets and lanes. Reg. Grig. 267. 
 
 VICOUNTIEL. Belonging to the sheriff. 
 
 VICOUNTIEL JURISDICTION. That ju- 
 risdiction which belongs to the officers of a 
 county; as sheriffs, coroners, etc. 
 
 ' VICTUS (Lat.) In the civil law. Sus- 
 tenance; support; the means of living. The 
 word included everything necessary to the 
 support of human life (quae ad vivendum 
 homini necessaria sunt). Dig. 50. 16. 43. 
 
 VI DAME. In French feudal law. Orig- 
 inally, an officer who represented the bishop, 
 as the viscount did the count. In process of 
 time, these dignitaries erected their offices 
 into fiefs, and became feudal nobles, such as 
 the vidame of Chartres, Rheims, etc.; con- 
 tinuing to take their titles from the seat of 
 the bishop whom they represented, although 
 the lands held by virtue of their fiefs might 
 be situated elsewhere. Brande. 
 
 A chief in the neighborhood of a church 
 or abbey, who acted as its protector. Steph. 
 Lect. 236. 
 
 Blackstone, quoting Camden, makes vi- 
 dame to be a title in old English law, synon- 
 ymous with that of valvasor. 1 Bl. Comm. 
 403. 
 
 VIDE (Lat.) A word of reference. Tide 
 ante, or vide supra, refers to a previous pas- 
 sage, vide post, or vide infra, to a subse- 
 quent passage, in a book. 
 
 VIDEBIS EA SAEPE COMMITTI, QUAE 
 saepe vindicantur. You will see those things 
 frequently committed which are frequently 
 punished. 3 Inst. Epilog. 
 
 VIDELICET (Lat.) A Latin adverb, signi- 
 fying to wit, that is to say, namely; scilicet. 
 This word is usually abbreviated viz. 
 
 The office of the videlicet is to mark that 
 the party does not undertake to prove the 
 precise circumstances alleged; and in such 
 cases he is not required to prove them. 
 Steph. PI. 309; 7 Cow. (N. Y.) 42; 4 Johns. 
 (N Y.) 450; 3 Term R. 67, 643; 8 Taunt. 
 107; Green!. Ev. § 60; 1 Litt. (Ky.) 209. 
 See Yelv. 94; 3 Saund. 291a, note; 4 Bos. & 
 P. 465; Dane, Abr. IndeTc; 2 Pick. (Mass.) 
 214, 222; 16 Mass. 129. 
 
 VIDETUR QUI SURDUS ET MUTUS NE 
 poet faire alienation. It seems that a deaf 
 and dumb man cannot alienate. 4 Johns. 
 Ch. (N. Y.) 441, 444. 
 
 VIDIMUS. We have seen. A species of 
 exemplification of the enrollment of charters, 
 etc. An inspeximus (q. v.) 
 
 VIDUA REGIS. In old English law. A 
 king's widow. The widow of a tenant in 
 capite. So called because she was not al- 
 lowed to marry a second time without the 
 king's permission; obtaining her dower also 
 
VIDUITY 
 
 (954) 
 
 VILLEIN IN GROSS 
 
 from the assignment of the king, and having 
 the king for her patron and defender. Spel- 
 man. 
 
 VIDUITY. Widowhood. 
 
 VIE (Fr.) Life. See "Pur Autre Vie." 
 
 VIEW. Inspection; a prospect. 
 
 Every one is entitled to a view from his 
 premises; but he thereby acquires no right 
 over the property of his neighbors. The 
 erection of buildings which obstruct a man's 
 view, therefore, is not unlawful, and such 
 buildings cannot be considered a nuisance. 9 
 Coke, 58b. See "Ancient Lights;" "Nui- 
 sance." ' 
 
 In Practice. In most real and mixed 
 
 actions, in order to ascertain the identity of 
 land claimed with that in the tenant's pos- 
 session, the tenant is allowed, after the de- 
 mandant has counted, to demand a view of 
 the land in question, or, if the subject of 
 claim be rent, or the like, a view of the 
 land out of which it issues. Viner, Abr.; 
 Comyn, Dig.; Booth, 37; 2 Saund. 45b; 1 
 Reeve, Hist. Eng. Law, 435. The term is 
 also sometimes applied to the practice of 
 sending the jury, in the custody of an offi- 
 cer, to the scene of the transaction involved 
 in the action, that they may be the better 
 able to understand the evidence. It may 
 also be ordered in a criminal trial to in- 
 struct the jury 1-n respect to the place. 
 
 VIEW AND DELIVERY. When a right of 
 common is exercisable not over the whole 
 waste, but only in convenient places indi- 
 cated from time to time by the lord of the 
 manor or his bailiff, it is said to be exer- 
 cisable after "view and delivery." Elton, 
 Commons, 233. 
 
 VIEW, DEMAND OF. In real actions, the 
 defendant was entitled to demand a view, 
 that is, a sight of the thing, in order to as- 
 certain its identity and other circumstances; 
 as, if a real action were brought against a 
 tenant, and such tenant did not exactly know 
 what land it was that the demandant asked, 
 then he might pray the view, which was 
 that he might see the land which the de- 
 mandant claimed. Brown. 
 
 VIEW OF AN INQUEST. A view or in- 
 spection taken by a jury, summoned upon 
 an inquisition or inquest, of the place or 
 property to which the inquisition or inquiry 
 refers. Brown. 
 
 VIEW OF FRANK PLEDGE. In English 
 law. An examination to see if every free- 
 man within the district had taken the oath 
 of allegiance, and found nine freemen pledg- 
 es for his peaceable demeanor. 1 Reeve, 
 Hist. Eng. Law, 7. It took place, originally, 
 once in each year, after Michaelmas, and 
 subsequently twice, after Easter and Mi- 
 chaelmas, at the sheriff's tourn or court leet 
 at that season held. See "Court Leet;" 
 "Sheriff's Tourn." 
 
 VIEWERS. Persons appointed by the 
 courts to see and examine certain matters, 
 
 and make a report of the facts, together with 
 their opinion, to the court. In practice, they 
 are usually appointed to lay out roads, and 
 the like. 
 
 VIGILANTIBUS ET NON DORMIENTI- 
 
 bus jura subserviunt. The laws serve the 
 vigilant, not those who sleep. 2 Bouv. Inst, 
 note 2327. See "Laches;" Broom, Leg. Max. 
 (3d London Bd.) 799. 
 
 VIGORE CUJUS (Law La;t.) By force 
 whereof. 1 Ld. Raym. 412. 
 
 VMS ET MODIS (Lat.) In the ecclesi- 
 astical courts, service of a decree or citation 
 viis et modis, i. e., by all "ways and means" 
 likely to affect the party with knowledge of 
 its contents, is equivalent to substituted 
 service in the temporal courts, and is op- 
 posed to personal service. Phillim. Ecc. Law, 
 1258, 1283. 
 
 VI LL. In England, this word was used to 
 signify the parts into which a hundred or 
 wapentake was divided. Fortesc. c. 24. See 
 Co. Litt. 115b. It also signifies a town or 
 city. Barr. Obs. St. 133. 
 
 VILLA EST EX PLURIBUS MANSIONI- 
 bus vicinata, et collata ex plurlbus vicinis, 
 et sub appellatione villarum continentur 
 burgi et civitates. Vill is a neighborhood of 
 many mansions, a collection of many neigh- 
 bors, and under the term of "vills," bor- 
 oughs and cities are contained. Co. Litt. 
 115. 
 
 VILLAIN. An epithet used to cast con- 
 tempt and contumely on the person to whom 
 it is applied. 
 
 To call a man a villain in a letter written 
 to a third person will entitle him to an ac- 
 tion without proof of special damages. 1 
 Bos. & P. 331. 
 
 VILLANIS REGIS SUBTRACTIS REDU- 
 cendls. A writ that lay for the bringing 
 back of the king's bondmen that had been 
 carried away by others out of his manors 
 whereto they belonged. Reg. Orig. 87. 
 
 VILLANUM SERVITIUM (Law Lat.) In 
 old English law. Villein service. Fleta, lib. 
 3, c. 13, § 1. 
 
 VILLEIN (vilis, base, or villa, estate). A 
 person attached to a manor, who was sub- 
 stantially in the condition of a slave, who 
 performed the base and menial work upon 
 the, manor for the lord, and was generally a 
 subject of property, and belonging to him. 
 1 Washb. Real Prop. 26. 
 
 The feudal villein of the lowest order, un- 
 protected as to property, and subject to the 
 most ignoble services. But, his circumstan- 
 ces were very different from the slave of the 
 Southern states, for no person was, in the 
 eye of the law, a villein, except as to his 
 master; in relation to all other persons he 
 was a freeman. Litt. Ten. §§ 189, 190; Hal- 
 lam, View Mid. Ages, vol. 1, 122, 124; Id. 
 vol. 2, 199. 
 
 VILLEIN IN GROSS. A villein annexed 
 to the person of the lord, and transferable 
 
VILLEIN REGARDANT 
 
 (9SS) 
 
 VIRES ACQJIRIT EUNDO 
 
 by deed from one person to another. Lltt. 
 § 181. 
 
 VILLEIN REGARDANT. A villein an- 
 nexed to the manor or land; a serf. 
 
 VILLEIN SERVICES. Base, but certain 
 and determined, services. 1 Steph. Oomm. 
 (7th Ed.) 187. 
 
 VILLEIN SOCAGE (Saxon, soc, free, or 
 Lat. soca, a plough). The villeins, from liv- 
 ing on one piece of land, came at last to be 
 allowed to hold it by tenure of villeinage, 
 e. g., uncertain menial services. These serv- 
 ices at last became fixed; the tenure was 
 then called "villein socage." 1 Washb. Real 
 Prop. 26. 
 
 VILLENAGIUM (Law Lat.) In old Eng- 
 lish law. Villenage; the condition or tenure 
 of a villein; bondage. Glanv. lib. 5, c. 1. 
 
 VILLENOUS JUDGMENT. In old English 
 law. A judgment given by the common law 
 in attaint, or in cases of conspiracy. 
 
 Its effects were to make the object of it 
 lose his Uberam legem, and become infa- 
 mous. He forfeited his goods and chattels, 
 and his lands during life; and this bar- 
 barous judgment further required that his 
 lands should be wasted, his houses razed, 
 his trees rooted up, and that his body should 
 be cast into prison. He could not be a juror 
 or witness. Burrows, 996, 1027; 4 Bl. Comm. 
 136. 
 
 VIM VI REPELLERE LICET, MODO FIAT 
 moderamine inculpatae tutelae, non ad su- 
 mendam vindictam, sed ad populsandam In- 
 juriam. It is lawful to repel force by force; 
 but let it be done with the self-control of 
 blameless defense, — not to take revenge, but 
 to repel injury. Co. Lift. 162. 
 
 VINCULACION. In Spanish law. An en- 
 tail. Schmidt, Civ. Law, 308. 
 
 VINCULO. In Spanish law. The bond, 
 chain, or tie of marriage. White, New Re- 
 cop, bk. 1, tit. 6, c. 1, § 2. 
 
 VINCULO MATRIMONII. See "Divorce." 
 
 VINCULUM (Lat.) A chain; a connected 
 series; a connection or relation. See "Con- 
 sanguinity." 
 
 A bond; a band; a tie. Vinculum matri- 
 monii, the bond or tie of marriage;' the matri- 
 monial obligation. 
 
 The binding force of law. OUigatio est 
 juris vinculum, obligation is a bond of law, 
 or legal tie. Bracton, fol. 99. 
 
 VINDEX. In the civil law, a defender. 
 
 VINDICARE (Lat.) In the civil law. To 
 claim, or challenge; to demand one's own; 
 to assert a right in or to a thing; to assert 
 or claim a property in a thing; to claim a 
 thing as one's own. Calv. Lex. To avenge; 
 to punish. 
 
 VINDICATIO (Lat.) In the civil law. The 
 claiming a thing as one's own; the assert- 
 ing of a right or title in or to a thing. 
 
 The name of an action in rem,, by which 
 a right or thing was claimed. Inst. 4. 6. 15. 
 
 VINDICATION. In civil law. The claim 
 made to property by the owner of it. 1 
 Bell, Comm. (5th Ed.) 281. See "Revendi- 
 cation." 
 
 VINDICATORY PARTS OF LAWS. The 
 
 sanction of the laws, whereby it is signified 
 what evil or penalty shall be incurred by 
 such as commit any public wrongs, and 
 transgress or neglect their duty. 1 Steph. 
 Comm. 37; 1 Brown & H. Comm. 50-1. 
 
 VINDICTA. In Roman law. A rod or 
 wand, and, from the use of that instrument 
 In their course, various legal acts came to 
 be distinguished by the term; e. g., one of 
 the three ancient modes of manumission was 
 by the vindicta; also the rod or wand inter- 
 vened in the progress of the old action of 
 vindicaiio, whence the name of that action. 
 Brown. 
 
 VINDICTIVE DAMAGES. Exemplary or 
 punitive damages. 
 
 VIOL (Fr.) In French law. Rape. Barr. 
 Obs. St. 139. 
 
 VIOLENCE. The abuse of force. Theorie 
 des Lois Criminelles, 32. That force which 
 is employed against common right, against 
 the laws, and against public liberty. Merlin, 
 Repert. The term is synonymous with 
 "physical force." 31 Conn. 212. See "Force." 
 
 VIOLENT PRESUMPTION. A stroag or 
 necessary presumption. 3 Bl. Comm. 371; 
 Burr. Circ. Ev. 60. 
 
 VIOLENT PROFITS. In Scotch law. The 
 gains made by a tenant holding over are so 
 called. Ersk. Inst. 2. 6. 54. 
 
 VIOLENTA PRAESUMPTIO ALIQUAN- 
 do est plena probatlo. Violent presumption 
 is sometimes full proof. Co. Litt. 6b. 
 
 VIPERINA EST EXPOSITIO QUAE COR- 
 rodit viscera textus. That is a viperous ex- 
 position which gnaws or eats out the bowels 
 of the text. 11 Coke, 34. 
 
 VIR ET UXOR CONSENTUR IN LEGE 
 una persona. Husband and wife are consid- 
 ered one person in law. Co. Litt. 112 ; Jenk. 
 Cent. Cas. 27. 
 
 VIR ET UXOR SUNT QUASI UNICA PER- 
 sona, quia caro et sanguis unus; res licet sit 
 propria uxoris, vir tamen ejus custos, cum 
 sit caput mulieris. Man and wife are, as it 
 were, one person, because only one flesh and 
 blood; although the property may be the 
 wife's, the husband is keeper of it, since he 
 is the head of the wife. Co. Litt. 112. 
 
 VIR MILITANS DEO NON IMPLICETUR 
 secularibus negotiis. A man fighting for God 
 must not be involved in secular business. 
 Co. Litt. 70. 
 
 VIRES ACQUJRIT EUNDO. It gains 
 strength by continuance. 1 Johns. Ch. (N. 
 Y.) 231, 237. 
 
VIRGA 
 
 (9S6) 
 
 VIS SIMPLEX 
 
 VIRGA. An obsolete word, which signifies 
 a rod or staff, such as sheriffs, bailiffs, and 
 constables carry as a badge or ensign of 
 their office. 
 
 VIRGATA REGIA (Law Lat.) In old Eng- 
 lish law. The royal verge; the verge; the 
 bounds of the king's household, within which 
 the court of the steward had jurisdiction. 
 Crabb, Hist. Eng. Law, 185. A space of 
 twelve leagues in circuit around the king's 
 palace or residence. Fleta, lib. 2, c. 2, § 2; 
 Id. c. 4, § 2. 
 
 VIRGE, TENANT BY. A species of copy- 
 holder, who holds by the virge or rod. 
 
 VIRGO INTACTA. A pure virgin. 
 
 VIRIDARIO ELIGENDO. A writ for choice 
 of a verderer in the forest. Reg. Orig. 177. 
 
 VI R I LI A (Lat.) The privy members of a 
 man. Bracton, lib. 3, p. 144. 
 
 VIRTUTE CUJUS, By virtue whereof. 
 This was the clause in a pleading justifying 
 an entry upon land, by which the party al- 
 leged that it was in virtue of an order from 
 one entitled that he entered. 
 
 VIRTUTE OFFICII (Lat.) By virtue of his 
 office. A sheriff, a constable, and some oth- 
 er officers may virtute officii apprehend a 
 man who has been guilty of a crime in their 
 presence. 
 
 VIS (Lat. force). Any kind of force, vio- 
 lence, or disturbance relating to a man's per- 
 son or his property. 
 
 VIS ABLATIVA (Lat.) In the civil law. 
 Ablative force; force which is exerted in 
 taking away (auprendo) a thing from an- 
 other. Calv. Lex. 
 
 VIS ARM ATA. In the civil and old Eng- 
 lish law. Armed force; force exerted by 
 means of arms, weapons, or anything that 
 can hurt or injure. 
 
 VIS CLANDESTINA (Lat.) In old Eng- 
 lish law. Clandestine force; such as is used 
 by night. Bracton, fol. 162. 
 
 VIS COMPULSIVA. In civil and old Eng- 
 lish law. Compulsive force; that which is 
 exerted to compel another to do an act 
 against his will; force exerted by menaces 
 or terror. Bracton, fol. 162. 
 
 VIS DIVINA (Lat.) In the civil law. Di- 
 vine or superhuman force; the act of God. 
 Dig. 19. 2. 25. 6. 
 
 VIS EXPULSIVA (Lat.) In old English 
 law. Expulsive force; force used to expel 
 another, or put him out of his possession. 
 Bracton contrasts it with vis simplex, and 
 divides it into expulsive force with arms, 
 and expulsive force without arms. Bracton, 
 fol. 162. 
 
 VIS EXTURBATIVA (Lat.) In the civil 
 law. Exturbative force; force used to thrust 
 out (exturliare) another. Force used be- 
 
 tween two contending claimants of posses- 
 sion, the one endeavoring to thrust out the 
 other. Calv. Lex. 
 
 VIS FLUMINIS (Lat.) In the civil law. 
 The force of a river or stream; the force 
 exerted by the rapidity or magnitude of a 
 current of water. 
 
 VIS IMPRESSA (Lat.) Immediate force; 
 original force. This phrase is aj/plied to 
 cases of trespass when a question arises 
 whether an injury has been caused by a di- 
 rect force, or one which is indirect. When 
 the original force, or vis impressa, had ceas- 
 ed to act before the injury commenced, then 
 there is no force, the effect is mediate, and 
 the" proper remedy is trespass on the case. 
 
 When the injury is the immediate conse- 
 quence of the force, or vis proximo, tres- 
 pass vi et armis lies. 3 Bouv. Inst, note 
 3483; 4 Bouv. Inst, note 3583. 
 
 VIS INERMIS. In old English law. Un- 
 armed force; the opposite of "vis armata." 
 Bracton, fol. 162. 
 
 VIS INJURIOSA. In old English law. 
 Wrongful force; otherwise called "illicita" 
 (unlawful). Bracton, foL 162. 
 
 VIS INQUIETATIVA. In the civil law. 
 Disquieting force. Calv. Lex. Bracton de- 
 fines it to be where one does not permit an- 
 other to use his possession quietly and in 
 peace. Bracton, fol. 162. 
 
 VIS LAIC A. In old English law. Lay 
 force; an armed force used to hold posses- 
 sion of a church. Reg. Orig. 59, 60. 
 
 VIS LEGIBUS EST INIMICA. Force is in- 
 imical to the laws. 3 Inst. 176. 
 
 VIS LICITA. In old English law. Lawful 
 force. Bracton, fol. 162. 
 
 VIS MAJOR (Lat.) A superior force. In 
 law it signifies inevitable accident. 
 
 This term is used in the civil law in nearly 
 the same way that the words "act of God" 
 (q. V.) are used in the common law. Gen- 
 erally, no one is responsible for an accident 
 which arises from the vis major; but a man 
 may be so where he has stipulated that he 
 would, and when he has been guilty of a 
 fraud or deceit. 2 Kent, Comm. 448; Both. 
 Pret a Usage, notes 48, 60; Story, Bailm. 
 § 25. 
 
 VIS PERTURBATIVA (Lat.) In old 
 English law. Perturbative force. Force 
 used between parties contending for a pos- . 
 session; or, as Bracton explains it, where 
 one contends that he possesses the thing, 
 though he has not the right, and the other 
 asserts that he is in possession, since he has 
 the right (w&i quis oontendit se possidere 
 cum jus noil liabeat, et alius cHcat se esse 
 in possessione, cum jus habeat). Bracton, 
 fol. 162. / 
 
 V VIS PROXIMA (Lat.) Immediate forc6. 
 See "Vis Impressa." 
 
 VIS SIMPLEX. In old English law. Simple 
 
VISA 
 
 (957) 
 
 VOCABULA, ETC. 
 
 or mere force. Distinguished by Bracton 
 from "vis armata," and also from "vis expul- 
 siva." Bracton, fol. 162. 
 
 VISA. In civil law. The formula put 
 upon an act; a register; a commercial book, 
 in order to approve of it and authenticate 
 it. 
 
 VISCOUNT, (Lat. vice comes). This name 
 was made use of as an arbitrary title of 
 honor, without any oflSce pertaining to it, by 
 Henry VI. for the first time. The sheriff or 
 earl's deputy holds the office of vice comes, 
 of which viscount is a translation, but used, 
 as we have just seen, in a different sense. 
 The dignity of a viscount is next to an earl. 
 1 Bl. Comm. 397. 
 
 VISE. An Indorsement on a passport by 
 the authorities, denoting that it has been 
 examined, and that the person who bears 
 it is permitted to proceed on his journey. 
 Webster. 
 
 VISITATION. The act of examining into 
 the affairs of a corporation. 
 
 The power of visitation is applicable only 
 to ecclesiastical and eleemosynary corpora- 
 tions. 1 Bl. Comm. 480; 2 Kyd, Corp. 174. 
 The visitation of civil corporations is by the 
 government itself, through the medium of 
 the courts of justice. See 2 Kent, Comm. 
 240. 
 
 VISITATION AND SEARCH. In interna- 
 tional law. The right of a belligerent to 
 board neutral private vessels on the high 
 seas, or in the waters of either belligerent, 
 and examine their papers and cargo. See 
 Wheaton, Int. Law, § 525; Hall, Int. Law, p. 
 724. 
 
 VISITATION BOOKS. Compilations made 
 out or collected by the heralds in the circuits 
 which their commissions authorized them to 
 make, for the purpose of inquiring into the 
 state of families and registering marriages 
 and descents which were verified to them by 
 oath. They are good evidence of pedigree. 
 3 Bl. Comm. 105. 
 
 VISITER. An inspector of the govern- 
 ment, of corporations, or bodies politic. 1 
 Bl. Comm. 482. See Dane, Abr. Index; 7 
 Pick. (Mass.) 303; 12 Pick. (Mass.) 244. 
 
 VISNE. The neighborhood; a neighbor- 
 ing place; a place near at hand; the venue. 
 
 Formerly the visne was confined to the 
 immediate neighborhood where the cause of 
 action arose, and many verdicts were dis- 
 turbed because the visne was too large, 
 which becoming a great grievance, several 
 statutes were passed to remedy the evil. 21 
 Jac. I. c. 13, gives aid after verdict, where 
 the visne is partly wrong,— that is, where it 
 is warded out of too many or too few places 
 in the county named. 16 & 17 Car. II. c. 8, 
 goes further, and cures defects of the visne 
 wholly, so that the cause is tried by a jury 
 of the proper county. See "Venue." 
 
 VITILITIGATION. Cavilous litigation. Ob- 
 solete. Webster. 
 
 VITIOUS INTROMISSION. See "Vicious 
 Intromission." 
 
 VITIUM CLERICI NOCERE NON DEBET. 
 
 Clerical errors ought not to prejudice. Jenk. 
 Cent. Cas. 23; Dig. 34. 5. 3. 
 
 VITIUM EST QUOD FUGI DEBET, NE, 
 si rationem non invenias, mox legem sine 
 ratlone esse dames. It is a fault which 
 ought to be avoided, that if you cannot dis- 
 cover the reason, you should presently ex- 
 claim that the law is without reason. Elles- 
 mere, Postn. 86. 
 
 VITIUM SCRIPTORIS. In old English 
 law. The fault or mistake of a writer or 
 copyist; a clerical error. Glib. For. Rom. 
 
 185. 
 
 VIVA AQUA. In the civil law. Living 
 water; running water; that which issues 
 from a spring or fountain (quae fonte exit). 
 Calv. Lex. 
 
 VIVA PECUNIA (Law Lat.) In old Eng- 
 lish law. Live cattle. See "Pecunia." 
 
 VIVA VOCE (Lat. with living voice): Ver- 
 bally. It is said a witness delivers his evi- 
 dence viva voce when he does so in open 
 court. The term is opposed to "deposition." 
 It is sometimes opposed to "ballot;" as, the 
 people vote by ballot, but their representa- 
 tives in the legislature vote viva voce. 
 
 VIVA VOX (Lat.) The living voice; oral 
 utterance, as distinguished from written 
 words. Hence the common phrase, liia 
 voce, by word of mouth. 
 
 VIVARIUM, or VIVARY (Lat. from vivus, 
 alive). 
 
 In the Civil Law. An inclosed place, 
 
 where live wild animals are kept. Calv. 
 Lex.; Spelman; A. Gell. Noct. Att. 11. 20. 
 
 In Old English Law. A place in land 
 
 or water where living things are kept; a 
 vivary. Most commonly in law it signifies 
 a park, warren, or fishery. In the statute 
 of Merton (c. 11) it is taken for a warren 
 and fishery. 2 Inst. 100; Fleta, lib. 2, c. 
 41, § 2. 
 
 V I VUM VADIUM. See "Vadium Vivum." 
 
 VIX (Lat.) Scarcely; hardly; rarely. 
 
 VIX ULLA LEX FIERI POTEST QUAE 
 omnibus commoda sit, sed si majori parti 
 prospiciat, utilis est. Scarcely any law can 
 be made which is beneficial to all; but if it 
 benefit the majority, it is useful. Plowd. 
 369. 
 
 VOCABULA ARTIS (Lat.) Words of art; 
 "vocables" of art; technical terms. Co. Litt. 
 pref.; 5 Coke, 121b. 
 
 VOCABULA ARTIUM EXPLICANDA 
 sunt secundum definitiones prudentium. 
 Terms of art should be explained according 
 to the definitions of those who are most ex- 
 
VOCARE AD CURIAM 
 
 (958) 
 
 VOLUNTAS, ETC. 
 
 perienced in that art. PufEendorff, de Off. 
 Horn. lib. 1, c. 17, § 3 ; Grotius de Jure Belli, 
 lib. 2, c. 16, § 3. 
 
 VOCARE AD CURIAM. In feudal law. To 
 summon to court. Feud. lib. 2, tit. 22. 
 
 VOCATIO IN JUS (Lat.) In Roman law. 
 According to the practice in the legis ac- 
 tiones of the Roman law, a person having a 
 demand against another verbally cited him 
 to go with him to tbe praetor; in jus eamus; 
 in jus te voco. This was denominated vo- 
 catio in jus. If a person tlius summoned 
 refused to go, he could be compelled by force 
 to do so, unless he found a vindex, — that is, 
 a procurator, or a person to undertake his 
 cause. When the parties appeared before 
 the praetor, they went through the particu- 
 lar formalities required by the action ap- 
 plicable to the cause. If the cause was not 
 ended the same day, the parties promised to 
 appear again at another day, which was 
 called vadimonium. See Matt. v. 25. 
 
 VOCIFE RATIO (Lat.) In old English law. 
 Outcry; hue and cry. Co well. 
 
 VOCO (Lat.) In civil and old English law. 
 I call; I summon; I vouch. In jus voco te, 
 I summon you to court; I summon you be- 
 fore the praetor. The formula by which a 
 Roman action was anciently commenced. 
 Adams, Rom. Ant. 242. Toco talem, I call or 
 vouch such a one. The old formula of vouch- 
 ing to warranty. Bracton, fol. 382b. 
 
 VOID. That which has no force or effect. 
 "Void" is often loosely used in the sense of 
 "voidable" (q.v.) See 44 Pa. St. 15. 
 
 VOIDABLE. That which has some force 
 or effect, but which, in consequence of some 
 inherent quality, may be legally annulled or 
 avoided. 
 
 VOIR DIRE. A preliminary examination 
 of a witness or venireman to ascertain 
 whether he is competent. 
 
 VOLENTI NON FIT INJURIA. He who 
 
 consents cannot receive an injury. 2 Bouv. 
 Inst, notes 2279, 2327; Broom, Leg. Max. (3d 
 London Ed.) 245; Shelf. Mar. & Div. 449; 
 Wingate, Max. 482; 4 Term R. 657; Plowd. 
 501. 
 
 VOLUIT SED NON DIXIT. He willed, but 
 did not say. 4 Kent, Conim. 538. 
 
 VOLUMEN (Lat. from cohere, to roll). In 
 the civil law. A volume; so called from its 
 form, being rolled up. 
 
 VOLUMUS. We will. The first word of a 
 clause in the royal writs of protection and 
 letters patent. 
 
 VOLUNTARIUS DAEMON. 
 
 Co. Litt. 247a. 
 
 A drunkard. 
 
 VOLUNTARY. Willingly; ^one with one's 
 consent; negligently. Wolff. § 5. 
 
 VOLUNTARY ANSWER. In chancery 
 practice. An answer put in by a defendant, 
 
 when the plaintiff had filed no interrogato- 
 ries which required an answer. 
 
 VOLUNTARY ASSIGNMENT. An assign- 
 ment made by a debtor in trust for the ben- 
 efit of his creditors. So called in contradis- 
 tinction from "compulsory assignments," or 
 such as are made under statutes of bank- 
 ruptcy and insolvency, or by order of some 
 competent, court. Burrill, Assignm. p. 4; 10 
 Paige (N. Y.) 445; 1 Comst. (N. Y.) 20L . 
 
 VOLUNTARY CONVEYANCE. The trans- 
 fer of an estate made without any adequate 
 consideration of value. 
 
 VOLUNTARY DEPOSIT. In Civil law. A 
 deposit which is made by the mere consent 
 or agreement of the parties. 1 Bouv. Inst, 
 note 1054. See "Deposit." 
 
 VOLUNTARY ESCAPE. The giving to a 
 prisoner voluntarily any liberty not author- 
 ized by law. 5 Mass. 310; 2 Chipm. (Vt.) 
 11; 3 Har. & J. (Md.) 559; 2 Har. & G. (Md.) 
 106; 2 Bouv. Inst, note 2332. See "Escape." 
 
 VOLUNTARY IGNORANCE. A willing 
 omission to learn or know. 
 
 VOLUNTARY JURISDICTION. In eccle- 
 siastical law. That kind of jurisdiction 
 which requires no judicial proceedings; as, 
 the granting letters of administration and 
 receiving the probate of wills. 
 
 VOLUNTARY MANSLAUGHTER. 
 
 "Manslaughter." 
 
 See 
 
 VOLUNTARY NONSUIT. Inpractice. The 
 abandonment of his cause by a plaintiff, and 
 an agreement that a judgment for costs be 
 entered against him. 3 Bouv. Inst, note 
 3306. 
 
 VOLUNTARY OATH. An oath taken in 
 some extrajudicial matter, or before some 
 magistrate or officer who cannot compel it to 
 be taken. 
 
 VOLUNTARY PAYMENT. That made by 
 fre.e will and choice. Not compelled by 
 process or force. 
 
 VOLUNTARY REDEMPTION. In Scotch 
 law. Where a mortgagee receives the sum 
 due into his own hands, and discharges the 
 mortgage, without any consignation. Bell, 
 Diet. 
 
 VOLUNTARY SALE. One made freely, 
 without constraint, by the owner of the 
 thing sold. 1 Bouv. Inst, note 974. 
 
 VOLUNTARY WASTE. That which is 
 either active or willful, in contradistinction 
 to that which arises from mere negligence, 
 which is called "permissive" waste. 2 Bouv. 
 Inst. 2394 et seq. See "Waste." 
 
 VOLUNTAS DONATORIS, IN CHARTA 
 doni sul manifeste expressa observetur. The 
 will of the donor, clearly expressed In the 
 deed', should be observed. Co. Litt. 21a. 
 
VOLUNTAS EST, ETC. 
 
 (959) 
 
 VYCINE 
 
 VOLUNTAS EST JUSTA SENTENTIA 
 de eo quod quis post mortem suam fieri, velit. 
 A will is an exact opinion or determination 
 concerning that which each one wishes to be 
 done after his death. 
 
 VOLUNTAS ET PROPOSITUIVI DISTIN- 
 guunt maleficia. The will and the proposed 
 end distinguish crimes. Bracton, 2b, 136b. 
 
 VOLUNTAS FACIT QUOD IN TESTA- 
 mento scriptum valeat. The will of the tes- 
 tator gives validity to what is written in 
 the will. Dig. 30. 1. 12. 3. 
 
 VOLUNTAS IN DELICTIS NON EXITUS 
 spectatur. In offenses, the will, and not the 
 consequences, are to be looked to. 2 Inst. 57. 
 
 VOLUNTAS REPUTABATUR PRO FAC- 
 
 to. The win is to be taken for the deed. 
 3 Inst. 69. 
 
 VOLUNTAS TESTATORIS AMBULATO- 
 ria est usque ad mortem. The will of a tes- 
 tator is ambulatory until his death; that is, 
 he may change it at any time. See 1 Bouv. 
 Inst, note 83; 4 Coke, 61. 
 
 VOLUNTAS TESTATORIS HABET IN- 
 terpretationem latam et benignam. The will 
 of a testator has a broad and liberal inter- 
 pretation. Jenk. Cent. Cas. 260; Dig. 50. 17. 
 12. 
 
 VOLUNTAS ULTIMA TESTATORIS EST 
 perimplenda secundum veram intentionem 
 suam. The last will of a testator is to be 
 fulfilled according to his true intention. Co. 
 Litt. 322. 
 
 VOLUNTEERS. Persons who receive a 
 voluntary conveyance. 
 
 It is a general rule of the courts of equity, 
 that they will not assist a mere volunteer 
 who has a defective conveyance. Ponbl. Bq. 
 bk. 1, c. 5, § 2. And see the note there for 
 some exceptions to this rule. See, generally, 
 1 Madd. 271; 1 Supp. Ves. Jr. 320; 2 Supp. 
 Ves. Jr. 321; Powell, Mortg. Index; 4 Bouv. 
 Inst, notes 3968-3973. 
 
 In Military Law. Persons who, in 
 
 time of war, voluntarily enlist in the mili- 
 tary service. 
 
 Their rights and duties are prescribed by 
 the municipal laws of the different states, 
 hut when in actual service, they are sub- 
 ject to the laws of the United States and 
 the articles of war. 
 
 VOTE. Suffrage; the voice of an individ- 
 ual in making a choice by many. The total 
 number of voices given at an election; as, 
 the presidential vote. 
 
 VOTUM. A vow or promise. Dies voto- 
 rum, the wedding day. Fleta, 1, 4. 
 
 VOUCHEE. In common recoveries, the 
 person who is' called to warrant or defend 
 the title is called the "vouchee." 2 Bouv. 
 Inst, note 2093. 
 
 VOUCHER. 
 
 — I — In Accounts. An account book in 
 which are entered the acquittances or war- , 
 rants for the accountant's discharge. Any 
 acquittance or receipt which is evidence of 
 payment, or of the debtor's being discharged. 
 See 3 Halst. (N. J.) 299; 1 Mete. (Mass.) 
 218. 
 
 In Old Conveyancing. The person on 
 
 whom the tenant to the praecipe calls to de- 
 fend the title to the land, because he is sup- 
 posed to have warranted the title to him at 
 the time of the original purchase. 
 
 The person usually employed for this pur- 
 pose is the crier of the court, who Is there- 
 fore called the "common voucher." Cruise, 
 Dig. tit. 36, c.»3, § 1; 22 Viner, Abr. 26; 
 Dane, Index. See "Recovery." 
 
 VOUCHER TO WARRANTY. The calling 
 one who has warranted lands, by the party 
 warranted, to come and defend the suit for 
 him. Co. Litt. 101b. 
 
 VOUS VEIES (VOIES, or VEITZ) BIEN 
 
 cement (Law Fr. you see well how). For- 
 mal words anciently used by counsel In ad- 
 dressing the court. Y. B. T. 1 Edw. III. 9; 
 Y. B. H. 2 Edw. III. 9; Y. B. P. 8 Edw. III. 
 23; Y. B. M. 4 Hen. VL ]. 
 
 VOX EMISSA VOLAT; LITERA SCRIP- 
 ta manet. Words spoken vanish; words 
 written remain. A written contract cannot 
 be varied by parol proof. Broom, Leg. Max. 
 (3d London Ed.) 594; 1 Johns. (N. Y.) 571, 
 572. 
 
 VULGARIS OPINIO EST DUPLEX, VIZ., 
 orta inter graves et discretes, quae multum 
 veritatis habet, et opinio orta inter leves et 
 vulgares homines absque specie veritatis. 
 
 Common opinion is of two kinds, viz., that 
 which arises among grave and discreet men, 
 which has much truth in it, and that which 
 arises among light and common men, with- 
 out any appearance of truth. 4 Coke, 107. 
 
 VULGARIS PURGATIO (Law Lat.) In old 
 English law. Common purgation; a name 
 given to the trial by ordeal, to distinguish it 
 from the canonical purgation, which was by 
 the oath of the party. 4 Bl. Comm. 342. 
 
 VULGO CONCEPTI (Lat.) In the civil 
 law. Spurious children; bastards; those 
 who cannot point out their father, or, if 
 they can, have him for a father whom it is 
 not lawful to have (.gui patrem demonstrare 
 non possunt, vel qui possunt quidem, sed 
 eum habent quem habere non licet). Dig. 
 1. 5. 23. 
 
 VULGO QUAESITI (Lat.) In the civil law. 
 Spurious children ; literally, gotten from the 
 people; the offspring of promiscuous cohab- 
 itation, who are considered as having no 
 father. Inst. 3. 4. 3; Id. 3. 5. 4. 
 
 VYCINE (LawFr.; Lat. i-iciinis). A neigh- 
 bor. Dyer, 36b (Fr. Ed.) 
 
WACREOUR 
 
 (960) 
 
 WAGES 
 
 W^ 
 
 WACREOUR (Law Pr.) In old English 
 law. A vagabond or vagrant. De waereours 
 per pays. Britt. c. 29. 
 
 WADSET. In Scotcli law. A right by 
 which lands or other heritable subjects are 
 impignorated by the proprietor to , his cred- 
 itor in security of his debt. Like other her- 
 itable rights, it is protected by seisin. 
 
 Wadsets, by the present practice, are com- 
 monly made out in the form of mutual con- 
 j tracts, in which one party sells the land, 
 and the other grants the right of reversion. 
 Brsk. Inst. 2. 8. 1. 2. 
 
 Wadsets are proper, where the use of the 
 (land shall go for the use of the money; im- 
 proper, where the reverser agrees to make 
 up the deficiency; and where it amounts to 
 more, the surplus profit of the land is ap- 
 plied to the extinction of the principal. 
 Ersk. Inst. 2. 8. 12. 13. 
 
 WADSETTER. In Scotch law. A creditor 
 to whom a wadset is made. 
 
 WAFTORS. 
 
 Cowell. 
 
 Conductors of vessels at sea. 
 
 WAGE. To give a pledge or security for 
 the performance of anything; as, to wage or 
 gage deliverance, to wage law, etc. Co. Litt. 
 294. This word is but little used. 
 
 WAGER. A bet (q. r.) 
 
 WAGER OF BATTEL. A superstitious 
 mode of trial which till lately disgraced the 
 English law. 
 
 The last case of this kind was commenced 
 in the year 1817, but not proceeded in to 
 judgment; and at the next session of the 
 British parliament an act was passed to 
 abolish appeals of murder, treason, felony, 
 or other offenses, and wager of battel, or 
 joining issue or trial by battel, in writs of 
 right. 59, Geo. III. c. 46. For the history 
 of this species of trial, see 3 Bl. Comm. 337; 
 4 BlJ Comm. 347; Enc. "Gage de Bataille;" 
 Steph. PI. 122, and Append, note 35. 
 
 WAGER OF LAW. In old practice. An 
 oath taken by a defendant in an action of 
 debt that he does not owe the claim, sup- 
 ported by the oaths of eleven neighbors. 
 
 When an action of debt is brought against 
 a man upon a simple contract, and the de- 
 fendant pleads nil debit, and concludes his 
 plea with this pfea, with this formula, "And 
 this he is ready to defend against him the 
 said A. B. and his suit, as the court of 
 our lord the king here shall consider," etc., 
 he is then put in sureties (vadios) to wage 
 his law on a day appointed by the judge. 
 The wager of law consists in an oath taken 
 by the defendant on the appointed day, and 
 confirmed by the oaths of eleven neighbors 
 or compurgators. This oath had the effect 
 of a verdict in favor of the defendant, and 
 
 was only allowed in the actions of debt 
 on simple contract and detinue; nor was it 
 allowed to any one not 6f good character. 
 In consequence of this privilege of the de- 
 fendant, assumpsit displaces debt as a form 
 of action on simple contracts, and, instead 
 of detinue, trover was used. But in Eng- 
 land, wager of law was abolished by 3 & 4 
 Wm. IV. c. 42, § 13. And even before its 
 abolition it had fallen into disuse. It was 
 last used as a method of defense in 2 Barn. 
 & C. 538, where the defendant offered to 
 wage his law, but the plaintiff abandoned 
 the case. This was in 1824. If it ever had 
 any existence in the United States, it is now 
 completely abolished. 8 Wheat (U. S.),642. 
 The name (in law Latin, vadiatio legis) 
 comes from the defendant's being put in 
 pledges (vadios) to make his oath on the 
 appointed day. There was a similar oath in 
 the Roman law, and in the laws of most 
 of the nations that conquered Rome. It was 
 very early in use in England, as Glanville 
 distinctly describes it. Glanv. lib. 1, c. 9, 
 12. See Steph. PI. 124, 250, and note xxxix.; 
 2 InsL 119; Mod. Entr. 179; Lilly, Entr. 
 467; 3 Chit. PI. 497; 13 Viner,- Abr. 58; Bac. 
 Abr. ; Dane, Abr. Index. For the origin of 
 this form of trial, see Steph. PI. note xxxix.; 
 Co. Litt. 394, 395; 3 Bl. Comm. 341. 
 
 WAGER POLICY. In insurance law. A 
 policy without any real interest to support 
 it; a policy in which the insured has no 
 interest, being in fact nothing more than a 
 wager or bet between the parties, whether 
 such a voyage would be performed, or such 
 a ship arrive safe. 3 Kent, Comm. 277, 278. 
 A mere hope or expectation, without some 
 interest in the subject matter, is a wager 
 policy. Id. 275. Mr. Arnould defines a 
 wager policy to be "one in which the par- 
 ties, by express terms, disclaim, on the face 
 of it, the intention of making a contract of 
 indemnity." 1 Arnould, Ins. 276 (281, Per- 
 kins Ed.) Policies of this kind are now 
 generally held to be illegal. Id. 285 (289); 
 1 Duer, Ins. 93-95, 154, 155. 
 
 WAGERING CONTRACTS. See "Gam- 
 bling Contract." 
 
 WAGES. A compensation given to a hired 
 person for manual or other inferior serv- 
 ices. 
 
 The term "wages" does not include "sal- 
 ary," and the term "wages earned" is an 
 apt expression in regard to laborers who 
 are only entitled to pay for services actual- 
 ly rendered, but is entirely inappropriate 
 when used concerning public officers or 
 clerks who receive annual salaries, which 
 are not due until the end of the year, and 
 who are entitled to be paid so long as they 
 hold their offices, without regard to the 
 services rendered. 25 Abb. N. C. (N Y > 
 368. See "Salary." 
 
WAIFS 
 
 (961) 
 
 WAPENTAKE 
 
 WAIFS. Stolen goods waived or scattered 
 by a thief in his flight in order to effect his 
 escape. 
 
 Such goods, by the English common law, 
 belong to the king. 1 Bl. Comm. 296; 5 
 Coke, 109; Cro. Ellz. 694. This prerogative 
 has never been adopted here against the 
 true owner, and never put in practice 
 against the finder, though against him there 
 would be better reason for adopting it. 2 
 Kent, Comm. 292. See Comyn, Dig.; 1 
 Brown, Civ. Law, 239, note. 
 
 WAIN BOTE. Timber for wagons or 
 
 WAIN ABLE. In old records. That may 
 be plowed or manured; tillable. Cowell; 
 Blount. 
 
 WAINAGE. In old English law. The team 
 and instruments of husbandry belonging to 
 a countryman, and especially to a villein 
 who was required to perform agricultural 
 services. 
 
 WAINAGIUM (Saxon icocg ; Lat. vagina). 
 What is necessary to the farmer for the cul- 
 tivation of his land. Barr. Obs. St. p. 12; 
 Magna Charta, c. 14. According to Selden 
 and Lord Bacon, it is not the same as cojj- 
 tenemtntum, used in the same chapter of 
 Magna Charta, meaning the power of enter- 
 taining guests, or countenance, as common 
 people say. 
 
 WAITING CLERKS. Officers whose duty 
 it formerly was to wait in attendance upon 
 the court of chancery. The office was abol- 
 ished in 1842 by St. 5 & 6 Vict. c. 103. 
 Mozley & W. 
 
 WAIVE. A term applied to a woman as 
 "outlaw" is applied to a man. A man is an 
 outlaw; a woman is a waive. Crabb. 
 
 To abandon or forsake a right. 
 
 To abandon without right; as, "if the fel- 
 on waives, — that is, leaves any goods in his 
 flight from those who either pursue him, or 
 are apprehended by him so to do, — he for- 
 feits them, whether they be his own goods, 
 or goods stolen by him." Bac. Abr. "For- 
 feiture" (B). 
 
 WAIVER. The voluntary surrender and 
 relinquishment of a right. 29 Minn. 191. 
 
 It is a somewhat narrower term than 
 "abandonment" (g. v.), and is applied to 
 rights, not to property. 
 
 To constitute a waiver proper, there must 
 ordinarily be a valuable consideration (75 
 N. Y. 453), a full knowledge of the right 
 to be waived (48 N. Y. 399), and an actual 
 intent to waive (15 Gray [Mass.] 229); but 
 where there are circumstances of estoppel, i. 
 e., where a party has misled another to his 
 prejudice as to intent to insist on a right, 
 it amounts to a waiver, irrespective of in- 
 tent (7 Lea [Tenn.] 467) or consideration 
 (30 N. Y. 164); and there are certain acts 
 to which the law imputes the character of 
 a waiver, irrespective of intent, as the right 
 to a dilatory plea is waived by pleading to 
 thu merits (29 Co— ^"^ • " 
 
 Unless affected by the statute of frauds 
 (9 Wend. [N. Y.] 79), no special formali- 
 ties are required, and even a writing under 
 seal may be waived by parol (101 U. S. 
 527).* 
 
 WAKE MAN. The chief magistrate of 
 Ripon, In Yorkshire. Camd. Brit. 
 
 WAKENING. In Scotch law. The revival 
 of an action. 
 
 An action is said to sleep when it lies 
 over, not insisted on for a year, in which 
 case it is suspended. Ersk. Inst. 4. 1. 33. 
 With us a revival is by scire facias. 
 
 WALAPAUZ (Lomb.) In old Lombardic 
 law. The disguising the head or face, with 
 the intent of committing a theft. LL. Lon- 
 gobard, tit. 15, cap. ult. 
 
 WALESCHERY. The being a Welshman. 
 Spelman. 
 
 WALISCUS. In Saxon law. A servant or 
 any ministerial officer. Cowell. 
 
 WALKERS. Foresters who have the care 
 of a certain space of ground assigned to 
 them. Cowell. 
 
 WALLA, or WALLIA (Law Lat; from 
 Saxon wal; Lat. vallum). In old English 
 law. A bank of earth cast up for a mound, 
 or boundary; a wall; a sea wall. 2 Mon. 
 Angl. 920; Cowell; Spelman, voc. Wallia. 
 
 WAND OF PEACE. In Scotch law. The 
 wand which the messenger carries along 
 with his blazon, in executing a caption, and 
 with which he touches the prisoner. A slid- 
 ing along this staff of a movable ring, or 
 the breaking of the staff, is a protest that 
 the officer has been resisted or deforced. 
 Burton, Law Scot. p. 572; Bell, Diet. "Im- 
 prisonment." 
 
 WANG (Saxon). In old English law. A 
 field. Blount. ; 
 
 The cheek or jaw wherein the teeth are 
 set. "Hence, with Chaucer," says Blount, 
 "we call the cheek teeth or grinders 'wangs' 
 and 'wang teeth,' which is also notified in 
 that old way of sealing writings: 
 
 'And in witness that this is sooth, 
 I bite the wax with my wang tooth.' " 
 
 WANLASS. An ancient customary tenure 
 of lands; i. e., to drive deer to a stand, that 
 the lord may have a shot. Blount, Ten. 140. 
 
 WANTON. Reckless; disregarding the 
 rights of others. See 14 Tex. App. 201. It 
 is not synonymous with "willful." 28 Ind. 
 290. 
 
 WAPENTAKE (from Saxon wapen, i. e., 
 (irviatiira, and tac. i. e., tart us). A Saxon 
 court, held monthly by the alderman for the 
 benefit of the hundred. 
 
 It was called a "wapentake" from "wap- 
 en," arms, a"d "tac," to touch ; because, 
 when the chief of the hundred entered upon 
 i,io «ffi/.^ I." "ppeared in the field on a cer- 
 
WAR 
 
 (962) 
 
 WARDMOTE 
 
 tain day, on horseback, with a pike in his 
 hand, and all the principal men met him 
 with lances. Upon this he alighted, and 
 they all touched his pike with their lances, 
 „ in token of their submission to his author- 
 ity. In this court, causes of great moment 
 were heard and determined', as Mr. Dugdale 
 has shown from several records. Besides 
 which, it took cognizance of theft, trials by 
 ordeal, view of frank pledge, and the like; 
 whence after the Conquest it was called the 
 sheriff's tourn, and, as regarded the exam- 
 ination of the pledges, the court of the view 
 of frank pledge. These pledges were no oth- 
 er than the freemen within the liberty, who, 
 according to an institution of King Alfred,, 
 were mutually pledged for the good behav- 
 ior of each other. Fortesc. de Laud, c. 24; 
 Dugd. Orig. Jur. 27; 4 Bl. Comm. 273. Sir 
 Thomas Smith derives it from the custom 
 of taking away the arms, at the muster of 
 each hundred,, from those who could not 
 find sureties for good behavior. Rep. Angl. 
 lib. 2, c. 16. 
 
 WAR. War is a hostile contest with arms 
 between two or more states or communities 
 claiming sovereign rights. Field, Int. Code, 
 p. 467. 
 
 Classification: 
 
 (1) War is either offensive, defensive, 
 or auxiliary. The distinction between of- 
 fensive and defensive war has been based 
 on the provocation leading to the war, but 
 this test is difficult of application. The most 
 practical test is as to the belligerent in 
 whose territory the war is waged. See 
 Glenn, Int. Law, 169. 
 
 An auxiliary war is one undertaken by a 
 third nation in support of a belligerent. 
 
 (2) War is either public or private, ac- 
 cordingly as it has or has not the sanc- 
 tion of the sovereign power of the state. 
 
 An insurrectionary war in which one par- 
 ty is a government, and the other Is not, 
 has been called "mixed war." 
 
 (3) War is either perfect (sometimes call- 
 ed "solemn"), or imperfect (sometimes 
 
 .called "unsolemn"), accordingly as it has 
 been declared in due form by the sovereign 
 power, or is limited as respects places or 
 persons. 25 Wend. (N. Y.) 483. 
 
 (4) War is either foreign or civil, ac- 
 cording as it is between independent states, 
 or between a state, as such, and a party or 
 section of its own subjects. Civil war is 
 distinguished from a mere treasonable in- 
 surrection only by degree, "by the number, 
 power, and organization of the persons who 
 originate and carry it on." 2 Black (TJ. S.) 
 635. 
 
 ward can make no contract whatever bind- 
 ing upon him, except for necessaries. When 
 the relation of guardian and ward ceases, 
 the latter is entitled to have an account of 
 the administration of his estate from the 
 former. During the existence of this rela- 
 tion, the ward is under the subjection of his 
 guardian, who stands in loco parentis. See 
 "Guardian." ' 
 
 A subdivision of a city to watch in the day- 
 time, for the purpose of preventing viola- 
 tions of the law. It is the duty of all police 
 officers and constables to keep ward in their 
 respective districts. 
 
 WARD FEGH. Saxon. In old records. 
 Ward fee; the value of a ward, or the money 
 paid to the . lord for his redemption from 
 wardship. Blount. 
 
 WARD HOLDING. In old Scotch law. 
 Military tenure by which lands were held. 
 It was so called from the yearly tax in com- 
 mutation of the right to hold vassals' lands 
 during minority. It was abolished in 1747. 
 Burton, Law Scot. p. 375; Bell, Diet. 
 
 WARD IN CHANCERY. An infant who is 
 under the superintendence of the chancellor. 
 
 WARDS AND LIVERIES. In English law. 
 The title of a court of record established in 
 the reign of Henry VIII. See "Court of 
 Wards and Liveries." 
 
 WARDA (Law Lat.) 
 
 In Old English Law. Ward; guard; 
 
 protection; keeping; custody. Spelman. 
 
 A ward; an infant under wardship. Spel- 
 man. 
 
 In Old Scotch Law. An award; the 
 
 judgment of a court. 
 
 WARDEN. A guardian ; a keeper. This is 
 the name given to various officers; as, the 
 warden of the prison,' the wardens of the 
 port of Philadelphia, church wardens. 
 
 WARDEN OFTHE CINQUE PORTS. Gov- 
 ernor of the ports of England lying next 
 France, with the authority of admiral, and 
 power of sending out writs in his own name, 
 etc. The constable of Dover Castle is the 
 warden of the Cinque Ports, and was first 
 appointed by William the Conqueror; but 
 John I. granted to the wardens their privi- 
 leges on condition that they should provide 
 a certain number of vessels for forty days' 
 as often as the king should require them. 
 'See "Cinqup Ports."' 
 
 WAR, ARTICLES OF. 
 
 War." 
 
 See "Articles of 
 
 WAR ACTUM (Law Lat.) In old English 
 law. Fallow; fallow ground. Quando tene- 
 mentum jacet incultum et ad waractum, when 
 the tenement lies untilled, and at fallow. 
 Bracton, fol. 228b. 
 
 WARD. An infant placed by authority of 
 law under the care of a guardian. 
 
 While under the care of a guardian, a 
 
 WARDMOTE (from !i'n?(?, and Saxon mote, 
 or gemote, a meeting). In English law. A 
 court held in every ward in London. 
 
 The wardmote inquest has power to in- 
 uire into and present all defaults concern- 
 ng the watch and police doing their duty, 
 hat engines, etc., are provided against fire, 
 hat persons selling ale and beer be honest 
 ,nd suffer no disorders, nor permit gaming, 
 tc, that they sell in lawful measures, and 
 learches are to be made for beggars, va- 
 ferantfe, and idle persons, etc., who shall be 
 punished. Chart. Hen. II.; Enc. Lond 185- 
 
WARDPENNY 
 
 (963) 
 
 WARRANTIA CHARTAE 
 
 Cunningham; Wharton. See Cowell; 4 Inst. 
 249; 2 Show. 525; Enc. Lond. 185; Chart. 
 Hen. II. 
 
 WARDPENNY. Wardage. 
 
 WARDSHIP. 
 
 In English Law. The right ot the lord 
 
 over the person and estate of the tenant, 
 when the latter was under a certain age. 
 
 In Modern Law. The status of award 
 (g. V.) 
 
 WARDSHIP IN CHIVALRY. An incident 
 to the tenure of knight service. 
 
 WARDSHIP IN COPYHOLDS. The lord 
 is guardian of his infant tenant by special 
 custom. 
 
 WARDWIT, WARDWYTE, or WARWITE. 
 
 In old English law. Immunity or exemp- 
 tion from the duty or service of ward, or 
 from contributing to such service. Spel- 
 man. Exemption from amercement for not 
 finding a man to do ward. Fleta, lib. 1, c. 
 47, § 16; Co. Litt. 83. 
 
 WARDWRIT. The being quit of giving 
 money for the keeping of wards. Spelman. 
 
 WARECTARE. To plough up land de- 
 signed for wheat in the spring, in order to 
 let it lie fallow for better improvement, 
 which in Kent is called "summer land." 
 
 WAREHOUSE. A place used for the re- 
 ception and storage of goods and merchan- 
 dise. 23 Me. 47. 
 
 WAREHOUSE RECEIPT. A receipt by a 
 warehouseman for chattels placed in his 
 custody. Its return is usually required in 
 order to obtain the property. By custom of 
 trade It has come to be virtually negotiable 
 in many instances. Grain, provisions, and 
 many other staple commodities are largely 
 transferred by delivery or indorsement of 
 warehouse receipts. 
 
 WAREHOUSEMAN. A person who re- 
 ceives goods and merchandise to be stored 
 in his warehouse for hire. 
 
 WARNING. In old English probate prac- 
 tice. A notice to one who had entered a 
 ■caveat to appear and set forth his interest. 
 Sweet. 
 
 WARNOTH. In old English law. An an- 
 cient custom, whereby, if any tenant hold- 
 ing of the Castle of Dover failed in paying 
 his rent at the day, he should forfeit double, 
 and for the second failure, treble, etc. Cow- 
 ell. 
 
 WARRANDICE. In Scotch law. A clause 
 in a charter of heritable rights, by which 
 the grantor obliges himself that the right 
 conveyed shall be effectual to the receiver. 
 It is either personal or real. A warranty. 
 Ersk. Inst. 2. 3. 11. 
 
 WARRANT. In its broadest sense, "a 
 writing from a competent authority, in pur- 
 suance of law, directing the doing of an act. 
 
 and addressed to an officer or person compe- 
 tent to do the act, and affording him protec- 
 tion from damage if he does it." 71 N. Y. 
 376. 
 
 In practice, it is largely confined to proc- 
 ess of a criminal or quasi criminal nature, 
 the more important being: 
 
 (1) Warrant of arrest, which is a writ is- 
 sued by a justice of the peace or other au- 
 thorized officer, directed to a constable or 
 other proper person, requiring him to arrest 
 a person therein named, charged with com- 
 mitting some offense, and to bring him be- 
 fore that or some other justice of the peace. 
 
 (2) Bench warrant, Which is a process 
 granted by a court, authorizing a proper of- 
 ficer to apprehend and bring before it some 
 one charged with some contempt, crime, or 
 misdemeanor. 
 
 (3) Search warrant, which is a process is- 
 sued by a competent court or officer, author- 
 izing an officer therein named or described 
 to examine a house or other place for the 
 purpose of finding goods which it is alleged 
 have been stolen. 
 
 Municipal Warrants. The name "war- 
 rant" is also given to a class of municipal 
 securities, in the nature of a bill of ex- 
 change, drawn by an officer of a municipal- 
 ity upon the treasurer thereof. 19 Wall. (U. 
 S.) 468. 
 
 WARRANT OF ATTORNEY. An instru- 
 ment in writing, addressed to one or more 
 attorneys therein named, authorizing them, 
 generally, to appear in any court, or in 
 some specified court, on behalf of the per- 
 son giving it, and to confess judgment in 
 favor of some particular person therein 
 named, in an action of debt, and usually 
 containing a stipulation not to bring any 
 writ of error, or file a bill in equity, so as to 
 delay him. 
 
 WARRANT OF COMMITMENT. The 
 written authority by which a court empow- 
 ers a jailer to commit a person to custody. 
 
 WARRANT TO SUE AND DEFEND. In 
 
 old practice. A special warrant from the 
 crown, authorizing a party to appoint an at- 
 torney to sue or defend for him. Gilb. C. P. 
 32; 3 Bl. Comm. 25. 
 
 A special authority, given by a party to 
 his attorney, to commence a suit, or to ap- 
 pear and defend a suit, in his behalf. These 
 warrants are now disused, though formal 
 entries of them upon the record were long 
 retained in practice. 1 Burrill, Prac. 39. 
 
 WARRANTEE. One to whom a warranty 
 is made. Shep. Touch. 181. 
 
 WARRANTIA CHARTAE. An ancient and 
 now obsolete writ, which was issued when 
 a man was enfeoffed of land with warranty, 
 and then he was sued or impleaded in as- 
 size or other action, in which he could not 
 vouch or call to warranty. 
 
 It was brought by the feoffor pending the 
 first suit against him, and had this valuable 
 incident, that when the warrantor was 
 vouched, and judgment passed against the 
 tenant, the latter obtained judgment simul- 
 taneously against the warrantor, to recover 
 
WARRANTIZARE, ETC. 
 
 (964) 
 
 WASTE 
 
 other lands of equal value. Termes de la 
 Ley; Fitzh. Nat. Brev. 134; Dane, Abr. In- 
 dex; 2 Rand. (Va.) 141, 148, 156; 4 Leigh 
 (Va.) 132; 11 Serg. & R. (Pa.) 115; Viner, 
 Abr.; Co. Litt. 100; Hob. 22, 217. 
 
 WARRANTIZARE EST DEFENDERE ET 
 acquietare tenentem, qui warrantum vocavit, 
 in seisina sua; et tenens de re warranti ex- 
 cambium hebebit ad valentiam. To warrant 
 is to defend and insure in peace the tenant, 
 who calls for warranty, in his seisin; and 
 the tenant in warranty will have an ex- 
 change in proportion to its value. Co. Litt. 
 365. 
 
 WARRANTOR. One who makes a war- 
 ranty. Shep. Touch. 181. 
 
 WARRANTOR POTEST EXCIPEREQUOD 
 querens non tenet terram de qua petit war- 
 rantiam, et quod donum fuit insufficiens. A 
 
 warrantor may object that the complainant 
 does not hold the land of which he seeks 
 the warranty, and that the gift was insuffi- 
 cient. Hob. 21. 
 
 WARRANTY. 
 
 In Insurance. A statement or agree- 
 ment by the insured, which is part of the 
 contract of insurance, and the truth of 
 which is essential to the validity of the pol- 
 icy. 
 
 For the distinction between "warranty" 
 and "representation," see "Representation." 
 
 In Sales of Personal Property. An un- 
 dertaking, express or implied, by which the 
 seller insures the existence of certain facts 
 as to the thing sold. It is an express or im- 
 plied statement of something which the par- 
 ty undertakes shall be a part of the con- 
 tract, and, though part of the contract, yet 
 collateral to the express object of it. 4 
 Mees. & W. 404. 
 
 It is express when the undertaking Is by 
 express words of the seller; it is implied 
 when it results by inference of law from the 
 nature of the transaction. 
 
 In Sales of Real Property. In old law, 
 
 a real covenant, whereby the grantor of an 
 estate of freehold and his heirs were bound 
 to warrant the title, and, either upon vouch- 
 er or by judgment in a writ of warrantia 
 ofiartae. to yield other lards to the value of 
 those from which there had been an evic- 
 tion by a paramount title. Co. Litt. 365a. 
 
 Collateral warranty existed when the 
 heir's title was not derived from the war- 
 ranting ancestor, and yet it barred the heir 
 from claiming the land by anv collateral ti- 
 tle, upon the presumption that he might 
 thereafter have assets by descent from or 
 through the ancestor; ard it imposed uron 
 him the obligation of giving the warra-tee 
 other lands in case of eviction, provided he 
 had assets. 2 Bl. Comm. 301, 302. 
 
 Lineal warranty existed when the heir de- 
 rived title to the land warranted, either 
 from or through the ancestor who made the 
 warranty. 
 
 St. 4 Anne, c. 16, annulled these collat- 
 eral warranties, which had become a great 
 grievance. 
 
 In the United States, warranty in its orig- 
 
 inal form. It is presumed, has never been 
 known. The more plain and pliable form 
 of a covenant has been adopted in its place; 
 and this covenant, like all other covenants, 
 has always been held to be sound in dam- 
 ages, which, after judgment, may be recov- 
 ered out of the personal or real estate, as 
 in other cases. And in England the matter 
 has become one of curious learning, and of 
 little or no practical importance. See 4 
 Kent, Comm. 469; 3 Rawle (Pa.) 67, note; 
 2 Wheat. (U. S.) 45; 9 Serg. & R. (Pa.) 
 268; 11 Serg. & R. (Pa.) 109; 4 Ball. (Pa.) 
 442; 1 Sumn. (U. S.) 358; 17 Pick. (Mass.) 
 14; 1 Ired. (N. C.) 509; 2 Saund. 38, note 5. 
 
 WARRANTY DEED. One which contains 
 covenants of warranty. 
 
 WARRANTY, VOUCHER TO. In old prac- 
 tice. The calling a warrantor into court by 
 the party warranted (when tenant in a real 
 action brought for recovery of such lands), 
 to defend the suit for him (Co. Litt. 101b; 
 Comyn, Dig. "Voucher" [A 1]; Booth, Real 
 Actions, 43; 2 Saund. 32, note 1), aid the 
 time of such voucher is after the demand- 
 ant has counted. 
 
 It lies in most real' and mixed actions, but 
 not in personal. Where the voucher has 
 been made and allowed by the court, the 
 vouchee either voluntarily appears, or there 
 issues a judicial writ (called a summons 
 ad warrantizandum) , commanding the sher- 
 iff to summon him. Where he, either vol- 
 untarily or in obedience to this- writ, ap- 
 pears and offers to warrant the land to the 
 tenant, it is called entering into the war- 
 ranty; after which he is considered as ten- 
 ant in the action, in the place of the origi- 
 nal tenant. The dema^idant then counts 
 against him de novo, the vouchee pleads to 
 the new count, and the cause proceeds to 
 issue. 
 
 WARREN (Ger. icahren ; Fr. garenne) . A 
 place privileged by prescription or grant of 
 the king for the preservation of hares, co- 
 nies, partridges, and pheasants, or any of 
 them. Termes de la Ley. An action lies for 
 killing beasts of warren inside the warren; 
 but they may be killed damage feasant on 
 another's land. 5 Coke, 104. It need not be 
 inclosed. 4 Inst. 318. 
 
 WARSCOT. A contribution usually made 
 towards armor in the time of the Saxons. 
 
 WARTH. A customary payment for cas- 
 tle guard. Cowell. 
 
 WASH TRADES. See "Gambling Con- 
 tract." 
 
 WASHING HORN. The sounding of a 
 horn for washing before dinner. The cus- 
 tom is still observed in the Temple. 
 
 WASTE. Lasting and wrongful injury by 
 the holder of a particular estate to the detri- 
 ment of the holder of the reversion or re- 
 mainder. 
 
 To constitute waste, the injury must be 
 wrongful (3 Sup. Ct. N. Y. 60). by the ten- 
 ant, or through his fault (2 Minor, Inst p 
 
WASTORS 
 
 (96S) 
 
 WAY-GOING CROP 
 
 529), and must occasion lasting injury to 
 the inheritance (1 Washb. Real Prop. 147). 
 
 What constitutes waste in a particular 
 case is a question of fact. 22 N. J. Law, 
 521. 
 
 Waste is distinguished from "trespass" in 
 that the latter is the act of a stranger, while 
 waste is the act of a tenant. 
 
 It is distinguished from "devastavit," 
 which is waste by an executor or adminis- 
 trator. 
 
 (1) Permissive waste consists in the mere 
 neglect or omission to do what will prevent 
 injury (C9 Mich. 259), as, to suffer a house 
 to go to decay for the want of repair. And 
 it may be incurred in respect to the- soil, as 
 well as to the buildings, trees, fences, or 
 live stock on the premises. 
 
 (2) Voluntary waste consists in the com- 
 mission of some destructive act; as, in pull- 
 ing down a house, or ploughing up a flower 
 garden. 1 Paige, Ch. (N. Y.) 573. 
 
 (3) Equitable waste is such injury to the 
 inheritance as is \Yithin the legal right of 
 the tenant, but which a man of ordinary 
 prudence would not commit in the manage- 
 ment of his own property. 29 Law J. Ch. 
 598. 
 
 (4) Meliorating waste is that which in- 
 creases the present value of the estate, but 
 damages the inheritance by charging it with 
 added burden, as by improvement, the un- 
 paid cost whereof is a lien. 
 
 WASTORS. Thieyes. Cowell. 
 
 WATCH AND WARD. A phrase used in 
 the English law to denote the superintend- 
 ence and care of certain officers whose du- 
 ties are to protect the public from harm. 
 
 WATCHMAN. An officer In many cities 
 and towns, whose duty it is to watch dur- 
 ing the night and take care of the property 
 of the inhabitants. 
 
 He possesses, generally, the common-law 
 authority of a constable to make arrests, 
 where there is reasonable ground to suspect 
 a felony, though there is no proof of a fel- 
 ony having been committed. 1 Chit. Crim. 
 Law, 24; 2 Hale, P. C. 96; Hawk. P. C. bk. 
 2, c. 13, § 1, etc.; 1 Bast, P. C. 303; 2 Inst. 
 52; Comyn, Dig. . "Imprisonment" (H 4); 
 Dane, Abr. Index; 3 Taunt. 14; 1 Barn. & 
 Aid. 227; Peake, 89; 1 Moody, C. C. 334; I 
 Esp. 294. 
 
 WATER BAILIFF. In English law. An 
 officer appointed to search ships in ports. 
 10 Hen. VII. 30. 
 
 WATER BAYLEY. In American law. An 
 officer mentioned in the colony laws of New 
 Plymouth (A. D. 1671), whose duty was to 
 collect dues to the colony for fish taken in 
 their waters. Colony Laws (Ed. 1836) 164, 
 166. Probably another form of water bailiff 
 (ff. r.) 
 
 WATERCOURSE. This term is applied 
 to the flow or movement of the water in 
 rivers, creeks, and other streams. 
 
 WATER MEASURE. A greater measure 
 than the Winchester, formerly used for 
 
 selling coals in the pool, etc. 22 Car. II. 
 c. 11. 
 
 WATER ORDEAL. In Saxon and old Eng- 
 lish law. The ordeal or trial by water, 
 which was of two kinds, — by hot water and 
 by cold water. The hot-water ordeal was 
 performed by plunging the bare arm up to 
 the elbow in boiling water, and escaping un- 
 hurt thereby. 4 Bl. Comm. 343; Spelman. 
 The cold-water ordeal was performed by 
 casting the person suspected into a river/ or 
 pond of cold water, when, if he floated there- 
 in, without any action of swimming, it was 
 deemed an evidence of his guilt, but, if 
 he sank, he was acquitted. Id. 
 
 WAT E RGA N G ( Law Lat. loatergangln in) . A 
 Saxon word for a trench or course to carry 
 a stream of water, such as are commonly 
 made to drain water out of marshes. Ord. 
 Mar. de Rom. Chart. Hen. III. 
 
 WATERGAVEL. A rent paid for fishing 
 in, or other benefit from, some river. Chart. 
 15 Hen. III. 
 
 WATERING STOCK. Fictitiously increas- 
 ing the capital stock of a corporation. It 
 is commonly done when the ordinary profits 
 exceed an ordinary return on the invest- 
 ment, and as much new stock is then is- 
 sued as will reduce the rate of earnings to 
 normal. 
 
 WATERSCAPE. An aqueduct or passage 
 for water. 
 
 WATLING (or WETLING) STREET. One 
 of the four great Roman ways or roads 
 in Britain. Cowell; Blount; LL. Gul. Conq. 
 lib. 30; Pleta, lib. 2, c. 61, § 21. Otherwise 
 called "Verlam Street," from its passmg 
 through Verulam. Spelman, voc. "Ikenild 
 Street." 
 
 WAVESON. Such goods as appear upon 
 the waves after shipwreck. Jacob. 
 
 WAX SCOT. Duty anciently paid twice 
 a year towards the charge of wax candles 
 in churches. Spelman. 
 
 WAY. A passage, street, or road. 
 
 In its most general sense, it includes both 
 public highways and private ways (Co. Litt. 
 56a) ; but it is generally used as synony- 
 mous with "private way" (q. v.) 
 
 WAY BILL. A writing in which are set 
 down the names of passengers who are car- 
 ried in a public conveyance, or the descrip- 
 tion of goods sent with a common carrier 
 by land. When the goods are carried by 
 water, the instrument is called a "bill of 
 lading," and this term is now commonly ap- 
 plied to carriage by land as well. 
 
 WAY-GOING CROP. In Pennsylvania. By 
 the custom of the country, a tenant for a 
 term certain is entitled, after the expiration 
 of his lease, to enter and take away the 
 crop of grain which he had put into the 
 ground the preceding fall. This is called 
 the "way-going crop." 5 Bin. (Pa.) 289; 2 
 
WAYLEAVE 
 
 (966) 
 
 WESTMINSTER THE FIRST 
 
 Serg. & R. (Pa.) 14; 1 Pa. St. 224. See 
 "Away-Going Crop." 
 
 WAYLEAVE. A right of way over or 
 through land for the carriage of minerals 
 from a mine or quarry. It is an easement 
 (g. v.), being a species of the class called 
 "rights of way," and is generally created 
 by express grant or reservation. A way- 
 leave rent may be a fixed annual sum, or 
 a sum payable according to the quantity of 
 minerals drawn over the way, or a com- 
 bination of the two. Bainb. Mines (4th 
 Ed.) 211 et seq.; Elph. Conv. 264. 
 
 WAYNAGIUM. Implements of husbandry. 
 1 Reeve, Hist. Bng. Law, c. 5, 268. 
 
 WAYWARDENS. The English highway 
 acts provide that in every parish forming 
 part of a highway district there shall an- 
 nually be elected one or more waywardens. 
 The waywardens so elected, and the jus- 
 tices for the county residing within the dis- 
 trict, form the highway board for the dis- 
 trict. Each waywarden also represents his 
 parish in regard to the levying of the high- 
 way rates, and in questions arising concern- 
 ing the liability of his parish to repairs, etc. 
 Highway Acts 1862, 1863, 1864, 1878. 
 
 The robbing of a dead man 
 
 WEALREAF. 
 
 in his grave. 
 
 WEAR. A great dam made across a river, 
 accommodated for the taking of fish, or to 
 convey a stream to a mill. Jacob. See 
 "Dam." 
 
 WEAR AND TEAR. Deterioration by use. 
 
 WED. A covenant or agreement; whence 
 a Wedded husband. 
 
 WEDBEDRIP (Saxon). In old English law. 
 A customary service which tenants paid to 
 their lords, in cutting down their corn, or 
 doing other harvest duties; as if a covenant 
 to reap for the lord at the time of his bid- 
 ding or commanding. Cowell. 
 
 WEIGHAGE. In English law. A duty or 
 toll paid for weighing merchandise. It is 
 called "tronage" for weighing wool at the 
 king's beam, or "pesage" for weighing other 
 avoirdupois goods. 2 Chit. Com. Law, 16. 
 
 WEIGHTS OF AUNCEL. See "Auncel 
 Weight." 
 
 WELCH MORTGAGE. In English law. A 
 species of security which partakes of the 
 nature of a mortgage, as there is a debt 
 due, and an estate is given as a security for 
 the repayment, but differs from it in the 
 circumstances that the rents and profits are 
 to be received without account till the prin- 
 cipal money is paid of^ and there is no 
 remedy to enforce payment, while the mort- 
 gagor has a perpetual power of redemption. 
 
 It is a species of vivwm vadium. Strictly, 
 however, there is this distinction between a 
 Welch mortgage and a vivum vadium, — in 
 the latter, the rents and profits of the estate 
 are applied to the discharge of the principal 
 after paying the interest; while in the for- 
 
 mer, the rents and profits are received in 
 satisfaction of his interest only. 1 Powell, 
 Mortg. 373a. 
 
 WELL KNOWING. The technical words 
 to plead scienter. 
 
 WEND. A certain quantity or circuit of 
 land. Cowell. 
 
 WERE, or WERA. The name of a fine 
 among the Saxons imposed upon a mur- 
 derer. 
 
 The life of every man, not excepting that 
 of the king himself, was estimated at a cer- 
 tain price, which was called the "were," or 
 ae.stimatio capitis. The amount varied ac- 
 cording to the dignity of the person mur- 
 dered. The price of wounds was also varied 
 according to the nature of the wound, or 
 the member Injured. 
 
 WEREGELT THEF (Saxon). In old Eng- 
 lish law. A robber who might be ransomed. 
 Fleta, lib. 1, e. 47, § 13. . 
 
 WERELADA. A purging from a crime by 
 the oaths of several persons, according to 
 the degree and quality of the accused. 
 Cowell. 
 
 WERGILD, or WEREGILD. In old Eng- 
 lish law. The price which, in a barbarous 
 age, a person guilty of homicide or other 
 enormous offense was required to pay, in- 
 stead of receiving other punishment. 4 Bl. 
 Comm. 188. 
 
 See, for the etymology of this word, and 
 a tariff which was paid for the murder of 
 the different classes of men, Guizot, Essais 
 sur I'Histoire de Prance, Bssai, 4eme, c. 2, 
 § 2. 
 
 WEST SAXON LAGE. The law of the 
 
 West Saxons, which was observed in the 
 counties in the south and west of England, 
 from Kent to Devonshire, in the beginning 
 of the eleventh century. Supposed by Black- 
 stone to have been much the same with the 
 laws of Alfred. 1 Bl. Comm. 65. 
 
 WESTMINSTER. A city by express crea- 
 tion of Henry VIII. It was dissolved as a 
 see and restored to the bishopric of London 
 by Edward VI., and turned into a collegiate 
 church, subject to a dean, by Queen Eliza- 
 beth. The superior courts sat here, and the 
 common-law courts have continued to do so, 
 as do still the divisions of the high court of 
 justice which represent them. The chan- 
 cery division, except upon the first day of 
 certain sittings, sits at Lincoln's Inn. 
 Wharton. 
 
 WESTMINSTER THE FIRST. St. 3 Edw. 
 I., A. D. 1275. This statute, which deserves 
 the name of a code rather than an act, is 
 divided into fifty-one chapters. Without ex- 
 tending the exemption of churchmen from 
 civil jurisdiction, it protects the property of 
 the church from the violence and spoliation 
 of the king and the nobles, provides for 
 freedom of popular elections, because sher- 
 iffs, coroners, and conservators of the peace 
 were still chosen by the freeholders in the 
 
WESTMINSTER THE SECOND (967) 
 
 WHOLE BLOOD 
 
 county court, and attempts had been made 
 to influence the election of knights of the 
 shire, from the time when they were insti- 
 tuted. It contains a declaration to enforce 
 the enactment of Magna Charta against ex- 
 cessive fines, which might operate as perpet- 
 ual imprisonment; enumerates and corrects 
 the abuses of tenures, particularly as to 
 marriage of wards; regulates the levying of 
 tolls, which were imposed arbitrarily by the 
 barons and by cities and boroughs; cor- 
 rects and restrains the powers of the king's 
 escheator and other officers; amends the 
 criminal law, putting the crime of rape on 
 the footing to which it has been lately re- 
 stored, as a most grievous, but not capital, 
 offense; and embraces the subject of pro- 
 cedure in civil and criminal matters, intro- 
 ducing many regulations to render it cheap, 
 simple, and expeditious. 1 Campb. Lives, L. 
 Ch. p. 167; 2 Reeve, Hist. Eng. Law, c. 9, 
 p. 107. Certain parts of this act are re- 
 pealed by St. 26 & 27 Vict. c. 125. Wharton. 
 
 WESTMINSTER THE SECOND. St. 13 
 Edw. I. St. 1, A. D. 1285, otherwise called 
 the "Statute de Bonis Gonditionalibus." See 
 "De Donls, the Statute." See 2 Reeve, Hist. 
 Eng. Law, c. 10, p. 163. Certain parts of this 
 act are repealed by St. 19 & 20 Vict. c. 64, 
 and St. 26 & 27 Vict. c. 125. Wharton.. 
 
 WESTMINSTER THE THIRD. St.lSEdw. 
 I. St. 1, A. D. 1290. Otherwise called the 
 Statute Quia Emptores. See "Quia Empto- 
 res." 
 
 WHARF. A space of ground artificially 
 prepared for the reception of merchandise 
 from a ship or vessel, so as to promote the 
 convenient loading and discharging of such 
 vessel. 
 
 WHARFAGE. The money paid for land- 
 ing goods upon, or loading them from, a 
 wharf. Dane, Abr. Index; 4 Cal. 41, 45. 
 
 WHARFINGER. One who owns or keeps 
 a wharf for the purpose of receiving and 
 shipping merchandise to or from it for hire. 
 
 WHEEL. The punishment of the wheel 
 was formerly to put a criminal on a wheel, 
 and then to break his bones until he expired. 
 This barbarous punishment was never used 
 in the United States, and it has been abol- 
 ished in almost every civilized country. 
 
 WHEN. At which time. 
 
 In wills, standing by itself unqualified and 
 unexplained, this is a word of condition, de- 
 noting the time at which the gift is to com- 
 mence. 6 Ves. 243; 2 Mer. 286. The context 
 of a will may show that the word "when" 
 is to be applied to the possession only, not 
 to the vesting of a legacy; but to justify 
 this construction, there must be circumstan- 
 ces, or other expressions in the will, show- 
 ing such to have been the testator's intent. 
 7 Ves. 422; 9 Ves. 230; 11 Ves. 489; Cooper, 
 145; 3 Brown, Ch. 471. For the effect of the 
 word "when" in contracts and in wills in 
 the French law, see 6 Toullier, Dr. Civ. note 
 520. 
 
 WHEREAS. This word implies a recital, 
 and, in general, cannot be used in the direct 
 and positive averment of a fact in a declara- 
 tion or plea. Those facts which are directly 
 denied by the terms of the general issue, or 
 which may, by the established usage of 
 pleading, be specially traversed, must be 
 averred in positive and direct terms; but 
 facts, however material, which are not di- 
 rectly denied by the terms of the general 
 issue, though liable to be contested under it, 
 and which, according to the usage of plead- 
 ing, cannot be specially traversed, may be 
 alleged in the' declaration by way of recital, 
 under a Whereas. Gould, PI. c. 43, § 42; Id. 
 c. 3, § 47; Bac. Abr. "Pleas, etc." (B 5, 4); 
 2 Chit. PI. 151, 178, 191. 
 
 WHIPPING POST. A post to which crim- 
 inals are tied to inflict the punishment of 
 whipping, which is in use in Delaware, and 
 perhaps one or two other states. 
 
 WHITE ACRE. A fictitious name given 
 to a piece of land, in the English books, for 
 purposes of illustration. See "Black Acre." 
 
 WHITE BONNET. In Scotch law. A ficti- 
 tious bidder at an auction. Where there is 
 no upset price, and the auction is not stated 
 to be without reserve, there is no authority 
 for saying that employment of such person 
 is illegal. Burton, Law Scot. 362. 
 
 WHITE FRIARS. A place in London, be- 
 tween the Temple and Blackfriars, which 
 was formerly a sanctuary, and therefore 
 privileged from arrest. 
 
 WHITE PERSONS. Persons of the Cau- 
 casian race. It excludes Indians, Mongoli- 
 ans, etc. 5 Sawy. (U. S.) 115. The general 
 rule is that a person having three-fourths or 
 more of Caucasian blood is regarded as 
 white. See 3 Dana (Ky.) 382. 
 
 WHITE RENTS. In English law. Rents 
 paid in silver, and called "white rents," or 
 redditus albi, to distinguish them from other 
 rents which were not paid in money. 2 Inst. 
 19. See "Alba Firma." 
 
 WHITE SPURS. A kind of esquires. Cow- 
 ell. 
 
 WHITEHART SILVER. A mulct on cer- 
 tain lands in or near to the forest of White- 
 hart, paid into the exchequer, imposed by 
 Henry III. upon Thomas de la Linda for 
 killing a beautiful white hart which that 
 king before had spared in hunting. Camd. 
 Brit. 150. 
 
 WHITTANWARII (Law Lat.) In old Eng- 
 lish law. A class of offenders who whitened 
 stolen oxhides and horsehides so that they 
 could not be known and identified. Barr. 
 Obs. St. 124, note (f). 
 
 WHOLE BLOOD. Being related by both 
 the father and mother's side. This phrase 
 is used In contradistinction to "half blood," 
 which is relation only on one side. See 
 "Blood." 
 
WHOLESALE 
 
 (968) 
 
 WINDOW TAX 
 
 WHOLESALE. To sell by wholesale is to 
 sell by large parcels, generally in original 
 packages, and not by retail. 
 
 WHORE. A prostitute. 
 
 WICK, or WIC. A town or village. A 
 termination denoting territorial limits of au- 
 thority. Thus, "bailiwick" is the territory 
 to which the authority of a bailiff extends. 
 
 WIDOW. A woman whose husband is 
 dead, and who has not remarried. 
 
 As used in statute of distributions, this 
 does not include a divorced woman, though 
 it may in the law of dower. 37 Hun (N. Y.) 
 152; 103 N. Y. 284, 288. 
 
 WIDOW BENCH. The share of her hus- 
 band's estate which a widow is allowed be- 
 sides her jointure. 
 
 WIDOW'S CHAMBER. In English law. In 
 London, the apparel of a widow and the fur- 
 niture of her chamber, left by her deceased 
 husband, is so called, and the widow is en- 
 titled to it. 2 Bl. Comm. 518. 
 
 WIDOW'S QUARANTINE. See "Quaran- 
 tine." 
 
 WIDOW'S TERCE. - The right which a 
 wife has after her husband's death to a third 
 of the rents of lands in which her husband 
 died infeft; dower. Bell, Diet. 
 
 WIDOWER. A man whose wife is dead. 
 A widower has a right to administer on his 
 wife's separate estate, and, as her adminis- 
 trator, to collect debts due to her, generally 
 for his own use. 
 
 WIDOWHOOD. The state of a man whose 
 wife is dead, or of a woman whose hus- 
 band is dead. In general, there is no law to 
 regulate the time during which a man must 
 remain a widower, or a woman a widow, be- 
 fore they marry a second time. The term 
 Widowhood is mostly applied to the state or 
 condition of a widow. 
 
 WIFE'S EQUITY. 
 
 tlement." 
 
 See "Equity to a Set- 
 
 WILD ANIMALS. Animals in a state of 
 nature; animals ferae naturae. See "Ani- 
 mal." 
 
 WILD LAND. Unimproved and unculti- 
 vated. 
 
 WILD'S CASE, RULE IN. A devise to B. 
 and his children or issue, B. having no issue 
 at the time of the devise, gives him an es- 
 tate tail; but if he have issue at the time, 
 B. and his children take joint estates for 
 life. 6 Coke, 16b; White & T. Lead. Gas. 
 Real Prop. 542, 581. 
 
 WILL. The legal declaration of a man's 
 intention respecting the disposition of his 
 property, which he wills to be performed 
 after his death. See 2 Bl. Comm. 309. 
 
 The word is of common-law origin, the cor- 
 responding civil-law term being "testament" 
 (g. V.) "Will," "testament," and "last will 
 
 and testament" are now said to be synony- 
 mous. Schouler, Wills, § 2. 
 
 In general, any instrument executed with 
 the required formalities, conferring no pres- 
 ent rights, but intended to take effect on the 
 death of the maker, will be considered to be 
 a will. 4 Wend. (N. Y.) 168; 104 Pa. St. 
 240. 
 
 (1) Holographic (or olographic) wills are 
 those written and signed entirely with the 
 testator's own hand. By reason of this, cer- 
 tain formalities in execution are in some 
 jurisdictions dispensed with. 
 
 (2) Nuncupative wills are those made by 
 oral declaration in the presence of witness- 
 es. They are not in use in the United States, 
 and in England are confined to seamen and 
 soldiers in active service. 
 
 (3) Mystic wills, in Louisiana, are wills 
 sealed in the presence of witnesses. , See 
 "Mystic Testament." 
 
 WILL, ESTATE AT. See "Estates." 
 
 WILLFUL. In the common sense, volun- 
 tary or intentional. In criminal law, the 
 term generally means more than "volun- 
 tary," and implies an eyil mind or intent. 
 96 U. S. 699; 140 Ind. 246; 20 Pick. (Mass.) 
 206; 14 Tex. App. 200. Thus, one who acts in 
 good faith, believing that no highway ex- 
 isted at that place, is not guilty of "will- 
 fully" obstructing a highway. 34 Wis. 675. 
 
 WILLFUL ACT. A "willful" differs es- 
 sentially from a "negligent" act. The one is 
 positive, and the other negative. Intention 
 is always separated from negligence by a 
 precise line of demarcation. 38 Jones & S. 
 (N. Y.) 281, 317, affirmed in 63 N. Y. 77. 
 
 WILLFULLY. Intentionally. 
 
 In charging certain offenses, it is required 
 that they should be stated to be willfully 
 done. Archb. Crim. PI. 51, 58; Leach, C. C. 
 556. 
 
 In Pennsylvania, it has been decided that 
 the word "maliciously" was an equivalent 
 for the word "willfully," in an indictment 
 for arson. 5 Whart. (Pa.) 427. See "Will- 
 ful." 
 
 WILLS ACT. See "Statute of Wills." 
 
 WINCHESTER, STATUTE OF. A statute 
 passed in the 13th year of the reign of Ed- 
 ward I., by which the old Saxon law of po- 
 lice was enforced, with many additional 
 provisions. 2 Reeve, Hist. Bng. Law, 163; 
 Crabb, Hist. Eng. Law, 189. It was re- 
 pealed by St. 7 & 8 Geo. IV. c. 27. See 
 "Constable." 
 
 WINCHESTER MEASURE. The stand- 
 ard measure which was originally kept at 
 Winchester. It is abolished by 5 & 6 Wm. 
 IV. c. 63. 
 
 WINDING UP. The term used in Eng- 
 land to denote the dissolution of a corpora- 
 tion or partnership, and the settlement of 
 its affairs. 
 
 WINDOW TAX. A tax on windows, levied 
 on houses wtiich contained more than six 
 
WINDSOR FOREST 
 
 (969) 
 
 WITHERNAM 
 
 windows, and were worth more than £5 per 
 annum; established by St. 7 Wm. III. c. 18. 
 St. 14 & 15 Vict. c. 36, substituted for this 
 tax a tax on inhabited houses. 
 
 WINDSOR FOREST. A royal forest found- 
 ed by Henry VIII. 
 
 WINTER CIRCUIT. An occasional circuit 
 appointed for the trial of prisoners, in Eng- 
 land, and in some eases of civil causes, be- 
 tween Michaelmas and Hilary terms. 
 
 WINTER HEYNING. The season between 
 11th November and 23d April, which is ex- 
 cepted from the liberty of commoning in cer- 
 tain forests. St. 23 Car. II. c. 3. 
 
 WISBUY, LAWS OF. A code of maritime 
 laws, compiled at Wisbuy, the ancient capi- 
 tal of Gothland in Sweden, towards the 
 close of the thirteenth century, and which, 
 soon after their promulgation, were adopted 
 as laws of the sea by all the nations of 
 modern Europe. Even in the time of 
 Cleirac (who published them, with a com- 
 mentary, in his work entitled Les Us et 
 Coutymes de la Mrr), they were still ob- 
 served in Sweden, Denmark, Flanders, and 
 In the north of Germany. These laws re- 
 semble in many respects the laws of Oleron, 
 to which, indeed, according to Cleirac, they 
 were but a supplement, and they were 
 adopted as the basis of the later collection 
 known as the "Laws of the Hanseatic 
 League." 3 Kent, Comm. 13, and note; 1 
 Duer, Ins. 40. 41; Introd. Disc. Lect. ii. 
 They have been published in the United 
 States, in the appendix to the first volume 
 of Peters' Admiralty Decisions. 
 
 WISTA. A measure of land among the 
 Saxons, containing sixty acres. 
 
 WITAM. The purgation from an offense 
 by the oath of the requisite number of wit- 
 nesses. 
 
 WITE. In Saxon law. A punishment, 
 pain, penalty, mulct, or criminal fine. Cow- 
 ell. It was the fine paid to the magistrate, 
 as distinguished from "were," the compen- 
 sation paid to the injured persons. 
 
 WITEKDEN. A taxation of the West Sax- 
 ons, imposed by the public council of the 
 kingdom. 
 
 WITENA DOM. In Saxon law. The judg- 
 ment of the county court, or other court of 
 competent jurisdiction, on the title to prop- 
 erty, real or personal. 1 Spence, Eq. Jur. 
 22. 
 
 WITENA GEMOTE (spelled, also, mtena 
 gemot, gewitena gemote, from the Saxon wi- 
 ta, a wise man, gemote, assembly, — the as- 
 sembly of wise men). An assembly of the 
 great men of the kingdom in the time of 
 the Saxons, to advise and assist in the gov- 
 ernment of the realm. 
 
 It was the grand council of the kingdom, 
 and was held, generally, in the open air, by 
 public notice or particular summons. In or 
 near some city or populous town. These no- 
 
 tices or summonses were issued upon deter- 
 mination by the king's select council, or the 
 body met without notice, when the throne 
 was vacant, to elect a new king. Subse- 
 quently to thd Norman Conquest it was call- 
 ed commune concilium reyiii. curia magna, 
 and, finally, "parliament;" but its character 
 had become considerably changed. It was a 
 court of last resort more especially for de- 
 termining disputes between the king and his 
 thanes, and, ultimately, from all inferior 
 tribunals. Great offenders, particularly those 
 who were members of or might be sum- 
 moned to the king's court, were here tried. 
 The casual loss of title deeds was supplied, 
 and a very extensive equity jurisdiction Ex- 
 ercised. 1 Spence, Eq. Jur. 73-76; 1 Bl. 
 Comm. 147, 148; 1 Reeve, Hist. Eng. Law, 
 7 ;- 9 Coke, pref . 
 
 The principal duties of the witena gemote, 
 besides acting as high court of judicature, 
 was to elect the sovereign, assist at his cor- 
 onation, and co-operate in the enactment and 
 administration of the laws. It made treaties 
 jointly with the king, and aided him in di- ' 
 recting the military affairs of the kingdom. 
 Examinations into the state of churches, 
 monasteries, their possessions, discipline, 
 and morals, were made before this tribunal. 
 It appointed magistrates, and regulated the 
 coin of the kingdom. It also provided for 
 levying upon the people all such sums as 
 the public necessities required; and no prop- 
 erty of a freeman was, in fact, taxable with- 
 out the consent of the gemote. Bede, lib. 2, 
 c. 5; 3 Turner, Ang. Sax. 209; 1 Dugd. Mon. 
 20; Saxon, Chron. 126, 140. 
 
 WIT ENS. The chiefs of the Saxon lords 
 or thanes, their nobles, and wise men. 
 
 WITH STRONG HAND. In pleading. A 
 technical phrase indispensable in describing 
 a forcible entry in an indictment. No other 
 word or circumlocution will answer the 
 same purpose. 8 Term R. 357. 
 
 WITHDRAWING A JUROR. In practice. 
 An agreement made between the parties in 
 a suit to require one of the twelve jurors 
 impanelled to try a cause to leave the jury 
 box; the act of leaving the box by such a 
 juror is also called the withdrawing a juror. 
 
 This arrangement usually takes place at 
 the recommmdation of the judge, when it is 
 obviously improper the case should proceed 
 any further. 
 
 The effect of withdrawing a juror puts an 
 end to that particular trial, and each party 
 must pay his own costs. 3 Term R. 657; 
 2 Dowl. 721; 1 Cromp., M. & R. 64. But the 
 plaintiff may bring a new suit for the same 
 cause of action. Ryan & M. 402; 3 Barn. & 
 Adol. 349. See 3 Chit. Prac. 916. 
 
 WITHDRAWING RECORD. The with- 
 drawing by plaintiff's attorney of the nisi 
 prius record filed in a cause, before jury is 
 sworn, has the same effect as a motion to 
 postpone. 2 Car. & P. 185; 3 Campb. 333; 
 Paine & D. Prac. 465. 
 
 WITHERNAM. In practice. The name of 
 a writ which Issues on the return of elongata 
 
WITHOUT DAY 
 
 (970) 
 
 WOOLSACK 
 
 to an alias or pluries writ of replevin, by 
 which, the sheriff is commanded to take the 
 defendant's own goods which may be found 
 in his bailiwiclc, and keep them safely, not 
 to deliver them to the plaintiff until such 
 time as the defendant chooses to submit him- 
 self and allow the distress, and the whole of 
 it to be replevied, and he is thereby further 
 commanded that he do return to the court in 
 what manner he shall have executed the 
 writ. Hammond, N. P. 453; 2 Inst. 140; 
 Fitzh. Nat. Brey. 68, 69; Grotius de Jure 
 Belli, 3. 2. 4. note 1. 
 
 WITHOUT DAY. This signifies that the 
 cause or thing to which it relates is indefi- 
 nitely adjourned; as, when a case is ad- 
 journed without day, it is not again to be in- 
 quired into. When the legislature adjourn 
 without day, they are not to meet again. 
 This is usually expressed in Latin, sine die. 
 
 WITHOUT IMPEACHMENT OF WASTE. 
 
 When a tenant for life holds the land with- 
 out impeachment of waste, he is, of course, 
 dispunishable for waste, whether willful or 
 otherwise. But still this right must not be 
 wantonly abused, so as to destroy the es- 
 tate; and he will be enjoined from commit- 
 ting malicious waste. Dane, Abr. c. 78, a. 
 14, § 7; Bac. Abr. "Waste" (N) ; 2 Bq. Cas. 
 Abr. "Waste" (A, pi. 8); 2 Bouv. Inst, note 
 2402. See "Impeachment of Waste." 
 
 WITHOUT PREJUDICE. A phrase fre- 
 quently used In connection with admissions, 
 orders, etc. Its general effect is to reserve 
 certain rights which would otherwise be in- 
 directly or impliedly affected. See 20 Wall. 
 (U. S.) 12; 58 Vt. 414. 
 
 WITHOUT RECOURSE. An indorsement 
 of a negotiable instrument, whereby the in- 
 dorser relieves himself of any liability to 
 subsequent holders. The usual form is by 
 prefixing the words "Without recourse" to 
 the indorser's signature. 
 
 WITHOUT RESERVE. These words are 
 frequently used in conditions of sale at pub- 
 lic auction, that the property offered, or to 
 be offered, for sale, will be sold without re- 
 serve. 
 
 When a property is advertised to be sold 
 without reserve, if a puffer be employed to 
 bid, and actually bid at the sale, the courts 
 will not enforce a contract against a pur- 
 chaser, into which he may have been drawn 
 by the vendor's want of faith. 5 Madd. 34. 
 See "Puffer." 
 
 WITHOUT STINT. Without limit. Ap- 
 plied to common, it is the same as common 
 sans nombre. 
 
 WITHOUT THIS, THAT. In pleading. 
 These are technical words used in a trav- 
 erse (g. V.) for the purpose of denying a ma- 
 terial fact in the preceding pleadings, wheth- 
 er declaration, plea, replication, etc. In Lat- 
 in it is called absque hoc (g. v.) Lawes, 
 PI. 119; Comyn, Dig. "Pleader" (G 1); Sum- 
 mary of Pleading, 75; 1 Saund. 103, note; 
 Ld. Raym. 641; 1 Burrows, 320; 1 Chit. PI. 
 576, note (a). 
 
 WITN ESS. One who gives oral testimony 
 in a judicial proceeding. If his testimony 
 be given by deposition, he is known as a 
 "deponent;" if by affidavit, as an "affiant." 
 
 One who is present at any transaction, 
 particularly persons required by law to be 
 present, by way of preappointed evidence. 
 If the witness signs an instrument to denote 
 that same was executed in his presence, he 
 is called a "subscribing" or "attesting" wit- 
 ness. 
 
 WITNESSING PART. In a deed or other 
 formal instrument, that part which comes 
 after the recitals, or, where there are no re- 
 citals, after the parties. It usually commen- 
 ces with a reference to the agreement or in- 
 tention to be effectuated, then states or re- 
 fers to the consideration, and concludes with 
 the operative words and parcels, if any. 
 Where a deed effectuates two distinct ob- 
 jects, there are two witnessing parts. 1 Dav. 
 Prec. Conv. 63 et seq. 
 
 WOLF'S HEAD. In old English law. A 
 term applied to outlaws. They who were out- 
 lawed in old English law were said to carry 
 a wolf's head; for, if caught alive, they were 
 to be brought to the king, and if they de- 
 fended themselves, they might be slain and 
 their heads carried to the king, for they 
 were no more to be accounted of than 
 wolves. Termes de la Ley, "Woolforthfod:" 
 
 WOMEN. All the females of the human 
 species. All such females who have arrived 
 at the age of puberty. Mulieris appellatione 
 etiaTTh Virgo viri patens continetur. Dig. 50. 
 16. 13. See 84 111. 11. 
 
 WOOD CORN. A certain quantity of 
 grain paid by the tenants of some manors to 
 the lord for the liberty to pick up dried or 
 broken wood. Cowell. 
 
 WOOD GELD. The cutting of wood with- 
 in the forest,, or rather the money paid for 
 the same. Cowell. 
 
 WOOD PLEA COURT. A court held twice 
 in the year In the forest of Clun, in Shrop- 
 shire, for determining all matters of wood 
 and agistments. Cowell. 
 
 WOOD STREET COMPTER. The name of 
 an old prison in London. 
 
 WOODGELD. In old English law. To be 
 free from the payment of money for taking 
 of wood in any forest. C». Litt. 233a. 
 
 The same as "pudzeld." 
 
 WOODMOTE. The court of attachment. 
 Cowell. 
 
 WOODWARDS. Officers of the forest, 
 whose duty consists in looking after the 
 wood and vert and venison, and preventing 
 offenses relating to the same. Manw. For. 
 Laws, 189. 
 
 WOOLSACK. The seat of the lord chan- 
 cellor of England in the house of lords, be- 
 ing a large square bag of wool, without back 
 or arms, covered with red cloth. Webster. 
 The judges, king's counsel-at-Iaw, and mas- 
 
WORD 
 
 (971) 
 
 WRIT 
 
 ters in chancery sit also on woolsacks. The 
 custom arose from wool's being a staple of 
 Great Britain from early times. Bnc. Am. 
 
 WORD. One or more syllables which, 
 when united, convey an idea; a single part 
 of speech. 
 
 WORDS OF LIMITATION. In a convey- 
 ance or will, words which have the effect 
 of marking the duration of an estate are 
 termed "words of limitation." Fearne, Cont. 
 Rem. 78. 
 
 WORDS OF NEGOTIABILITY. Those 
 words in an instrument which render it 
 negotiable. The words "to the order of" 
 before the name of the payee, or the words 
 "or order," or "or bearer," after the name, 
 are the usual words of negotiability. See 
 "Negotiable Instrument." 
 
 WORDS OF PROCREATION. To create 
 an estate tail by deed, it is necessary that 
 words of procreation should be used in or- 
 der to confine the estate to the descendants 
 of the first grantee, as in the usual form of 
 limitation, — "to A. and the heirs of his 
 body." 
 
 WORDS OF PURCHASE. Words of pur- 
 chase are words which denote the person 
 who is to take the estate. Thus, if I grant 
 land to A. for twenty-one years, and after 
 the determination of that term to A.'s heirs, 
 the word "heirs" does not denote the dura- 
 tion of A.'s estate, but the person who is to 
 take the remainder on the expiration of the 
 term, and is therefore called a "word of pur- 
 chase." Wiliams, Real Prop.; Fearne, Cont. 
 Rem. 76 et seq. Hence, "words of purchase" 
 and "words of limitation" are "opposed to 
 each other. 
 
 WORK AND LABOR. One of the com- 
 mon counts in assumpsit, used to declare on 
 work and labor done and materials fur- 
 nished. 
 
 WORK BEAST, or WORK HORSE. These 
 terms mean an animal of the horse kind, 
 which can be rendered fit for service, as 
 well as one of maturer age and in actual 
 use. 8 Bush (Ky.) 587. 
 
 WORKHOUSE. A prison where prisoners 
 are kept in employment; a penitentiary. A 
 house provided where the poor are taken 
 care of and kept in employment. 
 
 WORKING DAYS. In settling lay days, or 
 days of demurrage, sometimes the contract 
 specifies "working days;" in the computa- 
 tion, Sundays and custom-house holidays are 
 excluded. 1 Bell, Comm. (5th Ed.) 577. 
 
 WORLD. This term sometimes denotes 
 all persons whatsoever who may have, claim, 
 or acquire an interest in the subject matter; 
 as in saying that a judgment in rem binds 
 "all the world." 
 
 WORSHIP. Honor and homage rendered 
 
 to God. 
 In the United States, this is free, every 
 
 one being at liberty to worship God accord- 
 ing to the dictates of his conscience. See 
 "Public Worship." 
 
 In English Law. A title or addition 
 
 given to certain persons. 2 Inst. 666; Bac. 
 Abr. "Misnomer" (A 2). 
 
 WORT, or WORTH. A curtilage or coun- 
 try farm. 
 
 WORTHIEST OF BLOOD. An expression 
 used to designate that in descent the sons 
 are to be preferred to daughters, which is 
 the law of England. See some singular rea- 
 sons given for this in Plowd. 305. 
 
 WORTHINE, or WORTHING OF LAND. 
 
 A certain quantity of land so called in the 
 manor of Kingsland, In Hereford. The ten- 
 ants are called "worthies." 
 
 WOUND. An injury to the person, where- 
 by the skin is broken. Steph. Grim. Law, 
 171. Breaking of a bone has been held not 
 to be a wounding. 4 Car. & P. 381. 
 
 WOUNDING. An aggravated species of 
 assault and battery, consisting in one per- 
 son giving another some dangerous hurt. 
 3 Bl. Comm. 121. 
 
 WRECCUM MARIS SIGNIFICAT ILLA 
 bona quae naufraglo ad terram pelluntur. A 
 
 wreck of the sea signifies those goods which 
 are driven to shore from a shipwreck. 
 
 WRECK (called in Law Lat. wrecatm marts, 
 and in Law Fr. wrec de mer). In a popular 
 sense, a ship which has received injuries ren- 
 dering her incapable of navigation. 
 
 In Maritime Law. Such goods as, after 
 
 a shipwreck, are cast upon the land by the 
 sea, and left there within some country, so 
 as not to belong to the jurisdiction of the 
 admiralty, but to the common law. 2 Inst. 
 167; 1 Bl. Comm. 290-293. 
 
 WRECK COMMISSIONERS. Persons ap- 
 pointed by the English lord chancellor un- 
 der Merch. Shipp. Act 1876, § 29, to hold 
 investigations at the request of the board 
 of trade into losses, abandonments, dam- 
 ages, and casualties of or to ships on or 
 near the coast of the United Kingdom, 
 whereby loss of life is caused. 
 
 WRECKFREE. Exempt from the forfeit- 
 ure of shipwrecked goods and vessels to the 
 king. Cowell. 
 
 WRIT.* In practice. A mandatory pre- 
 cept, issued by the authority and in the 
 name of the sovereign or the state, for the 
 
 •The common-law writs, of which there were a 
 multitude, generally bore specific Latin names, 
 from their purpose, or from their emphatic words. 
 The aim in the present work has been to place 
 these according to their customary form. The 
 great majority of them, being customarily intro- 
 duced by the prefix "De," or "Pro," will be found 
 so placed. Those not customarily so introduced 
 will be found under the first word of their names. 
 Writs having Enprlish names are placed under the 
 name without the prefix "Writ of" (e. g. "Habeas 
 Corpus"), except where such short form is never 
 used, m which case the prefix is used,, and the 
 phrase placed under "W" (e. g., "Writ of Bight"). 
 
WRIT OF ASSISTANCE 
 
 (972) 
 
 WRIT OP ERROR 
 
 purpose of compelling the defendant to do 
 something therein mentioned. 
 
 It is issued by a court or other competent 
 jurisdiction, and Is returnable to the same. 
 It is to be under seal and tested by the prop- 
 er officer, and is directed to the sheriff or 
 other officer lawfully authorized to execute 
 the same. Writs are divided into original, 
 by which actions or proceedings are begun, 
 of mesne process, by which interlocutory 
 proceedings are initiated, of execution, by 
 which the judgment or decree is carried in- 
 to effect. See 3 Bl. Comm. 273; 1 Tidd, Prac. 
 93; Gould, PI. c. 2, § 1. 
 
 WRIT OF ASSISTANCE. In English prac- 
 tice, a chancery writ issued in aid of com- 
 missioners of sequestration, who were un- 
 able to obtain possession of the property. In 
 early English practice, the writ had more ex- 
 tensive use, being used generally to eject 
 persons from land wrongfully held; but it 
 has been to a great extent superseded by 
 statutory writs of possession and delivery. 
 In the' United States, the writ issues out of 
 chancery to aid the sheriff in giving posses- 
 sion of land pursuant to a sale by him. 
 
 WRIT OF ASSOCIATION. In English 
 practice. A writ whereby certain pei-sons 
 (usually the clerk of assize and his subor- 
 dinate officers) are directed to associate 
 themselves with the justices and sergeants; 
 and they are required to admit the said per- 
 sons into their society in order to take the 
 assizes. 3 Bl. Comm. 59. 
 
 WRIT OF ATTACHMENT. A writ em- 
 ployed to enforce obedience to an order or 
 judgment of the court. It commands the 
 sheriff to attach the disobedient party, and 
 to have him before the court to answer his 
 contempt. Smith, Actions, 176. It is used 
 not only as a writ of execution (e. g., to en- 
 force a judgment for the recovery of chat- 
 tels), but also to enforce obedience to inter- 
 locutory orders, injunctions, etc. 
 
 WRIT OF CONSPIRACY. The name of 
 an ancient writ, now superseded by the more 
 convenient remedy of an action on the case, 
 which might have been sued against parties 
 guilty of a conspiracy. Pitzh. Nat. Brev. 
 260. See "Conspiracy." 
 
 WRIT OF COVENANT. In practice. A 
 writ which lies where a party claims dam- 
 ages for breach of covenant, i. e., of a prom- 
 ise under seal. 
 
 WRIT OF DEBT. In practice. A writ 
 which lies where the party claims the recov- 
 ery of a debt, i. e., a liquidated or certain 
 sum of money alleged to be due to him. 
 
 This is debt "in the debet," which is the 
 principal and only common form. There is 
 another species mentioned In the books, 
 called the debt "in the detinet," which lies 
 for the specific recovery of goods under a 
 contract to deliver them. 1 Chit. PI. 101. 
 
 WRIT OF DECEIT. The name of a writ 
 which lies where one man has done any- 
 thing in the name of another, by which 
 
 the latter is damnified and deceived. Fitzh. 
 Nat. Brev. 217. 
 
 The modern practice is to sue a writ of 
 trespass on the case to remedy the injury. 
 
 WRIT OF DELIVERY. A writ of execu- 
 tion employed to enforce a judgment for 
 the delivery of chattels. It commands the 
 sheriff to cause the chattels mentioned in 
 the writ to be returned to the person who 
 has obtained the judgment, and, if the chat- 
 tels cannot be found, to distrain the per- 
 son against whom the judgment was given 
 until he returns them. Smith, Actions, 175. 
 
 WRIT OF DETINUE. In practice. A writ 
 which lies where a party claims the specific 
 recovery of goods and chattels, or deeds 
 and writings, detained' from him. This 
 is seldom used. Trover is the more fre- 
 quent remedy, in cases where it may be 
 brought. 
 
 WRIT OF DOWER. In practice. A writ 
 which lies for a widow claiming the spe- 
 cific recovery of her dower, no part having 
 been yet assigned to her. It is usually 
 called a 'writ of dower imde nihil habet. 3 
 Chit. PI. 393; Booth, 166. 
 
 There is another species, called a "writ 
 of right of dower," which applies to the 
 particular case where the widow has re- 
 ceived a part of her dower from the ten- 
 ant himself, and of land lying in the same 
 town in which she claims the residue. 
 Booth, 166; Glanv. lib. 6, c. 4, 5. This lat- 
 ter writ is seldom used in practice. 
 
 WRIT OF EJECTMENT. In practice. The 
 name of a process issued by a party claim- 
 ing land or other real estate, against one 
 who is alleged to be unlawfully in posses- 
 sion. See "Ejectment." 
 
 WRIT OF ENTRY. A real action to re- 
 cover the possession of land wliere the ten- 
 ant (or owner) has been disseised or other- 
 wise wrongfully dispossessed. If the dis- 
 seisor has aliened the lajid, or if it has 
 descended to his heir, the writ of entry is 
 said to be in the per, because it alleges 
 that the defendant (the alienee or heir) 
 obtained possession "through" the original 
 disseisor. If two alienations (or descents) 
 have taken place, the writ is in the per and 
 oui, because it alleges that the defendant 
 (the second alienee) obtained possession 
 "through" the first alienee, to whom the 
 original disseisor had aliened it. If more 
 than two alienations (or descents) have 
 taken place, the writ is in the post, because 
 it simply alleges that the defendant ac- 
 quired possession "after" the original dis- 
 seisin. Co. Litt. 238b; 3 Bl. Comm. 180. 
 The writ of entry was abolished, with other 
 real actions, in England, by St. 3 & 4 Wm. 
 IV. c. 27, § 36, but Is still in use in a few 
 of the states of the Union. 
 
 WRIT OF ERROR. A writ by which a 
 superior court commands an inferior to 
 send up the record of a proceeding for re- 
 view. A writ of error lay only to a court of 
 record (88 Pa. St. 291) after final judgment 
 
WRIT OF FALSE JUDGMENT (973) 
 
 WRIT OF SUMMONS 
 
 (2 Mass. 445), and lies only to errors of 
 law (141 Mass. 194) apparent of record (72 
 N. y. 393). 
 
 Error was the appropriate remedy at com- 
 mon law to review proceedings at law, 
 while an appeal (,q. i\) lay in equity. 
 
 Writ of Error Coram Nobis. The or- 
 dinary writ of error which issued from a 
 superior to an inferior court. 
 
 Writ of Error Coram Vobis. A writ 
 
 which' issued to review proceedings previous- 
 ly had in the court Issuing it. See "Coram 
 Vobis." 
 
 It was called at length in the old books, 
 breve de errore corrigenda, a writ about cor- 
 recting error; the abbreviation of which 
 (breve de crrorc) has been literally trans- 
 lated, "writ of error." Sometimes simply 
 termed "error." Defined by Lord Coke to 
 be a writ which "lieth where a man is griev- 
 ed by any error in the foundation, proceed- 
 ing, judgment, or execution [of a suit], and 
 thereupon it is called breve de errore corri- 
 genda. Co. Litt. 288b. 
 
 WRIT OF FALSE JUDGMENT. A writ 
 which appears to be still in use to bring 
 appeals to the English high court from in- 
 ferior courts not of record proceeding ac- 
 cording to the course of the common law. 
 Archb. Prac. 1427. 
 
 WRIT OF MAINPRIZE. In English law. 
 A writ directed to the sheriff (either general- 
 ly, when any man is imprisoned for a bail- 
 able offense and bail has been refused, or 
 specially, when the offense or cause of com- 
 mitment is not properly bailable below) 
 commanding him to take sureties for the 
 prisoner's appearance, commonly called 
 "mainpernors," and to set him at large. 3 
 Bl. Comm. 128. 
 
 WRIT OF IVIESNE. In old English law. 
 A writ which was so called by reason of 
 the words used in the writ, namely, Unde 
 idem. A., qui medivs est inter G. et praefatum 
 B.; that is, A., who is mesne between C, 
 the lord paramount, and B., the tenant para- 
 vail. Co. Litt. 100a. 
 
 WRIT OF POSSESSION. This is the writ 
 of execution employed to enforce a judg- 
 ment to recover the possession of land. It 
 commands the sheriff to enter the land and 
 give possession of it to the person entitled 
 under the judgment. Smith, Actions, 175. 
 
 WRIT OF PRAECIPE. This writ Is also 
 called a writ of covenant, and is sued out 
 by the party to whom lands are to be con- 
 veyed by fine, the foundation of which is 
 a supposed agreement or covenant that the 
 one shall convey the land to the other. 2 
 Bl. Comm. 349, 350. 
 
 WRIT OF PREVENTION. This name is 
 given to certain writs which may be issued 
 in anticipation of suits which may arise. 
 Co. Litt. 100. 
 
 WRIT OF PROCLAMATION. In English 
 practice. A writ which issues at the same 
 time with the exigi facias, by virtue of St. 
 
 31 Eliz. c. 3, § 1, by which the sheriff is com- 
 manded to make proclamations in the stat- 
 ute prescribed. 
 
 When it is not directed to the same sher- 
 iff as the writ of exigi facias is, it is called 
 a "foreign writ of proclamation." Lee; 4 
 Reeve, Hist. Eng. Law, 261. 
 
 WRIT OF PROTECTION. In England, the 
 sovereign may, by his writ of protection, 
 privilege any person in his service from 
 arrest in civil proceedings during a year 
 and a day; but this prerogative is seldom, 
 if ever, exercised. Archb. Prac. 687. See 
 Co. Litt. 130a. 
 
 WRIT OF RECAPTION. In*practice. A 
 writ which lies where, pending an action 
 of replevin, the same distrainer takes, for 
 the same supposed cause, the cattle or goods 
 of the same distrainee. See Fitzh. Nat. 
 Brev. 169. 
 
 This writ is nearly obsolete, as trespass, 
 which is found to be a preferable remedy, 
 lies for the second taking; and, as the de- 
 fendant cannot justify, the plaintiff must 
 necessarily recover damages proportioned to 
 the injury. 
 
 WRIT OF RESTITUTION. A writ which 
 is issued on the reversal of a judgment 
 commanding the sheriff to restore to the 
 defendant below the tjving levied upon, if 
 it has not been sold, and, if it has been 
 sold, the proceeds. Bac. Abr. "Execution" 
 (Q). 
 
 WRIT OF RIGHT. In practice. The rem- 
 edy appropriate to the case where a party 
 claims the specific recovery of corporeal 
 hereditaments in fee simple, founding his 
 title on the right of property, or mere right, 
 arising either from his own seisin or the 
 seisin of his ancestor or predecessor. Fitzh. 
 Nat. Brev. 1 (B) ; 3 Bl. Comm. 391. 
 
 At common law, a writ of right lies only 
 against the tenant of the freehold demand- 
 ed. 8 Cranch (U. S.) 239. 
 
 This writ brings into controversy only 
 the rights of the parties in the suit; and a 
 defense that a third person has better title 
 will not avail. 7 Wheat. (U. S.) 27; 3 
 Pet. (17. S.) 133; 3 Bing. (N. S.) 434; 4 
 Bing. m. S.) 711; 5 Bing. (N. S.) 161; 4 
 Scott, 209; 6 Scott, 435, 738; 6 Adol. & E. 
 103; 1 H. Bl. 1; 3 Taunt. 167; 5 Taunt. 326; 
 
 1 Marsh. 68; 2 Bos. & P. 570; 4 Bos. & P. 
 64; 4 Taunt. 572; 2 W. Bl. 1261; 2 Car. & 
 P. 187, 271; 8 Cranch (U. S.) 229; 2 Wheat. 
 (U. S.) 306; 11 Me. 312; 7 Wend. (N. Y.) 
 250; 3 Bibb (Ky.) 57; 3 Rand. (Va.) 563; 
 
 2 J. J. Marsh. (Ky.) 104; 2 A. K. Marsh. 
 (Ky.) 396; 1 Dana (Ky.) 410; 2 Leigh 
 (Va.) 1; 4 Mass. 64; 17 Mass. 74. 
 
 WRIT OF SUMIVIONS. In ordinary ac- 
 tions in the English high court, the writ of 
 summons is a writ issued at the Instance 
 of the plaintiff for the purpose of giving the 
 defendant notice of the claim made against 
 him, and of compelling him to appear and 
 answer it if he does not admit it. It is the 
 first step in the action. 
 
 The court of probate had power to cause 
 
WRIT OF TOLL 
 
 (974) 
 
 WYTE 
 
 questions of fact, arising in suits or pro- 
 ceedingc, to be tried by a Jury by means of 
 an issue directed to one of the superior 
 courts of law. Ibe issues were contained 
 in a document called a "writ of summons." 
 Browne, Prob. Prac. 314; Court of Probate 
 Act 1857, § 35. This practice seems no 
 longer applicable. Rules of Court, xxxvi. 
 29. 
 
 WRIT OF TOLL. In English law. The 
 name of a writ to remove proceedings on a 
 writ of right patent from the court baron 
 into the county court. 3 Bl. Comm. Ap- 
 pend. No. 1, § 2. 
 
 WRIT OF 'WASTE. The name of a writ 
 to be issued against a tenant who has com- 
 mitted waste of the premises. There are 
 several forms of this writ. That against a 
 tenant in dower differs from the others. 
 Fitzh. Nat. Brev. 125. See "Waste." 
 
 WRITER OF THE TALLIES. In England. 
 An officer of the exchequer whose duty it 
 was to write upon the! tallies the letters of 
 tellers' bills. 
 
 WRITERS TO THE SIGNET. In Scotch 
 law. Anciently, clerks in office of the sec- 
 retary of state, by whom writs passing the 
 king's signet were prepared. Their duty 
 now is to prepare the warrants of all lands 
 flowing from the crown, and to sign al- 
 most all diligencies of the law affecting the 
 person or estate of a debtor, or for com- 
 pelling implement of decree of superior 
 court. They may act as attorney or agent 
 before court of sessions, and have various 
 privileges. Bell, Diet. "Clerk to Signet." 
 
 WRITING. In the most general sense of 
 the word, "writing" denotes a document, 
 whether manuscript or printed, as opposed 
 to mere spoken words. Writing is essential 
 to the validity of certain contracts and 
 other transactions. Sweet. 
 
 WRITING OBLIGATORY. A bond; an 
 agreement reduced to writing, by which the 
 party becomes bound to perform something, 
 or suffer it to be done. 
 
 A contract under seal. 7 Yerg. (Tenn.) 
 350. 
 
 WRITTEN LAW. One of the two leading 
 
 divisions of the Roman law, comprising the 
 leges, plebiscita, senatus consulta, princi- 
 pum placUa, magistratuum edicta, and re- 
 sponsa pnidentum. Inst. 1. 2. 3. 
 
 Statute law; law deriving its force from 
 express legislative enactment. 1 Bl. Comm. 
 62, 85. I 
 
 WRONG. An injury; a tort; a violation of 
 right. 
 
 In its most usual sense, wrong signifies 
 an injury committed to the person or prop- 
 erty of another, or to his relative rights, 
 unconnected with contract; and these 
 wrongs are committed with or without 
 force. But in a more extended significa- 
 tion, wrong includes the violation of a con- 
 tract. A failure by a man to perform his 
 undertaking or promise is a wrong or in- 
 jury to him to whom it was made. 3 Bl. 
 Comm. 158. 
 
 A public wrong is an act which is inju- 
 rious to the public generally, commonly 
 known by the, name of "crime," "misde- 
 meanor," or "offense;" and it is punishable 
 in various ways, such as indictments, sum- 
 mary proceedings, and, upon conviction, by 
 death, imprisonment, fine, etc. 
 
 Private wrongs, which are injuries to in- 
 dividuals, unaffecting the public. These 
 are redressed by actions for damages, etc. 
 See "Tort." 
 
 WRONGDOER. One who commits an in- 
 jury; a tort feasor. See Dane, Abr. Index. 
 
 WRONGFULLY INTENDING. In plead- 
 ing. Words used in a declaration when, in 
 an action for an injury, the motive of the 
 defendant in committing it can be proved, 
 for then his malicious intent ought to be 
 averred. This is sufficiently done if it be 
 substantially alleged, in general terms, as 
 wrongfully intending. 3 Bouv. Inst, note 
 2871. 
 
 WRONGOUS, or WRANGOUS. In Scotch 
 law. Wrongful; unlawful; as wrongous im- 
 prisonment. Ersk. Princ. 4. 4. 25. 
 
 WULTAVA, or WULITAVA (Law Lat.) 
 In old European law. A disfiguring of the 
 face. Addit. ad L. Prison, tit. 3, § 16; Spel- 
 man. 
 
 WULVESHEVED, or WULFESHEOFOD 
 (Saxon, from wulfe, wolf, and heofod, head). 
 In Saxon law. Wolf's head; a term applied 
 to an outlaw. 
 
 WURTH (Saxon). In Saxon law. Worthy; 
 competent; capable. Atheswurthe, worthy 
 of oath ; admissible or competent to be sworn. 
 Spelman. See "Othesworthe." 
 
 WYTE. In old English law. Acquittance 
 or immunity from amercement. Fleta, lib. 1, 
 c. 47, §§ 15-17. 
 
XENODOCHIUM 
 
 (975) 
 
 YEAR BOOKS 
 
 X-Y-Z 
 
 XENODOCHIUM. In the civil and old Eng- 
 glish law. An inn allowed by public license 
 for the entertainment of strangers and other 
 guests. Calv. Lex.; Cowell. 
 
 A hospital; a place where sick and infirm 
 persons are taken care of. Cowell. 
 
 XENODOCHY. Reception of strangers; 
 hospitality. Enc. Lond. ' 
 
 XYLON. A punishment among the Greeks 
 answering to our stopks. Wharton. 
 
 YA ET NAY. In old records. Mere asser- 
 tion and denial, without oath. Cowell; 
 Blount. 
 
 Y A R D LA N D. In old English law". A quan- 
 tity of land containing twenty acres. Co. 
 Litt. 69a. 
 
 YCONOMUS, orOECONOMUS (Law Lat.) 
 In old records. An advocate or defender; 
 a patron. Cowell. 
 
 YEAR. The period in which the revolu- 
 tion of the earth around the sun, and the ac- 
 Cbmpanying changes in the order of nature, 
 are completed. 
 
 The civil year commences immediately 
 ical, the latter being composed of three hun- 
 dred and sixty-five days, five hours, forty- 
 eight seconds and a fraction, while the 
 former consists sometimes of three hun- 
 dred and sixty-five days, and at others, in 
 leap years, of three hundred and sixty-six 
 days. 
 
 The year is divided into half-year, which 
 roTisists, according to Coke (Litt. 135b), of 
 one hundred and eighty-two days; and quar- 
 ter of a year, which consists of ninety-one 
 day of December, — that is, the first moment 
 further divided into twelve months. 
 
 The civil year differs from the astronom- 
 ifter 12 o'clock at night of the thirty-first 
 (lays (Id.; 2 RoUe. Abr. 521, lib. 40). It is 
 of the first day of January, — and ends at 
 midnight of the thirty-first day of Decem- 
 ber twelve months thereafter. See Comyn, 
 Dig. Annus; 2 Bl. Comm. 140, note; Chit. 
 Prac. Index, "Time." 
 
 In New York It is enacted that whenever 
 the term "year" or "years" is or shall be 
 used in any statute, deed, verbal or writ- 
 ten contract, or any public or private in- 
 strument whatever, the year intended shall 
 be taken to consist of three hundred and 
 sixty-five days; half a year, of a hundred 
 ard eighty-two days; and a quarter of a 
 year, of ninety-two days; and the day of a 
 leap year, and the day immediately preced- 
 ing, if they shall occur in any period so to 
 be computed, shall be reckoned together as 
 one day. Rev. St. pt. 1, c. 19, tit. 1, § 3. 
 
 YEAR AND DAY. A period of time much 
 recognized in law. 
 It is not in all cases limited to a precise 
 
 calendar year. In Scotland, in computing 
 the terra, the year and day is to be reck- 
 caied, not by the number of days which go 
 to make up a year, but by the return of the 
 day of the next year that bears the same 
 denomination. 1 Bell, Comm. (5th Ed.) 
 721; 2 Stair, Inst. 842. See Bac. Abr. De- 
 scent (13); Brsk. Inst. 1. 6. 22. In the law 
 of all the Gothic nations, it meant a year 
 and six weeks. 
 
 It is a term frequently occurring; for ex- 
 ample, in case of an estray, if the owner 
 challenged it not within a year and a day, 
 it belonged to the lord. 5 Coke. 108. So of 
 a wreck. 2 Inst. 168. This time is given 
 to prosecute appeals and for actions in a 
 writ of right, and, after entry or claim, to 
 avoid a fine. Plowd. 357a. And if a per- 
 son wounded die in that time, it is murder. 
 3 Inst. 53; 6 Coke, 107. So, when a judg- 
 ment is reversed, a party, notwithstanding 
 the lapse of time mentioned in the statute 
 of limitations, pending that action, may com- 
 mence a fresh action within a year and a 
 day of such reversal. 3 Chit. Prac. 107. 
 Again, after a year and a day have elapsed 
 from the day of signing a judgment, no exe- 
 cution can be issued till the judgment he 
 revived by scire facias. Bac. Abr. "Execu- 
 tion" (H) ; Tidd. Prac. 1108. 
 
 Protection lasted a year and a day; and if 
 a villein remain from his master a year and 
 a day in an ancient demesne, he is free. 
 Cunningham. If a person is afraid to enter 
 on his land, he may make claim as near as 
 possible, which is force for a year and a 
 day. 3 Bl. Comm. 175. In case of prize, 
 if no claim is made within a year and a 
 day, the condemnation is to captors as of 
 course. 2 Gall. (U. S.) 388. So, in case 
 of goods saved, the court retains them till 
 claim, if made within a year and a day, but 
 not after that time. 8 Pet. (U. S.) 4. 
 
 The same period occurs in the civil law, 
 in Book of Feuds, the Laws of the Lom- 
 bards, etc. 
 
 YEAR BOOKS. Books of reports of cases 
 in a regular series from the reign of the 
 English King Edward II., inclusive, to the 
 time of Henry VIII., which were taken by 
 the prothonotaries or chief scribes of the 
 courts, at the expense of the crown, and 
 published annually, whence their name 
 "Year Books." They consist of eleven parts, 
 namely: Part 1. Maynard's Reports temp. 
 Edw. II.; also divers Memoranda of the Ex- 
 chequer temp. Edw. I. Part 2. Reports in 
 the first ten years of Edw. III. Part 3. Re- 
 ports from 17 to 39 Edw. III. Part 4. Re- 
 ports from 40 to 50 Edw. III. Part 5. Liber 
 Assisarum; or. Pleas of the Crown temp. 
 Edw. III. Part 6. Reports temp. Hen. rv. 
 and Hen. V. Parts 7 and 8. Annals; or. Re- 
 ports of Hen. VI. during his reign, in two 
 vols. Part 9. Annals of Edw. IV. Part 10. 
 
YEAR, DAY, ANtt WASTE 
 
 (976) 
 
 ZYGOSTATES 
 
 Long Quinto; or, Reports in 5 Edw. IV. 
 Part 11. Cases in the reigns of Edward V., 
 Rich. III., Hen. VII., and Hen. VIII. 
 
 YEAR, DAY, AND WASTE (Lat. ore?iM.t, 
 dicf!, el lasfuin). A part of lung's preroga- 
 tive, whereby he talces the profits of the 
 lands and tenements of those attainted of 
 petty treason or felony, for a year and a 
 day, but, in the end, may waste the tene- 
 ments, destroy the houses, root up the 
 woods, gardens, and pasture, and plough up 
 the meadows (except the lord of the fee 
 agree with him for redemption of such 
 waste) ; after which the lands are to be re- 
 stored to the lord of the fee. Staundf. Pre- 
 rog. c. 16, fol. 44. By Magna Gharta, it 
 would appear that the profits for a year and 
 a day were given in lieu of the waste. 9 
 Hen. III. c. 22. But 17 Edw. II. declares the 
 king's right to both. 
 
 YEARS, ESTATE FOR. See "Estates." 
 
 YEOMAN. In the United States, this word 
 does not appear to have any very exact 
 meaning. It is usually put as an addition 
 to the names of parties in declarations and 
 indictments. In England it signifies a free 
 man who has land of the value of forty 
 shillings a year. 2 Inst. 668; 2 Dall.(Pa.) 92. 
 
 YEOVEN, or YEVEN. Given (dated). 
 
 YIELD. In the law of real property, to 
 perform a service due by a tenant to his 
 lord. Hence the usual form of reservation 
 of a rent in a lease begins with the words 
 "yielding and paying." 
 
 YIELDING AND PAYING. These words, 
 when used in a lease, constitute a covenant 
 on the part of the lessee to pay the rent 
 (Piatt, Gov. 50; 3 Pa. St. 464; 1 Sid. 447, pi. 
 9; 2 Lev. 206; 3 Term R. 402; 1 Barn. & C. 
 416; 2 Dowl. & R. 670), but whether it be 
 an express covenant or not seems not to be 
 settled (Styles, 387, 406, 451; Sid. 240, 266; 
 2 Lev. 206; T. Jones, 102; 3 Term R. 402). 
 
 In Pennsylvania, it has been decided to 
 be a covenant running with the land. 3 Pa. 
 St. 464. See 1 Saund. 233, note 1; 9 Vt. 191. 
 
 YINGEMAN. A word occurring in the 
 laws of Henry I. (c. 16), which Spelman 
 thinks might be a mistake for Ynglishman, 
 or Englishman. 
 
 YORK, CUSTOM OF. Recognized by 22 & 
 23 Car. II. c. 10, and 1 Jac. II. c. 17. By this 
 custom, the effects of an intestate are divided 
 
 according to the anciently universal rule of 
 pars rationabilis. i Burn, Ecc. Law, 342. 
 
 YORK, STATUTE OF. The name of an 
 English statute, passed 12 Edw. II., A. D. 
 1318, and so called because it was enacted 
 at York. It contains many wise provisions 
 and explanations of former statutes. Barr. 
 Obs. St. 174. There were other statutes 
 made at York in the reign of Edward III., 
 but they do not bear this name. 
 
 YORKSHIRE LAND REGISTRIES. These 
 are regulated by Sts. 2 & 3 Anne, c. 4, 5 
 Anne. c. 18 (6 Anne, c. 20, in the statutes of 
 the realm), as to the West Riding; 6 Anne, 
 c. 35 (or 62), as to the Bast Riding, and 8 
 Geo. II. c. 6. 
 
 ) 
 
 YOUNGER CHILDREN. This phrase, 
 when used in English conveyancing with 
 reference to settlements of land, signifies 
 all such children as are not entitled to the 
 rights of .an eldest son. It therefore in- 
 cludes daughters, even those who are older 
 than the eldest son. Mozley & W. 
 
 ZE (Old Scotch). Ye. Skene de Verb. 
 Sign. voc. "Hom'agium." 
 
 ZE I R (Old Scotch). Year. "Zeir and day." 
 Bell, Diet. 
 
 ZELDE (Old Scotch). A gift or donation. 
 Skene de Verb. Sign. voc. "Herezelda." 
 
 ZETETICK. Proceeding by inquiry. Enc. 
 Lond. 
 
 ZOLL VEREIN. A union Of German states 
 for uniformity of customs, established in 
 1819. It continued until the unification of 
 the German empire, including Prussia, Sax- 
 ony, Bavaria, Wurtenberg, Baden, Hesse- 
 Cassel, Brunswick, and Mecklenburg-Stre- 
 litz, and all intermediate principalities. It 
 has now been superseded by the German 
 empire; and the federal council of the em- 
 pire has taken the place of that of the Zoll 
 Verein. Wharton. 
 
 ZYGOCEPHALUM. In the civil law. A 
 measure or quantity of land. Nov. 17, c. 8. 
 As much land as a yoke of oxen could plow 
 in a day. Calv. Lex. 
 
 ZYGOSTATES. In the civil law. A weigh- 
 er; an officer who held or looked to the bal- 
 ance in weighing money between buyer and 
 seller; an officer appointed to determine con- 
 troversies about the weight of money. 
 Spelman.