Vol. II
DAM. A construction of wood, stone, or other materials, made across a stream of water for the purpose of confining it; a mole.
2. The owner of a stream not navigable, may erect a dam across it, and
employ the water in any reasonable manner, either for his use or pleasure, so
as not to destroy or render useless, materially diminish, or affect the
application of the water by the proprietors below on the stream. He must not
shut the gates of his dams and detain the water unreasonably, nor let it off in
unusual quantities to the annoyance of his neighbors. 4 Dall.
211; 3 Caines, 207; 13
3. When one side of the stream is owned by one person and the other by
another, neither, without the eonsent of the other, can build a dam which
extends beyond the filum aqua, thread of the river, without committing a trespass.
Cro. Eliz. 269; 12 Mass. 211; Ang. on W. C. 14, 104, 141; vide Lois des Bat. P.
1, c. 3, s. 1, a. 3; Poth. Traite du Contrat de Societe, second app. 236; Hill.
Ab. Index, h. t.; 7 Cowen, R. 266; 2 Watts, R. 327; 3 Rawle, R. 90; 17 Mass. R.
289; 5 Pick. R. 175; 4
DAMAGE, torts. The loss caused by one person to another, or to his property, either with the design of injuring him, with negligence and carelessness, or by inevitable accident.
2. He who has caused the damage is bound to repair it and, if he has done it maliciousiy, he may be. compelled to pay beyond the actual loss. When damage occurs by accident, without blame to anyone, the loss is borne by the owner of the thing injured; as, if a horse run away with his rider, without any fault of the latter, and injure the property of another person, the injury is the loss of the owner of the thing. When the damage happens by the act of God, or inevitable accident, as by tempest, earthquake or other natural cause, the loss must be borne by the owner. Vide Com. Dig. h. t.; Sayer on Damages.
3. Pothier defines damage (dommiges et interets) to be the loss which some one has sustained, and the gain which he has failed of making. Obl. n. 159.
DAMAGE FEASANT, torts. This is a corruption of the French words
faisant dommage, and signifies doing damage. This term is usually applied to
the injury which animals belonging to one person do upon the land of another,
by feeding there, treading down his grass, corn, or other production of the earth.
3 Bl. Com. 6;
DAMAGED GOODS. In the language of the customs, are goods subject to duties, which have received some injury either in the voyage home, or while bonded in warehouses. See Abatement, merc. law.
DAMAGES, practice. The indemnity given by law, to be recovered from a wrong doer by the person who has sustained an injury, either in his person, property, or relative rights, in consequence of the acts of another.
2. Damages are given either for breaches of contracts, or for tortious acts.
3. Damages for breach of contract may be given, for example, for the non-performance of a written or verbal agreement; or of a covenant to do or not to do a particular thing.
4. As to the measure of damages the general rule is that the delinquent shall answer for all the injury which results from the immediate and direct breach of his agreement, but not from secondary and remote consequences.
5. In cases of an eviction, on covenant of seisin and warranty, the rule
seems to be to allow the consideration money, withinterest and costs. 6 Watts
& Serg. 527; 2 Dev. R. 30; 3 Brev. R. 458. See 7 Shepl. 260; 4 Dev. 46. But
in
6. In estimating the measure of damages sustained in consequence of the acts
of a common carrier, it frequently becomes a question whether the value of the
goods at the place of embarkation or the port of destination is the rule to
establish the damages sustained. It has been ruled that the value at the port
of destination is the proper criterion. 12 S. & R. 186;. 8 John. R. 213; 10
John. R. 1; 14 John. R. 170; 15 John. R. 24. But contrary decisions have taken
place. 3 Caines, R. 219 4 Hayw. R. 112; and see 4
7. Damages for tortious acts are given for acts against the person, as an assault and battery against the reputation, as libels and slander, against the property, as trespass, when force is used; or for the consequential acts of the tort-feasor, as, when a man, in consequence of building a dam on his own premises, overflows his neighbor's land; or against the relative rights of the party injured, as for criminal conversation with his wife.
8. No settled rule or line of distinction can be marked out when a
possibility of damages shall be accounted too remote to entitle a party to
claim a recompense: each case must be ruled by its own circumstances. Ham. N.
P. 40; Kames on Eq. 73, 74. Vide 7 Vin. Ab. 247; Yelv. 45, a;
9. Damages for torts are either compensatory or vindictive. By compensatory
damages is meant such as are given morely to recompense a party who has
sustained a loss in consequence of the acts of the defendant, and where there
are no circumstances to aggravate the act, for the purpose of compensating the
plaintiff for his loss; as, for example, Where the defendant had caused to be
seized, property of A for the debt of B, when such property was out of A's
possession, and there appeared reason to believe it was B's. Vindictive damages
are such as are given against a defendant, who, in addition to the trespass,
has been guilty of acts of outrage and wrong which cannot well be measured by a
compensation in money; as, for example, where the defendant went to A's bouse,
and with insult and outrage seized upon A's property, for a debt due by B, and
carried it away, leaving A's family in distress. Sedgw. on Dam. 39; 2 Greenl.
Ev. §253; 1 GIllis. 483; 12
10. In cases of loss of which have been insured from maritime dangers, when an adjustment is made, the damages are settled by valuing the property, not according to prime cost, but at the price at which it may be sold at the time of settlling the average. Marsh. Inst. B. 1, c. 14, s. 2, p. 621. See Adjustment; Price.
DAMAGES, EXCESSIVE. Such damages as are unreasonably great, and not warranted by law.
2. The damages are excessive in the following cases: 1. When they are
gre-ater than is demanded by the writ and declaration. 6 Call 85; 7 Wend. 330.
2. When they are greater than is authorized by the rules and principles of law,
as in the case of actions upon contracts, or for torts done to property, the
value of which may be ascertained by evidence. 4
3. But in actions for torts to the person or reputation of the plaintiff,
the damages will not be considered excessive unless they are outrageous. 2 A.
K. Marsh 365; Hard. 586; 3 Dana, 464; 2 Pick. 113; 7 Pick. 82; 9 John. 45; 10
John. 443; 4
4. When the damages are excessive, a new trial will be granted on that ground.
DAMAGES INADEQUATE. Such as are unreasonably low, and less than is required by law.
2. Damages are inadequate, when the plaintiff sues for a breach of contract, and the damages given are less than the amount proved. 9 Pick. 11.
3. In actions for torts, the smallness of damages cannot be considered by
the court. 3 Bibb, 34. See 11
4. In a proper case, a new trial will be granted on the ground of inadequate damages.
DAMAGES ON BILLS OF EXCHANGE, contracts. A penalty affixed by law to the non-payment of a bill of exchange when it is not paid at maturity, which the parties to it are obliged to pay to the holder.
2. The discordant and shifting regulaaions on this subject which have been
enacted in the several states, render it almost impossible to give a correct
view of this subject. The drawer of a bill of exchange may limit the amount of
damages by making a memorandum in the bill, that they shall be a definite sum;
as, for example, "In case of non-acceptance or non-payment, reexchange and
expenses not to exceed ___________ dollars. 1 Bouv. Inst. n. 1133. The
following abstract of the laws of several of the
3. -
4. - 2. Damages on protested bills drawn on on person out of the
5. - Arkansus. 1. It is provided by the Act of February 28, 1838, s. 7, Ark. Rev. Stat. 150, that "every bill of exchange expressed to be for value received, drawn or negotiated within this state, payable after date, to order or bearer, which shall be duly presented for acceptance or payment, and protested for non-acceptance or non-payment, shall be subject to damages in the following cases: first, if the bill have been drawn on any person at any place within this state, at the rate of two per centum on the principal sum specified in the bill; second, if the bill shall be drawn on any person, and payable in any of the states of Alabama, Louisiana, Mississippi, Tennessee, Kentucky, Ohio, Indiana, Illinois, and Missouri, or any point on the Ohio river, at the rate of four per centum on the principal sum in such bill specified: third, if the bill shall have been drawn on auy person, and payable at any place within the Iimits of the United States, not hereinbefore expressed, at the rate of five per centum on the principal sum specified in the bill: fourth, if the bill shall have been drawn on any person, and payable at any point or place beyond the limits of the United States, at the rate of ten per centum on the sum specified in the bill.
6. - 2. And by the 8th section of the same act, if any bill of exchange expressed to be for value received, and made payable to order or bearer, shall be drawn on any person at any place within this state, and accepted and protested for non-payment, there shall be allowed and paid to the holder, by the acceptor, damages in the following cases: first, if the bill be drawn by any person at any place within this sate, at the rate of two per centum on the principal sum therein specified: second, if the bill be drawn at any place without this state, but within the limits of the United States, at teh rate of six per centum on the sum therein specified: third, if the bill be drawn on any person at any place without the limites of the United Sates, at the rate of ten per centum on the sum therein specified. And, by sect 9, in addition to the damages allowed inthe two preceding sections to the holder of any bill of exchange protested for non-payment or nonacceptance, he shall be entitled to costs of protest, and interest at the rate of ten per centum per annum, on the amount specified in the bill, from the date of teh protest until the amount of the bill shall be paid."
7. -
8. - 2. When the bill is drawn on person out of the
9. -
10. -
11. - 2. When drawn upon a person out of the
12. -
13. - 2. When drawn on a person in another state, territory, or district,
five per cent. 3. When drawn on a person out of the
14. -
15. - 2. When on a person in a foreign country, damages are given at the rate of ten per cent. per ann. from the date of the bill until paid, but not more than eighteen months interest to be collected. 2 Litt. 101.
16. -
17. By the second section of the same act it is provided that such damages shall be in lieu of interest, charge of protest, and all other charges, incurred previous to the time of giving notice of non-acceptance or non-payment; but the principal and damages shall bear interest thereafter.
18. By section 3, it is enacted, that if the contents of such bill be expressed in the money of account of the United States, the amount of the principal and of the damages herein allowed for the non-acceptance or non-payment shall be ascertained and determined, without any reference to the rate of exchange existing between this state and the place on which such bill shall have been drawn, at the time of the payment, on notice of non-acceptance or non- payment.
19. -
20. - 2. Out of the
21.
22. - 2. When it is drawn on any "person, company, or society, or
corporation in any other of the
24. - 3. If the bill be drawn on a "foreign country," fifteen per cent. damages are allowed, and the expense of purchasing a new bill as above, besides interest and costs of protest. See Act of 1785, c. 88.
25. -
26. - 2. When drawn or endorsed within the state and payable out of it,
within the United States, the rule is as follows: in addition to the contents
of the bill, with interest and costs, if payable within the states of
Wisconsin, Illinois, Indiana, Ohio, and New York, three per cent. on the
contents of the bill if payable within the states of Missouri, Kentucky, Maine,
New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New Jersey,
Pennsylvania, Delaware, Maryland, Virginia, or the District of Columbia, five
per centum; if payable elsewhere in the United States, out of Michigan, ten per
cent.
27. - 3. When the bill is drawn within this state, and payable out of the
28. -
29. - 2. When drawn on a person in another state or territory, no damages
are given.
30. -
31. - 2. When on another state or territory, ten per cent. Rev. Code, 1835, §8, cl. 2, p. 120. 3. When on a person out of the Unted States, twenty per cent. Rev. Code, 1835, §8, cl. 3, p. 120.
32. -
33. -
34. - §2. "The damages, which, by this act, are to be recovered upon any bill of exchange, shall be in lieu of interest and all other charges, except the charges of protest, to the time when notice of the protest and demand of psyment shall have been given and made, aforesaid; and the amount of such bill and of the damages payable thereon, as specified in this act, shall be ascertained and determined by the rate, of exchange, or value of the money or currency mentioned in such bill, at the time of notice of protest and demand of payment as before mentioned."
35. -
36. - 2. The damages which, by this act, are to be recovered upon any bill of exchange, shall be in lieu of interest and all other charges, except charges of protest, to the time when notice of the protest and demand of payment shall have been given and made as aforresaid. Carr. & Nich. Comp. 125; Act of 1827, c. 14.
DAMAGES, DOUBLE or TREBLE, practice. In cases where a statute gives a
party double or treble damages, the jury are to find single damages, and the
court to enhance them, according to the statute Bro. Ab. Damages, pl. 70; 2
Inst. 416; 1 Wils. 126; 1
DAMAGES, GENERAL, torts. General damages are such as the law implies to have accrued from the act of a tort-feasor. To call a man a thief, or commit an assault and battery upon his person, are examples of this kind. In the first case the law presumes that calling a man a thief must be injurious to him, with showing that it is so. Sir W. Jones, 196; 1 Saund. 243, b. n. 5; and in the latter case, the law imples that his person has been more or less deteriorated, and that the injured party is not required to specify what inury he has sustained, nor to prove it. Ham. N. P. 40; 1 Chit. Pl. 386; 2 L.R. 76; 4 Bouv. Inst. n. 3584.
DAMAGES, LAYING, pleading. In personal and mixed actions, (but not in penal actions, for obvious reason,) the declaration must allege, in conclusion, that the injury is to the damage of the plaintiff; and must specify the amount of damages. Com. Dig. Pleader, C 84; 10 Rep. 116, b.
2. In personal actions there is a distinction between actions that sound in damages, and those that do not; but in either of these cases, it is equally the practice to lay damages. There is, however, this difference: that, in the former case, damages are the main object of the suit, and are, therefore, always laid high enough to cover the whole demand; but in the latter, the liquidated debt, or the chattel demanded, being the main object, damages are claimed in respect of the detention only, of such debt or chattel; and are, therefore, usually laid at a small sum. The plaintiff cannot recover greater damages than he has laid in theconclusion of his declaration. Com. Dig.Pleader, C 84; 10 Rep. 117, a, b; Vin. Ab. Damages, R.
3. In real actions, no damages are to be laid, because, in these, the demand is specially for the land withheld, and damages are in no degree the object of the suit. Steph. Pl. 426; 1 Chit. Pl. 397 to 400.
DAMAGES, LIQUIDATED, contracts. When the parties to a contract stipulate for the payment of a certain su, as a satisfaction fixed and agreed upon by them, for the not doing of certain things particularly mentioned in the agreement, the sum so fixed upon is called liquidated damages. (q.v.) It differ from a penalty, becasue the latter is a forfeiture from which the defaulting party can be relieved. An agreement for liquidated damages can only be when there is an engagement for the performance of certain acts, the not doing of which would be an injury to one of the parties; or to guard against the performance of acts which, if done, would also be injurious. In such cases an estimate of the damages may be made by a jury, or by a previous agreement between the parties, who may foresee the consequences of a breach of the engagement, and stipulate accordingly. 1 H. Bl. 232; and vide 2 Bos. & Pul. 335, 350-355; 2 Bro. P. C. 431; 4 Burr, 2225; 2 T. R. 32. The civil law appears to agree with these principles. lnst. 3, 16, 7; Toull. liv. 3, n. 809; Civil Code of Louis. art. 1928, n. 5; Code Civil, 1152, 1153.
2. It is to be observed, that the sum fixed upon will be considered as
liquidated damages, or a penalty, according to the intent of the parties, and
the more use of the words - "penalty," &c "forfeiture,"
or "liquidated damages," will not be regarded is at all decisive of
the question, if the instrument discloses, upon the whole, a different intent.
2 Story, Eq. §1318; 6 B.& C. 224; 6 Bing. 141; 6 Iredell, 186; 3 Shepl.
273; 2
3. Rules have been adopted to ascertain whether such sum so agreed upon shall be considered a penalty or liquidated damages, which will be here enumerated by considering, first, those cases where it has been considered as a penalty - and, secondly, where it has been considered as liquidated damages.
4. - 1. It has been treated as penalty, 1st. where the parties in the
agreement have expressly declared the sum intended as a forfeiture or a
penalty, and no other intent can be collected from the instrument. 2 B. &
P, 340, 350, 630; 1 McMullan, 106; 2
5. - 2. The sum agreed upon has been considered as liquidated damages, 1st.
Where the damages are uncertain, and are not capable of being ascertained by
any satisfactory and known rule. 2 T. R. 32; 1 Alc. & Nap. 389; 2 Burr,
2225; 10 Ves. 429; 3 M. & W. 545; 8
DAMAGES, SPECIAL, torts. Special damages are such as are in fact sustained, and are not implied by law; these are either superadded to general damages, arising from an act injurious in itself, as when some particular loss arises. from the uttering of slanderous words, actionable in themselves, or are such as arise from an act indifferent and not actionable in itself, but injurious only in its consequences, as when the words become actionable only by reason of special damage ensuing. To constitute special damage the legal and natural consequence must arise from the tort, and not be a mere wrongful act of a third person, or a remote consequence. 1 Camp. 58; Ham. N. P. 40; 1 Chit. Pl. 385, 6.
DAMAGES, SPECIAL, pleading. As distinguished from the gist of the action, signify that special damage which is stated to result from the gist; as, if a plaintiff in an action of trespass for breaking his close, entering his house, and tossing his goods about, were to state that by means of the damage done to his house, he was obliged to seek lodging elsewhere.
2. Sometimes the special damage is said to constitute the gist of the action itself; for example, in an action wherein the plaintiff declares for slanderous words, which of themselves are not a sufficient ground or foundation for the suit, if any particular damage result to the plaintiff from the speaking of them, that damage is properly said to be the gist of the action.
3. But whether special damage be the gist of the action, or only collatercal to it, it must be particularly stated in the declaration, as the plaintiff will not otherwise be permitted to go into evidence of it at the trial, because the defendant cannot also be prepared to answer it. Willes, 23. See Gist.
DAMAGES, UNLIQUIDATED. The unascertained amount which is due to a person by another for an injury to the person, property, or relative rights of the party injured. These damages, being unknown, cannot be set off against the claim which the tort feasor has against the party injured. 2 Dall. 237; S. C. 1 Yeates, 571; 10 Serg. & Rawle 14; 5 Serg. & Rawle 122.
DAMNIFICATION. That which causes a loss or damage to a society, or to one who has indemnified another. For example, when a society has entered into an obligation to pay the debt of the principal, and the principal has become bound in a bond to indemuify the surety, the latter has suffered a damnification the moment he becomes liable to be sued for the debt of the principal - and it has been held in an action brought by the surety, upon a bond of indemnity, that the terror of suit, so that the surety dare not go about his business, is a damnification. Ow. 19; 2 Chit. R. 487; 1 Saund. 116; 8 East, 593; Cary, 26.
2. A judgment fairly obtained against a party for a cause against which another person is bound to indemnify him, with timely notice to that person of the bringing of the action, is admissible as evidence in an action brought against the guarantor on the indemnity. 7 Cranch, 300, 322. See F. N. B. Warrantia Chartae; Lib. Int. Index, Warrantia Chartae; 2 S. & R. 12, 13.
DAMNIFY. To cause damage, injury or loss.
DAMNOSA HAEREDITAS. A name given by Lord Kenyon to that species of property of a bankrupt, which, so far from being valuable, would be a charge to the creditors for example, a term of years, where the rent would exceed the revenue.
2. The assignees are not bound to take such property, but they must make their election, and, having once entered into possession, they cannot afterwards abandon the property. 7 East, R. 342; 3 Campb. 340.
DAMNUM ABSQUE INJURIA. A loss or damage without injury.
2. There are cases when the act of one man may cause a damage or loss to another, and for which the latter has no remedy; he is then said to have received damnum absque injuria; as, for example, if a man should set up a school in the neighborhood of another school,and, by that means, deprive the former of its patronage; or if a man should build a mill along side of another, and consequently reduce his custom. 9 Pick. 59, 528.
3. Another instance may be given of the case where a man using proper care and diligence, while excavating for a foundation, injures the adjoining house, owing to the unsuitable materials used in such house; here the injury is damnum absque injuria.
4. When a man slanders another by publishing the truth, the person slandered is said to have sustained loss without injury. Bac. Ab. Actions on the Case, C Dane's Ab. Index, h. t.
DAMNUM FATALE, civil law. Damages caused by a fortuitous event, or inevitable accident; damages arising from the act of God. Among these were included losses by shipwreck, lightning, or other casualty; also losses by pirates or by vis major, by fire, robbery, and burglary; but theft was not numbered among these casualties.
2. In general, bailees are not liable for such damages. Story, Bailm. p. 471.
DANGERS OF THE SEA, mar. law. This phrase is sometimes put in bills of lading, the master of the ship agreeing to deliver the goods therein mentioned to the consignee, who is named, the dangers of the sea excepted. Sometimes the phrase is "Perils of the Sea." (q. v.) See 1 Brock. R. 187.
DARREIN. A corruption of the French word "dernier," the last. It is sometimes used as, "darrein continuance," the last continuance. When any matter has arisen in discharge of the defendant in action, he may take advantage of it, provided he pleads itpuis darrein continuance; for if he neglect to do so, he waives his right. Vide article darrein continuance.
DARREIN SEISIN. The name of a plea to a writ of entry or a writ of right. 3 Met. 175.
DATE. The designation or indication in an instrument of writing, of the time, and usually 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 contrary appears, that it was executed at the place of the date. Plowd. 7 b., 31 H. VI. This word is derived from the Latin datum, because when deeds and agreements were written in that language, immediately before the day, month and year in which they were made, was set down, it was usual to put the word datum, given.
2. All writings ought to bear a date, and in some it is indispensable in order to make them valid, as in policies of insurance; but the date in these instruments is not inserted in the body of the writing because as each subscription makes a separate contract, each underwriter sets down the day, month and year he makes his subscription. Marsh. Ins. 336.
3. Deeds, and other writings, when the date is an impossible one, take effect from the time of deliver; the presumption of law is, that the deed was dated on the day it bears date, unless, as just mentioned, the time is impossible; for example, the 32d day of January.
4. The proper way of dating, is to put the day, month, and year of our Lord; the hour need not be mentioned, unless specially required; an instance of which may be taken from the Pennsylvania Act of the 16th June, 1836, sect. 40, which requires the sheriff, on receiving a writ of fieri facias, or other writ of execution, to endorse thereon the day of the month, the year, and the hour of the day whereon he received the same.
5. In public documents, it is usual to give not only the day, the month, and
the year of our Lord, but also the year of the
DATION, civil law, contracts. 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.
2. Dation in payment, datio in solutionem, which was the giving one thing in payment of another which was due, corresponds nearly to the accord and satisfaction of the common law.
DATION EN PAIEMFNT, civil law. This term is used in
2. It is somewhat like the accord and satisfaction of the common law. 16 Toull. n. 45 Poth. Vente, U. 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. 1st. The contract of sale is complete by the mere agreement of the parties the dation en paiement requires a delivery of the thing given. 2d. When the debtor pays a certain sum which he supposed he was owing, and be 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. 3d. He who has in good faith sold a thing of which he believed himself to be the owner, is not precisely required to transfer the property of it to the buyer and, while he is not troubled 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 transfers to the creditor the property in the thing which he has agreed to take in, payment and if the thing thus delivered be the property of another, it will not operate as a payment. Poth. Vente, n. 602, 603, 604.
DATIVE. That which may be given or disposed of at will and pleasure. It sometimes means that which is not cast upon the party by the law, or by a testator, but which is given by the magistrate; in this sense it is that tutorship is dative, when the tutor is appointed by the malistrate. Lec. Elem. §239; Civ. Code of L. art. 288, 1671.
DAUGHTER. An immediate female descendant. See Son.
DAUGHTER-IN-LAW. In Latin, nurus, is the wife of one's son.
DAY. A division of time. It is natural, and then it consists of
twenty-four hours, or the space of time which elapses while the earth makes a
complete revolution on its axis; or artificial, which contains the time, from
the rising until the setting of the sun, and a short time before rising and
after setting. Vide Night; and
2. Days are sometimes calculated exclusively, as when an act required that an appeal should be made within twenty days after a decision. 3 Penna. 200; 3 B. & A. 581; 15 Serg. & Rawle, 43. In general, if a thing is to be done within such a time after such a fact, the day of the fact shall be taken inclusively. Hob. 139; Doug. 463; 3 T. R. 623; Com. Dig. Temps, A; 3 East, 407.
3. The law, generally, rejects fractions of days, but in some cases it takes notice of such parts. 2 B. & A. 586. Vide Date.
4. By the custom of some places, the word day's is understood to be working days, and not including Sundays. 3 Espin. N. P. C. 121. Vide, generally, 2 Chit. Bl. 141, note 3; 1 Chit. Pr. 774, 775; 3 Chit. Pr. 110; Lill. Reg. h. t; 1 Rop. Leg. 518; 15 Vin. Ab. 554; Dig. 33, 1, 2; Dig. 50, 16, 2, 1; Id. 2, 12, 8; and articles Hour; Month; Year.
DAY BOOK, mer. law. An account 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, English practice. A rule or order 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; a prisoner is enabled to quit the prison, for more or less time, by three kinds of rules, namely: 1. The day-rule. 2. The term-rule; and 3. The rules. See 9 East, R. 151.
DAYS IN BANK,
DAYS OF GRACE. Certain days after the time limited by the bill or
note, which the acceptor or drawer has a right to demand for payment of the
bill or note; these days were so called because they were formerly gratuitously
allowed, but now, by the custom of merchants, sanctioned by decisions of courts
of justice, they are demandable of right. 6 Watts & Serg. 179. The number
of these in the
2. In
3. In
DAYS OF THE WEEK. These are Sunday, Monday, Tuesday, Wednesday, Thursday, Friday, Saturday. See Week.
2. The court will take judicial notice of the days of the week - for example, when a writ of inquiry was stated in the pleadings to have been executed on the fifteenth of June, and, upon an examination, it was found to be Sunday, the proceeding was held to be defective. Forteso. 373; S. C. Str. 387.
DE. A preposition used in many Latin phrases - as, de bone esse, de bonis non.
DE ARBITRATIONE FACTA, WRIT. In the ancient English law, when an action was brought for the same cause of action which had been before settled by arbitration, this writ was brought. Wats. on Arb. 256.
DE BENE ESSE, practice. A technical phrase applied to certain proceedings which are deemed to be well done for the present, or until an exception or other avoidance, that is, conditionally, and in that meaning the phrase is usually accepted. For example, a declaration is filed or delivered, special bail put in, witness examined, &c. de bene esse, or conditionally; good for the present.
2. When a judge has a doubt as to the propriety of finding a verdict, h(, may direct the jury to find one de bene esse; which verdict, if the court shall afterwards be of opinion it ought to have been found, shall stand. Bac. Ab. Verdict, A. Vide 11 S. & R. 84.
DE BONIS NON. This phrase is used in cases where the goods of a deceased person have not all been administered. When an executor or administrator has been appointed, and the estate is not fully settled, and the executor or administrator is dead, has absconded, or from any cause has been removed, a second administrator is appointed to to perform the duty remaining to be done, who is called an administrator de bonis non, an administrator of the goods not administered and he becomes by the appointment the only representative of the deceased. 11 Vin. Ab. 111; 2 P. Wms. 340; Com. Dig. Administration, B I; 1 Root's 11. 425. And it seems that though the estate has been distributed, an administrator de nonis non may be appointed, if debts remain unsatisfied. 1 Root's R. 174.
DE BONIS PROPRIIS. Of his own goods. When an executor or administrator has been guilty of a devastavit, (q. v.) he is responsible for the loss which the estate has sustained, de bonis propriis. He may also subject himself to the payment of a debt of the deceased, de bonis propriis, by his false plea, when sued in a representative as, if he plead plene administravit, and it be found against him, or a release to himself, when false. In this latter case the judgment is de bonis testatoris si, et si non de bonis propriis. 1 Saund. 336 b, n. 10 Bac. Ab. Executor, B 8.
DE CONTUMACE CAPIENDO. The name of a writ issued for the arrest of a defendant who is in contempt of the ecclesiastical court. 1 Nev. & Per. 680, 685, 689; 5 Dowl. 213, 646.
DE DOMO REPARANDA. The name of an ancient common law writ, by which
one tenant in common might compel his co-tenant to concur in the expense of
repairing the property held in common. 8 B. & C. 269; 1 Tho.
DE DONIS, STATUTE. The name of an English statute passed the 13 Edwd.
DE FACTO, i. e. in deed. A term used to denote a thing actually done;
a president of the
DE HOMINE REPLEGIANDO. The name of a writ which is used to replevy a man out of prison, or out of the custody of a private person. See Homine replegiando; Writ de homine replegiando.
DE INJURIA, pleading. The name of a replication in an action for a tort, that the defendant committed the trespasses or crrievances of his own wrong, without the cause by,him in his plea alleged.
2. The import of this replication is to insist that the defendant committed
the act complained of, from a motive and impulse altogether different from that
insisted on by the plea. For example, if the defendant has justified a battery
under a writ of capias, having averred, as he must do, that the arrest was made
by virtue of the writ; the plaintiff may rely de injuria sua propria absque
tali causa, that the defendant did the act of his own wrong, without the cause
by him alleged. This replication, then, has the effect of denying the alleged,
motive contained in the plea, and to insist that the defendant acted from
another, which was unlawful, and not in, consequence of the one insisted upon
in his plea. Steph. Pl. 186; 2 Chit. Pl. 523,.642;
3. The form of this replication is, "precludi non, because he says that the said defendant at the same time when, &c., of his own wrong, and without the cause by him in his said second plea alleged, committed the said trespass in the introductory part of that plea, in manner and form as the said plaintiff hath above in his said declaration complained against the said defendant, and this the said plaintiff prays, may be inquired of by the country," &c. This is the uniform conclusion of such a replication. 1 Chit. Pl. 585.
4. The replication de injuria is only allowed when an excuse is offered for personal injuries. 1 B. & P. 76; 5 Johns. R. 112; 4 Johns. 150; 12 Johns. 491. Vide 7 Vin. Ab. 503; 3 Saund. 295, note; 1 Lilly's Reg. 587.
5. In England, where the extent of the general issues has been confined in actions on contracts, and special pleas have become common in assumpsit, it has become desirable, that the plaintiff, who hss but one replication, should put in issue the several numerous allegations which the special pleas were found to contain; for, unless he could do this, he would labor under the hardship of being frequently compelled to admit the greater part of an entirely false story. It became, therefore, important to ascertain whether de injuria could not be replied to cases of this description and, after numerous cases which were presented for adjudication, it was finally settled that de injuria may be replied in assumpsit, when the plea consists of matters of excuse. 3 C.M. &,R. 65; 2 Bing. N. C. 579 4 Dowl. 647.
6. The improper use of de injuria is ground of general demurrer. 2 Lev. 65; 4 Tyrw. 771. But if the defendant do not demur, the objection will not avail after verdict. Hob. 76: Sir T. Raym. 50.
7. De injuria puts in issue the whole of the defence contained in the plea.
5 B. & A. 420; 11 East, 451; 10 Bing. 157. But if the plea state some
authority in law, which, prima facie, would be a justification of the act
complained of, the plaintiff will not be allowed under the plea of de injuria
to show an abuse of that authority so as to convert the defendant into a tort
feasor ab initio. 1 Bing. 317; 1 Bing. N. S. 387. See 1 Smith's L. C. 53 to 61;
8
DE JUDAISMO, STATUTUM. The name of a statute passed in the reign of Edw. I., which enacted severe and absurd penalties against the Jews. Barr. on Stat. 197.
2. The Jews were exceedingly oppressed during the middle ages throughout
Christendom, and, are so still in some countries. In
3. - In the fifth book of the Decretals, it is provided, that if a Jew have a servant that desireth to be a Christian, the Jew shall be compelled to sell him to a Christian for twelve pence that it shall not be lawful for them to take any Christian to be their servant that they may repair their old synagogues, but not build new - that it shall not be lawful for them to open their doors, or windows on good Friday; that their wives neither have Christian nurses, nor themselves be nurses to Christian women - that they wear different apparel from the Christians, whereby they may be known, &c;See Ridley's View of the Civ. and Eccl Law, part 1, chap. 5, sect. 7 and Madox Hist. of the Exchequer, Index, as to their condition in England.
DE JURE, by right. Vide De facto.
DE LUNATICO INQUIRENDO. 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, 234; 1 Whart. 52; 5 Halst. 217; 6 Wend. 497.
DE MEDIETATE LINGUAE. Of half tongue. Vide Medietas linguae.
DE MELIORIBUS DAMNIS. 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 cannot recover the whole. This is doue by making, an election de melioribus damnis.
DE MERCATORIBUS. This is the name of a statute passed in the 11 Edw.
D.E NOVO. Anew. afresh. When a judgment upon an issue in part is reversed on error, for some mistake made by the court, in the course of the trial, a venire de novo is awarded in order that the case may again be submitted to the jury.
DE NOVI OPERIS NUNCIATIONE, Civil law. Where a thiug is intended to be done against another man's right, the party aggrieved may have in many cases, according to the civilians, an interdict or injunctIion, to hinder that which is intended to his prejudice: as where one buildeth an house contrary to the usual and received form of building to the injury of his neighbor, there lieth an injunction de novi operis nunciatione, which being served, the offender is either to desist from his work or to put in sureties that he shall pull it down, if he do not in a short time avow, i. e. show, the lawfulness thereof. Ridley's Civ. and Eccl. Law, part 1, chap 1, sect. 8.
DE ODIO ET ATIA. These words sisignify "from hatred and ill will." When a person was committed on a charge of a crime, from such a motive, he could sue the writ de otio et atia, and procure his liberty on giving bail. The object is now obtained by a writ of habeas corpus. Vide Writ de odio et atia.
DE PARTITIONE FACIENDA. The name of a writ for making partition. Vide Partition.
DE PROPRIETATE PROBANDA,
DE QUOTA LITIS. The name of a part or contract, in the civil law, by which one who has a claim difficult to recover, agrees with another to give a part for the purpose of obtaining his services to recover the rest. 1 Duv. n. 201.
2. Whenever such an agreement amounts to champerty, it is void by law. 5
Monr. 416; 5 John.
3. Attorneys cannot lawfully make a bargain with their clients to receive
for their compensation, a part of the thing sued for; in
DE REPARATIONE FACIENDA. The name of a writ which lies by one tenant in common against the other, to cause him to aid in repairing the common propert. 8 B. & C. 269.
DE RETORNO HABENDO The name of a writ issued after a judgment has been given in replevin, that the defendant should have a return of the goods replevied. See 3 Bouv. Inst. n. 3376.
DE SON TORT. Of his own wrong. This term is usually applied to a person who, having no right to meddle with the affairs or estate of a deceased person, yet undertakes to do. so, by acting as executor of the deceased. Vide Executor de son tort.
DE SON TORT DEMESNE, Of his own wrong, pleading. The name of a
replication in an action for a wrong or injury. When the defendant pleads a
matter merely in excuse of an injury to the person or reputation of another,
the plaintiff may reply de son tort demesne sans tiel cause; that it was the
defendant's own wrong without such cause. Vide the articles, De Injuria, and
Without, and also 8
DE UNA PARTE. A deed de una parte, is one where only one party grants, gives, or binds himself to do.a thing to another. It differs from a deed inter partes. (q. v.) 2 Bouv. Inst. n. 2001.
DE WARRANTIA DIEI, WRIT,
DEACON, Eccl. law. A minister or servant in the church whose office, in some churches, is to assist the priest in divine service, and the distribution of the sacrament.
DEAD Something which has no life; figuratively, something of no value.
DEAD BODY, crim. law. A corpse.
2. To take up a dead body without lawful authority, even for the purposes of
dissection, is a misdemeanor, for which the offender may be indicted at common
law. 1 Russ. on Cr. 414; 1 Dowl. & R. 13; Russ. & Ry. 366, ii. b; 2
Chit. Cr. Law, 35. This offence is punished by statute in New Hampshire, Laws
of N. H. 339, 340 in Vermont, Laws of Vermont, 368 .c. 361; in Massachusetts,
stat. 1830, c. 51; 8 Pick. 370; 11 Pick. 350; in
3. The preventing a dead body from being buried, is also an indictable offence. 2 T. R. 734; 4 East, 460; 1 Russ. on Cr. 415 and 416, note A.
4. To inter a dead body found in a river, it seems, would render the offender liable to an indictment for a misdemeanor, unless he first sent for the coroner. 1 Kenyon's R. 250.
DEAD-BORN, descent, persons. Children dead-born are considered, in
law, as if they had never been conceived, so that no one can claim a title, by
descent, through such dead-born child. This is the doctrine of the civil law.
Dig. 50, 16, 129. Non nasci, et natum mori, pare, sunt. Mortuus exitus, non est
exitus. Civil Code of Louis. art. 28. A child in ventre sa mere is considered
in being, only when it is for its advantage, and not for the benefit of a third
person. The rule in the common law is, probably, the same, that a dead-born
child is to be considered as if he had never been conceived or born in other
words, it is presumed he never had life. it being a maxim of the common law,
that mortuus exitus non est exitus.
DEAD FREIGHT, contracts. When the charterer of a vessel has shipped part of the goods on board, and is not ready to ship the remainder, the master, unless restrained by his special contract, may take other goods on board, and the amount which is not supplied, required to complete the cargo, is called dead freight.
2. The dead freight is to be calculated according to the actual capacity of the vessel. 3 Chit. Com. Law; 399 Stark. 450.
DEAD MAN'S PART, English law. By the custom of London, when a deceased
freeman of the city left a widow and children, after deducting what was
calledthe widow's chamber, (q.v.) his personal property was divided into three
parts; one of which belonged to the widow, another tot he children, and the
third to the administrator. When there was only a widow, or only children, in
either case they respectively took one moiety, and the administrator the other;
when there was neither widow nor child, the administrator took the whole for
his own use and this portion was called the "dead man's part." By
statute of 1 Jac. 2, c. 17, this was changed, and the dead man's part is
declared to be subject to the statute of distribution. 2 Bl. Com. 518. See Bac.
Ab. Customs of
DEAD LETTERS. Those which remain in the post-office, uncalled for. By the Act of March 8, 1825, 3 Story. L. U. S. 1993, it is enacted, by §26, "That the postmasters shall, respectively, publish, at the expiration of every three months, or oftener, when the postmaster general shall so direct, in one of the newspapers published at, or nearest, the place of his residence, for three successive weeks, a list of all the letters remaining in their respective offices; or instead thereof, shall make out a number of such lists, and cause them to be posted at such public places, in their vicinity, as shall appear to them best adapted for the information of the parties concerned; and, at the expiration of the next three months, shall send such of the said letters as then remain on hand, as dead letters, to the general post office where the same shall be opened and inspected; and if any valuable papers, or matters of consequence, shall be found therein, it shall be the duty of the postmaster general to return such letter to the writer thereof, or cause a descriptive list thereof to be inserted in one of the newspapers published at the place most convenient to the supposed residence of the owner, if within the United States; and such letter, and the contents, shall be preserved, to be delivered to the person to whom the same shall be addressed, upon payment of the postage, and the expense of publication. And if such letter contain money, the postmaster general may appropriate it to the use of the department, keeping an account thereof, and the amount shall be paid by the department to the claimant as soon as he shall be found."
3. And by the Act of July 2, 1836, 4 Sharsaw. Cont. of Story, L. U. S. 2474, it is enacted by §35 that advertisements of letters remaining in the post-offices, may, under the direction of the postmaster general, be made in more than one newspaper: provided, that the whole cost of advertising shall not exceed four cents for each letter.
DEAD-PLEDGE. A mortgage of lands or goods - mortuum vadium.
DEAF AND DUMB. No definition is requisite, as the words are sufficiently known. A person deaf and dumb is doli capax but with such persons who have not been educated, and who cannot communicate, their ideas in writing, a difficulty sometimes arises on the trial. 2. A case occurred of a woman, deaf and dumb, who was charged with a crime. She was brought to the bar, and the indictment was then read to her, and the question, in the usual form, was put, guilty or not guilty ? The counsel for the prisoner then rose, and stated that he could not allow his client to plead to the indictment, until it was explained to her that she was at liberty to plead guilty or not guilty. This attempted to be done, but was found impossible, and she was discharged from the bar "simpliciter."
3. A person, deaf and dumb, may be examined as a witness, provided he can be sworn, that is, if he is capable of understanding the terms of the oath, and assents to it and if, after he is sworn, he can convey his ideas, with or without an interpreter, to the court and jury. Phil., Ev. 14.
DEAF, DUMB, AND BLIND. A man born deaf, dumb, and blind, is considered an idiot. (q. v.) 1 Bl. Com. 304; F. N. B. 233; 2 Bouv. Inst. n. 2111.
DEALINGS. Traffic, trade; the transaction of business between two or more persons.
2. The English statute 6 Geo. IV. c. 16, s. 81, declares all dealings with a
bankrupt, within a certain time immediately before his bankruptcy, to be void.
It has been held, under this statute, that payments were included under the
term "dealings." M. & M. 137; 3 Car. & P. 85; S. C. 14
DEAN, eccl. law. An ecelesiastictl officer, who derives his name from the fact that he presides over ten canons, or, prebondaries, at least. There are several kinds of deans, namely: 1. Deans of chapters. 2. Deans of peculiars. 3. Rural deans. 4. Deans in the colleges. 5. Honorary deans. 6. Deans of provinces.
DEATH, med. jur., crim. law, evidence. The cessation of life.
2. It is either natural, as when it happens in the usual course, without any violence; or violent, when it is caused either by the acts of the deceased, or those of others. Natural death will not be here considered further than may be requisite to illustrate the manner in which violent death occurs. A violent death is either accidental or criminal; and the criminal act was committed by the deceased, or by another.
3. The subject will be considered, 1. As it relates to medical jurisprudence; and, 2. With regard to its effects upon the rights of persons.
4. - §1. It is the office of medical jurisprudence, by the light and information which it can bestow, to aid in the detection of crimes against the persons of others, in order to subject them to the punishment which is awarded by the criminal law. Medical men are very frequently called upon to make examinations of the bodies of persons. who have been found dead, for the purpose of ascertaining the causes of their death. When it is recollected that the honor, the fortune, and even the life of the citizen, as well as the distribution of impartial justice, frequently depend on these examinations, one cannot but be struck at the responsibility which rests upon such medical men, particularly when the numerous qualities which are indispensably requisite to form a correct judgment, are considered. In order to form a - correct opinion, the physician must be not only skilled in his art, but he must have made such examinations his special study. A man may be an enlightened physician, and yet he may find it exceedingly difficult to resolve, properly, the grave and almost always complicated questions which arise in cases of this kind. Judiciary annals, unfortunately, afford but too many examples of the fatal mistakes made by physicians, and others, when considering cases of violent deaths.
5. In the examination of bodies of persons who have come to a violent death,
every precaution should be taken to ascertain the situation of the place where
the body was found; as to whether the ground appears to have been disturbed
from its natural condition; whether there are any marks of footsteps, their
size, their number, the direction to which they lead, and whence they came
-whether any traces of blood or hair can be found - and whether any, and what
weapons or instruments, which could have caused death, are found in the
vicinity; and these instruments should be carefully preserved so that they may
be identified. A case or two may here be mentioned, to show the importance of
examining the ground in order to ascertain the facts. Mr. Jeffries was murdered
at Walthamstow, in
6. In the survey of the body the following rules should be observed: 1. It should be as thoroughly examined as possible without changing its position or that of any of the limbs; this is particularly desirable when, from appearances, the death has been caused by a wound, because by moving it, the altitude of the extremities may be altered, or the state of a fracture or luxation changed; for the internal parts vary in their position with one another, according to the general position of the body. When it is requisite to remove it, it should be done with great caution. 2. The clothes should be removed, as far as necessary, and it should be noted what compresses or bandages (if any) are applied to particular parts, and to what extent. 3. The color of the skin, the temperature of the body, the rigidity or flexibility of the extremities, the state of the eyes, and of the sphincter muscles, noting at the same time whatever swellings, ecchymosis, or livid, black, or yellow spots, wounds, ulcer, contusion, fracture, or luxation may be present. The fluids from the nose, mouth, ears, sexual organs, &c., should be examined; and, when the deceased is a female, it may be proper to examine the sexual organs with care, in order to ascertain whether before death she was ravished or not. 1 Briand, Med. Leg. 2eme partio, ch. 1, art. 3, n. 5, p. 318. 4. The clothes of the deceased should be carefully examined, and if parts are torn or defaced, this fact should be noted. A list should also be made of the articles found on the body, and of their state or condition, as whether the purse of the deceased had been opened; whether he had any money, &c. 5. The state of the body as to decomposition should be, particularly stated, as by this it may sometimes be ascertalued when the death took place; experience proves that in general after the expiration of fourteen days After death, decomposition has so far advanced, that identity cannot be ascertained, excepting in some strongly developed peculiarity; but in a drowned body, adipocire is not produced until five or six weeks after death but this depends upon circumstance's, and varies according to climate, seasun, &c. It is exceedingly important, however to keep this fact in view in some judicial inquiries relative to the time of death. 1 Chit. Med. Jur. 443. A memorandom should be made of all the facts as they are ascertained when possible, it should be made on the ground, but when this cannot be done, as when chemical experiments are to be made, or the body is to be dissected, they should be made in the place where these operations are performed. 1 Beck's Med. Jur. 5; Dr. Gordon Smith, 505; Ryan's Med. Jur. 145; Dr. Male's Elem. of Judicial and For. Med. 101; 3 Paris & Fonbl. Med. Jur. 23 to 25; Vilanova Y Manes, Materia Criminal Forense, Obs. 11, cap. 7, n. 7; Trebuchet, Medecine Legale, 12, et seq; 1 Briand, Med. Leg. 2eme partie, ch. 1, art. 5. Vide article Circumstances.
7. - §2. In examining the law as to the effect which death has upon the rights of others, it will be proper to consider, 1. What is the presumption of life or death. 2. The effects of a man's death.
8. - 1. It is a general rule, that persons who are proved to have been living, will be presumed to be alive till the contrary is proved and when the issue is upon the death of a person, the proof of the fact lies upon the party who asserts the death. 2 East, 312; 2 Rolle's R. 461. But when a person has been absent for a long time, unheard from, the law will presume him to be dead. It has been adjudged, that after twenty-seven years 3 Bro. C. C. 510; twenty years in another case; sixteen years; 5 Ves. 458; fourteen years; 3 Serg. & Rawle, 390 twelve years; 18 John. R. 141; seven years; 6 East, 80, 85; and even five years Finchs R. 419; the presumption of death arises. It seems that even seven years has been agreed as the time when death may in general be presumed. 1 Phil. Ev. 159. See 24 Wend. R. 221; 4 Whart. R. 173. By the civil law, if any woman marry again without certain intelligence of the death of her hushand, how longsoever otherwise her hushand be absent from her, both she and he who married her shall be punished as adulterers. Authentics, 8th Coll.; Ridley's View of the Civ. and Ecc. Law, 82.
9. The survivorship of two or more is to be proved by facts, and not by any
settled Iegal rule, or prescribed presumption. 5 B. Adolp. 91; 27 E. C. L. R.
45; Cro. Eliz. 503 Bac. Ab. Execution D; 2 Phillim. 261; 1 Mer. R. 308; 3 Hagg.
Eccl. R. 748; But see 1 Yo. & Coll. C. N. 121; 1 Curt. R. 405, 406, 429. In
the following cases, no presumption of survivor-ship was held to arise; where
two men, the father and son, were hanged about the same time, and one was seen
to struggle a little longer than the other; Cor. Eliz. 503; in the case of
General Stanwix, who perished at sea in the same vessel with his daughter; 1
Bl. R. 610; and in the case of Taylor and his wife, who also perished by being
wrecked at sea with her, to whom he had bequeathed the principal part of his
fortune. 2 Phillim. R. 261; S. C. 1
10. Art. 930. If several persons respectively entitled to inherit from one another, happen to perish in the same event, such as a wreck, a battle, or a conflagration, without any possibility of ascertaining who died first, the presumption of survivorship is determined by the circumstances of the fact.
11. Art. 931. lu defect of the circumstances of the fact, the determination must be guided by the probabilities resulting from the strength, ages, and-difference of sex, according to the following rules.
12. Art. 932. If those who have perished together were under the age of fifteen years, the eldest shall be presumed to have survived. If both were of the age of sixty-years, the youngest shall be presumed to have survived. If some were under fifteen years, and some above sixty, the first shall be presumed to have survived.
13. Art. 933. If those who perished together, were above the age of fifteen years, and under sixty, the male must be presumed to have survived, where there was an equality of age, or a difference of less than one year. If they were of the same sex, the presumption of survivorship, by which the succession becomes open in the order of nature, must be admitted; thus the younger must be presumed to have survived the elder.
14. - 2. The death of a man, as to its effects on others, may be considered with regard, 1. To his contracts. 2. Torts committed by or against him. 3. The disposition of his estate; and, 4. To the liability or discharge of his bail.
15. - 1st. The contracts of a deceased person are in general not affected by
his death, and his executors or administrators are required to fulfil his engagements,
and may enforce those in his favor. But to this general rule there are some
exceptions; some contracts are either by the terms employed in making them, or
by implication of law, to continue only during the life of the contracting
party. Among these may be mentioned the following cases: 1. The contract of
marriage.- 2. The partnership of individuals. The contract of partnership is
dissolved by death, unless otherwise provided for. Indeed the partnership will
be dissolved by the death of one or more of the partners, and its effects upon
the other partners or third persons will be the same, whether they have notice
of the death or otherwise. 3 Mer. R. 593; Story, Partn. §319, 336, 343; Colly.
Partn. 71; 2
16. The death of either a constituent or of an attorney puts an end to the power of attorney. To recall such power two things are necessary; 1st. The will or intention to recall; and, 2d. Special notice or general authority. Death is a sufficient recall of such power, answering both requisites. Either it is, according to one hypothesis, the intended termination of the authority or, according to the other, the cessation of that will, the existence of which is requisite to the existence of the attorney's power; while on either supposition, the event is, or is supposed to be, notorious. But exceptions are admitted where the death is unknown, and the authority, in the meanwhile, is in action, and relied on. 3 T. R. 215; Poth; Ob. n. 448.
17. - 2d. In general, when the tort feasor or the party who has received the injury dies, the action for the recovery of the damages dies with him; but when the deceased might have waived the tort, and maintained assumpsit arainst the defendant, his personal representative may do the same thing. See the article Actio Personalis moriturcum persona, where this subject is more fully examined. When a person accused and guilty of crime dies before trial, no proceedings can be had against his representatives or his estate.
18. - 3d. By the death of a person seised of real estate, or possessed of personal property at the time of his death; his property vests when he has made his will, as he has directed by that instrument; but when he dies intestate, his real estate vests in his heirs at law by descent, and his personal property, whether in possession or in action, belongs to his executors or administrators.
19. - 4th. The death of a defendant discharges the special bail. Tidd, Pr.
243; but when he dies after the return of the ca. sa., and before it is filed,
the bail are fixed. 6 T. R. 284; 5 Binn. R. 332, 338; 2
20. Death is also divided into natural and civil.
21. Natural death is the cessation of life.
22. 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 felony, and sentenced to the state prison for life, is, in the state of New York, in consequence of the act of 29th of March, 1799, and by virtue of the conviction and sentence of imprisonment for life, to be considered as civilly dead. 6 Johns. C R. 118; 4 Johns. C. R. 228, 260; Laws of N. Y. Sess. 24, ch. 49, s. 29, 30, 31; 1 N. R. L. 157, 164; Co. Litt. 130, a; 3 Inst. 215; 1 Bl. Com. 132, 133; 4 Bl. Com. 332; 4 Vin. Ab. 152. See. Code Civ. art. 22 a 25; 1 Toull. n. 280 and p. 254, 5, note; also, pp. 243-5, n. 272; 1 Malleville's Discussion of the Code Civil, 45, 49, 51, 57. Biret, Vocab. au mot Effigie.
23. Death of a partner. The following effects follow the death of a partner, namely: 1. The partnership is dissolved, unless otherwise provided for by the articles of partnership. Gow's Partn. 429. 2. The representatives of the deceased partner become tenants in common with the survivor in all partnership effects in possession. 3. Choses in action so far survive that the right to reduce them into possession vests exclusively in the survivor. 4. When recovered, the representatives of the deceased partner have, in, equity, the same right of sharing and participating in them that their testator or intestate would have had had he been living. 5. It is the duty and the right of the surviving partner to settle the affairs of the firm, for which he is not allowed any compensation. 6. The surviving partner is alone to be sued at law for debts of the firm, yet recourse can be had in equity against the assets of the deceased debtor. Gow's Partn. 460. Vide Capital Crime; Dissolution; Firm; Partners; Partnership; Punishment. See, generally, Bouv. Inst. Index, h. t.
DEATH BED, Scotch law. The incapacity to exercise the power of disposing of one's property after being attacked with a mortal disease.
2. It commences with the beginning of such disease.
3. There are two exceptions to this general rule, namely: 1. If he survive
for sixty days after the act or, 2. If he go to kirk or market unattended. He
is then said to be in legitima potestate, or in liege poustie. 1
DEATH BED OR DYING DECLARATIONS. In cases of homicide, those which are made in extremis, when the person making them is conscious of his danger and has given up all hopes of recovery, charging some other person or persons with the murder. See 1 Phil. Ev. 200; Stark. Ev. part 4, p 458; 15 Johns. R. 288; 1 Hawk's R. 442; 2 Hawk's R. 31; McNally's Ev. 174; Swift's Ev. 124.
2. These declarations, contrary to the general rule that, hearsay is not evidence, are constantly received. The principle of this exception is founded partly on the situation of the dying person, which is considered to be as powerful over his conscienceas the obligation of an oath, and partly on the supposed absence of interest on the verge of the next world, which dispenses with a necessity of a cross-examination. But before such declarations can be ad-mitted in evidence against a prisoner, it must be satisfactorily proved, that the deceased at the time of making them was conscious of his danger and had given up all hopes of recovery. 1 Phil. Ev. 215, 216; Stark. Ev. part 4, p. 460.
3. They are admissible, as such, only in cases of homicide, where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declarations. 2 B. & C. 605; 15 John. 286: 4 C. & P. 233.Vide. 2 M. & Rob. 53.
4. The declarant must not have been incapable of a religious sense of accountability to his Maker; for, if it appears that such religious sense was wanting, whether it arose from infidelity, imbecility or tender age, the declarations are alike inadmissible. 1 Greenl. Ev. §157; 1 Phil. Ev. 289; Phil. & Ani. Ev. 296; 2 Russ. on Cr. 688. See, in general, Bac. Abr. Evidence, K; Addis. R. 832 East's P. C. 354, 356; 1 Stark. C. 522 2 Hayw. R. 31; 1 Hawk's R. 442; Swift's Ev. 124; Pothier, by Evans, vol. 2, p. 293; Anth. N. P. 176, and note a; Str. 500.
DEATH'S PART, English law. That portion of the personal estate of a deceased man which remained after his wife and children had received their reasonable parts from his estate; which was, if he had both a wife and child or children, one-third part; if a wife and no child, or a child or children and no wife, one-half; if neither wife nor child, he had the whole to dispose of by his last will and testament; and if he made no will, the same was to go to his administrator. And within the city of London, and throughout the province of York, in case of intestacy, the wife and children were till lately entitled to their reasonable parts, and the residue only was distributable by, the statute of distribution; but by the 11 G. I. c. 18, s. 17, 18, the power of devising was thrown generally open. Burn's L. Dict., See this dict. tit. Legitime, and Lex Falcidia.
DEBATE, legislation, practice. A contestation between two or more persons, in which they take different sides of a question, and maintain them, respectively, by facts and arguments; or it is a discussion, in writing, of some contested point.
2. The debate should be conducted with fairness, candor and decorum, and supported by facts and arguments founded in reason; when, in addition, it is ornamented by learning, and decorated by the powers of rhetoric, it becomes eloquent and persuasive. It is essential that the power of debate should be free, in order to an energetic discharge of his duty by the debator.
3. The Constitution of the
4. It is a rule of the common law, that counsel may, in, the discharge of professional duty, use strong epithets, however derogatory to the character of the opponent, or his attorney, or other agent or witness, in commenting on the facts of the case, if pertinent to the cause, and stated in his instructions, without any liability to any action for the supposed slander, whether the thing stated were true or false. 1 B. & Ald. 232; 3 Dow's R. 273, 277, 279; 7 Bing. R. 459; S. C. 20 E. C. L. R. 198. Respectable and sensible counsel, however, will always refrain from the indulgence of any unjust severity, both on their own personal account, and because browheating a witness, or other person, will injuriously affect their case in the eyes of a respectable court and jury. 3 Chit. Pr. 887, 8.
DEBENTURE. A certificate given, in pursuance of law, by the collector of a port of entry, for a certain sum, due by the United States, payable at a time therein mentioned, to an importer for drawhack of duties on merchandise imported and exported by him, provided the duties arising on the importation of the said merchandise shall have been discharged prior to the time aforesaid. Vide Act of Congress of March 2, 1799, s. 80; Encyclop6die, h. t.; Dane's Ab. Index, h. t.
DEBET ET DETINET, pleading. He owes and detains. In an action of.debt, the form of the writ is either in the debet and detinet, that is, it states that the defendant owes and unjustly detains the debt or thing in question, it is so brought between the original contracting parties; or, it is in the detinet only; that is, that the defendant unjustly detains from the plaintiff the debt or thing for which the action is brought; this is the form in in action by an executor, because the debt or duty is not due to him, but it is unjustly detained from him. 1 Saund. 1.
2. There is one case in which the writ must be in the detinet between the contracting parties. This is when the action is instituted for the recovery of goods, as a horse, a ship, and the like, the writ must bein the detinet, for it cannot be said a man owes another a horse, or a ship, but only that he detains them from him. 3 Bl. Com. 153, 4; 11 Vin. Ab. 32 1; Bac. Ab. Debt, F; 1 Lilly's Reg. 543; Dane's Ab. h. t.
DEBIT, accounts, commerce. A term used in book-keeping, to express the left-hand page of the ledger, to which are carried all the articles supplied or paid on the subject of an account, or that are charged to that account. It also signifies the balance of an account.
DEBITUM IN PRAESENTI, SOLVENDUM IN FUTURO. A debt due at present, to
be paid in future. There is a difference between debt payable now and one
payable at a future time. On the former an action may be brought, on the latter
no action lies until it becomes due. See Due; Owing; and 13 Pet. 494; 11
DEBT, contracts. A sum of money due by certain and express agreement.
3 Bl. Com. 154. In a less technical sense, as in the "act to regulate
arbitrations and proceedings in courts of justice" of
2. Debts arise or are proved by matter of record, as judgment debts; by bonds or specialties; and by simple contracts, where the quantity is fixed and specific, and does not depend upon any future valuation to settle it. 3 Bl. Com. 154; 2 Hill. R. 220.
3. According to the civilians, debts are divided into active and passive. By the former is meant what is due to us, by the latter, what we owe. By liquid debt, they understand one, the payment of which may be immediately enforced, and not one which is due at a future time, or is subject to a condition; by hypothecary debt is meant, one which is a lien over an estate and a doubtful debt, is one the payment of which is uncertain. Clef des Lois Rom. h. t.
4. Debts are discharged in various ways, but principally by payment. See Accord and Satisfaction; Bankruptcy; Confusion Compensation; Delegation; -Defeasance; Discharge of a contract; Extinction; Extinguishment; Former recovery; Lapse of time; Novation; Payment; Release; Rescission; Set off.
5. In payment of debts, some are to be paid before others, in cases of insolvent estates first, in consequence of the character of the creditor, as debts due to the United States are generally to be first paid; and secondly, in consequence of the nature of the debt, as funeral expenses and servants' wages, which are generally paid in preference to other debts. See Preference; Privilege; Priority.
DEBT, remedies. The name of an action used for the recovery of a debt eo nomine and in numero though damages are generally awarded for the detention of the debt; these are, however, in most instances, merely nominal. 1 H. Bl. 550; Bull. N. P. 167 Cowp. 588.
2. The subject will be considered with reference, 1. To the kind of claim or obligation on which this action may be maintained. 2. The form of the declaration. 3. The plea. 4. The judgment.
3. - §1. Debt is a more extensive remedy for the recovery of money than assumpsit or covenant, for it lies to recover money due upon legal liabilities, as, for money lent, paid, had and received, due on an account stated; Com. Dig. Dett, A; for work and labor, or for the price of goods, and a quantum valebant thereon; Com. Dig. Dett, B Holt, 206; or upon simple contracts, express or implied, whether verbal or written, or upon contracts under seal, or of record, or by a common informer, whenever the demand for a sum is certain, or is capable of being reduced to certainty. Bull. N. P. 167. It also lies to recover money due on, any specialty or contract under seal to pay money. Str. 1089; Com. Dig. Dett, A 4; 1 T. R. 40. This action lies on a record, or upon a judgment of a court of record; Gilb. Debt, 891; Salk. 109; 17 S. & R. 1; or upon a foreign judgment. 3 Shepl. 167; 3 Brev. 395. Debt is a frequent remedy on statutes, either at the suit of the party grieved, or of a common informer. Com. Dig. Action on Statute, E; Bac. Ab. Debt, A. See, generally, Bouv. Inst. Index, h. t.; Com. Dig. h. t.; Dane's Ab. h. t.. Vin. Ab. h. t.; Chit. Pl. 100 to 109; Selw. N. P. 553 to 682; Leigh's N. P. Index, h. t. Debt also lies, in the detinet, for goods; which action differs from detinue, because it is not essential in this action, as in detinue, that the property in any specific goods should be vested in the plaintiff, at the time the action is brought; Dy. 24 b; and debt in the debet and detinet may be maintained on an instrument by which the defendant is bound to pay a sum of money lent, which might have been discharged, on or before the day of payment, in articles of merchandise. 4 Yerg. R. 171; see, Com. Dig. Dett, A 5; Bac. Ab. Debt, F; 3 Woodd. 103, 4; 1 Dall. R. 458.
4. - §2. When the action is on a simple contract, the declaration must show the consideration of the contract, precisely as in assumpsit; and it should state either a legal liability or an express agrement, though not a promise to pay the debt. 2 T. R. 28, 30. When the action is founded on a specialty or record, no consideration need be shown, unless the performance of the consideration constitutes a condition precedent, when performance of such consideration must be averred. When the action is founded on a deed, it must be declared upon, except in the case of debt for rent. 1 New R. 104.
5. - §3. The plea to an action of debt is either general or special. 1. The plea of general issue to debt on simple contracts, or on statutes, or when the deed is only matter of inducement, is nil debet. See Nil debet. In general, when the action is on a specialty, the plea denying the existence of the contract is non est factum; 2 Ld. Raym. 1500; to debt on record, nul tiel record. 16 John. 55. Other matters must, in general, be pleaded specially.
6.- §4. For the form of the judgment, see Judgment in debt. Vide Remedy.
DEBTEE. One to whom a debt is due a creditor, as, debtee executor. 3 Bl. Com. 18.
DEBTOR, contracts. One who owes a debt; he who may be constrained to pay what he owes.
2. A debtor is bound to pay his debt personally, and all the estate he possesses or may acquire, is also liable for his debt.
3. Debtors are joint or several; joint, when they all equally owe the debt in solido; in this case if a suit should be necessary to recover the debt, all the debtors must be sued together or, when some are dead, the survivors must be sued, but each is bound for the whole debt, having a right to contribution from the others; they are several, when each promises severally to pay the whole debt; and obligations are generall binding on both or all debtors jointly and severally. When they are severally bound each may be sued separately, and on the payment of debt by one, the others will be bound to contribution, where all had participated in the money or property, which was the cause of the debt.
4. Debtors are also principal and surety; the principal debtor is bound as
between him and his surety to pay the whole debt. and if the surety pay it, he
will be entitled to recover against the principal. Vide Bouv. Inst. Index, h.
t.; Vin. Ab. Creditor and Debtor;
DECAPITATION, punishment. The punishment of putting a person to death by taking off his head.
DECEDENT. In the acts of descent and distribution in
DECEIT, tort. 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 latter.
2. Fraud, or the intention to deceive, is the very essence of this injury, for if the party misrepresenting was himiself mistaken, no blame can attach to him. The representation must be made malo animo, but whether or not the party is himself to gain by it, is wholly immaterial.
3. Deceit may not only be by asserting a falsebood deliberately to the injury of another as, that Paul is in flourishing circumstances, whereas he is in truth insolvent; that Peter is an honest man, when he knew him to be a, rogue; that property, real or personal, possesses certain qualities, or belongs to the vendor, whereas he knew these things to be false; but by any act or demeanor which would naturally impress the mind of a careful man with a mistaken belief.
4. Therefore, if one whose manufactures are of a superior quality, distinguishes them by a particular mark, which facts are known to Peter, and Paul counterfeits this work, and affixes them to articles of the same description, but not made by such person, and sells them to Peter as goods of such manufacture, this is a deceit.
5. Again, the vendor having a knowledge of a defect in a commodity which cannot be obvious to the buyer, does not disclose it, or, if apparent, uses an artifice and conceals it, he has been guilty of a fraudulent misrepresentation for there is an implied condition in every contract that the parties to it act upon equal terms, and the seller is presumed to have assured or represented to the vendee that he is not aware of any secret deficiencies by which the commodity is impaired, and that he has no advantage which himself does not possess.
6. But in all these cases the party injured must have no means of detecting the fraud, for if he has such means his ignorance will not avail him in that case he becomes the willing dupe of the other's artifice, and volenti non fit injuria. For example, if a horse is sold wanting an eye, and the defect is visible to a common observer, the purchaser cannot be said to be deceived, for by inspection he might discover it, but if the blindness is only discoverable by one experienced in such diseases, and the vendee is an inexperienced person, it is a deceit, provided the seller knew of the defect.
7. The remedy for a deceit, unless the right of action has been suspended or discharged, is by an action of trespass on the case. The old writ of deceit was brought for acknowledging a fine, or the like, in another name, and this being a perversion of law to an evil purpose, and a high contempt, the act was laid contra pacem, and a fine imposed upon the offender. See Bro. Abr. Disceit; Vin Abr. Disceit.
8. When two or more persons unite in a deceit upon another, they may be
indicted for a conspiracy. (q. v.) Vide, generally, 2 Bouv. Inst. n. 2321-29;
Skin. 119; Sid. 375; 3 T. R. 52-65; 1 Lev. 247; 1 Strange, 583; D Roll. Abr.
106; 7 Barr, Rep. 296; 11 Serg. & R. 309, 310; Com. Dig. Action upon the
case for a deceit; Chancery, 3 F 1 and 2; 3 M 1; 3 N 1; 4 D 3; 4 H 4; 4 L 1; 4
O 2; Covin; Justices of the Peace, B 30; Pleader, 2 H; 1 Vin. Ab. 560; 8 Vin. Ab.
490; Doct. Pl. 51; Dane's Ab. Index, h. t.; 1 Chit. Pr. 832 Ham. N. P. c. 2, s.
4; Ayl. Pand. 99 2 Day, 531; 12
TO DECEIVE. To induce another either by words or actions, to take that for true which is not so. Wolff, Inst. Nat. §356.
DECEM TALES, practice. In the English law this is a writ which gives to the sheriff apponere decem tales; i. e. to appoint ten such men for the supply of jurymen, when a sufficient number do not appear to make up a full jury.
DECENNARY,
DECIES TANTUM,
DECMATION. The punishment of every tenth soldier by lot, was, among the Romans, called decimation.
DECIME. A French coin, of the value of a tenth part of a franc, or nearly two cents.
DECISION, practice. A judgment given by a competent tribunal. The French lawyers call the opinions which they give on questions propounded to them, decisions. Vide Inst. 1, 2, 8 Dig. 1, 2, 2.
DECLARANT. One who makes a declaration. Vide Declarationis.
DECLARATION, pleading. A declaration is a specification, in a
methodical and logical form, of the circumstances which constitute the
plaintiff's cause of action. 1 Chit. Pl. 248;
2. The declaration in an action at law answers to the bill in chancery, the libel of the civilians, and the allegation of the ecclesiastical courts.
3. It may be considered with reference, 1st. To those general requisites or qualities which govern the whole declaration; and 2d. To its form, particular parts, and requisites.
4. - 1. The general requisites or quali- ties of a declaration are first, that it correspond with the process. But, according to the present practice of the courts, oyer of the writ cannot be craved; and a variance between the writ and declaration cannot be pleaded in abatement. 1 Saund. 318; a.
5. - Secondly. The second general requisite of a declaration is, that it
contain a statement of all the facts necessary in point of law, to sustain the
action, and no more.
6. - Thirdly. These circumstances must be stated with certainty and truth. The certainty necessary in a declaration is, to a certain intent in general, which should pervade the whole declaration, and is particularly required in setting forth, 1st. The parties; it must be stated with certainty who are the parties to the suit, and therefore a declaration by or against "C D and Company," not being a corporation, is insufficient. See Com. Dig. Pleader, C I 8 1 Camp. R. 446 I T. R. 508; 3 Caines, R. 170. 2d. The time; in personal actions the declaration must, in general, state a time when every material or traversable fact happened; and when a venue is necessary, time must also, be mentioned. 5 T. R. 620; Com. Dig. Plead. C 19; Plowd. 24; 14 East, R. 390.; The precise time, however, is not material; 2 Dall. 346; 3 Johns. R. 43; 13 Johns. R. 253; unless it constitutes a material part of the contract declared upon, or whlere the date, &c., of a written contract or record, is averred; 4 T. R. 590 10 Mod. 313 2 Camp. R. 307, 8, n.; or, in ejectment, in which the demise must be stated to have been made after the title of the lessor of the plaintiff, and his right of entry, accrued. 2 East, R. 257; 1 Johns. Cas. 283. 3d. The Place. See Venue. 4th. Other circumstances necessary to maintain the action.
7. - 2. The parts and particular requisites of a declaration are, first, the title of the court and term. See 1 Chit. Pl. 261, et seq.
8. - Secondly. The venue. Immediately after tñhe title of the declaration follows the statement in the margin of the venue, or county in which the facts are alleged to have occurred, and in which the cause is tried. See Venue.
9. - Thirdly. The commencement. What is termed the commencement of the
declaration follows the venue in the margin, and precedes the more
circumstantial statement of the cause of action. It contains a statement, 1st.
Of the names of the parties to the suit, and if they sue or be sued in another
right, or in a political capacity, (as executors, assignees, qui lam, &c.)
of the character or right in respect of which they are parties to the suit. 2d.
Of the mode in which the defendant has been brought into court; and, 3d. A
brief recital of the form of action to be proceeded in. 1 Saund. 318,
10. Fourthly. The statement of the cause (if action, in which all the requisites of certainty before mentioned must be observed, necessarily varies, according to the circumstances of each particular case, and the form of action, whether in assumpsit, debt, covenant, detinue, case, trover, replevin or trespass.
11. Fifthly. The several counts. A declaration may consist of as many counts as the case requires, and the jury may assess entire or distinct damages on. all the counts; 3 Wils. R. 185; 2 Bay, R. 206; and it is usual, particularly in actions of assumpsit, debt on simple contract, and actions on the case, to set forth the plaintiff's cause of action in various shapes in different counts, so that if the plaintiff fail in proof of one count, he may succeed in another. 3 Bl. Com. 295.
12. - Sixthly. The conclusion. In personal and mixed actions the declaration
should conclude to the damage of the plaintiff; Com. Dig. Pleader, C 84; 10
13. - Seventhly. The profert and pledges. In an action at the suit of an executor or administrator, immediately after the conclusion to the damages, &c., and before the pledges, a profert of the letters testamentary or letters of administration should be made. Bac. Abr. Executor, C; Dougl. 6, in notes. At the end of the declaration, it is usual to add the plaintiff is common pledges to prosecute, John Doe and Richard Roe.
14. A declaration may be general or special; for example, in debt or bond, a
declaration counting on the penal part only, is general; when it sets out both
the penalty and the condition, and assigns the breach, it is special. Gould on
Pl. c. 4, §50. See, generally, Bouv. Inst. Index, h. t. 1 Chit. Pl. 248 to 402;
Lawes, Pl. Index) h. t.;
DECLARATION OF
2. - 1. Certain natural and unalienable rights of man; the uses and purposes
of governments the right of the people to institute or to abolish them; the
sufferings of the colonies, and their right to withdraw from the tyranny of the
king of
3. -2. The various acts of tyranny of the British Icing.
4. - 3. The petitions for redress of these injuries, and the refusal. to
redress them; the recital of an appeal to the people of "
5. - 4. An appeal to the Supreme Judge of the world for the rectitude of the intentions of the representatives.
6. - 5. A declaration that the United Colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British crown, and that all political connexion between them and the state of Great Britain, is and ought to be dissolved.
7. - 6. A pledge by the representatives to each other, of their lives, their fortunes, and their sacred honor.
8. The effect of this declaration was the establishment of the government of
the
DECLARATION OF lNTENTION. The act of an alien, who goes before a court of record, and in a forma manner declares that it is, bona fide, his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, whereof he may at the time be a citizen or subject. Act of Congress of April 14, 18O2, s. 1.
2. This declaration must, in usual cases, be made at least three years
before his admission.
DECLARATION OF TRUST. The act by which an individual acknowledges that a property, the title of which he holds, does in fact belong to another, for whose use he holds the same. The instrument in which the acknowledgment is made, is also called a declaration of trust; but such a declaration is not always in writing, though it is highly proper it should be so. Will. on Trust, 49, note y; Sudg. on Pow. 200. See Merl. Rep. Declaration au profit d'un tiers.
DECLARATION OF WAR. An act of the national legislature, in which a
state of war is declared to exist between the
2. This power is vested in congress by the constitution, art. 1, s. 8. There
is no form or ceremony necessary, except the passage of the act. A manifesto,
stating the causes of the war, is usually publishied, but war exists as soon as
the act takes effect. It was formerly usual to precede hostilities by a public
declaration communicated to the enemy, and to send a herald to demand
satisfaction. Potter, Antiquities of
4. The public proclamation of the government of a state, by which it declares itself to be at war with a foreign power, which is named, and which forbids all and every one to aid or assist the common enemy, is also called a declaration of war.
DECLARATIONS, evidence. The statements made by the parties to a transaction, in relation to the same.
2. These declarations when proved are received in evidence, for the purpose of illustrating the peculiar character and circumstances of the transaction. Declarations are admitted to be proved in a variety of cases.
3. - 1. In cases of rape, the fact that the woman made declarations in relation to it, soon after the assault took place, is evidence; but the particulars of what she said cannot be heard. 2 Stark; N. P. C. 242; S. C. 3 E. C. L. R. 344. But it is to be observed that these declarations can be used only to corroborate her testimony, and cannot be received as independent evidence; where, therefore, the prosecutrix, died, these declarations could not be received. 9 C. & P. 420; S. C. 38 Eng. C. L. R. 173; 9 C. & P. 471; S. C. 38 E. C. L. It. 188.
4. - 2. When more than one person is concerned in the commission of a crime, as in cases of riots, conspiracies, and the like, the declarations of either of the parties, made while acting in the common design, are evidence against the whole; but the declarations of one of the rioters or conspirators, made after the accomplishment of their object, and when they no longer acted together, are evidence only against the party making them. 2 Stark. Ev. 235 2 Russ. on Cr. 572 Rosc. Cr. Ev. 324; 1 Breese, Rep. 269.
5. In. civil cases the declarations of an agent, made while acting for his principal, are admitted in evidence as explanatory of his acts; but his confessions after he has ceased to, act, are not evidence. 4. S. R. 321.
6. - 3. To prove a pedigree, the declarations of a deceased member of the family are admissible. Vide Hearsay, and the cases there cited.
7. - 4. The dying declarations of a man who has received a mortal injury, as to the fact itself, and the party by whom it was committed, are good evidence; but the party making them must be under a full consciousness of approaching death. The declarations of a boy between ten and eleven years of age, made under a consciousness of approaching death, were received in evidence on the trial of a person for killing him, as being declarations in articulo mortis. 9 C. & P. 395; S. C. 38 E. C. L. R. 168. Evidence of such declarations is admissible only when the death of the deceased is the subject of the charge, and the circumstances of the death the subject of the dying declarations. 2 B. & C. 605; S. C. 9 E. C. L. R. 196; 2 B. & C. 608; S. C. 9 E. C. L. R. 198; 1 John. Rep. 159; 15 John. R. 286; 7 John. R. 95 But see contra, 2 Car. Law Repos. 102. Vide Death bed, or Dying declarations. 3 Bouv. Inst. n. 3071.
DECLARATORY. Something which explains, or ascertains what before was uncertain or doubtful; as a declaratory statute, which is one passed to put an end to a doubt as to what the law is, and which declares what it is, and what it has been. 1 Bl. Com. 86.
TO DECLARE. To make known or publish. By tho constitution of the
DECOCTION, med. jurisp. The operation of boiling certain ingredients in a fluid, for the purpose of extracting the parts soluble at that temperature. Decoction also means the product of this operation.
2. In a case in which the indictment charged the prisoner with having administered to a woman a decoction of a certain shrub called savin, it appeared that the prisoner had administered an infusion (q. v.) and not a decoction; the prisoner's counsel insisted that he was entitled to an acquittal, on the ground that the medicine was misdescribed, but it was held that infusion and decoction are ejusdem generis, and that the variance was immaterial. 3 Camp. R. 74, 75.
DECONFES, canon law in
DECORUM. Proper behaviour; good order.
2. Decorum is requisite in public places, in order to permit all persons to enjoy
their rights; for example, decorum is indispensable in church, to enable those
assembled, to worship. If, therefore, a person were to disturb the
congregation, it would be lawful to put him out. The same might be done in case
of a funeral. 1 Mod. 168; 1 Lev. 196 2 Kebl. 124. But a request to desist
should be first made, unless, indeed," when the necessity of the case
would render such precaution impossible. In using force to restore order and
decorum, care must be taken to use no more than is necessary; for any excess
will render the party using it guilty of an assault and battery. Vide
DECOY. A pond used for the breeding and maintenance of water-fowl. 11 Mod. 74, 130; S. C. 3 Salk. 9; Holt, 14 11 East, 571.
DECREE, practice. The judgment or sentence of a court of equity.
2. 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.
DECREE, legislation. In some countries as in
DECREE ARBITRAL, Scotch law. A decree made by arbitrators chosen by
the parties; an award. 1
DECREE OF REGISTRATION, Scotch law. A proceeding by which the
creditor has immediate execution; it is somewhat like a warrant of attorney to
confess judgment. 1
DECRETAL ORDER. Chancery practice. An order made by the court of chancery, upon a motion or petition, in the nature of a decree. 2 Dan. Ch. Pr. 637.
DECRETALS. eccles. law. The decretals are canononical epistles, written by the pope alone, or by the pope and cardinals, at the instance or suit of some one or more persons, for the ordering and determining some matter in. controversy, and have the authority of a law in themselves.
2. The decretals were published in three volumes. The first volume was
collected by Raymundus Barcinius, chaplain to Gregory IX., about the year 1231,
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 alterations of the ordinances of his predecessors.
The third volume is called the Clementines, because made by Clement V., and was
published by him in the council of
3. The false decretals were forged. in the names of the early bishops of
DEDI, conveyancing. I have given. This word amounts to a warranty in
law, when it is in a deed; for example, if in a deed it be said, I have given,
&c., to A B, this is a warranty to him and his heirs. Brooke, Abr.
Guaranties, pl. 85. Yet the warranty wrought by this word is a special
warranty, and extendeth to the heirs of the feoffee during the life of the
donor only.
DEDICATION. Solemn appropriation. It may be expressed or implied.
2. An express dedication of property to public use is made by a direct appropriation of it to such use, and it will be enforced. 2 Peters, R. 566; 6 Hill, N. Y. Rep. 407.
3. But a dedication of property to public or pious uses may be implied from
the acts of the owner. A permission to the public for the space of eight or
even six years, to use a street without bar or impediment, is evidence from
which a dedication to the public may be inferred. 2 Bouv. Inst. n. 1631; 11
East, R. 376; 12 Wheat. R. 585; 10 Pet. 662; 2 Watts, 23; 1 Whart. 469; 3 Verm,
279; 6 Verm. 365; 7 Ham. part 2, 135; 12 Wend. 172; 11
DEDIMUS, practice. The name of a writ to commission 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. 4 Com. Dig. 319; 3 Com. Dig. 359; Dane's Ab. Index, h. t. Rey, in his Institutions Judiciaires, de l'Angleterre, tom. 2, p. 214, exposes the absurdity of the name given to this writ; he says it is applicable to every writ which emanates from the same authority; dedimus, we have given.
DEDIMUS POTESTATEM DE ATTORNO FACIENCDO. The name of a writ which was
formerly issued by authority of the crown in
2. By statute of
DEED, conveyancing, contracts. A writing or instrument, under seal,
containing some contract or agreement, and which has been delivered by the
parties.
2. Deed, in its more confined sense, signifies a writing, by which lands, tenements, and hereditaments are conveyed, which writing is sealed and delivered by the parties.
3. The formal parts of a deed for the conveyance of land are, 1st. The premises, which contains all that precedes the habendum, namely, the date, the names and descriptions of the parties, the recitals, the consideration, the receipt of the same, the grant, the full description of the thing granted, and the exceptions, if any.
4. - 2d. The habendum, which states that estate or interest is granted by the deed this is sometimes, done in the premises.
5. - 3d. The tenendum. This was formerly used to express the tenure by which the estate granted was to be held; but now that all freehold tenures have been converted into socage, the tenendum is of no use and it is therefore joined to the habendum, under the formula to have and to hold.
6th. The redendum is that part of the deed by which the grantor reserves something to himself, out of the thing granted, as a rent, under the following formula, Yielding and paying.
7. - 5th. The conditions upon which the grant is made. Vide Conditions.
8. - 6th. The warranty, is that part by which the grantor warrants the title to the grantee. This is general when the warrant is against all persons, or special, when it is only against the grantor, his heirs, and those claiming under him. See Warranty.
9. - 7th. The covenants, if any; these are inserted to oblige the parties or one of them, to do something beneficial to, or to abstain from something, which, if done, might be prejudicial to the other.
10. - 8th. The conclusion, which mentions the execution and the date, either expressly, or by reference to the beginning.
11. The circumstances necessarily attendant upon a valid deed, are the following: 1. It must be written or printed on parchment or paper. Litt. 229, a; 2 Bl. Com. 297. 2. There must be sufficient parties. 3. A proper subject-matter which is the object of the grant. 4. A. sufficient consideration. 5. An agreement properly set forth. 6. It must be read, if desired. 7. It must be signed and sealed. 8. It must be delivered. 9. And attested by witnesses. 10. It should be properly acknowledged before a competent officer.
11. It ought to be recorded.
12. A deed may be avoided, 1. By alterations made in it subsequent to its execution, when made by the party himself, whether they be material or immaterial, and by any material alteration, made even by a stranger. Vide Erasure; Interlineation.
2. By the disagreement of those parties whose concurrence is necessary; for instance, in the case of a married woman by the disagreement of her hushand. 3. By the judgment of a competent tribunal.
13. According to Sir William Blackstone, 2 Com. 313, deeds may be considered as (1), conveyanees at common law, original and derivative. 1st. The original are, 1. Feoffment. 2. Gift. 3. Grant. 4. Lease. 5. Exchange; and 6. Partition. 2d. Derivative, which are 7. Release. 8. Confirmation. 9. Surrender. 10. Assignment 11. Defeasance. (2). Conveyances which derive their force by virtue of the statute of uses; namely, 12. Covenant to stand seised to uses. 13. Bargain and sale of lands. 14. Lease and release. 15. Deed to lead and declare uses. 16. Deed of revocation of uses.
14. The deed of, bargain and sale, is the most usual in the
15. Title deeds are considered as part of the inheritance and pass to the
heir as real estate. A tenant in tail is, therefore, entitled to them; and
chancery will, enable him to get possession of them. 1 Bro. R. 206; 1 Ves. jr.
227;11 Ves. 277; 15 Ves. 173. See Hill. Ab. c. 25; 1 Bibb, R. 333: 3
16. The cancellation, surrender, or destruction of a deed of conveyance, will not divest the estate which has passed by force of it. 1 Johns. Ch. Rep. 417 2 Johns. Rep. 87. As to the effect of a redelivery of a deed, see 2 Bl. Com. 308 2 H. Bl. 263, 264.
DEED POLL, contracts. A deed made by one party only is not indented,
but polled or shaved quite even, and is, for this reason, called a deed poll,
or single deed.
2. A deed poll is not, strictly speaking, an agreement between two persons; but a declaration of some one particular person, respecting an agreement made by him with some other person. For example, a feoffment from A to B by deed poll, is not an agreement between A and B, but rather a declaration by A addressed to all mankind, informing them that he thereby gives and enfeoffs B of certain land therein described.
3. It was formerly called charta de una parte, and, usually began with these words, Sciant praesentes et futuri quod ego A, &c.; 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 enfeoff," &c. Cruise, Real Prop. tit. 32, c. 1, s. 23.
DEFALCATION, practice, contracts. The reduction of the claim of one of the contracting parties against the other, by deducting from it a smaller claim due from the former to the latter.
2. The law operates this reduction , in certain cases, for, if the parties die or are insolvent, the balance between them is the only claim; but if they are solvent and alive, the defendant may or may not defalcate at his choice. See Set off. For the etymology of this word, see Bracken. Law Misc. 186; 1 Rawle's R. 291; 3 Binn. R. 135.
3. Defalcation also signifies the act of a defaulter. The bankrupt act of August 19, 1841, (now repealed), declares that a person who owes debts which have been created in consequence of a defalcation as a public officer, or as executor, administrator, guardian or trustee, or while acting in any other fiduciary capacity, shall not have the benefit of that law.
DEFAMATION, tort. The speaking slanderous words of a person so as, de bona fama aliquid detrahere, to hurt his good fame. Vide Slander.
2. In the
3. In
DEFAULT. The neglect to perform a legal obligation or duty; but in technical language by default is often understood the non-appearance of the defendant within the time prescribed by law, to defend himself; it also signifies the non-appearance of the plaintiff to prosecute his claim.
2. When the plaintiff makes default, he may be nonsuited; and when the
defendant makes default, judgment by default is rendered against him. Com. Dig.
Pleader, E 42
DEFAULT, contracts, torts. By the 4th section of the English statute of frauds, 29 Car. H., c. 3, it is enacted that "no action shall be brought to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person, unless the agreement," &c., "shall be in writing," &c. By default under this statute is understood the non-performance of duty, though the same be not founded on a contract. 2 B. & A. 516.
DEFAULTER, com. law. One who is deficient in his accounts, or falls in making his accounts correct.
DEFEASANCE, contracts, conveyancing. An instrument which defeats the force or operation of some other deed or estate. That, which in the same deed is called a condition, in another deed is a defeasance.
2. Every defeasance must contain proper words, as that the thing shall be void. 2 Salk. 575 Willes, 108; and vide Carth. 64. A defeasance must be made in eodem modo, and by, matter as high as the thing to be defeated; so that if one be by deed) the other must also be by deed. Touchs. 397.
3. It is a general rule, that the defeasance shall be a part, of the same
transaction with the conveyance; though the defeasance may be dated after the
deed. 12
DEFEASIBLE. What may be undone or annulled.
DEFECT. The want of something required by law.
2. It is a general rule that pleadings shall have these two requisites; 1. A matter sufficient in law. 2. That it be deduced and expressed according to the forms of law. The want of either of these is a defect.
3. Defects in matters of substance cannot be cured, because it does not
appear that the plaintiff is entitled to recover; but when the defects are in
matter of form, they are cured by a verdict in favor of the party who committed
them. 3 Bouv. Inst. n. 3292; 2
DEFENCE, torts. A forcible resistance of an attack by force.
2. A man is justified, in defending his person, that of his wife, children, and servants, and for this purpose he may use as much force as may be necessary, even to killing the assailant, remembering that the means used must always be proportioned to the occasion, and an excess becomes, itself, an injury.
3. A man may also repel force by force in defence of his personal property, and even justify homicide against one Who manifestly intends or endeavors by violence or surprise to commit a known felony, as robbery.
4. With respect to the defence or protection of the possession of real
property, although it is justifiable even to kill a person in the act of
attempting to commit a forcible felony, as burglary or arson, yet this
justification can only take place when the party in possession is wholly
without fault. 1 Hale, 440, 444; 1 East, P. C. 259, 277. When a forcible attack
is made upon the dwelling-house of another, without any felonious intent, but
barely to commit a trespass, it is in general lawful to oppose force by force,
when the former was clearly illegal. 7 Bing. 305; S. C. 20
DEFENCE, pleading, practice. It is defined to be the denial of the
truth or validity of the complaint, and does not signify a justification. It is
a general assertion that the plaintiff has no ground of action, which assertion
is afterwards extended and maintained in the plea. 3 Bl. Com. 296;
2. Defence is of two descriptions; first half defence, which is as follows, "venit et defendit vim et injuriam, et dicit," &c.; or secondly, full defence, "venit et defendit vim et injuriam, quando," &c. meaning "quando et ubi curia consideravit," (or when and where it shall behoove him,) " et damna et quicquid quod ipse defendere debet et dicit," &c. Co. Litt. 127, b; Bac. Abr. Pleas, D Willis, 41.
3. In strictness, the words quando, &c. ought not to be added when only half defence is to be made; and after the words "venit et defendit vim et injuriam," the subject matter of the plea should immediately be stated. Gilb. C. P. 188; 8 T. R. 6 3 2; 3 B. & P. 9, n. a.
4. It has, however, now become the practice in all cases, whether half or full defence be intended, to, state it a's follows: "And the said C D, by M N, his attorney, comes and defends the wrong, (or in trespass, force) and injury, when, &c. and says," which will be considered only as half defence in cases where such defence should be made, and as full defence where the latter is necessary. 8 T. R. 633; Willis, 41 3 B. & P. 9; 2 Saund. 209, c.
5. If full defence were made expressly by the words "when and where it
shall behoove him," and "the damages and whatever else he ought to
defend," the defendant would be precluded from pleading to the
jurisdiction or in abatement, for by defending when and where it shall behoove
him, the defendant acknowledges the jurisdiction of the court and by defending
the damages he waives all. exception to the person of the plaintiff. 2 Saund.
209, c.; 3 Bl. Com. 297
6. Want of defence being only matter of form, the omission is aided by general demurrer. 3 Salk. 271. See further, 7 Vin. Abr. 497; 1 Chit. Pl. 410; Com. Dig. Abatement, I 16; Gould. on Pl. c. 2, s. 6-15; Steph. Pl. 430.
7. In another sense, defence signifies a justification; as, the defendant has made a successful defence to the charge laid in the indictment.
8. The Act of Congress of April 30, 1790, 1 Story, L. U. S. 89, acting upon the principles adopted in perhaps all the states, enacts, §28, that every person accused and indicted of the crime of treason, or other capital offence, shall "be allowed and admitted to make his full defence by counsel learned in the law; and the court before whom such person shall be tried, or some judge thereof, shall, and they are hereby authorized and requited, immediately upon his request, to assign to such person such counsel, not exceeding two, as such person shall desire, to whom such counsel shall have free access, at all seasonable hours; and every such person or persons, accused or indicted of the crimes aforesaid, shall be allowed and admitted in his said defence, to make any proof that he or they can produce, by lawful witness or witnesses, and shall have the like process of the court where he or they shall be tried, to compel his or their witnesses to appear at his or their trial, as is usually granted to compel witnesses to appear on the prosecution against them."
9. Defences in equity may be classed in two divisions, namely into dilator defences, (q. v.) and into those which are peremptory. Matters of peremptory or permanent defences may be also divided into two sorts, first, those where the plaintiff never had any right to institute the suit; for example: 1. That the plaintiff had not a superior right to the defendant. 2. That the defendant has no interest. 3. That there is no privity between the plaintiff and defendant, or any right to sustain the suit. Secondly, those that insist that the original right, if any, is extinguished or determined; as, 1. When the right is determined by the act of the parties; or, 2. When it is determined by operation of law. 4 Bouv. Inst. n. 4199, et seq.; 1 Montag. Eq. Pl. 89. See Dilatory Defence; Merits.
TO DEFEND. To forbid. This word is used in some old English statutes in the sense it has in French, namely, to forbid. 5 Pic. 2, c. Lord Coke uses the word in this sense: it is defended by law to distrain on the highway." Co Litt. 160, b. 161 a. In an old work entitled , Legends, printed by Winkin de Worde, in 1527, fo. 96, we find examples of the use of the word in this sense, " He defended," (forbade) " to pay the wage," (tribute,) " for he said he was a king." " She wrote the obligation when she put her hand to the tree against the defence." (prohibition of God.)
2. In pleading, to defend is to deny; and the effect of the word "defends" is, that the defendant denies the right of the plaintiff, or the force and wrong charged. Steph. Pl. 432.
3. In contracts, to defend is to guaranty; to agree to indemnify. In most
conveyances of land the grantor covenants to warrant and defend. It is his
duty, then, to prevent all persons against whom he defends, from doing any act
which would evict him; when there is a mortgage upon the land, and the
mortgagee demands possession or payment of the covenantee, and threatens suit,
this is a breach of the covenant to defend, and for quiet enjoyment. 17
DEFENDANT. A party who is sued in a personal action. Vide Demandant; Par- ties to Actions; Pursuer; and Com. Dig. Abatement, F; Action upon the case upon assumpsit, E, b; Bouv. Inst. Index, h. t.
2. At common law a defendant cannot have judgment to recoyer a sum of money
of the plaintiff. But this rule is, in some cases, altered by the act of
assembly in
DEFENDANT IN ERROR. A party against whom a writ of error is sued out.
DEFENDER, canon law. The name by which the defendant or respondent is known in the ecclesiastical courts.
DEFENSIVE ALLEGATION. The defence or mode of propounding a defence in the spiritual courts, is so called.
DEFICIT. This Latin term signifies that something is wanting. It is used to express the deficiency which is discovered in the accounts of an accountant, or in the money in which he has received.
DEFINITE NUMBER. An ascertained number; the term is usually applied in opposition to an indefinite number.
2. When there is a definite number of corporators, in order to do a lawful act, a majority of the whole must be present; but it is not necessary they should, be unanimous; a majority of those present can, in general, perform the act. But when the corporators consist of an indefinite number, any number, consisting of a majority of those present, may do the act. 7 Cowen, R. 402 9 B. & Cr. 648, 851; 7 S. & 11. 517; Ang. & Am. on Corp. 281.
DEFINITION. An enumerition of the principal ideas of which a compound idea is formed, to ascertain and explain its nature and character; or it is that which denotes and points out the substance of a thing, to us. Ayliffe's Pand. 59.
2. A definition ought to contain every idea which belongs to the thing defined, and exclude all others.
3. A definition should be, 1st. Universal, that is, such that it will apply equally to all individuals of, the same kind. 2d. Proper, that is, such that it will not apply to any other individual of any other kind. 3d. Clear, that is, without any equivocal, vague, or unknown word. 4th. Short, that is, without any useless word, or any foreign to the idea intended to be defined.
4. Definitions are always dangerous, because it is always difficult to prevent their being inaccurate, or their becoming so; omnis definitio injure civili periculosa est, parum est enim, ut non subvertipossit.
5. All ideas are not susceptible of definitions, and many words cannot be defined. This inability is frequently supplied, in a considerable degree, by descriptions. (q. v.)
DEFINITIVE. That which terminates a suit a definitive sentence or judgment is put in opposition to an interlocutory judgment; final. (q. v.)
DEFLORATION. The act by which a woman is deprived of her virginity.
2. When this is done unlawfully, and against her will, it bears the name of rape, (q. v.) when she consents, it is fornication. (q. v.)
DE FORCIANT. One who wrongfully keeps the owner of lands and tenements out of the possession of them. 2 Bl. Com. 350.
DEFORCIARE. To withhold lands or tenements from the right owner. This
is a word of art which cannot be supplied by any other word.
DEFORCEMENT, tort. In its most extensive sense it signifies the holding 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 disseisin, or a discontinuance, as any other species of wrong whatsoever, by which the owner of the freehold is kept out of possession. 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 injuries above mentioned. 3 Bl. Com. 173; Archb. Civ. Pl. 13; Dane's Ab. Index, h. t.
DEFORCEMENT, Scotch law. The opposition given, or resistance made, to messengers or other officers, while they are employed in executing the law.
2. This crime is punished by confiscation of movables, the one half to the king, and the other to the creditor at whose suit the diligence is used. Ersk. Pr. L. Scot. 4,4,32.
DEFUNCT. A term used for one that is deceased or dead. In some acts
of assembly in
DEGRADATION, punishment, ecclesiastical law. A censure by which a clergy man is deprived of his holy orders, which he had as a priest or deacon.
TO DEGRADE, DEGRADING. To, sink or lower a person in the estimation of the public.
2. As a man's character is of great importance to him, and it is his interest to retain the good opinion of all mankind, when he is a witness, he cannot be compelled to disclose any matter which would tend to disgrace or degrade him, 13 How. St. Tr. 17, 334, 16 How. St. Tr. 161. A question having that tendency, however, may be asked, and, in such case, when the witness chooses to answer it, the answer is conclusive. 1 Phil. Ev. 269; R. & M. 383.
DEGREE, descents. This word is derived from the French degre, which is itself taken from the Latin gradus, and signifies literally, a step in a stairway, or the round of a ladder.
2. Figuratively applied, and as it is understood in law, it is the distance between those who are allied by blood; it means the relations descending from a common ancestor, from generation to generation, as by so many steps. Hence, according to some Lexicographers, we obtain the word, pedigree (q. v.) Par degrez, by degree, the descent being reckoned par degrez. Minshew. Each generation lengthens the line of descent one degree, for the degrees are only the generations marked in a line by small circles or squares, in which the names of the persons forming it are written. Vide Consanguinity;, Line; and also Ayliffe's Parergon, 209; Toull. Dr. Civ. Frau. liv. 3, t. 1, c. 3, n. 158; Aso & Man. Inst. B. 2, t. 4, c. 3, §1.
DEGREE, measures. In angular measures, a degree is equal to sixty minutes, or the thirtieth part of a sine. Vide Measure.
DEGREE, persons. By. degree, is understood the state or 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.
DEGREES, academical. Marks of distinction conferred on students, in testimony of their proficiency in arts and sciences. They are of pontifical origin. See 1 Schmidt's Thesaurus, 144; Vicat, ad voc. Doctores Minshew, Dict. ad voc Bacheler; Merl. Rep ad voc Universite; Van Espen, p. 1, tit. 10, c. Giaunone Istoria, di Napoli, lib. xi. c. 2, for a full account of this matter.
DEHORS. Out of; without. By this word is understood something out of the record, agreement, will, or other thing spoken of; something foreign to the matter in question.
DEI JUDICIUM. The judgment of God. This name was given to the barbarous and superstitious trial by ordeal.
DEL CREDERE, contracts. A del credere commission is one under which the agent, in consideration of an additional premium, engages to insure to his principal not only the solvency of the debtor, but the punctual discharge of the debt; and he is liable, in the first instance, without any demand from the debtor. 6 Bro. P. C. 287; Beawes, 429; 1 T. Rep. 112; Paley on Agency, 39.
2. If the agent receive the amount of sales, and remit the amount to the principal by a bill of exchange, he is not liable if it should be protested. 2 W. C. C. R. 378. See, also, Com. Dig. Merchant, B; 4 M. & S. 574.
2. The constitution of this state was amended and adopted December 2, 1831. The powers of the government are divided into three branches, the legislative, the executive, and the judicial.
3. - 1st. The legislative power of the state is vested in a general assembly, which consists of a senate and house of representatives.
4. - 1. The senate is composed of three senators from each county; the number may be increased by the general assembly, two-thirds of each branch concurring, but the number of senators shall never be greater than one-half, nor less than two-thirds of the number of representatives. Art. 2, s. 3. The senators are chosen for four years by the citizens residing in the several counties.
5. - 2. The house of representatives is composed of seven members from each county, but the general assembly, two-thirds of each branch concurring, may increase the number. The representatives are chosen for two years by the citizens residing in the several counties. Art. 2, s. 2.
6. - 2d. The supreme executive power of the state is vested in a governor, who is chosen by the citizens of the state. He holds his office during four years, from the third Tuesday in January next ensuing his election; and is not eligible a second time to the said office. Art. 3. Upon the happening of a vacancy, the speaker of the senate exercises the office, until a governor elected by the people shall be duly qualified. Art. 3, s. 14.
7. - 3d. The judicial power is vested in a court of errors and appeals,, a superior court, a court of chancery, an orphan's court, a court of oyer and terminer, a Court of general sessions of the peace and jail delivery, a register's court, justices of the peace, and such other courts as the general assembly, with the concurrence of two-thirds of all the members of both houses shall, from time to time, establish. Art. 6.
DELAY, civil law. The time allowed either by law or by agreement of the parties to do something.
2. The law allows a delay, for a party who has been summoned to appear, to make defence, to appeal; it admits of a delay during which and action may be brought, certain rights exercised, and the like.
3. By the agreement of the parties there may be a delay in the payment of a debt, the fulfilment of a contract, &c. Vide Code, 3, 11, 4; Nov. 69, c. 2 Merl. Rep. h
DELECTUS PERSONAE. This phrase, which literally signifies the choice of a person, is applied to show that partners have the right to select their copartners; and that no set of partners can take another person into the partnership, without the consent of each of the partners. Story on Partn. 6 Colly. on Partn. 4; 1 Swanst. 508; 2 Bouv. Inst. n. 1443.
DELEGATE. A person elected by the people of a territory of the United States, to congress, who has a seat in congress, and a right of debating, but not of voting. Ordinance of July, 13, 1787, 3 Story's L. U. S. 2076.
2. The delegates from the territories of the
3. A delegate is also a person elected to some deliberative assembly, usually one for the nomination of officers.
4. In contracts, a delegate is one who is authorized by another in the name of the latter; an attorney.
DELEGATION, civil law. It is a kind of novation, (q. v.) by which the original debtor, in order to be liberated from his creditor, gives him a third person, who becomes obliged in his stead to the creditor, or to the person appointed by him.
2. It results from this definition that a delegation is made by the concurrence of three parties, and that there may be a fourth. There must be a concurrence, 1. Of the party delegating, that is, the ancient debtor, who procures another debtor in his stead. 2. Of the party delegated, who enters into the obligation in the place of the ancient debtor, either to the creditor of to some other person appointed by him. 3. Of the creditor, who, in consequence of the obligation contracted by the party delegated, discharges the party delegating. Sometimes there intervenes a fourth party namely, the person indicated by the creditor in whose favor the person delegated becomes obliged, upon the indication of the creditor, and by the order of the person delegating. Poth. Ob. part. 3, c. 2, art. 6. See Louis. Code, 2188, 2189; 3 Wend. 66; 5 N. H. Rep. 410; 20 John. R. 76; 1 Wend. 164; 14 Wend. 116; 11 Serg. & Rawle, 179.
3. Delegation is either perfect or imperfect. It is perfect, When the debtor who makes the delegation, is discharged by the creditor. It is imperfect when the creditor retains his rigbts against the original debtor. 2 Duverg. n. 169. See Novation.
DELEGATION, contracts. The transfer of authority from one or more persons to one or more others.
2. In general, all persons sui juris may delegate to another authority to
act for them, but to this rule there are exceptions; 1st. On account of the
thing to be done; and 2d. Because the act is of a personal nature, and
incapable of being delegated. 1. The thing to be done must be lawful; for an
authority to do a thing unlawful, is absolutely void. 5
3. When a bare power or authority has been given to another, the latter
cannot in general delegate that authority or any part of it to a third person,
for the obvious reason that the principal relied upon the intelligence, skill
and ability of his agent, and he cannot have the same confidence in a stranger.
Bac. Ab. Authority, D; Com. Dig. Authority, C 3; 12.
4. To this general rule that one appointed as agent, trustee, and the like, cannot delegate his authority, there are exceptions: 1. When the agent is expressly authorized to make a substitution. 1 Liverm. on Ag. 54. 2. When the authority is implied, as in the following: cases: 1st. When by the laws such power is indispensable in order to accomplish the end proposed, as, for example, when goods are directed to be sold at auction, and the laws forbid such sales except by licensed auctioneers. 6 S. & R. 386. 2d. When the employment of such substitute is in the ordinary course of trade, as where it is the custom of trade to employ a ship broker or other agent for the purpose of procuring freight and the like . 2 M. & S. 301; 3 John. Ch. R. 167, 178; 6 S. & R. 386. 3d. When it is understood by the parties to be the mode in which the particular thing would be done. 9 Ves. 234; 3 Chit. Com Law, 206. 4th. When the powers thus delegated are merely mechanical in their nature. 1 Hill, (N. Y.) R. 501 Bunb. 166; Sugd. on Pow. 176.
5. As to the form of the delegation, it may be for general purposes, by a verbal or by a written declaration not under seal, or by acts and implications. 3 Chit. Com. Law, 5, 194, 195; 7 T. R. 350. But when the act to be done must be under seal, the delegation must also be under seal. Co. Litt. 48 b; 5 Binn. 613; 14 S. & R. 331 See Authority.
DELEGATION, legislation. It signifies 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.
TO DELIBERATE. To examine, to consult, in order to form an opinion. Thus, a jury deliberate as to their verdict.
DELIBERATION, contracts, crimes. The act of the understanding, by which the party examines whether 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 proposed, to the means of accomplishing that end, or to both.
2. It is a presumption of law that all acts committed, are do-ne 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 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. See Intention; Will.
DELIBERATION. legislation. The council which is held touching some business, in an assembly having the power to act in relation to it.
2. In deliberative assemblies, it is presumed that each member will listen to the opinions and arguments of the others before he arrives at a conclusion.
DELICT, 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 includes all kinds of crimes and misdemeanors, and even the injury which has been caused by another, either voluntarily or accidentally without evil intention; but more commonly by delicts are understood those small offences which are punislied by a small fine or a short imprisonment.
2. Delicts are either public or private; the public are those which affect the whole community by their hurtful consequences; the private is that which is directly injurious to a private individual. Inst. 4, 18; Id. 4, 1 Dig. 47, 1; Id. 48, 1.
3. A quasi-delict, quasi delictum, is the act of a person, who without malignity, but by an inexcusable imprudence, causes an injury to another. Poth. Ob. n. 116; Ersk. Pr. Laws of Scotl. B. 4, t. 4, s. 1.
DELINQUENT, civil law. He who has been guilty of some crime, offence or failure of duty.
DELIRIUM, med.jur. A disease of the mind produced by inflammations, particularly in fevers, and other bodily diseases.
2. It is also occasioned by intoxicating agents.
3. Delirium manifests its first appearance "by a propensity of the patient to talk during sleep, and a momentary forgetfulness of his situation, and of things about him, on waking from it. And after being fully aroused, however, and his senses collected, the mind is comparitively clear and tranquil, till the next slumber, when the same scene is repeated. Gradually the mental disorder becomes more intense, and the intervals between its returns of shorter duration, until they are scarcely, or not at all perceptible. The patient lies on his back, his eyes, if open, presenting a dull and listless look, and is almost constantly talking to himself in a low, muttering tone. Regardless of persons or things around him and scarcely capable of recognizing them when aroused by his attendants, his mind retires within itself to dwell upon the scenes and events of the past, which pass before it in wild and disorderly array, while the tongue feebly records the varying impressions, in the form of disjointed, incoherent discourse, or of senseless rhapsody. In the delirium which occurs towards the end of chrome diseases, the discourse is often more coherent and continuous, though the mind is no less absorbed in its own reveries. As the disorder advances, the voice becomes more indistinct, the fingers are constantly picking at the bed-clothes, the evacuations are passed insensibly, and the patient is incapable of being aroused to any further effort of attention. In some cases, delirium is attended with a greater degree of nervous and vascular excitement, which more or less modifies the above-mentioned symptoms. The eyes are open, dry, and bloodshot, intently gazing into vacancy, as if fixed on some object which is really present to the mind of the patient; the skin is hotter and dryer; and he is more restless and intractable. He talks more loudly, occasionally breaking out into cries and vociferation, and tosses about in bed, frequently endeavoring to get up, though without any particular object in view." Ray, Med. Jur. §213.
4. "So closely does delirium resemble mania to the casual observer, and so important is it that they should be distinguished from each other, that it may be well to indicate some of the most common and prominent features of each. In mania, the patient recognizes persons and things, and is perfectly conscious of, and remembers what is passing around him. In delirium, he can seldom distinguish one person or thing from another, and, as if fully occupied with the images that crowd upon his memory, gives no attention to those that are presented from without. In delirium, there is an entire abolition of the reasoning power; there is no attempt at reasoning at all; the ideas are all and equally insane; no single train of thought escapes the morbid influence, nor does a single operation of the mind reveal a glimpse of its natural vigor and acuteness. In mania, however false and absurd the ideas may be, we are never at a loss to discover patches of coherence, and some semblance of logical sequence in the discourse. The patient still reasons, but he reasons incorrectly. In mania, the muscular power is not perceptibly diminished, and the individual moves about with his ordinary ability. Delirium is invariably attended with great muscular debility; and the patient is confined to bed, and is capable of only a momentary effort of exertion. In mania, sensation is not necessarily impaired and, in most instances, the maniac sees, bears, and feels with all his natural acuteness. In delirium, sensation is greatly impaired, and this avenue to the understanding seems to be entirely closed. In mania, many of the bodily functions are undisturbed, and the appearance of the patient might not, at first sight, convey the impression of disease. In delirium, every function suffers, and the whole aspect of the patient is indicative of discase. Mania exists alone and independent of any other disorder, while delirium is only a symptom or attendant of some other disease. Being a symptom only, the latter maintains certain relations with the -discase on which it depends; it is relieved when that is relieved, and is aggravated when that increases in severity. Mannia, though it undoubtedly tends to shorten life, is not immediately dangerous; whereas the disease on which delirium depends, speedily terminates in death, or restoration to health. Mania never occurs till after the age of puberty; delirium attacks all periods alike, from early childhood to extreme old age." Id. §216.
5. In the inquiry as to the validity of testamentary dispositions, it is of great importance, in many cases, to ascertain whether the testator labored under delirium, or whether he was of sound mind. Vide Sound mind; Unsound mind; 2 Addams, R. 441; 1 Addams, Rep. 229, 383; 1 Hagg. R. 577; 2 Hagg. R. 142; 1 Lee, Eccl. R. 130; 2 Lee, Eccl. R. 229; 1 Hag . Eccl. Rep. 256.
DELIRIUM TREMENS, med. jur. A species of insanity which has obtained this name, in consequence of the tremor experienced by the delirious person, when under a fit of the disorder.
2. The disease called delirium tremens or mania a potu, is well described in the learned work on the Medical Jurisprudence of Insanity, by Dr. Ray, §315, 316, of which the following is an extract: "it may be the immediate effect of an excess, or series of excesses, in those who are not habitually intemperate, as well as in those who are; but it most commonly occurs in habitual drinkers, after a few days of total abstinence from spirituous liquors. It is also very iable to occur in this latter class when laboring under other diseases, or severe external injuries that give rise to any degree of constitutional disturbance. The approach ofthe disease is generally indicated by a slight tremor and faltering of the hands and lower extremities, a tremulousness of the voice, a certain restlessness and sense of anxiety which the patient knows not how to describe or to account for, disturbed sleep, and impaired appetite. These symptoms having continued two or three days, at the end, of which time they have obviously increased in severity, the patient ceases to sleep altogether, and soon becomes delirious. At first, the delirium is not constant, the mind wandering during the night, but during the day, when its attention is fixed, capable of rational discourse. It is not long, however, before it becomes constant, and constitutes the most prominent feature of the disease. This state, of watchfullness and delirium continues three or four days, when, if the patient recover, it is succeeded by sleep, which, at first appears in uneasy and irregular naps, and lastly in long, sound, and refreshing slumbers. When sleep does not supervene about this period, the, disease is fatal; and whether subjected to medical treatment, or left to itself, neither its symptoms nor duration are materially modified.
3. "The character of the delirium in this disease is peculiar, bearing a stronger resemblance to dreaming, than any other form of mental derangement. It would seem as if the dreams which disturb and harass the mind during the imperfect sleep that precedes the explosion of the disease, continue to occupy it when awake, being then viewed as realities, instead of dreams. The patient imagines himself, for instance, to be in some particular situation, or engaged in certain occupations according to each individuals habits and profession, and his discourse and conduct will be conformed to this delusion, with this striking peculiarity, however, that he is thwarted at every step, and is constantly meeting with obstacles that defy his utmost efforts to remove. Almost invariably, the patient manifests, more or less, feelings of suspicion and fear, laboring under continual apprehension of being made the victim of sinister designs and practices. He imagines that certain people have conspired to rob or murder him, and insists that he can hear them in an adjoining apartment, arranging their plans and preparing to rush into his room; or that he is in a strange place where he is forcibly detained and prevented from going to his own home. One of the most common hallucinations is, to be constantly seeing devils, snakes, vermin, and all manner of unclean things around him and about him, and peopling every nook and corner of his apartment with these loathsome objects. The extreme terror which these delusions often inspire, produces in the countenance, an unutterable expression of anguish; and, in the hope of escaping from his, fancied tormentors, the wretched patient endeavors to cut his throat, or jump from the window. Under the influence of these terrible apprehensions, he sometimes murders his wife or attendant, whom his disordered imagination identifies with his enemies, though he is generally tractable and not inclined to be mischievous. After perpetrating an act of this kind, he generally gives some illusive reason for his conduct, rejoices in his success, and expresses his regret at not having done it before. So complete and obvious is the mental derangement in this disease, so entirely are, the thoughts and actions governed by the most unfounded and absurd delusions, that if any form of insanity absolves from criminal responsibility, this certainly must have that effect. 3 Am. Jur. 5-20.
DELIVERANCE, Practice. A term used 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, conveyancing. The transferring of a deed from the grantor to the grantee, in such a manner as to deprive him of the right to recall it; Dev. Eq. R. 14 or the delivery may be made and accepted by an attorney. This is indispensably necessary to the validity of a deed; 9 Shepl. 569 2 Harring. 197; 16 Verm. 563; except it be the deed of a corporation, which, however, must be executed under their common seal. Watkin's Prin. Con. 300. But although, as a general rule, the delivery of a deed is essential to its perfection, it is never averred in pleading. 1 Wms. Saund. Rep. 291, note Arch. Dig. of Civ. Pl. 138.
2. As to the form, the delivery may be by words without acts; as, if the deed be lying upon a table, and the grantor says to the grantee, "take that as my deed," it will be a sufficient delivery; or it may be by acts without words, and therefore a dumb man may deliver a deed. Co. Litt. 36 a, note; 6 Sim. Rep. 31; Gresl. Eq. Ev. 120; Wood. B. 2, c. 3; 6 Miss. R. 326; 5 Shepl. 391; 11 Verm. 621; 6 Watts & S. 329; 23 Wend. 43; 3 Hill, 513; 2 Barr, 191, 193 2 Ev. Poth. 165-6.
3. A delivery may be either absolute, Is when it is delivered to the grantor himself; or it may be conditional, that is, to a third person to keep until some condition shall have been performed by the grantee, and then it is called an escrow. (q. v.) See 2 Bl. Com. 306 4 Kent. Coin. 446 2 Bouv. Inst. n. 2018, et seq.; Cruise, Dig. tit. 32, c. 2, s. 87; 5 Serg. & Rawle, 523; 8 Watts, R. 1; and articles Assent; Deed.
4. The formula, "I deliver this as my act and deed," which means the actual delivery of the deed by the grantor into the hands or for the use of the grantee, is incongruous, not to say absurd, when applied to deeds which cannot in their nature be delivered to any person; as deeds of revocation, appointment, &c., under a power where uses to unborn children and the like, if in fact such instruments, though sealed, can be properly called deeds, i. e. writings sealed and delivered. Ritson's Practical Points, 146.
DELIVERY, contracts. The transmitting the possession of a thing from one person into the power and possession of another.
2. Originally, delivery was a clear and unequivocal act of giving possession, accomplished by placing the subject to be transferred in the hands of the buyer or his avowed agent, or in their respective warehouses, vessels, carts, and the like. This delivery was properly considered as the true badge of transferred property, as importing full evidence of consent to transfer; preventing the appearance of possession in the transferrer from continuing the credit of property unduly; and avoiding uncertainty and risk in the title of the acquirer.
3. The complicated transactions of modern trade, however, render impossible a strict adherence to this simple rule. It often happens that the purchaser of a commodity cannot take immediate possession and receive the delivery. The bulk of the goods; their peculiar situation, as when they are deposited in public custody for duties, or in the hands of a manufacturer for the purpose of having some operation of his art performed upon them, to fit them for the market the distance they are from the house; the frequency of bargains concluded by correspondence between distant countries, and many other obstructions, frequently render it impracticable to give or to receive actual delivery. In these and such like cases, something short of actual delivery has been considered sufficient to transfer the property.
4. In sales, gifts, and other contracts, where the party intends to transfer the property, the delivery must be made with the intent to enable the receiver to obtain dominion over it. 3 Serg. & Rawle, 20; 4 Rawle, 260; 5 Serg. & Rawle, 275 9 John. 337. The delivery may be actual, by putting the thing sold in the hands or possession of the purchaser; or it may be symbolical, as where a man buys goods which are in a room, the receipt of the keys will be sufficient. 1 Yeates, 529; 5 Johns. R. 335; 1 East, R. 192.; 3 Bos. & Pull. 233; 10 Mass. 308; 6 Watts & Serg. 94. As to what will amount to a delivery of goods and merchandise, vide 1 Holt, 18; 4 Mass. 661; 8 Mass. 287; 14 Johns. R. 167; 15 Johns. R. 849; 1 Taunt. R. 318 H. Black. R. 316, 504; 1 New R. 69; 6 East, R. 614.
5. There is sometimes considerable difficulty in ascertaining the particular period when the property in the goods sold passes from the vendor to the vendee; and what facts amount to an actual delivery of the goods. Certain rules have been established, and the difficulty is to apply the facts of the case.
6. - 1. Where goods are sold, if nothing remains to be done on the part of the seller as between him and the buyer, before the article is to be deliver-ed, the property has passed. East, R. 614; 4 Mass. 661; 8 Mass. 287 14 Johns. 167; 15 Johns. 349; 1 Holt's R. 18; 3 Eng. C. L. r. 9.
7. - 2. Where a chattel is made to order, the property therein is not vested in the quasi vendee, until finished and delivered, though he has paid for it. 1 Taunt. 318.
8. - 3. The criterion to determine whether there has been a delivery on a sale, is to consider whether the vendor still retains, in that character, a right over. the property. 2 H. Blackst, R. 316.
9. - 4. Where a part of the goods sold by an entire contract, has been taken possession of by the vendee, that shall be deemed a taking possession of the whole. 2 H. Bl. R. 504; 1 New Rep. 69. Such partial delivery is not a delivery of the whole, so as to vest in the vendee the entire property in the whole, where some act, other than the payment of the price, is necessary to be performed in order to vest the property. 6 East, R. 614.
10. - 5. Where goods are sent by order to a carrier the carrier receives them as the vendee's agent. Cowp. 294; 3 Bos. & Pull. 582; 2 N. R. 119.
11. - 6. A delivery may be made in a very slight manner; as where one buys goods which are in a room, the receipt of the key is sufficient. 1 Yeates, 529; 5 Johns. 335; 1 East, R. 192. See, also, 3. B. & P. 233 7 East, Rep. 558; 1 Camp. 235.
12. - 7. The vendor. of bulky articles is not bound to, deliver them, unless he stipulated to do so; be must give notice to the buyer that he is ready to deliver them. 5 Serg. & Rawle, 19; 12. Mass. 300; 4 Shepl. Rep. 49; and see 3 Johns. 399; 13 Johns. 294; 19 Johns. 218; 1 Dall. 171.
13. - 8. A sale of bricks in a brick-yard, accompanied with a lease of the yard until the bricks should be sold and removed, was held to be valid against the creditors of the vendor, without an actual removal. 10 Mass. 308.
14. - 9. Where goods were contracted to be sold upon condition that the vendee should give security for the price, and they are delivered without security being given, but with the declaration on the part of the vendor that the transaction should not be deemed a sale, until the security should be furnished; it was held that the goods remained the property of the vendor, notwithstanding the delivery. But it seems that in such cases the goods would be liable for the debts of, the vendee's creditors, originating after the delivery; and that the vendee may, for a bona fide consideration, sell the goods while in his possession. 4 Mass. 405.
15. - 10. Where goods are sold to be paid for on delivery, if, on delivery, the vendee refuses to pay for them, the property is not divested from the vendor. 13 Johns. 434; 1 Yeates, 529.
16. - 11. If the vendor rely on the promises of the vendee to perform the conditions of the sale, and deliver the goods accordingly, the right of property. is changed; but where, performance and delivery are understood to be simultaneous, possession, obtained by artifice, will not vest a title in the vendee. 3 Serg. & Rawle, 20.
17. - 12. Where, on the sale of a chattel, the purchase money is paid, the property is vested in the vendee, and if he permit it to remain in the custody of the vendor, he cannot call upon the latter for any subsequent loss or deterioration not arising from negligence. 2 Johns. 13; 2 Caines, R. 38 3 Jolins. 394.
18. In order to make a good donatio mortis causa, it is requisite that there should be a delivery of the subject to or for the donee, where such delivery can be made. 3 Binn. R. 370; 1 Miles, Rep. 109, 110; 2 Ves. Jr. 120; 9 Ves. Jr. 1.
19. The delivery of the key of the place where bulky goods are deposited, is, however, a sufficient delivery of such goods. 2 Ves. Sen. 445. Vide 3 P. Wms. 357; 2 Bro. C. C. 612; 4 Barn. & A. 1; 3 Barn. & C. 45 Bouv. Inst. Index, h. t. See Sale; Stoppage in transitu; Tender; and Domat, Lois Civiles, Liv. 1, tit. 2, s. 2 Harr. Dig. Sale, II. 3.
DELIVERY, child-birth, med. jur. The act of a woman giving birth to her offspring.
2. It is frequently of great importance to ascertain whether or not a delivery has taken place, and the time when it took place. Delivery may be considered with regard, 1. To pretended delivery. 2. To concealed delivery and, 3. To the usual signs of delivery.
3. - 1. In pretended delivery, the female declares herself to be a mother, without being so in reality; an act always prompted by folly or fraud.
4. Pretended delivery may present itself in three points of view, 1. When the female who feigns has never been pregnant. When thoroughly investigated, this may always be detected. There are signs which must be present, and cannot be feigned. An enlargement of the orifice of the uterus, and a tumefaction of the organs of generation, should always be present, and if absent, are conclusive against the' fact. Annales d'Hygiene, tome ii. p. 227. 2. When the pretended pregnancy and delivery have been preceded by one or more deliveries. In this case, attention should be given to the following circumstances: the mystery, if any, which has been affected with regard to the situation of the female; her age; that of her hushand and particularly whether aged or decrepid. 3. When the woman has been actually delivered, and substitutes a living for a dead child. But little evidence can be obtained on this subject from a physical examination.
5. - 2. Concealed delivery generally takes place when the woman either has destroyed her offspring, or it was born dead. In suspected cases, the following circumstances should be attended to: 1. The proofs of pregnancy which arise in consequence of the examination of the mother. When she has been pregnant, and has been delivered, the usual signs of delivery, mentioned below, will be present. A careful investigation as to the woman's appearance, before and since the delivery, will have some weight, though such evidence is not always to be relied upon, as such appearances are not unfrequently deceptive. 2. The proofs of recent delivery. 3. The connexion between the supposed state of parturition, and the state of the child that is found; for if the age of the child do not correspond to that time, it will be a strong circumstance in favor of the mother's innocence. A redness of the shin and an attachment of the umbilical cord to the navel, indicate a recent birth. Whether the child was living at its birth, belongs to the subject of infanticide. (q. v.)
6. - 3. The usual signs of delivery are very well collected in Beck's excellent treatise on Medical Jurisprudence, and are here extracted: If the female be examined within three or four days after the occurrence of delivery, the following circumstances will generally be observed: greater or less weakness, a slight paleness of the face, the eye a little sunken, and surrounded by a purplish or dark brown colored ring, and a whiteness of the skin, like a person convalescing from disease. The belly is soft, the skin of the abdomen is lax, lies in folds, and is traversed in various directions by shining reddish and whitish lines, which especially extend from the groins and pubis to the naval. These lines have sometimes been termed linecae albicantes, and are particularly observed near the umbilical region, where the abdomen has experienced the greatest distention. The breasts become tumid and hard, and on pressure emit a fluid, which at first is serous, and afterwards gradually becomes whiter; and the presence of this secretion is generally accompanied with a full pulse and soft skin, covered with a moisture of a peculiar and somewhat acid odor. The areolae round the nipples are dark colored. The external genital organs and vagina are dilated and tumefied throughout the whole of their extent, from the pressure of the foetus. The uterus may be felt through the abdominal parietes, voluminous, firm, and globular, and rising nearly as high as the umbilicus. Its orifice is soft and tumid, and dilated so as to admit two or more fingers. The fourchette; or anterior margin of the perinaeum, is sometimes torn, or it is lax, and appears to have suffered considerable distention. A discharge (termed the lochial) commences from the uterus, which is distinguished from the menses by its pale color, its peculiar and well-known smell, and its duration. The lochia are at first of a red color, and gradually become lighter until they cease.
7. These signs may generally be relied upon as indicating the state of pregnancy, yet it requires much experience in order not to be deceived by appearances.
8. - 1. The lochial discharge might be mistaken for menstruation, or fluor albus, were it not for its peculiar smell; and this it has been found impossible, by any artifice, to destroy.
9. - 2. Relaxation of the soft parts arises as frequently from menstruation as from delivery; but in these cases the os uteri and vagina are not so much tumefied, nor is there that tenderness and swelling. The parts are found pale and flabby, when all signs of contusion disappear, after delivery; and this circumstance does not follow menstruation.
10. - 3. The presence of milk, though a usual sign of delivery, is not always to be relied upon, for this secretion may take place independent of pregnancy.
11.-4. The wrinkles and relaxations of the abdomen which follow delivery, may be the consequence of dropsy, or of lankness following great obesity. This state of the parts is also seldom striking after the birth of the first child, as they shortly resume their natural state. Vide, generally, 1 Beck's Med. Jur. c. 7, p. 206; 1 Chit. Med. Jur. 411; Ryan's Med. Jur. ch. 10, p. 133; 1 Briand, Med. Leg. lere partie, c. 5.
DELUSION, med. jurisp. A diseased state of the mind, in which persons believe things to exist, which exist only, or in the degree they are conceived of only in their own imaginations, with a persuasion so fixed and firm, that neither evidence nor argument can convince them to the contrary.
2. The individual is, of course, insane. For example, should a parent unjustly persist without the least ground in attributing to his daughter a course of vice, and use her with uniform unkindness, there not being the slightest pretence or color of reason for the supposition, a just inference of insanity, or delusion, would arise in the minds of a jury: because a supposition long entertained and persisted in, after argument to the contrary, and against the natural affections of a parent, suggests that he must labor under some morbid mental delusion. 3 Addams' R. 90, 91; Id. 180; Hagg. R. 27 and see Dr. Connolly's Inquiry into Insanity, 384; Ray, Med. Jur. Prel. Views., §20, p. 41, and §22, p. 47; 3 Addams, R. 79; 1 Litt. R. 371 Annales d'Hygiene Publique, tom. 3, p. 370; 8 Watts, 70; 13 Ves. 89; 1 Pow. Dev. by Jarman, 130, note Shelf. on Lun. 296; 2 Bouv. Inst. n. 2104-10.
DEMAND, contracts. A claim; a legal obligation.
2. Lord Coke says, that demand is a word of art, and of an extent, in its signification, greater than any other word except claim. Litt. sect. 508; Co. Litt. 291; 2 Hill, R. 220; 9 S. & R. 124; 6 Watts and S. 226. Hence a release of all demands is, in general, a release of all covenants, real and personal, conditions, whether broken or not, annuities, recognizances, obligations, contracts, and the like. 3 Tho. Co. Litt. 427; 3 Penna, 120; 2 Hill, R. 228.
3. But a release of all demands does not discharge rent before it is due, if it be a rent incident to the reversion; for the rent was not only not due, but the consideration - the future enjoyment of the lands - for which the rent was to be given, was not executed. 1 Sid. 141; 1 Lev. 99 3 Lev. 274; Bac. Ab. Release, I.
DEMAND, practice. A requisition or a request by one individual to another to do a particular thing.
2. Demands are either express or implied. In many cases, an express demand must be made before the commencement of an action, some of whichwil l be considered below; in other cases an implied demand is all that the law requires, and the bringing of an action is a sufficient demand in those cases. 1 Saund. 33, note 2.
3. A demand is frequently necessary to secure to a man all his rights, both in actions arising on contracts and those which are founded on some tort. It is requisite also, when it is intended to bring the party into contempt for not performing an order which has been made a rule of court.
4. - 1. Whether a demand is requisite before the plaintiff can commence an action arising on contract, depends upon express or implied stipulations of the parties. In case of the sale of property, for example, to be paid for on delivery, a demand of it must be made before the commencement of an action for non-delivery, and proved on the trial, unless it can be shown that the seller has incapacitated himself by a resale and delivery of the property to another person, or otherwise. 1 East, R. 204 5 T. R. 409; 10 East, R. 359; 5 B. & Ald. 712 2 Bibb, 280 Hardin, 79; 1 Verm. 25; 5 Cowen, 516. 16 Mass. 453; 6 Mass. 61 4 Mass. 474; 3 Bibb, 85; 3 Wend. 556; 5 Munf. R. 1; 2 Greenl. 308; 9 John. 361; 6 Hill, N. Y. Rep. 297.
5. On the same principles, a request on a general promise to marry is requisite, unless it be dispensed with by the party's marrying another person, which puts it out of his power to fulfil his contract, or that he refuses to marry at any time. 2 Dow. & Ry. 55; 1 Chit. Pr. 57, note (n), and 438, note (e)
6. A demand of rent must always be made before a re-entry for the non-payment of rent. Vide Re-entry.
7. When a note is given and no time of payment is mentioned, it is payable immediately. 8 John. R. 374; 5 Cowen, R. 516 1 Conn. R. 404; 1 Bibb, R. 164; 1 Blackf. R. 233.
8. There are cases where, a demand is not originally necessary, but becomes so by the act of the obligor. On a promissory note no express demand of payment is requisite before bringing an action, but if the debtor tenders the amount due to the creditor on the note, it becomes necessary before bringing. an action, to make a demand of the debtor for payment; and this should be of the very sum tendered. 1 Campb. 181 Id. 474; 1 Stark. R. 323; 2 E. C. L. R. 409.
9. When a debt or obligation is payable, and no day of payment is fixed, it is payable, on demand. In omnibus obligationibus in quibus dies non ponitur, presenti die debitur. Jac. Introd. 62; 7 T. R. 427 Barn. & Cr. 157. The demand must, however, be made in a reasonable time, for after the lapse of twenty years, a presumption will arise that the note has been paid; but, like some other presumptions, it may be rebutted, by showing the fact that the note remains unpaid. 5 Esp. R. 52 1 D. & R. 16 Byles on Bills, 169.
10. When demand of the payment of a debt, secured by note or other instrument, is made, the party making it should be ready to deliver up such note or instrument, on payment. If it has been lost or destroyed, an indemnity should be offered. 2 Taunt. 61; 3 Taunt. 397; 5 Taunt. 30; 6 Mass. R. 524; 7 Mass. R. 483; 13 Mass. R. 557; 11 Wheat. R. 171; 4 Verm. R. 313; 7 Gill & Johns. 78 3 Whart. R. 116; 12 Pick. R. 132 17 Mass. 449.
11.-2. It is requisite in some cases arising ex delicto, to make a demand of restoration of the right before the commencement of an action.
12. The following are examples 1. When the wife, apprentice, or servant of one person, has been harbored by another, the proper course is to make a demand of restoration before an action brought, in order to constitute the party a wilful wrongdoer, unless the plaintiff can prove an original illegal enticing away. 2 Lev. 63: Willes, 582; 1 Peake's C. N. P. 55; 5 East, 39; 6 T. R. 652; 4 Moore's R. 12 16 E. C. L. R. 3 5 7.
13. - 2. In cases where the taking of goods is lawful, but their subsequent detention becomes illegal, it is absolutely necessary, in order to secure sufficient evidence of a conversion on the trial, to give a formal notice of the owner's right to the property and possession, and to make a formal demand in writing of thedelivery of such possession to the owner. The refusal to comply with such a demand, unless justified by some right which the possessor may have in the thing detained, will in general afford sufficient evidence of a conversion. 2 Saund. 47, note (e); 1 Chit. Pr. 566.
14. - 3. When a nuisance has been erected or continued by a man on his own land) it is advisable, particularly in the case of a private nuisance, to give the party notice and request him to remove it, either before an entry is made for the purpose of abating it, or an action is commenced against the wrong doer and a demand is always indispensable in cases of a continuance of a nuisance originally created by another person. 2 B. & C. 302; S. C. 9 E. C. L. R. 96 Cro. Jac. 555; 5 Co. 100, 101; 2 Phil. Ev. 8, 18, n. 119; 1 East, 111; 7 Vin. Ab. 506; 1 Ayl. Pand. 497; Bac. Ab. Rent, 1. Vide articles Abatement of Nuisance, and if Nuisance. For the allegation of a demand or request in a declaration, see article Licet scoepius requisitus; and Com. Dig. Pleader, C 70 2 Chit. Pl. 84; 1 Saund. 33, note 2; 1 Chit. Pl. 322.
15. - 4. When an order to pay money, or to do any other thing, has been made a rule of court, a demand for the payment of the money, or performance of the thing, must be made before an attachment will be issued for a contempt. 2 Dowl. P. C. 338, 448: 1 C. M. & R. 88, 459; 4 Tyr. 369; 2 Scott, 193; 4 Dowl. P. C. 114; 1 Hodges 197; 1 Har. & Woll. 216; 1 Hodges, 157; Id. 337; 4 Dowl. P. C. 86.
DEMAND IN RECONVENTION. In Louisiana, this term is used to signify the demand which the defendant institutes in consequence of that which the plaintiff has brought against him. Code of Pr. art. 374. Vide Cross action.
DEFANDANT, practice. The plaintiff or party who brings a real action, is called the demandant. Co. Litt. 127; 1 Com. Dig. 85.
DEMENCY, dementia, med. jur. A defect, hebetude, or imbecility of the under standing, general or partial, but confined to individual faculties of the mind, particularly those concerned in associating and comparing ideas, whence proceeds great, confusion and incapacity in arranging the thoughts. 1 Chit. Med. Jur. 351; Cyclop. Practical Med. tit. Insanity; Ray, Med. Jur. ch. 9; 1 -Beck's Med. Jur. 547.
2. Demency is attended with a general enfeeblement of the moral and intellectual faculties, consequence of age or disease, which were originally well developed and sound. It is characterised by forgetfulness of the past; indifference to the present and future, and a childish disposition. It differs from idiocy and imbecility. In these latter, the powers of the mind were never possessed, while in demency, they have been lost.
3. Demency may also be distinguished from mania, with which it is sometimes confounded. In the former, the mind has lost its strength, and thereby the reasoning faculty is impaired; while in the latter, the madness arises from an exaltation of vital power, or from a morbid excess of activity.
4. Demency is divided into acute and chronic. The former is a consequence of temporary errors of regimen, fevers, hemorrhages, &c., and is susceptible of cure the latter, or chronic demency, may succeed mania, apoplexy, epilepsy, masturbation, and drunkenness, but is generally that incurable decay of the mind which occurs in old age.
5. When demency has been fully established in its last stages, the acts of the individual of a civil nature will be void, because the party had no consenting mind. Vide Contracts; Wills; 2 Phillim. R. 449. Having no legal will or intention, he cannot of course commit a crime. Vide Insanity; Mania.
DEMESNE, Eng. law. The name given to that portion of the Iands of a manor which the lord retained in his own hands for the use of himself and family. These lands were called terra dominicales or demesne lands, because they were occupied by the lord, or dominus manerii, and his servants, &c. 2 Bl. Com. 90. Vide Ancient Demesne; Demesne as of fee; and Soil assault demesne.
DEMESNE AS OF FEE. A man is said to be seised in his demesne as of fee of a corporeal inheritance, because he has a property dominicum or demesne in the thing itself. 2 Bl. Com. 106. But when he has no dominion 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 demesne as of fee. Liit. s. 10; 17 S. & R. 196; Jones on Land Titles, i66.
2. Formerly it was the practice in an action on the case, e. g. for a nuisance to real estate, 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. Arch. Civ. Pl. 104; Co. Ent. 9, pl. 8 Lill. Ent. 62; 1 Saund. Rep. 346; Willes, Rep. 508. But such an action 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. on Pl. 322 Arch. Dig. 104; 1 Lutw. 12; 2 Mod. 71; 4 T. R. 718; 2 Saund. 1 Arch. Dig. 105; Cro. Car. 500. 575
DEMIDIETAS. This word is used in ancient records for a moiety, or one half. DEMIES. In some universities and colleges this term is synonymous with scholars. Boyle on Charities, 129.
DEMISE, contracts. In its most extended signification, it is a conveyance either in fee, for life, or for years. In its more technical meaning, it is a lease or conveyance for a term of years. Vide Cow. L. & T. Index, h. t.; Ad. Eject. Index, h. t.; 2 Hill. Ab. 130; Com. Dig. h. t., and the heads there referred to. According to Chief Justice Gibson, the term demise strictly denotes a posthumous grant, and no more. 5 1 Whart. R. 278. See 4 Bing. N. C. 678; S. C. 33 Eng. C. L. R. 492; 2 Bouv. Inst. n. 1774, et seq.
DEMISE, persons. A term nearly synonymous with death. It is usually applied in England to the death of the king or queen.
DEMOCRACY, government. That form of government in which the sovereign power is exercised by the people in a body, as was the practice in some of the states of Ancient Greece; the term representative democracy has been given to a republican government like that of the United States.
DEMONSTRATION. Whatever is said or written to designate a thing or person. For example, a gift of so much money, with a fund particularly referred to for its payment, so that if the fund be not the testator's property at his death, the legacy will fail; this is called a demonstrative legacy. 4 Ves. 751; Lownd. Leg. 85; Swinb. 485.
2. A legacy given to James, who married my cousin, is demonstrative; these expressions present the idea of a demonstration; there are many James, but only one who married my cousin. Vide Ayl. Pand. 130; Dig. 12, 1, 6; Id. 35, 1, 34 Inst. 2, 20, 30.
3. By demonstration is also understood that proof which excludes all possibility of error; for example, mathematical deductions.
DEMURRAGE, mar. law. The freighter of a ship is bound not to detain it, beyond the stipulated or usual time, to load, or to deliver the cargo, or to sail. The extra days beyond the lay days (being the days allowed to load and unload the cargo), are called the days of demurrage; and that term is likewise applied to the payment for such delay, and it may become due, either by the ship's detention, for the purpose of loading or unloading the cargo, either before, or during, or after the voyage, or in waiting for convoy. 3 Kent, Com. 159; 2 Marsh, 721; Abbott on Ship. 192 5 Com. Dig. 94, n., 505; 4 Taunt. 54, 55; 3 Chit. Com. Law, 426; Harr. Dig. Ship and Shipping, VII.
DEMURRER. (From the Latin demorari, or old French demorrer, to wait or stay.) In pleading, imports, according to its etymology, that the objecting party will not proceed with the pleading, because no sufficient statement has been made on the other side; but will wait the judgment of the court whether he is bound to answer. 5 Mod. 232; Co. Litt. 71, b; Steph. Pl. 61.
2. A demurrer may be for insufficiency either in substance or in form that is, it may be either on the ground that the case shown by the opposite party is essentially insufficient, or on the ground that it is stated in an inartificial manner; for the law requires in every pleading, two thing's; the one, that it be in matter sufficient; the other, that it be deduced and expressed according to the forms of law; and if either the one or the other of these be wanting, it is cause of demurrer. Hob. 164. A demurrer, as in its nature, so also in its form, is of two kinds; it is either general or special.
3. With respect to the effect of a demurrer, it is, first, a rule, that a demurrer admits all such matters of fact as are sufficiently pleaded. Bac. Abr. Pleas, N 3; Com. Dig. Pleader, Q 5. Again, it is it rule that, on a demurrer, the court will consider the whole record, and give judgment for the party who, on the whole, appears to be entitled to it. Com. Dig. Pleader, M. 1, M 2; Bad. Abr. Pleas. N 3; 5 Rep. 29 a: Hob. 56; 2 Wils. 150; 4 East, 502 1 Saund. 285 n. 5. For example, on a demurrer to the replication, if the court think the replication bad, but perceive a substantial fault in the plea, they will give judgment, not for the defendant, but for the plaintiff; 2 Wils. R. 1&0; provided the declaration be good; but if the declaration also be bad in substance, then upon the same principle, judgment would be given for the defendant. 5 Rep. 29 a. For when judgment is to be given, whether the issue be in law or fact, and whether the cause have proceeded to issue or not, the court is always to examine the whole record, and adjudge for the plaintiff or defendant, according to the legal right, as it may on the whole appear.
4. It is, however, subject to, the following exceptions; first, if the plaintiff demur to a plea in abatement, and the court decide against the plea, they will give judgment of respondeat ouster, without regard to any defect in the declaration. Lutw. 1592, 1667; 1 Salk. 212; Carth. 172 Secondly, the court will not look back into the record, to adjudge in favor of an apparent right in the plaintiff, unless the plaintiff have himself put his action upon that ground. 5 Barn. & Ald 507. Lastly, the court, in examining the whole record, to adjudge according to the apparent right, will consider the right in matter of substance, and not in respect of mere form, such as should have been the subject of a special demurrer. 2 Vent. 198-222.
5. There can be no demurrer to a demurrer: for a demurrer upon a demurrer, or pleading over when an issue in fact is offered, is a discontinuance. Salk. 219; Bac. Abr. Pleas, N 2.
6. Demurrers are general and special, and demurrers to evidence, and to in
terrogatories.
7. - 1. A general demurrer is one which excepts to the sufficiency of a previous pleading in general terms, without showing specifically the nature of the objection; and such demurrer is sufficient, when the objection is on matter of substance. Steph. Pl. 159; 1 Chit. Pl. 639; Lawes, Civ. Pl. 167; Bac. Abr. Pleas, N 5; Co. Lit. 72 a.
8. - 2. A special demurrer is one which excepts to the sufficiency of the pleadings on the,opposite side, and shows specifically the nature of the objection and the particuIar ground of exception. Co. Litt. 72, a.; Bac. Abr. Pleas, N 5.
9. A special demurrer is necessary, where it turns on matter of form only; that is, where, notwithstanding such objections, enough appears to entitle the opposite party to judgment, as far as relates to the merits of the cause. For, by two statutes, 27 Eliz. ch. 5, and 4 Ann. ch. 16, passed with a view to the discouragement of merely formal objections, it is provided in nearly the same terms, that the judges "shall give judgment according to the very right of the cause and matter in law as it shall appear unto them, without regarding any imperfection, omission, defect or want of form, except those only 'Which the party demurring shall, specifically. and particularly set down and express, together with his demurrer, as the causes of the same." Since these statutes, therefore, no mere matter of form can be objected to on a general demurrer; but the demurrer must be in the special form, and the objection specifically stated. But, on the other hand, it is to be observed, that, under a special demurrer, the party may, on the argument, not only take advantage of the particular faults which his demurrer specifies, but also of all objections in substance, or regarding the very right of the cause, (as the statute expresses it.) as under those statutes, need not be particularly set down. It follows, therefore, that unless the objection be clearly of the substantial kind, it is the safer course, in all cases, to demur specially. Yet, where a general demurrer is plainly efficient, it is more usually adopted in prctice; because the effect of the special form being to apprise the opposite party more distinctly of the nature of the objection, it is attended with the inconvenience, of enabling him to prepare to maintain his pleading by argument, or of leading him to apply the earlier to amend. With respect to the degree of particularity, with which, under these statutes, the special demurrer must assign the ground of objection, it may be observed, that it is not sufficient to object, in general terms, that the pleading is "uncertain, defective, and informal," or the like, but if is necessarily to show in what, it respect, uncertain, defective, and informal. 1 Saund. 161, n. 1, 337 b, n. 3; Steph. Pl. 159, 161; 1 Chit. Pl. 642.
10.- 3. A demurrer to evidence is analogous to a demurrer in pleading; the party from whom it comes declaring that he will not proceed, because the evidence offered on the other side, is not sufficient to maintain the issue. Upon joinder in demurrer, by the opposite party, the jury are, in general, discharged from giving any verdict; 1 Arch. Pr. 186; and the demurrer being entered on record, is afterwards argued and decided by the court in banc; and the judgment there given upon it, may ultimately be brought before a court of error. See 2 H. Bl. 187 4 Chit. Pr. 15 Gould on Pl. c. 9, part 2, §47 United States Dig. Pleading, Viii.
11. - 4. Demurrer to interrogatories. By this phrase is understood the reasons which a witness tenders for not answering a particular question in interrogatories. 2 Swanst. R. 194. Strictly speaking, this is not a demurrer, which admits the facts stated, for the purpose of taking the. opinion of the court but by an abuse of the term, the witness objection to answer is called a demurrer, in the popular sense. Gresl. Eq. Ev. 61.
12. The court are judicially to determine their validity. The witness must state his objection very carefully, for these demurrers are held to strict rules, and are readily overruled if they cover too much. 2 Atk. 524; 1 Y. & J. 32. See, in general, as to demurrers,, Bac. Abr. Pleas, N; Com. Dig. Pleader, Q; Saund. Rep. Index, tit. Demurrers; Lawes Civ. Pl. ch. 8; 1 Chit. Pl. 639-649 Bouv. Inst. Index, h. t.
DEMURRER BOOK Eng. law. When an issue in law is formed, a transcript is made upon paper of all the pleadings that have been filed or delivered between the parties, which transcript is called the demurrer book. Steph. Pl. 95. See Paper book.
DEMY SANKE or SANGUE. This is a barbarous corruption of, demi sang, half-blood. (q. v.)
DENARII. An ancient general term for any sort of pecunia numerata, or ready money. The French use the word denier in the same sense: payer de ses propres deniers.
DENARIUS DEI. A term used in some countries to signify a certain sum of money which is given by one of the contracting parties to the other, as a sign of the completion of the contract.
2. It does not however bind the parties he who received it may return it in a limited time, or the other may abandon it, and avoid the engagement.
3. It differs from arrhae in this, that the latter is a part of the consideration, while the denarius dei is no part of it. 1 Duverg. n. 132 3 Duverg. n. 49; Repert. de Jur. verbo Denier a Dieu.
DENIAL, pleading. To traverse the statement of the opposite party a defence. See Defence; Traverse.
DENIER A DIEU, French law. It is a sum of money which the hirer of a thing gives to the other party as evidence, or for the consideration of the * contract, which either party may annul, within twenty-four hours, the one who, giving the denier a dieu, by demanding, and the other by returning it. It differs from arrhae. Vide Arrhae; Denarius Dei.
DENIZATION, Eng. law.. The act by which a foreigner becomes a subject of England; but he has not the rights either of a natural born subject, nor of one who has become naturalized. Bac. Ab. Aliens, B.
DENIZEN, English law. An alien born, who has obtained, ex donatione legis, letters patent to make him au English subject.
2. He is intermediate between a natural born subject and an alien. He may. take lands by purchase or devise, which an alien cannot, but he is incapable of taking by inheritance. 1 Bl. Com. 374. In the United States there is no such civil condition.
DENUNCIATION, crim. law. This term is used by the civilians to signify the act by which au individual informs a public officer, whose duty it is to prosecute offenders, that a crime has been committed. It differs from a complaint. (q. v.) Vide 1 Bro. C. L. 447; 2 Id. 389; Ayl. Parer. 210, Poth. Proc. Cr. sect. 2, §2.
DEODAND, English law. This word is derived from Deo dandum, to be given to God; and is used to designate the instrument, whether it be an animal or inanimate thing, which has caused the death of a man. 3 Inst. 57; Hawk. bk. 1, c. 8.
2. The deodand is forfeited to the king, and was formerly applied to pious uses. But the presentment of a deodand by a grand jury, under their general charge from the judge of assize, is void. 1 Burr. Rep. 17.
DEPARTMENT. A portion of a country. In France, the country is divided into departments, which are somewhat similar to the counties in this country. The United States have been divided into military departments, including certain portions of the country. 1 Pet. 293.
2. By department is also meant the division of authority, as, the department of state, of the navy, &c.
DEPARTMENT OF THE NAVY, government. The Act of April 80, 1798, 1 Story's Laws, 498, establishes an executive department, under the denomination of the department of the navy, the chief officer of which shall be called the secretary of the navy. (q. v.)
2. A principal clerk, and such other clerks as he shall think necessary, shall be appointed by the secretary of the navy, who shall be employed in such manner as he shall deem most expedient. In case of vacancy in the office of the secretary, by removal or otherwise, it shall be the duty of the principal clerk to take charge and custody of all books, records, and documents of said office. Id. s. 2
DEPARTMENT OF STATE, government. The laws of the United States provide that there shall be an executive department, denominated the department of state; and a principal officer therein, called the secretary of state. (q. v.) Acts of July 27, 1789; September 15, 1789, s. 1. There shall be in such department an inferior officer, to be appointed by the Secretary, and employed therein, as he shall deem proper, to be called the chief clerk of the department of state. (q. v.) Act of July 27, 1789, s. 2.
2. He may employ, besides, one chief clerk, whose compensation shall not exceed two thousand dollars. per annum; two clerks, whose compensation shall not exceed one thousand six hundred dollars; four clerks, whose compensation shall not exceed one thousand four hundred dollars each; one clerk, whose compensation shall not exceed one thousand dollars; two clerks, whose compensation shall not exceed eight hundred dollars each; one, messenger and assistant, at a compensation not exceeding one thousand and fifty dollars per annum; one superintendent of the patent office, whose compensation shall not exceed one thousand five hundred dollars; and, in the patent office, one clerk, whose compensation shall not exceed one thousand dollars; one machinist, at a compensation not exceeding seven hundred dollars; and one messenger, at a compensation not exceeding four hundred dollars per annum. Act of May 26, 1824; Act of April 20, 1818, s. 2.
3. By the Act of March 2, 1827, 3 Story's Laws, 2061, he is authorized to employ, in the state department, one additional clerk, whose compensationsh all not exceed sixteen hundred dollars; two additional clerks, whose compensation shall not exceed one thousand dollars each; and one additional clerk for the patent office, whose compensation shall not exceed eight hundred dollars.
DEPARTMENT OF THE TREASURY OF THE UNITED STATES, government. The department of the treasury is constituted of the following officers, namely: the secretary of the treasury, (q. v.) the head of the department, two comptrollers, five auditors, a treasurer, a register, and a commissioner of the land office.
2. Each of these officers is required to perform certain appropriate duties, in which they are assisted by numerous clerks. They are prohibited from carrying on the business of trade or commerce, from being the owners or part owners of any sea vessel, from buying any public lands, from disposing or purchasing any securities of any state, or of the United States, from receiving or applying to their own use any emolument or gain in transacting business in this department, other than what shall be allowed by law, under the penalty of three thousand dollars, and of being removed from office, and of being thereafter incapable of holding any office under the United States. Gord. Dig. 228 to 248
DEPARTMENT OF WAR, government. The act of August 7, 1789, 1 Story's Laws, 31, creates an executive department, to be denominated the department of war; and there shall be a principal officer therein, to be called the secretary for the department of war. (q. v.) .
2. There shall be in the said department, an inferior officer, to be appointed by the secretary, to be employed therein, and to be called the chief clerk in the department of war, and who, whenever the said principal officer shall be removed by the president, or in any other case of vacancy, shall, during such vacancy, have the charge and custody of all records, books, and papers, appertaining to the said department. Id.
DEPARTURE, pleading. Said to be when a party quits or departs from the case, or defence, which he has first made, and has recourse to another; it is when his replication or rejoinder contains matter not pursuant to the declaration, or plea, and which does not support and fortify it. Co. Litt. 304, a; 2 Saund. 84, a, n. (1); 2 Wils. 98; 1 Chit. Pl. 619. The following example will illustrate what is a departure: if to assumpsit, the defendant plead infancy, and to a replication of necessaries, rejoin, duress, payment, release, &c., the rejoinder is a departure , and a good cause of demurrer, because the defendant quits or departs from the case or defence which he first made, though either of these matters, newly pleaded, would have been a good bar, if first pleaded as such.
2. A departure in pleading is never allowed, for the record would, by such means, be spun out into endless prolixity; for he who has departed from and relinquished his first plea, might resort to a second, third, fourth, or even fortieth defence; pleading would, by such means, become infinite. He who had a bad cause, would never be brought to issue, and he who had a good one, would never obtain the end of his suit. Summary on Pleading, 92; 2 Saund. 84, a. n. (l); 16 East, R. 39; 1 M. & S. 395 Coin. Dig. Pleader, F 7, 11; Bac. Abr. Pleas, L; Vin. Abr. Departure; 1 Archb. Civ. Pl. 247, 253; 1 Chit. Pl. 618.
3. A departure is cured by a verdict in favor of him who makes it, if the matter pleaded by way of departure is a sufficient answer, in substance, to what is before pleaded by the opposite party; that is, if it would have been sufficient, if pleaded in the first instance. 2 Saund. 84 1 Lill. Ab. 444.
DEPARTURE, maritime law. A deviation from the course of the voyage insured. 2. A departure is justifiable or not justifiable it is justifiable ill consequence of the stress of weather, to make necessary repairs, to succor a ship in distress, to avoid capture, of inability to navigate the ship, mutiny of the crew, or other compulsion. 1 Bouv. Inst. n. 1189.
DEPENDENCY. A territory distinct from the country in which the supreme sovereign, power resides, but belonging rightfully to it, and subject to the laws and regulations which the sovereign may think proper to prescribe. It differs from a colony, because it is not settled by the citizens of the sovereign or mother state; and from possession, because it is held by other title than that of mere conquest: for example, Malta was considered a dependency of Great Britain in the year 1813. 3 Wash. C. C. R. 286. Vide act of congress, March 1, 1809, commonly called the non-importation law.
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. Ham. on Part. 17, 29, 30, 109.
DEPONENT, witness. One who gives information, on oath or affirmation, respecting some facts known to him, before a magistrate he who makes a deposition.
DEPOPULATION. In its most proper signification, is the destruction of the people of a country or place. This word is, however, taken rather in a passive than an active one; we say depopulation, to designate a diminution of inhabitants, arising either from violent causes, or the want of multiplication. Vide 12 Co. 30.
DEPORTATION, civil law. Among the Romans a perpetual banishment, depriving the banished of his rights as a citizen; it differed from relegation (q. v.) and exile. (q. v.). 1 Bro. Civ. Law, 125 note; Inst. 1, 12, 1 and 2; -Dig. 48, 22, 14, 1.
TO DEPOSE, practice. To make a deposition; to give testimony as a witness.
TO DEPOSE, rights. The act of depriving an individual of a public employment or office, against his will. Wolff, §1063. The term is usually applied to the deprivation of all authority of a sovereign.
DEPOSIT, contracts. Usually defined to be a naked bailment of goods to be kept for the bailor, without reward, and to be returned when he shall require it. Jones' Bailm. 36, 117; 1 Bell's Com. 257. See also Dane's Abr. ch. 17, aft. 1, §3; Story on Bailm. c. 2, §41. Pothier defines it to be a contract, by which one of the contracting parties gives a thing to another to keep, who is to do so gratuitously, and obliges himself to return it when he shall be requested. Traite du Depot. See Code Civ. tit. 11, c. 1, art. 1915; Louisiana Code, tit. 13, c. 1, art. 2897.
2. Deposits, in the civil law, are divisible into two kinds; necessary and voluntary. A necessary deposit is such as arises from pressing necessity; as, for instance, in case of a fire, a shipwreck, or other overwhelming calamity; and thence it is called miserabile depositum. Louis. Code 2935. A voluntary deposit is such as arises without any such calamity, from the mere consent or agreement of the parties. Dig. lib. 16, tit. 3, §2.
3. This distinction was material in the civil law, in respect to the remedy, for in voluntary deposits @ the action was only in simplum; in the other in duplum, or two-fold, whenever the depositary was guilty of any default. The common law has made no such distinction, and, therefore, in a necessary deposit, the remedy is limited to damages co-extensive with the wrong. Jones, Bailm. 48.
4. Deposits are again divided by the civil law into simple deposits, and sequestrations; the former is when there is but one party depositor (of whatever number composed), having a common interest; the latter is where there are two or more depositors, having each a different and adverse interest. See Sequestration.
5. These distinctions give rise to very different considerations in point of responsibility and rights. Hitherto they do not seem to have been incorporated in the common law; though if cases should arise, the principles applicable to them would scarcely fail of receiving general approbation, at least, so far as they affect the rights and responsibilities of the parties. Cases of judicial sequestration and deposits, especially in courts of chancery and admiralty, may hereafter require the subject to be fully investigated. At present, there have been few cases in which it has been necessary to consider upon whom the loss should fall when the property has perished in the custody of the law. Story on Bailm. §41-46.
6. There is another class of deposits noticed by Pothier, and called by him irregular deposits. This arises when a party having a sum of money which he doe's not think safe in his own hands; confides it to another, who is to return him, not the same money , but a like sum when he shall demand it. Poth. Traite du Depot, ch. 3, §3. The usual deposit made by a person dealing with a bank is of this nature. The depositor, in such case, becomes merely a creditor of the depositary for the money or other thing which he binds himself to return.
7. This species of deposit is also called an improper deposit, to distinguish it from one that is regular and proper, and which latter is sometimes called a special deposit. 1 Bell's Com. 257-8. See 4 Blackf. R. 395.
8. There is a kind of deposit which may, for distinction's sake, be called a quasi deposit, which is governed, by the same general rule as common deposits. It is when a party comes lawfully to the possession of another person's property by finding. Under such circumstances, the finder seems bound to the same reasonable care of it as any voluntary depositary ex contractu. Doct. & Stu. Dial. 2, ch. 38; Story on Bailm. §85; and see Bac. Abr. Bailm. D. See further, on the subject of deposits, Louis. Code, tit. 13; Bac. Abr. Bailment; Digest, depositi vel contra; Code, lib. 4, tit. 34; Inst. lib. 3, tit. 15, §3; Nov. 73 and 78; Domat, liv. 1, tit. 7, et tom. 2, liv. 3, tit. 1, s. 5, n. 26; 1 Bouv. Inst. n. 1053, et seq.
DEPOSITARY, contracts. He with whom a deposit is confided or made.
2. It is, the essence of the contract of deposits that it should be gratuitous on the part 'of the depositary. 9 M. R. 470. Being a bailee without reward, the depositary is bound to slight diligence only, and he is not therefore answerable except for gross neglect. 1 Dane's Abr. c. 17, art. 2. But in every case good faith requires that he should take reasonable care; and what is reasonable care, must materially depend upon the nature and quality of the thing, the circumstances under which it is deposited, and sometimes upon the character and confidence, and particular dealing of the parties. See 14 Serg. & Rawle, 275. The degree of care and diligence is not altered by the fact, that the depositary is the joint owner of the goods with the depositor; for in such a case, if the possessor is guilty of gross negligence, he will still be responsible, in the same manner as a common depositary, having no interest in the thing. Jones' Bailm. 82, 83. As to the care which. a depositary is bound to use, see 2 Ld. Raym. 900, 914; 1 Ld. Raym. 655; 2 Kent's Com. 438; 17 Mass. R. 479, 499; 4 Burr.. 2298; 14 Serg. & Rawle, 275; Jonees' Bailm. 8; Story on Bailm. §63, 64.
3. The depositary is bound to return the deposit in individuo, and in the same state in which he received it; if it is lost, or injured, or spoiled, by his fraud or gross negligence, he is responsible to the extent of the loss or injury. Jones' Bailm. 36, 46, 120; 17 Mass. R. 479; 2 Hawk. N. Car. R. 145; 1 Dane's Abr. c. 17, art. 1 and 2. He is also bound to restore, not only the thing deposited, but any increase or profits which may have accrued from it; if an animal deposited bear young, the latter are to be delivered to the owner. Story on Bailm. §99.
4. In general it may be laid down that a depositary has no, right to use the thing deposited. Bac. Abr. Bailm. D; Jones' Bailm. 81, 82; 1 Dane's Abr. c. 17, art. 11, §2. But this proposition must be received with many qualifications. There are certain cases, in which the use of the thing may be necessary for the due preservation of the deposit. There are others, again, where it would be mischievous; and others again, where it would be, if not beneficial, at least indifferent. Jones' Bailm. 81, 82; Owen's R. 123, 124; 2 Salk. 522; 2 Kent's Com. 450. The best general rule on the subject, is to consider whether there may or may not be an implied consent, on the part of the owner, to the use. If the use would be for the benefit of the deposit, the assent of the owner may well be presumed; if to his injury, or perilous, it ought not to be presumed; if the use would be indifferent, and other circumstances, do not incline either way, the use may be deemed not allowable. Jones' Bailm. 80, 81; Story on Bailm. §90; 1 Bouv. Inst. n. 1008, et seq.
DEPOSITION, evidence. The testimony of a witness reduced to writing, in due form of law, taken by virtue of a commission or other authority of a competent tribunal.
2. Before it is taken, the witness ought to be sworn or affirmed to declare the truth, the whole truth, and nothing but the truth. It should properly be written by the commissioner appointed to take it, or by the witness himself; 3 Penna. R. 41; or by one not interested in the matter in dispute, who is properly authorized by the commissioner. 8 Watts, R. 406, 524. It ought to answer all the interrogatories, and be signed by the witness, when he can write, and by the commissioner. When the witness cannot write, it ought to be so stated, and he should make his mark or cross.
3. Depositions in criminal cases cannot be taken without the consent of the defendant. Vide, generally, 1 Phil. Ev. 286; 1 Vern. 413, note; Ayl. Pand. 206; 2 Supp. to Ves. jr. 309; 7 Vin. Ab. 553; 12 Vin. Ab. 107; Dane's Ab. Index, h. t.; Com. Dig. Chancery, P 8, T 4, T 5; Com. Dig. Testmoigne, C 4.
4. The Act of September 24, 1789, s. 30, 1 Story's L. U. S. 64, directs that when the testimony of any person shall be necessary in any civil cause depending in any district, in any court of the United States, who shall live at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of such district, and to a greater distance from the place of trial than as aforesaid, before the time of trial, or is ancient, or very infirm, the deposition of such person may be taken de bene esse, before any justice or judge of any of the courts of the United States, or before any chancellor, justice, or judge of a supreme or superior court, mayor, or chief magistrate of a city, or judge of a county court or court of common pleas of any of the United States, not being of counsel or attorney to either of the parties, or interested in the event of the cause; provided that a notification from the magistrate before whom the deposition is to be taken, to the adverse party, to be present at the taking of the same, and to put interrogatories, if he think fit, be first made out and served ou the adverse party, or his attorney, as either may be nearest, if either is within one hundred miles of the place of such caption, allowing time for their attendance after being notified, not less than at the rate of one day, Sundays exclusive, for every twenty miles travel . And in causes of admiralty and maritime jurisdiction, or other causes of seizure, when a libel shall be filed, in which an adverse party is not named, and depositions of persons, circumstanced as aforesaid, shall be taken before a claim be put in, the like notification, as aforesaid, shall be given to the person having the agency or possession of the property libelled at the time of the capture or seizure of the same, if known to the libellant. And every person deposing as aforesaid, shall be carefully examined and cautioned, and sworn or affirmed to testify the whole truth, and shall subscribe the testimony by him or her given, after the same shall be reduced to writing, which shall be done only by the magistrate taking the deposition, or by the deponent in his presence. And the deposition so taken shall be retained by such magistrate, until he deliver the same with his own, hand into the court for which they are taken, or shall, together with a certificate of the reasons as aforesaid, of their being taken, and of the notice, if any given, to the adverse party, be by him, the said magistrate, sealed up and directed to such court, and remain under his seal until opened in court. And any person may be compelled to appear and depose as aforesaid, in the same manner as to appear and testify in court. And in the trial of any cause of admiralty or maritime jurisdiction in a district court, the decree in which may be appealed from, if either party shall suggest to and satisfy the court, that probably it will not be in his power to produce the witnesses, there testifying, before the circuit court, should an appeal be had, and shall move that their testimony shall be taken down in writing, it shall be so done by the clerk of the court. And if an appeal be had, such testimony may be used on the trial of the same, if it shall appear to the satisfaction of the court, which shall try the appeal, that the witnesses are then dead, or gone out of the United States, or to, a greater distance than as aforesaid, from the place where the court is sitting; or that, by reason of age, sickness, bodily infirmity, or imprisonment, they are unable to travel or, appear at court, but not otherwise. And unless the same shall be made to appear on the trial of any cause, with respect to witnesses whose depositions may have been taken therein, such depositions shall not be admitted or used in the cause. Provided, that nothing herein shall be construed to prevent any court of the United States from granting a dedimus potestatem, to take depositions according to common usage, when it may be necessary to prevent a failure or delay of justice; which power they shall severally possess nor to extend to depositions taken in perpetuam rei memoriam, which, if they relate to matters that may be cognizable in any court of the United States, a circuit court, on application thereto made as a court of equity, may, according to the usages in chancery, direct to be taken.
5. The Act of January 24, 1827, 3 Story's L. U. S . 2040, authorizes the clerk of any court of the United States within which a witness resides or where he is found, to issue a subpoena to compel the attendance of such witness, and a neglect of the witness to attend may be punished by the court whose clerk has issued the subpoena, as for a contempt. And when papers are wanted by the parties litigant, the judge of the court within which they are, may issue a subpoena duces tecum, and enforce obedience by punishment as for a contempt. For the form and style of depositions, see Gresl. Eq. Ev. 77.
DEPOSITION, eccl. law. The act of depriving a clergyman, by a competent tribunal, of his clerical orders, to punish him for some offence, and to prevent his acting in future in his clerical character. Ayl. Par. 206.
DEPOSITOR, contracts. He who makes a deposit.
2. He is generally entitled to receive the deposit from the depositary, but to this rule there are exceptions; as. when the depositor at the time of making the deposit had no title to the property deposited, and the owner claims it from the depositary, the depositor cannot recover it; and for this reason, that he can never be in a better situation than the owner. 1 Barn. & Ald. 450; 5 Taunt. 759. As to the place where the depositor is entitled to receive his deposit, see Story on Bailm. §117-120 1 Bouv. Inst. n. 1063.
DEPREDATION, French law. The pillage which is made of the goods of a decedent. Ferr. Mod. h. t.
DEPRIVATION, ecclesiastical Punishment. A censure by which a clergyman is deprived of his parsonage, vicarage, or other ecclesiastical promotion or dignity. Vide Ayliffe's Parerg. 206; 1 Bl. Com. 393.
DEPUTY. One authorized by an officer to exercise the office or right which the officer possesses, for and in place of the latter.
2. In general, ministerial officers can appoint deputies; Com. Dig. Officer, D 1; unless the office is to be exercised by the ministerial officer in person; and where the office partakes of a judicial and ministerial character, although a deputy may be made for the performance of ministerial acts, one cannot be made for the performance of a judicial act; a sheriff cannot therefore make a deputy to hold an inquisition, under a writ of inquiry, though he may appoint a deputy to serve a writ.,
3. In general, a deputy has power to do every act which his principal might do but a deputy cannot make a deputy.
4. A deputy should always act in the name of his principal. The principal is liable for the deputy's acts performed by him as such, and for the neglect of the deputy; Dane's Ab. vol. 3, c. 76, a. 2; and the deputy is liable himself to the person injured for his own tortious acts. Dane's Ab. Index, h. t.; Com. Dig. Officer, D; Viscount, B. Vide 7 Vin. Ab. 556 Arch. Civ. Pl. 68; 16 John. R. 108.
DEPUTY OF THE ATTORNEY GENERAL. An officer appointed by the attorney general, who is to hold his office during the pleasure of the latter, and whose duty it is to perform, within a specified district, the duties of the attorney general. He must be a member of the bar. In Pennsylvania, by an act of assembly, passed May 3, 1850, district attorneys are elected by the people, who are required to perform the duties which, before that act, were performed by deputies of the attorney general.
DEPUTY DISTRICT ATTORNEYS. The Act of Congress of March 3, 1815, 2 Story L. U. S. 1530, authorizes and directs the district attorneys of the United States to appoint by warrant, an attorney as their substitute or deputy in all cases when necessary to sue or prosecute for the United States, in any of the state or county courts, by that act invested with certain jurisdiction, within the sphere of whose jurisdiction the said district attorneys do not themselves reside or practice; and the said substitute or deputy shall be sworn or affirmed to the faithful execution of his duty.
DERELICT, common law. This term is applied in the common law in a different sense from what it bears in the civil law. In the former it is applied to lands left by the sea.
2. When so left by degrees the derelict land belongs to the owner of the soil adjoining but when the sea retires suddenly, it belongs to the government. 2 Bl. Com. 262 1 Bro. Civ. Law, 239; 1 Sumn. 328, 490 1 Gallis. 138; Bee, R. 62, 178, 260; Ware, R. 332.
DERELICTO, civil law. Goods voluntarily abandoned by their owner; he must, however, leave them, not only sine spe revertendi, but also sine animzo revertendi; his intention to abandon them may be inferred by the great length of time during which he may have been out of possession, without any attempt to regain them. 1 Bro. Civ. Law, 239; 2 Bro. Civ. Law, 51; Wood's Civ. Law, 156; 19 Amer. Jur. 219, 221, 222 Dane's Ab. Index, h. t.; 1 Ware's R. 4 1.
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 acquired 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 derivative 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 reservations of right. Derivative title must always be by contract.
2. Derivative conveyances are, those which presuppose some other precedent conveyance, and serve only to enlarge, confirm, alter, restrain, restore, or transfer the interest granted by such original conveyance, 3 Bl. Com. 321.
DERIVATIVE POWER. An authority by which one person enables another to do an act for him. See Powers.
DEROGATION, civil law. The partial abrogation of a law; to derogate from a law is to enact something which is contrary to it; to abrogate a law is' to abolish it entirely. Dig. lib. 50, t. 17, 1. 102. See Abrogation.
DESCENDANTS. Those who have issued from an individual, and include his children, grandchildren, and their children to the remotest degree. Ambl. 327 2 Bro. C. C. 30; Id. 230 3 Bro. C. C. 367; 1 Rop. Leg. 115; 2 Bouv. n. 1956.
2. The descendants form what is called the direct descending line. Vide Line. The term is opposed to that of ascendants. (q. v.)
3. There is a difference between the number of ascendants and descendants which a man may have every one his the same order of ascendants, though they may not be exactly alike as to numbers, because 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. In the descent; as formedon in the descender. Bac. Ab. Formedon, A 1. Vide Formedon.
DESCENT. Hereditary succession. Descent is the title, whereby a person, upon the death of his ancestor, acquires the estate of the latter, as his heir at law: This manner of acquiring title is directly opposed to that of purchase. (q. v.) 2 Bouv. Inst. n. 1952, et seq.
2. It will be proper to consider, 1. What kind of property descends; and, 2. The general rules of descent.
3. - §1. All real estate, and all freehold of inheritance in land, descend to the heir. And, as being accessory to the land and making a part of the inheritance, fixtures, and emblements, and all things annexed to, or connected with the land, descend with it to the heir. Terms for years, and other estates less than freehold, pass to the executor, and are not subjects of descent. It is a rule at common law that no one can inherit read estate unless he was heir to the person last seised. This does not apply as a general rule in the United States. Vide article Possessio fratris.
4. - §2. The general rules of the law of descent. 1. It is a general rule in the law of inheritance, that if a person owning real estate, dies seised, or as owner, without devising the same, the estate shall descend to his descendants in the direct line of lineal descent, and if there be but one person, then to him or her alone; and if more than one person, and all of equal degree of consanguinity to the ancestor, then the inheritance shall descend to the several persons as tenants in common in equal parts, however remote from the intestate the common degree of consanguinity may be. This rule is in favor of the equal claims of descending line, in the same degree, without distinction of sex, and to the exclusion of all other claimants. The following example will, illustrate it; it consists of three distinct cases: 1. Suppose Paul shall die seised of real estate, leaving two sons and a daughter, in this case the estate would descend to them in equal parts; but suppose, 2. That instead of children, he should leave several grandchildren, two of them the children of his son Peter, and one the son of his son John, these will inherit the estate in equal proportions; or, 3. Instead of children and grandchildren, suppose Paul left ten great grandchildren, one the lineal descendant of his son John, and nine the descendants of his son Peter; these, like the others, would partake equally of the inheritance as tenants in common. According to 'Chancellor Kent, this rule prevails in all the United States, with this variation, that in Vermont the male descendants take double the share of females; and in South Carolina, the widow takes one-third of the estate in fee; and in Georgia, she tales a child's share in fee, if there be any children, and, if none, she then takes in each of those states, a moiety of the estate. In North and South Carolina, the claimant takes in all cases, per stirpes, though standing in the same degree. 4 Kent, Com. 371; Reeves' Law of Desc. passim; Griff. Law Reg., answers to the 6th interr. under the head of each state. In Louisiana the rule is, that in all cases in which representation is admitted, the partition is made by roots; if one root has produced several branches, the subdivision is also made by root in each branch, and the members of the branch take between them by heads. Civil Code, art. 895.
5. - 2. It is also a rule, that if a person dying seised, or as owner of the land, leaves lawful issue of different degrees of consanguinity, the inheritance shall descend to the children and grandchildren ofthe ancestor, if any be living, and to the issue of such children and grandchildren as shall be dead, and so on to the remotest degree, as tenants in common; but such grandchildren and their descendants, shall inherit only such share as their parents respectively would have inherited if living. This rule may be illustrated by the following example: 1. Suppose Peter, the ancestor, had two children; John, dead, (represented in the following diagram by figure 1,) and Maria, living (fig. 2); John had two children, Joseph, living, (fig. 3,) and Charles, dead (fig. 4); Charles had two children, Robert, living, (fig. 5,) and James, dead (fig. 6.); James had two children, both living, Ann, (fig. 7,) and William, (fig. 8.)
Peter (0) the ancestor. - ȸ¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸Ø - - (1) John (2) Maria - ȸ¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸Ø - - (3) Joseph (4) Charles - ȸ¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸Ø - - (5) Robert (6) James - ȸ¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸Ø - - (7) Ann (8) William
In this case Maria would inherit one-half; Joseph, the son of John, one-half of the half, or quarter of the whole; Robert, one-eighth of the whole; and Ann and William, each one-sixteenth of the whole, which they would hold as tenants in common in these proportions. This is called inheritance per stirpes, by roots, because the heirs take in such portions only as their immediate ancestors would have inherited if living.
6. - 3. When the owner of land dies without lawful issue, leaving parents, it is the rule in some of the states, that the inheritance shall. ascend to them, first to the father, and then to the mother, or jointly to both, under certain regulations prescribed by statute.
7. - 4. When the intestate dies without issue or parents, the estate descends to his brothers and sisters and their representatives. When there are such relations, and all of equal degree of consanguinity to the intestate, the inheritance descends to them in equal parts, however remote from the intestate the common degree of consanguinity may be. When all the heirs are brothers and sisters, or all of them nephews and nieces, they take equally. When some are dead who leave issue, and some are living, then those who are living take the share they would have taken if all had been living, and the descendants of those who are dead inherit only the share which their immediate parents would have received if living. When the direct lineal descendants stand in equal degrees, they take per capita, by the head, each one full share; when, on the contrary, they stand in different degrees of consanguinity to the common ancestor, they take per stirpes, by roots, by right of representation. It is nearly a general rule, that the ascending line, after parents, is postponed to the collateral line of brothers and sisters. Considerable difference exists in the laws of the several states, when the next of kin are nephews and nieces, and uncles and aunts claim as standing in the same degree. In many of the states, all these relations take equally as being next of kin; this is the rule in the states of New Hampshire, Vermont, (subject to the claim of the males to a double portion as above stated,) Rhode Island, North Carolina, and Louisiana. In Alabama, Connecticut, Delaware, Georgia, Indiana, Illinois, Kentucky, Maine, Maryland, Massachusetts, Mississippi, Missouri, New Jersey, New York, Ohio, Pennsylvaaia, South Carolina, Tennessee, and Virginia, on the contrary, nephews and nieces take in exclusion of uncles and aunts, though they be of equal degree of consanguinity to the intestate. In Alabama, Connecticut, Georgia, Maryland, New Hampshire, Ohio, Rhode Island, and Vermont, there is no representation among collaterals after the children of brothers and sisters in Delaware, none after the grandchildren. of brothers and sisters. In Louisiana, the ascending line must be exhausted before the estate passes to collaterals, Code, art. 910. In North Carolina, claimants take per stirpes in every case, though they stand in equal degree of consanguinity to the common ancestor. As to the distinction between whole and half blood, vide Half blood.
8. - 5. Chancellor Kent lays it down as a general rule in the American law of descent, that when the intestate has left no lineal descendants, nor parents, nor brothers, nor sisters, or their descendants, that the grandfather takes the estate, before uncles and aunts, as being nearest of kin to the intestate.
9. - 6. When the intestate dies leaving no lineal descendants, nor parents, nor brothers, nor sisters, nor any of their descendants, nor grand parents, as a general rule, it is presumed, the inheritance descends to the brothers and sisters, of both the intestate's parents, and to their descendants, equally. When they all stand in equal degree to the intestate, they take per capita, and when in unequal degree, per stirpes. To this general rule, however, there are sligbt variations in some of the states, as, in Now York, grand parents do not take before collaterals.
10. - 7. When the inheritance came to the intestate on the part of the father, then the brothers and sisters of the father and their descendant's shall have the preference, and, in default of them, the estate shall descend to the brothers and sisters of the mother, and their descendants and where the inheritance comes to the intestate on the part of his mother, then her brothers and sisters, and their descendants, have a preference, and in default of them, the brothers and sisters on the side of the father, and their descendants, inherit. This is the rule in Connecticut, New Jersey, New York, North Carolina, Ohio, Rhode island, Tennessee, and Virginia. In Pennsylvania, it is provided by act of assembly, April 8, 1833, that no person who is not of the blood of the ancestors or other relations from whom any real estate descended, or by whom it was given or devised to the intestate, shall in any of the cases before mentioned, take any estate of inheritance therein, but such real estate subject to such life estate as may be in existence by virtue of this act, shall pass to and vest in such other persons as would be entitled by this act, if the persons not of the blood of such ancestor, or other relation, had never existed, or were dead at the decease of the intestate. In some of the states there is perhaps no distinction as to the descent, whether they have been acquired by purchase or by descent from an ancestor.
11. - 8. When there is a failure of heirs under the preceding rules, the inheritance descends" to the remaining next of kin of the intestate, according to the rules in the statute of distribution of the personal estate, subject to the doctrine in the preceding rules in the different states as to the half blood, to ancestral estates, and as to the equality of distribution. This rule prevails in several states, subject to some peculiarities in the local laws of descent, which extend to this rule.
12. It is proper before closing this article, to remind the reader, that in computing the degrees of consanguinity, the civil law is followed generally in this country, except in Norrh Carolina, where the rules of the common law in their application to descents are adopted, to ascertain the degree of consanguinity. Vide the articles Branch; Consanguinity; Degree; Line.
DESCRIPTIO PERSONAE. Description of the person. In wills, it frequently happens, that the word heir is used as a descriptio personae; it is then a sufficient designation of the person.
DESCRIPTION. A written account of the state and condition of personal property, titles, papers, and the like. It is a kind of inventory, (q. v.) but is more particular in ascertaining the exact condition of the property, and is without any appraisement of it.
2. When goods are found in the possession of a person accused of stealing them, a description ought to be made of them. Merl. Rep. h. t.
3. A description is less perfect than a definition. (q. v.) It gives some knowledge of the accidents and qualities of a thing; for example, plants, fruits, andanimals, are described by their shape, bulk, color, and the like accidents. Ayl. Pand. 60.
4. Description may also be of a person, as description of a legatee. 1 Roper on Leg. chap. 2.
DESERTER. One who abandons his post; as, a soldier who abandons the public service without leave; or a sailor who abandons a ship when he has engaged to serve.
DESERTION, crim. law. An offence which consists in the abandonment of the public service, in the army or navy, without leave.
2. The Act of March 16, 1802, s. 19, enacts, that if any non-commissioned officer, musician, or private, shall desert the service of the United Staies, he shall, in addition to the penalties mentioned in the rules and articles of war, be liable to serve for and during such period as shall, with the time he may have served previous to his desertion, amount to the full term of his enlistment; and such soldier shall and may be tried by a court-martial, and punished, although the term of his enlistment may have elapsed previous to his being apprehended or tried.
3. By the articles of war, it is enacted, that "any non-commissioned officer or soldier who shall, without leave from his commanding officer, absent himself from his troop, company, or detachment, shall, upon being convicted thereof, be punished, according to the nature of his offence, at the discretion of a court-martial." Art. 21.
4. By the articles for the government of the navy, art. 16, it is enacted, that "if any person in the navy shall desert to an enemy, or rebel, he shall suffer death;" and by art. 17, "if any person in the navy shall desert, or shall entice others to desert, he shall suffer death, or such other punishmemt as a court-martial shall adjudge."
DESERTION, torts. The act by which a man abandons his wife and children, or either of them.
2. On proof of desertion, the courts possess the power to grant the 'Wife, or such children as have been deserted, alimony (q. v.)
DESERTION, MALICIOUS. The act of a hushand or wife, in leaving a consort, without just cause, for the purpose of causing a perpetual separation. Vide Abandonment, malicious.
DESERTION OF SEAMEN, contracts. The abandonment, by a sailor, of a ship or vessel, in which he engaged to perform a voyage, before the expiration of his time, and without leave.
2. Desertion, without just cause, renders the sailor liable, on his shipping articles, for damages, and will, besides, work a forfeiture of his wages previously earned.
3 Kent, Com. 155. It has been decided, in England, that leaving the ship before the completion of the voyage is not desertion, in the case, 1. Of the seaman's entering into the public service, either voluntarily or by impress; and 2. When he is compelled to leave it by the inhuman treatment of the captain. 2 Esp. R. 269; 1 Bell's Com. 514, 5th ed.; 2 Rob. Adm. R. 232.
DESIGNATIO PERSONAE. The persons described in a contract as being parties to it.
2. In all contracts, under seal, there must be some designatio personae. In general, the names of the parties,appear in the body of the deed, "between A B of, &c., of the one part, and C D of, &c., of the other part," being the common formula. But there is a sufficient designation and description of the party to be charged, if his name is written at the foot of the instrument.
3. A deed alleged to have been made between plaintiff and defendant began as follows: "Tis agreed that a gray nag bought of A B by C D shall run twenty five miles in two hours for X, In witness whereof, we have hereunto set our hands and seals." The plaintiff and defendant subscribed their names at the bottom of the writing, and afterwards sealed and delivered the document as their deed. Held, that the omission to state the names of the contracting parties in the body of the instrument, was supplied by the signatures at the bottom, and it sufficiently appeared whose deed it was. 1 Raym. 2; 1 Salk. 214 2 B. & P. 339.
4. When a person is described in the body of the instrument by the name of James, and he signs the name of John, on being sued by the latter name he cannot deny it. 3 Taunt. 505; Cro. Eliz. 897, n. (a.) Vide 11 Ad. & Ell. 594; 3 P. & D. 271.
DESIGNATION, wills. The expression used by a testator, instead of the name of the person or the thing he is desirous to name; for example, a legacy to. the eldest son of such a person, would be a designation of the legatee. Vide 1 Rop. Leg. ch. 2.
2. A bequest of the farm which the testator bought of such a person; or of the picture he owns, painted by such an artist, would be a designation of the thing devised or bequeathed.
DESPACHEURS. The name given, in some countries, to persons appointed to settle cases of average. Ord. Hamh. t. 21, art. 10.
DESPATCHES. Official communications of official Persons, on the affairs of government.
2. In general, the bearer of despatches is entitled to all the facilities that can be given him, in his own country, or in a neutral state; but a neutral cannot, in general, be the bearer of despatches of one of the belligerent parties. 6 C. Rob. 465 see 2 Dodson, 54; Edw. 274.
DESPERATE. Of which there is no hope.
2. 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 Toll. Ex. 248 2 Williams, Ex. 644; 1 Chit. Pr. 580. See Sperate.
DESPITUS. This word signifies, in our ancient law books, a contemptible person. Flet. lib. 4, c. 5, §4. The English word despite is derived from it, which signifies spite or contempt against one's will - defiance with contempt, or contempt of opposition.
DESPOT. This word, in its most simple and original 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. Encyc. Lond.
DESPOTISM, government. That abuse of government, where the sovereign power is not divided, but united in the hands of a single man, whatever may be his official title. It is not, properly, a form of government. Toull. Dr. Civ. Fr. tit. prel. n. 32; Rutherf Inst. b. 1, c. 20, §1. Vide Tyranny; Tyrant.
DESRENABLE, Law French. Unreasonable. Britt. c. 121.
DESTINATION. The application which the testator directs shall be made of the legacy he gives; for example, when a testator gives to a hospital a sum of money, to be applied in erectiug buildings, he is said to give a destination to the legacy. Destination also signifies the intended application of a thing. Mill stones, for example, taken out of a mill to be picked, and to be returned, have a destination, and are considered as real estate, although detached from the freehold. Heir looms, (q. v.) although personal chattels, are, by their destination, considered real estate and money agreed or directed to be laid out in land, is treated as real property. Newl. on Contr. ch. 8; Fonbl. Eq. B. 1, c. 6, §9; 3 Wheat. R. 577; 2 Bell's Com. 2; Ersk. Inst. 2 §14. Vide Mill.
2. When the owner of two adjoining houses uses, during his life, the property in such a manner as to make one property subject to the other, and devises one property to one person, and the other to another, this is said not to be an easement or servitude, but a destination by the former owner. Lois des Bat. partie 1, c. 4, art. 3, §3; 5 Har. & John. 82. See Dedication.
DESTINATION, com. law. The port at which a ship is to end her voyage is called her port of destination. Pard. n. 600.
DESUETUDE. This term is applied to laws which have become obsolete. (q.v.)
DETAINER. 1. The act of keeping a person against his will, or of keeping goods or property. All illegal detainers of the person amount to false imprisonment, and may be remedied by habeas corpus.
2. - 2. A detainer or detention of goods is either lawful or unlawful; when lawful, the party having possession of them cannot be deprived of it. The detention may be unlawful, although the original taking was lawful; as when goods were distrained for rent, and the rent was -afterwards paid; or when they 'Were pledged, and the money borrowed, and interest were afterwards paid; in these, and the like cases, the owner should make a demand, (q. v.) and if the possessor refuse to restore them, trover, detinue, or replevin will lie, at the option of the plaintiff.
3. - 3. There may also be a detainer of land and this is either lawful and peaceable, or unlawful and forcible. 1. The detainer is lawful where the entry has been lawful, and the estate is held by virtue of some right. 2. It is unlawful and forcible, where the entry has been unlawful, and with force, and it is retained, by force, against right; or even when the entry has been peaceable and lawful, if the detainer be by force, and against right; as, if a tenant at will should detain with force, after the will has determined, he will be guilty of a forcible detainer. Hawk. P. C. ch. 64, s. 22; 2 Chit. Pr. 288; Com. Dig, B. 2; 8 Cowen, 216; 1 Hall, 240; 4 John. 198; 4 Bibb, 501. A forcible detainer is a distinct offence from a forcible entry. 8 Cowen, 216. See Forcible entry and detainer.
4. - 4. A writ or instrument, issued or made by a competent officer, authorizing the keeper of a prison to keep in his custody a person therein named. A detainer may be lodged against. one within the walls of a prison, on what account soever he is there. Com. Dig. Process, E 3 b.
DETENTION. The act of retaining a person or property, and preventing the removal of such person or property.
2. The detention may be occasioned by accidents, as, the detention of a ship by calms, or by ice; or it may, be hostile, as the detention of persons or ships in a foreign country, by order of the government. In general, the detention of a ship does not change the nature of the contract, and therefore, sailors will be entitled to their wages during the time of the detention. 1 Bell's Com. 517, 519, 5th ed.; Mackel. Man. §210.
3. A detention is legal when the party has a right to the property, and has come lawfully into possession. It is illegal when the taking was unlawful, as is the case of forcible entry and detainer, although the party may have a right of possession; but, in some, cases, the (retention may be lawful, although the taking may have been unlawful. 3 Penn. St. R. 20. When the taking was legal, the detention may be illegal; as, if one borrow a horse, to ride from A to B, and afterwards detain him from the owner, After demand, such detention is unlawful, and the owner may either retake his property, or have an actiqn of replevin or detinue. 1 Chit. Pr. 135. In some cases, the detention becomes criminal although the taking was lawful, as in embezzlement.
DETERMINABLE. What may come to an end, by the happening of a contingency; as a determnable fee. See 2 Bouv. Inst. n. 1695.
DETERMINABLE FEE. Also called a qualified or base fee, is one which has a quality subjoined to it, and which must be determined whenever the qualification annexed to it is at in end. A limitation to a man and his heirs on the part of his father, affords an example of this species of estate. Litt. §254; Co. Litt. 27 a, 220; 1 Prest. on Estates, 449; 2 Bl. Com. 109; Cruise, tit 1, §82; 2 Bouv. Inst; n., 1695.
DETERMINATE. That which is ascertained; what is particularly designated; as, if I sell you my horse Napoleon, the article sold is here determined. This is very different from a contract by which I would have sold you a horse, without a particular designation of any horse. 1 Bouv. Inst. n. 947, 950.
DETERMINATION. The end, the conclusion, of a right or authority; as, the determination of a lease. 1 Com. Dig. Estates by Grant, G 10, 11, and 12.. The determination of an authority is the end of the authority given; the end of the return day of a writ determines the authority of the sheriff; the death of the principal determines the authority of a mere attorney. By determination is also understood the decision or judgment of a court of justice.
DETINET. He detains. Vide Debet et Detinet, and Detinuit.
DETINUE, remedies. The name of an action for the recovery of a personal chattel in specie. 3 Bl. Com. 152; 3 Bouv. Inst. n. 3472; 1 J. J. Marsh. 500.
2. This action may be considered, 1. With reference to the nature of the thing to be recovered. 2. The plaintiff's interest therein. 3. The injury. 4. The pleadings. 5. The judgment.
3.- 1. The goods which it is sought to recover, must be capable of being distinguished from all others, as a particular horse, a cow, &c., but not for a bushel of grain. Com. Dig. Detinue, B, C; 2 Bl. Com. 152; Co. Litt. 286 b; Bro. Det. 51. Detinue cannot be maintained where the property sued for had ceased to exist when the suit was commenced. 2 Dana, 332. See 5 Stew. & Port. 123; 1 Ala. R. 203.
4. - 2. To support this action, the plaintiff must have a right to immediate possession, although he never had actual possession; a reversioner cannot, therefore, maintain it. A bailee, who has only a special property, may nevertheless support it when he delivered the goods to the defendant, or they were taken out of the bailee's custody. 2 Saund. 47, b, c, d Bro. Ab. h. t.; 9 Leigh, R. 158; 1 How. Miss. R. 315; 5 How. Miss. R. 742; 4 B. Munr. 365.
5. - 3. The gist of the action is the wrongful detainer, and not the original taking. The possession must have been acquired by the defendant by lawful means, as by delivery, bailment, or. finding, and not tortiously. Bro. Abr. ])et. 53, 36, 21 1 Misso. R. 749. But a demand is not requisite, except for the purpose of entitling the plaintiff to damages for the detention between the time of the demand and that of the commencement of the action. 1 Bibb, 186; 4 Bibb, 340; 1 Misso. 9; 3 Litt. 46.
6. - 4. The plaintiff may declare upon a bailment or a trover; but the practice, by the ancient common law, was to allege, simply, that the goods came to the hands, &c., of the defendant without more. Bro. Abr. Det. 10, per Littleton; 33 H. VI. 27. The trover, or finding, when alleged, was not traversable, except when the defendant alleged delivery over of a chattel actually found to a third person, before action brought, in excuse of the detinue. Bro. Abr. Det. 1, 2. Nor is the bailment traversable, but the defendant must answer to the detinue. Bro. Abr. Det. 50-1. In describing the things demanded, much certainty is requisite, owing to the nature of the execution. A declaration for "a red cow with a white face," is not supported by proof that the cow was a yellow. or sorrel cow. 1 Scam. R. 206. The general issue is non detinet, and under it special matter may be given in evidence. Co. Litt. 283.
7. - 5. In this action the defendant frequently prayed garnishment of a third person, whom he alleged owned or had an interest in the thing demanded; but this he could not do without confessing the possession of the thing de-manded, and made privity of bailment. Bro. Abr. Garnishment, 1; Interpleader, 3. If the prayer of garnishment was allowed, a sci. fac. issued against the person named as garnishee. If he made default, the plaintiff recovered against, the defendant the chattel demanded, but no damages. If the garnishee appeared and the plaintiff made default, the garnishee recovered. If both appeared, and the plaintiff recovered; he had judgment against the defendant for the chattel demanded, and a distringas in execution and against the garnishee a judgment for damages, and a fi. fa. in execution. The verdict and judgment must be such, that a special remedy may be had for the recovery of the goods detained, or a satisfaction in value for each parcel, in case they, or either of them, cannot be returned. Walker, R. 538 7 Ala. R. 189; 4 Yerg. R. 570 4 Monr. 59; 7 Ala. R., 807.; 5 Miss. R. 489; 6 Monr. 52 4 Dana, 58; 3 B. Munr. 313; 2 Humph. 59. The judgment is in the alternative, that the plaintiff recover the goods or the value thereof, if he cannot have the goods themselves, and his damages. Bro. Abr. Det. 48, 26, 3, 25; 4 Dana, R. 58; 2 Humph. 59; 3 B. Mont. 313, for the detention and full costs. Vide, generally, 1 Chit. Pl. 117; 3 Bl. Com. 152; 2 Reeve's Hist. C. L. 261, 333,336; 3 Id. 66, 74; Bull. N. P. 50. This action has yielded to the more practical and less technical action of trover. 3 Bl. Com. 152.
DETINUIT, practice. He detained.
2. Where an action of replevin is instituted for goods which the defendant had taken, but which he afterwards restored, it is said to be brought in the detinuit; in such case the judgment is, that the plaintiff recover the damages assessed by the jury for the taking and unjust detention, or for the latter only, where the former was justifiable, and his costs. 4 Bouv. Inst. n. 3562. 3. When the replevin is in the detinet, that he detains the goods, the jury must find in addition to the above, the value of the chattels, (assuming they are still detained, not in a gross sum, but each separate article must be separately valued, for perhaps the defendant may restore some of them, in which case the plaintiff is to recover the value of the remainder. Vide Debet et Detinet.
DEVASTAVIT. A devastavit is a mis-management and waste by an executor, administrator, or other trustee of the estate and effects trusted to him, as such, by which a loss occurs.
2. It takes place by direct abuse, by mal-administration, and by neglect.
3. - §1. By direct abuse. This takes place when the executor, administrator, or trustee, sells, embezzles, or converts to his own use, the goods entrusted to him; Com. Dig. Administration, I 1; releases a claim due to the estate; 8 Bac. Abr. 700; Hob. 266; Cro. Eliz. 43; 7 John. R. 404; 9 Mass. 352; or surrenders a lease below its value. 2 John. Cas. 376; 3 P. Wms. 330. These instances sufficiently show that any wilful waste of the property will be considered as a direct devastavit.
4. - §2. By mal-administration. Devastavit by mal-administration most frequently occurs by the payment of claims which were not due nor owing; 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 have been satisfied. 4 Serg. & Rawle, 394; 5 Rawle, 266.
5. - §3. By neglect. Negligence on the part of an executor, administrator, or trustee, may equally tend to the waste of the estate, as the direct destruction or mal-administration of the assets, and render him guilty of a devastavit. The neglect to sell the goods at a fair price, within a reasonable time, or, if they are perishable goods, before they are wasted, will be a devastavit. And a neglect to collect a doubtful debt, which by proper exertion might have been collected, will be so considered. Bac. Ab. Executors, L.
6. The law requires from trustees, good faith and due diligence, the want of which is punished by making them responsible for the losses which may be sustained by the property entrusted to them when, therefore, a party has been guilty of a devastavit, he is required to. make up the loss out of his own estate. Vide Com. Dig. Administration, I; 11 Vin. Ab. 306; 1 Supp. to Ves. jr. 209; 1 Vern. 328; 7 East, R. 257 1 Binn. 194; 1 Serg. & Rawle, 241 1 John. R. 396; 1 Caines' Cas. 96 Bac. Ab. Executor, L; 11 Toull. 58, 59, n. 48.
DEVIATION, insurance, contracts. A voluntary departure, without necessity, or any reasonable cause, from the regular and usual course of the voyage insured.
2. From the moment this happens, the voyage is changed, the contract determined, and the insurer discharged from all subsequent responsibility. By the contract, the insurer only runs the risk of the contract agreed upon, and no other; and it is, therefore, a condition implied in the policy, that the ship shall proceed to her port of destination by the. shortest and safest course, and on no account to deviate from that course, but in cases of necessity. 1 Mood. & Rob. 60; 17 Ves. 364; 3 Bing. 637; 12 East, 578.
3. The effect of a deviation is not to vitiate or avoid the policy, but only to determine the liability of the underwriters from the time of the deviation. If, therefore, the ship or goods, after the voyage has commenced, receive damage, then the ship deviates, and afterwards a loss happen, there, though the insurer is discharged from the time of the deviation, and is not answerable for the subsequent loss, yet he is bound to make good the damage sustained previous to the deviation. 2 Lord Raym. 842 2 Salk. 444.
4. But though he is thus disebarged from subsequent responsibility, he is entitled to retain the whole premium. Dougl. 271; 1 Marsh. Ins. 183; Park. Ins. 294. See 2 Phil. Ev. 60, n. (b) where the American cases are cited.
5. What amounts to a deviation is not easily defined, but a departure from the usual course of the voyage, or remaining at places where the ship is authorized to touch, longer than necessary, or doing there what the insured is not authorized to do; as, if the ship have merely liberty to touch at a point, and the insured stay there to trade, or break bulk, it is a deviation. 4 Dall. 274 1 Peters' C. C. R. 104; Marsh. Ins. B. 1, c. 6, s. 2. By the course of the voyage is not meant the shortest course the ship can take from her port of departure to her port of destination, but the regular and customary track, if such there be, which long us usage has proved to be the safest and most convenient. 1 Marsh. Ins. 185. See 3 Johns. Cas. 352; 7 T. R. 162.
6. A deviation that will discharge the insurer, must be a voluntary departure from the usual course of the voyage insured, and not warranted by any necessity. If a deviation can be justified by necessity, it will not affect the contract; and necessity will justify a deviation, though it proceed from a cause not insured against. The cases of necessity which are most frequently adduced to justify a departure from the direct or usual course of the voyage, are, 1st. Stress of weather. 2d. The want of necessary repairs. 3d. Joining convoy. 4th. Succouring ships in distress. 5th. Avoiding capture or detention. 6th. Sickness of the master or mariner. 7th. Mutiny of the crew. See Park, Ins. c. 17; 1 Bouv. Inst. n. 1187, et seq.; 2 John. Cas. 296; 11 Johns. R. 241; Pet. C. C. R. 98; 2 Johns. Rep. 89; 14 Johns. R. 315; 2 Johns. R. 138; 9 Johns. R. 192; 8 Johns. Rep. 491; 13 Mass. 68 13 Mass. 539; Id. 118; 14 Mass. 12 1 Johns. Cas. 313; 11 Johns. R. 241; 3 Johns. R. 352; 10 Johns. R. 83; 1 Johns. R. 301; 9 Mass. 436, 447; 3 Binn. 457 7 Mass. 349; 5 Mass. 1; 8 Mass. 308 6 Mass. 102 121 6 Mass. 122 7 Cranch, 26; Id. 487; 3 Wheat. 159 7 Mass. 365; 10 Mass. 21 Id. 347 7 Johns. Rep. 864; 3 Johns. R. 352; 4 Dall. R. 274 5 Binn. 403; 2 Serg. & Raw. 309; 2 Cranch, 240.
DEVIATION, contracts. When a plan has been adopted for a building, and in the progress of the work a change has been made from the original plan, the change is called a deviation.
2. When the contract is to build a house according to the original plan, and a deviation takes place, the contract shall be traced as far as possible, and the additions, if any have been made, shall be paid for according to the usual rate of charging. 3 Barn. & Ald. 47; and see 1 Ves. jr. 60; 10 Ves. jr. 306; 14 Ves. 413; 13 Ves. 73; Id. 81 6 Johns. Ch. R. 38; 3 Cranch, 270; 5 Cranch, 262; 3 Ves. 693; 7 Ves. 274; Chit. Contr. 168; 9 Pick. 298.
3. The Civil Code of Louisiana, art. 2734, provides, that when an architect or other workman has undertaken the building of a house by the job, according to a plot agreed on between him and the owner of the ground, he cannot claim an increase of the price agreed on, on the plea of the original plot having been changed and extended, unless he can prove that such changes have been made in compliance with the wishes of the proprietor.
DEVISAVIT VEL NON, 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 Bro. P. C. 437; 2 Atk. 424; 5 Barr, 21.
DEVISE. A devise is a disposition of real property by a person's last will and testament, to tale effect after the testator's death.
2. Its form is immaterial, provided the instrument is to take effect after the death of the party; and a paper in the form of an indenture, which is to have that effect, is considered as a devise. Finch. 195 6 Watts, 522; 3 Rawle, 15; 4 Desaus. 617, 313; 1 Mod. 117; 1 Black. R. 345.
3. The term devise, properly and technically, applies only to real estate the object of the devise must therefore be that kind of property. 1 Hill. Ab. ch. 36, n. 62 to 74. Devise is also sometimes improperly applied to a bequest or legacy. (q. v.) Vide 2 Bouv. Inst. n. 2095, et seq; 4 Kent, Com. 489 8 Vin. Ab. 41 Com. Dig. Estates by Devise.
4. In the Year Book, 9 H. VI. 24, b. A. D. 1430, Babington says, the nature of a devise, when lands are devisable, is, that one can devise that his lands shall be sold by executors and this is good. And a devise in such form has always been in use. And so a man may have frank tenement of him who had nothing, in the same manner as one may have fire from a flint, and yet there is no fire in the flint. But it is to perform the last will of the devisor.
DEVISEE. A person to whom a devise has been made.
2. All persons who are in rerum natura, and even embryos, may be devisees, unless excepted by some positive law. In general, he who can acquire property by his labor and industry, may receive a devise. C. & N. 353.
DEVISOR. A testator; one, who devises his real estate.
2. As a general rule all persons who. may sell an estate may devise it. The disabilities of devisors may be classed, in three divisions. 1. Infancy. In some of the United States this disability is partially removed; in Illinois, Maryland, Mississippi and Ohio, an unmarried woman at the age of eighteen years may devise. 2. Coverture. In general, a married woman cannot devise; but in. Connecticut and Ohio she may devise her lands; and in Illinois, her separate estate. In Louisiana, she may devise without the consent of her hushand. Code, art. 132. 3. Idiocy and non sane memory. It is evident that a person non compos can make no devise, because he has no will.
3. The removal of the disability which existed at the time of the devise does, not, of itself, render it valid. For example, when the hushand dies, and the wife becomes a feme sole; when one non compos is restored to his sense; and when an infant becomes of age; these several acts do not make a will good, which at its making was void. 11 Mod. 123, 157; 2 Vern . 475; Comb, 84; 4 Rawle, R. 3.36. Vide. Testament or ill.
DEVOIR. Duty. It is used in the statute of 2 Ric. II., c. 3, in the sense of duties or customs.
DEVOLUTION, eccl. 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 preseptation, and he does not present within the time prescribed, the right devolves on his next immediate superior. Ayl. Par. 331.
DI COLONNA, mar. contracts. This contract tales place between the owner of a ship, the captain and the mariners, who agree that the voyage shall be for the benefit of all. This is a term used in the Italian law. Targa, oh. 36, 37: Emerigon, Mar. Loans, s. 5.
2. The New England whalers are owned and navigated in this manner, and under this species of contract. The captain and his mariners are all interested in the profits of the voyage in certain proportion, in the same manner as the captain and crew of a privateer, according to the agreement between them. Such agreement, being very common in former times, all the mariners and the masters being interested in the voyage. It is. necessary to know this, in order to understand many of the provisions of the laws of Oleron, Wishuy, the Consolato del Mare, and other ancient codes of maritime and commercial law. Hall on Mar. Loans, 42.
TO DICTATE. To pronounce word for word what is destined to be at the same time written by another. Merlin Rep. mot Suggestion, p. 5 00; Toull. Dr. Civ. Fr. liv. 3, t. 2, c. 5, n. 410.
DICTATOR, civil law. A Magistrate at Rome invested with absolute power. His authority over the lives and fortunes of the citizens was without bounds. His office continued but for six months. Hist. de Ia Jur. h. t.; Dig. l, 2, 18; Id. 1, 1, 1.
DICTUM, practice. Dicta are judicial opinions expressed by the judges on points that do not necessarily arise in the case.
2. Dicta are regarded as of little authority, on account of the manner in which they are delivered; it frequently happening that they are given without much reflection, at the bar, without previous examination. "If," says Huston, J., in Frants v. Brown, 17 Serg. & Rawle, 292, "general dicta in cases turning on special circumstances are to be considered as establishing the law, nothing is yet settled, or can be long settled." "What I have said or written, out of the case trying," continues the learned judge, "or shall say or write, under such circumstances, maybe taken as my opinion at the time, without argument or full consideration; but I will never consider myself bound by it when the point is fairly trying and fully argued and considered. And I protest against any person considering such obiter dicta as my deliberate opinion." And it was considered by another learned judge. Mr. Baron Richards, to be a "great misfortune that dicta are taken down from judges, perhaps incorrectly, and then cited as absolute propositions." 1 Phillim. Rep. 1406; S. C. 1 Eng. Ecc. R. 129; Ram. on Judgm. ch. 5, p. 36; Willes' Rep. 666; 1 H. Bl. 53-63; 2 Bos. & P. 375; 7 T. R. 287; 3 B. & A. 341; 2 Bing. 90. The doctrine of the courts of France on this subject is stated in 11 Toull. 177, n. 133.
3. In the French law, the report of a judgment made by one of the judges who has given it, is called the dictum. Poth. Proc. Civ. partie 1, c. 5, art. 2.
DIES. A day. There are four sorts of days: 1. A natural day; as, the morning and the evening made the first day. 2. An artificial day; that is, from day-break until twilight in the evening. 3. An astrological day, dies astrologicus, from sun to sun. 4. A legal day, which is dies juridicus, and dies non juridicus. 1. Dies juridici, are all days given in term to the parties in court. Dies non juridici are those which are not appointed to do business in court, as Sundays, and the like. Dies in banco, days of appearance in the English court of common bench. 3 Bl. Com. 276. Vide Day, and 3 Com. Dig. 358.
DIES DATUS, practice. 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. (q. v.)
DIES NON or DIES NON JURIDICI. Non-judicial days. Days during which courts do not transact any business, as Sunday. The entry of judgment upon such a day is void. W . Jones, 156.
DIET. An assembly held by persons having authority to manage the public affairs of the nation. In Germany, such assemblies are known by this name:
DIFFERENCE. A dispute, contest, disagreement, quarrel.
DIGEST, civil law. The name sometimes given to the Pandects of Justinian; it is so called because this compilation is reduced to order, quasi digestiae.
2. It is an abridgment of the decisions of the praetors and the works of the learned, and ancient writers on the law. It was made by order of the emperor Justinian, who, in 530, published an ordinance entitled De Conceptione Digestorum, which was addressed to Tribonian, and by which he was required to select some of the most distinguished lawyers to assist him in composing a collection of the best decisions of the ancient lawyers, and compile them is fifty books, without confusion or contradiction. The work was immediately commenced, and completed on the 16th of December, 533.
3. The Digest is divided in two different ways; the first, into fifty books, each book into several titles, and each title into several laws at the head of each of them is the name of the lawyer from. whose work it was taken.
4. - 1. The first book contains twenty-two titles; the subject of the first is De justicia et jure; of the division of person and things; of magistrates, &c.
5. - 2. The second, divided into fifteen titles, treats of the power of magistrates and their jurisdiction; the manner of commencing suits; of agreements and compromises.
6. - 3. 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.
7. - 4. The fourth, divided into nine titles, treats of causes of restitution of submissions and arbitrations; of minors, carriers by water, innkeepers and those who have the care of the property of others.
8. - 5. In the fifth there are six titles, which. treat of jurisdiction and inofficious testaments.
9. - 6. The subject, of the sixth, in which there are three titles, is actions.
10. - 7. The seventh, in nine titles, embraces whatever concerns usufructs, personal servitudes, babitations, the uses of real estate, and its appurtenances, and of the sureties required of the usufructuary.
11. - 18. The eighth book, in six titles, regulates urban and rural servitudes.
12. - 9. The ninth book, in four titles, explains certain personal actions.
13. - 10. The tenth, in four titles, treats of mixed actions.
14.-11. The object of the eleventh book, containing eight titles, is to regulate interrogatories, the cases of which the judge was to take cognizance, fugitive slaves, of gamblers, of surveyors who made false reports, and of funerals and funeral expenses.
15. - 12. The twelfth book, in seven titles, regulates personal actions in which the plaintiff claims the title of a thing.
16. - 13. The thirteenth, treats of certain particular actions, in seven titles.
17. - 14. This, like the last, regulates certain actions: it has six titles.
18. - 15. The fifteenth, in four titles, treats of actions for 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 peculium of children and slaves, and of the actions on this right.
19.-16. The sixteenth, in three titles, contains the law. relating to the senatus consultum velleianum, of compensation or set off, and of the action of deposit.
20. - 17. The seventeenth, in two titles, expounds the law of mandates and partnership.
21. - 18. The eigbteenth book, in seven titles, explains the contract of sale.
22. - 19. The nineteenth, in five titles, treats of the actions which arise on a contract of sale.
23. - 20. The law relating to pawns, hypothecation, the preference among creditors, and subrogation, occupy the twentieth book, which contains six titles.
24. - 21. 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.
25. - 22. The twenty-second treats of interest, profits and accessories of things, proofs, presumptions, and of ignorance of law and fact. It is divided into six titles.
26. - 23. The twenty-third, in five titles, contains the law of marriage, and its accompanying agreements.
27. - 24. The twenty-fourth, in three titles, regulates donations between hushand and wife, divorces, and their consequence.
28. - 25. The twenty-fifth is a continuation of the subject of the preceding. It contains seven titles.
29. - 26 and 27. These two books, each in two titles, contain the law relating to tutorship and curatorship.
30. - 28. The twenty-eighth, in eight titles, contain's the law on last wills and testaments.
31. - 29. The twenty-ninth, in seven titles, is the continuation of the twenty-eighth book.
32. - 30, 31, and 32. These three books, each divided into two titles, contain the law of trusts and specific legacies.
33. - 33, 34, and 35. The first of these, divided into ten titles; the second, into nine titles; and the last into three titles, treat of various kinds of legacies.
34. - 36. The thirty-sixth, containing four titles, explains the senatus consultum trebellianum, and the time when trusts become due.
35. - 37. This book, containing fifteen titles, has two objects first, to regulate successions; and, secondly, the respect which children owe their parents, and freedmen their patrons.
36. - 38. The thirty-eighth book, in seventeen titles, treats of a variety of subjects; of successions, and of the degree of kindred in successions; of possession; and of heirs.
37. - 39. The thirty-ninth explains the means which the law and the prAEtor take to prevent a threatened iNjury; and donations inter vivos and mortis causa.
38. - 40. The fortieth, in sixteen titles, treats of the state and condition of persons, and of what relates to freedmen and liberty.
39. - 41. The different means of acquiring and losing title to property, are explained in the forty-first book, in ten titles.
40. - 42. The forty-second, in eight titles, treats of the res judicata, and of the seizure and sale of the property of a debtor.
41. - 43. Interdicts or possessory actions are the object of the forty-third book, in three titles.
42.-44. The forty-fourth contains an enumeration of defences which arise in consequence of the resjudicata, from the lapse of time, prescription, and the like. This occupies six titles; the seventh treats of obligations and actions.
43. - 45. This speaks of stipulations, by freedmen, or by slaves. It contains only three titles.
44. - 46. This book, in eight titles, treats of securities, novations, and delegations, payments, releases, and acceptilations.
45. - 47. In the forty-seventh book are explained the punishments inflicted for private crimes, de privates delictis, among which are included larcenies, slander, libels, offences against religion, and public manners, removing boundaries, and other similar offences.
46. - 48. This book treats of public crimes, among which are enumerated those Iaesae majestatis, adultery, murder, poisoning, parricide, extortion, and the like, with rules for procedure in such cases.
47. - 49. The forty-ninth, in eighteen titles, t reats of appeals, of the rights of the public treasury, of those who are in captivity, and of their repurchase.
48. - 50. The last book, in seventeen titles, explains the rights of municipalities. and then treats of a variety of public officers.
49. Besides this division, Justinian made another, in which the fifty books were divided into 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 title twentieth to the twenty-seventh inclusive; the fifth, from the twenty-eighth to the thirty-sixth inclusive the sixth, commenced with the thirty seventh, and ended with the forty-fourth book; and the seventh or last was composed of the last six books.
50. A third division, which, however, is said not to have been made by Justinian, is in three parts. The first, called digestum vetus, because it was the first printed. It commences with the first book, and. includes the work to the end of the second title of the twenty-fourth book. The second, called digestum infortiatum, because it is supported or fortified by the other two, it being the middle; it commences with the begining of the third title of the twenty-fourth book and ends with the thirty-eighth. The third, which begins with the thirty-ninth book and ends with the work, is called digestum novum, because it was last printed.
51. The Digest, although, compiled in Constantinople, was originally written in Latin, and afterwards translated into Greek.
52. This work was lost to all Europe during a considerable period, as indeed all the law works of Justinian were, except some fragments of the Code and Novels. During the pillage of Amalphi, 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 emperor, Clothaire II., and proved to be the Pandects of Justinian. The work was arranged in its present order by Warner, a German, whose name, Latinised, is Irnerius, who was appointed professor of Roman law at Bologna, by that emperor. 1 Fournel, Hist. des Avocats, 44, 46, 51.
53. The Pandects contain all whatsoever Justinian drew out of 150,000 verses of the old books of the Roman law. The style of the Digest is very grave and pure, and differs not much from the eloquentist speech that ever the Romans used." The learning of the digest stands rather in the discussing of subtle questions of law, and enumeratious of the variety of opinions of ancient lawyers thereupon, than in practical matters of daily use. The Code of Justinian differs in these respects from, the Digest. It is less methodical, but more practical; the style however, is a barbarous Thracian phrase Latinised, such as never any mean Latinist spoke. The work is otherwise rude and unskilful. Ridley's View of the Civ. & Ecc. Law, pt. 1, ch. 2, §1, and ch. 1, §2.
54. Different opinions are entertained upon the merits of the Digest, or Pandects, Code, Authentics and Feuds, as a system of jurisprudence. By some it has been severely criticised, and even harshly censured, and by others as warmly defended the one party discovering nothing but defects, and the other as obstinately determined to find nothing but what is good and valuable. See Felangieri della Legislazione, vol. 1, c. 7. It must be confessed that it is not without defects. It might have been comprehended in less extent, and in some parts arranged in better order. It must be confessed also that it is less congenial as a whole, with the principles of free government, than the common law of England. Yet, with all these defects, it is a rich fountain of learning and reason; and of this monument of the high culture and wisdom of the Roman jurists it may be said, as of all other works in which the good so much surpasses the bad.
Ut plura intent in carmine non ego paucis
Offendar maculis, quas aut incuria fudit Aut humana parum cavit natura. HORAT. ART. POETIC, v. 351.
DIGNITIES. English law. Titles of honor.
2. They are considered as incorporeal hereditaments.
3. The genius of our government forbids their admission into the republic.
DILAPIDATION. Literally, this signifies the injury done to a building by taking stones from it; but in its figurative, which is also its technical sense, it means the waste committed or permitted upon a building.
DILATORY. That which is intended for delay. It is a maxim, that delays in law are odious, dilationes in lege sunt odiosae. Plowd. 75.
DILATORY DEFENCE. chancery practice. A dilatory defence is one, the object of which is to dismiss, suspend, or obstruct the suit, without touching the merits, until the impediment or obstacle insisted on shall be removed.
2. These defences are of four kinds: 1. To the jurisdiction of the court. 2. To the person of the plaintiff or defendant. 3. To the form of proceedings, as that the suit is irregularly brought, or it is defective in its appropriate allegation of the parties; and, 4. To the propriety of maintaining the suit itself, because of the pendancy of another suit for the same controversy. Montag. Eq. Pl. 88; Story Eq. Pl. §434. Vide Defence: Plea, dilatory.
DILATORY PLEAS. Those which delay the plaintiff's remedy, by questioning, not the cause of action, but the propriety of the suit, or the mode in which the remedy is sought. Vide Plea, dilatory.
DILIGENCE, contracts. The doing things in proper time.
2. It may be divided into three degrees, namely: ordinary diligence, extraordinary diligence, and slight diligence. It is the reverse of negligence. (q. v.) Under that article is shown what degree of negligence, or want of diligence, will make a party to a contract responsible to the other. Vide Story, Bailm. Index h. t.; Ayl. Pand. 113 1 Miles, Rep. 40.
DILIGENCE. In Scotland, there are certain forms of law, whereby a creditor endeavors to make good his payment, either by affecting the person of his debtor, or by securing the subjects belonging to him from alienation, or by carrying the property of these subjects to himself. They are either real or personal.
2. Real diligence is that which is proper to heritable or real rights,. and of this kind there are two sorts: 1. Inhibitions. 2. Adjudication, which the law has substituted in the place of apprising.
3. Personal diligence is that by which the person of the debtor may be secured, or his personal estate affected. Ersk. Pr. L. Scotl. B. 2, t. 11, s. 1.
DIME, money. A silver coin of the United States, of the value of one-tenth part of a dollar or ten cents.
2. It weighs forty-one and a quarter grains. Of one thousand parts, nine hundred are of pure silver and one hundred of alloy. Act of January 18, 1837, s. 8 and 9, 4 Sharsw. cont. of Story's L. U. S. 2523-4.
DIMINUTION OF THE RECORD, practice. This phrase signifies that the record from an inferior court, sent up to a superior, is incomplete. When this is the case, the parties may suggest a diminution of the record, and pray a writ of/ certiorari to the justices of the court below to certify the whole record. Tidd's Pr. 1109; 1 S. & R. 472; Co. Ent. 232; 8 Vin. Ab. 552; 1 Lilly's Ab. 245; 1 Nels. Ab. 658; Cro. Jac. 597; Cro. Car. 91; Minor, R. 20; 4 Dev. R. 575; 1 Dey. & Bat. 382; 1 Munf. R. 119. Vide Certiorari. DIOCESE, eccl. law. The district over which a bishop exercises his spiritual functions. 1 B1. Com. 111.
DIPLOMA. An instrument of writing, executed by, a corporation or society, certifying that a certain person therein named is entitled to a certain distinction therein mentioned.
2. It is usually, granted by learned institutions to their members, or to persons who have studied in them.
3. Proof of the seal of a medical institution and of the signatures of its officers thereto affixed, by comparison with the seal and signatures attached to a diploma received by the witness from the same institution, has been held to be competent evidence of the genuineness of the instrument, although the witness never saw the officers write their names. 25 Wend. R. 469.
4. This word, which is also written duploma, in the civil law, signifies letters issued by a prince. They are so called, it is supposed, a duplicatis tabellis, to which Ovid is thought to allude, 1 Amor. 12, 2, 27, when he says, Tunc ego vos duplices rebus pro nomine sensi Sueton in Augustum, c. 26. Seals also were called Diplomata. Vicat ad verb.
DIPLOMACY., The science which treats of the relations and interests of nations with nations.
DIPLOMATIC AGENTS. This name has been given to public officers, who have been commissioned, according to law, to superintend and transact the affairs of the government which has employed them, in a foreign country. Vattel, liv. 4, c. 5.
2. These agents are of divers orders, and are known by different denominations. Those of the first order are almost the perfect representatives of the government by which they are commissioned; they are legates, nuncios, internuncios, ambassadors, ministers, plenipotentiaries. Those of the second order do not so fully represent their government; they are envoys, residents, ministers, charges d'affaires, and consuls. Vide these several words.
DIPLOMATICS. The art of judging of ancient charters, public documents or diplomas, and discriminating the true from the false. Encyc. Lond. h. t.
DIRECT. Straight forward; not collateral.
2. The direct line of descents for example, is formed by a series of degrees between persons who descend one from another. Civ. Code of Lo. art. 886.
DIRECTION. The order and government of an institution; the persons who compose the board of directors are jointly called the direction. Direction, in another sense, is nearly synonymous with instruction. (q. v.)
DIRECTION, practice. That part of a bill in chancery which contains the address of the bill to the court; this must of course, contain the appropriate and technical description of the court.
DIRECTOR OF THE MINT. An officer whose duties are prescribed by the Act of Congress of January 18, 18 37, 4 Sharsw. Cont. of Story L. U. S. 2524, as follows: The director shall have the control and management of the mint, the superintendence of the officers and persons employed therein, and the general regulation and supervision of the business of the several branches. And in the month of January of every year he shall make report to the president of the United States of the operation of the mint and its branches for the year preceding. And also to the secretary of the treasury, from time to time, as said secretary shall require, setting forth all the operations of the mint subsequent to the last report made upon the subject.
2. The director is required to appoint, with the approbation of the president, assistants to the assayer, melter and refiner, chief coiner and engraver, and clerks to the director and treasurer, whenever, on representation made by the director to the president, it shall be the opinion of the president that such assistants or clerks are necessary. And bonds may be required from such assistants and clerks in such sums as the director shall determine, with the approbation of the secretary of the treasury. The salary of the director of the mint, for his services, including travelling expenses incurred in visiting the different branches, and all other charges whatever, is three thousand five hundred dollars. DIRECTORS. Persons appointed or elected according to law, authorized to manage and direct the affairs of a corporation or company. The whole of the directors collectively form, the board of directors.
2. They are generally invested with certain powers by the acts of the legislature, to which they owe their existence.
3. In modern corporations, created by statutes, it is generally contemplated by the charter, that the business of the corporation shall be transacted exclusively by the directors. 2 Caines' R. 381. And the acts of such a board, evidenced by a legal vote, are as completely binding upon the corporation, and as complete authority to their agents, as the most solemn acts done under the corporate seal. 8 Wheat. R. 357, 8.
4. To make a legal board of directors, they must meet at a time when, and a place where, every other director has the opportunity of attending to consult and be consuited with; and there must be a sufficient number present to constitute a quorum. 3 L. R. 574; 13 L. R. 527; 6 L. R. 759. See 11 Mass. 288; 5 Litt. R. 45; 12 S. & R. 256; 1 Pet. S. C. R. 46. Vide Dane's Ab. h. t.
5. Directors of a corporation are trustees, and as such are required to use due diligence and attention to its concerns, and are bound to a faithful discharge of the duty which the situation imposes. They are liable to the stockhoders whenever there has been gross negligence or fraud; but not for unintentional errors. 1 Edw. Ch. R. 513; 8 N. S. 80; 3. L. R. 576. See 4 Mann. & Gr. 552.
DIRECTORY. That which points out a thing or course of proceeding; for example, a directory law.
DIRIMANT IMPEDIMENTS, canon law. Those bars to a marriage, which, if consummated, render it null. They differ from prohibitive impediments. (q. v.)
DISABILITY. The want of legal capacity to do a thing.
2. Persons may be under disability, 1. To make contracts. 2. To bring actions.
3. - 1. Those who want understanding; as idiots, lunatics, drunkards, and infants or freedom to exercise their will, as married women, and persons in duress; or who, in consequence of their situation, are forbidden by the policy of the law to enter into contracts, as trustees, executors, administrators, or guardians, are under disabilities to make contracts. See Pa7-ties; Contracts.
4. - 2. The disabilities to sue are, 1. Alienage, when the alien is an enemy. Bac. Ab. Abatement, B 3; Id. Alien, E: Com. Dig. Abatement , K; Co. Litt. 129. 2. Coverture; unless as co-plaintiff with her hushand, a married woman cannot sue. 3. Infancy; unless he appears by guardian or prochein ami. Co. Litt. 135, b; 2 Saund. 117, f, n. 1 Bac. Ab. Infancy, K 2 Conn. 357; 7 John. 373; Gould, Pl. c. 5, §54. 4. That no such person as that named has any existence, is not, or never was, in rerum natura. Com. Dig. Abatement, E 16, 17; 1 Chit. Pl. 435; Gould on Pl. c. 5, §58; Lawes' Pl. 104; 19 John. 308. By the law of England there are other disabilities; these are, 1. Outlawry. 2. Attainder. 3. Praemunire. 4. Popish recusancy. 5. Monachism.
5. In the acts of limitation it is provided that persons lying under certain disabilities, such as being non compos, an infant, in prison, or under coverture, shall have the right to bring actions after the disability shall have been removed.
6. In the construction of this saving in the acts, it has been decided that two disabilities shall not be joined when they occur in different persons; as, if a right of entry accrue to a feme covert, and during the coverture she die, and the right descends to her infant son. But the rule is otherwise when there are several disabilities in the same person; as, if the right accrues to an infant, and before he has attained his full age, he becomes non compos mentis; in this case he may establish his right after the removal of the last disability. 2 Prest. Abs. of Tit. 341 Shep. To. 31; 3 Tho. Co. Litt. pl. 18, note L; 2 H. Bl. 584; 5 Whart. R. 377. Vide Incapacity.
DISAFFIRMANCE. The act by which a person who has entered into a voidable contract; as, for example, an infant, does disagree to such contract, and declares he will not abide by it.
2. 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, be made a deed for the same land to another. 2 Dev. & Bat. 320; 10 Pet. 58; 13 Mass. 371, 375.
TO DISAVOW. To deny the authority by which an agent pretends to have acted as when he has exceeded the bounds of his authority.
2. It is the duty of the principal to fulfil 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.
DISBURSEMENT. Literally, to take money out of a purse. Figuratively, to pay out money; to expend money; and some times it signifies to advance money.
2. A master of a ship makes dishursements, whether with his own money or that of the owner, when he defrays expenses for the ship.
3. An executor, guardian, trustee, or other accountant, is said to have made dishursements when he expended money on account of the estate which he holds. These, when properly made, are always allowed in the settlement of the accounts.
DISCHARGE, practice. The act by which a person in confinement, under some legal process, or held on an accusation of some crime or misdemeauor, is set at liberty; the writing containing the order for his being so set at liberty, is also called a discharge.
2. The discharge of a defendant, in prison under a ca. sa., when made by the plaintiff, has the operation of satisfying the debt, the plaintiff having no other remedy. 4 T. R. 526. But when the discharge is in consequence of the insolvent laws, or the defendant dies in prison, the debt is not satisfied. In the first place the plaintiff has a remedy against the property of the defendant, acquired after his discharge, and, in the last case, against the executors or administrators of the debtor. Bac. Ab. Execution, D; Bingh. on Execution, 266.
DISCHARGE OF A CONTRACT. The act of making a contract or agreement null.
2. Contracts may be discharged by, 1. Payment. 2. Accord and satisfaction. 8 Com. Dig. 917; 1 Nels. Abr. 18; 1 Lilly's Reg. 10, 16; Hall's Dig. 7 1 Poth. Ob. 345. 3. Release. 8 Com. Dig. 906; 3 Nels. Ab. 69; 18 Vin. Ab. 294; 1 Vin. Abr. 192; 2 Saund. 48, a; Gow. on Partn. 225, 230; 15 Serg. & Rawle, 441; 1 Poth Ob. 897. 4. Set off. 8 Vin. Ab. 556, Discount; Hall's Dig. 226, 496; 7 Com. Dig. 335, Pleader, 2 G 17; 1 Poth. Ob. 408. 5. The rescission of the contracts. 1 Com. Dig. 289, note x; 8 Com. Dig. 349; Chit. on Contr. 276. 6. Extinguishment. 7 Vin: Abr. 367; 14 Serg. & Rawle, 209, 290; 8 Com. Dig. 394; 2 Nels. Abr. 818; 18 Vin. Abr. 493 to 515; 11 Vin. Abr. 461. 7. Confusion, where the duty to pay and the right to receive unite in the same person. 8 Serg. & Rawle, 24-30 1 Poth. 425. 8. Extinction, or the loss of the subject matter of the contract. Bac. Abr. 48 8 Com. Dig. *349; 1 Poth. Ob. 429. 9. Defeasance. 2 Saund. 47, n. note 1. 10. The inability of one of the parties to fulfil his part. Hall's Dig. 40. 11. The death of the contractor, as where he undertook to teach an apprentice. 12. Bankruptcy. 13. By the act of limitations. 14. By lapse of time. Angell on Adv. Enjoym. passim; 15 Vin. Abr. 52, 99; 2 Saund. 63, n. b; Id. 66, n. 8; Id. 67, n. 10; Gow on Partn. 235; 1, Poth. 443, 449. 15. By neglecting to give notice to the, person charged. Chit. on Bills, 245. 16. By releasing one of two partners. See Receipt. 17. By neglecting to sue the principal at the request of the surety, the latter is discharged. 8 Serg. & Rawle, 110. 18. By the discharge of a defendant, who has been arrested under a capias ad satisfaciendum. 8 Cowen, R. 171. 19. By a certificate and discharge under the bankrupt laws. Act of Congress of August, 1841.
DISCHARGE OF A JURY, practice. The dismissal of a jury who had been charged with the trial of a cause.
2. Questions frequently arise, whether if the court discharge a jury before they render a verdict, in a criminal case, the prisoner can again be tried. In cases affecting life or members, the general rule is that when a jury have been sworn and charged, they cannot be discharged by the court, or any other, but ought to give a verdict. But to this rule there are many exceptions; for example, when the jury are discharged at the request or with the consent of the prisoner and for his benefit, when ill practices have been used; when the prisoner becomes insane, or becomes suddenly ill, so that he cannot defend himself, or instruct others in his defence; when a juror or witness is taken suddenly ill; when a juror has absented himself, or, on account of his intoxication, is incapable to perform his duties as a juror. These and many similar cases, which may be readily imagined, render the discharge of the jury a matter of necessity, and; under such very extraordinary and striking circumstances, it is impossible to proceed with the trial, with justice to the prisoner or to the state.
3. The exception to the rule, then, is grounded on necessity, and not merely because the jury cannot agree. 6 Serg. & Rawle, 577; 3 Rawle's Rep. 501. In all these cases the court must exercise a just discretion in deciding what is and what is not a case of necessity. This is the law as to the exceptions in Pennsylvania. In other states, and some of the courts of the United States, it has been ruled that the authority of the court to discharge the jury rests in the sound discretion of the court. 4 Wash. C. C. R. 409; 18 Johns. 187; 2 Johns. Cas. 301; 2 Gall. 364; 9 Mass. 494; 1 Johns. Rep. 66; 2 Johns. Cas. 275 2 Gallis. 364; 13 Wend. 55; Mart. & Yerg. 278; 3 Rawle, 498; 2 Dev. & Bat. 162; 6 S. & R. 577; 2 Misso. 166; 9 Leigh, 613; 10 Yerg. 535; 3 Humph. 70. Vide 4 Taunt. 309.
4. A distinction has been made between capital cases and other criminal cases, not capital. In cases of misdemeanors and in civil cases, the right to discharge rests in the sound discretion of the court, which is to be exercised with great caution. 9 Mass. 494; 3 Dev. & Batt. 115. In Pennsylvania this point seems not to be settled. 6 Serg. & Rawle, 599. The reader is referred to the word Jeopardy, and Story on the Const. §1781; 9 Wheat. R. 579; Rawle on the Const. 132, 133; 1 Chit. Cr. Law, 629; 1 Dev. 491; 4 Ala. R. 173; 2 McLean, 114. See Afforce.
DISCHARGED. Released, or liberated from custody. It is not equivalent to acquitted in a declaration for a malicious prosecution. 2 Yeates, 475 2 Term Rep. 231; 1 Strange, 114; Doug. 205 3 Leon. 100.
DISCLAIMER. This word signifies. to abandon, to renounce; also the act by which the renunciation is made. For example, a disclaimer is the act by which a patentee renounces a part of his title of invention,
2. In real actions, a disclaimer of the tenancy or title is frequently added to the plea of non tenure. Litt. §391. If the action be one in which the demandant cannot recover damages, as formedon in the discender, the demandant or plaintiff was bound to pray judgment, &c., and enter, for thereby, he has the effect of his suit, et frustra fit per plura quod fieri potest per pauciora. But, if the demandant can recover damages and is unwilling to waive them, he should answer the disclaimer by averring that the defendant is tenant of the land, or claims to be such as the writ supposes, and proceed to try the question, otherwise he would lose his damages. The same course may be pursued in the action of ejectment, although in Pennsylvania, the formality of such a replication to the disclaimer is dispensed with, and the fact is tried without it. 5 Watts, 70; 3 Barr, 367. Yet, if the plaintiff is willing to waive his claim for damages, there is no reason why he may not ask for judgment upon the disclaimer without trial, for thereby he has the effect of his suit. Et frustra fit per plura, &c.
DISCLAIMER, chancery pleading. The renunciation of the defendant to all claims to the subject of the demand made by the plaintiff's bill.
2. A disclaimer is distinct in substance from an answer, though sometimes confounded with it, but it seldom can be put in without an answer for if the defendant has been made a party by mistake, having had an interest which be has parted with, the plaintiff may require an answer sufficient to ascertain whether that is the fact or not. Mitf. Pl. 11, 14, 253; Coop. Eq. Pl. 309; Story, Eq. Pl. c. 17, §838 to 844; 4 Bouv. Inst. n. 4211-14.
DISCLAIMER, estates. The act of a party by which be refuses to accept of an estate which has been conveyed to him. Vide Assent; Dissent.
2. It is said, that a disclaimer of a freehold estate must be in a court of record, because a freehold shall not be divested by bare words, in pais. Cruise, Dig. tit. 32, c. 2 6, s. 1, 2.
3. A disclaimer of tenancy is the act of a person in possession, who denies holding the estate from the person claiming to be the owner of it. 2 Nev. & M. 672. Vide 8 Vin.. Ab. 501; Coote, L. & T. 348, 375; F. N. B. 179 k; Bull. N. P. 96; 16 East, R. 99; 1 Man. & Gran. 135; S. C. 39 Eng. C. L. Rep. 380, 385; 10 B. & Cr. 816; ow, N. P. Cas. 180; 2 Nov. & Man. 673; 1 C. M. & R. 398 Co. Litt. 102, a.
DISCONTINUANCE, pleading. A chasm or interruption in the pleading.
2. It is a rule, that every pleading, must be an answer to the whole of what is adversly alleged. Com. Dig. Pleader, E 1, ri 4; 1 Saund. 28, n. 3; 4 Rep. 62, a. If, therefore, in an action of trespass for breaking a close, and cutting three hundred trees, the defendant pleads as to cutting all but two hundred trees, some matter of justifica- tion or title, and as to the two hundred trees says nothing, the plaintiff is entitled to sign judgment, as by nil dicit against him, in respect of the two hundred trees, and to demur, or reply to the plea, as to the remainder of the trespasses. On the other hand, if he demurs or replies to the plea, without signing, judgment for the part not answered, the whole action is said to be discontinued. For the plea, if taken by the plaintiff as an answer to the, whole action, it being, in fact, a partial answer only, is, in contemplation of law, a mere nullity, and a discontinuance takes place. And such discontinuance will amount to error on the record; such error is cured, however, after verdict, by the statute of Jeo fails, 32 H. VIII. c. 80; and after judgment by nil dicit, confession, or non sum informatus, by stat. 4 Ann. c. 16. It is to be observed, that as to the plaintiff's course of proceeding, there is a distinction between a case like this, where the defendant does not profess to answer the whole, and a case where, by the commencement of his plea, he professes to do so, but, in fact, gives a defective and partial answer, applying to part only. The latter case amounts merely to insufficient pleading, and the plaintiff's course, therefore, is not to sign judgment for the part defectively answered, but to demur to the whole plea. 1 Saund. 28, n.
3. It is to be observed, also, that where the part of pleading to which no answer is given, is immaterial, or such as requires no separate or specific answer for example, if it be mere matter of allegation, the rule does not in that case apply. Id. See Com. Dig. Pleader, W; Bac. Abr. Pleas, P.
DISCONTINUANCE, estates. An alienation made or suffered by the tenant in tail, or other tenant seised in autre droit, by which the issue in, tail, or heir or successor, or those in reversion or remainder, are driven to their action, and cannot enter.
2. The term discontinuance is used to distinguish those cases where the party whose freehold is ousted, can restore it only by action, from those in which he ma restore it by entry. Co. Litt. 325 a 3 Bl. Com. 171; Ad. Ej. 35 to 41; Com. Dig. h. t.; Bac. Ab. h. t.; Vin. Ab. h. t.; Cruise's Dig. Index, b.. t..5 2 Saund. Index, h. t.
DISCONTINUANCE, practice. This takes place when a plaintiff leaves a chasm in the proceedings of his cause, as by not continuing the process regularly from day to day, and time to time, as he ought. 3 Bl. Com. 296. See Continuance. A discontinuance, also, is an entry upon the record that the plaintiff discontinues his action.
2. The plaintiff cannot discontinue his action after a demurrer joined and entered, or after a verdict or a writ of inquiry without leave of court. Cro. Jac. 35 1, Lilly's Abr. 473; 6 Watts & Serg. 1417. The plaintiff is, on discontinuance, generally liable for costs. But in some cases, he is not so liable. See 3 Johns. R. 249; 1 Caines' R. 116; 1 Johns. R. 143; 6 Johns. R. 333; 18 Johns. R. 252; 2 Caines' Rep. 380; Com. Dig. Pleader, W 5; Bac. Abr. Pleas' P.
DISCOUNT, practice. A set off, or defalcation in an action. Vin. Ab. h. t.
DISCOUNT, contracts. An allowance made upon prompt payment in the purchase of goods; it is also the interest allowed in advancing money upon bills of exchange, or other negotiable securities due at a future time And to discount, signifies the act of buying a bill of exchange, or promissory note for a less sum than that which upon its face, is payable.
2. Among merchants, the term used when a bill of exchange is transferred, is, that the bill is sold, and not that it is discounted. See Poth. De l'Usure, n. 128 3 Pet. R. 40.
DISCOVERT. Not covert, unmarried. The term is applied to a woman unmarried, or widow; one not within the bonds of matrimony.
DISCOVERY, intern. law. The act of finding an unknown country.
2. The nations of Europe adopted the principle, that the discovery of any part of America gave title to the government by whose subjects, or by whose authority it was made, against all European governments. This title was to be consummated by possession. 8 Wheat. 543.
DISCOVERY, practice, pleading. The act of disclosing or revealing by a defendant, in his answer to a bill filed against him in a court of equity. Vide Bill of Discovery; 8 Vin. Ab. 537; 8 Com. Dig: 515.
DISCOVERY; rights. The patent laws of the United States use this word as synonymous with invention or improvement of July 4, 1836, s. 6.
TO DISCREDIT, practice, evidence. To deprive one of credit or confidence.
2. In general, a party may discredit a witness called by the opposite party, who testifies against him, by proving that his character is such as not to entitle him to credit or confidence, or any other fact which shows he is not, entitled to belief. It is clearly settled, also, that the party voluntarily calling a witness, cannot afterwards impeach his character for truth and veracity. 1 Moo. & Rob. 414; 3 B. & Cress. 746; S. C. 10 Eng. Com. Law R. 220. But if a party calls a witness, who turns out unfavorable, he may call another to prove the same point. 2 Campb. R. 556 2 Stark. R. 334; S. C. 3 E. C. L. R. 371 1 Nev & Man. 34; 4 B. & Adolph. 193; S. C. 24 E. C. L. R. 47; 1 Phil. Ev. 229; Rosc. Civ. Ev. 96.
DISCREPANCY. A difference between one thing and another, between one writing and another; a variance. (q. v.)
2. Discrepancies are material and immaterial. A discrepancy is immaterial 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 record was, that he obtained a rule to discontinue. 4 M. & M. 2 5 3. 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 John. 49 5 Taunt. 707; 2 B. & A. 301; 8 Miss. R. 428; 2 M'Lean, 69; 1 Metc. 59; 21 Pick. 486.
DISCRETION, practice. When it is said that something is left to the discretion of a judge, it signifies that he ought to decide according to the rules of equity, and the nature of circumstances. Louis. Code, art. 3522, No. 13; 2 Inst. 50, 298; 4 Serg. & Rawle, 265; 3 Burr. 2539.
2. The discretion of a judge is said to be the law of tyrants; it is always unkown; it is different in different men; it is casual, and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion, to which human nature is liable. Optima lex quae minimum relinquit arbitrio judicis: optimus judex qui minimum sibi. Bac. Aph; 1 Day's Cas.. 80, ii.; 1 Pow. Mortg. 247, a; 2 Supp. to Ves. Jr. 391; Toull. liv. 3, n. 338; 1 Lill. Ab. 447.
3. There is a species of discretion which is authorized by express law, and, without which, justice cannot be administered; for example, an old offender, a man of much intelligence and cunning, whose talents render him dangerous to the community, induces a young man of weak intellect to commit a larceny in company with himself; they are both liable to be punished for the offence. The law, foreseeing such a case, has provided that the punishment should be proportioned, 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.
DISCRETION, crim. law. The ability to know and distinguish between good and evil; between what is lawful and what is unlawful.
2. The age at which children are said to have discretion, is not very accurately ascertained. Under seven years, it seems that no circumstances of mischievous discretion can be admitted to overthrow the strong presumption of innocence, which is raised by an age so tender. 1 Hale, P. C. 27, 8; 4 Bl. Coin. 23. Between the ages of seven and fourteen, the infant is, prima facie, destitute of criminal design, but this presumption diminishes as the age increases, and even during this interval of youth, may be repelled by positive evidence of vicious intention; for tenderness of years will not excuse a maturity in crime, the maxim in these cases being, malitia supplet aetatem. At fourteen, children are said to have acquired legal discretion. 1 Hale, P. C. 25.
DISCRETIONARY TRUSTS. Those which cannot be duly administered without the application of a certain degree of prudence and judgment; as when a fund is given to trustees to be distributed in certain charities to be selected by the trustees.
DISCUSSION, civil law. A proceeding, on the part of a surety, by which. the property of the principal debtor is made liable before resort can be had to the sureties; this is called the benefit of discussion. This is the law in Louisiana. Civ. Code of Lo. art. 3014 to 3020. See Domat, 3, 4, 1 to 4; Burge on Sur. 329, 343, 348; 5 Toull. p. 544 7 Toull. p. 93; 2 Bouv. Inst. n. 1414.
DISFRANCHISEMENT. The act of depriving a member of a corporation of his right as such, by expulsion. 1 Bouv. Inst. n. 192.
2. It differs from amotion, (q. v.) which is applicable to the removal of an officer from office, leaving him his rights as a member. Willc. on Corp. n. 708; Ang. & Ames on Corp. 237; and see Expulsion.
DISGRACE. Ignominy, shame, dishonor. No witness is required to disgrace himself. 13 How. St. Tr. 17, 334; 16 How. St. Tr. 161. Vide Crimination; To Degrade.
DISHERISON. Disinheritance; depriving one of an inheritance. Obsolete. Vide Disinherison.
DISHERITOR. One who disinherits, or puts another out of his freehold. Obsolete.
TO DISHONOR, contr. This term is applied to the nonfulfilment of commercial engagements. To dishonor a bill of exchange, or a promissory note, is to refuse or neglect to pay it at maturity.
2. The holder is bound to give notice to the parties to such instrument of its dishonor, and his laches will discharge the indorsers. Chit. on Bills, 394, 395, 256 to 278.
DISINHERISON, civil law. The act of depriving a forced heir of the inheritance which the law gives him.
2. 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.
3. The just causes for which parents may disinherit their children, are ten in number. 1. If the child has raised his or her hand to strike the parent, or if he or she has actually struck the parent; but a mere threat is not sufficient. 2. If the child has been guilty, towards a parent, of cruelty, of a crime, or grievous injury. 3. If the child has attempted to take away the life of either parent. 4. If the child has accused either parent of any capital crime, except, however, that of high treason. 5. If the child has refused sustenance to a parent, having the means to afford it. 6. If the child has neglected to take care of a parent, become insane. 7. If a child has refused to ransom them when detained in captivity. 8. If the child used any act of violence or coercion to hinder a parent from making a will. 9. If the child has refused to become security for a parent, having the means, in order to take him out of prison. 10. If the son. or daughter, being a minor, marries without the consent of his or her parents. Civil Code, art. 1609-1613.
4. The ascendants may disinherit their Iegitimate decendants, coming to their succession for the first nine causes above expressed, when the, acts of ingratitude, there mentioned, have been committed towards them, instead of towards their parents; but they cannot disinherit their descendants for the last cause. Art. 1614.
5. Legitimate children, dying without issue, and leaving a parent,. cannot disinherit him or her, unless for the seven following causes, to wit: 1. If the parent has accused the child of a capital crime, except, however, the crime of high treason. 2. If the parent has attempted to take the child's life. 3. If the parent has, by any violence or force, hindered the child from making a will. 4. If the parent has refused sustenance to the child in necessity, having the means of affording it. 5. If the parent has neglected to take care of the child when in a state of insanity. 6. If the parent has neglected to ransom the child when in captivity. 7. If the father or mother have attempted the life the one of the other, in which case the child or descendant, making a will, may disinherit the one who has attempted the life of the other. Art. 1615.
6. The testator must express in the will for what reason he disinherited his forced heirs, or any of them, and the other heirs of the testator are moreover obliged to prove the facts on which the disinherison is founded, otherwise it is null. Art. 1616. Vide Nov 115 Ayl. Pand. B. 2, t. 29; Swinb. art 7, 22.
DISINHERITANCE. The act by which a person deprives his heir of an inheritance, who, without such act, would inherit.
2. By the common law, any one may give his estate to a stranger, and thereby disinherit his heir apparent. Coop. Justin. 495. 7 East, Rep. 106.
DISINTERESTED WITNESS. One who has no interest in the cause or matter in is-sue, and who is lawfully competent to testify.
2. In North Carolina and Tennessee, wills to pass lands must be attested by disinterested witnesses. See Attesting Witness; Competent Witness; Credible Witness; Respectable Witness, and Witness.
DISJUNCTIVE TERM. One which is placed between two contraries, by the affirming of one of which, the other is taken away: it is usually expressed by the word or. Vide 3 Ves. 450; 7 Ves. 454; 2 Rop. Leg. 290.; 1 P. Wms. 433; 2 Cox, Rep. 213; 2 P. Wms. 283 2 Atk. 643; 6 Ves. 341; 2 Ves. sr. 67; 2 Str. 1175; Cro. Eliz. 525; Pollexf. 645; 1 Bing. 500; 3 T. R. 470; 1 Ves. sr. 409; 3 Atk. 83, 85; Ayl. Pand. 56; 2 Miles, Rep. 49.
2. In the civil law, when a legacy is given to Caius or Titius, the word or is considered and, and both Caius and Titius are entitled to the legacy in equal parts. 6 Toull. n. 704. See Copulative term; Construction, subdivision, And; Or.. Also, Bac. Ab. Conditions, P 5.
DISMES. Another name for tithes. Dime, (q. v.) a piece of federal money, is sometimes improperly written disme.
TO DISMISS A CAUSE, practice. A term used in courts of chancery for removing a cause out of court without any further hearing.
DISOBEDIENCE. The want of submission to the orders of a superior.
2. In the army, disobedience is a misdemeanor.
3. For disobedience to parents, children may be punished; and apprentices may be imprisoned for disobedience to the lawful commands of their master. Vide Correction.
DISORDERLY HOUSE, crim. law. A house, the inmates of which believe so badly as to become a nuisance to the neighborhood.
2. The keeper of such house may be indicted for keeping a public nuisance. Hardr. 344; Hawk. b. 1, c. 78, s. 1 and 2 Bac. Ab. Inns, A; 1 Russ. on Cr. 298; 1 Wheel. C. C. 290; 1 Serg. & Rawle, 342; 2 Serg. & Rawle, 298; Bac. Ab. Nuisances, A; 4 Chit. BI.. Com. 167, 8, note. The hushand must be joined with the wife in an indictment to suppress a disorderly house. Justice's Case, Law 16; 1 Shaw, 146. Vide Bawdy house; Ill fame.
DISPARAGEMENT. An injury by union or comparison with some person or thing of inferior rank or excellence; as, while the infant was in ward, by the English law, the guardian had the power of tendering him a suitable match without disparagement. 2 Bl. Com. 70.
TO DISPAUPER, Eng. law. To deprive a person of the privilege of suing in forma pauperis. (q. v.)
2. When a person has been admitted to sue in forma pauperis, and, before the suit is ended, it appears that the party. has become the owner of a sufficient estate real or personal, or has been guilty of some wrong, he may be dispaupered.
DISPENSATION. A relaxation of law for the benefit or advantage of an individual. In the United States, no power exists, except in the legislature, to dispense with law, and then it is not so much a dispensation as a change of the law.
TO DISPONE, Scotch law. This is a technical word, which implies, it is said, a transfer of feudal property by a particular deed, and is not equivalent to the term alienate; but Lord Eldon says, "with respect to the word dispone, if I collect the opinions of a majority of the judgcs rightly, I am of opinion that the word dispone would have the same effect as the word alienate.) (q. v.) Sandford on Entails, 179, note.
DISPOSITION, French law. This word has several accept-ations; sometimes it signifies the effective marks of the will of some person; and at others the instrument containing those marks.
2. The dispositions of man make the dispositions of the law to cease; for example, when a man bequeaths his estate, the disposition he makes of it, renders the legal disposition of it, if he had died intestate, to cease.
DISSEISED pleading. This is a word with a technical meaning, which, when inserted in an indictment for forcible entry and detainer, has all the force of the words expelled or unlawfully, for the last is superfluous, and the first is implied in the word disseised. 8 T. R. 357; Cro. Jac. 32; vide 3 Yeates' R. 39; S. C. 4 Dall. Rep. 212.
DISSEISEE, torts. One who is wrongfully put out of possession of his lands.
DISSEISIN, torts. The privation of seisin. It takes the seisin or estate from one man and places it in another. It is an ouster of the rightful owner from the seisinor estate in the land, and the coinmencement of a new estate in the wrong doer. It may be by abatement, intrusion, discontinuance, or deforcement, as well as by disseisin, properly so called. Every dispossession is not a disseisin. A disseisin, properly so called, requires an ouster of the freehold. A disseisin at election is not a disseisin in fact; 2 Prest. Abs. tit. 279, et seq.; but by admission only of the injured party, for the purpose of trying his right in a real action. Co. Litt. 277; 3 Greenl. 316; 4 N. H. Rep. 371; 5 Cowen, 371; 6 John. 197; 2 Fairf. 309, 2 Greenl. 242; 5 Pet. 402; 6 Pick. 172.
2. Disseisin may be effected either in corporeal inheritances, or incorporeal. Disseisin of things corporcal, as of houses, lands, &c., must be by entry and actual dispossession of the freehold; as if a man enters, by force or fraud, into the house of another, and turns, or at least, keeps him or his servants out of possession. Disseisin of incorporeal hereditaments cannot be an actual dispossession, for the subject itself is neither capable of actual bodily possession nor dispossession. 3 B1. Com. 169, 170. See 15 Mass. 495 6 John. R. 197; 2 Watts, 23; 6 Pick. 172 1 Verm. 155; 11 Pet. R. 41; 10 Pet. R. 414; 14 Pick. 374; 1 Dana's R. 279; 2 Fairf. 408; 11 Pick. 193; 8 Pick. 172; 8 Vin. Ab. 79; 1 Swift's Dig. 504; 1 Cruise, *65; Arch. Civ. Pl. 12; Bac. Ab. h. t.; 2 Supp. to Ves. Jr. 343; Dane's Ab. Index, h. t.; 1 Chit. Pr. 374, note (r.)
DISSEISOR, torts. One who puts another out of the possession of his lands wrongfully.
DISSENT, contracts. A disagreement to something which has been done. It is express or implied.
2. The law presumes that every person to whom a conveyance has been made has given his assent to it, because it is supposed to be for his benefit. To rebut the presumption, his dissent must be expressed. Vide 4 Mason, R. 206; 11 Wheat. R. 78; 1 Binn. R. 502; 2 Binn. R. 174; 6 Binn. R. 338; 12 Mass. R. 456; 17 Mass. R. 552; 3 John. Ch. R. 261; 4 John. Ch. R. 136, 529; and dssent, and the authorities there cited.
DISSOLUTION, contracts. The dissolution of a contract, is the annulling its effects between the contracting parties.
2. This dissolution of a partnership, is the putting an end to the partnership. Its dissolution does not affect contracts made between the. partners and others; so that they are entitled to all their rights, and they are liable on their obligations, as if the partnership had not been dissolved. Vide article Partnership and 3 Kent, Com. 27 Dane's Ab. h. t.; Gow on Partn. Index, h. t.; Wats. on Partn. h. t.; Bouv. Inst. Index, h. t.
DISSOLUTION, practice. The act of rendering a legal proceeding null, or changing its character; as, a foreign attachment in Pennsylvania is: dissolved by entering bail to the action. Injunctions are dissolved by the court.
TO DISSUADE, crim. law. To induce a person not to do an act.
2. To dissuade a witness from giving evidence against a person indicted, is an indictable offence at common law. Hawk. B. 1, c. 2 1, s. 1 5. The mere attempt to stifle evidence, is also criminal, although the persuasion should not succeed, on the general principle that an incitement to commit a crime, is in itself criminal. 1 Russ. on Cr. 44; 6 East, R. 464; 2 East, R. 6, 21; 2 Str. 904; 2 Leach, 925. Vide To Persuade.
DISTRACTED PERSON, This term is used in the statutes of Illinois; Rev. Laws of Ill. 1833, p. 332; and New Hampshire; Dig. Laws of N. H. 1830, p. 339; to express a state of insanity.
TO DISTRAIN. To take an keep any personal chattel in custody, as a distress. (q. v.)
DISTRAINOR. One who makes a distress of goods and chattels to enforce some right.
DISTRESS, remedies. A distress is defined to be, the taking of a personal chattel, without legal process, from the possession of the wrong doer, into the hands of the party grieved, as a pledge for the redress of an injury, the performance of a duty, or the satisfaction of a demand. 3 Bl. Com. 6. It is a general rule, that a man who has an entire duty, shall not split the entire sum and distrain for part of it at one time, and part of it at another time. But if a man seizes for the whole sum that is due him, but mistakes the value of the goods distrained, there is no reason why he should not afterwards complete his execution by making a further seizure. 1 Burr. 589. It is to be observed also, that there is an essential difference between distresses at common law and distresses prescribed by statute. The former are taken nomine penae, (q. v.) as a means of compelling payment; the latter are similar to executions, and are taken as satisfaction for a duty. The former could not be sold the latter might be. Their only similarity is, that both are replevisable. A consequence of this difference is, that averia carucae are distrainable in the latter case, although there be other sufficient distress. 1 Burr. Rep. 588.
2. The remedy by distress to enforce the payment of arrears of rent is so frequently adopted by landlords, (Co. Lit. 162, b,) that a considerable space will be allotted to this article under the following heads: 1. The several kinds of rent for which a distress may be made. 2. The persons who may make it. 3. The goods which may be distrained. 4. The time when a distress may be made. 5. In what place it may be made. 6. The manner of making it, and disposing of the goods distrained. 7. When a distress will be a waiver of a forfeiture of the lease.
3. - §1. Of the rents for which a distress may be made. 1. A distress may generally be taken for any kind of rent in arrear, the detention of which, beyond the day of payment, is an injury to him who is entitled to receive it. 3 Bl. Com. 6. The rent must be reserved out of a corporeal hereditament, and must be certain in its quantity, extent, and time of payment, or at least be capable of being reduced to certainty. Co. Lit. 96, a.; 13 Serg. & Rawle, 64; 3 Penn. R. 30. An agreement that the lessee pay no rent, provided he make repairs, and the value of the repairs is uncertain, would not authorize the landlord to distrain. Addis. 347. Where the rent is a certain quantity of grain, the landlord may distrain for so many bushels in arrear, and name the value, in order that if the goods should not be replevied, or the arrears tendered, the officer may know what amount of money is to be raised by the sale, and in such case the tenant may tender the arrears in grain. 13 Serg. & Rawle, 52; See 3 Watts & S. 531. But where the tenant agreed, instead of rent, to render " one-half part of all the grain of every kind, and of all hemp, flax, potatoes, apples, fruit, and other produce of whatever kind that should be planted, raised, sown or produced, on or out of the demised premises, within and during the terms,", the landlord cannot, perhaps, distrain at all; he cannot, certainly, distrain for a sum of money, although he and the tenant may afterwards have settled their accounts, and agreed that the half of the produce of the land should be fixed in money, for which the tenant gave his note, which was not paid. 1 3 Serg. & Rawle, 5 2. But in another case it was held, that on a demise of a grist mill, when the lessee is to render one-third of the toll, the lessor may distrain for rent. 2 Rawle, 11.
4. - 2. With respect to the amount of the rent, for which a lessor may in different cases be entitled to make a distress, it may be laid down as a general rule, that whatever can properly be considered as a part of the rent, may be distrained for, whatever be the particular mode in which it is agreed to be paid. So that where a person entered into possession of certain premises, subject to the approbation of the landlord, which was afterwards obtained, by agreeing to pay in advance, rent from the time be came into possession, it was, in England, determined that the landlord might distrain for the whole sum accrued before and after the agreement. Cowp. 784. For on whatever day the tenant agrees that the rent shall be due, the law gives the landlord the power of distraining for it at that time. 2 T. R. 600. But see 13 S. & R. 60. In New York, it was determined, that an agreement that the rent should be paid in advance, is a personal covenant on which an action lies, but not distress. 1 Johns. R. 384. The supreme court of Pennsylvania declined deciding this point, as it was not necessarily before them. 13 Serg. & Rawle, 60. Interest due on rent cannot, in general, be distrained for; 2 Binn. 146; but may be recovered from the tenant by action, unless under particular circumstances. 6 Binn. 159.
5. - §2. Of the persons entitled to make a distress. 1. When the landlord is sole owner of the property out of which rent is payable to him, he may, of course, distrain in his own right.
6. - 2. Joint tenants have each of them an estate in every part of the rent; each may, therefore, distrain alone for the whole, 3 Salk. 207, although he must afterwards account with his companions for their respective shares of the rent. 3 Salk. 17; 4 Bing. 562; 2 Brod. & B. 465; 5 Moore, 297 Y. B. 15 H. VIII, 17, a; 1 Chit. Pr. 270; 1 Tho. Co. Litt. 783, note R; Bac. Ab. Account; 5 Taunt. 431; 2 Chit. R. 10; 3 Chit. Pl. 1297. But one joint tenant cannot avow solely, because the avowry is always upon the right, and the right of the rent is in all of them. Per Holt, 3 Salk. 207. They may all join in making the distress, which is the better way.
7. - 3. Tenants in common do not, like joint tenants, hold by one title and by one right, but by different titles, and have several estates. Therefore they should distrain separately, each for his share, Co. Lit. s. 317, unless the rent be of an entire thing, as to render a horse, in which case, the thing being incapable of division, they must join. Co. Lit. 197, a. Each tenant in common is entitled to receive, from the lessee, his proportion of the rent; and therefore, when a person holding under two tenants in common, paid the whole rent to one of them, after having received a notice to the contrary from the other, it was held, that the party who gave the notice might afterwards distrain. 5 T. R. 246. As tenants in common have no original privity of estate between them, as to their respective shares, one may lease his part of the land to the other, rendering rent, for which a distress may be made, as if the land had been demised to a stranger. Bro. Ab. tit. Distress, pl. 65.
8. - 4. It may be, perhaps, laid down asa general rule, that for rent due in right of the wife, the hushand may distrain alone; 2 Saund. 195; even if it accrue to her in the character of executrix or administratrix. Ld. Raym. 369. With respect to the remedies for the recovery of the arrears of a rent accruing in right of his wife, a distinction is made between rent due for land, in which the wife has a chattel interest, and rent due in land, in which she has an estate of freehold and inheritance. And in some cases, a further distinction must be made between a rent accruing before and rent accruing after the coverture. See, on this subject, Co. Lit. 46, b, 300, a; 351, a; 1 Roll. Abr. 350; stat; 32 Hen. VIII. c. 37, s. 3.
9. - 5. A tenant by the curtesy, has an estate of freehold in the lands of his wife, and in contemplation of law, a reversion on all land of the wife leased for years or lives, and may distrain at common law for all rents reserved thereon.
10. - 6. A woman may be endowed of rent as well as of land; if a hushand, therefore, tenant in fee, make a lease for years, reserving rent, and die, his widow shall be endowed of one-third part of the reversion by metes and bounds, together with a third part of the rent. Co. Litt. 32, a. The rent in this base is apportioned by the act of law, and therefore if a widow be endowed of a third part of a rent in fee, she may distrain for a third part thereof, and the heir shall distrain for the other part of the rent. Bro. Abr. tit. Avowry, pl. 139.
11. - 7. A tenant for his own life or that of another, has an estate of freehold, and if he make a lease for years, reserving rent, he is entitled to distrain upon the lessee. It may here be proper to remark, that at common law, if a tenant for life made a lease for years, if be should so long live, at a certain rent, payable quarterly, and died before the quarter day, the tenant was discharged of that quarter's rent by the act of God. 10 Rep. 128. But the 11 Geo. II. c. 19, s. 15, gives an action to the executors or administrators of such tenant for life.
12. - 8. By the statute 32 Henry VIII. c. 37, s. 1, "the personal representatives of tenants in fee, tail, or for life, of rent-service, rent-charge, and rents-seek, and fee farms, may distrain for, arrears upon the land charged with the payment, so long as the lands continue in seisin or possession of the tenant in demesne, who ought to have paid the rent or fee farm, or some person claiming under him by purchase, gift or descent." By the words of the statute, the distress must be made on the lands while in the possession of the "tenant in demesne," or some person claiming under him, by purchase, gift or descent; and therefore it extends to the possession of those persons only who claim under the tenant, and the statute does not comprise the tenant in dower or by the curtesy, for they come in, not under the party, but by act of law. 1 Leon. 302.
13. - 9. The heir entitled to the reversion may distrain for rent in arrear which becomes due after the ancestor's death; the rent does not become due till the last minute of the natural day, and if the ancestor die between sunset and midnight, the heir, and not the executor, shall have the rent. 1 Saund. 287. And if rent be payable at either of two periods, at the choice of the lessee, and the lessor die between them, the rent being unpaid, it will go to the heir. 10 Rep. 128, b.
14. - 10. Devisees, like heirs, may distrain in respect of their reversionary estate; for by a devise of the reversion the rent will pass with its incidents. 1 Ventr. 161.
15. - 11. Trustees who have vested in them legal estates, as trustees of a married woman, or assignees of an insolvent, may of course distrain in respect of their legal estates, in the same manner as if they were beneficially interested therein.
16. - 12. Guardians may make leases of their wards' lands in their, own names, which will be good during the minority of the ward. and, consequently, in respect of such leases, they possess the same power of distress as other persons granting leases in their own rights. Cro. Jac. 55, 98.
17. - 13. Corporations aggregate should generally make and accept leases or other conveyances of lands or rent, under their common seal. But if a lease be made by an agent of the corporation, not under their common seal, although it may be invalid as a lease, yet if the tenant hold under it, and pay rent to the bailiff or agent of the corporation, that is sufficient to constitute a tenancy at least from year to year, and to entitle the corporation to distrain for rent. New Rep. 247. But see Corporation.
18. - §3. Of the things which may or may not be distrained. Goods found upon the premises demised to a tenant are generally liable to be distrained by a landlord for rent, whether such goods in fact belong to the tenant or other persons. Coin. Dig. Distress, B 1. Thus it has been held, that a gentleman's chariot, which stood in a coach-house belonging to a common livery stable keeper, was distrainable by the landlord for the rent due him by the livery stable keeper for the coach-house. 3 Burr. 1498. So if cattle are put on the tenant's land by consent of the owners of the beasts, they are distrainable by the landlord immediately after for rent in arrear. 3 Bl. Com. 8. But goods are sometimes privileged from distress, either absolutely or conditionally.
19. First. Those of the first class are privileged, 1. In respect of the owner of 2. Because no one can have property in them. 3. Because they cannot be restored to the owner in the same plight as when taken. 4. Because they are fixed to the freehold. 5. Because it is against the policy of law that they should be distrained. 6. Because they are in the custody of the law. 7. Because they are protected by some special act of the legislature.
20. - 1. The goods of a person who has some interest, in the land jointly with the distrainer, as those of a joint tenant, although found upon the land, cannot be distrained. The goods of executors and administrators, or of the assignee of an insolvent regularly discharged according to law, cannot, in Pennsylvania, be distrained for more than one year's rent. The goods of a former tenant, rightfully on the land, cannot be distrained for another's rent. For example, a tenant at will, if quitting upon notice from his landlord, is entitled to the emblements or growing crops; and therefore even after they are reaped, if they remain on the land for the purpose of hushandry, they cannot be distrained for rent due by the second tenant. Willes, 131. And they are equally protected in the hands of a vendee. Ibid. They cannot be distrained, although the purchaser allow them to remain uncut an unreasonable time after the are ripe. 2 B. & B. 862; 5 Moore, 97, S. C.
21. - 2. As every thing which is distrained is presumed to be the property of the tenant, it will follow that things wherein no man can have an absolute and valuable property, as cats, dogs, rabbits, and all animals ferae naturae, cannot be distrained. Yet, if deer, which are of a wild nature, are kept in a private enclosure, for the purpose of sale or profit, this so far changes their nature by reducing them to a kind of stock or merchandise, that they may be distrained for rent. 3 B1. Com. 7.
22. - 3. Such things as cannot be restored to the owner in the same plight as when they were taken, as milk, fruit, and the like, cannot be distrained. 3 Bl. Com. 9.
23.- 4. Things affixed or annexed to the freehold, as furnaces, windows, doors, and the like, cannot be distrained, because they are not personal chattels, but belong to the realty. Co. Litt. 47, b. And this rule extends. to such things as are essentially a part of the freehold, although for a time removed therefrom, as a millstone removed to be picked; for this is matter of necessity, and it still remains in contemplation of law, a part of the freehold. For the same reason an anvil fixed in a smith's shop cannot be distrained. Bro. Abr. Distress, pl. 23; 4 T. R. 567; Willis, Rep. 512 6 Price's R. 3; 2 Chitty's R. 167.
24. - 5. Goods are privileged in cases where the proprietor is either compelled, from necessity to place his goods upon the land, or where be does so for commercial purposes. 17 S. & R. 139; 7 W. & S. 302; 8 W. & S. 302; 4 Halst. 110; 1 Bay, 102, 170; 2 McCord, 39; 3 B. & B. 75; 6 J. B. Moore, 243; 1 Bing. 283; 8 J. B. Moore, 254; 2 C. & P. 353; 1 Cr. M. 380. In the first case, the goods are exempt, because the owner has no option; hence the goods of a traveller in an inn are exempt from distress. 7 H. 7, M. 1, p. 1.; Hamm. N. 380, a.; 2 Keny. 439; Barnes, 472; 1 Bl. R. 483; 3 Burr. 1408. In the other, the interests of the community require that commerce should be encouraged, and adventurers will not engage in speculations, if the property embarked is to be made liable for the payment of debts they never contracted. Hence goods landed at a wharf, or deposited in a warehouse on storage, cannot be distrained. 17 Serg. & Rawle, 138; 6 Whart. R. 9, 14; 9 Shepl. 47; 23 Wend. 462. Valuable things in the way of trade are not liable to distress; as, a horse standing in a smith's shop to be shod, or in a common inn; or cloth at a tailor's house to be made into a coat; or corn sent to a mill to be ground, for these are privileged and protected for the benefit of trade. 3 Bl. Com. 8. On the same principle it has been decided, that the goods of a boarder are not liable to be distrained for rent due by the keeper of a boarding house; 5 Whart. R. 9; unless used by the tenant with the boarder's consent, and without that of the landlord: 1 Hill , 565.
25. - 6. Goods taken in execution cannot be distrained. The law in some states gives the landlord the right to claim payment out of the proceeds of an execution for rent, not exceeding one year, and he is entitled to payment up to the day of seizure, though it be in the middle of a quarter 2 Yeates, 274; 5 Binn. 505; but he is not entitled to the day of sale. 5 Binn. 505. See 18 Johns. R. 1. The usual practice is, to give notice to the, sheriff that there is a certain sum due to the landlord as arrears of rent; which notice ought to be given to the sheriff, or person who takes the goods in execution upon the premises for the sheriff is, not bound to find out whether rent is due, nor is he liable to an action, unless there has been a demand of rent before the removal. 1 Str. 97, 214; 3 Taunt. 400 2 Wils. 140; Com. Dig. Rent, D 8; 11 Johns. R. 185. This notice can be given by the immediate landlord only a ground landlord is not entitled to his rent out of the goods of the under tenant taken in execution. 2 Str. 787. And where there are two executions, the landlord is not entitled to a year's rent on each. See Str. 1024. Goods distrained and replevied may be distrained by another landlord for subsequent rent. 2 Dall. 68.
26.-7. By some special acts of the legislature it is provided that tools of a man's trade, some designated household furniture, school books, and the like, shall be exempted from distress, execution, or sale. And by a recent Act of Assembly of Pennsylvania, April 9, 1849, property to the value of three hundred dollars, exclusive of all wearing apparel of the defendant and his family, and all bibles and school books in use in the family, are exempted from levy and sale on execution, or by distress for rent.
27. - Secondly. Besides the above mentioned goods and chattels, which are absolutely privileged from distress, there are others which are conditionally so, but which may be distrained under certain circumstances. These are, 1. Beasts of the plough, which are exempt if there be a sufficient distress besides on the land whence the rent issues. Co. Litt. 47, a; Bac. Abr. Distress, B. 2. Implements of trade; as, a loom in actual use; and there is a sufficient distress besides. 4 T. R. 565. 3. Other things in actual use,; as, a horse whereon a person is riding, an axe in the hands of. a person cutting wood, and the like. Co. Litt. 4 7, a.
28. - §4. The time when a distress may be made. 1. The distress cannot be made till the rent is due by the terms of the lease; as reat is not due until the last minute of the natural day on which it is reserved, it follows that a distress for rent cannot be made on that day. 1 Saund. 287; Co. Litt. 47, b. n. 6. A previous demand is not generally necessary, although there be a clause in the lease, that the lessor may distrain for rent," being lawfully demanded Bradb. 124; Bac. Abr. Rent, 1; the making of the distress being a demand though it is advisable to make such a demand. But where a lease provides for a special demand; as, if the clause were that if the rent should happen to be behind it should be demanded at a particular place not on the land; or be demanded of the person of the tenant; then such special demand is necessary to support the distress. Plowd. 69 Bac. Abr. Rent, I.
29. - 2 A distress for rent can only be made during the day time. Co. Litt. 142, a.
30. - 3. At common law a distress could not be made after the expiration of the lease to remedy this evil the legislature of Pennsylvania passed an act making it "lawful for any person having any rent in arrear or due upon any lease for life or years or at will, ended or determined, to distrain for such arrears after the determination of the said respective leases, in the same manner as they might have done, if such lease had not been ended: provided, that such distress be made during the continuance of such lessor's title or interest.", Act of March 21, 1772, s. 14, 1 Smith's Laws of Penna. 375. 4. In the city and county of Philadelphia, the landlord may, under certain circumstances, apportion his rent, and distrain before it becomes due. See act of March 25, 1825, s. 1, Pamph. L. 114.
31. - §5. In what place a distress may be made. The distress may be made upon the land, or off the land. 1. Upon the land. A distress generally follows the rent, and is consequently confined to the land out of which it issues. If two pieces of land, therefore, are let by two separate demises, although both be contained in one lease, a joint distress cannot be made for them, for this would be to make the rent of one issue out of the other. Rep. Temp. Hardw. 245; S. C. Str. 1040. But where lands lying in different counties are let together by one demise, at one entire rent, and it does not appear that the lands are separate from each other, one distress may be made for the whole rent. Ld. Raym. 55; S. C. 12 Mod. 76. And, where rent is charged upon land, which is afterwards held by several tenants, the grantee or landlord may distrain for the whole upon the land of any of them; because the whole rent is deemed to issue out of every part of the land. Roll. Abr. 671. If there be a house on the land, the distress may be made in the house; if the outer door or window be open, a distress may be taken out of it. Roll. Abr. 671. And if an outer door be open, an inner door may be broken open for the purpose of taking a distress. Comb. 47; Cas. Temp. Hard. 168. Barges on a river, attached to the leased premises (a wharf) by ropes, cannot be distrained. 6 Bingh. 150; 19 Eng. Com. Law R. 36.
32. - 2. Off the land. By the 5th and 6th sections of the Pennsylvania act of assembly of March 21, 1772, copied from the 11 Geo. II. c. 19, it is enacted, that if any tenant for life, years, at will, or otherwise, shall fraudulently or clandestinely convey his goods off the premises to prevent the landlord from distraining the same, such person, or any person by him lawfully authorized, may, within thirty days after such conveyance, seize the same, wherever they shall be found, and dispose of them in such manner as if they had been distrained on the premises. Provided, that the landlord shall not distrain any goods which shall have been previously sold, bona fide, and for a valuable consideration, to one not privy to the fraud. To bring a case within the act, the removal must take place after the rent becomes due, and must be secret, not made in open day, for such removal cannot be said to be clandestine within the meaning of the act. 3 Esp. N. P. C. 15; 12 Serg. & Rawle, 217; 7 Bing. 422; 1 Moody & Malkin, 585. It has however been made a question, whether goods are protected that were fraudulently removed on the night before the rent had become due. 4 Camp. 135. The goods of a stranger cannot be pursued; they can be distrained only while they are, on the premises. 1 Dall. 440.
33. - §6. Of the manner of making a distress. 1. A distress for rent may be made either by the person to whom it is due, or, which is the preferable mode, by a constable, or bailiff, or other officer properly authorized by him.
34. - 2. If the distress be made by a constable, it is necessary that he should be properly authorized to make it; for which purpose the landlord should give him a written authority, or; as it is usually called, a warrant of distress; but a subsequent assent and recognition given by the party for whose use the distress has been made, is sufficient. Hamm. N. P. 382.
35. - 3. When the constable is thus provided with the requisite authority to make a distress, he, may distrain by seizing the tenant's goods, or some of them in the name of the whole, and declaring that he takes them as a distress for the sum expressed in the warrant to be due by the tenant to the landlord, and that he takes them by virtue of the said warrant; which warrant he ought, if required, to show. 1 Leon. 50.
36. - 4. When making the distress it ought to be made for the whole rent; but if goods cannot be found at the time, sufficient to satisfy the rent, or the party mistake the value of the thing distrained, he may make a second distress. Bradb. 129, 30; 2 Tr. & H. Pr. 155; supra 1.
37. - 5. As soon as a distress is made, an inventory of the goods distrained should be made, and a copy of it delivered to the tenant, together with a notice of taking such distress, with the cause for taking the same. This notice of taking a distress is not required by the statute to be in writing; and, therefore, parol or verbal notice may be given either to the tenant on the premises, or to the owner of the goods distrained. 12 Mod. 76. And although notice is directed by the act to specify the cause of taking, it is not material whether it accurately state the period of the rent's becoming due; Dougl. 279; or even whether the true cause of taking the goods be expressed therein. 7 T. R. 654. If the notice be not personally given, it should be left in writing at the tenant's house, or according to the directions of the act, at the mansion-house or other most notorious place on the premises charged with the rent distrained for.
38. - 6. The distrainor may leave or impound the distress on the premises for the five days mentioned in the act, but becomes a trespasser after that time. 2 Dall. 69. As in many cases it is desirable for the sake of the tenant that the goods should not be sold as soon as the law permits, it is usual for him to sign an agreement or consent to their remaining on the premises for a longer time, in the custody of the distrainor, or of a person by him appointed for that purpose. While in his possession, the distrainor cannot use or work cattle distrained, unless it be for the owner's benefit, as to milk a cow, or the like. 5 Dane's Abr. 34.
39. - 7. Before the goods are sold they must be appraised by two reputable free-holders, who shall take an oath or affirmation to be administered by the sheriff, under-sheriff, or coroner, in the words mentioned in the act.
40. - 8. The next requisite is to give six days public notice of the time and place of sale of the things distrained; after which, if they have not been replevied, they may be sold by the proper officer, who may apply the proceeds to the payment and satisfaction of the rent, and the expenses of the distress, appraisement and sale. The over-plus, if any, is to be paid to the tenant.
41. - §7. When a distress will be a waiver of a forfeiture of the lease. On this subject, see 1 B. & Adol. 428. The right of distress, it seems, does not exist in the New England states. 4 Dane's Ab. 126; 7 Pick. R. 105; 3 Griff. Reg 404; 4 Griff. Reg. 1143; Aik. Dig. 357, nor in Alabama, Mississippi, North Carolina, nor Ohio; and in Kentucky, the right is limited to a distress for a pecuniary rent. 1 Hill. Ab. 156. Vide, generally, Bouv. Inst. Index, h . t.; Gilb. on Distr. by Hunt; Bradb. on Distr.; Com. Dig. h. t.; Bac. Ab. h. t.; Vin. Ab. h. t.; 2 Saund. Index, h. t.; Wilk. on Repl.; 3 Chit. Bl. Com. 6, note; Crabb on R. P. §222 to 250.
DISTRESS INFINITE, English practice. A process commanding the sheriff to distrain a person from time to time, and continually afterwards, by taking his goods by way of pledge, to enforce the performance of something due from the party distrained upon. In this case, no distress can be immoderate, because, whatever its value may be, it cannot be sold, but is to be immediately restored on satisfaction being made. 3 Bl. Com. 231. See Distringas.
DISTRIBUTION. By this term is understood the division of an intestate's estate according to law.
2. The English statute of 22 and 23 Car. II. c. 10, which was itself probably borrowed from the 118th Novel of Justinian, is the foundation of, perhaps, most acts of distribution in the several states. Vide 2 Kent, Com. 342, note; 8 Com. Dig. 522; 11 Vin. Ab. 189, 202; Com. Dig. Administration, H.
DISTRIBUTIVE JUSTICE. That virtue, whose object it is to distribute rewards and punishments to every one according to his merits or demerits. Tr. of Eq. 3; Lepage, El. du Dr. ch. 1, art. 3, §2 1 Toull. n. 7, note. See Justice.
DISTRICT. A certain portion of the country, separated from the rest for some special purposes. The United States are divided into judicial districts, in each of which is established a district court; they are also divided into election districts; collection districts, &c.
DISTRICT ATTORNEYS OF THE UNITED STATES. There shall be appointed, in each judicial district, a meet person, learned in the law, to act as attorney of the United States in such district, who shall be sworn or affirmed to the faithful execution of his office. Act of September 24, 1789, s. 35, 1 Story's Laws, 67.
2. His duty is to prosecute, in such district, all delinquents, for crimes and offences cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned, except in the supreme court, in the district in which that court shall be holden. Ib.
3. Their salaries vary in different districts. Vide Gordon's Dig. art. 403. By the Act of March 3, 1815, 2 Story's L. U. S. 1530, district attorneys are authorized to appoint deputies, in certain cases, to sue in the state courts. See Deputy District Attorney.
DISTRICT COURT. The name of one of the courts of the United States. It is held by a judge, called the district judge. Several courts under the same name have been established by state authority. Vide Courts of the United States.
DISTRICT OF COLUMBIA. The name of a district of country, ten miles square, situate between the states of Maryland and Virginia, over which the national government has exclusive jurisdiction. By the constitution, congress may " exercise exclusive jurisdiction in all cases whatsoever, over such district, not exceeding ten miles square, as may, by, cession of particular states, and the acceptance of congress, become the seat of government of the United States." In pursuance of this authority, the states of Maryland and Virginia, ceded to the United States, a small territory on the banks of the Potomac, and congress, by the Act of July 16, 1790, accepted the same for the permanent seat of the government of the United States. The act provides for the removal of the seat of government from the city of Philadelphia to the District of Columbia, on the first Monday of December, 1800. It is also provided, that the laws of the state, within such district, shall not be affected by the acceptance, until the time fixed for the removal of the government thereto, and until congress shall otherwise by law provide.
2. It seems that the District of Columbia, and the territorial districts of the United States, are not states within the meaning of the constitution, and of the judiciary act, so as to enable a citizen thereof to sue a citizen of one of the states in the federal courts. 2 Cranch, 445; 1 Wheat, 91.
3. By the Act of July 11, 1846, congress retroceded the county of Alexandria, part of the District of Columbia, to the state of Virginia.
DISTRINGAS, remedies. A writ directed to the sheriff, commanding him to distrain one of his goods and chattels, to enforce his compliance of what is required of him, as for his appearance in a court on such a day, and the like. Com. Dig. Process, D 7; Chit. Pr. Index, h. t. Sellon's Pr. Index, h. t.; Tidd's Pr. Index, h. t. 11 East, 353. It is also a form of execution in the action of detinue, and assize of nuisance. Registrum Judiciale, 56; 1 Rawle, 44, 48; Bro. Abr. pl. 26; 22; H. VI. 41. This writ is likewise used to compel the appearance of a corporation agregate. 4 Bouv. Inst. n. 4191.
DISTURBANCE, torts. A wrong done to an incorporeal hereditament, by hindering or disquieting the owner in the enjoyment of it. Finch. L. 187; 3 Bl. Com. 235; 1 Swift's Dig. 522; Com. Dig. Action upon the case for a disturbance, Pleader, 3 I 6; 1 Serg. & Rawle, 298.
DIVIDEND. A portion of the principal, or profits, divided among several owners of a thing.
2. The term is usually applied to the division of the profits arising out of bank or other stocks; or to the division, among the creditors, of the elects of an insolvent estate.
3. In another sense, according to some old authorities, it signifies one part of an indenture. T. L.
DIVISIBLE. The susceptibility of being divided.
2. 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 Penna. R. 454. But some contracts are susceptible 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. 404; and see Apportionment. But when it is to do several things, at several times, an action will lie upon every default. 15 Pick. R. 409. See 1 Greenl. R. 316; 6 Mass. 344. See Entire.
DIVISION, Eng. law. A particular and ascertained part of a county. In Lincolnshire, division means what riding does in Yorkshire.
DIVISION OF OPINION. 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.
2. In such a case, the Roman law, which seems founded in reason and common sense, directs, that when the division relates to the quantity of things included, as in the case of a judgment, if one of three judges votes for condemning a man to a fine of one hundred dollars, another, to one of fifty dollars, and the third to twenty-five, the opinion or vote of; the last shall be the rule for the judgment; because the votes of all the others include that of the lowest; this is the case when unanimity is required. But when the division of opinions does not relate to the quantity of things, then it is always to be in favor of the defendant. It was a rule among the Romans that when the judges were equal in number, and they were divided into two opinions in cases of liberty, that opinion which favored it should prevail; and in other cases, it should be in favor of the defendant. Poth. Pand. liv. L. n. MDLXXIV.
3. 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 example, on a habeas corpus, when a court is composed of four judges, and one is for remanding the prisoner, another is for discharging him on his own recognizance, and two others for discharging him absolutely, the judgment will be, that he be discharged. Rudyard's Case, Bac. Ab. Habeas Corpus, B 10, Court 5.
4. It is provided, by the Act of Congress of April 29, 1802, s. 6, that whenever any question shall occur before a circuit court, upon which the opinions of the judges shall be opposed, the point upon which the disagreement shall happen shall, during the same term, upon the request of either party, or their counsel, be stated, under the direction of the judges, and certified, under the seal of the court, to the supreme court, at their next session to be hold thereafter, and shall, by the said court, be finally decided. And the decision of the supreme court, and their order in the premises, shall be, remitted to the circuit court, and be there entered *of record and shall have effect according to the nature of the said judgment and order: Provided, That nothing herein contained shall prevent the cause from proceeding, if, in the opinion of the court, further proceedings can be had without prejudice to the merits: And Provided, also, That imprisonment shall not be allowed, nor punishment in any case be inflicted, where the judges of the said court are divided in opinion upon the question touching the said imprisonment or punishment. See 5 N. S. 407.
DIVORCE. The dissolution of a marriage contracted between a man and a woman, by the judgment of a court of competent jurisdiction, or by an act of the legislature. It is so called from the diversity of the minds of those who are married; because such as are divorced go each a different way from the other. Ridley's Civ. & Eccl. Law, pp. 11, 112. Until a decree of divorce be actually made, neither party can treat the other as sole, even in cases where the marriage is utterly null and void for some preexisting cause. Griffiths v Smith, D. C. of Philadelphia, 3 Penn. Law Journal, 151, 153. A decree of divorce must also be made during the lifetime of both the parties. After the decease of either the marriage will be deemed as legal in all respects. Reeves" Dom. Rel. 204; 1 Bl. Com. 440. See Act of Pennsylvania, March 13, 1815, §5.
2. Divorces are of two kinds; 1. a vinculo matrimonii, (q. v.) which dissolves and totally severs the marriage tie; and, 2. a mensa et thoro, (q. v.) which merely separates the parties.
3. - 1. The divorce a vinculo was never granted by the ecclesiastical law except for the most grave reasons. These, according to Lord Coke, (Co. Litt. 235, a,) are causa praecontractus, causa metus, causa impotentiae, seu frigiditatis, causa affinitatis, et causa consanguinitatis. In England such a divorce bastardizes the issue, and generally speaking, is allowed only on the ground of some preexisting cause. Reeves' Dom. Rel. 204-5; but sometimes by act of parliament for a supervenient cause. 1 Bl. Com. 440. When the marriage was dissolved for canonical causes of impediment, existing previous to its taking place, it was declared void ab initio.
4. In the United States, divorces a vinculo are granted by the state legislatures for such causes as may be sufficient to induce the members to vote in favor of granting them; and they are granted by the courts to which such jurisdiction is given, for certain causes particularly provided for by law.
5. In some states, the legislature never grants a divorce until after the courts have decreed one, and it is still requisite that the legislature shall act, to make the divorce valid. This is the case in Mississippi. In some states, as Wisconsin, the legislature cannot grant a divorce. Const. art. 4, is. 24.
6. The courts in nearly all the states have power to decree divorces a vinculo, for, first, causes which existed and which were a bar to a lawful marriage, as, precontract, or the existence of a marriage between one of the contracting parties and another person, at the time the marriage sought to be dissolved took place; consanguinity, or that degree of relationship forbidden by law; affinity in some states, as Vermont, Rev. Stat. tit. 16, c. 63, s. 1; impotence, (q. v.) idiocy, lunacy, or other mental imbecility, which renders the party subject to it incapable of making a contract; when the contract was entered into in consequence of fraud. Secondly, the marriage may be dissolved by divorce for causes which have arisen since the formation of the contract, the principal of which are adultery cruelty; wilful and malicious desertion for a period of time specified in the acts of the several states; to these are added, in some states, conviction of felony or other infamous crime; Ark. Rev. Stat. c. 50, s. 1, p. 333; being a fugitive from justice, when charged with an infamous crime. Laws of Lo. Act of April 2, 1832. In Tennessee the hushand may obtain a divorce when the wife was pregnant at the time of marriage with a child of color; and also when the wife refuses for two years to follow her hushand, who has gone bonafide to Tennessee to reside. Act of 1819, c. 20, and Act of 1835, c. 26 Carr. Nich. & Comp. 256, 257. In Kentucky and Maine,, where one of the parties has formed a connexion with certain religionists, whose opinions. and practices are inconsistent with the marriage duties. And, in some states, as Rhode Island and Vermont, for neglect and refusal on the part of the hushand (he being of sufficient ability) to provide necessaries for the subsistence of his wife. In others, habitual drunkenness is a sufficient cause.
7. In some of the states divorces a mensa et thoro are granted for cruelty, desertion, and such like causes, while in others the divorce is a vinculo.
8. When the divorce is prayed for on the ground of adultery, in some and perhaps in most of the states, it is a good defence, 1st. That the other party has been guilty of the same offence. 2. That the hushand has prostituted his wife, or connived at her amours. 3. That the offended party has been reconciled to the other by either express or implied condonation. (q. v.) 4. That there was no intention to commit adultery, as when the party, supposing his or her first hushand or wife dead, married again. 5. That the wife was forced or ravished.
9. The effects of a divorce a vinculo on the property of the wife, are various in the several states. When the divorce is for the adultery or other criminal acts of the hushand, in general the wife's lands are restored to her; when it is caused by the adultery or other criminal act of the wife, the bushand has in general some qualified right of curtesy to her lands; when the divorce is caused by some preexisting cause, as consanguinity, affinity or impotence, in some states, as Maine and Rhode Island, the lands of the wife are restored to her. 1 Hill. Ab. 51, 2. See 2 Ashm. 455; 5 Blackf. 309. At common law, a divorce a vinculo matrimonii bars the wife of dower; Bract. lib. ii. cap. 39, §4; but not a divorce ti mensa et, thoro, though for the crime of adultery. Yet by Stat. West. 1, 3 Ed. I. c. 84, elopement with an adulterer has this effect. Dyer, 195; Co. Litt. 32, a. n. 10; 3 P. Wms. 276, 277. If land be given to a man and his wife, and the heirs of their two bodies begotten, and they are divorced. a vinculo, &c., they shall neither of them have this estate, but he barely tenants for life, notwithstanding the inheritance once vested in them. Co. Litt. 28. If a lease be made to hushand and wife during coverture, and the hushand sows the, land, and afterwards they are divorced a vinculo, &c., the hushand shall have the emblements in that case, for the divorce is the act of law. Mildmay's Case. As to personalty, the rule of the common law is, if one marry a woman who has goods, he may give them or sell them at his pleasure. If they are divorced, the woman shall have the goods back again, unless the hushand has given them away or sold them; for in such case she is without remedy. If the hushand aliened them by collusion, she may aver and prove the collusion, and thereupon recover the goods from the alience. If one be bound in an obligation to a feme sole, and then marry her, and afterwards they are divorced, she may sue her former hushand on the obligation, notwithstanding her action was in suspense during the marriage. And for such things as belonged to the wife before marriage, if they cannot be known, she could sue for, after divorce, only in the court Christian, for the action of account did not lie, because he was not her receiver to account. But for such things as remain in specie, and may be known, the common law gives her an action of detinue. 26 Hen. VIII. 1.
10. When a divorce a vinculo takes place, it is, in general, a bar to dower; but in Connecticut, Illinois, New York, and, it seems, in Michigan, dower is not barred by a divorce for the fault of the hushand. In Kentucky, when a divorce takes place for the fault of the hushand, the wife is entitled as if he were dead. 1 Hill. Ab. 61, 2.
11. - 2. Divorces a mensa et thoro, are a mere separation of the parties for a time for causes arising since the marriage; they are pronounced by tribunals of competent jurisdiction. The effects of the sentence continue for the time it was pronounced, or until the parties are reconciled. A. divorce a mensa et thoro deprives the hushand of no marital right in respect to the property of the wife. Reeve's Dom. Rel. 204-5. Cro. Car. 462; but see 2 S. & R. 493. Children born after a divorce a mensa et thoro are not presumed to be the hushand's, unless he afterwards cohabited with his wife. Bac. Ab. Marriage, &c. E.
12. By the civil law, the child of parents divorced, is to be brought up by the innocent party, at the expence of the guilty party. Ridley's View, part 1, ch. 3, sect. 9, cites 8th Collation. Vide, generally, 1 Bl. Com. 440, 441 3 Bl. Com. 94; 4 Vin. Ab. 205; 1 Bro. Civ. Law, 86; Ayl. Parerg. 225; Com. Dig. Baron and Feme, C;-Coop. Justin. 434, et seq.; 6 Toullier, No. 294, pa. 308; 4 Yeates' Rep. 249; 5 Serg. & R. 375; 9 S. & R. 191, 3; Gospel of Luke, eh, xvi. v. 18; of Mark, ch. x. vs. 11, 12; of Matthew, ch. v. v. 32, ch. xix. v. 9; 1 Corinth. ch. vii. v. 15; Poynt. on Marr. and Divorce, Index, h. t.; Merl. Rep. h. t.; Clef des Lois Rom. h. t. As to the effect of the laws of a foreign state, where the divorce was decreed, see Story's Confl. of Laws, ch. 7, §200. With regard to the ceremony of divorce among. theJews, see 1 Mann. & Gran. 228; C. 39. Eng. C. L. R. 425, 428. And as to divorces among the Romans, see Troplong, de l'Influence du Christianisme sur le Droit Civil des Romains, ch. 6. p. 205.
DOCKET, practice. A formal record of judicial proceedings.
2. The docket should contain the names of the parties, and a minute of every proceeding in the case. It is kept by the clerk or prothonotary of the court. A sheriff's docket is not a record. 9 Serg. & R. 91. Docket is also said to be a brief writing, on a small piece of paper or parchment, containing the substance of a larger writing.
DOCTORS COMMONS. A building in London used for a college of civilians. Here the judge of the court of arches, the judge of the admiralty, and the judge of the court of Canterbury, with other eminent civilians, reside. Commons signifies, in old English, pittance or allowance; because it is meant in common among societies, as Universities, Inns of Courts, Doctors Commons, &c. The Latin word is, demensum a demetiendo; dividing every one his part Minsheu. It is called Doctors Commons, because the persons residing there live in a collegiate commoning together.
DOCUMENTS, evidence. The deeds, agreements, title papers, letters, receipts, and other written instruments used to prove a fact. Among the civilians, by documents is also understood evidence delivered in the forms established by law, of whatever nature such evidence may be, but applied principally to the testimony of witnesses. Savig. Dr. Rom. §165.
2. Public documents are all such records, papers and acts, as are filed in the public offices of the United States or of the several states; as, for example, public statutes, public proclamations, resolutions of the legislature, the journals of either branch of the legislature, diplomatic correspondence communicated by the president to congress, and the like. These are in general evidence of the facts they contain or recite. 1 Greenl. §491.
DOG. A well known domestic animal. In almost all languages this word is, a term or name of contumely or reproach. See 3 Bulst. 226; 2 Mod. 260; 1 Leo. 148; and the title action on the case for defamation in the Digests; Minsheu's Dictionary.
2. A dog is said at common law to have no intrinsic value, and he cannot therefore be the subject of larceny. 4 Bl. Com. 236; 8 Serg. & Rawle, 571. But the owner has such property in him, that he may maintain trespass for an injury to his dog; "for a man may have property in some things which are of so base nature that no felony can be committed of them, as of a bloodhound or mastiff." 12 H. VIII. 3; 18 H. VIII. 2; 7 Co. 18 a; Com. Dig. Biens, F; 2 Bl. Com. 397; Bac. Ab. Trover, D; F. N. B. 86; Bro. Trespass, pl. 407 Hob. 283; Cro. Eliz. 125; Cro. Jac. 463 2 Bl. Rep.
3. Dogs, if dangerous animals, may lawfully be killed, when their ferocity is known to their owner, or in self-defence 13 John. R. 312; 10 John. R. 365; and when bitten by a rabid animal, a dog may be lawfully killed by any one. 13 John. R. 312.
4. When a dog, in consequence of his vicious habits, becomes a common nuisance, the owner may be indicted. And when he commits an injury, if the owner had a knowledge of his mischievous propensity, he is liable to an action on the case. Bull. N. P. 77; 2 Str. 1264; Lord Raym. 110. 1 B. & A. 620; 4 Camp. R. 198; 2 Esp. R. 482; 4 Cowen, 351; 6 S. & R. 36; Addis. R. 215; 1 Scam. 492 23 Wend 354; 17 Wend. 496; 4 Dev. & Batt. 146.
5. A man has a right to keep a dog to guard his premises, but not to put him at the entrance of his house, because a person coming there on lawful business may be injured by him, and this, though there may be another entrance to the house. 4 C. & P. 297; 6 C. & P. 1. But if a dog be chained, and a visitor so incautiously go near him that he is bitten, he has no right of action against the owner. 3 Chit. Bl. 154, n. 7. Vide Animal; Knowledge; Scienter.
DOGMA, civil law. This word is used in the first chapter, first section, of the second Novel, and signifies an ordinance of the senate. See also Dig. 27, 1, 6.
DOLI CAPAX. Capable of deceit, mischief, having knowledge of right and wrong. See Discretion; Criminal law, 2.
DOLLAR, money. A silver coin of the United States of the value of one hundred cents, or tenth part of an eagle.
2. It weighs four hundred and twelve and a half grains. Of one thousand parts, nine hundred are of pure silver and one hundred of alloy. Act of January 18, 1837, ss. 8 & 9, 4 Sharsw. Cont. of Story's L. U. S. 2523, 4; Wright, R. 162.
3. In all computations at the custom-house, the specie dollar of Sweden and Norway shall be estimated at one hundred and six cents. The specie dollar of Denmark, at one hundred and five cents. Act of May 22, 1846.
DOLUS, civil law. A fraudulent address or trick used to deceive some one; a fraud. Dig. 4, 3, 1; Code, 2, 21.
2. Dolus differs from fault in this, that the latter proceeds from an error of the understanding; while to constitute the former there must be a will or intention to do wrong. Wolff, Inst. §17.
DOMAIN. It signifies sometimes, dominion, territory governed - sometimes, possession, estate - and sometimes, land about the mansion house of a lord. By domain is also understood the right to dispose at our pleasure of what belongs to us.
2. 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 belonging 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, the other a passive quality which follows the thing, and places it at the disposition of the owner. 3 Toull. n. 8 3. But this distinction is too subtle for practical use. Puff. Droit de la Nature et des Gens, loi 4, c. 4, §2. Vide 1 B1. Com. 105, 106; 1 Bouv. Inst. n. 456; Clef des Lois Rom. h. t.; Domat, h. t.; 1 Hill. Ab. 24; 2 Hill. Ab. 237; and Demesne as Of fee; Property; Things.
DOME-BOOK, DOOM-BOOK or DOM-BEC A book in which Alfred the Great, of England, after uniting the Saxon heptarchy, collected the various customs dispersed through the kingdom, and digested them into one uniform code. 4 Bl. Com. 411.
DOMESDAY, or DOMESDAY-BOOK. An ancient record made in the time of William the Conqueror, and now remaining in the English exchequer, consisting of two volumes of unequal sizes, containing surveys of the lands in England.
DOMESTICS. Those who reside in the same house with the master they serve the term does not extend to workmen or laborers employed out of doors. 5 Binn. R. 167; Merl. Rep. h. t. The Act of Congress of April 30, 1790, s. 25, uses the word domestic in this sense.
2. Formerly, this word was used to designate those who resided in the house of another, however exalted their station, and who performed services for him. Voltaire, in writing to the French queen, in 1748, says) " Deign to consider, madam, that I am one of the domestics of the king, and consequently yours, lily companions, the gentlemen of the king," &c.
3. Librarians, secretaries, and persons in such honorable employments, would not probably be considered domestics, although they might reside in the house of their respective employers.
4. Pothier, to point out the distinction between a domestic and a servant, gives the following example: A literary man who lives and lodges with you, solely to be your companion, that you may profit by his conversation and learning, is your domestic; for all who live in the same house and eat at the same table with the owner of the house, are his domestics, but they are not servants. On the contrary, your Valet de, chambre, to whom you pay wages, and who sleeps out of your house, is not, properly speaking, your domestic, but your servant. Poth. Proc. Cr. sect. 2, art. 5, §5; Poth. Ob. 710, 828; 9 Toull. n. 314; H. De Pansey, Des Justices de Paix, c. 30, n. 1. Vide Operative; Servant.
DOMICIL. The place where a person has fixed his ordinary dwelling, without a present intention of removal. 10 Mass. 488; 8 Cranch, 278; Ersk. Pr. of Law of Scotl. B. 1, tit. 2, s. 9; Denisart, tit. Domicile, 1, 7, 18, 19; Voet, Pandect, lib. 5, tit. 1, 92, 97; 5 Madd. Ch. R. 379; Merl. Rep. tit. Domicile; 1 Binn. 349, n.; 4 Humph. 346. The law of domicil is of great importance in those countries where the maxim "actor sequitur forum rei" is applied to the full extent. Code Civil, art. 102, &c.; 1 Toullier, 318.
2. A man cannot be without a domicil, for he is not supposed to have abandoned his last domicil until he has acquired a new one. 5 Ves. 587; 3 Robins. 191; 1 Binn. 349, n.; 10 Pick. 77. Though by the Roman law a man might abandon his domicil, and, until be acquired a. new one, he was without a domicil. By fixing his residence at two different places a man may have two domicils at one and the same time; as, for example, if a foreigner, coming to this country, should establish two houses, one in New York and the, other in New Orleans, and pass one-half of the year in each; he would, for most purposes, have two domicils. But it is to be observed that circumstances which might be held sufficient to establish a commercial domicil in time of war, and a matrimonial, or forensic or political domicil in time of peace, might not be such as would establish a principal or testamentary domicil, for there is a wide difference in applying the law of domicil to contracts and to wills. Phill. on Dom. xx; 11 Pick. 410 10 Mass. 488; 4 Wash. C. C. R. 514.
3. There are three kinds of domicils, namely: 1. The domicil of origin. domicilium originis vel naturale. 2. The domicil by operation of law, or necessary domicil. 3. Domicil of choice.
4. - §1. By domicil of origin is understood the home of a man's parents, not the place where, the parents being on a visit or journey, a child happens to be born. 2 B. & P. 231, note; 3 Ves. 198. Domicil of origin is to be distinguished from the accidental place of birth. 1 Binn. 349.
5. - §2. There are two classes of persons who acquire domicil by operation of law. 1st. Those who are under the control of another, and to whom the law gives the domicil of another. Among these are, 1. The wife. 2. The minor. 3. The lunatic, &c. 2d. Those on whom the state affixes a domicil. Among this class are found, 1. The officer. 2. The prisoner, &c.
6. - 1st. Among those who, being under the control of another, acquire such person's domicil, are, 1. The wife. The wife takes the domicil of her hushand, and the widow retains it, unless she voluntarily change it, or unless, she marry a second time, when she takes the domicil of the second hushand. A party may have two domicils, the one actual, the other legal; the hushand's actual and the wife's legal domicil, are, prima facie, one. Addams' Ecc. R. 5, 19. 2. The domicil of the minor is that of the father, or in Case of his death, of the mother. 5 Ves. 787; 2 W. & S. 568; 3 Ohio R. 101; 4 Greenl. R. 47. 3. The domicil of a lunatic is regulated by the same principles which operated in cases of minors the domicil of such a person may be changed by the direction, or with the assent of the guardian, express or implied. 5 Pick. 20.
7. - 2d. The law affixes a domicil. 1. Public officers, such as the president of the United States, the secretaries and such other officers whose public duties require a temporary residence at the capital, retain their domicils. Ambassadors preserve the domicils which they have in their respective countries, and this privilege extends to the ambassador's family. Officers, soldiers, and marines, in the service of the United States, do not lose their domicils while thus employed. 2. A prisoner does not acquire a domicil where the prison is, nor lose his old. 1 Milw. R. 191, 2.
8. - §3. The domicil of origin, which has already been explained, remains until another has been acquired. In order to change such domicil; there must be an actual removal with an intention to reside in the place to which the party removes. 3 Wash. C. C. R. 546. A mere intention to remove, unless such intention is carried into effect, is not sufficient. 5 Greenl. R. 143. When he changes it, he acquires a domicil in the. place of his new residence, and loses his original domicil. But upon a return with an intention to reside, his original domicil is restored. 3 Rawle, 312; 1 Gallis. 274, 284; 5 Rob. Adm. R. 99.
9. How far a settlement in a foreign country will impress a hostile character on a merchant, see Chitty's Law of Nations, 31 to 50; 1 Kent, Com. 74 to 80; 13 L. R. 296; 8 Cranch, 363; 7 Cranch, 506; 2 Cranch, 64 9 Cranch, 191; 1 Wheat. 46; 2 Wheat 76; 3 Wheat. 1 4 2 Gall. R. 268; 2 Pet. Adm. Dec. 438 1 Gall. R. 274. As to its effect in the administration of the assets of a deceased non-resident, see 3 Rawle's R. 312; 3 Pick. R. 128; 2 Kent, Com. 348; 10 Pick. R. 77. The law of Louisiana relating to the "domicil and the manner of changing the same" will be found in the Civil Code of Louisiana, tit. 2, art. 42 to 49. See, also, 8 M. R. 709; 4 N. S. 51; 6 N. S. 467; 2 L. R. 35; 4 L. R. 69; 5 N. S. 385 5 L. R. 332; 8 L. R. 315; 13 L. R. 297 11 L. R. 178; 12 L. R. 190. See, on the subject generally, Bouv. Inst. Index, h. t. 2 Bos. & Pul. 230, note 1 Mason's Rep. 411; Toullier, Droit Civil Francais, liv. 1, tit. 3, n., 362 a 378; Domat, tome 2, liv. 1, s. 3; Pothier, Introduction Generale aux Coutumes, n. 8 a 20; 1 Ashm. R. 126; Merl. Rep. tit. Domicile 3 Meriv. R. 79; 5 Ves. 786; 1 Crompt. & J. 151; 1 Tyrwh. R. 91; 2 Tyrwh. R. 475; 2 Crompt. & J. 436 3 Wheat. 14 3 Rawle, 312; 7 Cranch, 506 9 Cranch, 388; 5 Pick. 20; 1 Gallis, 274, 545; 10 Mass. 488 11 Mass. 424; 13 Mass. 501 2 Greenl. 411; 3 Greenl 229, 354; 4 Greenl. 47; 8 Greenl. 203; 5 Greenl. 143; 4 Mason, 308; 3 Wash. C. C. R. 546; 4 Wash. C. C. R. 514 4 Wend, 602; 8 Wend. 134; 5 Pick. 370 10 Pick. 77; 11 Pick. 410; 1 Binn. 349, n.; Phil. on Dom. passim.
DOMINANT. estates. In the civil law, this term is used to signify the estate to which a servitude or easement is due from another estate; for example, where the owners of the estate, Blackacre, have a right of way or passage over the estate Whiteacre, the former is called the dominant, and the latter the servient estate. Bouv. Inst. n. 1600.
DOMINION. The right of the owner of a thing to use it or dispose of it at his pleasure. See Domain; 1 White's New Coll. 85; Jacob's Intr. 39.
DOMINIUM, empire, domain. It is of three kinds: 1, Directum dominium, or usufructuary dominion; dominium utile, as between landlord and tenenant; or, 2. It is to full property, and simple property. The former is such as belongs to the cultivator of his own estate; the other is the property of a tenant. 3. Dominion acquired by the law of nations, and dominion acquired by municipal law. By the law of nations, property may be acquired by occupation, by accession, by commixtion, by use or the pernancy of the usufruct, and by tradition or delivery. As to the dominium eminens, the right of the public, in cases of emergency, to seize upon the property of individuals, and convert it to public use, and the right of individuals, in similar cases, to commit a trespass on the persons and properties of others, see the opinion of chief justice McKean in Respublica v. Sparhawk, 1 Dallas, 362, and the case of Vanhorn v. Dorrance, 2 Dall. Rep. 304. See, further, as to dominium eminens, or the right of the community to take, at a fair price, the property of individuals for public use, the supplement of 1802 to the Pennsylvania compromising law, respecting the Wyoming controversy; also, Vattel, l. 1, c. 20, §§244-248; Bynkershoek, lib. 2, c. 15; Rousseau's Social Compact, c. 9; Domat; l. 1, tit. 8, §l, p. 381, fol. ed.; the case of a Jew, whom the grand seignior was compelled by the mufti to purchase out, cited in Lindsay et al. v. The Commissioners, 2 Bay. S. Car. Rep. 41. See Eminent domain.
DOMITAE. Subdued, tame,. not wild; as, animals domitae, which are tame or domestic animals.
DOMO REPARANDO. the name of an ancient writ in favor of a party who was in danger of being injured by the fall, of his neighbor's house.
DONATIO MORTIS CAUSA, contracts, legacies. A gift in prospect of death. When a person in sickness, apprehend ing 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. Com. 514 see Civ. Code of Lou. art. 1455.
2. The civil law defines it to be a gift under apprehension of death; as, when any thing 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' Rep. 109-117.
3. Donations mortis causa, are now reduced, as far as possible, to the similitude of legacies. Inst. t. 7, De Donationibus. See 2 Ves. jr. 119; Smith v. Casen, mentioned by the reporter at the end of Drury v. Smith, 1 P. Wms. 406; 2 Ves. sen. 434; 3 Binn. 866.
4. With respect to the nature of a donatio mortis causa, this kind of gift so far resembles a legacy, that it is ambulatory and incomplete during the donor's life; it is, therefore, revocable by him; 7 Taunt. 231; 3 Binn. 366 and subject to his debts upon a deficiency of assets. 1 P. Wms. 405. But in the following particulars it differs from a legacy: it does riot fall within an administration, nor require any act in the executors to perfect a title in the donee. Rop. Leg. 26.
5. The following circumstances are required to constitute a good donatio mortis causa. 1st. That the thing given be personal property; .3 Binn. 370 a bond; 3 Binn. 370; 3 Madd. R. 184; bank notes; 2 Bro. C. C. 612; and a check offered for payment during the life of the donor, will be so considered. 4 Bro. C. C. 286.
6. - 2d. That the gift be made by the donor in peril of death, and to take effect only in case the giver die. 3 Binn. 370 4 Burn's Ecc. Law, 110.
7. - 3d. That there be an actual delivery of the subject to, or for the donee, in cases where such delivery can be made. 3 Binn. 370; 2 Ves. jr. 120. See 9 Ves. 1 , 7 Taunt. 224. But such delivery can be made to a third person for the use of the donee. 3 Binn. 370:
8. It is an unsettled question whether such kind of gift appearing in writing, without delivery of the subject, can be supported. 2 Ves. jr. 120. By the Roman and civil law, a gift mortis causa might be made in writing. Dig. lib. 39, t. 6, 1. 28 2 Ves. sen. 440 1 Ves. sen. 314.
9. In Louisiana, no disposition mortis causa, otherwise than by last will and testament, is allowed. Civ. Code, art. 1563. See, in general, 1 Fonb. Tr. Eq. 288, n. (p); Coop. Just. 474, 492; Civ. Code of Lo. B. 3, 2, c. 1 and 6. Vin. Abr. Executors, Z 4; Bac. Abr. Legacies, A; Supp. to Ves. jr. vol. 1, p. 143, 170; vol. 2, 97. 215; Rop. Leg: oh. 1; Swinb. pt. 1, s. 7 1 Miles, 109. &c.
DONATION, contracts. 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 consideration; a gift. (q. v.)
2. A donation is never perfected until it is has been accepted, for the acceptance (q. v.) is requisite to make the donation complete. Vide Assent, and Ayl. Pand. tit. 9 Clef des Lois Rom. h. t.
DONATION INTER Vivos, contracts. 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 accepts the thing and acquires a legal title to it.
2. This donation takes place when the giver is not in any immediate apprehension of death, which distinguishes it from a donatio mortis causa. (q. v.) 1 Bouv. Inst. n. 712. And see Civ. Code of Lo. art. 1453 Justin. Inst. lib. 2, tit. 7, §2 Coop. Justin. notes 474-5 Johns. Dig. N. Y. Rep. tit. Gift.
DONEE. He to whom a gift is made, or a bequest given; one who is invested with a power to select an appointee, he is sometimes called an appointer. DONIS, STATUTE DE. The stat. West. 2, namely, 13 Edw. I. , c. 1, called the statute de donis conditionalibus. This statute revives, in some sort, the ancient feudal restraints, which were originally laid on alienations. 2 Bl. Com. 12.
DONOR. He who makes a gift. (q. v.)
DOOM. This word formerly signified a judgment. T. L.
DORMANT PARTNER. One who is a participant in the profits of a firm, but his name being concealed, his interest is not apparent. See Partners,
DOOR. The place of usual entrance in a house, or into a room in the house.
2. To authorize the breach of an outer door in order to serve process, the process must be of a criminal nature; and even then a demand of admittance must first have been refused. 5 Co. 93; 4 Leon. 41; T. Jones, 234; 1 N. H. Rep. 346; 10 John. 263; 1 Root, 83 , 134; 21 Pick. R. 156. The outer door may also be broken open for the purpose of executing a writ of habere facias. 5 Co. 93; Bac. Ab. Sheriff, N. 3.
3. An outer door cannot in general be broken for the purpose of serving civil process; 13 Mass. 520; but after the defendant has been arrested, and he takes refuge in his own house, the officer may justify breaking an outer door to take him. Foster, 320; 1 Roll. R. 138; Cro. Jac. 555.; 10 Wend. 300; 6 Hill, N. Y. Rep. 597. When once an officer is in the house, he may break open an inner door to make an arrest. Kirby, 386 5 John. 352; 17 John. 127, See 1 Toull. n. 214, p. 88.
DOT. This French word is adopted in Louisiana. It signifies the fortune, portion, or dowry, which a woman brings to her hushand by the marriage. 6 N. S. 460. See Dote; Dowry.
DOTAL PROPERTY. By the civil law, and in Louisiana, by this term is understood that property, which the wife brings to the hushand to assist him in bearing the expenses of the marriage establishment. Civil Code of Lo. art. 2315. Vide Extradotal property.
DOTATION, French law. The act by which the founder of a hospital, or other charity, endows it with property to fulfil its destination.
DOTE, Span. law. The property which the wife gives to the hushand on account of marriage.
2. It is divided into adventitia and profectitia; the former is the dote which the father or grandfather, or other of the ascendants in the direct paternal line, give of their own property to the hushand; the latter (adventitia) is that property which the wife gives to the hushand, or that which is given to him for her by her mother, or her collateral relations, or a stranger. Aso & Man. Inst. B. 1, t. 7, c . 1, §i.
DOTE ASSIGNANDO, Eng. law. The name of a writ which lay in favor of a widow, when it was found by office that the king's tenant was seised of tenements in fee or fee tail at the time of his death, and that he held of the king in chief.
DOTE UNDE NIHIL HABET. The name of a writ of dower which a widow sues against the tenant, who bought land of her hushand in his lifetime, and in which her dower remains, of which he was seised solely in fee simple or fee tail. F. N. B. 147; Booth, Real Act. 166. See Dower unde nihil habet
DOUBLE. Twofold; as, double cost; double insurance; double plea.
DOUBLE COSTS practice. According to the English law, when double costs are given by the statute, the term is not to be understood, according to its literal import, twice the amount of single costs, but in such case the costs are thus calculated. 1. the common costs; and, 2. Half of the common costs. Bac. Ab. Costs, E; 2 Str. 1048. This is not the rule in New York, nor in Pennsylvania. 2 Dunl. Pr. 731; 2 Rawle's R. 201.
2. In all cases where double or treble costs are claimed, the party must apply to the court for them before he can proceed to the taxation, otherwise the proceeding will be set aside as irregular. 4 Wend. R. 216. Vide Costs; and Treble Costs.
DOUBLE ENTRY. A term used among merchants to signify that books of account are kept in such a manner that they present the debit and credit of every thing. The term is used in contradistinction to single entry.
2. Keeping books by double entry is more exact, because, presenting all the active and all the passive property of the merchant, in their respective divisions, there cannot be placed an article to, an account, which does not pass to some correspondent account elsewhere. It presents a perfect, view of each operation, and, from the relation and comparison of the divers accounts, which always keep pace with each other, their correctness is proved; for every commercial operation is necessarily composed of two interests, which are connected together. The basis of this mode of keeping books, and the only condition required, is to write down every transaction and nothing else; and to make no entry without putting it down to the two agents of the operation. By this means a merchant whose transactions are extensive, comprising a great number of subjects, is able to known not only the general situation of his affairs, but also the situation of each particular operation. For example, when a merchant receives money, his cash account becomes debtor, and the person who has paid it, or the merchandise sold, is credited with it; when he pays money, the cash account, is credited, And the merchandise bought, or the obligation paid, is debited with it. See Single entry.
DOUBLE INSURANCE, contracts. Where the insured makes, two insurances on the same risk, and the same interest. 12 Mass. 214. It differs from re-insurance in this, that it is made by the insured, with a view of receiving a double satisfaction in case of loss; whereas a re-insurance is made by a former insurer, his executors or assigns, to protect himself and his estate from a risk to which they were liable by the first insurance. The two policies are considered as making but one insurance. They are good to the extent of the value of the effects put in risk; but the insured shall not be permitted to recover a double satisfaction. He can sue the underwriters on both the policies, but he can only recover the real amount of his loss, to which all the underwriters on both shall contribute in proportion to their several subscriptions. Marsh. Ins. B. 1, c. 4, s. 4; 5 S. & R. 473; 4 Dall. 348; 1 Yeates, 161; 9 S. & R. 103; 1 Wash . C. C. Rep. 419; 2 Wash. C. C. Rep. 186; 2 Mason, 476.
DOUBLE PLEA. The alleging, for one single purpose, two or more distinct grounds of defence, when one of them would be as effectual in law, as both or all. Vide Duplicity.
DOUBLE VOUCHER. A common recovery is sometimes suffered with double voucher, which occurs when the person first vouched to warranty, comes in and vouches over a third person. See a precedent, 2 Bl. Com. Appx. No. V. p. xvii.; also, Voucher.
2. The neecessity 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 confesses the warranty. Generally speaking, to accomplish this result, a previous conveyance is necessary, by the tenant in tail, to a third person, in order to make such third person tenant to a writ of entry. Preston on Convey. 125-6.
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. Litt. 53. See Waste.
DOUBT. The uncertainty which exists in relation to a fact, a proposition, or other thing; or it is an equipoise of the mind arising from an equality of contrary reasons. Ayl. Pand. 121.
2. The embarrassing position of a judge is that of being in doubt, and it is frequently the lot of the wisest and most enlightened to be in this condition, those who have little or no experience usually find no difficulty in deciding the most, problematical questions.
3. Some rules, not always infallible, have been adopted in doubtful cases, in order to arrive at the truth. 1. In civil cases, the doubt ought to operate against him, who having it in his power to prove facts to remove the doubt, has neglected to do so. In cases of fraud when there is a doubt, the presumption of innocence (q. v.) ought to remove it. 2. In criminal cases, whenever a reasonable doubt exists as to the guilt of the accused that doubt ought to operate in his favor. In such cases, particularly, when the liberty, honor or life of an individual is at stake, the evidence to convict ought to be clear, and devoid of all reasonable doubt. See Best on Pres. §195; Wils. on Cir. Ev. 26; Theory of Presumptive Proof, 64; 33 How. St. Tr. 506; Burnett, Cr. Law of Scotl. 522; 1 Greenl. Ev. §1 D'Aguesseau, Oeuvres, vol. xiii. p. 242; Domat, liv. 3, tit. 6.
4. No judge is presumed to have any doubt on a question of law, and he cannot therefore refuse to give a judgment on that account. 9 M. R. 355; Merlin, Repert. h. t.; Ayliffe's Pand. b. 2, t. 17; Dig. lib. 34, t. 5; Code, lib. 6, t. 38. Indeed, in some countries; in China, for example, ignorance of the law in a judge is punishable with blows. Penal Laws of China, B. 2, s. 61.
DOVE. The name of a well known bird.
2. Doves are animals ferae naturae, and not the subject of larceny, unless they are in the owner's custody; as, for example, in a dove-house, or when in the nest before they can fly. 9 Pick. 15. See Whelp.
DOWAGER. A widow endowed; one who has a jointure.
2. In England, this is a title or addition given to the widows of princes, dukes, earls, and other noblemen.
DOWER. An estate for life, which the law gives the widow in the third part of the lands and tenements, or hereditaments of which the hushand, was solely seised, at any time during the coverture, of an estate in fee or in tail, in possession, and to which estate in the lands and tenements, the issue, if any, of such widow might, by possibility, have inherited. Watk. Prin. Con. 38; Litt. §36; 7 Greenl. 383. Vide Estate in Dower. This is dower at common law.
2. Besides this, in England there are three other species of dower now subsisting; namely, dower by custom, which is, where a widow becomes entitled to a certain portion of her hushand's lands in consequence of some local or particular custom, thus by the custom of gavelkind, the widow is entitled to a moiety of all the lands and tenements, which her hushand held by that tenure.
3. Dower ad ostium ecclesiae, is, when a man comes to the church door to be married, after troth plighted, endows his wife of a certain portion of his lands.
4. Dower ex assensu patris, was only a species of dower ad ostium ecclesice, made when the hushand's father was alive, and the son, with his consent expressly given, endowed his wife, at the church door, of a certain part of his father's lands.
5. There was another kind, de la plus belle, to which the abolition of military tenures has put an end. Vide Cruise's Dig. t. 6, c. 1; 2 Bl. Com. 129; 15 Serg. & Rawle, 72 Poth. Du Douaire.
6. Dower is barred in various ways; 1. By the adultery of the wife, unless it has been condoned. 2. By a jointure settled upon the wife. 2 Paige, R. 511. 3. By the wife joining her hushand in a conveyance of the estate. 4. By the hushand and wife levying a fine, or suffering a common recovery. 10 Co. 49, b Plowd. 504. 5. By a divorce a vinculo matrimonii. 6. By an acceptance, by the wife, of a collateral satisfaction, consisting of land, money, or other chattel interest, given instead of it by the hushand's will, and accepted after the hushand's death. In these cases she has a right to elect whether to take her dower or the bequest or devise. 4 Monr. R. 265; 5 Monr. R. 58; 4 Desaus. R. 146; 2 M'Cord, Ch. R. 280; 7 Cranch, R. 370; 5 Call, R. 481; 1 Edw. R. 435 3 Russ. R. 192; 2 Dana, R. 342.
7. In some of the United States, the estate which the wife takes in the lands of her deceased hushand, varies essentially from the right of dower at common law. In some of the states, she takes one-third of the profits, or in case of there being no children, one half. In others she takes the same right in fee, when there are no lineal descendants; and in one she takes two-thirds in fee, when there are no lineal ascendauts or descendants, or brother or sister of the whole or half blood. 1 Hill. Ab. 57, 8; see Bouv. Inst. Index, h. t.
DOWER UNDE NIHIL HABET. This is a writ of right in its nature. It lies only against the tenant of the freehold. 12 Mass. 415 2 Saund. 43, note 1; Hen. & Munf. 368 F. N. B. 148. It is a writ of entry, where the widow is deforced of the whole of her dower. Archb. Plead. 466, 7. A writ of right of dower lies for the whole or a part. 1 Rop. on Prop.430; Steph. on Pl. 10. n; Booth, R. A. 166; Glanv. lib. 4. c. 4, 5; 9 S. & R. 367. If the heir is fourteen years of age, the writ goes to him, if not, to his guardian. If the land be wholly aliened, it goes to the tenant, F. N. B. 7, or pernor of the profits, who may vouch the heir. If part only be aliened, the writ goes to the heir or guardian. The tenant cannot impart; 2 Saund. 44, n;. 1 Rop. on Prop. 430; the remedy being speedy. Fleta, lib. 5. o. 25, §8, p. 427. He pleads without defence. Rast. Ent. 232, b. lib. Int. fo. 15; Steph. Pl. 431 Booth, 118; Jackson on Pl. 819.
DOWRESS. A woman entitled to dower.
2. In order to entitle a woman to the rights of a dowress at common law, she must have been lawfully married, her hushand must be dead, he must have been seised, during the coverture, of an estate subject to dower. Although the marriage may be void able, if it is not absolutely void at his death, it is sufficient to support the rights of the dowress. The hushand and wife must have been of sufficient age to consent. 3. At common law an alien could not be endowed, but this rule has been changed in several states. 2 John. Cas. 29; 1 Harr. & Gill, 280.; 1 Cowen, R. 89; 8 Cowen, R. 713.
4. The dowress' right may be defeated when her hushand was not of right seised of an estate of inheritance; as, for example, dower will be defeated upon the restoration of the seisin under the prior title in the case of defeasible estates, as in case of reentry for a condition broken, which abolishes the intermediate seisin. Perk. s. 311, 312, 317.
DOWRY. Formerly applied to mean that which a woman brings to her hushand in marriage; this is now called a portion. This word is sometimes confounded with dower. Vide Co. Litt. 31; Civ. Code of Lo. art. 2317; Dig. 23, 3, 76; Code, 5, 12, 20.
DRAGOMAN. An interpreter employed in the east, and particularly at the Turkish court.
2. The Act of Congress of August 26, 1842, c. 201, s. 8, declares 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 dollars.
DRAIN. Conveying the water from one place to another, for the purpose of drying the former
2. The right of draining water through another map's land. This is an easement or servitude acquired by grant or prescription. Vide 3 Kent, Com. 436 7 Mann. & Gr. 354; Jus aguaeductus; Rain water; Stillicidium.
DRAwhACK, com. law. An allowance made by the government to merchants on the reexportation of certain imported goods liable to duties, which, in some cases, consists of the whole; in others, of a part of the duties which had been paid upon the importation. For the various acts of congress which regulate drawhacks, see Story, L. U. S. Index, h. t.
DRAWEE. A person to whom a bill of exchange is addressed, and who is requested to pay the amount of money therein mentioned.
2. The drawee may be only one person, or there may be several persons. The drawee may be a third person, or a man may draw a bill on himself. 18 Ves. jr. 69; Carth. 509; 1 Show. 163; 3 Burr. 1077.
3. The drawee should accept or refuse to accept the bill at furthest within twenty-four hours after presentment. 2 Smith's R. 243; 1 Ld. Raym. 281 Com. Dig. Merchant, F 6; Marius, 15; but it is said the holder is entitled. to a definite answer if the mail go out in the meantime. Marius' 62. In case the bill has been left with the drawee for his acceptance, he will be considered as having accepted it, if he keep the bill a great length of time, or do any other act which gives credit to the bill, and induces the holder not to protest it; or is intended as a surprise upon him, and to induce him to consider the bill as accepted. Chit. on Bills, 227. When he accepts it, it is his duty to pay it at maturity.
DRAWER, contracts. The party who makes a bill of exchange.
2. The obligations of the drawer to the drawee and every subsequent holder lawfully entitled to the possession, are, that the person on whom he draws is capable of binding himself by his acceptance that he isto be found at the place where he is described to reside, if a description be given in the bill; that if the bill be duly presented to him, he will accept in writing on the bill itself, according to its tenor, and that he will pay it when it becomes due, if presented in proper time for that purpose; and that if the drawee fail to do either, he, the drawer, will pay the amount, provided he have due notice of the dishonor. 3. The engagement of the drawer of a bill is in all its parts absolute and irrevocable. 2 H. Bl. 378; 3 B. & P. 291; Poth. Contr. de Change, n. 58; Chit. Bills, 214, Dane's Ab. h. t.
DRAWING. A representation on paper, card, or other substance.
2. The Act of Congress of July 4, 1836, section 6, requires all persons who apply for letters patent for an invention, to accompany their petitions or specifications with a drawing or drawings of the whole, and written references, when the nature of the case admits of drawings.
DREIT. The same as Droit. (q. v.)
DRIFTWAY. A road or way over which cattle are driven. 1 Taunt. R. 279; Selw. N. P. 1037; Wool. on Ways, 1.
DRIP. The right of drip is an easementt by which the water which falls on one house is allowed to fall upon the land of another.
2. Unless the owner has acquired the right by grant or prescription, he has no right so to construct his house as to let the water drip over his neighbor's land. 1 Roll. Ab. 107. Vide Rain water; Stillicidium; and 3 Kent, Com. 436; Dig. 43, 23, 4 et 6; 11 Ad. & Ell. 40; S. C. 39 E. C. L. R. 21.
DRIVER. One employed in conducting a coach, carriage, wagon, or other vehicle, with horses, mules, or other animals.
2. Frequent accidents occur in consequence of the neglect or want of skill of drivers of public stage coaches, for which the employers are responsible.
3. The law requires that a driver should possess reasonable skill and be of good habits for the journey; if, therefore, he is not acquainted with the road he undertakes to drive; 3 Bingh. Rep. 314, 321; drives with reins so loose that he cannot govern his horses; 2 Esp. R. 533; does not give notice of any serious danger on the road; 1 Camp. R. 67; takes the wrong side of the road; 4 Esp. R. 273; incautiously comes in collision with another carriage; 1 Stark. R. 423; 1 Campb. R. 167; or does not exercise a sound and reasonable discretion in travelling on the road, to avoid dangers and difficulties, and any accident happens by which any passenger is injured, both the driver and his employers will be responsible. 2 Stark. R. 37; 3 Engl. C. L. Rep. 233; 2 Esp. R. 533; 11. Mass. 57; 6 T. R. 659; 1 East, R. 106; 4 B. & A. 590; 6 Eng. C. L. R. 528; 2 Mc Lean, R. 157. Vide Common carriers Negligence; Quasi Offence.
DROIT. A French word, which, in that language, signifies the whole collection of laws, written and unwritten, and is synonymous to our word law. It also signifies a right, il n'existe point de droits sans devoirs, et vice versa. 1 Toull. n. 96; Poth. h. t. With us it means right, jus. Co. Litt. 158. A person was said to have droit droit, plurimum juris, and plurimum possessionis, when he had the freehold, the fee, and the property in him. Id. 266; Crabb's H. Eng. L. 400.
DROIT D'ACCESSION, French civil law. Specificatio. That property which is acquired by making a new species out of the material of another. Modus acquirendi quo quis ex aliena materia suo nomine novam speciem faciens bona fide ejus speciei dominium consequitur. 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, e. g. a statue made of gold, but if it cannot so be reduced, it belongs to the person who made it, e. g. a statue made of marble. This subject is treated of in the Code Civil de Napoleon, art. 565 to 577; Merlin Repertoire de Surisp. Accession; Malleville's Discussion, art. 565. The Code Napoleon follows. closely the Inst. of Just. lib . 2, tit. 1, §§25, 28.
2. Doddridge, in his English Lawyer, 125-6, states the common law thus: " If a man take, wrongfully, the material which was mine and is permanent, not adding anything thereunto than the form, only by alteration thereof, such thing, so newly formed by an exterior form, notwithstanding, still remaineth mine, and may be seized again by me, and I may take it out of his possession as mine own. But they say, if he add some other matter thereunto; as, of another man's leather doth make shoes or boots, or of my cloth, maketh garments, adding to the accomplishment thereof of his own, he hath thereby altered the property, so that the first owner cannot seize the thing so composed, but is driven to his action to recover his remedy: howheit, he adds, in a case of that nature depending, the court had determined that the first owner might seize the same, notwithstanding such addition. But if the thing be transitory in its nature by the change, as if one take ray corn or meal, and thereof make bread, I cannot, in that case, seize the bread, because, as the civil law speaketh, haec species facta ex materia aliens, in pristinam formam reduci non potest, ergo ei a quo est facta cedit. So some have said, if a man take my barley, and thereof make malt, because it is changed into another nature, it cannot be seized by me; but the rule is: That where the material wrongfully taken away, could not at first, before any alteration, be seized; for that it could not be distinguished. from other things of that kind, as corn, money, and such like; there those things cannot be seized because the property of those things cannot be: distinguished: for, if my money be wrongfully taken away, and he that taketh it do make plate; thereof, or do convert my plate into money, I cannot seize the same for that money is undistinguishable from other money of that coin. But, if a butcher take wrongfully my ox and doth kill it, and bring it into the market to be sold, I may not seize upon the flesh, for it: cannot be known from others of that, kind; but if it be found hanging in the skin, where the mark may appear, I may seize the same, although when it was taken from me it had life, and now is dead. So, if a man cut down my tree, and square it into a beam of timber, I may seize the same, for he bath neither altered the nature thereof, nor added anything but exterior form thereunto; but if he lay the beam of timber into the building of a house, I may not seize the same, for being so set it is become parcel of the house, and so in supposition of law, after a sort, altered in its nature. See Year Book 12 H. VIII. 9 b, 10 a; Bro. Ab. Property, 45; 5 H. VII. 15; Bro. Ab. Property, 23.
DROITS OF ADMIRALTY. Rights claimed 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 Rob. R. 196; 13 Ves. jr. 71; Edw. R. 60; 3 B. & P. 191.
DROIT D'AUBAINE, jus albinatus. This was 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 aubain signifies hospes loci, peregrinus advena, a stranger. It is derived, according to some, from alibi, elsewhere, natus, born, from which the word albinus is said to be formed. Others, as Cujas, derive the word directly from advena, by which word, aubains, or strangers, are designated in the capitularies of Charlemagne. See Du Cange and Dictionaire de Trevoux.
2. As the darkness of the middle ages wore away, and the light of civilization appeared, thing barbarous and inhospitable usage was by degrees discontinued, and is now nearly abolished in the civilized world. It subsisted in France, however, in full force until 1791, and afterwards, in a modified form, until 1819, when it was formally abolished by law. For the gross abuses of this feudal exaction, see Dictionaire de l'Ancien Regime et des abus feodaux. Aubain. See Albinatus jus.
DROIT-CLOSE. The name of an ancient writ directed to the lord of ancient demesne, 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. F. N. B. 23.
DROITURAL. What belongs of right; relating to right; as, real actions are either droitural or possessory; droitural, when the plaintiff seeks to recover the property. Finch's Law, 257.
DRUNKENNESS. Intoxication with strong liquor.
2. This is an offence generally punished by local regulations, more or less severely.
3. Although drunkenness reduces a man to a temporary insanity, it does not excuse him or palliate his offence, when he commits a crime during a fit of intoxication, and which is the immediate result of it. When the act is a remote consequence, superinduced by the antecedent drunkenness of the party, as in cases of delirium tremens or mania a potu, the insanity excuses the act. 5 Mison's R. 28; Amer. Jurist, vol. 3, p. 5-20; Martin and Yeager's. R. 133, 147;. Dane's Ab. Index, h. t.; 1 Russ. on Cr. 7; Ayliffe's Parerg. 231 4 Bl. Com. 26.
4. As there must be a will and intention in order to make a contract, it follows, that a man who is in such a state of intoxication as not to know what he is doing, may avoid a contract entered into by him while in this state. 2 Aik. Rep. 167; 1 Green, R. 233; 2 Verm. 97; 1 Bibb, 168; 3 Hayw. R. 82; 1 Hill, R. 313; 1 South. R. 361; Bull. N. P. 172; 1 Ves. 19; 18 Ves. 15; 3 P. Wms. 130, n. a; Sugd. Vend. 154; 1 Stark. 126; 1 South. R. 361; 2 Hayw. 394; but see 1 Bibb, R. 406; Ray's Med. Jur. ch. 23, 24; Fonbl. Eq. B. 2, 3; 22 Am. Jur. 290; 1 Fodere, Med. Leg. §215. Vide Ebriosity; Habitua. drunkard.
DRY. Used figuratively, it signifies that which produces nothing; as, dry exchange; dry rent; rent seek.
DRY EXCHANGE, contracts. 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 dry. Stat. 3 Hen. VII. c. 5 Wolff, Ins. Nat. §657.
DRY RENT, contracts. Rent-seek, was a rent reserved without a clause of distress.
DUCAT. The name of a foreign coin. The ducat of Naples shall be estimated in the computations of customs, at eighteen cents. Act of May 22, 1846.
DUCES TECUM, practice, evidence. Bring with thee. A writ commonly called a subpoena duces tecum, commanding the person to whom it is directed to bring with him some writings, papers, or other things therein specified and described, before the court. 1 Phil. Ev. 886.
2. In general all papers in the possession of the witness must be produced; but to this general rule there are exceptions, among which are the following: 1. That a party is not bound to exhibit his own title deeds. 1 Stark. Ev. 87; 8 C. & P. 591; 2 Stark. R. 203; 9 B. & Cr. 288. 2. One who has advanced money on a lease, and holds it as his security, is not bound to produce it. 6 C. & P. 728. 3. Attorneys and solicitors who hold the papers of their clients cannot be compelled to produce them, unless the client could have been so compelled. 6 Carr. & P. 728. See 5 Cowen, R. 153, 419; Esp. R. 405; 11 Price, R. 455; 1 Adol. & Ell. 31; 1 C. M. & R. 38 1 Hud. & Brooke, 749. On the question how far this clause is obligatory on a witness, see 1 Dixon on Tit. Deeds, 98, 99, 102; 1 Esp. N. P. Cas. 405; 4 Esp. N. P. C. 43; 9 East, Rep. 473.
DUCKING-STOOL, punishment. An instrument used, in dipping women in the water, as a punishment, on conviction of being common scolds. It is sometimes confounded with tumbrel. (q. v.)
2. This barbarous punishment was never in use in Pennsylvania. 12 Serg. & Rawle, 220.
DUCROIRE. This is a French word, which has the same meaning as the Italian phrase del credere. (q. v.) 2 Pard. Dr. Com. n. 564.
DUE. What ought to be paid; what may be demanded. It differs from owing in this, that, sometimes, what is owing is not due; a note, payable thirty days after date, is owing immediately after it is delivered to the payee, but it is not due until the thirty days have elapsed.
2. Bills of exchange, and promissory notes, are not, due until the end of the three days of grace, (q. v.) unless the last of these days happen to fall on a Sunday, or other holyday, when it becomes due on the Saturday before, and not on the Monday following. Story, P. N. §440; 1 Bell's Com. 410 Story on Bills, §283; 2 Hill, N. Y. R. 587; 2 Applet. R. 264.
3. Due also signifies just or proper; as, a due presentment, and demand of payraent, must be made. See 4 Rawle, 307; 3 Leigh, 389; 3 Cranch, 300.
DUE-BILL. An acknowledgment of a debt, in writing, is so called. This instrument differs from a promissory note in many particulars; it is not payable to order, nor is it assignable by mere endorsement. See I 0 U; Promissory notes.
DUELLING, crim. law. The fighting of two persons, one against the other, at an appointed time and place, upon a precedent quarrel. It differs from an array in this, that the latter occurs on a sudden quarrel, while the former is always the result of design.
2. When one of the parties is killed, the survivor is guilty of murder. 1 Russ. on Cr. 443; 1 Yerger's R. 228. Fighting a duel, even where there is no fatal result, is, of itself, a misdemeanor. Vide 2 Com. Dig. 252; Roscoe's Cr. Ev. 610; 2 Chit. Cr. Law, 728; Id. 848; Com. Dig. Battel, B; 3 Inst. 157; 6 East, 464 Hawk. B. 1, c. 31, s. 21; 3 East, R. 581 3 Bulst. 171 4 Bl. Com. 199 Prin. Pen. Law, c. 19, p 245; Const. R. 107; 1 Stew. R. 506; 20 John. 457; 3 Cowen, 686. For cases of mutual combat, upon a sudden quarrel, Vide 1 Russ. on Cr. 495.
DUKE. The title given to those who are in the highest rank of nobility in England.
DUM FUIT INFRA AETATEM. The name of a writ which lies when an infant has made a feoffment in fee of his lands, or for life, of a gift in tail.
2. 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. F. N. B. 192; Co. Litt. 247, 337.
DUM SOLA. While single or unmarried. This phrase is applied to single women, to denote that something has been done, or may be done, while the woman is or was unmarried. Example, when a judgment is rendered against a woman dum sola, and afterwards she marries, the scire facias to revive, the judgment must be against both hushand and wife.
DUM NON FUIT COMPOS MENTIS, Eng. law. 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. T. L.
DUMB. One who cannot speak; a person who is mute. See Deaf and dumb, Deaf, dumb, and blind; Mute, standing mute.
DUMB-BIDDING, contracts. 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 dumbidding. Babingt. on Auct. 44.
DUNG. Manure. Sometimes it is real estate, and at other times personal property. When collected in a heap, it is personal estate; when spread out-on the land, it becomes incorporated in it, and it is then real estate. Vide Manure.
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 dungeons.
DUNNAGE, mer. law. Pieces of wood 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. 2 Magens, 101, art. 125, 126 Abbott on Shipp. 227.
DUPEX QUERELA, Eng. eccl. law. A complaint in the nature of an appeal from the ordinary to his next immediate superior. 3 Bl. Com 247.
DUPLICATA. It is the double of letters patent, letters of administration, or other instrument.
DUPLICATE. The double of anything.
2. It is usually applied to agreements, letters, receipts, and the like, when two originals are made of either of them. Each copy has the same effect. The term duplicate means a document, which is essentially the same as some other instrument. 7 Mann. & Gr. 93. In the English law, it also sign ifies the certificate of discharge given to an insolvent debtor, who takes the benefit of the act for the relief of insolvent debtors.
3. 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 possesses greater or less force) owing to circumstances. When only one of the duplicates is in the possession of the testator, the destruction of that is a strong presumption of an intent to revoke both; but if he possessed both, and destroys but one, it is weaker; when he alters one, and afterwards destroys it , retaining the other entire, it has been held that the intention was to revoke both. 1 P. Wms. 346; 13 Ves. 310 but that seems to be doubted. 3 Hagg. Eccl. R. 548.
DUPLICATUM JUS, a twofold or double right. Those words, according to Bracton, lib. 4, c. 3, signify the same as dreit dreit, or droit droit, and 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 on Real Actions, 87.
DUPLICITY, pleading. Duplicity of pleading consists in multiplicity of distinct matter to one and the same thing, whereunto several answers are required. Duplicity may occur in one and the same pleading. Double pleading consists in alleging, for one single purpose or object, two or more distinct grounds of defence, when one of them would be as effectual in law, as both or all.
2. This the common law does not allow, because it produces useless prolixity, and always tends to confusion, and to the multiplication of issues. Co. Litt. 304, a; Finch's Law, 393.; 3 Bl. Com. 311; Bac. Ab. Pleas, K 1.
3. Duplicity may be in the declaration, or the subsequent proceedings: Duplicity in the declaration consists in joining, in one and the same count, different grounds of action, of different natures, Cro. Car. 20; or of the same nature, 2 Co. 4 a; 1 Saund. 58, n. 1; 2 Ventr. 198; Steph. Pl. 266; to enforce only a single right of recovery.
4. This is a fault in pleading, only because it tends to useless prolixity and confusion, and is, therefore, only a fault in form. The rule forbidding double pleading "extends," according to Lord Coke, "to pleas perpetual or peremptory, and not to pleas dilatory; for in their time and place a man may use divers of them." Co. Litt. 304, a. But by this is not meant that any dilatory plea way be double, or, in other words, that it way consist of different matters, or answers to one and the same thing; but merely that, as there are several kinds or classes of dilatory pleas, having distinct offices or effects, a defendant may use "divers of them" successively, (each being in itself single,) in their proper order. Steph. Pl. App. note 56.
5. The inconveniences which were felt in consequence of this strictness were remedied by the statute, 4 Ann. c. 16, s. 4, which provides, that " it shall be lawful for any defendant, or tenant, in any action or suit, or for any plaintiff in replevin, in any court of record, with leave of the court to plead as many several matters thereto as he shall think necessary for his defence."
6. This provision, or a similar one, is in force, probably, in most of the states of the American Union.
7. Under this statute, the defendant may, with leave of court, plead as many different pleas in bar, (each being a single,) as he may think proper; but although this statute allows the defendant to plead several distinct and substantive matters of defence, in several distinct pleas, to the whole, or one and the same part of the plaintiff's demand; yet, it does not authorize him to allege more than one, ground of defence in one plea. Each plea must still be single, as by the rules of the common law. Lawes, Pl. 131; 1 Chit. Pl. 512.
8. This statute extends only to pleas to the declaration, and does not embrace replications, rejoinders, nor any of the subsequent pleadings. Lawes, Pl. 132; 2 chit. Pl. 421; Com. Dig. Pleader, E 2; Story's Pl. 72, 76; 5 Am. Jur. 260-288. Vide) generally, 1 Chit. Pl. 230, 512; Steph. Pl. c. 2, s. 3, rule 1; Gould on Pl. c. 8, p. 1; Archb. Civ. Pl. 191; Doct. Pl. 222; 5 John. 240; 8 Vin. Ab. 183; U. S. Dig. Pleading, II. e and f.
DURANTE. A term equivalent to during, which is used in some law phrases, as durante absentia, during absence; durante minor cetate, during minority; durante bene placito, during our good pleasure.
DURANTE ABSENTIA. When the executor is out of the jurisdiction of the court or officer to whom belongs the probate of wills and granting letters of administration, letters of administration will be granted to another during the absence of the executor; and the person thus appointed is called the administrator durante absentia.
DURANTE MINORE AETATE. During the minority.
2. During his minority, an infant can enter into no contract, except those for his benefit. If he should be appointed an executor, administration of the estate will be granted, durante minore &,tate, to another person. 2 Bouv. Inst. n. 1555.
DURESS. An actual or a threatened violence or restraint of a man's person, contrary to law, to compel him to enter into a contract, or to discharge one. 1 Fairf. 325.
2. Sir William Blackstone divides duress into two sorts: First. Duress of imprisonment, 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. But, if a man be legally imprisoned, and either to procure his discharge, or on any other fair account, seal a bond or a deed, this is not by duress of imprisonment, and he is not at liberty to avoid it. 2 Inst. 482; 3 Caines' R. 168; 6 Mass. R. 511; 1 Lev. 69; 1 Hen. & Munf. 350; 5 Shepl. R. 338. Where the proceedings at, law are a mere pretext, the instrument may be avoided. Aleyn, 92; 1 Bl. Com. 136.
3. Second. Duress per minas, which is either for fear of loss of life, or else for fear of mayhem, or loss of limb,; and this must be upon a sufficient reason. 1 Bl. Com. 131. In this case, a man way avoid his own act. Id. Lord Coke enumerates four instances in which a man may avoid his own act by reason of menaces: 1st. For fear of loss of life. 2d. Of member. 3d. Of mayhem. 4th. Of imprisonment. 2 Inst. 483; 2 Roll. Abr. 124 Bac. Ab. Duress; Id. Murder, A; 2 Str. R. 856 Fost. Cr. Law, 322; 2 St. R. 884 2 Ld. Raym. 1578; Sav. Dr. Rom. §114.
4. In South Carolina, duress of goods, under circumstances of great hardship, will avoid a contract. 2 Bay R. 211 Bay, R. 470. But see Hardin, R. 605; 2 Gallis. R. 337.
5. In Louisiana consent to a contract is void if it be produced by violence or threats, and the contract is invalid. Civ. Code of Louis. art. 1844.
6. It is not every degree of violence or any hind of threats, that will invalidate a contract; they must be such as would naturally operate on a person of ordinary firmness, and inspire a just fear of great injury to person, reputation or fortune. The age, sex, state of health; temper and disposition of the party, and 0ther circumstances calculated to give greater or less effect to the violence or threats, must be taken into consideration. Id. art. 1845. The author of Fleta states the rule of the ancient common law thus: "Est autem metus praesentis vel futuri periculi causa mentis trepidatio; est praesertim viri constantis et non cujuslibet vani hominis vel meticulosi et talis debet esse metus qui in se contineat, mortis periculum, vel corporis cruciatura."
7. A contract by violence or threats, is void, although the party in whose favor the contract is made, and not exercise the violence or make the threats, and although he were ignorant of them. Id. 1846.
8. Violence or threats are cause of nullity, not only where they are exercised on the contracting party, but when the wife, the hushand, the descendants or ascendants of the party are the object of them. Id. 1847. Fleta adds on this subject: "et exceptionem habet si sibi ipsi inferatur vis et metus verumetiam si vis ut filio vel filiae, patri vel fratri, vel sorori et ahis domesticis et propinquis."
9. If the violence used be only a legal constraint, or the threats only of doing that which the party using them had a right to do, they shall not invalidate the contract A just and legal imprisonment, or threats of any measure authorized by law, and the circumstances of the case, are of this description. Id. 1850. See Norris Peake's Evid. 440, and the cases cited also, 6 Mass. Rep. 506, for the general rule at common law.
10.
But the mere forms of law to cover coercive proceedings for an unjust and
illegal cause, if used or threatened in order to procure the assent to a
contract, will invalidate it; an arrest without cause of action, or a demand of
bail in an unreasonable sum, or threat of such proceeding, by this rule
invalidate a contract made under their pressure.
11.
All the above, articles relate to cases where there may be some other motive
besides the violence or threats for making the contract. When, however, there
is no other cause for making the contract, any threats, even of slight injury,
will invalidate it.
DUTIES. In its most enlarged sense, this word is nearly equivalent to taxes, embracing all impositions or charges levied on persons or things; in its more restrained sense, it is often used as equivalent to customs, (q. v.) or imposts. (q. v.) Story, Const. §949. Vide, for the rate of duties payable on goods and merchandise, Gord. Dig. B. 7, t. 1, c. 1; Story's L. U. S. Index, h. t.
DUTY, natural law. A human action which is, exactly conformable to the laws which require us to obey them.
2. It differs from a legal obligation, because a duty cannot always be enforeed by the law; it is our duty, for example, to be temperate in eating, but we are under no legal obligation to be so; we ought to love our neighbors, but no law obliges us to love them.
3. Duties may be considered in the relation of man towards God, towards himself, and towards mankind. 1. We are bound to obey the will of God as far as we are able to discover it, because he is the sovereign Lord of the universe who made and governs all things by his almighty power, and infinite wisdom. The general name of this duty is piety: which consists in entertaining just opinions concerning him, and partly in such affections towards him, and such, worship of him, as is suitable to these opinions.
4. - 2. A man has a duty to perform towards himself; he is bound by the law of nature to protect his life and his limbs; it is his duty, too, to avoid all intemperance in eating and drinking, and in the unlawful gratification of all his other appetites.
5. - 3. He has duties to perform towards others. He is bound to do to others the same justice which he would have a right to expect them to do to him.
DWELLING: HOUSE. A building inhabited by man. A mansion. (q. v.)
2. A part of a house is, in one sense, a dwelling house; for example, where two or more persons rent of the owner different parts of a house, so as to have among them the whole house, and the owner does not reserve or occupy any part, the separate portion of each will, in cases of burglary, be considered the dwelling house of each. 1 Mood. Cr. bas. 23.
3.
At common law, in cases of burglary, under the term dwelling house are included
the out-houses within the curtilage or common fence with the dwelling house. 3
Inst. 64; 4 Bl. Com. 225; and vide Russ & Ry. Cr. Cas. 170;
DYING DECLARATIONS. When a man has received a mortal wound or other injury, by which he is in imminent danger of dying, and believes that he must die, and afterwards does die, the statements he makes as to the manner in which he received such injury, and the person who committed it, are called his dying declarations.
2. These declarations are received in evidence against the person thus accused, on the ground that the party making them can have no motive but to tell the truth. The following lines have been put into the mouth of such a man:
Have I not hideous Death before my view,
Retaining but a quantity of life, Which bleeds away, even as a form of wax Resolveth from his figure 'gainst the fire ? What in the world should make me now deceive, Since I must lose the use of all deceit? Why then should I be false, since it is true That I must die here, and live hence by truth.
See Death; Deathbed or dying declarations; Declarations.
DYNASTY. A succession of kings in the same line or family; government; sovereignty.
DYSNOMY. Bad legislation; the enactment of bad laws.
DYSPEPSIA, med. jur., contracts. A state of the stomach in which its functions are disturbed, without the presence of other diseases; or when, if other diseases are present, they are of minor importance. Dunglison's Med. Dict. h. t.
2. Dyspepsia is not, in general, considered as a disease which tends to shorten life, so as to make a life uninsurable; unless the complaint has become organic dyspepsia, or was of such a degree at the time of the insurance, as, by its excess, to tend to shorten life. 4 Taunt. 763.
DYVOUR, Scotch law. A bankrupt.
DYVOUR'S HABIT. 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 bankruptcy 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. Pr. L. Scot. 4, 3, 13. This practice was bottomed on that of the Roman civil law, which Filangierl says is better fitted to excite laughter than compassion. He adds: " Si conduce il debitore vicino ad una colonna a quest officio destinata, egli l'abbraccia nel mentre, che uno araldo grida Cedo bonis ed un al tro gli abza le vesti, e palesa agli spettatori le sue natiche. Finita questa ceremonia il debitore messo in liberta." Filangieri della legislazione, cap. iv.
EAGLE,
money. A gold coin of the
EAR-WITNESS. One who attests to things he has heard himself.
EARL,
2. Earls were anciently called comites, because they were wont comitari regem, to wait upon the king for counsel and advice. He was also called shireman, because each earl had the civil government of a shire.
3. After the Norman conquest they were called counts, whence the shires obtained the names of counties. They have now nothing to do with the government of counties, which has entirely devolved on the sheriff, the earl's deputy, or vice comes.
EARLDOM. The seigniory of an earl; the title and dignity of an earl.
EARNEST, contracts. The payment of a part of the price of goods sold, or the delivery of part of such goods, for the purpose of binding the contract.
2. The effect of earnest is to bind the goods sold, and upon their being paid for without default, the buyer is entitled to them. But notwithstanding the earnest, the money must be paid upon taking away the goods, because no other time for payment is appointed; earnest only binds the bargain, and gives the buyer a right to demand, but a demand without payment of the money is void; after earnest given the vendor cannot sell the goods to another, without a default in the vendee, and therefore if the latter does not come and pay, and take the goods, the vendor ought to go and request him, and then if he does not come, pay for the goods and take them away in convenient time, the agreement is dissolved, and he is at liberty to sell them to any other person. 1 Salk. 113: 2 Bl. Com. 447; 2 Kent, Com. 389; Ayl. Pand. 450; 3 Campb. R. 426.
EASEMENTS, estates. An easement is defined to be a liberty privilege or advantage, which one man may have in the lands of another, without profit; it may arise by deed or prescription. Vide 1 Serg. & Rawle 298; 5 Barn. & Cr. 221; 3 Barn. & Cr. 339; 3 Bing. R. 118; 3 McCord, R. 131, 194; 2 McCord, R. 451; 14 Mass. R. 49 3 Pick. R. 408.
2. This is an incorporeal hereditament, and corresponds nearly to the servitudes or services of the civil law. Vide Lilly's Reg. h. t. 2 Bouv. Inst. n. 1600, et seq.; 3 Kent, Com. 344: Cruise, Dig. t. 31, c. 1, s. 17; 2 Hill. Ab. c. 5; 9 Pick. R. 51; 1 Bail. R. 56; 5 Mass. R. 129; 4 McCord's R. 102; Whatl. on Eas. passim; and the article Servitude.
EASTER TERM, Eng. law. One of the four terms of the courts. It is now a fixed term beginning on the 15th of April and ending the 8th of May in every year. It was formerly a movable term.
EAT INDE SINE DIE. Words used on an acquittal, or when a prisoner is to be discharged, that he may go without day, that is, that he be dismissed. Dane's Ab. Index, h. t.
EAVES-DROPPERS, crim. law. Persons as wait under walls or windows or the eaves of a house, to listen to discourses, and thereupon to frame mischievous tales.
2. The common law punishment for this offence is fine, and finding sureties for good behaviour. 4 Bl. Com. 167; Burn's Just. h. t.; Dane's Ab. Index, h. t.; 1 Russ. Cr. 302.
3. In Tennessee, an indictment will not lie for eaves-dropping. 2 Tenn. R. 108.
ECCHYMOSIS, med. jur. Blackness. It is an extravasation of blood by rupture of capillary vessels, and hence it follows contusion; but it may exist, as in cases of scurvy, and other morbid conditions, without the latter. Ryan's Med. Jur. 172.
ECCLESIA. In classical Greek this word signifies any assembly, and in this sense it is used in Acts xix. 39. But ordinarily, in the New Testament, the word denotes a Christian assembly, and is rendered into English by the word church. It occurs thrice only in, the Gospels, viz. in Matt. xvi. 18, and xviii. 17; but very frequently in the other parts of the New Testament, beginning with Acts ii. 47. In Acts xix. 37, the word churches, in the common English version, seems to be improperly used to denote heathen temples. Figuratively, the word church is employed to signify the building set apart for the Christian assemblies; but the word eclesia is not used in the New Testament in that sense.
ECCLESIASTIC. A clergyman; one destined to the divine ministry, as, a bishop, a priest, a deacon. Dom. Lois Civ. liv. prel. t. 2, s. 2, n. 14.
ECCLESIASTICAL. Belonging to, or set apart for the church; as, distinguished from civil or secular. Vide Church.
ECCLESIASTICAL COURTS. English law. Courts held by the king's authority as supreme governor of the church, for matters which chiefly concern religion.
2. There are ten courts which may be ranged under this class. 1. The Archdeacon's Court. 2. The Consistory Court. 3. The Court of Arches. 4. The Court of Peculiars. 5. The Prerogative Court. 6. The Court of Delegates, which is the great court of appeals in all ecclesiastical causes. 7. The Court of Convocation. 8. The Court of Audience. 9. The Court of Faculties. 10. The Court of Commissioners of Review.
ECCLESIASTICAL LAW. By this phrase it is intended to include all those rules which govern ecclesiastical tribunals. Vide Law Canon.
ECCLESIASTICS, canon law. Those persons who compose the hierarchial state of the church. They are regular and secular. Aso & Man. Inst. B. 2, t. 5, c. 4, §1.
ECLAMPSIA PARTURIENTIUM, med. jur. The name of a disease accompanied by apoplectic convulsions, and which produces aberration of mind at childbirth. The word Eclampsia is of Greek origin - Significat splenaorem fulgorem effulgentiam, et emicationem quales ex ocuIis aliquando prodeunt. Metaphorice sumitur de emicatione flammae vitalis in pubertate et aetaeis vigore. Castelli, Lex. Medic.
2. An ordinary person, it is said, would scarcely observe it, and it requires the practised and skilled eye of a physician to discover that the-patient is acting in total unconsciousness of the nature and effect of her acts. There can be but little doubt that many of the tragical cases of infanticide proceed from this cause. The criminal judge and lawyer cannot inquire with too much care into the symptoms of this disease, in order to discover the guilt of the mother, where it exists, and to ascertain her innocence, where it does not. See two well reported cases of this kind in the Boston Medical Journal, vol. 27, No. 10, p. 161.
EDICT. A law ordained by the sovereign, by which he forbids or commands something it extends either to the whole country, or only to some particular provinces.
2. Edicts are somewhat similar to public proclamations. Their difference consists in this, that the former have authority and form of law in themselves, whereas the latter are at most, declarations of a law, before enacted by congress, or the legislature.
3. Among the Romans this word sometimes signified, a citation to appear before a judge. The edict of the emperors, also called constitutiones principum, were new laws which they made of their own motion, either to decide cases which they had foreseen, or to abolish or change some ancient laws. They were different from their rescripts or decrees. These edicts were the sources which contributed to the formation of the Gregorian, Hermogenian, Theodosian, and Justinian Codes. Vide Dig. 1, 4, 1, 1; Inst. 1, 2, 7; Code, 1, 1 Nov. 139.
EDICT PERPETUAL. The title of a compilation of all the edicts. This collection was made by Salvius Julianus, a jurist who was, selected by the emperor Adrian for the purpose, and who performed his task with credit to himself.
EDICTS OF JUSTINIAN. These are thirteen constitutions or laws of that prince, found in most editions of the corpus juris civilis, after the Novels. Being confined to matters of police in the provinces of the empire, they are of little use.
EFFECT. The operation of a law, of an agreement, or an act, is called its effect.
2. By the laws of the United States, a patent cannot be granted for an effect only, but it may be for a new mode or application of machinery to produce effects. 1 Gallis. 478; see 4 Mason, 1; Pet. C. C. R. 394; 2 N. H. R. 61.
EFFECTS. This word used simpliciter is equivalent to property or, worldly substance, and may carry the whole personal estate, when used in a will. 5 Madd. Ch. Rep. 72; Cowp. 299; 15 Ves. 507; 6 Madd. Ch. R. 119. But when it is preceded and connected with words of a narrower import, and the bequest is not residuary, it will be confined to species of property ejusdem generis with those previously described. 13 Ves. 39; 15 Ves. 826; Roper on Leg. 210.
EFFIGY, crim. law. The figure or representation of a person.
2. To make the effigy of a person with an intent to make him the object of ridicule, is a libel. (q. v.) Hawk. b. 1, c. 7 3, s. 2 14 East, 227; 2 Chit. Cr. Law, 866.
3. 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 exposure or exhibition of a picture or representation of him on a scaffold, on which his name and the decree condemning him are written, he is deemed to undergo the punishment to which he has been sentenced. Since the adoption of the Code Civil, the practice has been to affix the names, qualities or addition, and the residence of the condemned person, together with an extract from the sentence of condemnation, to a post set upright in the ground, instead of exhibiting a portrait of him on the scaffold. Repertoire de Villargues; Biret, Vo cab.
EFFRACTION. A breach, made by the use of force.
EFFRACTOR. One who breaks through; one who commits a burglary.
EGO. I, myself. This term is used in forming genealogical tables, to represent the person who is the object of inquiry.
EIGNE, persons. This is a corruption of the French word aine, eldest or first born.
2. 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. sect. 399.
EIRE, or EYRE, English law. A journey. Justices in eyre, were itinerant judges, who were sent once in seven years with a general commission in divers counties, to hear and determine such causes as were called pleas of the crown. Vide Justices in eyre.
EJECTMENT, remedies. The name of an action which lies for the recovery of the possession of real property, and of damages for the unlawful detention. In its nature it is entirely different from a real action. 2 Term Rep; 696, 700. See 17 S. & R. 187, and, authorities cited.
2. This subject may be considered with reference, 1st. To the form of the, proceedings. 2d. To the nature of the property or thing to be recovered. 3d. To the right to such property. 4th. To the nature of the ouster or injury. 5th. To the judgment.
3. - 1. In the English practice, which is still adhered to in some states, in order to lay the foundation of this action, the party claiming title enters upon the land, and then gives a lease of it to a third person, who, being ejected by the other claimant, or some one else for him, brings a suit against, the ejector in his own name; to sustain the action the lessee must prove a good title in the lessor, and, in this collateral way, the title is tried. To obviate the difficulty of proving these forms, this action has been made, substantially, a fictitious process. The defendant agrees, and is required to confess that a lease was made to the plaintiff, that he entered under it, and has been ousted by the defendant, or, in other words, to admit lease, entry, and ouster, and that he will rely only upon his title. An actual entry, however, is still supposed, and therefore, an ejectment will not lie, if the right of entry is gone. 3 Bl. Com. 199 to 206. In Pennsylvania, New York, Arkansas, and perhaps other states, these fictions have all been abolished, and the writ of ejectment sets forth the possessionof the plaintiff, and an unlawful entry on the part of the defendant.
4. - 2. This action is in general sustainable only for the recovery of the possession of property upon which an entry might in point of fact be made, and of which the sheriff could deliver actual possession: it cannot, therefore, in general, be sustained for the recovery of property which, in legal consideration, is not tangible; as, for a rent, or other incorporeal heriditaments, a water-course, or for a mere privilege of a landing held in common with other citizens of a town. 2 Yeates, 331; 3 Bl. Com. 206; Yelv. 143; Run. Eject. 121 to 136 Ad. Eject. c. 2; 9 John. 298; 16 John. 284.
5. - 3. The title of the party having a right of entry maybe in fee-simple, fee-tail, or for life or years; and if it be the best title to the property the plaintiff will succeed. The plaintiff must recover on the strength. of his title, and not on the weakness or deficiency of that of the defendant. Addis. Rep. 390; 2 Serg. & Rawle, 65; 3 Serg. & Rawle, 288; 4 Burr. 2487; 1 East, R. 246; Run. Eject. 15; 5 T. R. 110.
6. - 4. The injury sustained must in fact or in point of law have amounted to an ouster or dispossession of the lessor of the plaintiff, or of the plaintiff himself, where the fictions have been abolished; for if there be no ouster, or the defendant be not in possession at the time of bringing the action, the plaintiff must fail. 7 T. R. 327; 1 B. & P. 573; 2 Caines' R. 335.
7.
- 5. The judgment is that the plaintiff do recover his term, of and in the
tenements, and, unless the damages be remitted, the damages assessed by the
jury with the costs of increase. In
EJUSDEM GENERIS. Of the same kind.
2. 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 generas; as, where an act (9 Ann. C. 20) provided that a writ of quo warranto might issue against persons who should usurp "the offices of mayors, bailiffs, port reeves, and other offices, within the cities, towns, corporate boroughs, and places, within Great Britain," &c.; it was held that "other offices" meant offices ejusdem generis; and that the word "places" signified places of the same kind; that is, that the offices must be corporate offices, and the places must be corporate Places. 5 T. R. 375,379; 5 B . & C. 640; 8 D. & Ry. 393; 1 B. & C. 237.
3. So, in the construction of wills, when certain articles are enumerated, the terra goods is to be restricted to those ejusdem generis. Bac. Ab. Legacies, B; 3 Rand. 191; 3 Atk. 61; Abr. Eq. 201; 2 Atk. 113.
ELDEST. He or she who has the greatest age.
2. The laws of primogeniture are not in force in the United States; the eldest child of a family cannot, therefore, claim any right in consequence of being the eldest.
ELECTION. This term, in its most usual acceptation, signifies the choice which several persons collectively make of a person to fill an office or place. In another sense, it means the choice which is made by a person having the right, of selecting one of two alternative contracts or rights. Elections, then, are of men or things.
2. - §1. Of men. These are either public elections, or elections by companies or corporations.
3. - 1. Public elections. These should be free and uninfluenced either by hope or fear. They are, therefore, generally made by ballot, except those by persons in their representative capacities, which are viva voce. And to render this freedom as perfect as possible, electors are generally exempted from arrest in all cases, except treason, felony, or breach of the peace, during their attendance on election, and in going to and returning from them. And provisions are made by law, in several states, to prevent the interference or appearance of the military on the election ground.
4. One of the cardinal principles on the subject of elections is, that the person who receives a majority or plurality of votes is the person elected. Generally a plurality of the votes of the electors present is sufficient; but in some states a majority of all the votes is required. Each elector has one vote.
5. - 2. Elections by corporations or companies are made by the members, in such a way its their respective constitutions or charters direct. It is usual in these cases to vote a greater or lesser number of votes in proportion as the voter has a greater or less amount of the stock of the company or corporation, if such corporation or company be a pecuniary institution. And the members are frequently permitted to vote by proxy. See 7 John. 287; 9 John. 147; 5 Cowen, 426; 7 Cowen, 153; 8 Cowen, 387; 6 Wend. 509; 1 Wend. 98.
6. - §2. The election of things. 1. In contracts, when a; debtor is obliged, in an alternative obligation, to do one of two things, as to pay one hundred dollars or deliver one hundred bushels of wheat, he has the choice to do the one or the other, until the time of payment; he has not the choice, however, to pay a part in each. Poth. Obl. part 2, c. 3, art. 6, No. 247; ll John. 59. Or, if a man sell or agree to deliver one of two articles, as a horse or an ox, he has the election till the time of delivery; it being a rule that "in case an election be given of two several things, always be, which is the first agent, and which ought to do the first act, shall have the election." Co. Litt. 145, a; 7 John. 465; 2 Bibb, R. 171. On the failure of the person who has the right to make his election in proper time, the right passes to the opposite party. Co. Litt. 145, a; Viner, Abr. Election, B, C; Poth. Obl. No. 247; Bac. Ab. h. t. B; 1 Desaus. 460; Hopk. R. 337. It is a maxim of law, that an election once made and pleaded, the party is concluded, electio semel facta, et placitum testatum, non patitur regress-um. Co. Litt. 146; 11 John. 241.
7.-2. Courts of equity have adopted the principle, that a person shall not be permitted to claim under any instrument, whether it be a deed or will, without giving full effect to it, in every respect, so far as such person is concerned. This doctrine is called into exercise when a testator gives what does not belong to him, but to some other person, and gives, to that person some estate of his own; by virtue of which gift a condition is implied, either that he shall part with his own estate or shall not take the bounty. 9 Ves. 515; 10 Ves. 609; 13 Ves. 220. In such a case, equity will not allow the first legatee to, insist upon that by which he would deprive another legatee under the same will of the benefit to which he would be entitled, if the first legatee permited the whole will to operate, and therefore compels him to make his election between his right independent of the will, and the benefit under it. This principle of equity does not give the disappointed legatee the right to detain the thing itself, but gives a right to compensation out of something else. 2 Rop. Leg. 378, c. 23, s. 1. In order to impose upon a party, claiming under a will, the obligation of making an election, the intention of the testator must be expressed, or clearly implied in the will itself, in two respects; first, to dispose of that which is not his own; and, secondly, that the person taking the benefit under the will should, take under the condition of giving effect thereto. 6 Dow. P. C. 179; 13 Ves. 174; 15 Ves. 390; 1 Bro. C. C. 492;3 Bro. C. C. 255; 3 P. Wms. 315; 1 Ves. jr. 172, 335; S. C. 2 Ves. jr. 367, 371; 3 Ves. jr. 65; Amb. 433; 3 Bro. P. C. by Toml. 277; 1 B. & Beat. 1; 1 McClel. R. 424, 489, 541. See, generally, on this doctrine, Roper's Legacies, c. 23; and the learned notes of Mr. Swanston to the case Dillon v. Parker, 1 Swanst. R. 394, 408; Com. Dig. Appendix, tit. Election; 3 Desaus. R. 504; 8 Leigh, R. 389; Jacob, R. 505; 1 Clark & Fin. 303; 1 Sim. R. 105; 13 Price, R. 607; 1 McClel. R. 439; 1 Y. & C. 66; 2 Story, Eq. Jur. §1075 to 1135; Domat, Lois Civ. liv. 4, tit. 2, §3, art. 3, 4, 5; Poth. Pand. lib. 30, t. 1, n. 125; Inst. 2, 20, 4; Dig. 30, 1, 89, 7.
8. There are many other cases where a party may be compelled to make an election, which it does not fall within the plan of this work to consider. The reader will easily inform himself by examining the works above referred to.
9. - 3. The law frequently gives several forms of action to the injured party, to enable him to recover his rights. To make a proper election of the proper remedy is of great importance. To enable the practitioner to make the best election, Mr. Chitty, in his valuable Treatise on Pleadings, p. 207, et seq., has very ably examined the subject, and given rules for forming a correct judgment; as his work is in the hands of every member of the profession, a reference to it here is all that is deemed necessary to say on this subject. See also, Hammond on Parties to Actions; Brown's Practical Treatise on Actions at Law, in the 45th vol. of the Law Library; U. S. Dig. Actions IV.
ELECTION OF ACTIONS, practice. It is frequently at the choice of the plaintiff what kind of an action to bring; a skilful practitioner would naturally select that in which his client can most easily prove what is his interest in the matter affected; may recover all his several demands against the defendant; may preclude the defendant from availing himself of a defence, which be might otherwise establish; may most easily introduce his own evidence; may not be embarrassed by making too. many or too few persons parties to the suit; may try it in the county most convenient to himself; may demand bail where it is for the plaintiff's interest; may obtain a judgment with the least expense and delay; may entitle himself to costs; and may demand bail in error. 1 Chit. Pl. 207 to 214.
2. It may be laid down as a general rule, that when a statute prescribes a new remedy, the plaintiff has his election either to adopt such remedy, or proceed at common law. Such statutory remedy is cumulative, unless the statute expressly, or by necessary implication takes away the Common law remedy. 1 S. & R. 32; 6 S. & R. 20; 5 John. 175; 10 John. 389; 16 John. 220; 1 Call, 243; 2 Greenl. 404; 5 Greenl. 38; 6 Harr. & John. 383; 4 Halst. 384; 3 Chit. Pr. 130.
ELECTION OF A DEVISE OR LEGACY. It is an admitted principle, that a person shall not be permitted to claim under any instrument, whether it be a deed or a will, without giving full effect to it in every respect, so far as such person is concerned. When a testator, therefore, gives what belongs to another and not to him, and gives to the owner some estate of his own; this gift is under an implied condition, either that he shall part with his own estate, or not take the bounty. 9 Ves. 615; 10 Ves. 609; 13 Ves. 220; 2 Ves. 697; 1 Suppl. to Ves. jr. 222; Id. 55; Id. 340. If, for example, a testator undertakes to dispose of an estate belonging to B, and devise to B other lands, or bequeath to him a legacy by the same will, B will not be permitted to keep his own estate, and enjoy at the same time the benefit of the devise or bequest made in his favor, but must elect whether he will part with his own estate, and accept the provisions in the will, or continue in possession of the former and reject the latter. See 2 Vern. 5.81; Forr. 176; 1 Swanst. 436, 447 1 Rro. C. C. 480; 2 Rawle, 168; 17 S. & R. 16 2 Gill, R. 182, 201; 1 Dev. Eq. R. 283; 3 Desaus. 346; 6 John. Ch. R. 33; Riley, Ch. R. 205; 1 Whart. 490; 5 Dana, 345; White's L. C. in Eq. *233.
2. The foundation of the equitable doctrine of election, is the intention, explicit or presumed, of the author of the instrument to which it is applied, and such is the, import of the expression by which it is described as proceeding, sometimes on a tacit, implied, or constructive condition, sometimes on equity. See Cas. temp. Talb. 183; 2 Vern. 582; 2 Ves. 14; 1 Eden, R. 536; 1 Ves. 306. See, generally, 1 Swan. 380 to 408, 414, 425, 432, several very full notes.
3. As to what acts of acceptance or acquiescence will constitute an implied election, see 1 Swan. R. 381, n. a; and the cases there cited.
ELECTOR, government. One who has the right to make choice of public officers one, who has a right to vote.
2. The qualifications of electors are generally the same as those required in the person to be elected; to this, however, there is one exception; a naturalized citizen may be an elector of president of the United States, although he could not constitutionally be elected to that office.
ELECTORS OF PRESIDENT. Persons elected by the people, whose sole duty is to elect a president and vice-president of the U. S.
2. The Constitution provides, Am. art. 12, that "the electors shall meet in their respective states, and vote by ballot for president and vice-president, one of whom at least shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as president, and in distinct ballots the person voted for as vice-president; and they shall make distinct lists of all persons voted fur as president, and of all persons voted for as vice-president, and of the number of votes for each; which list they shall sign and certify, and transmit, sealed, to the seat of the government of the United States, directed to the president of the senate; the president of the senate shall, in the presence of the senate and the house of representatives, open all the certificates, and the votes shall then be counted; the person having the greatest number of, votes for president, shall be the president, if such number be the majority of the whole number of electors appointed; and if no, person have such majority, then from the persons having the highest numbers, not exceeding three, on the list of those voted for as president, the house of representatives shall choose immediately, by ballot, the president. But in choosing the president, the votes shall be taken by states, the representation from each state having one vote; a quorum, for this purpose, shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the house of representatives shall not choose a president whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the vice-president shall act as president, as in the case of the death or other constitutional disability of the president.
3. - 2. "The person having the greatest number of votes as vice-president shall be vice-president, if such number be a majority of the whole number of electors appointed and if no person have a majority, them from the two highest numbers on the list, the senate shall choose the vice-president; a quorum for the purpose shall consist of two-thirds of the whole number of senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of president, shall be eligible to that of vice-president of the United States." Vide 3 Story, Const. §1448 to 1470.
ELEEMOSYNARY. Charitable alms-giving.
2. Eleemosynary corporations are colleges, schools, and hospitals. 1 Wood. Lect. 474; Skinn. 447 1 Lord Raym. 5 2 T. R. 346.
ELEGIT, Eng. practice, remedies. A writ of execution directed to the sheriff, commanding him to make delivery of a moiety of the party's land, and all his goods, beasts of the plough only excepted.
2. The sheriff, on the receipt of the writ, holds an inquest to ascertain 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. Vide Pow. Mortg. Index, h. t.; Wats. Sher. 206. As to the law of the several states on the subject. of seizing land and extending it. see 1 Hill. Ab. 556-6.
ELIGIBILITY. Capacity to be elected.
2. Citizens are in general eligible to all offices; the exceptions arise from the want of those qualifications which the constitution requires; these are such as regard his person, his property, or relations to the state.
3.- 1. In. general, no person is eligible to any office, until he has attained the full age of twenty-one years; no one can be elected a senator of the United States, who shall not have attained the age of thirty years, been a 'citizen of th e United States nine years and who shall not be an inhabitant of the, state for which he shall be chosen. Const. art. 1, s. 3. No person, except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution, is eligible to the office of president, and no person shall be eligible to that office, who shall not have attained the age of thirty-five years, and been fourteen years a resident within the United States. Const. art. 2, s. 1.
4. - 2. A citizen may be ineligible in consequence of his relations to the state; for example, holding an office incompatible with the office sought. Vide Ineligibility. Because he has not paid the taxes the law requires; because he has not resided a sufficient length of time in the state.
5. - 3. He may be ineligible for want of certain property qualifications required by some, law.
ELISORS, practice. Two persons appointed by the court to return a jury, when the sheriff and the coroner have been challenged as incompetent; in this case the elisors return the writ of venire directed to them, with a panel of the juror's names, and their return is final, no challenge being allowed to their array. 3 Bl. Com. 355,; 3 Cowen, 296; 1 Cowen, 32.
ELL. A measure of length. In old English the word signifies arm, which sense it still retains in the word elbow. Nature has no standard of measure. The cubit, the ell, the span, palm, hand, finger, (being taken from the individual who uses them) varies. So of the foot, pace, mile, or mille passuum. See Report on Weights and Measures, by the Secretary of State of the United. States, Feb. 22, 1821; Fathom.
ELOIGNE, practice. This word signifies, literally, to remove to a distance; to remove afar off. It is used as a return to a writ of replevin, when the chattels have been removed out of the way of the sheriff. Vide Elongata.
ELONGATA, practice. There turn made by the sheriff to a writ of replevin, when the goods have been removed to places unknown to him. See, for the form of this return, Wats. Sher. Appx. c. 18, .s. 3, p. 454; 3 Bl. Com. 148.
2. On this return the plaintiff is entitled to a capias in withernam. Vide Withernam, and Wats. Sher. 300, 301. The word eloigne, (q. v.) is sometimes used as synonymous with elongata.
ELOPEMENT. This term is used to denote the departure of a married woman from her hushand, and dwelling with an adulterer.
2. While the wife reides with her hushand, and cohabits with him, however exceptionable her conduct may be, yet he is bound to provide her with necessaries, and to pay for them; but when she elopes, the hushand is no longer liable for her alimony, and is not bound to pay debts of her contracting when the separation is notorious; and whoever gives her credit under these circumstances, does so at his peril. Chit. Contr. 49; 4 Esp. R. 42; 3 Pick. R. 289; 1 Str. R. 647, 706; 6 T. R. 603; 11 John. R. 281; 12 John. R. 293; Bull. N. P. 135; Stark. Ev. part 4, p. 699.
ELOQUENCE OR ORATORY. The act or art of speaking well upon any subject with a view to persuade. It comprehends a good elocution, correct and appropriate expressions uttered. with fluency, animation and suitable action. The principal rules of the art, which must be sought for in other works, are summarily expressed in the following lines:
" Be brief, be pointed; let your matter stand Lucid in order, solid, and at hand; Spend not your words on trifles, but condense; Strike with the mass of thoughts, not drops of sense; Press to the close with vigor once begun, And leave, (how hard the task!) leave off when done; Who draws a labor'd length of reasoning out, Put straws in lines for winds to whirl about; Who draws a tedious tale of learning o'er, Counts but the sands on ocean's boundless shore; Victory in law is gain'd as battle's fought, Not by the numbers, but the forces brought; What boots success in skirmishes or in fray, If rout and ruin following close the day? What worth a hundred Posts maintained with skill, If these all held, the foe is victor still? He who would win his cause, with power must frame Points of support, and look with steady aim: Attack the weak, defend the strong with art, Strike but few blows, but strike them to the heart; All scatter'd fires but end in smoke and noise, The scorn of men, the idle play of boys. Keep, then, this first great precept ever near, Short be your speech, your matter strong and clear, Earnest your manner, warm and rich your style, Severe in taste, yet full of grace the while; So may you reach the loftiest heights of fame, And leave, when life is past, a deathless name."
ELSEWHERE. In another place.
2. Where one devises all his land in A, B and C, three distinct towns, and elsewhere, and had lands of much greater value than those in A, B and C, in another county, the lands in the other county were decreed to pass by the word elsewhere; and by Lord Chancellor King, assisted by Raymond, Ch. J., and other judges, the word elsewhere, was adjudged to be the same as if the testator had said he devised all his lands in the three towns particularly mentioned, or in any other place whatever. 3 P. Wms. 5 6. See also Prec. Chan. 202; 2 Vern. 461; 2 Vern. 560; 3 Atk. 492; Cowp. 860; Id. 808; 2 Barr. 912; 5 Bro. P. C. 496; S. C. 1 East, 456; 1 Vern. 4 n.
3. - 2. As to the effect of the word elsewhere, in the case of lands not purchased at the time of making the will, see 3 Atk. 254; 2 Vent. 351. Vide Alibi.
EMANCIPATION. An act by which a person, who was once in the power of another, is rendered free. B y the laws of Louisiana, minors may be emancipated. Emancipation is express or implied.
2. Express emancipation. The minor may be emancipated by his father, or, if be has no father, by his mother, under certain restrictions. This emancipation takes place by the declaration, to that effect, of the father or mother, before a notary public, in the presence of two witnesses. The orphan minor may, likewise, be emancipated by the judge, but not before he has arrived at the full age of eighteen years, if the family meeting, called to that effect, be of opinion that he is able to administer his property. The minor may be emancipated against the will of his father and mother, when they ill treat him excessively, refuse him support, or give him corrupt example.
3. The marriage of the minor is an implied emancipation.
4. The minor who is emancipated has the full administration of his estate, and may pass all act's which may be confined to such administration; grant leases, receive his revenues and moneys which may be due him, and give receipts for the same. He cannot bind himself legally, by promise or obligation, for any sum exceeding the amount of one year of his revenue. When he is engaged in trade, he is considered as leaving arrived to the age of majority, for all acts which have any relation to such trade.
5. The emancipation, whatever be the manner in. which it may have been effected, may be revoked, whenever the minor contracts engagements which exceed the limits prescribed by law.
6.
By the English law, filial emancipation is recognized, chiefly, in relation to
the parochial settlement of paupers. See 3 T. R. 355; 6 T. R. 247; 8 T. R. 479;
2 East, 276; 10 East, 88.; 11 Verm. R. 258, 477. See Manumission. See Coop.
Justin. 441, 480; 2 Dall. Rep. 57, 58; Civil Code of
EMBARGO, maritime law. A proclamation, or order of state, usually issued in time of war, or threatened hostilities, prohibiting the departure of ships or goods from some, or all the ports of such state, until further order. 2 Wheat. 148.
2. The detention of ships by an embargo is such an injury to the owner as to entitle him to recover on a policy of insurance against "arrests or detainments." And whether the embargo be legally or illegally laid, the injury to the owner is the same; and the insurer is equally liable for the loss occasioned by it. Marsh. Ins. B. 1, c. 12, s. 5; 1 Kent, Com. 60 1 Bell's Com. 517, 5th ed.
3. An embargo detaining a vessel at the port of departure, or in the course of the voyage, does not, of itself, work a dissolution of a charter party, or the contract with the seamen. It is only a temporary restraint imposed by authority for legitimate political purposes, which suspends, for a time, the performance of such contracts, and leaves the rights of parties untouched, 1 Bell's Com. 517; 8 T. R. 259; 5 Johns. R. 308; 7 Mass. R. 325, 3 B. & P. 405-434; 4 East, R. 546-566.
EMBEZZLEMENT, crim. law. The fraudulently removing and secreting of personal property, with which the party has been entrusted, for the purpose of applying it to his own use.
2. The Act of April 30, 1790, s. 16, 1 Story, L. U. S. 86, provides, that if any person, within any of the laces under the sole and exclusive jurisdiction of the United States, or upon the high seas, shall take and carry away, with an intent to steal or purloin, the personal goods of another; or if any person or persons, having, at any time hereafter, the charge or custody of any arms, ordnance, munition, shot, powder, or habiliments of war, belonging to the. United States, or of any victuals provided for the victualling of any soldiers, gunners, marines, or pioneers, shall, for any lucre or gain, or wittingly, advisedly, and of purpose to hinder or impede the service of the United States, embezzle, purloin, or convey away, any of the said arms, ordnance, munition, shot or powder, habiliments of war, or victuals, that then, and in every of the cases aforesaid, the persons so offending, their counsellors, aiders and abettors, (knowing of, and privy to the offences aforesaid,) shall, on conviction, be fined, not exceeding the fourfold value of the property so stolen, embezzled or purloined the one moiety to be paid to the owner of the goods, or the United States, as the case may be, and the other moiety to the informer and prosecutor, and be publicly whipped, not exceeding thirty-nine stripes.
3. The Act of April 20, 1818, 3 Story, 1715, directs that wines and distilled spirits shall, in certain cases, be deposited in the public warehouses of the United States, and then it is enacted, s. 5, that if any wines, or other spirits, deposited under the provisions of this act, shall be embezzled, or fraudulently hid or removed, from any store or place wherein they shall have been deposited, they shall be forfeited, and the person or persons so embezzling, hiding, or removing the same, or aiding or assisting therein, shall be liable to the same pains and penalties as if such wines or spirits had been fraudulently unshipped or landed without payment of duty.
4. By the 21st section of the act to reduce into one the several acts establishing and regulating the post-office, passed March 3, 1825, 3 Story, 1991, the offence of embezzling letters is punished with fine and imprisonment. Vide Letter.
5. The act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes, passed March 3, 1825, s. 24, 3 Story, 2006, enacts, that if any of the gold or silver coins which shall be struck or coined at the mint of the United States, shall be debased, or made worse, as to the proportion of fine gold or fine silver therein contained, or shall be of less weight or value than the same ought to be, pursuant to the several acts relative thereto, through the default or with the connivance of any of the officers or persons who shall be employed at the said mint, for the purpose of profit or gain, or otherwise, with a fraudulent intent and if any of the said officers or persons shall embezzle any of the metals which shall, at any time, be committed to their charge for the purpose of being coined; or any of the coins which shall be struck or coined, at the said mint; every such officer, or person who shall commit any, or either, of the said offences, shall be deemed guilty of felony, and shall be sentenced to imprisonment and hard labor for a term not less than one year, nor more than ten years, and shall be fined in a sum not exceeding ten thousand dollars.
6. When an embezzlement of a part of the cargo takes place on board of a ship, either from the fault, fraud, connivance or negligence of any of the crow, they are bound to contribute to the reparation of the loss, in proportion to their wages. When the embezzlement is fixed on any individual, he is solely responsible; when it is made by the crew, or some of the crew, but the particular offender is unknown, and from the circumstances of the case, strong presumptions of guilt apply to the whole crew, all must contribute. The presumption of innocence is always in favor of the crew, and the guilt of the parties must be established, beyond all reasonable doubt, before they can be required to contribute. 1 Mason's R. 104; 4 B. & P. 347; 3 Johns. Rep. 17; 1 Marsh. Ins. 241; Dane's Ab. Index, h. t.; Wesk. Ins. 194; 3 Kent, Com., 151; Hardin, 529.
EMBLEMENTS, rights. By this term is understood the crops growing upon the land. By crops is here meant the products of the earth which grow yearly and are raised by annual expense and labor, or "great manurance and industry," such as grain; but not fruits which grow on trees which are not to be planted yearly, or grass, and the like, though they are annual. Co. Litt. 55, b; Com. Dig. Biens, G; Ham. Part. 183, 184.
2. It is a general rule, that when the estate is terminated by the act of God in any other way than by the death of the tenant for life, or by act of the law, the tenant is entitled to the enablements; and when he dies before harvest time, his executors shall have the emblements, as a return for the labor and expense of the deceased in tilling the ground. 9 Johns. R. 112; 1 Chit. P. 91: 8 Vin. Ab. 364 Woodf. L. & T. 237 Toll. Ex. book 2, c. 4; Bac. Ab Executors, H 3; Co. Litt. 55; Com. Dig. Biens G.; Dane's Ab. Index, h. t.; 1 Penna. R. 471; 3 Penna. 496; Ang. Wat. Co. 1 Bouv. Inst. Index, h. t.
EMBRACEOR, criminal law. He who, when a matter is on trial between party and party, comes to the bar with one of the parties, and having received some reward so to do, speaks in the case or privily labors the jury, or stands there to survey or overlook them, thereby to put them in fear and doubt of the matter. But persons learned in the law may speak in a case for their clients. Co. Litt. 369; Terms de la Ley. A person who is guilty of embracery. (q. v.)
EMBRACERY, crim. law. An attempt to corrupt or influence a jury, or any way incline them to be more favorable to the one side than to the other, by money, promises, threats, or persuasions; whether the juror on whom such attempt is made give any verdict or not, or whether the Verdict be true or false. Hawk. 259; Bac. Ab. Juries, M 3; Co. Litt. 157, b, 369, a; Hob. 294; Dy. 84, a, pl. 19; Noy, 102; 1 Str. 643; 11 Mod. 111, 118; Com. 601; 5 Cowen, 503.
EMENDALS, Eng. law. This ancient word is said to be used in the accounts of the inner temple, where so much in emendals at the foot of an account signifies so much in bank, in stock, for the supply of emergencies. Cunn. Law Dict.
EMIGRANT. One who quits his country for any lawful reason, with a design to settle elsewhere, and who takes his family and property, if he has any, with him. Vatt. b. 1, c. 19, §224.
EMIGRATION. The act of removing from one place to another. It is sometimes used in the same sense as expatriation, (q. v.) but there is some difference in the signification. Expatriation is the act of abandoning one's country, while emigration is, perhaps not strictly, applied to the act of removing from one part of the country to another. Vide 2 Kent, Com. 36.
EMINENCE; A title of honor given to cardinals.
EMINENT DOMAIN. The right which people or government retain over the estates of individuals, to resume the same for public use.
2. It belongs to the legislature to decide what improvements are of sufficient importance to justify the exercise of the right of eminent domain. See 2 Hill. Ab. 568 1 U. S. Dig. 560; 1 Am. Eq. Dig. 312 3 Toull. n. 30 p. 23; Ersk. hist. B. 2) tit. 1, s. 2; Grotius, h. t. See Dominium.
EMISSARY. One who is sent from one power or government into another nation for the purpose of spreading false rumors and to cause alarm. He differs from a spy. (q. v.)
EMISSION, med. jur. The act by which any matter whatever is thrown from the body; thus it is usual to say, emission of urine, emission of semen, &c.
2. In cases of rape, when the fact of penetration is proved, it may be left to the jury whether emission did or did not take place. Proof of emission would perhaps be held to be evidence of penetration. Addis. R. 143; 2 So. Car. Const. R. 351; 2 Chitty, Crim. Law, 810; 1 Beck's Med. Jur. 140 1 Russ. C. & M. 560; 1 East, P. C. 437.
TO EMIT. To put out; to send forth,
2. The tenth section of the first article of the constitution, contains various prohibitions, 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 ordinary purposes, as money, which paper is redeemable at a future day. 4 Pet. R. 410, 432; Story on Const. §1358. Vide Bills of credit.
EMMENAGOGUES, med. jur. The name of a class of medicines which are believed to have the power. of favoring the discharge of the menses. These are black hellebore, savine, (vide Juneperius Sabina,) madder, mercury, polygala, senega, and pennyroyal. They are sometimes used for the criminal purpose of producing abortion. (q. v.) They always endanger the life of the woman. 1 Beck's Medical Jur. 316; Dungl. Med. Diet. h. t.; Parr's Med. Dict. h. t.; 3 Paris and Fonbl. Aled. Jur. 88.
EMOLUMENT. The lawful gain or profit which arises from an office.
EMPALEMENT. A punishment in which a sharp polo was forced up the fundament. Encyc. Lond. h. t.
TO ENPANEL, practice. To make a list or roll, by the sheriff or other authorized officer, of the names of jurors who are summoned to appear for the performance of such service as jurors are required to perform.
EMPEROR, an officer. This word is synonymous with the Latin imperator; they are both derived from the. verb imperare. Literally, it signifies he who commands.
2. Under the Roman republic, the title emperor was the generic name given to the commanders-in-chief in the armies. But even then the application of the word was restrained to the successful commander, who was declared emperor by the acclamations of the army, and was afterwards honored with the title by a decree of the senate. 3. It, is now used to designate some sovereign prince who bears this title. Ayl. Pand. tit. 23.
EMPHYTEOSIS, civil law. The name of a contract by which the owner of an uncultivated piece of land granted it to another 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 transmit 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 Toull. n. 144.
2. This has a striking resemblance to a ground-tent. (q. v.). See Nouveau Denisart, mot, Emphyteose; Merl. Reper. mot Emphyteose; Faber, De jure emphyt. Definit. 36; Code, 4, 66, 1.
EMPIRE. This word signifies, first, authority or command; it is the power to command or govern those actions of men which would otherwise be free; secondly, the country under the government of an emperor but sometimes it is used to designate a country subject to kingly power, as the British empire. Wolff, Inst. §833.
EMPLOYED. One who is in the service of another. Such a person is entitled to rights and liable to. perform certain duties.
2. He is entitled to a just compensation for his services; when there has been a special contract, to what has been agreed upon; when not, to such just recompense as he deserves.
3. He is bound to perform the services for which he has engaged himself; and for a violation of his engagement he may be sued, but he is not liable to corporal correction. An exception to this rule may be mentioned; on the ground of necessity, a sailor may be punished by reasonable correction, when it is necessary for the safety of the vessel, and to maintain discipline. 1 Bouv. Inst. n. 1001: 2 Id. n. 2296.
EMPLOYEE. One who is authorized to act for another; a mandatory.
EMPLOYMENT. An employment is an office; as, the secretary of the treasury has a laborious and responsible employment; an agency, as, the employment of an auctioneer; it signifies also the act by which one is engaged to do something. 2 Mart. N. S. 672; 2 Harr. Cond. Lo. R. 778.
2. The employment of a printer to publish the laws of the United States, is not an office. 17 S. & R. 219, 223. See Appointment.
EMPLOYER. One who has engaged or hired the services of another. He is entitled to rights and bound to perform duties.
2. - 1. His rights are, to be served according to the terms of the contract. 2. He has a right against third persons for an injury to the person employed, or for harboring him, so as to deprive the employer of his services. 2 Bouv. Inst. n. 2295.
3. His duties are to pay the workman the compensation agreed upon, or if there be no special agreement, such just recompense as he deserves. Vide Hire; Hirer.
EMPTION. The act of buying.
EMPTOR. A buyer; a purchaser.
EN DEMEURE. In default. This term is used in Louisiana. 3 N. S. 574. See Moral in.
ENABLING POWERS. A term used in equity. When the donor of a power, who is the owner of the estate, confers upon persons not seised of the fee, the right of creating 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. n. 1928.
TO ENACT. To establish by law; to perform or effect; to decree. The usual formula in making laws is, Be it enacted.
ENCEINTE, med. jur. A French word, which signifies pregnant.
2. When a woman is pregnant, and is convicted of a capital crime, she cannot lawfully be punished till after her delivery.
3. in the English law, where a widow is suspected to feign herself with child, in order to produce a supposititious heir to the estate, the presumptive heir may have a writ de ventre inspiciendo, to examine whether she be with child or not. Cro. Eliz. 566; 4 Bro. C. C. 90. As to the signs of pregnancy, see 1 Beck's Med. Jur. 157. See, generally, 4 Bl. Com. 894; 2 P. Wms. 591; 1 Cox, C. C. 297 and Pregnancy; Privement enceinte.
ENCLOSURE. An artificial fence put around one's estate. Vide Close.
ENCROACHMENT. An unlawful gaining upon the right or possession of another; as, when a man sets his fence beyond his line; in this case the proper remedy for the party injured is an action of ejectment, or an action of trespass.
ENCUMBRANCE. A burden or charge upon an estate or property, so that it cannot be disposed of without being subject to it. A mortgage, a lien for taxes, are examples of encumbrances.
2. These do not affect the possession of the grantee, and may be removed or extinguished by a definite pecuniary value. See 2 Greenl. R. 22; 5 Greenl. R. 94.
3. There are encumbrances of another kind which cannot be so removed, such as easements for example, a highway, or a preexisting right to take water from, the land. Strictly speaking, however, these are not encumbrances, but appurtenances to estates in other lands, or in the language of the civil law, servitudes. (q. v.) 5 Conn. R. 497; 10 Conn. R. 422 15 John. R. 483; and see 8 Pick. R. 349; 2 Wheat. R. 45. See 15 Verm. R. 683; l Metc. 480; 9 Metc. 462; 1 App. R. 313; 4 Ala. 21; 4 Humph. 99; 18 Pick. 403; 1 Ala. 645; 22 Pick. 447; 11 Gill & John. 472.
ENDEAVOR, crim. law. An attempt. (q. v.) Vide Revolt.
ENDORSEMENT. Vide Indorsement.
ENDOWMENT. The bestowing or assuring of a dower to a woman. It is sometimes used: metaphorically, for the setting a provision for a charitable institution, as the endowment of a hospital.
ENEMY, international law. By this term is understood the whole body of a nation at war with another. It also signifies a citizen or subject of such a nation, as when we say an alien enemy. In a still more extended sense, the word includes 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 United 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 them. Salk. 635; Bac. Ab. Treason, G.
2. An enemy cannot, as a general rule, enter into any contract which can be enforeed in the courts of law; but the rule is not without exceptions; as, for example, when a state permits expressly its own citizens to trade with the enemy; and perhaps a contract for necessaries, or for money to enable the individual to get home, might be enforced. 7 Pet. R . 586.
3. An alien enemy cannot, in general, sue during the war, a citizen of the United States, either in the courts of, the United States, or those of the several states. 1 Kent, Com. 68; 15 John. R. 57 S. C. 16 John. R. 438. Vide Marsh. Ins. c. 2, s. 1; Park. Ins. Index. h. t.; Wesk. Ins. 197; Phil. Ins. Index. h. t.; Chit. Comm. Law, Index, h. t.; Chit. Law of Nations, Index, h. t.
4. By the term enemy is also understood, a person who is desirous of doing injury to another. The Latins had two terms to signify these two classes of persons; the first , or the public enemy, they called hostis, and the latter, or the private enemy, inimicus.
TO ENFEOFF. To make a gift of any corporeal hereditaments to another. Vide Feoffment.
TO ENFRANCHISE. To make free to incorporate a man in a society or body politic. Cunn. L. D. h. t. Vide Disfranchise.
ENGAGEMENT. This word is frequently used in the French law to signify not only a contract, but the obligations arising from a quasi contract. The terms obligations (q. v.) and engagements, are said to be synonymous 17 Toull. n. 1; but the Code seems specially to apply the term engagement to those obligations which the law, imposes on a man without the intervention of any contract, either on the part of the obligor or the obligee. Art. 1370.
ENGLESHIRE. A law was made by Canutus, for the preservation 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 Engleshire. It consisted, generally, of the testimony of two males on the part of the father of him that had been killed, and two females on the part of his mother. Hal. Hist. P . C. 447; 4 Bl. Com. 195; Spelman, Gloss. See Francigena .
TO ENGROSS, practice, conveyancing. To copy the rude draught of an instrument in a fair and large hand. See 3 Bouv. Inst. n, 2421, note.
ENGROSSER. One who purchases large quantities of any commodities in order to have the command of the market, and to sell them again at high prices.
TO 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 committed or dangerous wound given, on pain of fine and imprisonment if the wrong doer escape through their negligence. 1 Hale, 587; 1 East, P. C. 298, 304; Hawk. B. 2, c. 12, s. 13; R. & M. C. C. 93. 2. In a more technical sense, to enjoin, is to command or order a defendant in equity to do or not to do a particular thing by writ of injunction. Vide Injunction.
TO 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 prisoner was enlarged on giving bail.
ENLARGING. Extending or making more comprehensive; as an enlarging statute, which is one extending the common law.
ENTIA PARS. The part of the eldest. Co. Litt. 166; Bac. Ab. Coparceners, C.
2. When partition is voluntarily made among coparceners in England, the eldest has the first choice, or primer election, (q. v.) and the part which she takes is called enitia pars. This right is purely personal, and descends; it is also said that even her as signee shall enjoy it; but this has also been doubted. The word enitia is said to be derived from the old French, eisne the eldest. Bac. Ab. Coparceners, C; Keilw. 1 a, 49 a; 2 And. 21; Cro. Eliz. 18.
ENJOYMENT. The right which a man possesses of receiving all the product of a thing for his necessity, his use, or his pleasure.
ENLISTMENT. Thc act of making a contract to serve the government in a subordinate capacity, either in the army or navy. The contract so made, is also called an enlistment. See, as to the power of infants to enlist, 4 Binn. 487; .5 Binn. 423; Binn. 255; 1 S. & R. 87; 11 S. & R. 93.
ENORMIA. Wrongful acts. See Alia Enormia.
TO ENROLL. To register; to enter on the rolls of chancery, or other court's; to make a record.
ENROLLMENT, Eng. law. The registering, or entering in the rolls of chancery, king's bench, common pleas, or exchequer, or by the clerk of the peace in the records of the quarter sessions, of any lawful act; as a recognizance, a deed of bargain and sale, and the like. Jacob, L. D.
TO ENTAIL. To create an estate tail. Vide Tail.
ENTIRE. That which is not divided; that which is whole.
2. When a contract is entire, it must in general be fully performed, before the party can claim the compensation which was to have been paid to him; for example, when a man hires to serve another for one year, he will not be entitled to leave him at any time before the end of the year, and claim compensation for the time, unless it be done by the consent or default of the party hiring. 6 Verm. R. 35; 2 Pick. R. 267; 4 Pick. R. 103 10 Pick. R. 209; 4 McCord's R. 26, 246; 4 Greenl. R. 454; 2 Penna. R. 454; 15 John. R. 224; 4 Pick. R. 114; 9 Pick. R. 298 19 John. R. 337; 4 McCord, 249; 6 Harr. & John. 38. See Divisible.
ENTIRETY, or, ENTIERTIE. This word denotes the whole, in contradistinction to moiety, which denotes the half part. A hushand and wife, when jointly seized of land, are seized by entierties and not "pur mie" as joint tenants are. Jacob's Law Dict.; 4 Kent, 362; 2 Kent, 132; Hartv. Johnson, 3 Penna. Law Journ. 350, 357.
ENTREPOT. A warehouse; a magazine where goods are deposited, and which are again to be removed.
ENTRY. criminal law. The unlawful breaking into a house, in order to commit a crime. In cases of burglary, the least entry with the whole or any part of the body, hand, or foot, or with any instrument or weapon, introduced for the purpose of committing a felony, is sufficient to complete the offence. 3 Inst. 64.
ENTRY, estates, rights. The taking possession of lands by the legal owner.
2. A person having a right of possession may assert it by a peaceable entry, and being in possession may retain it, and plead that it is his soil and freehold; and this will not break in upon any rule of law respecting the mode of obtaining the possession of lands.
3 Term Rep. B. R. 295. When another person has taken possession of lands or tenements, and the owner peaceably makes an entry thereon, and declares that be thereby takes possession of the same, he shall, by this notorious act of ownership, which is equal to a feodal investiture, be restored to his original right. 3 Bl. Com. 174. 3. A right of entry is not assignable at common law. Co. Litt. 214 a. As to the law on this subject in the United States, vide Buying of titles; 4 Kent, Com. 439 2 Hill. Ab. c. 33, §42 to 52; also,artic le ReEntry; Bac. Ab. Descent, G; 8 Vin. Ab. 441.
4. In another sense, entry signifies the going upon another man's lands or his tenements. An entry in this sense may be justifiably made on another's land or house, first, when the law confers an authority; and secondly, when the party has authority in fact.
5. First, 1. An officer may enter the close of one against whose person or property he is charged with the execution of a writ. In a civil case, the officer cannot open (even by unlatching) the outer inlet to a house, as a door or window opening into the street 18 Edw. IV., Easter, 19, pl. 4; Moore, pl. 917, p. 668 Cooke's case, Wm. Jones, 429; although it has been closed for the purpose of excluding him. Cowp. 1. But in a criminal case, a constable may break open an outer door to arrest one within suspected of felony. 13 Edw. IV., Easter, 4, p. 9. If the outer door or window be open, he may enter through it to execute a civil writ; Palin. 52; 5 Rep. 91; and, having entered, he may, in every case, if necessary, break open an inner door. 1 Brownl. 50.
6. - 2. The lord may enter to distrain, and go into the house for that purpose, the outer door being open. 5 Rep. 91.
7. - 3. The proprietors of goods or chattels may enter the land of another upon which they are placed, and remove them, provided they are there without his default; as where his tree has blown down into the adjoining close by the wind, or his fruit has fallen from a branch which overhung it. 20 Vin. Abr. 418.
8. - 4. If one man is bound to repair bridge, he has a right of entry given him by law for that purpose. Moore, 889.
9. - 5. A creditor has a right to enter the close of his debtor to demand the duty owing, though it is not to be rendered there. Cro. Eliz. 876.
10. - 6. If trees are excepted out of a demise, the lessor has the right of entering, to prune or fell them. Cro. Eliz. 17; 11. Rep. 53.
11. - 7. Every traveller has, by law, the privilege of entering a common inn, at all seasonable times, provided the host has sufficient accommodation, which, if he has not, it is for him to declare.
12.- 8. Ever man may throw down a public nuisance, and a private one may be thrown down by the party grieved, and this before an prejudice happens, but only from the probability that it may happen. 5 Rep, 102 and see 1 Brownl. 212; 12 Mod. 510 Wm. Jones, 221; 1 Str. 683. To this end, the abator has authority to enter the close in which it stands. See Nuisance.
13. - 9. An entry may be made on the land of another, to exercise or enjoy therein an incorporeal right or hereditament to which he is entitled. Hamm. N. P. 172. See general Bouv. Inst. Index, h. t.; 2 Greenl. Ev. §627; License.
ENTRY, commercial law. The act of setting down the particulars of a sale, or other transaction, in a merchant's or tradesman's accouut books; such entries are, in general, prima facie evidence of the sale and delivery, and of work, done; but unless the entry be the original one, it is not evidence. Vide Original entry.
ENTRY AD COMMUNE LEGEM, Eng. law. The name of a writ which lies in favor of the reversioner, when the tenant for term of life, tenant for term of another's life, tenant by the curtesy, or tenant in dower, aliens and dies. T. L.
ENTRY OF GOODS, commercial law. An entry of goods at the custom-house is the submitting to the officers appointed by law, who have the collection of the customs, goods imported. into the United States, together with a statement or description of such goods, and the original invoices of the same. The act of March 2, 1799, s. 36, 1 Story, L. U. S. 606, and the act of March 1, 1823, 3 Story, L. U. S. 1881, regulate the manner of making entries of goods.
ENTRY, WRIT OF. The name of a writ issued for the purpose of obtaining possession of land from one who has entered unlawfully, and continues in possession. This is a mere possessor action, and does not decide the right of property.
2. The writs of entry were commonly brought, where the tenant or possessor of the land entered lawfully; that is, without fraud or force; 13 Edw. I. c. 25; although sometimes they wer6 founded upon an entry made by wrong. The forms of these writs are very various, and are adapted to the, title and estate of the demandant. Booth enumerates and particularly discusses twelve varieties. Real Actions, pp. 175-200. In general they contain an averment of the manner in which the defendant entered. At the common law these actions could be brought only in the degrees, but the Statute of Marlbridge, c. 30; Rob. Dig. 147, cited as c. 29; gave a writ adapted to cases beyond the degrees, called a writ of entry in the post. Booth, 172, 173. The denomination of these writs by degrees, is derived from the circumstance that estates are supposed by the law to pass by degrees from one person to another, either by descent or purchase. Similar to this idea, or rather corresponding with it, are the gradations of consanguinity, indicated by the very common term pedigree. But in reference to the writs of entry, the degrees recognized were only two, and the writs were quaintly termed writs in the per, and writs in the per and cui. Examples of these writs are given in Booth on R. A. pp. 173, 174. The writ in the, per runs thus: " Command A, that be render unto B, one messuage, &c., into which he has not entry except (per) by &c. The writ in the per and cui contains another gradation in the transmission of the estate, and read thus: Command A, that he render, &c., one messuage, into which he hath not entry but (per) by C, (cui) to whom the aforesaid B demised it for a term of years, now expired," &c. 2 Institute, 153; Co. Litt. b, 239, a. Booth, however, makes three degrees, by accounting the estate in the per, the second degree. The difference is not substantial. If the estate had passed further, either by descent or conveyance, it was said to be out of the degrees, and to such cases the writ of entry on the. statute of Marlbridge, only, was applicable. 3 Bl. Com. 181, 182; Report of Com. to Revise Civil Code of Penna. January 15, 1835, p. 85. Vide Writ of entry.
TO ENURE. To take, or have effect or serve to the use, benefit, or advantage of a person. The word is often written inure. A release to the tenant for life, enures to him in reversion; that is, it has the same effect for him as for the tenant for life. A discharge of the principal enures to the benefit of the surety.
ENVOY, international law. In diplomatic language, an envoy is a minister of the second rank, on whom his sovereign or government has conferred a degree of dignity and respectability, which, without being on a level with an ambassador, immediately follows, and among ministers, yields the preeminence to him alone.
2. Envoys are either ordinary or extraordinary; by custom the latter is held in greater consideration. Vattel, liv. 4, c. 6, §72.
EPILEPSY, med. jur. A discase of the brain, which occurs in paroxysms, with uncertain intervals between them.
2. These paroxysms are characterized by the loss of sensation, and convulsive motions of the muscles. When long continued and violent, this disease is very apt to end in dementia. (q. v.) It gradually destroys the memory, and impairs the intellect, and is one of the causes of an unsound mind. 8 Ves. 87. Vide Dig. 50, 16, 123; Id. 21, 1, 4, 5.
EPISCOPACY, eccl. law. A form of government by diocesan bishops; the office or condition of a bishop.
EPISTLES, civil law. The name given to a species of rescript. Epistles were the answers given by the prince, when magistrates submitted to him a question of law. Vicle Rescripts.
EQUALITY. Possessing the same rights, and being liable to the same duties. See 1 Toull. No. l70, 193, Int.
2. Persons are all equal before the law, whatever adventitious advantages some may possess over others. All persons are protected by the law, and obedience to it is required from all.
3. Judges in court, while exercising their functions, are all upon an equality, it being a rule that inter pares non est potestas; a judge cannot, therefore, punish another judge of the same court for using any expression in court, although the words used might have been a contempt in any other person. Bac. Ab., Of the court of sessions, of justices of the peace.
4. In contracts the law presumes the parties act upon a perfect equality; when, therefore, one party uses any fraud or deceit to destroy this equality, the party grieved may avoid the contract. In case of a grant to two or more persons jointly, without designating what each takes, they are presumed to take in equal proportion. 4 Day, 395.
5. It is a maxim, that when the equity of the parties is equal, the law must prevail. 3 Call, R. 259. And that, as between different creditors, equality is equity. 4 Bouv. Inst. n. 3725; 1 Page, R. 181. See Kames on Eq. 75. Vide Deceit; Fraud.
EQUINOX. The name given to two periods of the year when the days and nights are equal; that is, when the space of time between the rising and setting of the sun is one half of a natural day. Dig. 43, 13, 1, 8. Vide Day.
EQUITABLE. That which is in conformity to the natural law. Wolff, Inst. §83.
EQUITABLE ESTATE. An equitable estate is a right or interest in land, which, not having the properties of a legal estate, but being merely a right of which courts of equity will take notice, requires the aid of such court to make it available.
2. These estates consist of uses, trusts, and powers. See 2 Bouv. Inst. n. 1884. Vide Cestui que trust; Cestui que use.
EQUITABLE MORTGAGE, Eng. law. The deposit of title-deeds, by the owner of an estate, with a person from whom he has borrowed money, with an accompanying agreement to execute a regular mortgage, or by the mere deposit, without even any verbal agreement respecting a regular security. 2 Pow. on Mort. 49 to 61; 1 Mad. Ch. Pr. 537; 4 Madd. R. 249; 1 Bro. C. C. 269; 12 Ves. 197; 3 Younge & J. 150; 1 Rus. R. 141.
2. In Pennsylvania, there is no such thing as an equitable mortgage. 3 P. S. R; 233; 3 Penna. R. 239; 17 S. & R. 70; 1 Penna. R. 447.
EQUITY. In the early history of the law, the sense affixed to this word was exceedingly vague and uncertain. This was owing, in part, to the fact, that the chancellors of those days were either statesmen or ecclesiastics, perhaps not very scrupulous in the exercise of power. It was then asserted that equity was bounded by no certain limits or rules, and that it was alone controlled by conscience and natural justice. 3 Bl. Com. 43-3, 440, 441.
2. In a moral sense, that is called equity which is founded, ex oequo et bono, in natural justice, in honesty, and in right. In an enlarged. legal view, "equity, in its true and genuine meaning, is the soul and spirit of the law; positive law is construed, and rational law is made by it. In this, equity is made synonymous with justice; in that, to the true and sound interpretation of the rule." 3 Bl. Com. 429. This equity is justly said to be a supplement to the laws; but it must be directed by science. The Roman law will furnish him with sure guides, and safe rules. In that code will be found, fully developed, the first principles and the most important consequences of natural right. "From the moment when principles of decision came to be acted upon in chancery," says Mr. Justice Story, "the Roman law furnished abundant materials to erect a superstructure, at once solid, convenient and lofty, adapted to human wants, and enriched by the aid of human wisdom, experience and learning." Com. on Eq. Jur. §23 Digest, 54.
3. But equity has a more restrained and qualified meaning. The remedies for the redress of wrongs, and for the enforcement of rights, are distinguished into two classes, first, those which are administered in courts of common law; and, secondly, those which are administered in courts of equity. Rights which are recognized and protected, and wrongs which are redressed by the former courts, are called legal rights and legal injuries. Rights which are recognized and protected, and wrongs which are redressed by the latter courts only, are called equitable rights and equitable injuries The former are said to be rights and wrongs at common law, and the remedies, therefore, are remedies at common law; the latter are said to be rights and wrongs in equity, and the remedies, therefore, are remedies in equity. Equity jurisprudence may, therefore, properly be said to be that portion of remedial justice which is exclusively administered by a court of equity, as contradistinguished from that remedial justice, which is exclusively administered by a court of law. Story, Eq. §25. Vide Chancery, and the authiorities there cited; and 3 Chit. Bl. Com. 425 n. 1. Dane's Ab . h. t.; Ayl. Pand. 37; Fonbl. Eq. b. 1, c. 1; Wooddes. Lect. 114 Bouv. Inst. Index, h. t.
EQUITY, COURT OF. A court of equity is one which administers justice, where there are no legal rights, or legal rights, but courts of law do not afford a complete, remedy, and where the complainant has also an equitable right. Vide Chancery.
EQUITY OF REDEMPTION. A right which the mortgagee of an estate has of redeeming it, after it has been forfeited at law by the non-payment at, the time appointed of the money secured by the mortgage to be paid, by paying the amount of the debt, interest and costs.
2. An equity of redemption is a mere creature of a court of equity, founded on this principle, that as a mortgage is a pledge for securing the repayraent of a sum of money to the mortgagee, it is but natural justice to consider the ownership of the land as still vested in the mortgagor, subject only to the legal title of the mortgagee, so far as such legal title is necessary to his security.
3. In Pennsylvania, however, redemption is a legal right. 11 Serg. & Rawle, 223.
4. The phrase equity of redemption is indiscriminately, though perhaps not correctly applied, to the right of the mortgagor to regain his estate, both before and after breach of condition, In North Carolina by statute the former is called a legal right of redemption; and the latter the equity of redemption, thereby keeping a just distinction between these estates. 1 N. C. Rev. St. 266; 4 McCord, 340.
5. Once a mortgage always a mortgage, is a universal rule in equity. The right of redemption is said to be as inseparable from a mortgage, as that of replevying from a distress, and every attempt to limit this right must fail. 2 Chan. Cas. 22; 1 Vern. 33, 190; 2 John. Ch. R. 30; 7 John. Ch. R. 40; 7 Cranch, R. 218; 2 Cowen, 324; 1 Yeates, R. 584; 2 Chan. R. 221; 2 Sumner, R. 487.
6. The right of redemption exists, not only in the mortgagor himself, but in his heirs, and personal representatives, and assignee, and in every other person who has an interest in, or a legal or equitable lien upon the lands; and therefore a tenant in dower, a jointress, a tenant by the curtesy, a remainder-man and a reversioner, a judgment creditor, and every other incumbrancer, unless he be an incumbrancer pendente lite, may redeem. 4 Kent, Com. 156; 5 Pick. R. 149; 9 John. R. 591, 611; 9 Mass. R. 422; 2 Litt. R. 334; 1 Pick. R. 485; 14 Wend. R. 233; 5 John. Ch. R. .482; 6 N. H. Rep. 25; 7 Vin. Ab. 52. Vide, generally, Cruise, Dig. tit. 15, c. 3; 4 Kent, Com. 148; Pow. on Mortg. eh. 10 and 11; 2 Black. Com. 158; 13 Vin. Ab. 458; 2 Supp. to Ves. Jr. 368; 2 Jac. & Walk. 194, n.; 1 Hill. Ab. c. 31; and article Stellionate.
EQUIVALENT. Of the same value. Sometimes a condition must be literally accomplished in forma specifica; but some may be fulfilled by an equivalent, per oequi polens, when such appears to be the intention of the parties; as, I promise to pay you one hundred dollars, and then die, my executor may fulfil my engagement; for it is equivalent to you whether the money be paid to you b me or by him. Roll. Ab. 451; 1 Bouv. Inst. n. 760.
EQUIVOCAL. What has a double sense.
2. In the construction of contracts, it is a general rule that when an expression may be taken in two senses, that shall be preferred which gives it effect. Vide Ambiguity; Construction; Interpretation; and Dig. 22, 1, 4; Id 45, 1, 80; Id. 50, 17, 67.
EQUULEUS. The name of a kind of rack for extorting confessions. Encyc. Lond.
ERASURE, contracts, evidence. The obliteration of a writing; it will render it void or not under the same circumstances as an interlineation. (q. v.) Vide 5 Pet. S. C. R. 560; 11 Co. 88; 4 Cruise, Dig. 368; 13 Vin. Ab. 41; Fitzg. 207; 5 Bing. R. 183; 3 C. & P. 65; 2 Wend. R. 555; 11 Conn. R. 531; 5 M. R. 190; 2 L. R. 291 3 L. R. 56; 4 L. R. 270.
2. Erasures and interlineations are presumed to have been made after the execution of a deed, unless the contrary be proved. 1 Dall. 67; 1 Pet. 169; 4 Bin. 1; 10 Serg. & R. 64, 170, 419; 16 Serg. & R. 44.
EREGIMUS. We have erected. In England, whenever the. right of creating or granting a new office is vested in the king, he must use proper words for the purpose, as eregimus, constituimus, and the like. Bac. Ab. Offices, &c., E.
EROTIC MANIA, med. jur. 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 hurries its victim to acts of the grossest licentiousness, in the absence of any lesion of the intellectual powers. Vide Mania.
ERROR. A mistake in judgment or deviation from the truth, in matters of fact and from the law in matters of judgment.
2. - 1 Error of fact. The law has wisely provide that a person shall be excused, if, intending to do a lawful act, and pursuing lawful means to accomplish his object, he commit an act which would be criminal or unlawful, if it were done with a criminal design or in an unlawful manner; for example, thieves break into my house, in the night time, to commit a burglary; I rise out of my bed, and seeing a person with a drawn sword running towards my wife, I take him for one of the burglars, and shoot him down, and afterwards find he was one of my friends, whom, owing to the dimness of the light, I could not recognize, who had lodged with me, rose on the first alarm, and was in fact running towards my wife, to rescue her from the hands of an assassin; still I am innocent, because I committed an error as to a fact, which I could not know, and had, no time to inquire about.
3. Again, a contract made under a clear error is not binding; as, if the seller and purchaser of a house situated in Now York, happen to be in Philadelphia, and, at the time of the sale, it was unknown to both parties that the house was burned down, there will be no valid contract; or if I sell you my horse Napoleon, which we both suppose to be in my stable, and at the time of the contract he is dead, the sale is void. 7 How. Miss. R. 371 3 Shepl. 45; 20 Wend. 174; 9 Shepl. 363 2 Brown, 27; 5 Conn. 71; 6 Mass. 84; 12 Mass. 36. See Sale.
4. Courts of equity will in general correct and rectify all errors in fact committed in making deeds and contracts founded on good considerations. See Mistake.
5. - 2. Error in law. As the law is, or which is the same thing, is presumed to be certain and definite, every man is bound to understand it, and an error of law will not, in general, excuse a man, for its violation.
6. A contract made under an error in law, is in general binding, for were it not so, error would be urged in almost every case. 2 East, 469; see 6 John. Ch. R. 166 8 Cowen, 195; 2 Jac. & Walk. 249; 1 Story, Eq. Jur. 156; 1 Younge & Coll. 232; 6 B. & C. 671 Bowy. Com. 135; 3 Sav. Dr. Rom. App. viii. But a foreign law will for this purpose be considered as a fact. 3 Shepl. 45; 9 Pick. 112; 2 Ev. Pothier, 369, &c. See, also, Ignorance; Marriage; Mistake.
7. By error, is also understood a mistake made in the trial of a cause, to correct which a writ of error may be sued out of a superior court.
ERROR, WRIT OF. A writ of error is one issued fro a superior to an inferior court, for the purpose of bringing up the record and correcting an alleged error committed in the trial in the court below. But it cannot deliver the body from prison. Bro. Abr. Acc. pl. 45. The judges to whom the writ is directed have no power to return the record nisi judicium inde redditum sit. Nor can it be brought except on the final judgment. See Metcalf's Case, 11 Co. Rep. 38, which is eminently instructive on this subject. Vide Writ of Error.
ESCAPE. An escape is tho deliverance of a person who is lawfully imprisoned, out of prison, before such a person is entitled to such deliverance by law. 5 Mass. 310.
2. It will be proper to consider, first, what is a lawful imprisonment; and, secondly, the different kinds of escapes.
3. When a man is imprisoned in a proper place under the process of a court having jurisdiction in the case, he is lawfully imprisoned, notwithstanding the proceedings may be irregular; but if the court has not jurisdiction the imprisonment is unlawful, whether the process be regular or otherwise. Bac. Ab. Escape. in civil cases, A 1; 13 John. 378; 5 John. 89; 1 Cowen, 309 8 Cowen, 192; 1 Root, R. 288.
4. Escapes are divided into voluntary and negligent; actual or constructive; civil and criminal and escapes on mesne process and execution.
5. - 1. A voluntary escape is the giving to a prisoner, voluntarily, any liberty not authorized by law. 5 Mass . 310; 2 Chipm. 11. Letting a prisoner confined under final process, out of prison for any, even the shortest time, is an escape, although he afterwards return; 2 Bl. Rep. 1048; 1 Roll. Ab. 806; and this may be, (as in the case of imprisonment under a ca. sa.) although an officer may accompany him. 3 Co. 44 a Plowd. 37; Hob. 202; 1 Bos. & Pull. 24 2 Bl. Rep. 1048.
6. The effect of a voluntary escape in a civil case, when the prisoner is confined under final process, is to discharge the debtor, so that he cannot be retaken by the sheriff; but he may be again arrested if he was confined only on mesne process. 2 T. R. 172; 2 Barn. & A. 56. And the plaintiff may retake the prisoner in either case. In a criminal case, on the contrary, the officer not only has a right to recapture his prisoner, but it is his duty to do so. 6 Hill, 344; Bac. Ab. Escape in civil cases, C.
7. - 2. A negligent escape 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.
8. The consequences of a negligent escape are not so favorable to the prisoner confined under final process, as they are when the escape is voluntary, because in this case, the prisoner is to blame. He may therefore be retaken.
9. - 3. The escape is actual, when the prisoner in fact gets out of prison and unlawfully regains his liberty.
10. - 4. A constructive escape takes place when the prisoner obtains more liberty than the law allows, although he still remains in confinement The following cases are examples of such escapes: When a man marries his prisoner. Plowd. 17; Bac. Ab. Escape, B 3. If an underkeeper be taken in execution, and delivered at the prison, and neither the sheriff nor any authorized person be there to receive him. 5 Mass. 310. And when the keeper of a prison made one of the prisoners confined for a debt a turnkey, and trusted him with the keys, it was held that this was a constructive escape. 2 Mason, 486.
11. Escapes in civil cases are, when the prisoner is charged in execution or on mesne process for a debt or duty, and not for a criminal offence, and he unlawfully gains his liberty. In this case, we have seen, the prisoner may be retaken, if the escape have not been voluntary; and that he may be retaken by the plaintiff when the escape has taken place without his fault, whether the defendant be confined in execution or not; and that the sheriff may retake the prisoner, who has been liberated by him, when he was not confined on final process.
12. Escapes in criminal cases take place when a person lawfully in prison, charged with a crime or under sentence, regains his liberty unlawfully. The prisoner being to blame for not submitting to the law, and in effecting his escape, may be retaken whether the escape was voluntary or not. And he may be indicted, fined and imprisoned for so escaping. See Prison.
13. Escape on mesne process is where the prisoner is not confined on final process, but on some other process issued in the course of the proceedings, and unlawfully obtains his liberty, such escape does not make the officer liable, provided that on the return day of the writ, the prisoner is forthcoming.
14. Escape on final process is when the prisoner obtains his liberty unlawfully while lawfully confined, and under an execution or other final decree. The officer is then, in general, liable to the plaintiff for the amount of the debt.
ESCAPE, WARRANT. A warrant issued in England against a person who being charged in custody in the king's bench or Fleet prison, in execution or mesne process, escapes and goes at large. Jacob's L. D. h. t.
ESCHEAT, title to lands. According to the English law, escheat denotes an obstruction of the course of descent, and a consequent determination of the tenure, by some unforeseen contingency; in which case the land naturally results back, by a kind of reversion, to the original grantor, or lord of the fee.. 2 Bl. Com. 244.
2. All escheats, under the English law, are declared to be strictly feudal, and to import the extinction of tenure. Wright on Ten. 115 to 117; 1 Wm. Bl. R. 123.
3. But as the feudal tenures do not exist in this country, there are no private persons who succeed to the inheritance by escheat. The state steps in, in the place of the feudal lord, by virtue of its sovereignty, as the original and ultimate proprietor of all the lands within its jurisdiction. 4 Kent, Com. 420. It seems to be the universal rule of civilized society, that when the-deceased owner has left no heirs, it should vest in the public, and be at the disposal of the government. Code, 10, 10, 1; Domat, Droit Pub. liv. 1, t. 6, s. 3, n. 1. Vide 10 Vin. Ab. 139; 1 Bro. Civ. Law, 250; 1 Swift's Dig. 156; 2 Tuck. Blacks. 244, 245, n.; 5 Binn. R. 375; 3 Dane's Ab. 140, sect. 24; Jones on Land Office Titles in Penna. 5, 6, 93. For the rules of the Roman Civil Law, see Code Justinian, book 10.
ESCHEATOR. The name of an officer whose duties are generally to ascertain what escheats have taken place, and to prosecute the claim of the commonwealth for the purpose of recovering the escheated property. Vide 10 Vin. Ab. 158.
ESCROW, conveyancing, contracts. A conditional delivery of a deed to a stranger, and not to the grantee himself, until certain conditions shall be performed, and then it is to be delivered to the grantee. Until the condition be performed and the deed delivered over, the estate does not pass, but remains in the grantor. 2 Johns. R. 248; Perk. 137, 138.
2. Generally, an escrow takes effect from the second delivery, and is to be considered as the deed of the party from that time; but this general rule does not apply when justice requires a resort to fiction. The relation back to the first delivery, so as to give the deed effect from that time, is allowed in cases of necessity, to avoid injury to the operation of the deed, from events happening between the first and second delivery. For example, when a feme sole makes a deed and delivers it as an escrow, and then marries before the second delivery, the relation back to the time when she was sole, is necessary to render the deed valid. Vide 2 Bl. Com. 307; 2 Bouv. Inst. n. 2024; 4 Kent, Com. 446; Cruise, Dig. t. 32, c. 2, s. 87 to 91; Com. Dig. Fait, A 3; 13 Vin. Ab. 29; 5 Mass. R. 60; 2 Root, R. 81; 5 Conn. R. 113; 1 Conn. R. 375; 6 Paige's R. 314; 2 Mass. R. 452; 10 Wend. R. 310; 4 Green]. R. 20; 2 N. H. Rep. 71; 2 Watts', R. 359; 13 John. R. 285; 4 Day's R. 66; 9 Mass. R. 310 1 John. Cas. 81; 6 Wend. R. 666; 2 Wash. R. 58; 8 Mass. R. 238; 4 Watts, R. 180; 9 Mass. Rep. 310; 2 Johns. Rep. 258-9; 13 Johns. Rep. 285; Cox, Dig. tit, Escrow; Prest. Shep. Touch. 56, 57, 58; Shep. Prec. 54, 56; 1 Prest. Abst. 275; 3 Prest. Ab. 65; 3 Rep. 35; 5 Rep. 84.
ESCUAGE, old Eng. law. Service of the shield. Tenants who hold their land by escuage, hold by knight's service. 1 Tho. Co. Litt. 272; Littl. s. 95, 86 b.
ESNECY. Eldership. In the English law, this word signifies the right which the eldest coparcener of lands has to choose one of the parts of the estate after it has been divided.
ESPLEES. The products which the land or ground yields; as the hay of the meadows, the herbage of the pasture, corn or other produce of the arable, rents and services. Termes de la Ley; see 11 Serg. & R. 2-5; Dane's Ab. Index, h. t.
ESPOUSALS, contracts. A mutual promise between a man and a woman to marry each other, at some other time: it differs from a marriage, because then the contract is completed. Wood's Inst. 57; vide Dig. 23, 1, 1; Code, 5, 1, 4; Novel, 115, c. 3, s. 11; Ayliffe's Parerg. 245 Aso & Man. Inst. B. 1, t. 6, c. 1, §1.
ESQUIRE. A title applied by courtesy to officers of almost every description, to members of the bar, and others. No one is entitled to it by law, and, therefore, it confers, no distinction in law.
2. In England, it is a title next above that of a gentleman, and below a knight. Camden reckons up four kinds of esquires, particularly regarded by the heralds: 1. The eldest sons of knights and their eldest sons, in perpetual succession. 2. The eldest sons of the younger sons of peers, and their eldest sons in like perpetual succession. 3. Esquires created by the king's letters patent, or other investiture, and their eldest sons. 4. Esquires by virtue of their office, as justices of the peace, and others who bear any office of trust under the crown.
ESSOIN, practice. An excuse which a party bound to be in court on a particular day, offers for not being there. 1 Sell. Pr. 4; Lee's Dict. h. t.
2. Essoin day is the day on which the writ is returnable. It is considered for many purposes as the first day of the term. 1 T. R. 183. See 2 T. R. 16 n.; 4 Moore's R. 425. Vide Exoine.
ESTABLISH. This word occurs frequently in the Constitution of the United $tates, and it is there used in different meanings. 1. To settle firmly, to fix unalterably; as, to establish justice, which is the avowed object of the constitution. 2. To make or form as, to establish an uniform rule of naturalization, 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 create, to regulate; as, congress shall have power 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 create, to ratify, or confirm; as, we, the people, &c., do ordain and establish this constitution, 1 Story, Const. §454.
ESTADAL, Spanish law. In Spanish America, this was a measure of land of sixteen square varas or yards. 2 White's Coll. 139.
ESTATE. This word his several meanings: 1. In its most extensive sense, it is applied to signify every thing of which riches or, fortune may consist and includes personal and real property; hence we say personal estate, real estate. 8 Ves. 504. 2. In its more limited sense, the word estate is applied to lands, It is so applied in two senses. The first describes or points out the land itself, without ascertaining the extent or nature of the interest therein; as "my estate at A." The second, which is the proper and technical meaning of estate, is the degree, quantity, nature and extent of interest which one has in real property; as, an estate in fee, whether the same be a fee simple or fee tail; or an estate for life or for years, &c. Lord Coke says: Estate signifies such inheritance, freehold, term of years, tenancy by statute merchant, staple, eligit, or the like, as any man hath in lands or tenements, &c. Co. Lit. §650, 345 a. See Jones on Land Office Titles in Penna. 165-170.
2. In Latin, it is called status, because it signifies the condition or circumstances in which the owner stands with regard to his property..
3. Estates in land may be considered in a fourfold view with regard, 1. To the quantity of interest which the tenant has in the tenement. 2. To the time during which that quantity of interest is to be enjoyed. 3. To the number and connexion of the tenants. 4. To what conditions may be annexed to the estate.
4. - 1. The quantity of interest which the tenant has in his tenement is measured by its duration and extent. An estate, considered in this point of view, is said to be an estate of freehold, and an estate less than freehold.
5.- §1. Freehold estates are of inheritance and not of inheritance. An estate in fee, (q. v.) which is the estate most common in this country, is a freehold estate of inheritance. Estates of freehold not of inheritance, are the following:
6. - 1st. Estates for life. An estate for life is a freehold interest in lands, the duration of which is confined to the life or lives of some particular person or persons, or to the happening or not happening of some uncertain event.
7. Estates for life are divided into conventional or legal estates. The first created by the act of the parties, and the second by operation of law.
8. - 1. Life estates may be created by express words; as, if A conveys land to B, for the term of his natural life; or they may arise by construction of law, as, if A conveys land to B, without specifying the term or duration, and without words of limitation. In the last case, B cannot have an estate in fee, according to. the English law, and according to the law of those parts of the United States which have adopted and not altered the common law in this particular, but he will take the largest estate which can possibly arise from the grant, and that is an estate for life. Co. Litt. 42, a. So a conveyance " to I M, and his generation, to endure as long as the waters of the Delaware should run," passes no more than a life estate. 3 Wash. C. C. Rep. 498. The life estate may be either for a man's own life, or for the life of another person, and in this last case it is termed an estate per autre vie. There are some estates for life, which may depend upon future contingencies, before the death of the person to whom they are granted; for example, an estate given to a woman dum sola fuerit, or durante viduitate, or to a man and woman during coverture, or as long as the grantee shall dwell in a particular house, is determinable upon the happening of the event. In the same manner, a house usually worth one hundred dollars a year, may be granted to a person still he shall have received one thousand dollars; this will be an estate for life, for as the profits are uncertain, and may rise or fall, no precise time can be fixed for the determination of the estate. On the contrary, where the time is fixed, although it may extend far beyond any life, as a terw for five hundred years, this does not create a life estate.
9. - 2. The estates for life created by operation of law, are, 1st. Estates tail after possibility of issue extinct. 2d. Estates by the curtesy. 3d. Dower. 4th. Jointure. Vide Cruise. Dig. tit. 3; 4 Kent, Com. 23; 1 Brown's Civ. Law, 191; 2 Bl. Com. 103. The estate for life is somewhat similar to the usufruct (q. v.) of the civil law.
10. The incidents to an estate for life, are principally the following: 1. Every tenant for life, unless restrained by covenant or agreement, may of common right take upon the land demised to him reasonable estovers or bote's. Co. Litt. 41.
11. - 2. The tenant for life, or his representatives, shall not be pre-judiced by any sudden determination of his estate, because such determination is contingent or uncertain. Co. Litt. 55.
12. - 3. Under tenants or lessees of an estate for life, have the same, and even greater indulgences than the lessors, the original tenants for life; for when the tenant for life shall not have the emblements, because the estate determines by his own act, the exception shall not reach his lessee, who is a third person. l Roll. Ab. 727 2 Bl. Com. 122.
13. - 2d. Estates by the curtesy. An estate by the curtesy is an estate for life, created by act of law, which is defined as follows: When a man marries a woman, seised at any time during the coverture of an estate of inheritance, in severalty, in coparcenary, or in common, and has issue by her born alive, and which migbt by possibility inherit the same estate as heir to the wife, and the wife dies in the lifetime of the hushand, he holds the lands during, his life by the curtesy of England, and it is immaterial whether the issue be living at the time of the seisin, or at the death of the wife, or whether it was born before or after the seisin. Litt. s. 35; Co. Litt. 29, b; 8 Co. 34. By Act of Asserably of Pennsylvania, the birth of issue is not necessary, in all cases where the issue, if any, would have inherited.
14. There are four requisites indispensably necessary to the existence of this estate: 1. Marriage. 2. Seisin of the wife, which must have been seisin in deed, and not merely seisin in law; it seems, however, that the rigid rules of the common law, have been relayed, in this respect, as to what is sometimes called waste or wild lands. 1 Pet. 505. 3. Issue. 4. Death of the wife.
15. - 1. The marriage must be a lawful marriage; for a void marriage does not entitle the hushand to the curtesy; as if a married man were to marry a second wife, the first being alive, he would not be entitled to the curtesy in such second wife's estate. But if the marriage had been merely voidable, he would be entitled, because no marriage, merely voidable, can be annulled after the death of the parties. Cruise, Dig. tit. 5, c. 1, s. 6.
16. - 2. The seisin of the wife must, according to the English law, be a seisin in deed; but this strict rule has been somewhat qualified by circumstances in this country. Where the wife is owner of wild uncultivated land, not held adversely, she is considered as seised in fact, and the hushand is entitled to his curtesy. 8 John. 262 8 Cranch, 249; 1 Pet. 503 1 Munf. 162 1 Stow. 590. When the wife's state is in reversion or remainder, the hushand is not, in general, entitled to the curtesy, unless the particular estate is elided during coverture. Perk. s. 457, 464; Co. Litt. 20, a; 3 Dev. R. 270; 1 Sumn. 263; but see 3 Atk. 469; 7 Viner, Ab. 149, pl. 11. The wife's seisin must have been such as to enable her to inherit. 5 Cowen, 74.
17. - 3. The issue of the marriage, to entitle the hushand to the curtesy, must possess the following qualifications: 1. Be born alive. 2. In the lifetime of the mother. 3. Be capable of inheriting the estate.
18. - 1st. The issue must be born alive. As to what will be considered life, see Birth; Death; Life.
19. - 2d. The issue must be born in the lifetime of the mother; and if the child be born after the death of the mother, by the performance of the Caesarian operation, the hushand will not be entitled to the curtesy; as there was no issue born at the instant of the wife's death, the estate vests immediately on the wife's death to the child, in ventre sa mere, and the estate being once vested, it cannot be taken from him. Co. Litt. 29, b.; 8 Co. Rep., 35, a. It is immaterial whether the issue be born before or after the seisin of the wife. 8 Co. Rep. 35, b.
20. - 3d. The issue must be capable of inheriting the estate; When, for example, lands are given to a woman and the heirs male of her body, and she has a daughter, this issue will not enable lier hushand to take his curtesy. Co. Litt. 29, a.
21. - 4th. The death of the wife is requisite to make the estate by the curtesy complete.
22. This estate is generally prevalent in the United States; in some of them it has received a modification. In Pennsylvania the right of the hushand takes place although there be no issue of the marriage, in all cases where the issue, if any, would have inherited. In Vermont, the title by curtesy has been laid under the equitable restriction of existing only in the event that the children of the wife entitled to inherit, died within age and without children in South Carolina, tenancy by the curtesy, eo nomine, has ceased by the provisions of an act passed in 1791, relative to the distribution of intestates estates, which gives to the hushand surviving his wife, the same share of her real estate, as she would have taken out of his, if left a widow, and that is one moiety, or one-third of it in fee, according to circumstances. In Georgia, tenancy by the curtesy does not exist, because, since 1785, all marriages vest the real, equally with the personal estate, in the hushand. 4 Kent, Com. 29. In Louisiana, where the common Iaw has not been adopted in this respect, this estate is unknown.
23. This estate is not peculiar to the English law, as Littleton erroneously supposes; Litt. s. 35; for it is. to be found, with some modifications, in the ancient laws of Scotland, Ireland, Normandy and Germany. In France there were several customs, which gave a somewhat similar estate to the surviving hushand, out of the wife's inheritances. Merlin, Repert. mots Linotte, et Quarte de Conjoint pauvre.
24. - 3d. Estate in dower. Dower is an estate for life which the law gives the widow in the third part of the lands and tenements, or hereditaments of which the hushand was solely seised, at any time during the coverture, of an estate in fee or in tail, in possession, and to which estate in the lands and tenements the issue, if any of such widow, might, by possibility, have inherited. In Pennsylvania, the sole seisin of the. hushand is not necessary. Watk. Prin. Con. 38; Lit. §36; Act of Penna. March 31, 1812.
25. To create a title to the dower, three things are indispensably requisite: 1. Marriage. This must be a marriage not absolutely void, and existing at the death of the hushand; a wife de facto, whose marriage is voidable by decree, as well as a wife de jure, is entitled to it; and the wife shall be endowed, though the marriage be within the age of consent, and the hushand dies within that age. Co. Litt. 33, a; 7 Co. 42; Doct. & Stud. 22; Cruise, Dig. t. 6, c. 2, s, 2, et seq.
26. - 2. Seisin. The hushand must have been seised, some time during the coverture, of the estate of which the wife is dowable. Co. Litt. 31, a. An actual seisin is not indispensable, a seisin in law is sufficient. As to the effect of a transitory seisin, see 4 Kent, Com. 38; 2 Bl. Com. 132; Co. Litt. 31, a.
27. - 3. Death of the hushand. This must be a natural death; though there are authorities which declare that a civil death shall have the same effect. Cruise, Dig. tit. 6, ch. 2, §22. Vide, generally, 8 Vin. Ab. 210; Bac. Ab. Dower; Com. Dig. Dower; Id. App. tit. Dower; 1 Supp. to. Ves. jr. 173, 189; 2 Id. 49; 1 Vern. R. by Raithby, 218, n. 358, n.; 1 Salk. R. 291; 2 Ves. jr. 572; 5 Ves. 130; Arch. Civ. Pl. 469; 2 Sell. Pr. 200; 4 Kent, Com. 35; Amer. Dig. h. t.; Pothier, Traite du Douaire; 1 Swift's Dig. 85; Perk. 300, et seq.
28. - 4th. Estate tail after possibility of issue extinct. By this awkward, but perhaps necessary periphrasis, justified by Sir William Blackstone, 2 Com. 124, is meant the estate which is thus described by Littleton, §32 when tenements are given to a man and his wife in special tail, if one of them die without issue, the survivor is tenant in tail after possibility of issue extinct."
29. This estate though, strictly speaking, not more than an estate for life, partakes in some circumstances of the nature of an estate tail. For a tenant in tail after possibility of issue extinct, has eight qualities or privileges in common with a tenant in tail. 1. He is dispunishable for waste. 2. He is not compellable to attorn. 3. He shall not have aid of the person in reversion. 4. Upon his alienation no writ of entry in consimili casu lies. 5. After his death, no writ of intrusion lies. 6. He may join the mise in a writ of right in a special manner. 7. In a praecipe brought by him he shall not name himself tenant for life. 8. In a praecipe brought against him, he shall not be named barely tenant for life.
30. There are, however, four qualities annexed to this estate, which prove it to be, in fact, only an estate for life. 1. If this tenant makes a feoffment in fee, it is a forfeiture. 2. If an estate tail or in fee descends upon him, the estate tail after possibility of issue extinct is merged. 3. If he is impleaded and makes default, the person in reversion shall be received, as upon default of any other tenant for life. 4. An exchange between this tenant and a bare tenant for life, is good; for, with respect to duration, their. estates are equal. Cruise, Dig. tit. 4; Tho. Co. Litt. B. 2, c. 17; Co. Lit. 28, a.
31. Nothing but absolute impossibility of having issue, can give rise to this estate. Thus if a person gives lands to a man and his, wife, and to the heirs of their two bodies, and they live to a hundred years, without having issue, yet they are tenants in tail; for the law' sees no impossibility of their having issue, until the death of one of them. Co. Litt. 28, a. See Tenant in tail after possibility of issue extinct.
32. - §2. An estate less than freehold is an estate which is not in fee, nor for life; for although a man has a lease for a thousand years, which is much longer than any life, yet it is not a freehold, but a mere estate for years, which is a chattel interest. Estates less than freehold are estates for years, estates at will, and estates at sufferance.
33. - 1. An estate for years, is one which is created by a leas; for years, which is a contract for the posspssion and profits of land for a determinate period, with the recompense of rent; and it is deemed an estate for years, though the number of years should exceed the ordinary limits of human life; and it is deemed an estate for years though it be limited to less than a single year. It is denominated a term, because its duration is absolutely defined.
34. An estate for life is bigher than an estate for years, though the latter should be for a thousand years. Co. Litt. 46, a; 2 Kent, Com. 278; 1 Brown's Civ. Law, 191; 4 Kent, Com. 85; Cruise's Dig. tit. 8; 4 Rawle's R. 126; 8 Serg. & Rawle, 459; 13 Id. 60; 10 Vin. Ab. 295, 318 to 325.
35. - 3. An estate at will is not bounded by any definite limits with respect to time; but as it originated in mutual agreement, so it depends upon the concurrence of both parties. As it depends upon the will of both, the dissent of either may determine it. Such an estate or interest cannot, consequently, be the subject of conveyance to a stranger, or of transmission to representatives. Watk. Prin. Con. 1; Litt. §68.
36. Estates at will have become infrequent under the operation of judicial decisions. Where no certain term is agreed on, they are now construed to be tenancies from year to year, and each party is bound to give reasonable notice of an intention to terminate the estate. When the tenant holds over by consent given, either expressly or by implication, after the determination of a lease for years, it is held evidence of a new contract, without any definite period, and is construed. to. be a tenancy from year to year. 4 Kent, Com. 210; Cruise, Dig. tit. 9, c . 1.
37.-3. An estate at sufferance. The session of land by lawful title, but holds over by wrong after the determination of his interest. Co. Litt. 57, b. He has a bare naked possession, but no estate which he can transfer or transmit, or which is capable of enlargement by. release, for he stands in no privity to his landlord.
38. There is a material distinction between the case of a person coming to an estate by act of the party, and afterwards holding over, and by act of the law and then holding over. In the first case, he is regarded as a tenant at sufferauce; and in the other, as an intruder, abator, and trespasser. Co. Litt. 57, b; 2 Inst. 134 Cruise, Dig. t. 9, c. 2 4 Kent, Com. 115 13 Serg. & Rawle, 60 8 Serg. & Rawle, 459; 4 Rawle, 459; 4 Rawle's R. 126.
39. - II. As to the time of their enjoyment, estates are considered either in possession, (q. v.) or expectancy. (q. v.) The latter are either remainders, (q. v.) which are created, by the act of the parties, and these are vested or contingent, or reversions, (q, v.) created by act of law.
40. - III. An estate way be holden in a variety of ways the most common of which are, 1. In severalty. 2. In joint tenancy. 3. In common. 4. In coparcenary. These will be separately considered.
41. - 1. dn estate in severally, is where only one tenant holds the estate in his own right, without any other person being joined or connected with him, in point-of interest, during the continuance of his estate.
42. - 2. dn estate in joint tenancy, is where lands or tenements are granted to two or more persons, to hold in fee simple, fee tail, for life, for years, or at will. 2 Bl. Com. 179. Joint tenants always take by purchase, and necessarily have equal shares; while tenants in common, also coparceners, claiming under ancestors in different degrees, may have unequal shares and the proper and best mode of creating an estate in joint tenancy, is to limit to A B and C D, and their assigns, if it be an estate for life; or to A B and C D, and their heirs, if in) fee. Watk. Prin. Con. 86.
43. The creation of the estate depends upon the expression in the deed or devise, by which the tenants hold, for it must be created by the acts of the parties, and does not result from the operation of law. Thus, an estate given to a number of persons, without any restriction or explanation, will be construed a joint tenancy; for every part of the grant can take effect only, by considering the estate equal in all, and the union of their names gives them a name in every respect.
44. The properties of this estate arise from its unities; these are, 1. Unity of title; the estate must have been created and derived from one and the same conveyance. 2. There must be a unity of time; the estate must be created and vested at the same period. 3. There must be a unity of interest; the estate must be for the same duration, and for the same quantity of interest. 4. There must be a unity of possession; all the tenants must possess and enjoy at the same time, for each must have an entire possession of every parcel, as of the whole. One has not possession of one-half, and another of the other half, but each has an undivided moiety of the whole, and not the whole of an undivided moiety.
45. The distinguishing incident of this estate, is the right of survivorship, or jus accrescendi; at common law, the entire tenancy or estate, upon the death of any of the joint tenants, went to the survivors, and so on to the last survivor, who took an estate of inheritance. The right of survivorship, except, perhaps, in estates held in trust, is abolished in Pennsylvania, New York, Virginia, Kentucky, Indiana, Missouri, Tennessee, North and-South Carolina, Georgia, and Alabama. Griffith's Register, h. t. In Connecticut it never was recognized. 1 Root, Rep. 48; 1 Swift's Digest, 102. Joint tenancy may be destroyed by destroying any of its constituent unities, except that of time. 4 Kent, Com. 359. Vide Cruise, Dig. tit. 18; 1 Swift's Dig. 102; 14 Vin. Ab. 470; Bac. Ab. Joint Tenants, &c.; 3 Saund. 319, n. 4; 1 Vern. 353,; Com. Dig. Estates by Grant, K 1; 4 Kent, Com. 353; 2 Bl. Com. 181; 1 Litt. see. 304 2 Woodd. Lect. 127; 2 Preston on Abst. 67; 5 Binn. Rep . 18; Joint tenant; Survivor; Entirety.
46. - 3. An estate in common, is one which is held by two or more persons by unity of possession.
47. They may acquire their estate by purchase, and hold by several and distinct titles, or by title derived at the same time, by the same deed or will; or by descent. In this respect the American law differs from the English common law.
48. This tenancy, according to the common law, is created by deed or will, or by change of title from joint tenancy or coparcenary; or it arises, in many cases, by construction of law. Litt. sec. 292, 294, 298, 302; 2 Bl. Com. 192; 2 Prest. on Abstr. 75.
49. In this country it maybe created by descent, as well as by deed or will. 4 Kent, Com. 363. Vide Cruise, Dig. tit. 20 Com. Dig. Estates by Grant, K 8.
50. Estates in common can be dissolved in two ways only; first, by uniting all the titles and interests in one tenant secondly, by making partition.
51. - 4. An estate in coparcenary, is an estate of inheritance in lands which descend from the ancestor to two or more persons who are called coparceners or parceners.
52. This is usually applied, in England, to cases where lands descend to females, when there are no male heirs.
53. As in the several states, estates generally descend to all the children equally, there is no substantial difference between coparceners and tenants in common. The title inherited by more persons than one, is, in some of the states, expressly declared to be a tenancy in common, as in New York and New Jersey, and where it is not so declared the effect is the same; the technical distinction between coparcenary and estates in common may be considered as essentially extinguished in the United States. 4 Kent, Com. 363. Vide Estates.
54. - IV. An estate upon condition is one which has a qualification annexed to it by which it may, upon the happening or not happening of a particular event, be created, or enlarged, or destroyed. Conditions may be annexed to estates in fee, for life, or for years. These estates are divided into estates upon condition express, or in deed; and upon conditions implied, or in law.
55. Estates upon express conditions are particularly mentioned 'in the contract between the parties., Litt. s. 225; 4 Kent, Com. 117; Cruise, Dig. tit. 13.
56. Estates upon condition in law are such as have a condition impliedly annexed to them, without any condition being specified in the deed or will. Litt. s. 378, 380; Co. Litt. 215, b; 233, b; 234, b.
57. Considered as to the title which may be had in them, estates are legal and equitable. 1. A legal estate is one, the right to which can be enforced in a court of law. 2. An equitable, is a right or interest in land, which not having the properties of a legal estate, but being merely a right of which courts of equity will take notice, require the aid of such a court to, make it available. See, generally, Bouv. Inst. Index, h. t.
ESTER EN JUGEMENT, French law. Stare in judicio. To appear before a tribunal either as plaintiff or defendant.
ESTIMATION
OF VALUES. As the value of most things is variable, according to
circumstances, the law in many cases determines the time at which the value of
a thing should be taken; thus, the value of an advancement, is to be taken at
the time of the gift. 1 Serg. & R. 425. Of a gift in frank-marriage, at the
time of partition between the parceners, and the bringing of the gift in
frank-marriage into hotchpot. But this is a case sui generis.
ESTOPPEL, pleading. An estoppel is a preclusion, in law, which prevents a man from alleging or denying a fact, in consequence o his own previous act, allegation or denial of a contrary tenor. Stepb. Pl. 239. Lord Coke says, " an estoppel is, when a man is concluded by his own act or acceptance, to say the truth." Co. Litt. 352, a. And Blackstone defines "an estoppel to be a special plea in bar, which happens where a man has done some act, or executed some deed, which estops or precludes him from averring any thing to the contrary. 3 Cora. 308. Estoppels are odious in law; 1 Serg. & R. 444; they are not admitted in equity against the truth. Id. 442. Nor can jurors be estopped from saying the truth, because they are sworn to do so, although they are estopped from finding against the admission of the parties in their pleadings. 2 Rep. 4; Salk. 276; B. N. P. 298; 2 Barn. & Ald. 662; Angel on Water Courses, 228-9. See Co. Litt. 352, a, b, 351, a. notes.
2. An estoppel may, arise either from matter of record; from the deed of the party; or from matter in Pays; that is, matter of fact.
3. Thus, any confession or admission made in pleading, in a court of record, whether it be express, or implied from pleading over without a traverse, will forever preclude the party from afterwards contesting the same fact in any subsequent suit with his adversary. Com. Dig. Estoppel, A 1. This is an estoppel by matter of record.
4. As an instance of an estoppel by deed, may be mentioned the case of a bond reciting a certain fact. The party executing that bond, will be precluded from afterwards denying in any action brought upon that instrument, the fact , so recited. 5 Barn. & Ald. 682.
5. An example of an estoppel by matter in pays occurs when one man Las accepted rent of another. He will be estopped from afterwards. denying, in any action, with that person, that he was, at the time of such acceptance, his tenant. Com. Dig. Estoppel, A 3 Co. Litt. 352, a.
6. This doctrine of law gives rise to a kind of pleading that is neither by way of traverse, nor confession. and avoidance: viz. a pleading, that, waiving any question of fact, relies merely on the estoppel, and, after stating the previous act, allegation, or denial, of the opposite party, prays judgment, if he shall be received or admitted to aver contrary to what he before did or said. This pleading is called pleading by way of estoppel. Steph. 240a
7. Every estoppel ought to be reciprocal, that is, to bind both parties: and this is the reason that regularly a stranger shall neither take advantage or be bound by an estoppel. It should be directly affirmative, and not by inference nor against an estoppel. Co. Lit. 352, a, b; 1 R. 442-3; 9 Serg. & R. 371, 430; 4 Yeates' 38 1 Serg. & R. 444; Corn. Dig. Estoppel, C 3 Johns. Cas. 101; 2 Johns. R. 382; 8 W. & S. 135; 2 Murph. 67; 4 Mont. 370. Privies in blood, privies in estate, and privies in law, are bound by, and may take advantage of estoppels. Co. Litt. 352; 2 Serg. & Rawle, 509; 6 Day, R. 88. See the following cases relating to estoppels by; Matter of record: 4 Mass. R. 625; 10 Mass. R. 155; Munf. R. 466; 3 East, R. 354; 2 Barn. & Ald. 362, 971; 17 Mass. R. 365; Gilm. R. 235; 5 Esp. R. 58; 1 Show. 47; 3 East, R. 346. Matter of writing: 12 Johns. R. 347; 5 Mass. R. 395; Id. 286; 6 Mass. R. 421; 3 John. Cas. 174; 5 John. R. 489; 2 Caines' R. 320; 3 Johns. R. 331; 14 Johns. R. 193; Id. 224; 17 Johns. R. 161; Willes, R. 9, 25; 6 Binn. R. 59; 1 Call, R. 429; 6 Munf. R. 120; 1 Esp. R. 89; Id. 159; Id. 217; 1 Mass. R. 219. Matter in pays: 4 Mass. R. 181; Id. 273 15 Mass. R. 18; 2 Bl. R. 1259; 1 T. R. 760, n.; 3 T. R. 14; 6 T. R. 62; 4 Munf. 124; 6 Esp. R. 20; 2 Ves. 236; 2 Camp. R. 844; 1 Stark. R. 192. And see, in general, 10 Vin. Abr. 420, tit. Estoppel; Bac. Abr. Pleas, 111; Com. Dig. Estoppel; Id. Pleader, S 5; Arch. Civ. Pl. 218; Doct. Pl. 255; Stark. Ev. pt. 2, p. 206, 302; pt. 4, p. 30; 2 Smith's Lead. Cas. 417-460. Vide Term.
ESTOVERS, estates. The right of taking necessary wood for the use or furniture of a house or farm, from off another's estate. The word bote is used synonymously with the word estovers. 2 Bl. Com. 35; Dane's Ab. Index, h. t.; Woodf. L. & T. 232; 10 Wend. 639; 2 Bouv. Inst. n. 1652 57.
ESTRAYS. Cattle whose owner is unknown.
2. In the United States, generally, it is presumed by local regulations, they are subject to, being sold for the benefit of the poor, of some other public use, of the place where found.
ESTREAT. This term is used to signify a true copy or note of some original writing or record, and specially of flues and amercements imposed by a court, and extracted from the record, and certified to a proper officer or officers authorized and required to collect them. Vide F. N. B. 57, 76.
ESTREPE. This word is derived from the French, estropier, to cripple. It signifies an injury to lands, to the damage of another, as a reversioner. This is prevented by a writ of estrepemeut.
ESTREPEMENT. The name of a writ which lay at common law to prevent a party in possession from committing waste on an estate, the title to which is disputed, after judgment obtained in any real action, and before possession was delivered by the sheriff.
2. But as waste might be committed in some cases, pending the suit, the statute of Gloucester gave another writ of estrepement pendente placito, commanding the sheriff 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 may use sufficient force for the purpose. 3 Bl. Com. 225, 226.
3. 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 defendant's coming in, the plaintiff declares against him. The defendant usually pleads "that he has done no waste contrary to the prohibition 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 Co. Inst. 329; Rast. Ent. 317; Brev. Judic. 88; More's Rep. 100; 1 Bos. & Pull. 121; 2 Lilly's Reg. tit. Estrepement; 5 Rep. 119; Reg. Brev. 76, 77.
4. In Pennsylvania, by legislative 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 continuance or after the expiration of such demise, 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. &c., 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 inquisition, or which may be subject to be sold by a writ of venditioni exponas or levari facias. Vide 10 Vin. Ab. 497; Woodf. Landl. & Ten, 447; Archb. Civ. Pl. 17; 7 Com. Dig. 659.
ET CETERA. A Latin phrase, which has been adopted into English; it signifies. "and the others, and so of the rest," it is commonly abbreviated, &c.
2. Formerly the pleader was required to be very particular in making his defence. (q. v.) B making full defence, he impliedly admitted the jurisdiction of the court, and the competency of the plaintiff to sue; and half defence was used when the defendant intended to plead to the jurisdictions or disability. To prevent the inconveniences which might arise by pleading full or half defence, it became the practice to plead in the following form: " And the said C D, by E F, his attorney, comes and defends the wrong and injury, when, &c., and says," which was either full or half defence. 2 Saund. 209, c.; Steph. Pl. 432; 2 Chit. Pl. 455.
3. In practice, the &c. is used to supply the place of words which have been omitted. In taking recognizance, for example, it is usual to make an entry on the docket of the clerk of the court, as follows: A B, tent, &c., in the sum of $1000, to answer, &c. 6 S. & R. 427.
ET NON. And not. These words are sometimes employed in pleading to convey a pointed denial. They have the same effect as without this, absque hoe. 3 Bouv. Inst. n. 2981, note.
EUNDO MORANDO, ET REDEUNDO. This Latin phrase signifies going, remaining, 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 order to give him that freedom necessary to the performance of his respective obligations, to signify that he is protected from arrest eundo, morando et redeundo. See 3 Bouv. Inst. n. 3380.
EUNOMY. Equal laws, and a well adjusted constitution of government.
EUNUCH. A male whose organs of generation have been so far removed or disorganized, that he is rendered incapable of reproducing his species. Domat, Lois Civ. liv. prel. tit. 2, s. 1, n. 10.
EVASION. A subtle 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 becomes himself the aggressor in such a case. Wishard, 1 H. P . C. 81 Hawk. P. C. c. 31, §24, 25; Bac. Ab. Fraud, A.
2. An escape from custody.
EVICTION. The loss or deprivation which the possessor of a thing suffers, either in whole or in part, of his right of property in such a thing, in consequence of the right of a third person established before a compenent tribunal. 10 Rep. 128; 4 Kent, Com. 475-7; 3 Id. 464-5.
2. The eviction may be total or partial. It is total, when the possessor is wholly deprived of his rights in the whole thing; partial, when he is deprived of only a portion of the thing; as, if he had fifty acres of land, and a third person recovers by a better title twenty-five; or, of some right in relation to the thing. as, if a stranger should claim and establish a right to some easement over the same. When the grantee suffers a total eviction, and he has a covenant of seisin, he recovers from the seller, the consideration money, with interest and costs, and no more. The grantor has no concern with the future rise or fall of the property, nor with the improvements made by the purchaser. This seems to be the general rule in the United States. 3 Caines' R. 111; 4 John. R. 1; 13 Johns. R. 50; 4 Dall. R. 441; Cooke's Term. R. 447; 1 Harr. & Munf. 202; 5 Munf. R. 415; 4 Halst. R. 139; 2 Bibb, R. 272. In Massachusetts, the measure of damages on a covenant of warranty, is the value of the land at the time of eviction. 3 Mass. R. 523; 4 Mass. R. 108. See, as to other states, 1 Bay, R. 19, 265; 3 Des. Eq. R. 245; 2 Const. R. 584; 2 McCord's R. 413; 3 Call's R. 326.
3. When the eviction is only partial the damages to be recovered under the covenant of seisin, are a rateable part of the original price, and they are to bear the same ratio to the whole consideration, that the value of land to which the title has failed, bears to the value of the whole tract. The contract is not rescinded, so as to entitle the vendee to the whole consideration money, but only to the amount of the relative value of the part lost. 5 Johns. R. 49; 12 Johns. R. 126; Civ. Code of Lo. 2490; 4 Kent's Com. 462. Vide 6 Bac. Ab. 44; 1 Saund. R. 204: note 2, and 322 a, note 2; 1 Bouv. Inst. n. 656.
EVIDENCE. That which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue; 3 Bl. Com. 367; or it is whatever is exhibited to a court or jury, whether it be by matter of record, or writing, or by the testimony of witnesses, in order to enable them to pronounce with certainty; concerning the truth of any matter in dispute; Bac. Ab. Evidence, in pr.; or it is that which is legally submitted to a jury, to enable them to decide upon the questions in dispute or issue, as pointed out by the pleadings and distinguished from all comment or argument. 1 Stark. Ev. 8. 2. Evidence may be considered with reference to, 1. The nature of the evidence. 2. The object of the evidence. 3. The instruments of evidence. 4. The effect of evidence. 1. As to its nature, evidence may be considered with reference to its being 1. Primary evidence. 2. Secondary evidence. 3. Positive. 4. Presumptive. 5. Hearsay. 6. Admissions.
4. - 1. Primary evidence. The law generally requires that the best evidence the case admits of should be given; B. N. P. 293; 1 Stark. Ev. 102, 390; for example, when a written contract has been entered into, and the object is to prove what it was, it is requisite to produce the original writing if it is to be attained, and in that case no copy or other inferior evidence will be received.
5. To this general rule there are several exceptions. 1. As it refers to the quality rather than to the quantity of evidence, it is evident that the fullest proof that every case admits of, is not requisite; if, therefore, there are several eye-witnesses to a fact, it may be sufficiently proved by one only. 2. It is not always requisite, when the matter to be proved has been reduced to writing, that the writing should be produced; as, if the narrative of a fact to be proved has been committed to writing, it may yet be proved by parol evidence. A receipt for the payment of money, for example, will not exclude parol evidence of payment. 14 Esp. R. 213; and see 7 B. & C. 611; S. C. 14 E. C. L. R. 101; 1 Campb. R. 439; 3 B. & A. 566; 6 E. C. L. R. 377.
6. - 2. Secondary evidence. That species of proof which is admissible on the loss of primary evidence, and which becomes by that event the best evidence. 3 Yeates, Rep. 530.
7. It is a rule that the best evidence, or that proof which most certainly exhibits the true state of facts to which it relates, shall be required, and the law rejects secondary or inferior evidence, when it is attempted to be substituted for evidence of a higher or superior nature. This is a rule of policy, grounded upon a reasonable suspicion, that the substitution of inferior for better evidence arises from sinister motives; and an apprehension that the best evidence, if produced, would alter the case to the prejudice of the party. This rule relates not to the measure and quantity of evidence, but to its quality when compared with some other evidence of superior degree. It is not necessary in point of law, to give the fullest proof that every case may admit of. If, for example, there be several eye witnesses to a fact, it may be proved by the testimony of one only.
8. When primary evidence cannot be had, then secondary evidence will be admitted, because then it is the best. But before such evidence can be allowed, it must be clearly made to appear that the superior evidence is not to be had. The person who possesses it must be applied to, whether he be a stranger or the opposite party; in the case of a stranger, a subpoena and attachment, when proper, must be taken out and served; and, in the case of a party, notice to produce such primary evidence must be proved before the secondary evidence will be admitted. 7 Serg. & Rawle, 116; 6 Binn. 228; 4 Binn. R. 295, note; 6 Binn. R. 478; 7 East, R. 66; 8 East, R. 278 3 B. & A. 296; S. C. 5 E. C. L. R. 291.
9. After proof of the due execution of the original, the contents should be proved by a counterpart, if there be one, for this is the next best evidence; and it seems that no evidence of a mere copy is admissible until proof has been given that the counterpart cannot be produced. 6 T. R. 236. If there be no counterpart, a copy may be proved in evidence. by any witness who knows that it is a copy, from having compared it with the original. Bull. N. P. 254; 1 Keb. 117; 6 Binn. R. 234; 2 Taunt. R. 52; 1 Campb. R. 469 8 Mass. R. 273. If there be no copy, the party may produce an abstract, or even give parol evidence of the contents of a deed. 10 Mod. 8; 6 T. R. 556.
10. But it has been decided that there are no degrees in secondary evidence: and when a party has laid the foundation for such evidence, he may prove the contents of a deed by parol, although it appear that an attested copy is in existence. 6 C. & P. 206; 8 Id. 389.
11. - 3. Positive or direct evidence is that which, if believed, establishes the truth of a fact in issue, and does not arise from any presumption. Evidence 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 Stark. 19. In one sense, there is but little direct or positive proof, or such proof as is acquired by means of one's own sense, all other evidence is presumptive but, in common acceptation, direct and positive evidence is that which is communicated by one who has actual knowledge of the fact.
12. - 4. Presumptive evidence is that which is not direct, but where, on the contrary, a fact which is not positively known, is presumed or inferred from one or more other facts or circumstances which are known. Vide article Presumption, and Rosc. Civ. Ev. 13; 1 Stark. Ev. 18.
13. - 5. Hearsay, is the evidence of those who relate, not what they know themselves, but what they have heard from others.
14. Such mere recitals or assertions cannot be received in evidence, for many reasons, but principally for the following: first, that the party making such declarations is not on oath and, secondly, because the party against whom it operates, has no opportunity of cross-examination. 1 Phil. Ev. 185. See, for other reasons, 1 Stark. Ev. pt. 1, p. 44. The general rule excluding hearsay evidence, does not apply to those declarations to which the party is privy, or to admissions which he himself has made. See Admissions.
15. Many facts, from their very nature, either absolutely, or usually exclude direct evidence to prove them, being such as are either necessarily or usually, imperceptible by the senses, and therefore incapable of the ordinary means of proof. These are questions of pedigree or relationship, character, prescription, custom, boundary, and the like; as also questions which depend upon the exercise of particular skill and judgment. Such facts, some from their nature, and others from their antiquity, do not admit of the ordinary and direct means of proof by living witnesses; and, consequently, resort must be had to the best means of proof which the nature of the cases afford. See Boundary; Custom; Opinion; Pedigree; Prescription.
16. - 6. Admissions are the declarations which a party by himself, or those who act under his authority, make of the existence of certain facts. Vide Admissions.
17.- §2. The object of evidence is next to be considered. It is to ascertain the truth between the parties. It has been discovered by experience that this is done most certainly by the adoption of the following rules, which are now binding as law: 1. The evidence must be confined to the point in issue. 2. The substance of the issue must be proved, but only the substance is required to be proved. 3. The affirmative of the issue must be proved.
18. - 1. It is a general rule, both in civil and criminal cases, that the evidence shall be confined to the point in issue. Justice and convenience require the observance of this rule, particularly in criminal cases, for when a prisoner is charged with an offence, it is of the utmost importance to him that the facts laid before the jury should consist exclusively of the transaction, which forms the subject of the indictment, and, which alone he has come prepared to answer. 2 Russ. on Cr. 694; 1 Phil. Ev. 166.
19. To this general rule, there are several exceptions, and a variety of cases which do not fall within the rule. 1. In general, evidence of collateral facts is not admissible; but when such a fact is material to the issue joined between the parties, it may be given in evidence; as, for example, in order to prove that the acceptor of a bill knew the payee to be a fictitious person; or that the drawer had general authority from him to fill up bills with the name of a fictitious payee, evidence may be given to show that he had accepted similar bills before they could, from their date, have arrived from the place of date. 2 H. Bl. 288.
20. - 2. When special damage sustained by the plaintiff is not stated in the declaration, it is Dot one of the points in issue, and therefore, evidence of it cannot be received; yet a damage which is the necessary result of the defendant's breach of contract, may be proved, notwithstanding it is not in the declaration. 11 Price's Reports, 19.
21. - 3. In general, evidence of the character of either party to a suit is inadmissible, yet in some cases such evidence may be given. Vide article Cha?-acter.
22. - 4. When evidence incidentally applies to another person or thing not included in the transaction in question, and with regard to whom or to which it is inadmissible; yet if it bear upon the point in issue, it will be re-ceived. 8 Bingh. Rep. 376; S. C. 21 Eng. C. L. R. 325 and see 1 Phil. Ev. 158; 2 East, P. C. 1035; 2 Leach, 985; S. C. 1 New Rep. 92; Russ. & Ry. C. C. 376; 2 Yeates, 114; 9 Conn. Rep. 47.
23. - 5. The acts of others, as in the case of conspirators, may be given in evidence against the prisoner, when referable to the issue; but confessions made by one of several conspirators after the offence has been completed, and when the conspirators no longer act in concert) cannot be received. Vide article Confession, and 10 Pick. 497; 2 Pet. Rep. 364; 2 Brec. R. 269; 3 Serg. & Rawle, 9; 1 Rawle, 362, 458; 2 Leigh's R. 745; 2 Day's Cas. 205; 3 Serg. & Rawle, 220; 3 Pick. 33; 4 Cranch, 75; 2 B. & A. 573-4 S. C. 5. E. C. L. R. 381.
24. - 6. In criminal cases, when the offence is a cumulative one, consisting itself in the commission of a number of acts, evidence of those acts is not only admissible, but essential to support the charge. On an indictment against a defendant for a conspiracy, to cause himself, to be believed a man of large property, for the purpose of defrauding tradesmen after proof of a representation to one tradesman, evidence may therefore be given of a representation to another tradesman at a different time. 1 Campb. Rep. 399; 2 Day's Cas. 205; 1 John. R. 99; 4 Rogers' Rec. 143; 2 Johns. Cas. 193.
25. - 7. To prove the guilty knowledge of a prisoner, with regard to the transaction in question, evidence of other offences of the same kind, committed by the prisoner, though not charged in the indictment, is admissible against him. As in the case where a prisoner had passed a counterfeit dollar, evidence that he had. other counterfeit dollars in his possession is evidence to prove the guilty knowledge. 2 Const. R. 758; Id. 776; 1 Bailey, R. 300; 2 Leigh's R. 745; 1 Wheeler's Cr. Cas. 415; 3 Rogers' Rec. 148; Russ. & Ry. 132; 1 Campb. Rep. 324; 5 Randolph's R. 701.
26. - 2. The substance of the issue joined between the parties must be proved. 1 Phil. Ev. 190. Under this rule will be considered the quantity of evidence required to support particular averments in the declaration or indictment.
27. And, first, of civil cases. 1. It is a fatal variance in a contract, if it appear that a party who ought to have been joined as plaintiff has been omitted. 1 Sauud. 291 b, n.; 2 T. R. 282. But it is no variance to omit a person who might have been joined as defendant, because the non-joinder ought to have been pleaded in abatement. 1 Saund. 291 d, n. 2. The consideration of the contract must be proved but it is not necessary for the plaintiff to set out in his declaration, or prove on the trial, the several parts of a contract consisting of distinct and collateral provisions; it is sufficient to state so much of the contract as contains the entire consideration of the act, and the entire act to be done in virtue of such consideration, including the time, manner, and other circumstances of its performance. 6 East, R. 568; 4 B. & A. 387; 6 E. C. L. R. 455.
28. - Secondly. In criminal cases, it may be laid down, 1. That it is, in general, sufficient to prove what constitutes an offence. It is enough to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified. 2 Campb. R. 585; 1 Harr. & John. 427. If a man be indicted for robbery, he may be found guilty of larceny, and not guilty of the robbery. 2 Hale, P. C. 302. The offence of which the party is convicted, must, however, be of the same class with that of which he is charged. 1 i Leach, 14; 2 Stra. 1133.
29. - 2. When the intent of the prisoner furnishes one of the ingredients in the offence, and several intents are laid in the indictment, each of which, together with the act done, constitutes an offence, it is sufficient to prove one intent only. 3 Stark. R. 35; 14 E. C. L. R. 154, 163.
30. - 3. When a person or thing, necessary to be mentioned in an indictment, is described with circumstances of greater particularity than is requisite, yet those circumstances must be proved. 3 Rogers' Rec. 77; 3 Day's Cas. 283. For example, if a party be charged with stealing a black horse, the evidence must correspond with the averment, although it was unnecessary to make it. Roscoe's Cr. Ev. 77 4 Ohio, 350.
31. - 4. The name of the prosecutor, or party injured; must be proved as laid, and the rule is the same with reference to the name of a third person introduced into the indictment, as. descriptive of some person or thing.
32. - 5. The affirmative of the issue must be proved. The general rule with regard to the burthen of proving the issue, requires that the party who asserts the, affirmative should prove it. But this rule ceases to operate the moment the presumption of law is thrown into the other scale. When the issue is on the legitimacy of a child therefore, it is incumbent on the party asserting the illegitimacy to prove it. 2 Selw. N. P. 709. Vide Onus Probandi; Presum 2 Gall. R. 485 and 1 McCord, 573.
33. - §3. The consideration of the instruments of evidence will be the subject of this head. These consist of records, private writings, or witnesses.
34. - 1. Records are to be proved by an exemplification, duly authenticated, (Vide Authentication, in all cases where the issue is nul tiel record. In other cases, an examined copy, duly proved, will, in general, be evidence. Foreign laws as proved in the mode pointed out under the article Foreign laws.
35. - 2. Private writings are proved by producing the attesting witness; or in case of his death, absence, or other legal inability to testify, as if, after attesting the paper, he becomes infamous, his handwriting may be proved. When there is no witness to the instrument, it may be proved by the evidence of the handwriting of the party, by a person who has seen him write, or in a course of correspondence has become acquainted with his hand. See Comparison of handwriting, and 5 Binn. R. 349; 10 Serg. & Rawle, 110; 11 Serg. & Rawle, 333 3 W. C. C. R. 31; 11 Serg. & Rawle, 347 6 Serg. & Rawle, 12, 812; 1 Rawle, R. 223; 3 Rawle, R. 312; 1 Ashm. R. 8; 3 Penn. R. 136.
36. Books of original entry, when duly proved, are prima facie evidence of goods sold and delivered, and of work and labor done. Vide original entry.
37. - 3. Proof by witnesses. The testimony of witnesses is called parol evidence, or that which is given viva voce, as contra-distinguished from that which is written or documentary. It is a general rule, that oral evidence shall in no case be received as equivalent to, or as a substitute for, a written instrument, where the latter is required by law; or to give effect to a written instrument which is defective in any particular which by law is essential to its validity; or to contradict, alter or vary a written instrument, either appointed by law, or by the contract of the parties, to be the appropriate and authentic memorial of the particular facts it recites; for by doing so, oral testimony would be admitted to usurp the place of evidence decidedly superior in degree. 1 Serg. & Rawle, 464; Id. 27; Addis. R. 361; 2 Dall. 172; 1 Yeates, 140; 1 Binn. 616; 3 Marsh. Ken. R. 333; 4 Bibb, R. 473; 1 Bibb, R. 271; 11 Mass. R. 30; 13 Mass. R. 443; 3 Conn. 9; 20 Johns. 49; 12 Johns. R. 77; 3 Camp. 57; 1 Esp. C. 53; 1 M. & S. 21; Bunb. 175.
38. But parol evidence is admissible to defeat a written instrument, on the ground of fraud, mistake, &c., or to apply it to its proper subject matter; or, in some instances, as ancillary to such application, to explain the meaning of doubtful terms, or to rebut presumptions arising extrinsically. In these cases, the parol evidence does not usurp the place, or arrogate the authority of, written evidence, but either shows that the instrument ought not to be allowed to operate at all, or is essential in order to give to the instrument its legal effect. 1 Murph. R. 426 4 Desaus. R. 211; 1 Desaus. R. 345 1 Bay, R. 247; 1 Bibb, R. 271 11 Mass. R. 30; see 1 Pet. C. C. R. 85 1 Binn. R. 610; 3 Binn. R. 587: 3 Serg. Rawle, 340; Poth. Obl. Pl. 4, c. 2.
39. - §4. The effect of evidence. Under this head will be considered, 1st. The effect of judgments rendered in the United States, and of records lawfully made in this country; and, 2d. The effect of foreign judgments and laws.
40. - 1. As a general rule, a judgment rendered by a court of competent jurisdiction, directly upon the point in issue, is a bar between the same parties: 1 Phil. Ev. 242; and privies in blood, as an heir 3 Mod. 141; or privies in estate 1 Ld. Raym. 730; B. N. P. 232; stand in the same situation. as those they represent; the verdict and judgment may be used for or against them, and is conclusive. Vide Res Judicata.
41. The Constitution of the United States, art. 4, s. 1, declares, that "Full faith and credit shall be given, in each state, to the public acts, records, and judicial proceedings of every other state. And congress may, by general laws, prescribe the manner in which Such acts, records and proceedings, shall be proved, and the effect thereof." Vide article Authentication and 7 Cranch, 481; 3 Wheat. R. 234 10 Wheat. R. 469; 17 Mass. R. 546; 9 Cranch, 192; 2 Yeates, 532; 7 Cranch, 408; 3 Bibb's R. 369; 5 Day's R. 563; 2 Marsh. Kty. R. 293.
42. - 2. As to the effect of foreign laws, see article Foreign Laws. For the force and effect of foreign judgments, see article Foreign Judgments. Vide, generally, the Treatises on Evidence, of Gilbert, Phillips, Starkie, Roscoe, Swift, Bentham, Macnally, Peake, Greenleaf, and Bouv. Inst. Index, h. t.; the various Digests, h. t.
EVIDENCE, CIRCUMSTANTIAL. The proof of facts which usually attend other facts sought to be, proved; that which is not direct evidence. For example, when a witness testifies that a man was stabbed with a knife, and that a piece of the blade was found in the wound, and it is found to fit exactly with another part of the blade found in the possession of the prisoner; the facts are directly attested, but they only prove circumstances, and hence this is called circumstantial evidence.
2. Circumstantial evidence is of two kinds, namely, certain and uncertain. It is certain when the conclusion in question necessarily follows as, where a man had received a mortal wound, and it was found that the impression of a bloody left hand had been made on the left arm of the deceased, it was certain some other person than the deceased must have made such mark. 14 How. St. Tr. 1324. But it is uncertain whether the death was caused by suicide or by murder, and whether the mark of the bloody hand was made by the assassin, or by a friendly hand that came too late to the relief of the deceased. Id. Vide Circumstances.
EVIDENCE, CONCLUSIVE. That which, while uncontradicted, satisfies the judge and jury it is also that which cannot be contradicted.
2. The record of a court of common law jurisdiction is conclusive as to the facts therein stated. 2 Wash. 64; 2 H. 55; 6 Conn. 508, But the judgment and record of a prize court is not conclusive evidence in the state courts, unless it had jurisdiction of the subject-matter; and whether it had or not, the state courts may decide. 1 Conn. 429. See as to the conclusiveness of the judgments of foreign courts of admiralty, 4 Cranch, 421, 434; 3 Cranch, 458; Gilmer, 16 Const. R. 381 1 N. & M. 5 3 7.
EVIDENCE, DIRECT. That which applies immediately to the fadum probandum, without any intervening process; as, if A testifies he saw B inflict a mortal wound on C, of which he, instantly died. 1 Greenl. Ev. §13.
EVIDENCE, EXTRINSIC. External evidence, or that which is not contained in the body of an agreement, contract, and the like.
2. It is a general rule that extrinsic evidence cannot be admitted to contradict, explain, vary or change the terms of a contract or of a will, except in a latent ambiguity, or to rebut a resulting trust. 14 John. 1; 1 Day, R. 8; 6 Conn. 270.
EVOCATION, 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. This is done with us by writ of certiorari.
EWAGE. A toll paid for water passage. Cowell. The same as aquagium. (q. v.)
EX CONTRACTU. This term is applied to such things as arise from a contract; as an action which arises ex contractu. Vide Action.
EX DELICTO. Those actions which arise in consequence of a crime, misdemeanor, fault, or tort; actions arising ex delicto are case, replevin, trespass, trover. See Action.
EX DOLO MALO. 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 AEQUO ET BONO. In equity and good conscience. A man is bound to pay money which ex oequo et bono he holds for the use of another.
EX MERO MOTU. Mere motion of a party's own free will. To prevent injustice, the courts will, ex mero motu, make rules and orders which the parties would not strictly be entitled to ask for.
EX MORA. From the delay; from the default. All persons are bound to make amends for damages which arise from their own default.
EX NECESSITATE LEGIS. From the necessity of law.
EX NECESSITATE REI. From the necessity of the thing. Many acts may be done ex necessitate ret, which would not be justifiable without it; and sometimes property is protected, ex necessitate rei, which, under, other circumstances, would not be so. For example, property put upon the land of another from necessity, cannot be distrained for rent. See Distress; Necessity.
EX OFFICIO. By virtue of his office. 2. Many powers are granted and exercised by public officers which are not expressly delegated. A judge, for example, may, ex officio, be a conservator of the peace, and a justice of the peace.
EX PARTE. Of the one part. Many things may be done ex parte, when the opposite 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. Ex parte paterna, on the side of the father, or property descended to a person from his father; ex parte materna, on the part of the mother.
EX POST FACTO, contracts, crim. law. This is a technical expression, which signifies, that something has been done after another thing, in relation to the latter.
2. 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 accept. 1 Co . 146.
3. The Constitution of the United States, art. 1, sec. 10, forbids the states to pass any ex post facto law; which has been defined to be one which renders the act punishable in a manner in which it was not punishable when it was committed. 6 Cranch, 138. This definition extends to laws passed after the act, and affecting a person by way of punishment of that act, either in his person or estate. 3 Dall. 386; 1 Blackf. Ind. R. 193 2 Pet. U. S. Rep. 413 1 Kent, Com. 408; Dane's Ab. Index, h. t.
4. This prohibition in the constitution against passing ex post facto law's, applies exclusively to criminal or penal cases, and not to civil cases. Serg. Const. Law, 356. Vide 2 Pick. R. 172; 11 Pick. R. 28; 2 Root, R. 350; 5 Monr. 133; 9 Mass. R. 363; 3 N. H. Rep. 475; 7 John. R. 488; 6 Binn. R. 271; 1 J. J. Marsh, 563; 2 Pet. R. 681; and the article Retrospective.
EX VI TERMINI. By force of the term; as a bond ex vi termini imports a sealed instrument.
EX VISITATIONE DEI. By or from the visitation of God. This phrase is frequently employed in inquisitions by the coroner, where it signifies that the death of the deceased is a natural one.
EX TEMPORE. From the time without premeditation.
EXACTION, torts. A willful wrong done by an officer, or by one who, under color of his office, takes more fee or pay for his services than what 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. Wishard; Co. Litt. 368.
EXAMINATION, crim. law. By the common law no one is bound to accuse himself. Nemo tenetur prodere seipsum. In England, by the statutes of Philip and Mary, (1 & 2 P. & M. c. 13; 2 & 3 P. & M. c. 10,) the principles of which have been adopted in several of the United States, the justices before whom any person shall be brought, charged with any of the crimes therein mentioned, shall take the examination of the prisoner, as well is that of the witnesses, in writing, which the magistrates shall subscribe, and deliver to the officer of the court where the trial is to be had. The signature of the prisoner, when not specially required by statute, is not indispensable, though it is proper to obtain it, when it can be obtained. 1 Chit. Cr. Law, 87; 2 Leach, Cr. Cas. 625.
2. It will be proper to consider, 1. The requisites of such examination. 2. How it is to be proved. 3. Its effects.
3. - 1. It is required that it should, 1st. Be voluntarily made, without any compulsion of any kind; and, 2d. It must be reduced to writing. 1st. The law is particularly solicitous to let the prisoner be free in making declarations in his examination; and if the prisoner has not been left entirely free, or did not consider himself to be so, or if he did not feel at liberty wholly to decline any explanation or declaration whatever, the examination is not considered voluntary, and the writing cannot be read in evidence against him, nor can parol evidence be received of what the prisoner said on the occasion. 5 C. & P. 812; 7 C. & P. 177; 1 Stark. R. 242; 6 Penn. Law Journ. 120. The prisoner, of course, cannot be sworn, and make his statement under oath. Bull. N. P. 242; 4 Hawk. P. C. book 2, c. 46, §37; 4 C. & P. 564. 2a. The statute requires that the examination shall be reduced to writing, or so much as may be material, and the law presumes the magistrate did his duty and took down all that was material. Joy on Conf. 89-92; 1 Greenl. Ev. §227. The prisoner need not sign the examination so reduced to writing, to give it validity; but, if being asked to sign it, he absolutely refuse, it will be considered incomplete. 2 Stark. R. 483; 2 Leach, Cr. Cas. 627, n.
4. - 2. The certificate of the magistrate is conclusive evidence of the manner in which the examination was conducted. 7 C. & P. 177; 9 C. & P. 124; 1 Stark. R. 242. Before it can be given in evidence, its identity must be proved, as well as the identity of the prisoner. When the prisoner has signed the examination, proof of his handwriting is sufficient evidence that he has read it; but if he has merely made his mark, or not signed it at all, the magistrate or clerk must identify the prisoner, and prove that the writing was duly read to him, and that he assented to it. l Greenl. Ev. §520; 1 M. & Rob. 395.
5. - 3. The effect of such an examination, when properly taken and proved, is sufficient to found a conviction. 1 Greenl. Ev. §216.
EXAMINATION, practice. The interrogation of a witness, in order to ascertain his knowledge as to the facts in dispute between parties. When the examination is made by the party who called the witness, it is called an examination in chief. When it is made by the other party, it is known by the name of cross-examination. (q. v.)
2. The examination is to be made in open court, when practicable; but when,: on account of age, sickness, or other cause, the witness cannot be so examined, then it may be made before authorized commissioners. In the examination in chief the counsel cannot ask leading questions, except in particular cases. Vide Cross-examination; Leading question.
3. The laws of the several states require the private examination of a feme covert before a competent officer, in order to pass her title to her own real estate or the interest she has in that of her hushand: as to the mode in which this is to be done, see Acknowledment. See, also, 3 Call, R. 394; 5 Mason's R. 59; 1 Hill, R. 110; 4 Leigh, R. 498; 2 Gill & John. 1; 3 Rand. R. 468 1 Monr. R. 49; 3 Monr. R. 397; 1 Edw. R. 572; 3 Yerg. R. 548 1 Yerg. R. 413 3 J. J. Marsh. R. 241 2 A. K. Marsh. R. 67; 6 Wend. R. 9; 1 Dall. 11, 17; 3 Yeates, R. 471; 8 S. & R. 299; 4 S. & R. 273.
EXAMINED COPY. This phrase is applied to designate a paper which is a copy of a record, public book, or register, and which has been compared with the original. 1 Campb. 469.
2. Such examined copy is admitted in evidence, because of the public inconvenience which would arise, if such record, public book, or register, were removed from place to place, and because any fraud or mistake made in the examined copy would be so easily, detected. 1 Greenl. Ev. §91; 1 Stark. Ev. 189-191. But an answer in chancery, on which the defendant was indicted for perjury, or where the original must be produced in order to identify the party by proof of handwriting, an examined copy would not be evidence. 1 M. & Rob. 189. Vide Copy.
EXAMINERS, practice. Persons appointed to question students of law, in order to ascertain their qualifications before they are admitted to practice. Officers in the courts of chancery whose duty it is to examine witnesses, are also called examiners. Com. Dig. Chancery, P 1. For rules as to the mode of taking examinations, see Gresl. Eq. Ev. pt. 1, c, 3, s. 2.
EXAMPLE. An example is a case put to illustrate a. principle. Examples illustrate, but do not restrain or change the laws: illustrant non restringunt legem. Co. Litt. 24, a.
EXCAMBIATOR. The name of an exchanger of lands; a broker. This term is now obsolete.
EXCAMBIUM. Exchange. (q. v.)
EXCEPTIO REI JUDICATAE, civil law. The name of a plea by which the defendant alleges that the matter in dispute between the parties has been before adjudged. See Res judicata.
EXCEPTION, Eng. Eq. practice. Re-interrogation. 2 Benth. Ev. 208, n.
EXCEPTION, legislation, construction. Exceptions are rules which limit the extent of other more general rules, and render that just and proper, which would be, on account of its generality, unjust and improper. For example, it is a general rule that parties competent may make contracts; the rule that they shall not make any contrary to equity, or contra bonos mores, is the exception.
EXCEPTION, contracts. An exception is a clause in a deed,. by which the lessor excepts something out of that which he granted before by the deed.
2. To make a valid exception, these things must concur: 1. The exception must be by apt words; as, saving and excepting, &c. 2. It must be of part of the thing previously described, and not of some other thing. 3. It must be part of the thing only, and not of all, the greater part, or the effect of the thing granted; an exception, therefore, in a lease, which extends to the whole thing demised, is void. 4. It must be of such thing as is severable from the demised premises, and hot of an inseparable incident. 5. It must be of a thing as he that accepts may have, and which properly belongs to him. 6. It must be of a particular thing out of a general, and not of a particular thing out of a particular thing. 7. It must be particularly described and set forth; a lease of a tract of land, except one acre, would be void, because that acre was not particularly described. Woodf. Landl. and Ten. 10; Co. Litt. 47 a; Touchs. 77; 1 Shepl. R. 337; Wright's R. 711; 3 John. R., 375 8 Conn. R. 369; 6 Pick. R. 499; 6 N. H. Rep. 421. Exceptions against common right and general rules are construed as strictly as possible. 1 Barton's Elem. Conv. 68.
3. An exception differs from a reservation; the former is always a part of the thing granted; the latter is of a thing not in esse but newly created or reserved. An exception differs also from an explanation, which by the use of a videlicet, proviso, &c., is allowed only to explain doubtful clauses precedent, or to separate and distribute generals, into particulars. 3 Pick. R. 272.
EXCEPTION, practice, pleading. This term is used in the civil, nearly in the same sense that the word plea has in the common law. Merl. Repert. h. t.; Ayl. Parerg. 251.
2. In chancery practice, it is the allegation of a party in writing, that some pleading or proceeding in a cause is insufficient. 1 Harr. Ch. Pr. 228.
3. Exceptions are dilatory or peremptory. Bract. lib. 5, tr. 5; Britton, cap. 91, 92; 1 Lilly's Ab. 559. Dilatory exceptions are such as do not tend to defeat the action, but only to retard its progress. Poth. Proc. civ. partie 1, c. 2, s. 2, art. 1; Code of Pract. of Lo. art. 332. Declinatory exceptions have this effect, as well as the exception of discussion opposed by a third possessor, or by a surety in an hypothecary action, or the exception taken in order to call in the warrantor. Id.; 7 N. S. 282; 1 L. R. 38, 420. These exceptions must, in general, be pleaded in limine litis before issue joined. Civ. Code of Lo. 2260; 1 N. S. 703; 2 N. S. 389; 4 L. R. 104; 10 L. R. 546. A declinatory exception is a species of dilatory exception, which merely declines the jurisdiction of the judge before whom the action is brought. Code of Pr. of L. 334.
4. Peremptory exceptions are those which tend to the dismissal of the action. Some relate to forms, others arise from the law. Those which relate to formes, tend to have the cause dismissed, owing to some nullities in the proceedings. These must be pleaded in limine litis. Peremptory exceptions founded on law, are those which, without going into the merits of the cause, show that the plaintiff cannot maintain his action, either because it is prescribed, or because the cause of action has been destroyed or extinguished. These may be pleaded at any time previous to definitive judgment. Id. art. 343, 346; Poth. Proc. Civ. partie 1, c. 2, s. 1, 2, 3. These, in the French law, are called Fins de. non recevoir. (q. v.)
5. By exception is also meant the objection which is made to the decision of a judge in the course of a trial. See Bill of Exception.
EXCHANGE, com. law. This word has several significations.
2. - 1. Exchange is a negotiation by which one person transfers to another funds which he has in a certain place, either at a price agreed upon, or which is fixed by commercial usage. This transfer is made by means of an instrument which represents such funds, and is well known by the name of a bill of exchange.
3. - 2. The price which is paid in order to obtain such transfer, is also known among merchants by the name of exchange; as, exchange on England is five per cent. See 4 Wash. C. C. R. 307. Exchange on foreign money is to be calculated according to the usual rate at the time of trial. 5 S. & R. 48.
4. - 3. Barter, (q. v.) or the transfer of goods and chattels for other goods and chattels, is also known by the name of exchange, though the term barter is more commonly used.
5. - 4. The French writers on commercial law, denominate the profit which arises from a maritime loan, exchange, when such profit is a per centage on the money lent, considering it in the light of money lent in one place to be returned in another, with a difference in amount in the sum borrowed and that paid, arising from the difference of time and place. Hall on Mar. Loans, 56, n.; and the articles Interest; Maritime; Premium.
6. - 5. By exchange is also meant, the place where merchants, captains of vessels, exchange agents and brokers, assemble to transact their business. Code de Comm. art. 71.
7. - 6. According to the Civil Code of Louisiana, art. 1758, exchange imports a reciprocal contract, by which. the parties enter into mutual agreement. 14 Pet. 133. Vide the articles. Bills of Exchange; Damages on Bills of Exchange and Reexchange. Also Civ. Code of Lo. art. 2630.
EXCHANGE conveyancing. An exchange is a mutual grant of equal interests in land, the one in consideration of the other. 2 Bl. Com. 323; Litt. s. 62; Touchs. 289; Watk. Prin. Con. It is said that exchange, in the United States, does not differ from bargain and sale. 2 Bouv. Inst. n. 2055.
2. There are five circumstances necessary to an exchange. 1. That the estates given be equal. 2. That the word escambium or exchange be used, which cannot be supplied by any other word, or described by circumlocution. 3. That there be an execution by entry or claim in the life of the parties. 4. That if it be of things which lie in grant, it be by deed. 5. That if the lands lie in several counties, it be by deed indented; or if the thing lie in grant, though they be in one county. In practice this mode of conveyancing is nearly obsolete. Vide Cruise, Dig. tit. 32 Perk. ch. 4 10 Vin. Ab. 125; Com. Dig. h. t.; Nels. Ab. h. t.; Co. Litt. 51; Hardin's R. 593 1 N. H. Rep. 65 3 Har. & John. 361; 1 Rolle's Ab. 813 .3 Wils. R. 489. Vide Watk. Prin. Con. b. 2, c. 5; Horsman, 362 and 3 Wood, 243, for forms.
EXCHEQUER R, Eng. law. An ancient court of record set up by William the Conqueror. It is called exchequer from the chequered cloth, resembling a chesshoard, which covers the table there. 3 Bl. Com. 45. It consists of two divisions; the receipt of the exchequer, which manages the royal revenue; and the court, or judicial part of it, which is again divided into a court of equity, and a court of common law. Id. 44.
2. In this court all personal actions may be brought, and suits in equity commenced, the plaintiff in both (fictitiously for the most part) alleging himself to be the king's debtor, in order to give the court jurisdiction of the cause. Wooddes. Lect. 69. But by stat. 2 Will. IV. c. 39, s. 1, a change has been made in this respect.
EXCHEQUER CHAMBER, Eng. law. A court erected by statute 31 Ed. III. c. 12, to determine causes upon writs of error from the common law side of the court of exchequer. 3 Bl. Com. 55. Another court of exchequer chamber was created by the stat. 27 El. c. 8, consisting of the justices of the common bench, and the barons of the exchequer. It has authority to examine by writ of err6r the proceedings of the king's bench, not so generally as that erected by the statute of Edw. III., but in certain enumerated actions.
EXCISES. This word is used to signify an inland imposition, paid sometimes upon the consumption of the commodity, and frequently upon the retail sale. 1 Bl. Com. 318; 1 Tuck. Bl. Com. Appx. 341; Story, Const. §950.
EXCLUSIVE, rights. Debarring one from participating in a thing. An exclusive right or privilege, is one granted to a person to do a thing, and forbidding all others to do the same. A patent right or copyright, are of this kind.
EXCLUSIVE, computation of time. Shut out; not included. As when an act is to be done within a certain time, as ten days from a particular time, one day is to be included and the other excluded. Vide Hob. 139; Cowp. 714; Lofft, 276; Dougl. 463; 2 Mod. 280; Sav. 124; 3 ]Penna. Rep. 200; 1 Serg. & Rawle, 43; 3 B. & A. 581; Com. Dig. Temps, A; 3 East, 407; Com. Dig. Estates, G 8; 2 Chit. Pr. 69, 147.
EXCOMMUNICATION, eccl. law. An ecclesiastical sentence, pronounced by a spiritual judge against a Christian man, by which he is excluded from the body of the church, and disabled to bring any action, or sue any person in the common law courts. Bac. Ab. h. t.; Co. Litt. 133-4. In early times it was the most frequent and most severe method of executing ecclesiastical censure, although proper to be used, said Justinian, (Nov. 123,) only upon grave occasions. The effect of it was to remove the excommunicated "person not only from the sacred rites but from the society of men. In a certain sense it interdicted the use of fire and water, like the punishment spoken of by Caesar, (lib, 6 de Bell. Gall.). as inflicted by the Druids. Innocent IV. called it the nerve of ecclesiastical discipline. On repentance, the excommunicated person was absolved and received again to communion. These are said to be the powers of binding and loosing the keys of the kingdom of heaven. This kind of punishment seems to have been adopted from the Roman usage of interdicting the use of fire and water. Fr. Duaren, De Sacris Eccles. Ministeriis, lib. 1, cap. 3. See Ridley's View of the Civil. and Ecclesiastical Law, 245, 246, 249.
EXCOMMUNICATIO CAPIENDO, WRIT OF, Eng. eccl. law. A writ issuing out of chancery, founded on a hishop's certificate that the defendant had been excommunicated, which writ is returnable in the king's bench. F. N. B. 62, 64, 65 Bac. Ab. Excommunication, E. See Statutes 3 Ed. I. c. 15; 9 Ed. II. c. 12; 2 & 3 Ed. VI. c. 13; 5 & 6 Ed. VI c. 4; 5 Eliz. c. 23; 1 H. V. c. 5; also Cro. Eliz. 224, 6,80; Cro. Car. 421; Cro. Jac. 567; 1 Vent. 146; 1 Salk. 293, 294, 295.
EXCUSABLE HOMICIDE, crim. law. The killing of a human being, when the party killing is not altogether free from blame, but the necessity which renders it excusable, may be said to be partly induce by his own act. 1 East, P. C. 220.
EXCUSE. A reason alleged for the doing or not doing a thing. This word presents two ideas differing essentially from each other. In one case an excuse may be made in, order to own that the party accused is not guilty; in another, by showing that though guilty, he is less so, than he appears to be. Take, for example, the case of a sheriff who has an execution against an individual, and who in performance of his duty, arrests him; in an action by the defendant against the sheriff, the latter may prove the facts, and this shall be a sufficient excuse for him: this is an excuse of the first kind, or a complete justification; the sheriff was guilty of no offence. But suppose, secondly, that the sheriff has an execution against Paul, and by mistake, and without any malicious design, be arrests Peter instead of Paul; the fact of his having the execution against Paul and the mistake being made, will not justify the sheriff, but it will extenuate and excuse his conduct, and this will be an excuse of the second kind.
3. Persons are sometimes excused for the commission of acts, which ordinarily are crimes, either because they had no intention of doing wrong, or because they had no power of judging, and therefore had no criminal will (q. v.); or having power, of judging they had no choice, and were compelled by necessity. Among the first class may be placed infants under the age of discretion, lunatics, and married women committing an offence in the presence of their hushands, not malum in se, as treason or murder; 1 Hale's P. C. 44, 45 or in offences relating to the domestic concern or management of the house, as the keeping of a bawdy house. Hawk. b. 1, c. 1, s. 12. Among acts of the second kind may be classed, the beating or killing another in self-defence; the destruction of property in order to prevent a more serious calamity, as the tearing down of a house on fire, to prevent its spreading to the neighboring property, and the like. See Dalloz, Dict. h. t.
EXEAT, eccl. law. This is a Latin term, which is used to express the written permission which a hishop gives to an ecclesiastic to exercise the functions of his ministry in another diocese.
TO EXECUTE. To make, to perform, to do, to follow out. This term is frequently used in the law; as, to execute a deed is to make a deed.
2. It also signifies to perform, as to execute a contract; hence some contracts are called executed contracts, and others are called executory contracts.
3. To execute also means to put to death by virtue of a lawful sentence; as, the sheriff executed the convict.
EXECUTED. Something done; something completed. This word is frequently used in connexion with others to designate a quality of such other words; as an executed contract; an executed estate; an executed trust, &c. It is opposed to executory.
2. An executed contract is one which has been fulfilled; as, where the buyer has paid thrice of the: thing-purchased by him. See Agreement.
3. An executed estate is when there is vested in the grantee a present and immediate right of present or future enjoyment; and in another sense, the term applies to the time of enjoyment; and in that sense, an estate is said to be executed, when it confers a present right of present enjoyment. When the right of enjoyment in possession is to arise at a future period, only, the estate is executed that is, it is merely vested in point of interest: when the right of immediate enjoyment is annexed to the estate, then only is the estate vested in possession. 1 Prest. on Est. 62.
4. Trusts executed are, when by deed or will, lands are conveyed, or devised, in terms or in effect , to and for the use of one person or several persons, in trust for others, without any direction that the trustees shall make any farther conveyance; so that it does not appear that the author of the trusts had a view to a future instrument for accomplishing his intention. Prest. on Est.188.
EXECUTIO NON. These words occur in the stat. 13 Ed. I. cap. 45, in the following connexion: Et...precipiatur vice comiti quod scire faciat parti... quod sit ad certum diem ostensura si quid sciat dicere quare hujustnodi irrotulata vel in fine contenta executionem habere non debeant. This statute is the origin of the scire facias post annum et diem quare executionem non, etc. To a plea in bar to such a writ, the defendant should conclude that the plaintiff ought not to have or maintain his aforesaid execution thereof against him, which is called the executio non, as in other cases by actio non. (q. v.) 10 Mod. 112; Yelv. 218.
EXECUTION, contracts. The accomplishment of a thing; as the execution of a bond and warrant of attorney, which is the signing, sealing, and delivery of the same.
EXECUTION, crim. law. The putting a convict to death, agreeably to law, in pursuance of his sentence.
EXECUTION, practice. The act of carrying into effect the final judgment of a court, or other jurisdiction. The writ which authorizes the officer so to carry into effect such judgment is also called an execution.
2. A distinction has been made between an execution which is used to make the money due on a judgment out of the property of the defendant, and which is called a final execution; and one which tends to an end but is not absolutely final, as a capias ad satisfaciendum, by virtue of which the body of the defendant is taken, to the intent that the plaintiff shall be satisfied his debt, &c., the imprisonment not being absolute, but until he shall satisfy the same; this is called an execution quousque. 6 Co. 87.
3. Executions are either to recover specific things, or money. 1. Of the first class are the writs of habere facias seisinam.; (q. v.) habere facias possessionem; (q. v.) retorno habendo; (q. v.) distringas. (q. v.) 2. Executions for the recovery of money are those which issue against the body of the defendant, as the capias ad satisfaciendum, (q. v.); an attachment, (q. v.); those which issue against his goods and chattels; namely, the fieri facias, (q. v.); the, venditioni exponas, (q. v.); those which issue against his lands, the levari facias; (q. v.) the liberari facias; the elegit. (q. v.) Vide 10 Vin. Ab. 541; 1 Ves. jr. 430; 1 Sell. Pr. 512; Bac. Ab. h. t.; Com. Dig. h. t.; the various Digests, h. t.; Tidd's Pr. Index, h. t.; 3 Bouv. Inst. n. 3365, et seq. Courts will at any time grant leave to amend an execution so as to make it conformable to the judgment on which it was issued. 1 Serg. & R. 98. A writ of error lies on an award of execution. 5 Rep. 32, a; 1 Rawle, Rep. 47, 48; Writ of Bxecution;
EXECUTION PAREE. By the term execution paree, which is used in Louisiana, is meant a right founded on an authentic act; that is, and passed before a notary, by which the creditor may immediately, without citation or summons, seize and cause to be sold, the property of his debtor, out of the proceeds of which to receive his payment. It imports a confession of judgment, and is not unlike a warrant of attorney. Code of Pr. of Lo. art. 732; 6 Toull. n. 208; 7 Toull. 99.
EXECUTIONER. The name given to him who puts criminals to death, according to their sentence; a hangman.
2. In the United States, executions are so rare that there are no executioners by profession. It is the duty of the sheriff or marshal to perform this office, or to procure a deputy to do it for him.
EXECUTIVE, government. That power in the government which causes the laws to be executed and obeyed: it is usually. confided to the hands of the chief magistrate; the president of the United States is invested with this authority under the national government; and the governor of each state has the executive power in his hands.
2. The officer in whom is vested the executive power is also called the executive.
3. The Constitution of the United States directs that "the executive power shall be vested in a president of the United States of America." Art. 2, s. 1. Vide Story, Const. B. 3, c. 36.
EXECUTOR, trusts. The word executor, taken in its largest sense, has several accep tations. 1. Executor dativus, who is one called an administrator to an intestate. 2. Executor testamentarius, or one appointed to the office by the last will of a testator, and this is what is usually meant by the term.
2. In the civil law, the person who is appointed to perform the duties of an executor as to goods, is called haeres testamentarius; the term executor, it is said, is a barbarism unknown to that law. 3 Atk. 304.
3. An executor, as the term is at present accepted, is the person to whom the execution of a last will and testament of personal estate is , by the testator's appointment, confided, and who has accepted of the same. 2 Bl. Com. 503; 2 P. Wms. 548; Toller, 30; 1 Will. on Ex. 112 Swinh. t. 4, s. 2, pl. 2.
4. Generally speaking, all persons who are capable of making wills may be executors, and some others beside, as infants and married women. 2 Bl. Corn. 503.
5. An executor is absolute or qualified; his appointment is absolute when he is constituted certainly, immediately, and without restriction in regard to the testator's effects, or limitation in point of time. It may be qualified by limitation as to the time or place wherein, or the subject matters whereon, the office is to be exercised; or the creation of the office may be conditional. It may be qualified. 1st. By limitations in point of time, for the time may be limited when the person appointed shall begin, or when he shall cease to be executor; as if a man be appointed executor upon the marriage of testator's daughter. Swinb. p. 4, s. 17, pl. 4. 2. The appointment may be limited to a place; as, if one be appointed executor of all the testator's goods in the state of Pennsylvania. 3. The power of the executor may be limited as to the subject matter upon which if is to be exercised; as, when a testator appoints. A the executor of his goods and chattels in possession; B, of his choses in action. One may be appointed executor of one thing, only, as of a particular claim or debt due by bond, and the like. Off. Ex. 29; 3 Phillim. 424. But although a testator may thus appoint separate executors of distinct parts of his property, and may divide their authority, yet quoad the creditors of the testator they are all executors, and act as one executor, and may be sued as one executor. Cro. Car. 293. 4. The appointment may be conditional, and the condition may be either precedent or subsequent. Godolph. Orph. Leg. pt. 2, c. 2, s. 1; Off. Ex. 23. 6. An executor derives his interest in the estate of the deceased entirely from the will, and it vests in him from the moment of the testator's death. 1 Will. Ex. 159; Com. Dig. Administration, B 10; 5 B. & A. 745; 2 W. Bl. Rep. 692. He acquires an absolute legal title to the personalty by appointment, but nothing in the lands of the testator, except by devise. He can touch nothing which was not personal at the testator's decease, except by express direction. 9 Serg. & Rawle, 431; Gord. Law Dec. 93. Still his interest in the goods of the deceased is not that absolute, proper and ordinary interest, which every one has in his own proper goods. He is a mere trustee to apply the goods for such purposes as are sanctioned by law. 4 T. R. 645; 9 Co. 88; 2 Inst. 236; Off. Ex. 192. He represents the testator, and therefore may sue and recover all the claims he had at the time of his death and may be sued for all debts due by him. 1 Will. Ex. 508, et seq. By the common law, however, such debts as were not due by some writing could not be recovered against the executors of a deceased debtor. The remedy was only in conscience or by a quo minus in the exchequer. Afterwards an action on the case in banco regis was given. Crom t. Jurisdic. 66, b; Plowd. Com. 183: 11 H. VII. 26.
7. The following are the principal duties of an executor: 1. Within a convenient time after the testator's death, to collect the goods of the deceased, provided he can do so peaceably; when he is resisted, he must apply to the law for redress.
8. - 2. To bury the deceased in a manner suitable to the estate he leaves behind him; and when there is just reason to believe he died insolvent, he is not warranted in expending more in funeral expenses (q. v.) than is absolutely necessary. 2 Will. Ex. 636; 1 Salk. 296; 11 Serg. & Rawle, 204 14 Serg. & Rawle, 64.
9. - 3. The executor should prove the will in the proper office.
10. - 4. He should make an inventory (q. v.) of the goods of the intestate, which should be filed in the office.
11. - 5. He should ascertain the debts and credits of the estate, and endeavor to collect all claims with as little delay as possible, consistently with the interest of the estate.
12. - 6. He should advertise for debts and credits: see forms of advertisements, 1 Chit. Pr. 521.
13. - 7. He should reduce the whole of the goods, not specifically bequeathed into money, with all due expedition.
14.-8. Keep the money of the estate safely, but not mixed with his own, or he may be charged interest on it.
15.-9. Be at all times ready to account, and actually file an account within a year.
16. - 10. Pay the debts and legacies in the order required by law.
17. Co-executors, however numerous, are considered, in law, as an individual person, and; consequently, the acts of any one of them, in respect of the administration of the assets, are deemed, generally, the acts of all. Bac. Ab. Executor, D; Touch. 484; for they have all a joint and entire authority over the whole property Off. Ex. 213; 1 Rolle's Ab. 924; Com. Dig. Administration, B 12. On the death of one or more of several joint executors, their rights and powers survive to the survivors.
18.
When there are several executors and all die, the power is in common
transferred to the executor of the last surviving executor, so that he is
executor of the first testator; and the law is the same when a sole executor
dies leaving an executor, the rights are vested in the latter. This rule has
been changed, in
19. Executors may be classed into general and special; instituted and substituted; rightful and executor de son tort; and executor to the tenor.
20. A general executor is one who is appointed to administer the whole estate, without any limit of time or place, or of the subject-matter.
21. A special executor is one. who is appointed or constituted to administer either a part of the estate, or the whole for a limited time, or only in a particular place.
22. An instituted executor is one who is appointed by the testator without any condition, and who has the first right of acting when there are substituted executors. An example will show the difference between an instituted and substituted executor: suppose a man makes his son his executor, but if he will not act, he appoints his brother, and if neither will act, his cousin; here the son is the instituted executor, in the first degree, the brother is said to be substituted in the second degree, and the cousin in the third degree, and so on. See Heir, instituted, and Swinb. pt. 4, s. 19, pl. 1.
23. A substituted executor is a person appointed executor, if another person who has been appointed refuses to act.
24. A rightful executor is one lawfully appointed by the testator, by his will. Deriving his authority from the will, he may do most acts, before he obtains letters testamentary, but he must be possessed of them before. he can declare in action brought by him, as such. 1 P. Wms. 768; Will. on Ex. 173.
25.
An executor de son tort, or of his own wrong, is one, who, without lawful
authority, undertakes to act. as executor of a person deceased. To make fin
executor de son tort, the act of the party must be, 1. Unlawful. 2. By
assertingownership, as taking goods or cancelling a bond, and not committing a mere,
trespass. Dyer, 105, 166; Cro. Eliz. 114. 3. An act done before probate of
will, or granting letters of administration. 1 Salk. 313. One may be executor
de son tort when acting under a forged will, which has been set aside. 3 T. R.
125 . An executor de son tort. The law on this head seems to have been borrowed
from the civil law doctrine of pro hoerede gestio. See Heinnec. Antiq.
Syntagma, lib. 2, tit., 17, §16, p. 468. He is, in general, held responsible
for all his acts, when he does anything which might prejudice the estate, and
receives no, advantage whatever in consequence of his assuming the office. He
cannot sue a debtor of the estate, but may be sued generally as executor. See a
good reading on the liabilities of executors de son tort, in: Godolph. Orph.
Legacy, 91, 93, and 10 Wentw. Pl. 378, for forms of declaring; also, 5
26. - 2. The ussurpation of an office or character cannot confer the rights and privileges of it, although it may charge the usurper with the duties and obligations annexed to it. On this principle an executor de son tort is an executor only for the purpose of being sued, not for the purpose, of suing. In point of form, he is sued as if he were a rightful executor. He is not denominated in the declaration executor (de son tort) of his own wrong. It would be improper to allege that the deceased person with whose estate he has intermeddled died intestate. Nor can he be made a co-defendant with a rightful executor. Ham. Part. 146, 272, 273; Lawes on Plead. 190, note; Com. Dig. Abatement, F 10. If he take out letters of administration, he is still liable to be sued as executor, and in general, it is better to sue him as executor than as administrator. Godolph. 0. Leg. 93, 94, 95, §§2, 3.
27. An executor to the tenor. This phrase is ased in the ecclesiastical law, to denote a person who is not directly appointed by the will an executor, but who is charged with the duties which appertain to one; as, "I appoint A B to discharge all lawful demands against my will." 3 Phill. 116; 1 Eccl. Rep. 374; Swinb. 247 Wentw. Ex. part 4, s. 41 p. 230. Vide. generally, Bouv. Inst. Index, h. t.; 11 Vin. Ab. h. t.; Bac. Ab. h. t.; Rolle, Ab. h. t.; Nelson's Ab. h. t.; Dane's Ab. Index, h. t.; Com. Dig. Administration; 1 Supp. to Ves. jr. 8, 90, 356, 438; 2 Id. 69; 1 Vern. 302-3; Yelv. 84 a; 1 Salk. 318; 18 Engl. C. L. Rep. 185; 10 East, 295; 2 Phil. Ev. 289; 1 Rop. Leg.' 114; American Digests, h. t.; Swinburne, Williams, Lovelass, and Roberts' several treatises on the law of Executors; Off. Ex. per totum; Chit. Pr. Index; h. t. For the various pleas that may be pleaded by executors, see 7 Wentw. Plead. 596, 602; 10 Id. 378; Cowp. 292. For the origin and progress of the law in relation to executors, the reader is referred to 5 Toull. n. 576, note; Glossaire du Droit Francais, par Delauriere, verbo Executeurs Testamentaires, and the same author on art. 297, of the Custom of Paris; Poth. Des Donations Testamen taires.
EXECUTORY. Whatever may be executed; as an executory sentence or judgment, an executory contract.
EXECUTORY DEVISE, estates. An executory devise is a limitation by will of a future contingent interest in lands, contrary to the rules of limitation of contingent estate is in conveyances at law. When the limitation by will does not depart from those rules prescribed for the government of contingent remainders, it is, in that case, a contingent remainder, and not an executory devise. 4 Kent, Com. 257; 1 Eden's R. 27; 8 T. R. 763.
2. An executory devise differs from a contingent remainder, in three material points. 1. It needs no particular estate to precede and support it; for example, a devise to A B, upon his marriage. 2. A fee may be limited after a fee, as in the case of a devise of land to C D, in fee, and if he dies without issue, or before the age of twenty-one, then to E F, in fee. 3. A term for years may be limited over after a life estate created in the same. 2 Bl. Com. 172, 173.
3. To prevent perpetuities, a rule has been adopted that the contingency must happen during the time of a life or lives in being and twenty-one years after, and the months allowed for gestation in order to reach beyond the minority of a person not in esse at the time of making the executory devise. 3 P. Wms. 258; 7 T. R. 100; 2 Bl. Com. 174; 7 Cranch, 456; 1 Gilm. 194; 2 Hayw. 375.
4. There are several kinds of executory devises; two relative to real estate, and one in relation to personal estate.
5.
- 1. When the devisor parts with his whole estate, but upon some contingency,
qualifies the disposition of it, and limits an estate on that contingency. For
example, when the testator devises to Peter for life, remainder to Paul, in
fee, provided that if James should within three months after the death of Peter
pay one hundred dollars to Paul, then to James in fee; this is an executory
devise to James, and if he dies during the life of Peter, his heir may perform
the condition. 10 Mod. 419; Prec. in
6. - 2. When the testator gives a future interest to arise upon a contingency, but does not part with the fee in the meantime; as in the case of a devise of the estate to the heirs of John after the death of John; or a devise to John in fee, to take effect six months after the testator's death; or a devise to the daughter of John, who shall marry Robert within fifteen, years. T. Raym. 82; 1 Salk. 226; 1 Lutw. 798.
7. - 3. The executory bequest of a chattel interest is good, even though the ulterior legatee be not at the time in esse, and chattels so limited are protected from the demands of creditors beyond the life of the first taker, who cannot pledge them, nor dispose of them beyond his own life interest in them. 2 Kent, Com. 285; 2 Serg. & Rawle, 59; l Desaus 271; 4 Desaus.340; 1 Bay, 78. But such a bequest, after an indefinite failure of issue, is bad. See 2 Serg. & R. 62; Watk. Prin. Con. 112, 116; Harg. note, 1 Tho. Co. Litt. 595-6, 515-16. Vide, Com. Dig. Estates by Devise., N 16; Fearne on Rem. 381; Cruise's Dig. Index, h. t.; 4 Kent, Com. 357 to 381; 2 Hill. Ab. c. 43, p. 533.
EXECUTORY PROCESS, via executoria. In Louisiana, this is a process which can be resorted to only in two. cases, namely: 1. When the creditor's right arises-from an act importing a confession of judgment, and which contains a privilege or mortgage in his favor. 2. When the creditor demands the execution of a judgment which has been rendered by a tribunal different from that within whose jurisdiction the execution is sought. Code of Practice, art. 732.
EXECUTORY TRUST. A trust is said to be executory where some further act is requisite to be done by the author of the trust himself or by the trustees, to give it its full, effect; as, in the case of marriage articles; or, as in the case of a will, where, property is vested in trustees in trust to settle or convey.; for, it is apparent in both of these cases, a further act, namely, a settlement or a conveyance, is contemplated.
2. The difference between an executed and an executory trust, is this, that courts of equity in cases of executed trusts will construe the limitations in the same manner as similar legal limit-ations. White's L. C. in Eq. 18. But, in cases of executory trusts, a court of equity is not, as in the case of executed trusts, bound to construe technical expressions with legal strictness, but will mould the trusts according to the intent of the creator of such trusts White's L. C. Eq. 18.
3. When a voluntary trust is executory, and not executed, if it could not be enforced at law, because it is a defective conveyance, it is not helped in equity, in favor of a volunteer. 4 John. Ch. 498, 500; 4 Paige, 305; 1 Dev. Eq. R. 93.
4. But where the trust, though voluntary, has been executed in part, it will be sustained or enforced, in equity. 1 John. Ch. R. 329; 7 Penn. St. R. 175, 178; White's L. C. in Eq. *176; 18 Ves. 140; 1 Keen's R. 551; 6 Ves. 656; 3 Beav. 238.
EXECUTRIX, A woman who has been appointed by. will to execute such will or testament. See Executor.
EXEMPLIFICATION, evidence. A perfect copy of a record, or office book lawfull kept, so far as relates to the matter in question. 3 Bouv. Inst. n. 3107. Vide, generally, 1 Stark. Ev. 151; 1 Phil. Ev. 307; 7 Cranch, 481; 3 Wheat. 234; 10 Wheat. 469; 9 Cranch, 122; 2 Yeates, 532; 1 Hayw. 359; 1 John. Cas. 238. As to the mode of authenticating records of other states, see articles Authentication, and Evidence.
EXEMPTION. A privilege which dispenses with the general rule; for example, in Pennsylvania, and perhaps in all the other staies, clergymen are exempt from serving on juries. Exemptions are generally allowed, not for the benefit of the individual, but for some public advantage.
EXEMPTS. Persons who are not bound by law, but excused from the performance of duties imposed upon others.
2. By the Act of Congress of May 8, 1792, 1 Story, L. U. S. 252, it is provided, §2. That the vice-president of the United States the officers, judicial and executive, of the government of the United States; the members of both houses of congress, and their respective officers; all custom-house officers, with their clerks; all post officers, and stage drivers, who are employed in the care and conveyance of the mail of the post office of the United States; all ferrymen employed at any ferry on the post road; all inspectors of exports; all pilots; all mariners, actually employed in the sea service of any citizen or merchant within the United States; and all persons who now are, or may hereafter be, exempted by the laws of the respective states, Shall be, and are hereby, exempted from militia duty, notwithstanding their being above the age of eighteen, and under the age of forty-five years.
EXEQUATUR, French law. This Latin word was, in the ancient practice, placed at the bottom of a judgment emanating from another tribunal, and was a permission and authority to the officer to execute it within the jurisdiction of the judge who put it below the judgment.
2. We have something of the same kind in our practice. When a warrant for the arrest of a criminal is issued by a justice of the peace of one county, and he flies into another, a justice of the latter county may endorse the warrant and then the ministerial officer may execute it in such county. This is called backing a warrant.
EXEQUATUR, internat. law. A declaration made by the executive of a government near to which a consul has been nominated and appointed , after such nomination and appointment has been notified, addressed to the people, in which is recited the appointment of the foreign state, and that the executive 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, thereto belonging. 3 Chit. Com. Law, 56; 3 Maule & Selw. 290; 5 Pardes. 1445.
EXERCITOR. A term in the civil law, to denote the person who fits out, and equips a vessel, whether he be the absolute or qualified owner, or even a mere agent. Emer. on Mar. Loans, c. 1, s. 1.
2. In English, we generally use the word "ship's hushand," but exercitor is generally used to designate and distinguish from among several part owners of a ship, the one who has the immediate care an management of her. Hall on Mar. Loans 142, n. See Dig. 19, 2, 19, 7; Id. 14, 1 1, 15; Vicat, Vocab.; Ship's hushand.
EXHEREDATION, civil law. The act by which a forced heir is deprived of his legitimate or legal portion which the law gives him; disinherison. (q. v.)
EXHIBIT, practice. Where a paper or other writing is on motion, or on other occasion, proved; or if an affidavit to which the paper writing is annexed, refer to it, it is usual to mark the same with a capital letter, and to add, " This paper writing marked with the letter A, was shown to the deponent at the time of his being sworn by me, and is the writing by him referred to in the affidavit annexed hereto." Such paper or other writing, with this attestation, signed by the judge or other person before whom the affidavit shall have been sworn, is called an exhibit. Vide Stra. 674; 2 P. Wms. 410; Gresl. Eq. Ev. 98.
TO EXHIBIT. To produce a thing publicly, so that it may be taken possession of, or seized. Dig. 10, 4, 2. To exhibit means also to file of record; as, it is the practice in England in personal actions, when an officer or prisoner of the king's bench is defendant, to proceed against such defendant in the court in which he is an officer, by exhibiting, that is, filing a bill against him. Stepb. P.I. 52, n. (1); 2 Sell. Pr. 74. In medical language, to. exhibit signifies to ad minist er, to cause a thing to be taken by a patient. Chit. bled. Jur. 9.
EXHIBlTANT. One who exhibits any thing; one who is complainant in articles of the peace. 12 Adol. & Ellis, 599 40 E. C. L. R. 124.
EXHIBITION, Scotch law. An action for compelling the production of writings. In Pennsylvania, a party possessing writings is compelled, to produce them on proper notice being given, in default of which judgment is rendered against him.
EXIGENT, or EXIGI FACIAS, practice. A writ issued in the course of proceedings to out lawry, deriving its name and application from the mandatory words found therein, signifying, "that you cause to be exacted or required; and it is that proceeding in an outlawry which, with the writ of proclamation, issued at the same time, immediately precedes the writ of capias utlagatum. 2 Virg. Cas. 244.
EXIGIBLE. That which may be exacted demandable; requirable.
EXILE, civil law. The: interdiction of all places except one in which the party is foreed to make his residence.
2. This punishment did not deprive the sufferer of his right of citizenship or of his property, unless the exile were perpetual, in which case confiscation not unfrequently was a part of the sentence. Exile was temporary or perpetual. Dig. 48, 22, 4; Code, 10, 59, 2. Exile differs from deportation, (q. v.) and relegation. (q. v.) Vide, 2 Lev. 191; Co. Litt. 133, a.
EXILIUM. By this term is understood that kind of waste which either drove away the inhabitants into a species of exile, or had a tendency to do so; as the prostrating or extirpating of trees in an orchard or avenue, or about any house. Bac. Ab. Waste, A; Bract. lib. 4, c. 18, s. 13; 1 Reeves' Hist. Law, 386.
EXITUS. Issue,, child, or offspring; rents or profits of land. Cowell, h. v. In pleading, it is the issue, or the end, terminaion, or conclusion of the pleadings, and is so called, because an issue brings the pleadngs to a close. 3 Bl. Com. 314.
EXIGENDARY, Eng. law. An officerwho makes out exigents.
EXOINE, French law. An act or instrument in writing, which contains the reasons why a party in a civil suit, or a person accused, who has been summoned, agreeably to the requisitions of a decree, does not appear. Poth. Proced. Crim. s. 3, art. 3. Vide Essoin.
EXONERATION. The taking off a burden or duty.
2. It is a rule in the distribution of an intestate's estate that the debts which he himself contracted, and for which be mortgaged his land as security, shall be paid out of the personal estate in exoneration of the real.
3. But when the real estate is charged with the payment of a mortgage at the time the intestate buys it, and the purchase is made subject to it, the personal. is not in that case to be applied, in exoneration of the real estate. 2 Pow. Mortg. 780; 5 Hayw. 57; 3 Johns. Ch. R. 229.
4. But the rule for exonerating the real estate out of the personal, does not apply against specific or pecuniary legatees, nor the widow's right to paraphernalia, and with reason not against the interest of creditors. 2 Ves. jr. 64; 1 P. Wms. 693; Id. 729; 2 Id. 120,335; 3 Id. 367. Vide Pow. Mortg. Index, h. t.
EXONERATUR, practice. A short note entered on a bail piece, that the bail is exonerated or discharged in consequence of having fulfilled the condition of his obligation, made by order of the court or of a judge upon a proper cause being shown.
2. A surrender is the most usual cause; but an exoneratur may be entered in other cases, as in case of death of the defendant, or his bankruptcy. 1 Arch. Pr. 280, 281, 282; Tidd's Pr. 240.
EXPATRIATION. The voluntary act of abandoning one's country and becoming the citizen or subject of another.
2. Citizens of the United States have the right to expatriate themselves until restrained by congress; but it seems that a citizen cannot renounce his allegiance to the United States without the permission of government, to be declared by law. To be legal, the expatriation must be for a purpose which is not unlawful, nor in fraud of the duties of the emigrant at home.
3. A citizen may acquire in a foreign country commercial privileges attached to his domicil, and be exempted from the operation of commercial acts embracing only persons resident in the United States or under its protection. 2 Cranch, 120. Vide Serg. Const. Law, 318, 2d ed; 2 Kent, Com. 36; Grotius, B. 2, c. 5, s. 24; Puffend. B. 8, c. 11, s. 2, 3 Vattel, B. 1, c. 19, s. 218, 223, 224, 225 Wyckf. tom. i. 117, 119; 3 Dall. 133; 7 Wheat. 342; 1 Pet. C. C. R. 161; 4 Hall's Law Journ. 461; Bracken. Law Misc. 409; 9 Mass. R. 461. For the doctrine of the English courts on this subject, see 1 Barton's Elem. Conveyancing, 31, note; Vaugh, Rep. 227, 281, 282, 291; 7 Co. Rep. 16 Dyer, 2, 224, 298 b, 300 b; 2 P. Wms. 124; 1 Hale, P. C. 68; 1 Wood. 382.
EXPECTANCY, estates. Having a relation to or dependence upon something future.
2. Estates are of two sorts, either in possession, sometimes called estates executed; or in expectancy, which are executory. Expectancies are, first, created by the parties, called a remainder; or by act of law, called a reversion.
3. A bargain in relation to an expectancy is, in general, considered invalid. 2 Ves. 157; Sel. Cas. in Ch. 8; 1 Bro. C. C. 10; Jer. Eq. Jur. 397.
EXPECTANT. Having relation to, or depending upon something; this word is frequently used in connexion with fee, as fee expectant.
EXPECTATION. That which may be expected, although contingent. In the doctrine of life annuities, that share or number of the years of human life which a person of a given age may expect to live, upon an equality of chances.
2. In general, the heir apparent will be relieved from a contract made in relation to his expectancy. See Post Obit.
EXPENSAE LITIS. Expenses of the suit; the costs which are generally allowed to the successful party.
EXPERTS. From the Latin experti,which signifies, instructed by experience. Persons who are selected by the courts or the parties in a cause on account of their knowledge or skill, to examine, estimate, and ascertain things, and make a report of their opinions. Merl. Repert. mot Expert; 2 Lois des Batimens, 253; 2 N. S. 1 5 N.. S. 557; 3 L. R. 350; 11 L. R. 314 11 S. & R. 336; Ray. Med. Jur. Prel. Views, §29; 3 Bouv. Inst. n. 3208.
EXPILATION, civil law. The crime of abstracting the goods of a succession.
2. This is said not to be a theft, because the property no longer belongs to the deceased, nor to the heir before he has taken possession. In the common law, the grant of letters testamentary, or letters of administration, relate back to the time of the death of the testator or intestate, so that the property of the estate is vested in the executor or administrator from that period.
EXPIRATION. Cessation; end. As, the expiration of, a lease, of a contract, or statute.
2. In general, the expiration of a contract puts an end to all the engagements of the parties, except to those which arise from the non-fulfilinent of obligations created during its existence. For example, the expiration of a partnership so dissolves it, that the parties cannot in general create any new liability, but it still subsists, to enable the parties to fulfil engagements in which the partners have engaged, or to compel others to perform their obligations towards them. See Dissolution; Contracts.
3. When a statute is limited as to time, it expires by mere lapse of time, and then it has no force whatever; and, if such a statute repealed or supplied a former statute, the first statute is, i so facto, revived by the expiration of the repealing statute; 6 Whart. 294; 1 Bland, R. 664 unless it appear that such was not the intention of the legislature. 3 East, 212 Bac. Ab. Statute, D.
EXPORTATION, commercial law. The act of sending goods and merchandise from one country to another. 2 Mann. & Gran. 155; 3 Mann. & Gran. 959.
2. In order to preserve equality among the states, in their commercial relations, the constitution provides that " no tax or duty shall be laid on articles exported from any state." Art. 1, s. 9. And to prevent a pernicipus interference with the commerce of the nation, the 10th section of the 1st article of the constitution contains the following prohibition: " No state shall, without the consent of congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the congress." Vide 12 Wheat. 419; and the article Importation.
EXPOSE' A French word, sometimes applied to a written document, containing the reasons or motives for doing a thing. The word occurs in diplomacy.
EXPOSITION DE PART, French law. The abandonment of a child, unable to take care of itself, either in a public or private place.
2. If the child thus exposed should be killed in consequence of such exposure; as, if it should be devoured by animals, the person thus exposing it would be guilty of murder. Rose. Cr. Ev. 591.
EXPRESS. That which is made known, and not left to implication. The opposite of implied. It is a rule, that when a matter or thing is expressed, it ceases to be implied by law: expressum facit cessare tacitum. Co. Litt. 183; 1 Bouv. Inst. n. 97.
EXPRESSION. The term or use of language employed to explain a thing.
2. It is a general rule, that expressions shall be construed, when they are capable of several significations, so as to give operation to the agreement, act, or will, if it can be done; and an expression is always to be understood in the sense most agreeable to the nature of the contract. Vide Clause; Construction; Equivocal; Interpretation; Words.
EXPROMISSION, civil law. The act by which a creditor accepts a new debtor, who becomes bound instead of the old, the latter being released. It is a species of novation. (q. v.) 1 Bouv. Inst. n. 802. Vide Delegation.
EXPROMMISSOR, civil law. By this term is understood the person who alone becomes bound for the debt of another, whether the latter were obligated or not. He differs from a surety, who is bound together with his principal. Dig. 12, 4, 4; Dig. 16, 1, 13; Id. 24, 3, 64, 4; Id. 38, 1, 37, 8.
EXPULSION. The act of depriving a member of a body politic, corporate, or of a society, of his right of membership therein, by the vote of such body or society, for some violation of hi's. duties as such, or for some offence which renders him unworthy of longer remaining a member of the same.
2.
By the Constitution of the
3. - 1. That the senate may expel a member for a high misdemeanor, such as a conspiracy to commit treason. Its authority is not confined to an act done in its presence.
4.
- 2. That a previous conviction is, not requisite, in order to authorize the
senate to expel a member from their body, for a high: offence against the
5. - 3. That although a bill of indictment against a party for treason and misdemeanor has been abandoned, because a previous indictment against the principal party had terminated in an acquittal, owing to the inadmissibility of the evidence upon that indictment, yet the senate may examine the evidence for themselves, and if it be sufficient to satisfy their. minds that the party is guilty of a high misdemeanor it is a sufficient ground of expulsion.
6. - 4. That the 6th and 6th articles of the amendments of the Constitution of the United States, containing the general rights and privileges of the citizen, as to criminal prosecutions, refer only to prosecutions at law, and do not affect the jurisdiction of the senate as to expulsion.
7. - 5. That before a committee of the senate, appointed to report an opinion relative to the honor and privileges of the senate, and the facts respecting the conduct of the member implicated, such member is not entitied to be heard in his defence by counsel, to have compulsory process for witnesses, and to be confronted with his accusers. It is before the senate that the member charged is entitled to be heard.
8. - 6. - In determining on expulsion, the senate is not bound by the forms of judicial proceedings, or the rules of judicial evidence; nor, it seems, is the same degree of proof essential which is required to convict of a crime. The power of expulsion must, in its nature, be discretionary, and its exercise of a more summary character. 1 Hall's Law Journ. 459, 465.
9. Corporations have the right of expulsion in certain cases, as such power is necessary to the good order and government of corporate bodies; and the cases in which the inherent power may be exercised are of three kinds. 1. When an offence is committed which has no immediate relation to a member's corporate duty, but is of so infamous a nature as renders him unfit for the, society of honest men; such as the offences of perjury, forgery, and the like. But before an expulsion is made for a cause of this kind, it is necessary that there should be a previous conviction by a jury, according to the law of the land. 2. When the offence is against his duty as a corporator, in which case he may be expelled on trial and conviction before the corporation. 3. The third is of a mixed nature, against the member's duty. as a corporator, and also indictable by the law of the land. 2 Binn.448. See, also, 2 Burr., 536.
10.
Members of what are called joint stock incorporated companies, or indeed
members of any corporation owning property, cannot, without express authority
in the charter, be expelled, and thus deprived of their interest in the general
fund. Ang. & Ames on Corp. 238. See; generally, Ang. & Ames on Corp.
ch. 11; Willcock, on Mun. Cor . 270; 1
EXTENSION, comm. law. 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 former, embarrassed in his circumstances, to retrieve his standing, agree to wait for a definite length of time after their several claims should become due and payable, before they will demand payment.
2. Among the French, a similar agreement is known by the name of atermoiement. Merl. Rep. mot Atermoiement.
EXTENT IN AID, English practice. An exchequer process, formerly much used, and now liable to be abused; it is regulated by 57 Geo. III. o. 117.
EXTENT IN CHIEF, English practice. An execution issuing out of the exchequer at the suit 'of the crown. It is a mere "fiscal writ. See. West on Extents; 2 Tidd. Index.
2. When land was extended at a valuation too low, there was no remedy at common law but to pay the money. 15 H. VII. Nor yet in chancery, unless there was fraud, because the extent was made by the oath of a jury, and deemed reasonable according to the writ of extent for that cause: otherwise every verdict might be examined in a court of chancery. Crompt. on. Jurisdic. 55 a.
EXTENUATION. That which renders a crime or tort less heinous than it would be without it: it is opposed to aggravation. (q. v. )
2. In general, extenuating circumstances go in mitigation of punishment in criminal cases, or of damages in those of a civil nature. See Aggravation; Mitigation.
EXTERRITORIALITY. This term 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, ambassadors, ministers plenipotentiary, and ministers from a foreign power, are of this class. Foelix, Droit Intern. Prive, liv. 2, tit. 2, c. 2, s. 4. See Ambassador; Conflict of Laws; Minister.
EXTINCTION OF A THING. When a thing which is the subject of a contract has been destroyed, the contract is of course rescinded as, for example, if Paul sell his horse Napoleon to Peter, and promises to deliver him to the buyer in ten days, and in the mean time the horse dies, the contract is rescinded, as it is impossible to deliver a thing which is not in esse; but if Paul engage to deliver a horse to Peter in ten days, and, for the purpose of fulfilling his contract, he buys a horse and it die, this is no cause for rescinding the contract, because he can buy another and complete it afterwards. When the subject of the contract is an individual, and not generally one of a species, the contract may be rescinded; when it is one of a species which has been destroyed, then, it may still be completed, and it will be enforced. Lec. El. Dr. Rom. §1009.
EXTINGUISHMENT, contracts. The destruction of a right or contract - the act by which a contract is made void.
2. Art extinguishment may be by matter of fact and by matter of law. 1. 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 John. 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, the latter is extinguished 3 Stew. 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. Litt. 147. See Merger.
3. There are numerous cases where the claim is extinguished b 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. Pet. C. C. 301; see 2 John. 213. Vide, generally, Bouv. Inst. Index, h. t.; 2 Root, 492; 3 Conn. 62; 1 Hamm. 187; 11 John. 513; 4 Conn. 428; 6 Conn. 373; 1 Halst. 190 4 N. H. Rep. 251 Co. Litt. 147 b; 1 Roll. Ab. 933 7 Vin. Ab. 367; 11 Vin. Ab. 461; 18 Vin. Ab. 493 to 515 3 Nels. Ab. 818; 14 Serg. & Rawle, 209; Bac. Ab. h. t.; 5 Whart. R. 541. Vide Discharge of a Debt.
EXTORSIVELY. A technical word used in indictments for extortion. In North Carolina, it seems, the crime of extortion may be charged without using this word. 1 Hayw. R. 406.
EXTORTION, crimes. In a large sense it, signifies any oppression, under color of right: but in a more strict sense it means 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. Com. 141; 1 Hawk. P. C. c. 68, s. 1; 1 Russ. Cr. *144. To constitute extortion, there must be the receipt of money or something of value; the taking a promissory note, which is void, is. not sufficient to make an extortion. 2 Mass. R. 523; see Bac. Ab. h. t.; Co. Litt. 168. It is extortion and oppression for an officer to take money for the performance of his duty, even though it be in the exercise of a discretionary power. 2 Burr. 927. It differs from exaction. (q. v.) See 6 Cowen, R. 661; 1 Caines, R. 130; 13 S. & R. 426 1 Yeates, 71; 1 South. 324; 3 Penna. R. 183; 7 Pick. 279; 1 Pick. 171.
EXTRA-DOTAL PROPERTY. In Louisiana this term is used to designate that property which forms no part of the dowry of a woman, and which is also called paraphernal property. Civ. Co. Lo. art. 2315. Vide Dotal Property.
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 beyond the way, or make a new assignment. 16 East, 343, 349.
EXTRACT. A part of a writing. In general this 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 the extracts from the registers of births, marriages and burials, kept according to law, when the whole of the matter has been extracted which relates to the cause or matter in issue.
EXTRADITION, civil law. The act of sending, by authority of law, a person accused of a crime to a foreign jurisdiction where it was committed, in' order that he may be tried there. Merl. Rep. h. t.
2.
By the constitution and laws of the
3.
The government of the
4.
As to when the extradition or delivery of the supposed criminal is complete is
not very certain. A case occurred in,
EXTRAJUDICIAL. That which does not belong to the judge or his jurisdiction, notwithstanding which he takes. cognizance of it. Extrajudicial judgments and acts are absolutely void. Vide Coram non judice, and Merl. Repert. mots Exces de Pouvoir.
EXTRAVAGANTES, canon law. This is 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 Boniface. VIII., the Clementines, and at last the extravagantes 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 divided into books like the decretals.
EXTREMIS. When a person is sick beyond the hope of recovery, and near death, he is said to be in extremism.
2. A will made in this condition, if made without undue influence, by a person of sound mind, is valid.
3.
The declarations of persons in extremis, when made with a full consciousness of
approaching death, ate admissible in evidence when the death of the person
making them is the subject of the charge, and the circumstances of the death
the subject of such declarations. 2 B. & C. 605 S. C. 9
EY.
A watery place; water.
EYE-WITNESS. One who saw the act or fact to which he testifies. When an eye-witness testifies, and is a man of intelligence and integrity, much reliance must be placed on his testimony, for he has the means of making known the truth.
EYOTT. A small island arising in a river. Fleta, lib. 3, c. 2, s. b; Bract. lib. 2, c. 2. See lsand.
EYRE.
Vide
F, punishment, English law. Formerly felons were branded and marked with a hot iron, with this letter, on being admitted to the benefit of clergy.
FACIO UT DES. A species of contract in the civil law, which occurs when a man agrees to perform anything for a price, either specifically mentioned or left to the determination of the law to set a value on it. As when a servant hires himself to his master for certain wages or an agreed sum of money. 2 Bl. Com. 445.
FACIO UT FACIAS. A species of contract in the civil law, which occurs when I agree with a man to do his work for him if he will do mine for me. Or if two persons agree to marry together, or to do any other positive acts on both sides. Or it may be to forbear on one side in consideration of something done on the other. 2 Bl. Com. 444.
FACT. An action; a thing done. It is either simple or compound.
2. A fact is simple when it expresses a purely material act unconnected with any moral qualification; for example, to say Peter went into his house, is to express a simple fact. A compound fact contains the materiality of the act, and the qualification which that act has in its connexion with morals and, the law. To say, then, that Peter has stolen a horse, is to express a compound fact; for the fact of stealing, expresses at the same time, the material fact of taking the horse, and of taking him with the guilty intention of depriving the owner of his property and appropriating it to his own use; which is a violation of the law of property.
3. Fact. is also put in opposition to law; in every case which has to be tried there are facts to be established, and the law which bears on those facts.
4. Facts are also to be considered as material or immaterial. Material facts are those which are essential to the right of action or defence, and therefore of the substance of the one or the other - these must always be proved; or immaterial, which are those not essential to the cause of action these need not be proved. 3 Bouv. Inst. n. 3150-53.
5. Facts are generally determined by a jury,; but there are many facts, which, not being the principal matters in issue, may be decided by the court; such, for example, whether a subpoena has or has not been served; whether a party has or has not been summoned, &c. As to pleading material facts, see Gould. Pl. c. 3, s. 28. As to quality of facts proved, see 3 Bouv. Inst. n. 3150. Vide Eng. Ece. R. 401-2, and the article Circumstances.
FACTO. In fact, in contradistinction to the lawfulness of the thing; it is applied to anything actually done. Vide Expostfacto.
FACTOR, contracts. An agent employed to sell goods or merchandise consigned or delivered to him by, or for his principal, for a compensation commonly called factorage or commission. Paley on Ag. 13; 1 Liverin. on Ag. 68; Story on Ag. §33; Com. Dig. Merchant, B; Mal. Lex Merc. 81; Beawes, Lex Merc. 44; 3 Chit. Com. Law, 193; 2 Kent, Com. 622, note d, 3d. ed.; 1 Bell's Com. 385, §408, 409 2 B. & Ald. 143. He is also called a commission merchaut, or consignee.
2. When he resides in the same state or country with his principal, he is called a home factor; and a foreign factor when he resides in a different state or country. 3 Chit. Com. Law, 193; 1 T. R. 112; 4 M. & S. 576; 1 Bell's Com. 289, §313.
3. When the agent accompanies the ship, taking a cargo aboard, and it is consigned to him for sale, and he is to purchase a return cargo out of the proceeds, such agent is properly called a factor; he is, however, usually known by the name of a supercargo. Beawes, Lex More. 44, 47; Liverm. on Ag. 69, 70; 1 Domat, b. 1, t. 16, §3, art. 2.
4. A factor differs. from a broker, in some important particulars, namely; he may buy and sell for his principal in his own name, as well as in the name of his principal; on the contrary, a broker acting as such should buy and sell in the name of his principal. 3 Chit. Com. Law, 193, 2101 541; 2 B. & Ald. 143, 148; 8 Kent, Com. 622, note d, 3d. ed. Again, a factor is entrusted with the possession, management, disposal, and control of the goods to be bought and sold, and has a special property and a lien on them; the broker, on the contrary, has usually no such possession, management, control, or disposal of the goods, nor any such special property nor lien. Paley on Ag. 13, Lloyd's ed; 1 Bell's Com. 385.
5. Before proceeding further it will be proper to consider the difference which exists in the liability of a home or domestic factor and a foreign factor.
6 . By the usages of trade, or intendment of law, when domestic factors are employed in the ordinary business of buying and selling goods, it is presumed that a reciprocal credit between, the principal and the agent and third persons has been given. When a purchase has been made by such a factor, he, as well as his principal, is deemed liable for the debt; and in case of a sale, the buyer is responsible both to the factor and principal for the purchase money; but this presumption may be rebutted by proof of exclusive credit. Story, Ag. §§267, 291, 293; Paley, Ag. 243, 371; 9 B. & C. 78; 15 East, R. 62.
7. Foreign factors, or those acting for principals residing in a foreign country, are held personally liable upon all contracts made by them for their employers, whether they describe themselves in the contract as agents or not. In such cases, the presumption is, that the credit is given exclusively to the factor. But this presumption may be rebutted by a proof of a contrary agreement. Story, Ag. §268; Paley, Ag. 248, 373; Bull. N. P. 130; Smith, Merc. Law, 66; 2 Liverm. Ag. 249; 1 B. & P. 398; 15 East, R. 62; 9 B. & C. 78.
8. A factor is liable to duties, which will be first considered; and, afterwards, a statement of his rights will be made.
9. - 1. His duties. He is required to use reasonable skill and ordinary diligence in his vocation; in general, he has a right to sell the goods, but he cannot pawn them. The latter, branch of this rule, however, is altered by statute in some of the states. See Act of Penna. April 14, 1834, §3, 4, 6, postea, 20. He is bound to obey his instructions, but when he has none, he may and ought to act according to the general usages of trade sell for cash, when that is usual, or give credit on sales, when that is customary. He is bound to render a just account to his principal, and to pay him the moneys he may receive for him.
10. - 2. His rights. He has the right to sell the goods in his own name; and, when untrammeled by instructions, he may sell them at such times and for such prices, as, in the exercise of a just discretion, he may think best for his employer. 3 Man. Gran. & Scott, 380. He is, for many purposes, between himself and third persons, to be considered as the owner of the goods. He may, therefore, recover the price of goods sold by him, in his own name, and, consequently, he may receive payment and give receipts, and discharge the debtgor, unless, indeed, notice has been given by the principal to the debtor not to pay. He has a lien on the goods for advances made by him, and for his commissions.
11. Mr. Bell, in his Commentaries, vol. 1, page 265, 5th ed., lays down the following rules with regard to the rights of the principal, in those cases in which the goods in the factor's hands have been changed in the course of his transactions.
12. - 1. When the factor has sold the goods of his principal, and failed before the price of the goods has been paid, the principal is the creditor, and. entitled to a preference over the creditors of the factor. Cook's B. L. 4th ed. p. 400.
13. - 2. When bills have been taken for the price, and are still it the factor's hands, undiscounted at his failure; or where goods have been taken in return for those sold; the principal is entitled to them, as forming no part of the divisible fund. Willes, R. 400.
14. - 3. When the price has been paid in money, coin, bank notes, &c., it remains the property of the principal, if kept distinct as his. 5 T. la. 277; 2 Burr. 1369 5 Ves. Jr. 169; 2 Mont. B. L. 233, notes.
15. - 4. When a bill received for goods, or placed with the factor, has been discounted, or when money coming into his hands has been paid away, the endorsee of the bill, or the person receiving the money, will be free from all claim at the instance of the principal. Vide 1 B. & P. 539, 648.
16. - 5. When the factor sinks the name of the principal entirely; as, where he is employed to sell goods, and receives a del credere commission, for which he engages to guarantee the payment to the principal, it is not the practice to communicate the names of the purchasers to the principal, except where the factor fails. Under these circumstances, the following points have the principal is the creditor of the buyer, and has a direct action against him for the price. Cook's B. L. 400; and vide Bull. N. P. 42 2 Stra. 1 1 82. But persons contracting with the factor in his own name, and bona fide, are entitled to set off the factor's debt to them. 7 T. R. 360. 2. Where the factor is entrusted with the money or property of his principal to buy stock, bills, and the like, and misapplies it, the produce will be the principal's, if clearly distinguishable. 8 M. & S. 562.
17. - 6. When the factor purchases goods for the behalf of his principal, but on his own general, current account, without mention of the principal, the goods vest in the factor, and the principal has only an obligation against the factor's estate. But when the factor, after purchasing the goods, writes to his principal that he has bought such a quantity of goods in consequence of his order, and that they are lying in his warehouse, or elsewhere, the property would seem to be vested in the principal.
18. It may therefore be laid down as a general rule, that when the property remitted by the principal, or acquired for him by his order, is found distinguishable in the hands of the factor, capable of being traced by a clear and connected chain of identity, in no one link of it degenerating from a specific trust into a general debt, the creditors of the factor, who has become bankrupt, have no right to the specific property. Much discrimination is requisite in the application of this doctrine, as may be seen by the case of Ex parte Sayers, 5 Ves. Jr. 169.
19. A factor has no right to barter the goods of his principal, nor to pledge them for the purpose of raising money for himself, or to secure a debt he may owe. See ante, 9-1. But he may pledge them for advances made to his principal, or for the purpose of raising money for him, or in order to reimburse himself to the amount of his own lien. 2 Kent, Com. 3d. ed:, 625 to 628; 4 John. R., 103; Story on Bailm. §325, 326, 327. Another exception to the general rule that a factor cannot pledge the goods of his principal, is, that he may raise money b pledging the goods, for the payment of 'duties, or any other charge or purpose allowed or justified by the usages of trade. 2 Gall. 13; 6 Serg. & Rawle, 386; Paley on Ag. 217; 3 Esp. R. 182.
20. The legislature of Pennsylvania, by an act entitled " An act for the amendment of the law relating to factors passed April 14, 1834, have made the following provisions. This act was prepared by the persons appointed to revise the civil code of that state, and was adopted without alteration by the legislature. It is here inserted, with a belief that it will be found useful to the commercial lawyer of the other states.
21. - §1. Whenever any person entrusted with merchandise, and having authority to sell or consign the same, shall ship, or otherwise transmit tile same to any other person, such other person shall have a lien thereon.
22. - I. For any money advanced, or negotiable security given by him on the faith of such consignment, to or for the use of the person in whose name such merchandise was shipped or transmitted.
23. - II. For any money or negotiable security, received for the use of such consignee, by the person, in whose name such merchandise was shipped or transmitted.
24.- §2. But such lien shall not exist for any of the purposes aforesaid, if such consignee shall have notice by the bill of lading, or otherwise,bef ore the time of such advance or receipt, that the person in whose name such merchandise was shipped or transmitted, is not the actual owner thereof.
25. - §3. Whenever any consignee or factor, having possession of merchandise, with authority to sell the same, or having possession of any bill of lading, permit, certificate, receipt, or order, for the delivery of merchandise, with the like authority, shall deposit or pledge such merchandise, or any part thereof, with any other person, as a security for any money advanced, or negotiable instrument given by him on the faith thereof; such other person shall acquire, by virtue of such contract, the same interest in, and authority over, the said merchandise, as, he would have acquired thereby if such consignee or factor had been the actual owner thereof. Provided, That such person shall not have notice by such document or otherwise, before the time of such advance or receipt, that the holder of such merchandise or document is not the actual owner of such merchandise.
26. - §4. If any person shall accept or take such merchandise or document from any such consignee or factor, in deposit or pledge for any debt or demand previously due by, or existing against, such consignee or factor, and without notice as aforesaid, and if any person shall accept or take such merchandise or document from any such consignee or factor, in deposit or pledge, without notice or knowledge that the person making such deposit or pledge, is a consignee or factor only, in every such case the person accepting or taking such. merchandise or document in deposit or pledge, shall acquire the same right and interest in such merchandise as was possessed, or could have been enforced, by such consignee or factor against his principal at the time of making such deposit or pledge, and further or other right or interest.
27.
- §5. Nothing in this act contained shall be construed or taken:
I. To affect any lien which a. consignee or factor may possess at law, for the
expenses and charges attending the shipment, or transmission and care of
merchandise consigned, or otherwise intrusted to him.
28. - II. Nor to prevent the actual owner of merchandise from recovering the same from such consignee or factor, before the same shall have been deposited or pledged as aforesaid, or from the assignees or trustees of such consignee or factor, in the event of his insolvency.
29. - III. Nor to prevent such owner from recovering any merchandise, so as aforesaid deposited or pledged, upon tender of the money, or of restoration of any negotiable instrument so advanced, or given to such consignee or factor, and upon tender of such further sum of money, or of restoration of such other negotiable instrument, if any, as may have been advanced or given by such consignee or factor to such owner, or on tender of a sum of money equal to the amount of such instrument.
30. - IV. Nor to prevent such owner from recovering, from the person accepting or taking such merchandise in deposit or pledge, any balance or sum. of money remaining in his hands as the produce of the sale of such merchandise, after deducting the amount of money or the negotiable instrument so advanced or given upon the security thereof as aforesaid.
31. - §6. If any consignee or factor shall deposite or pledge any merchandise or document as aforesaid, consigned or intrusted to him as a security for any money borrowed, or negotiable instrument received by such consignee or factor, and shall apply and dispose of the same to his own use, in violation of good faith, and with intent to defraud the owner of such merchandise, and if any consignee or factor shall, with the like fraudulent intent, apply or dispose of, to his own use, any money or negotiable instrument, raised or acquired by the sale or other disposition of such merchandise, such consignee or factor shall, in every such case, be deemed guilty of a misdemeanor, and shall be punished by a fine, not exceeding two thousand dollars, and by imprisonment, for a term not exceeding five years.
FACTORAGE. The wages or allowances paid to a factor for his services; it is more usual to call this commissions. 1 Bouv. Inst. n. 1013; 2 Id. n. 1288.
FACTORY, 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's Com. 259.
FACTUM. A deed. a man's own act and deed.
2. When a man denies by his plea that he made a deed on which he is sued, be pleads non estfactum. (q. v.) Vide Deed; Fait.
FACTUM, French law. A memoir which contains summarily 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 party. Vide Brief.
FACULTY, canon law. A license; an authority. 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.
2. 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 T. R. 429, 432; 12 Co. R. 106.
FACULTY, Scotch law. Equivalent to ability or pow-er. 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. Kames on Eq. 504.
FAILURE. A total defect; an omission; a non-performance. Failure also signifies a stoppage of payment; as, there has been a failure to-day, some one has stopped payment.
2. According to the French code of commerce, art. 437, every merchant or trader who suspends payment is in a state of failure. Vide Bankruptcy; Insolvency.
FAILURE, OF ISSUE. When there is a want of issue to take an estate limited over by an executory devise.
2. Failure of issue is definite or indefinite. When the precise time for the failure of issue is fixed by the will, as is the case of a devise to Peter, but if he dies without issue living at the time of his death, then to another, this is a failure of issue definite. An indefinite failure of issue is the very converse or opposite of this, and it signifies a general failure of issue, whenever it may happen, without fixing any time, or a certain or definite period, within which it must happen. 2 Bouv. Inst. n. 1849.
FAILURE OF RECORD. The neglect to produce the record after having pleaded it. When a defendant pleads a matter, and offers to prove it by the record, and then pleads nul tiel 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 entitled to judgment. Termes de lay Ley. See the form of entering it; 1 Saund. 92, n. 3.
FAINT PLEADER. A false, fraudulent, or collusory manner of pleading, to the deception of a third person. 3 E. I., c. 19.
FAIR. A privileged market.
2. In England, fairs are granted by the king's patent.
3. In the United States, fairs are almost unknown. They are recognized in Alabama; Aik. Dig. 409, note; and in North Carolina, where they are regulated by statute. 1 N. C. Rev. St. 282. See Domat, Dr. Public, liv. 1, t. 7, s. 3, n. 1.
FAIR-PLAY MEN. About the year 1769, there was a tract of country in Pennsylvania, situate between Lycoming creek and Pine creek, in which the proprietaries prohibited the making of surveys, as it was doubtful whether it had or had not been ceded by the Indians. Although settlements were forbidden, yet adventurers 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 boundaries. Their decisions were final, and enforeed by the whole community en masse. Their decisions are said to have been just and equitable. 2 Smith's Laws of Pennsylvania 195; Serg. Land Laws, 77. "
FAlR PLEADER. This is the name of a writ given, by the statute of Marlebridge, 52 H. III., c. ii. Vide Beau Pleader.
FAIT, conveyancing. A deed lawfully executed. Com. Dig . h. t.; Cunn. Dictl. h. t.
FAITH. Probity; good faith is the very soul of contracts. Faith also signifies confidence, belief; as, full faith and credit ought to be given to the acts of a magistrate while acting within his jurisdiction. Vide Bona fide.
FALCIDIAN LAW, civil law, plebiscitum. A statute or law enacted by the people, made during the reign of Augustus, on the proposition of Falcidius, who was a tribune in the year of Rome 714.
2. Its principal provision gave power to fathers 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.
3. The same rule, somewhat modified, has been adopted in Louisiana; "donations inter vivos or mortis causal" says the Civil Code, art. 1480, "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."
4. By the common law, the power of the father to give his property is unlimited. He may bequeath it to his children equally, to, one in preference to another, or to a stranger, in exclusion of the whole of them. Over his real estate, his wife has a right of dower, or a similar right given to her by act of assembly, in, perhaps, all the states.
FALSE Not true; as, false pretences; unjust, unlawful, as, false imprisonment. This his word, is frequently used in composition.
FALSE IMPRISONMENT. torts. Any intentional detention of the person of another not authorized by law, is false imprisonment. 1 Bald. 571; 9 N. H. Rep. 491; 2 Brev. R. 157. It is any illegal imprisonment, without any process whatever, or under color of process wholly illegal, without regard to the question whether any crime has been committed, or a debt due. 1 Chit. Pr. 48; 5 Verm. 588; 3 Blackf. 46; 3 Wend. 350 5 Wend. 298; 9 John. 117; 1 A. K. Marsh. 845; Kirby, 65; Hardin 249.
2. The remedy is, in order to be restored to liberty, by writ of habeas corpus, and to recover damages for the injury, by action of trespass vi et armis. To punish the wrong done to the public, by the false imprisonment of an individual, the offender may be indicted. 4 Bl. Com. 218, 219; 2 Burr. 993. Vide Bac. Ab. Trespass, D 3 Dane's Ab. Index, h. t. Vide 9 N. H. Rep. 491; 2 Brev. R. 157; Malicious Prosecution; Regular and Irregular Process.
FALSE JUDGMENT, Eng. law. The name of a writ which lies when a false judgment has been given in the county court, court baron, or other courts not of record. F. N. B. 17, 18 3 Bouv. Inst. n. 3364.
FALSE PRETENCES, criminal law. False representations and statements, made with a fraudulent design, to obtain " money, goods, wares, and merchandise-" with intent to cheat. 2 Bouv. Inst. n. 2308.
2. This subject may be considered under the following heads:. 1. The nature. of the false pretence. 2. What must be obtained. 3. The intent.
3. - 1. When the false pretence is such as to impose upon a person of ordinary caution, it will doubtless be sufficient. 11 Wend. R. 557. But although it may be difficult to restrain false pretences to such as an ordinarily prudent man may avoid, yet it is not every absurd or irrational pretence which will be sufficient. 2 East, P. C. 828. It is not necessary that all the pretences should be false, if one of them, per se, is sufficient to constitute the offence. 14 Wend. 547. And although other circumstances may have induced the credit, or the delivery of the property, yet it will be sufficient if the false pretences had such an influence that, without them, the credit would not have been given, or the property delivered. 11 Wend. R. 557; 14 Wend. R. 547; 13 Wend. Rep. 87. The false pretences must have been used before the contract was completed. 14 Wend. Rep. 546; 13 Wend. Rep. 311. In North Carolina, the cheat must be effected by means of some token or contrivance adapted to impose on an ordinary mind. 3 Hawks, R. 620; 4 Pick. R. 178.
4. - 2. The wording of the statutes of the several states on this subject is not the same, as to the acts which are indictable. In Pennsylvania, the words of the act are, "every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by any false pretence whatever, obtain from any person any money, personal property or other valuable, things," &c. In Massachusetts, the intent must be to obtain "money, goods, wares, merchandise, or other things." Stat. of 1815, c. 136. In New York, the words are "money, goods, or chattels, or other effects." Under this statute it has been holden that obtaining a signature to a note; 13 Wend. R. 87; or an endorsement on a promissory note; 9 Wend. Rep. 190; fell within the spirit of the statute; and that where credit was obtained by false pretence, it was also within the statute. 12 John. R. 292.
5. - 3. There must be an intent to cheat or defraud same person. Russ. & Ry. 317; 1 Stark. Rep. 396. This may be inferred from a false representation. 13 Wend. R. 87. The intent is all that is requisite; it is not necessary that the party defrauded should sustain any loss. 11 Wend. R. 18; 1 Carr. & Marsh. 516, 537.
FALSE RETURN. A return made by the sheriff, or other ministerial officer, to a writ in which is stated a fact contrary to the truth, and injurious to one of the parties or some one having an interest in it.
2. In this case the officer is liable for damages to the party injured. .2 Esp. Cas. 475. See Falso retorno brevium.
FALSE TOKEN. A false document or sign of the existence of a fact, in general used for the purpose of fraud. Vide Token, and 2 Stark. Ev. 563.
FALSEHOOD. A wilful act or declaration contrary to truth. It is committed either by the wilful act of the party, or by dissimulation, or by words. It is wilful, 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 wilfully declare the thing is his own, when he knows that it is not so. It is committed by dissimulation when a creditor, having an understanding with his former debtor, sells the land of the latter, although he has been paid the debt which was due to him.
2. Falsehood by word is committed when a witness swears to what he knows not to be true. Falsehood is usually attendant on crime. Roscoe, Cr. Ev. 362.
3. A slander must be false to entitle the plaintiff to recover damages. But whether a libel be true or false the writer or publisher may be indicted for it. Bul N. P. 9; Selw. N. P. 1047 , note 6; 5 Co. 125; Hawk. B. 1, c. 73, s. 6. Vide Dig. 48, 10, 31; Id. 22, 6, 2; Code, 9, 22, 20.
4. It is a general rule, that if a witness testifies falsely as to any one material fact, the whole of his testimony must be rejected but still the jury may consider whether the wrong statement be of such character, as to entitle the witness to be believed in other respects. 5 Shepl. R. 267. See Lie.
TO FALSIFY, crim. law. To prove a thing to be false; as, " to falsify a record." Tech. Dict.; Co. Litt. 104 b. To alter or make false a record. This is punishable at common law. Vide Forgery.
2. By the Act of Congress of April 30, 1790, s. 15, 1 Story's L. U. S. 86, it is enacted, that if any person shall feloniously steal, take away, alter, falsify, or otherwise avoid, any record, writ, process, or other proceedings in any of the courts of the United States, by means whereof any judgment shall be reversed, made void, or not take effect; or if any person shall acknowledge, or procure to be acknowledged, in any of the courts. aforesaid, any recognizance, bail, or judgment, in the name or names of any other person or persons not privy or consenting to the same, every such person, or persons, on conviction thereof, shall be fined not exceeding five thousand dollars, or be imprisoned not exceeding seven years, and be whipped not exceeding thirty-nine stripes'. Provided nevertheless, that this act shall not extend to the acknowledgment of any judgment or judgments by any attorney or attorneys, duly admitted, for any person or persons against whom any such judgment or judgments shall be had or given.
TO FALSIFY, chancery practice. When a bill to open an account has been filed, the plaintiff is sometimes allowed to surcharge and falsify such account; and if any thing has been inserted that is a wrong charge, he is at liberty to show it, and that is a falsification. 2 Ves. 565; 11 Wheat. 237. See Account stated; Surcharge.
FALSO RETORNO BREVIUM, old English law. The name of a writ which might have been sued out against a sheriff, for falsely returning writs. Cunn. Dict.
FAMILY, domestic relations. In a limited sense it signifies the father, mother, and children. In a more extensive sense it comprehends all the individuals who live under the authority of another, and includes the servants of the family. It is also employed to signify all the relations who descend from a common ancestor, or who spring from a common root. Louis. Code, art. 3522, No. 16; 9 Ves. 323.
2. In the construction of wills, the word family, when applied to personal property is synonymous with kindred, or relations. It may, nevertheless, be confined to particular relations 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 relations by marriage. 1 Rop. on Leg. 115 1 Hov. Supp. 365, notes, 6 and 7; Brown v. Higgs; 4 Ves. 708; 2 Ves. jr. 110; 3 East, Rep. 172 5 Ves. 156 1,7 Ves. 255 S. 126. Vide article Legatee. See Dig. lib. 50, t. 16, 1. 195, s. 2.
FAMILY ARRANGEMENTS. This term has been used to signify an agreement 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.
2. In these cases frequently the mere relation, of the parties will give effect to bargains otherwise without adequate consideration. 1 Chit. Pr. 67 1 Turn. & Russ. 13.
FAMILY BIBLE. A Bible containing an account of the births, marriages, and deaths of the members of a family.
2 An entry, by the father, made in a Bible, stating that Peter, his eldest son, was born in. lawful wedlock of Maria, his wife, at a time specified, is evidence to prove the legitimacy of Peter. 4 Campb. 401. But the entry, in order to be evidence, must be an original entry, and, when it is not so, the loss of the original must be proved before the copy can be received. 6 Serg. Rawle, 135. See 10 Watts, R. 82.
FAMILY EXPENSES. The sum which it costs a man to maintain a family.
2. Merchants and traders who desire to exhibit the true state of their affairs in their books, keep an exact account of family expenses, which, in case of failure, is very important, and at all times proper.
FAMILY MEETINGS. Family councils, or family meetings in Louisiana, are meetings of at least five relations, or in default of relations of minors or other persons on whose interest they are called upon to deliberate, then of the friends of such minors or other persons.
2. 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, beginning with the nearest. The relation is preferred to the connexion in the same degree, and among relations of the same degree, the eldest is preferred. The under tutor must also be present. 6 N. S. 455.
3. The family meeting is held before a justice of the peace, or notary public, appointed by the judge for the purpose. It is called for a fixed day and hour, by citations delivered at least three days before the day appointed for the purpose.'
4. The members of the family meeting, before commencing their deliberations, take an oath before the officer before whom the meeting is held,, to give their advice according to the best of their knowledge, touching the interests of the person on whom they are called upon to deliberate. The officer before whom the family meeting is held, must make a particular process-verbal of the deliberations, cause the members of the family meeting to sign it, if they know how to sign, he must sign it himself, and deliver a copy to the parties that they may have it homologated. Civil Code of Louis. B. 1, tit. 8, c. 1, s. 6, art. 305 to 311; Code Civ. B. 1, tit. 10, c. 2, A. 4.
FAMOSUS LIBELLUS. Among the civilians these words signified that species of injuria which corresponds nearly to libel or slander.
FANEGA, Spanish law. A measure of land, which is not the same in every province. Diccionario de la Acad.; 2 White's Coll. 49. In Spanish America, the fanega consisted of six thousand and four hundred square varas or yards. 2 White's Coll. 138.
FARE. It signifies a voyage or passage; in its modern application, it is the money paid for a passage. 1 Bouv. Inst. n. 1036.
FARM, estates. A portion or tract of land, some of which is cultivated. 2 Binn. 238. In parlance, and for the purpose of description in a deed, a farm means: a messuage with out-buildings, gardens, orchard, yard, and land usually occupied with the same for agricultural purposes; Plowd. 195 Touch. 93; 1 Tho. Co. Litt. 208, 209, n. N; but in the English law, and particularly in a description in a declaration in ejectment, it denotes a leasehold interest for years in any real property, and means anything which is held by a person who stands in the relation of tenant to a landlord. 6 T. R. 532; 2 Chit. Pl. 879, n. e.
2. By the conveyance of a farm, will pass a messuage, arable land, meadow, pasture, wood, &c., belonging to or used with it. 1 Inst. 5, a; Touch. 93; 4 Cruise, 321; Bro. Grants, 155; Plowd. 167.
3. In a will, the word farm may pass a freehold, if it appear that such was the intention of the testator. 6 T. R. 345; 9 East, 448. See 6 East, 604, n; 8 East, 339.
To FARM LET. These words in a lease have the effect of creating a lease for years. Co. Litt. 45 b; 2 Mod. 250.
FARMER. One who is lessee of a farm. it is said that every lessee for life or years, although it be but of a small house and land, is called farmer. This word implies no mystery except it be that of hushandman. Cunn. Dict. h. t. In common parlance, a farmer is one who cultivates a farm, whether he be the owner of it or not.
FARO, crim. law. There is a species of game called faro-table, or faro-bank, which is forbidden by law in many states; and the persons who keep it for the purpose of playing for money or other valuable thing, may generally be indicted at common law for a nuisance. 1 Roger's Rec. 66. It is played with cards in this manner: a pack of cards is displayed on the table so that the face of each card may be seen by the spectators. The man who keeps the bank, as it is termed, and who is called the banker, sits by the table with another pack of cards, and a bag containing money, some of which is displayed, or sometimes instead of money, chips, or small pieces of ivory or other substance are used. The parties who play with the banker, are called punters or pointeurs. Suppose the banker and A, a punter, wish to play for five dollars, the banker shuffles the pack which he holds in his hand, while A lays his money intended to be bet, say five dollars, on any card he may choose as aforesaid. The banker then runs the cards alternately into two piles, one on the right the other on the left, until he reaches, in the pack, the card corresponding to that on which A has laid his money. If, in this alternative, the card chosen comes on the right hand, the banker takes up the money. If on the other, A is entitled to five dollars from the banker. Several persons are usually engaged at the same table with the banker. 1 Rog. Rec. 66, note; Encycl. Amer. h. t.
FARRIER. One who takes upon himself the public employment of shoeing horses.
2. Like an innkeeper, a common carrier, and other persons who assume a public employment, a farrier is bound to serve the public as far as his employment goes, and an action lies against him for refusing, when a horse is brought to him at a reasonable time for such purpose, if he refuse; Oliph . on Horses, 131 and he is liable for the unskilfulness of himself or servant in performing such work 1 Bl. Com. 431; but not for the malicious act of the servant in purposely driving a nail into the foot of the horse, with the intention of laming him. 2 Salk. 440.
FATHER, domestic relations. He by whom a child is begotten.
2. A father is the natural guardian of his children, and his duty by the natural law consists in maintaining them and educating them during their infancy, and making a necessary provision for their happiness in life. This latter, however, is a duty which the law does not enforce.
3. By law, the father is bound to support his children, if of sufficient ability, even though they have property of their own. 1 Bro. C. C. 387; 4 Mass. R. 97; 2 Mass. R. 415 5 Rawle, 323. But he is not bound, without some agreement, to pay another for maintaining them; 9 C. & P. 497; nor is he bound to pay their debts, unless he has authorized them to be contracted. 38 E. C. L. R. 195, n. See 8 Watts, R. 366 1 Craig. & Phil. 317; Bind; Nother; Parent. This obligation ceases as soon as the child becomes of age, unless he becomes chargeable to the public. 1 Ld. Ray. 699.
4. The rights of the father are authority over his children, to enforce all his lawful commands, and to correct with moderation his children for disobedience. A father may delegate his power over the person of his child to a tutor or instructor, the better to accomplish the purposes of his education. This power ceases on the arrival of the child at the age of twenty-one years. Generally, the father is entitled to the services of his children during their minority. 4 S. & R. 207; Bouv. Inst. Index, h. t.
FATHER-IN-LAW. In latin, socer, is the father of one's wife, or of one's hushand.
FATHER. PUTATIVE. A reputed father. Vide Putative father.
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. See Ell. Vide Measure.
FATUOUS PERSON. One entirely destitute of reason; is qui omnino desipit. Ersk. Inst. B. 1, tit. 7, s. 48.
FAUBOURG. A district or part of a town adjoinng the principal city; as, a faubourg of New Orleans. 18 Lo. R. 286.
FAULT, contracts, civil law. An improper act or omission, which arises from ignorance, carelessness, or negligence. The act or omission must not have been meditated, and must have caused some injury to another. Lec. Elcm. §783. See Dolus, Negligence. 1 Miles' Rep. 40.
2. - 1. Faults or negligence are usually divided into, gross, ordinary, and slight: 1. Gross fault or neglect, consists in not observing that care towards others, which a man the least attentive, usually takes of his own affairs. Such fault may, in some cases, afford a presumption of fraud, and in very gross cases it approaches so near, as to be almost undistinguishable from it, especially when the facts seem hardly consistent with an honest intention. But there may be a gross fault without fraud. 2 Str. 1099; Story, Bailm. §18-22; Toullier, 1. 3, t. 3, §231. 2. Ordinary faults consist in the omission of that care which mankind generally pay to their own concerns; that is, the want of ordinary diligence. 3. A slight fault consists in the want of that care which very attentive persons take of their own affairs. This fault assimilates itself, and, in some cases, is scarcely distinguishable, from mere accident, or want of foresight. This division has been adopted by common lawyers from the civil law. Although the civilians generally agree in this division, yet they are not without a difference of opinion. See Pothier, Observation generale, sur le precedent Traite, et sur les suivants; printed at the end of his Traite des Obligations, where he cites Accurse, Alciat, Cujas, Duaren, D'Avezan, Vinnius, and Heineccius, in support of this division. On the other side the reader is referred to Thomasius, tom. 2, Dissertationem, pago 1006; Le Brun, cited by Jones, Bailm. 27; and Toullier, Droit Civil Francais, liv. 3, tit. 3, §231.
3. - 2. These principles established, different rules have been made as to the responsibilities of parties for their faults in relation to their contracts. They are reduced by Pothier to three.
4.- I. In those contracts where the party derives no benefit from his undertaking, he is answerable only for his gross faults.
5.-2. In those contracts where the parties have a reciprocal interest, as in the contract of sale, they are responsible for ordinary neglect.
6. - 3. In those contracts where the party receives the only advantage, as in the case of loan for use, he is answerable for his slight fault. Poth. Observ. Generale; Traite des Oblig. §142; Jones, Bailm. 119 Story, Bailm. 12. See also Ayliffe, Pand. 108. Civ. C. Lou. 3522; 1 Com. Dig. 41 3; 5 Id. 184; Wesk. on Ins. 370.
FAUX, French law. A falsification or fraudulent alteration or suppression of a thing by words, by writings, or by acts without either. Biret, Vocabulaire des Six Codes.
2. The crimen falsi of the civil law. Toullier says, "Le faux s'entend de trois manieres: dans le sons le plus etendre, c'est l'alteration de la verite, avec ou sans mauvaises intentions; il est a peu pres synonyme de mensonge; dans un sens moins etendu, c'est l'alteration de la verite, accompagnee de dol, mutatio veritatis cum dolo facta; enfin, dans le sens etroit, ou plutot legal du mot, quand il s'agit de savoir si le faux est un crime, le faux est I'alteration frauduleuse de la verite, dans les determines et punis par la loi." Tom. 9, n. 188. "Faux may be understood in three ways: in its most extended sense, it is the alteration of truth, with or without intention; it is nearly synonymous with lying; in a less extended sense, it is the alteration of truth, accompanied with fraud, mutatio veritatis cum dolo facta; and lastly, in a narrow, or rather the legal sense of the word, when it is a question to know if the faux be a crime, it is the fraudulent alteration of the truth, in those cases ascertained and punished by the law." See Crimen Falsi.
FAVOR. Bias partiality; lenity; prejudice.
2. The grand jury are sworn to inquire into all offences which have been committed, and of all violations of law, without fear, favor, or affection. Vide Grand Jury. When a juror is influenced by bias or prejudice, so that there is not sufficient ground for a principal challenge, he may nevertheless be challenged for favor. Vide Challenge, and Bac. Ab. Juries, E; Dig. 50, 17, 156, 4; 7 Pet. R. 160.
FEAL. Faithful. This word is not used.
FEALTY. Fidelity, allegiance.
2. Under the feudal system, every owner of lands held them of some superior lord, from whom or from whose ancestors, the tenant had received them. By this connexion the lord became bound to protect the tenant in the enjoyment of the land granted to him; and, on the other hand, the tenant was bound to be faithful to his lord,, and defend him against all his enemies. This obligation was called fidelitas, or fealty. 1 Bl. Com. 366; 2 Bl. Com. 86; Co. Litt. 67, b; 2 Bouv. Inst. n. 1566.
FEAR, crim. law. Dread, consciousness of approaching danger.
2. Fear in the person robbed is one of the ingredients required. to constitute a robbery from the person, and without this the felonious taking of the property is a larceny. It is not necessary that the owner of the property should be in fear of his own person, but fear of violence to the person of his child; 2 East, P. C. 718; or of his property; Id. 731 2 Russ. 72; is sufficient. 2 Russ. 71 to 90. Vide Putting in fear, and Ayl. Pand. tit. 12, p. 106.; Dig. 4, 2, 3 an d 6.
FEASTS. Certain established periods in the Christian church. Formerly, the days of the feasts of saints were used to indicate the dates of instruments, and memorable events. 18 Toull. n. 81. These are yet used in England; there they have Easter term, Hilary term, &c.
FEDERAL, government. This term is commonly used to express a league or compact between two or more states.
2. In the United States the central government of the Union is federal. The constitution was adopted "to form a more perfect union" among the states, for the purpose of self-protection and for the promotion of their mutual happiness.
FEE, FEODUM or FEUDUM, estates. From the French, fief. A fee is an estate which may continue forever. The word fee is explained to signify that the land, or other subject of property, belongs to its owner, and is transmissible, in the case of an individual, to those whom the law appoints to succeed him, under the appellation of heirs; and in the case of corporate bodies, to those who are to take on themselves the corporate function; and from the manner in which the body is to be continued, are denominated successors. 1 Co. Litt. 1, 271, b; Wright's Ten. 147, 150; 2 Bl. Com. 104. 106; Bouv. Inst. Index h. t.
2. Estates in fee are of several sorts, and have different denominations, according to their several natures and respective qualities. They 'may with propriety be divided into, 1. Fees simple. 2 . Fees determinable. 3. Fees qualified. 4. Fees conditional and 5. Fees tail.
3. - 1. A fee simple is an estate inlands or tenements which, in reference to the ownership of individuals, is not restrained to any heirs in particular, nor subject to any condition or collateral determination except the laws of escheat and the canons of descent, by which it may, be qualified, abridged or defeated. In other words, an estate in fee simple absolute, is an estate limited to a person and his heirs general or indefinite. Watk. Prin. Con. 76. And the omission of the word `his' will not vitiate the estate, nor are the words "and assigns forever" necessary to create it, although usually added. Co. Litt. 7, b 9, b; 237, b Plowd. 28, b; 29, a; Bro. Abr. Estates, 4. 1 Co. Litt. 1, b; Plowd. 557 2 Bl. Com. 104, 106 Hale's Analysis, 74. The word fee simple is sometimes used by the best writers on the law as contrasted with estates tail. 1 Co. Litt. 19. In this sense, the term comprehends all other fees as well as the estate, properly, and in strict propriety of technical language, peculiarly' distinguished by this appellation.
4. - 2. A determinable fee is an estate which may continue forever. Plowd. 557; Shep. Touch. 97. It is a quality of this estate while it falls under this denomination, that it is liable to be determined by some act or event, expressed on its limitation, to circumscribe its continuance, or inferred by the law as bounding its extent. 2 Bl. Com. 109. Limitations to a man. and his heirs, till the marriage of such. a person shall take place; Cro. Jac. 593; 10 Vin. Abr. 133; till debts shall be paid; Fearne, 187 until a minor shall attain the age of twenty-one years 3 Atk. 74 Ambler, 204; 9 Mod. 28 10 Vin. Abr. 203. Feariae, 342; are instances of such a determinable fee.
5. - 3. Qualified fee, is an interest given on its, first limitation, to a man and to certain of his heirs, and not to extend to all of them generally, nor confined to the issue of his body. A limitation to a man and his heirs on the part of his father, affords an example of this species of estate. Litt. 254 1 Inst. 27, a 220; 1 Prest. on Estates, 449.
6. - . A conditional fee, in the more general acceptation of the term, is when, to the limitation of an estate a condition is annexed, which renders the estate liable to be defeated. 10 Rep. 95, b. In this application of the term, either a determinable or a qualified fee may at the same time be a conditional fee. An estate limited to a man and his heirs, to commence on the performance of a condition, is also frequently described by this appellation. Prest. on East. 476; Fearne, 9. 7. - 5. As to fee-tail, see Tail.
FEE FARM, Eng. law. A perpetual farm or rent. 1 Tho. Co. Litt. 446, n. 5.
FEE FARM RENT, contracts, Eng. law. When the lord, upon the creation of a tenancy, reserves to himself and his heirs, either the rent for which it was before let to farm, or at least one-fourth part of that farm rent, it is called a fee farm rent, because a farm rent is reserved upon a grant in fee. 2 Inst. 44.
FEES, compensation. Certain perquisites allowed by law to officers concerned in the administration of justice, or in the performance of duties required by law, as a recompense for their labor and trouble. Bac. Ab. h. t.; Latch, 18.
2. The term fees differs from costs in this, that the former are, as above mentioned, a recompense to the officer for his services, and the latter, an indemnification to the, party for money laid out and expended in his suit. 11 S. & R. 248; 9 Wheat. 262; See 4 Binn. 267. Vide Costs; Color of office; Exaction; Extortion.
FEIGNED ACTION, practice. An action brought on a pretended right, when the plaintiff has no true cause of action, for some illegal purpose. In a feigned action the words of the writ are true; it differs from false action, in which case the words of the writ are false. Co. Litt. 361, sect. 689. Vide Fictitious action.
FEIGNED issue, pract. An issue brought by consent of the parties, or the direction of a court of equity, or such courts as possess equitable powers, to determine before a jury some disputed matter of fact, which the court has not the power or is unwilling to decide. 3 Bl. Com. 452; Bouv. Inst. Index, h. t
FELO DE SE, criminal law. A felon of himself; a self-murderer.
2. To be guilty of this offence, the deceased must have had the will and intention of committing it, or else be committed no crime. As he is beyond the reach of human laws, he cannot be punished; the English law, indeed, attempts to inflict a punishment by a barbarous burial of his body, and by forfeiting to the king the property which he owned, and which would belong to his relations. Hawk. P. C. c. 9; 4 Bl. Com. 189. The charter of privileges granted by William Penn to the inhabitants of Pennsylvania, contains the following clause: "If any person, through temptation or melancholy, shall destroy himself, his estate, real and personal, shall, notwithstanding, (descend to his wife and children, or relations, as if he had died a natural death."
FELON, crimes. One convicted and sentenced for a felony.
2. A felon is infamous, and cannot fill any office, or become a witness in any case, unless pardoned, except in cases of absolute necessity, for his own preservation, and defence; as, for example, an affidavit in relation to the irregularity of a judgment in a cause in which he is a party. 2 Salk. R. 461; 2 Str. 1148;. Martin's R. 25; Stark. Ev. part 2, tit. Infamy. As to the effect of a conviction in one state, where the witness is offered in another, see 17 Mass. R. 515 2 Harr. & McHen. R. 120, 378; 1 Harr. & Johns. R. 572. As to the effect upon a copartnership by one of the partners becoming a felon, see 2 Bouv. Inst. n. 1493.
FELONIOUSLY, pleadings. This is a technical word which must be introduced into every indictment for a felony, charging the offence to have been committed feloniously; no other word, nor any circumlocution, will supply its place. Com. Dig. Indictment, G 6; Bac. Ab. Indictment, G 1; 2 Hale, 172, 184; Hawk. B. 2. c. 25, s. 55 Cro. C. C. 37; Burn's Just. Indict. ix.; Williams' Just. Indict. iv.-, Cro. Eliz. 193; 5 Co. 121; 1 Chit. Cr. Law, 242.
FELONY, crimes. An offence which occasions a total forfeiture of. either lands or goods, or both, at common law, to which capital or other punishment may be super-added, according to the degree of guilt. 4 Bl. Com, 94, 5; 1 Russ. Cr. *42; 1 Chit. Pract. 14; Co. Litt . 391; 1 Hawk. P. C. c. 37; 5 Wheat. R. 153, 159.
FEMALE. This term denotes the sex which bears young.
2. It is a general rule, that the young of female animals which belong to us, are ours, nam fetus ventrem sequitur. Inst. 2, 1, 19; Dig. 6, 1, 5, 2. The rule is, in general, the same with regard to slaves; but when a female slave comes into. a free state, even without the consent of her master, and is there delivered of a child, the latter is free. Vide Feminine; Gender; Masculine.
FEME, or, more properly,
FEMME. Woman.
2. This word is frequently used in law. Baron and feme, hushand and wife; feme covert, a. married woman; feme sole, a single woman.
3. A feme covert, is a married woman. A feme covert may sue and be sued at law, and will be treated as a feme sole, when the hushand is civiliter mortuus. Bac. Ab. Baron and Feme, M; see article, Parties to Actions, part 1, section l, §7, n. 3; or where, as it has been decided in England, he is an alien and has left the country, or has never been in it. 2 Esp. R. 554; 1 B. & P. 357. And courts of equity will treat a married woman as a, feme sole, so as to enable her to sue or be sued, whenever her hushand has abjured the realm, been transported for felony, or is civilly dead. And when she has a separate property, she may sue her hushand in respect of such property, with the assist ance of a next friend of her own selection. Story, Eq. Pl. §61; Story, Eq . Jur. §1368; and see article, Parties to a suit in equity, 1, n. 2; Bouv. Inst. Index, h. t.
4. Coverture subjects a woman to some duties and disabilities, and gives her some rights and immunities, to which she would not be entitled as a feme sole. These are considered under the articles, Marriage, (q. v.) and Wife. (q. v.)
5. A feme sole trader, is a married woman who trades and deals on her own account, independently of her hushand. By the custom of London, a feme covert, being a sole trader, may sue and be sued in the city courts, as a feme sole, with reference to her transactions in London. Bac. Ab. Baron and Feme, M. 6. In Pennsylvania, where any mariners or others go abroad, leaving their wives at shop-keeping, or to work for their livelihood at any other trade, all such wives are declared to be feme sole traders, with ability to sue and be sued, without naming the hushands. Act of February 22, 1718. See Poth. De la Puissance du Mari, n. 20.
7. By a more recent act, April 11, 1848, of the same state, it is provided, that in all cases where debts may be contracted for necessaries for the support and maintenance of the family of any married woman, it shall be lawful for the creditor, in such case, to institute suit against the hushand and wife for the price of such necessaries, and after obtaining a judgment, have an execution against the hushand alone and if no property of the said hushand be found, the officer executing the said writ shall so return, and thereupon an alias execution may be issued, which may be levied upon and satisfied out of the separate property of the wife, secured to her under the provisions of the first section of this act. Provided, That judgment shall not be rendered against the wife, in such joint action, unless it shall have be proved that the debt sued for in such action, was contracted by the wife, or incurred for articles necessary for the support of the family of the said hushand and wife.
FEMININE. What belongs to the female sex.
2. When the feminine is used, it is generally confined to females; as, if a man bequeathed all his mares to his son, his horses would not pass. Vide: 3 Brev. R. 9 Gender; Man; Masculine.
FENCE. A building or erection between two contiguous estates, so as to divide them; or on the same estate, so as to divide one part from another.
2. Fences are regulated by the local laws. In general, fences on boundaries are to be built on the line, and the expense, when made no more expensively than is required by the law, is borne equally between the parties. See the following cases on the subject. 2 Miles, 337, 395; 2 Greenl. 72; 11 Mass. 294; 3 Wend. 142; 2 Metc. 180; 15 Conn. 526 2 Miles, 447; Bouv. Inst. Index, h. t.
3. A partition fence is presumed to be the common property of both owners of the land. 8 B. & C. 257, 259, note a. When built upon the land of one of them, it is his; but if it were built equally upon the land of both, at their joint expense, each would be the owner in severalty of the part standing on his own land. 5 Taunt. 20; 2 Greenl. Ev. 617.
FEOD. The same as fief. Vide Fief or Feud.
FEOFFMENT, conveyancing. A gift of any corporeal hereditaments to another. It operates by transmutation of possession, and it is essential to its completion that the seisin be passed. Watk. Prin. Conv. 183. This term also signifiesthe instrument or deed by which such hereditament is conveyed.
2. This instrument was used as one of the earliest modes of conveyance of the common law. It signified, originally, the grant of a feud or fee; but it came, in time, to signify the grant of a free inheritance in fee, respect being had to the perpetuity of the estate granted, rather than to the feudal tenure. The feoffment was, likewise, accompanied by livery of seisin. The conveyance, by feoffment, with livery of seisin, has become infrequent, if not obsolete, in England; and in this country it has not been used in practice. Cruise, Dig. t. 32, c. 4. s. 3; Touchs. c. 9; 2 Bl. Corn. 20; Co. Litt. 9; 4 Kent, Com. 467; Perk.. c. 3; Com. Dig. h. t.; 12 Vin. Ab. 167; Bac. Ab. h. t. in pr.; Doct. Plac. 271; Dane's Ab. c. 104, a. 3, s. 4. He who gives or enfeoffs is called the feoffor; and the person enfeoffed is denominated the feoffee. 2 Bl. Com. 20. See 2 Bouv. Inst. n. 2045, note.
FERAE. Wild, savage, not tame.
FERAE BESTIAE. Wild beasts. See Animals; Ferae naturce.
FERAE NATURAE. Of a wild nature.
2. This term is used to designate animals which are not usually tamed. Such animals belong to the person who has captured them only while they are in his power for if they regain their liberty his property in them instantly ceases, unless they have animum revertendi, which is to be known only by their habit of returning. 2 Bl. Com. 386; 3 Binn. 546; Bro. Ab. Propertie, 37; Com. Dig. Biens, F; 7 Co. 17, b; 1 Chit. Pr. 87; Inst. 2, 1, 15; 13 Vin. Ab. 207.
3. Property in animals ferae naturae is not acquired by hunting them and pursuing them; if, therefore, another person kill such animal in the sight of the pursuer, he has a right to appropriate it to his own use. 3 Caines, 175. But if the pursuer brings the animal within his own control, as by entrapping it, or wounding it mortally, so as to render escape impossible, it then belongs to him. Id. Though if he abandons it, another person may afterwards acquire property in the animal. 20 John. 75. The owner of land has a qualified property in animals ferae naturae, when, in consequence of their inability and youth, they cannot go away. See Y. B. 12 H. VIII., 9 B, 10 A 2 Bl. Com. 394; Bac. Ab. Game. Vide Whelp.
FERM or FEARM. By this ancient word is meant land, fundus; (q. v.) and, it is said, houses and tenements may pass by it. Co. Litt. 5 a.
FERRY. A place where persons and things are taken across a river or other stream in boats or other vessels, for hire. 4 N. S. 426; S. C. 3 Harr. Lo. R. 341.
2. In England a ferry is considered a franchise which cannot be set up without the king's license. In most, perhaps all of the United States, ferries are regulated by statute.
3. The termini of a ferry are at the water's edge. 15 Pick. R. 254 and see 8 Greenl. R. 367; 4 John. Ch. R., 161; 2 Porter, R. 296; 7 Pick. R. 448; 2 Car. Law Repos. 69; 2 Dev. R. 403; 1 Murph. 279 1 Hayw. R. 457; Vin. Ab. h. t.; Com. Dig. Piscary B: 6 B. & Cr. 703; 12 East, R. 333; 1 Bail. R. 469; 3 Watts, R. 219 1 Yeates, R. 167; 9 S. & R. 26.
FERRYMAN. One employed in taking persons across a river or other stream, in boats or other contrivances at a ferry. The owner of a ferry is not considered a ferryman, when it is rented and in the possession of a tenant. Minor, R. 366.
2. Ferrymen are considered as common carriers, and are therefore the legal judges to decide when it is proper to pass over or not. 1 M'Cord, R. 444 Id. 157 1 N. & M. 19; 2 N. & M. 17. They are to regulate how the property to be taken across shall be put in their boats or flats; 1 M'Cord 157; and as soon as the carriage is fairly on the drop or slip of a fat, although driven by the owner's servant, it is in possession of the ferryman, and he is answerable. 1 M'Cord's R. 439.
FESTINUM REMEDIUM. A speedy remedy.
2. This is said of those cases where the remedy for the redress of an injury is given without any unnecessary delay. Bac. Ab. Assise, A. The action of Dower is festinum remedium, and so is Assise.
FETTERS. A sort of iron put on the legs of malefactors, or persons accused of crimes.
2. When a prisoner is brought into court to plead he shall not be put in fetters. 2 Inst. 315; 3 Inst. 34; 2 Hale, 119; Hawk. b. 21 c. 28, s. 1 Kel. 10; 1 Chitty's Cr. Law, 417. An officer having arrested a defendant on a civil suit, or a person accused of a crime, has no right to handcuff him unless it is necessary, or he has attempted to make his escape. 4 B. & C. 596; 10 Engl. C. L. Rep. 412, S. C.
FEUD. This word, in Scotland, signifies a combination of kindred to revenge injuries or affronts done to any of their blood. Vide Fief.
FEUDA. In the early feudal times grants were made, in the first place, only during the pleasure of the grantor, and called muncra; (q. v.) afterwards for life, called beneficia; (q. v.) and, finally, they were extended to the vassal and his sons, and then they acquired the name offeudal. Dalr. Feud. Pr. 199.
FEUDAL. A term applied to whatever concerned a feud; as feudal law: feudal rights.
FEUDAL LAW. By this phrase is understood a political system which placed men and estates under hierarchical and multiplied distinctions of lords and vassals. The principal features of this system were the following.
2. The right to all lands was vested in the sovereign. These were, parcelled out among the great men of the nation by its chief, to be held of him, so that the king had the Dominum directum, and the grantee or vassal, had what was called Dominum utile. It was a maxim nulle terre sans seigneur. These tenants were bound to perform services to the king, generally of a military character. These great lords again granted parts of the lands. they thus acquired, to other inferior vassals, who held under them, and were bound to perform services to the lord.
3. The principles of the feudal law will be found in Littleton's Tenures Wright's Tenures; 2 Blackstone's Com. c. 5 Dalrymple's History of Feudal Property; Sullivan's Lectures; Book of Fiefs; Spellman, Treatise of Feuds and Tenures; Le Grand Coutumier; the Salic Laws; The Capitularies; Les Establissements de St. touis; Assizes de Jerusalem; Poth. Des Fiefs. Merl. Rep. Feodalite; Dalloz, Dict. Feodalit 6; Guizot, Essais sur I'Histoire de France, Essai 5eme.
4. In the United States the feudal law never was in its full vigor, though some of its principles are still retained. "Those principles are so interwoven with every part of our jurisprudence," says Ch. J. Tilghman, 3 S. & R. 447, " that to attempt to eradicate them would be to destroy the whole. They are massy stones worked into the foundation of our legal edifice. Most of the inconveniences attending them, have been removed, and the few that remain can be easily removed, by acts of the legislature." See 3 Kent, Com. 509, 4th ed.
FIAR, Scotch law. He whose property is burdened with a life rent. Ersk. Pr. of L. Scot. B. 2, t. 9, s. 23.
FIAT, practice. An order of a judge, or of an officer, whose authority, to be signified by his signature, is necessary to authenticate the particular acts.
FICTION OF LAW. The assumption that a certain thing is true, and which gives to a person or thing, a quality which is not natural to it, and establishes, consequently, a certain disposition, which, without the fiction, would be repugnant to reason and to truth. It is an order of things which does not exist, but which the law prescribe; or authorizes it differs from presumption, because it establishes as true, something which is false; whereas presumption supplies the proof of something true. Dalloz, Dict. h. t. See 1 Toull. 171, n. 203; 2 Toull. 217, n. 203; 11 Toull. 11, n. 10, note 2; Ferguson, Moral Philosophy, part 5, c. 10, s. 3 Burgess on Insolvency, 139, 140; Report of the Revisers of the Civil Code of Pennsylvania, March 1, 1832, p. 8.
2. The law never feigns what is impossible fictum est id quod factum non est sed fieri potuit. Fiction is like art; it imitates nature, but never disfigures it it aids truth, but it ought never to destroy it. It may well suppose that what was possible, but which is not, exists; but it will never feign that what was impossible, actually is. D'Aguesseau, Oeuvres, tome iv. page 427, 47e Plaidoyer.
3. Fictions were invented by the Roman praetors, who, not possessing the power to abrogate the law, were nevertheless willing to derogate from it, under the pretence of doing equity. Fiction is the resource of weakness, which, in order to obtain its object, assumes as a fact, what is known to be contrary to truth: when the legislator desires to accomplish his object, he need not feign, he commands. Fictions of law owe their origin to the legislative usurpations of the bench. 4 Benth. Ev. 300.
4. It is said that every fiction must be framed according to the rules of law, and that every legal fiction must have equity for its object. 10 Co. 42; 10 Price's R. 154; Cowp. 177. To prevent, their evil effects, they are not allowed to be carried further than the reasons which introduced them necessarily require. 1 Lill. Ab. 610; Hawk. 320; Best on Pres. §20.
5. The law abounds in fictions. That an estate is in abeyance; the doctrine of remitter, by which a party who has been disseised of his freehold, and afterwards acquires a defective title, is remitted to his former good title; that one thing done today, is considered as done, at a preceding time by the doctrine of relation; that, because one thing is proved, another shall be presumed to be true, which is the case in all presumptions; that the heir, executor, and administrator stand by representation, in the place of the deceased are all fictions of law. "Our various introduction of John Doe and Richard Roe," says Mr. Evans, (Poth. on Ob. by Evans, vol. n. p. 43,) "our solemn process upon disseisin by Hugh Hunt; our casually losing and finding a ship (which never was in Europe) in the parish of St. Mary Le Bow, in the ward of Cheap; our trying the validity of a will by an imaginary, wager of five pounds; our imagining and compassing the king's death, by giving information which may defeat an attack upon an enewy's settlement in the antipodes our charge of picking a pocket, or forging a bill with force and arms; of neglecting to repair a bridge, against the peace of our lord the king, his crown and dignity are circumstances, which, looked at by themselves, would convey an impression of no very favorable nature, with respect to the wisdom of our jurisprudence." Vide 13 Vin. Ab. 209; Merl. Rep. h. t.; Dane's Ab. Index, h. t.; and Rey, des Inst. de I'Angl. tome 2, p. 219, where he severely cesures these fictions as absurd and useless.
FICTITIOUS Pretended; supposed; as, fictitious actions; fictitious payee.
FICTITIOUS ACTIONS, Practice. Suits brought. on pretended rights.
2. They are sometimes brought, usually on a pretended wager, for the purpose of obtaining the opinion of the court on a point of law. Courts of justice were constituted for the purpose of deciding really existing questions of right between parties, and they are not bound to answer impertinent questions which persons think proper to ask them in the form of an action on a wager. 12 East, 248. Such an attempt has been held to be a contempt of court; and Lord Hardwicke in such a case committed the parties and their attorneys. Rep. temp. Hardw. 237. See also Comb. 425; 1. Co. 83; 6 Cranch, 147-8. Vide Feigned actions.
3. The court of the king's bench fined an attorney forty pounds for stating a special case for the opinion of the court, the greater part of which statement was fictitious. 3 Barn. & Cr. 597; S. C. 10 E. C. L. R. 193.
FICTITIOUS PAYEE, contract. A supposed person; a payee, who has no existence.
2. When the name of a fictitious payee has been used, in making a bill of exchange, and it has been endorsed in such name, it is considered as having the effect of a bill payble to bearer, and a bona fide holder, ignorant of that fact, may recover on it, against all prior parties who were privy, to the transaction. 2 H. Bl. 178, 288; 3 T. R. 174, 182, 481; 3 Bro. C. C. 238. Vide Bills of Exchange, §1.
FIDEI-COMMISSARY, 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 our law. 2 Bouv. Inst. n. 1895, note.
FIDEI-COMMISSUM, civil law. A gift which a man makes to another, through the agency of a third person, who is requested to perform the desire of the giver. For example, when a testator writes, "I institute for my heir, Lucius Titius," he may add, "I pray my heir, Lucius Titius, to deliver, as soon as he shall be able, my succession to Caius Seius: cum igitur aliquis scripserit Lucius Tilius heres esto; potest ajicere, rogo te Luci Titi, ut cum poteris hereditatem meam adire, eam Caio Sceio reddas, restituas. Inst. 2, 23, 2; vide Code 6, 42.
2. Fidei-commissa were abolished in Louisiana by the code. 5 N. S. 302.
3. The uses of the common law, it is said, were borrowed from the Roman fidei-commissum. 1 Cru. Dig. 388; Bac. Read. 19; 1 Madd. Ch. 446-7.
4. The fidei-coimmissa of the civil law, have been supposed to resemble entails, though some writers have declared that the Roman law was a stranger to entails. 2 Bouv. Inst. n. 1708.
FIDE-JUSSIO, civil law. The contract of suretyship.
FIDE-JUSSOR, civil law. One who becomes security for the debt of another, promising to pay it in case the principal does not do so.
2. He differs from 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 fulfil his engagement. Dig. 12, 4, 4; Id. 16, 1, 13; Id. 24, 3, 64; Id. 38, 1, 37; Id. 50, 17, 110, and 14, 6, 20; Hall's Pr. 33; Dunl. Ad. Pr. 300; Clerke's Prax. tit. 63, 4, 5.
3. The obligation of the fide-jussor was an accessory contract, for, if the principal obligation was not previously contracted, his engagement then took the name of mandate. Lec. Elem. §872; Code Nap. 2012.
FIDUCIA, civil law. A contract by which we sell a thing to some one, that is, transmit to him the property of the thing, with the solemn forms of emancipation, on condition that he will sell it back to us. This species of contract took place in the emancipation of children, in testaments, and in pledges. Poth. Pand. h. t.
FIDUCIARY. This term is borrowed from the civil law. The Roman laws called a fiduciary heir, the person who was instituted heir, and who was charged to deliver the succession to a person designated by the testament. Merl. Repert. h. t. But Pothier, Pand. vol. 22, h. t., says that fiduciarius heres properly signifies the person to whom a testator has sold his inheritance, under the condition that he should sell it to another. Fiduciary may be defined to be, in trust, in confidence.
2. A fiduciary contract is defined to be, an agreement by which a person delivers a thing to another, on the condition that he will restore it to him. The following formula was employed:' Ut inter bonos agere opportet, ne propter te fidemque tuam frauder. Cicer. de Offc. lib. 3, cap. 13; Lec. du Dr. Civ. Rom. §237, 238. See 2 How. S. C. Rep. 202, 208; 6 Watts & Serg. 18; 7 Watts, 415.
FIEF, or FEUD. In its origin, a fief was a district of country allotted to one of the chiefs who invaded the Roman empire, as a stipend or reward; with a condition annexed that the possessor should do service faithfully both at home and in the wars, to him by whom it was given. The law of fiefs supposed that originally all lands belonged to lords, who had had the generosity to abandon them to others, from whom the actual possessors derive their rights upon the sole reservation of certain services more or less onerous as a sign of superiority. To this superiority was added that which gives the right of dispensing justice, a right which was originally attached to all fiefs, and conferred upon those who possessed it, the most eminent part of public power. Henrion de Pansey, Pouvoir, Municipal; 2 Bl. Com. 45 Encyclop6die, h. t.; Merl. Rep. h. t.
FIELD. A part of a farra separately enclosed; a close. 1 Chit. Pr. 160. The Digest defines a field to be a piece of land without a house; ager est locus, que sine villa est. Dig. 50, 16, 27.
FIERI FACIAS, practice. The name of a writ of execution. It is so called because, when writs were in Latin, the words directed to the sheriff were, quod fieri facias de bonis et catallis, &c., that you cause to be made of the goods and chattels, &c. Co. Litt. 290 b.
2. The foundation of this writ is a judgment for debt or damages, and the party who has recovered such a judgment is generally entitled to it, unless he is delayed by the stay of execution which the law allows in certain cases after the rendition of the judgment, or by proceedings in error.
3. This subject will be considered with regard to, 1. The form of the writ. 2. Its effects. 3. The manner of executing it.
4.-1. The writ is issued in the name of the commonwealth or of the government, as required by the constitution, and directed to the sheriff, commanding him that of the goods and chattels, and (where lands are liable for the payment of debts, as in Pennsylvania,) of the lands and tenements of the defendant, therein named, in his bailiwick, he cause to be levied as well a certain debt of - dollars, which the plaintiff, (naming him) in the court of - (naming,it,) recovered against him, as - dollars like money which to the said plaintiff was adjudged for his daimages, which he had by the detention of that debt, and that he, (the sheriff,) have that money before the judges of the said court, on a day certain, (being the return day therein mentioned,) to render to the said plaintiff his debt and damages aforesaid, whereof the said defendant is convict. It must be tested in the name of the officer, as directed by the constitution or laws; as, "Witness the honorable John B. Gibson, our chief justice, at Philadelphia, the tenth day of October, in the year of our Lord one thousand eight hundred and forty-eight. It must be signed by the prothonotory, or clerk of the court, and sealed with its seal. The signature of the prothonotary, it has been decided, in Pennsylvania, is not indispensable. The amount of the debt, interest, and costs, must also be endorsed on the writ. This form varies as it is issued on a judgment in debt, and one obtained for damages merely. The execution being founded on the judgment, must, of course, follow and be warranted by it. 2 Saund. 72 h. k; Bing. on Ex. 186. Hence, where there is more than one one plaintiff or defendant, it must be in the name of all the plaintiffs, against all the defendants. 6 T. R. 525. It is either for the plaintiff or the defendant. When it is against an executor or administrator, for a liability of the testator or intestate, it is conformable to the judgment, and must be˜20only against the goods of the deceased, unless the defendant has made himself personally liable by his false pleading, in which case the judgment is de bonis testatoris si, et si non, de bonis propriis, and the fieri facias must conform to it.
5. - 2. At common law, the writ bound the goods of the defendant or party against whom it was issued, from the test day; by which must be understood that the writ bound the property against the party himself, and all claiming by assingment from, or by, representatives under him; 4 East, B. 538; so that a sale by the defendant, of his goods to a bona fide purchaser, did no protect them from a fieri facias tested before, although not issued or delivered to the sheriff till after the sale. Cro. Eliz. 174; Cro. Jac. 451; 1 Sid. 271. To remedy this manifest injustice, the statute of frauds, 29 Car. II. c. 3, s. 16, was passed. The principles of this statute have been adopted in most of the states. Griff. Law Reg. Answers to No. 38, under No. III. The statue enacts "that no writ of fieri facias, or other writ of execution, shall bind the property of the goods of the party, against whom such writ of execution is sued forth, but from the time that such writ shall be delivered to the sheriff, under-sheriff, or coroners, to be executed; and for the better manifestation of the said time, the sheriffs, &c., their deputies or agents, shall, upon the receipt of any such writ, (without fee for doing the sam,) endorse upon the back thereof, the day of the month and year whereon he or they received the same." Vide 2 Binn. R. 174; 2 Serg. & Rawle, 157; 2 Yeates, 177; 8 Johns. R. 446; 12 Johns. R. 320; 1 Hopk. R. 368; 3 Penna. R. 247; 3 Rawle, 401 1 Whart R. 377.
6. - 3. The execution of the writ is made by levying upon the goods and chattels of the defendant, or party against whom it is issued; and, in general, seizing a part of the goods in the name of the whole on the premises, is a good seizure of the whole. Ld. Raym. 725; 2 Serg. & Rawle, 142; 4 Wash. C. C. R. 29; but see 1 Whart. Rep. 377. The sheriff cannot break the outer door of a house for the purpose of executing a fieri facias; 5 do. 92; nor can a window be broken for this purpose. W. Jones, 429. See articles Door; House. He may, however, enter the house, if it be open, and, being once lawfully entered, he may break open an inner door or chest to seize the goods of the defendant, even without any request to open them. 4 Taunt. 619; 3 B. & P. 223; Cowp. 1. Although the sheriff is authorized to enter the house of the party to search for goods, he cannot enter that of a stranger, for that purpose, without being guilty of a trespass, unless the defendant's goods are actually in the house. Com. Dig. Execution, C 5: 1 Marsh. R. 565. The sheriff may break the outer door of a barn 1 Sid. 186; S. C. 1 Keb. 689; or of a store disconnected with the dwelling-house, and forming no part of the curtilage. 16 Johns. R. 287. The fi. fa. may be executed at any time before, and on the return day, but not on Sunday, where it is forbidden by statute. Wats. on Sheriffs, 173 5 Co. 92; Com. Dig. Execution, c. 5. Vide 3 Bouv. Inst. n. 3383, et. seq; Wats. on Sher. ch. 10; Bing. Ex. c. 1, s. 4; Gilb. on Exec. Index, h. t.; Grab. Pr. 321: Troub. & Hal. Pr. Index, h. t.; Com. Dig. Execution, C 4; Process, F 5, 7; Caines' Pr. Index, h. t.; Tidd's Pr. Index, h. t.; Sell. Pr. Index, h. t.
FIERI FECI, practice. The return which the sheriff, or other proper officer, makes to certain writs, signifying, "I have caused to be made."
2. When the officer has made this return, a rule may be obtained upon him, after the return day, to pay the money into court, and if he withholds payment, an action of debt may be had on the return, or assumpsit for money had and received may be sustained against him. 3 Johns. R. 183.
FIFTEENTH, Eng. law. The name of a tax levied by authority of parliament for the use of the king, which consisted of one-fifteenth part of the goods of those who are subject to it. T. L
FIGURES, Numerals. They are either Roman, made with letters of the Alphabet, for example, MIDCCLXXVI; or they are Arabic, as follows, 1776.
2. Roman figures may be used in contracts and law proceedings, and they will be held valid; but Arabic figures, probably owing to the case with which they may be counterfeited, or. altered, have been holden not to be sufficient to express the sum due on a contract; but, it seems, that if the amount payable and due on a promissory note be expressed in figures or ciphers, it will be valid. Story on Bills, §42, note; Story, Prom. Notes, §21. Indictments have been set aside because the day or year was expressed in figures. 13 Vin Ab. 210; 1 Ch. Rep. 319; S. C. 18 Eng. Com. Law Rep. 95.
3. Bills of exchange, promissory notes, cheeks and agreements of every description, are usually dated with Arabic figures; it is, however, better to date deeds and other formal instruments, by writing the words at length. Vide l Ch. Cr. L. 176; 1 Verm. R. 336; 5 Toull. n. 336; 4 Yeates, R. 278; 2 John. R. 233; 1 How. Mis. 256; 6 Blackf., 533.
FIGURES OF SPEECH. By figures of speech is meant that manner of speaking or writing, which has for its object to give to our sentiments and, thoughts a greater force, more vivacity and agreeableness.
2. This subject belongs more particularly to grammar and rhetoric, but the law has its figures also. Sometimes fictions come in aid of language, when found insufficient by the law; language, in its turn, by means of tropes and figures, sometimeslends to fictions a veil behind which they are hidden; sometimes the same denominations are preserved to things which have ceased to be the same, and which have been changed; at other times they lend to things denominations which supposed them to have been modified.
3. In this immense subject, it will not be expected that examples should be here given of every kind of figures; the principal only will be noticed. The law is loaded with abstract ideas; abstract in itself, it has often recourse to metaphors, which, as it were, touch our senses. The inventory is faithful, a defect is covered, an account is liquidated, a right is open or closed, an obligation is extinguished, &c. But the law has metaphors which are properly its own; as civil fruits, &c. The state or condition of a man who has been deprived by the law of almost all his social prerogatives or rights, has received the metaphorical name of civil death. Churches being called the houses of God, formerly were considered an asylum, because to seize a person in the house of another was considered a wrong. Mother country, is applied to the country from which people emigrate to a colony; though this pretended analogy is very different in many points, yet this external ornament of the idea soon became an integral part of the idea; and on the faith of this metaphor, this pretended filiation became the source whence flowed the duties which bound the colonies to the metropolis or mother country.
4. In public speaking, the use of figures, when natural and properly selected, is of great force; such Ornaments impress upon the mind of the bearers the ideas which the speaker desires to convey, fix their attention and disposes them to consider favorably the subject of inquiry. See 3 Bouv. Inst. n. 3243.
FILACER, FILAZIER, or FILZER, English law. An officer of the court of common pleas, so called because he files those writs on which he makes out process. FILE, practice. A thread, string, or wire, upon which writs and other exhibits in courts and offices are fastened or filed. for the more safe keeping and ready turning to the same. The papers put together in order, and tied in bundles, are also called a file.
2. A paper is said to be filed, when it is delivered to the proper officer, and by him received to be kept on file. 13 Vin. Ab. 211.
FILIATION, civil law. The descent of son or daughter, with regard to his or her father, mother, and their ancestors.
2. 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 feign ignorance as to the paternity the law has therefore established a legal presumption to serve as a foundation for paternity and filiation.
3. When the mother is or has been married, her hushand is presumed to be the father of the children born during the coverture, or within a competent time afterwards; whether they were conceived during the coverture or not: pater is est quem nuptice demonstrant.
4. This rule is founded on two presumptions; one on the cohabitation before the birth of the child; and the other that the mother has faithfully observed the vow she made to her hushand.
5. This presumption may, however, be rebutted by showing either that there has been no cohabitation, or some physical or other impossibility that the hushand could be the father. See Access; Bastard; Gestation; Natural children; Paternity; Putative father. 1 Bouv. Inst. n. 302, et seq.
FILIUS. The son, the immediate male descendant. This term is used in making genealogical tables.
FILIUS MULIERATUS. The eldest legitimate son of parents, who, before their marriage, had illegitimate children. Vide Mulier.
FILIUS POPULI. The son of the people; a bastard.
FILLEY. A mare not more than one year old. Russ. & Ry. 416 Id. 494.
FILUM. The middle; the thread of anything; as filum aqua; filum viae.
FILUM AQUAE. The thread or middle of a water course. (q. v.)
2. It is a general rule, that in grants of lands bounded on rivers and streams above tide water, unless otherwise expressed, the grant extends usque ad filum aquae, and that not only the banks, but the bed of the river, and the islands therein, together with exclusive right of fishing, pass to the grantee. 5 Wend. 423.
FILUM VIAE. The thread or middle of the road.
2. Where a law requires travellers meeting each other on, a road to drive their carriages to the right of the middle of the road, the parties are bound to keep ou their side of the worked part of the road, although the whole of the smooth or most travelled path may be upon one side of the filum viae. 7 Wend. 185; 5 Conn. 305.
FIN DE NON RECEVOIR, French law. An exception or plea founded on law, which, without entering into the merits of the action, 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. partie 1, c. 2, s. 2, art. 2; Story, Confl. of Laws, §580.
FINAL. That which puts an end to anything.
2. It is used in opposition to interlocutory; as, a final judgment,. is a judgment which ends the coutroversy between the parties litigant. 1 Wheat. 355; 2 Pet. 449. See 12 Wheat. 135; 4 Dall. 22; 9 Pet. 1; 6 Wheat. 448; 3 Cranch, 179; 6 Cranch, 51; Bouv. Inst. Index, h. t.
FINANCIER. A person employed in the economical management and application of public money or finances; one who is employed in the management of money.
FINANCES. By this word is understood the revenue, or public resources or money of the state.
FINDER. One who lawfully comes to the possessiou of another's personal property, which was then lost.
2. The finder is entitled to certain rights and liable to duties which he is obliged to perform. This is a species of deposit, which, as it does not arise ex contractu, may be called a quasi deposit, and it is governed by the same general rules as common deposits. The, finder is required to take the same reasonable care of the property found, as any voluntary depositary ex contractu. Doct. & St. Dial. 2, c. 38; 2 Bulst. 306, 312 S. C. 1 Rolle's R. 125.
3. The finder is not bound to take the goods he finds; yet, when he does undertake the custody, he is required. to exercise reasonable diligence in preserving the property and he will be responsible for gross negligence. Some of the old authorities laid down that "if a man find butler, and by his negligent keeping, it putrify; or, if a man find garments, and by his negligent keeping, they be moth eaten, no action lies." So it is if a man find goods and lose them again; Bac. Ab. Bailment, D; and in support of this position; Leon. 123, 223 Owen, 141; and 2 Bulstr. 21, are cited. But these cases, if carefully examined, will not, perhaps, be found to decide the point as broadly as it is stated in Bacon. A finder would doubtless he held responsible for gross negligence.
4. On the other hand, the finder of an article is entitled to recover all expenses which have necessarily occurred in preserving the thing found; as, it a man were to find an animal, he would be entitled to be reimbursed for his keeping, for advertising in a reasonable manner that he had found it, and to any reward which may have been offered by the owner for the recovery of such lost thing. Domat, 1. 2, t. 9, s. 2, n. 2. Vide Story, Bailm. §35.
6. And when the owner˜20does not reclaim the goods lost, they belong to the finder. 1 Bl. Com. 296; 2 Kent's Com. 290. The acquisition of treasure by the finder, is evidently founded on the rule that what belongs to none naturally, becomes the property of the first occupant: res nullius naturaliter fit p7imi occupantis. How far the finder is responsible criminally, see 1 Hill, N. Y. Rep. 94; 2 Russ. on Cr. 102 Rosc. Cr. Ev. 474. See Taking.
FINDING, practice. That which has been ascertained; as, the ruding of the jury is conclusive as to matters of fact when confirmed: by a judgment of the court. 1 Day, 238; 2 Day, 12.
FINDING A VERDICT. The act of the jury in agreement upon a verdict.
FINE. This word has various significations. It is employed, 1. To mean a sum of money, which, by judgment of a competent jurisdiction, is required to be paid for the punishment of an offence. 2. To designate the amount paid by the tenant, on his entrance, to the lord. 3. To signify a special kind of conveyance.
FINE, conveyance, Practice. 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. Com. 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 concerning the same matter. Such concords, says Doddridge, (Eng. Lawyer, 84, 85,) have been in use in the civil law, and are called transactions (q. v.) whereof they say thus: Transactiones sunt de eis quae in controversia sunt, a, lite futura aut pendente ad certam compositionem reducuntur, dando aliquid vel accipiendo. Or shorter, thus: Transactio 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 previously existing right, and upon a writ requiring 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 acknowledgment 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. Prest. on Convey. 200, 202, 268, 269 2 Bl. Com. 348-9.
2. The stat. 18 E. I., called modus levandi fines, declares and regulates the manner in which they should be levied and carried on and that is as follows: 1. The party to whom the land is conveyed or assured, commences an action at law against the other, generally an action of covenant, by suing out of a writ of praecipe, called a writ of covenant, that the one shall convey the lands to the other, on the breach of which agreement the action is brought. The suit being thus commenced, then follows,
2. The licentia concordandi, or leave to compromise the suit. 3. The concord or agreement itself, after leave obtained by the court; this is usually an acknowledgment from the deforciants, that the lands in question are the lands of the complainants. 4. The note of the fine, which is only an abstract of the writ of covenant, and the concord naming the parties, the parcels of land, and the agreement. 5. The foot of the fine or the conclusion of it, which includes the whole matter, reciting the parties, day, year, and place, and before whom it was acknowledged or levied.
3. Fines thus levied, are of four kinds. 1. What in law French is called a fine sur cognizance de droit, come ceo que il ad de son done; or a fine upon the acknowledgment of the right of the cognizee, as that which he has of the gift of the cognizor. This fine is called a feoffment of record. 2. A fine sur cognizance de droit tantum, or acknowledgment of the right merely. 3. A fine sur concessit, is where the cognizor, in order to make an end of disputes, though he acknowledges no precedent right, yet grants to the consignee an estate de novo, usually for life or years, by way of a supposed composition. 4. A fine sur done grant et render, which is a double fine, comprehending the fine sur cognizance de droit come ceo, &c., and the fine sur concessit; and may be used to convey particular limitations of estate, and to persons who are strangers, or not named in the writ of the covenant, whereas the fine sur cognizance de droit come ceo &c., conveys nothing but an absolute estate either of inheritance, or at least of 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. Com. 348 to 358. See Cruise on Fines; Vin. Abr. Fine; Sheph. Touch. c. 2; Bac. Ab. Fines and Recoveries; Com. Dig. Fine.
FINE, criminal law. Pecuniary punishment imposed by a lawful tribunal, upon a person convicted of crime or misdemeanor. See Shep. Touchs. 2; Bac. Abr. Fines and Amercements.
2. The amount of the fine is frequently left to the discretion of the court, who ought to proportion the fine to the offence. To prevent the abuse of excessive fines, the Constitution of the United States directs that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Amendm. to the Constitution, art. 8. See Division of opinion.
FINE FOR ALIENATION. During the vigor of the feudal law, a fine for alienation was a sum of money which a tenant by knight's service 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 himself. 2 Bl. Com. 71, But when the tenant held land of the king, in capite, by socage tenure, he was bound to pay such a fine, as well as in the case of knight service. 2 Bl. Com. 89. These fines are now abolished. In France, a similar demand from the tenant, made by the lord when the former alienated his estate, was called lods et vente. This imposition was abolished, with nearly every feudal right, by the French revolution.
FIRE ACCIDENTAL. One which arises in consequence of some human agency, without any intention, or which happens by some natural cause, without human agency.
2. Whether a fire arises purely by accident, or from any other cause when it becomes uncontrollable and dangerous to the public, a man may, in general, justify the destruction of a house on fire for the protection of the neighborhood, for the maxim salus populi est suprema lex, applies in such case. 11 Co. 13; Jac. Inter. 122, max. 115. Vide Accident; Act of God, and 3 Saund. 422 a, note 2; 3 Co. Litt. 57 a, n. 1; Ham. N. P. 171; 1 Cruise's Dig. 151, 2; 1 Vin. Ab. 215; 1 Rolle's Ab. 1; Bac. Ab. Action on the case, F; 2 Lois des Batim. 124; Newl. on Contr. 323; 1 T. R. 310, 708; Amb. 619; 6 T. R. 489.
3. When real estate is let, and the tenant covenants to pay the rent during the term, unless there are proper exceptions to such covenants, and the premises are afterwards destroyed by fire, during the term, the rent must be paid, although there be no enjoyment; for the common rule prevails, res perit domino. The tenant, by the accident, loses his term, the landlord, the residence. Story, Eq. Jur. §102.
FIREBOTE. Fuel for necessary use; a privilege allowed to tenants to take necessary wood for fuel.
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.
FIRM. The persons composing a partnership, taken collectively, are called the firm. Sometimes this word is used synonymously with partnership.
2. The name of a firm should be distinct from the names of all other firms. When there is a confusion in this respect, the partners composing one firm May, in some cases, be made responsible for the debts of another. For example, where three persons carried on a trade under the firm of King and Company, and two of those persons, with another, under the same firm, carried on another partnership; a bill under the firm, and which was drawn on account of the one partnership, was made the ground of an action of assumpsit against the other. Lord Kenyon was of opinion that this company was liable; that the partner not connected with the company that drew the bill, having traded along with the other partner under that firm, persons taking bills under it, thougb without his knowledge, had a right to look to him for payment. Peake's N. P. Cas. 80; and see 7 East, R. 210; 2 Bell's Com. 670, 6th ed.; 3 Mart. N. S. 39. But it would seem, 1st. That any act distinctly indicating credit to be given to one of the partnerships, will fix the election of the creditor to that company; and 2d. That making a claim on either of the firms, or, when they are insolvent, on either of the estates, will have the same effect.
3. When the style of the firm has been agreed upon, for example, John Doe and Company, the partners who sign the name of the firm are required to use such name in the style adopted, and a departure from it may have the double effect of rendering the individual partner who signs it, personally liable not only to third persons, but to his co-partners; Story, Partn. §102, 202 and it will be a breach of the agreement, if the partner sign his own name, and add, "for himself and partners." Colly. Partn. B. 2, c. 2, §2; 2 Jac. & Walk. 266.
4. As a general rule a firm will be bound by the acts of one of the partners in the course of their trade and business, and will be discharged by transactions with a single partner. For example, the payment or satisfaction of a debt by a partner, is a satisfaction and payment by them all; and a release to one partner, is in release to them all. Go. Litt. 232 n; 6 T. R. 525. Vide Partner; Partnership.
5. It not unfrequently happens that the name of the firm is the name of only one of the partners, and that such partner does business in his own name on his private or separate account. In such case, if the contract be entered into for the firm, and there is express or implied proof of that fact, the partnership will be bound by it; but when there is no such proof, the presumption will be that the debt was contracted by the partner on his own separate account, and the firm will not be responsible. Story on Part. §139; Colly. on Partn. Book 3, c. 1, §2; 17 Serg. & Rawle, 165; 5 Mason, 176; 5 Peters, 529; 9 Pick. 274; 2 Bouv. Inst. n. 1442, et seq.
FIRMAN. A passport g ranted by the Great Mogul, to captains of foreign vessels, to trade within the territories over which he has jurisdiction; a permit.
FIRST PURCHASER. In the 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 signifies any mode of acquiring an estate, except, by descent. 2 BI; Com. 220.
FISC, civil law. The treasury of a prince. The public treasury. Hence to confiscate a thing, is to appropriate it to the fisc. Paillet, Droit Public, 21, n, says that fiscus, in the Roman law, signified the treasure of the prince, and aerarium, the treasure of the state. But this distinction was not observed in France. See Law 10, ff. De jure Fisci.
FISCAL. Belonging to the fisc, or public treasury.
FISH An animal which inhabits the water, breathes by the means of gills, and swims by the aid of fins, and is oviparous.
2. Fishes in rivers and in the sea, are considered as animals ferae naturae, and consequently no one has any property in them until they have been captured; and, like other wild animals, if having been taken, they escape and. regain their liberty, the captor loses his property in them. Vide Ferae Naturae. The owner of a fishery in the lower part of a stream cannot construct any contrivance by which to obstruct the passage of fish up the stream. 5 Pick. R. 199.
FISHERY, estates. A place prepared for catching fish with nets or hooks. This term is commonly applied to the place of drawing a seine, or net. 1 Whart. R. 131, 2.
2. The right of fishery is to be considered as to tide or navigable waters, and to rivers not navigable. A river where the tide ebbs and flows is considered an arm of the sea. By the common law of England every navigable river within the realm as far as the sea ebbs and flows is deemed a royal river, and the fisheries therein as belonging to the crown by prerogative, yet capable of being granted to a subject to be held or disposed of as private property. The profit of such fisheries, however, when retained by the crown, is not commonly taken and appropriated by the king, unless of extraordinary value, but left free to all the people. Dav. Rep. 155; 7 Co. 16, a: Plowd, 154, a. Within the tide waters of navigable rivers in some of the United States, private or several fisheries were established, during the colonial state, and are still held and enjoyed as such, as in the Delaware. 1 Whart. 145, 5; 1 Baldw. Rep. 76. On the high seas the right of fishing jure gentium is common to all persons, as a general rule. In. rivers, not navigable, that is, where there is no flux or reflux of the tide, the right of fishing is incident to the owner of the soil, over which the water passes, and to the riparian proprietors, when a stream is owned by two or more. 6 Cowen's R. 369; 5 Mason's R. 191; 4 Pick. R. 145; 5 Pick. R. 199. The rule, that the right of fishery, within his territorial limits, belongs exclusively to the riparian owner, extends alike to great and small streams. The owners of farms adjoining the Connecticut river, above the flowing of the tide, have the exclusive right of fishing opposite their farms, to the middle of the river although the public have an easement in the river as a public highway, for passing and repassing with every kind of water craft. 2 Conn. R. 481. The right of fishery may exist, not only in the owner of the soil or the riparian proprietor, but also in another who has acquired it by grant or otherwise. Co. Litt. l22 a, n. 7; Schul. Aq. R. 40 41; Ang. W. C. 184; sed vide 2 Salk. 637.
3. Fisheries have been divided into: 1. Several fisheries. A several fishery is one to which the party claiming it has the right of fishing, independently of all others, as that no person can have a coextensive right with him in the object claimed, but a partial and independent right in another, or a limited liberty, does not derogate from the right of the owner. 5 Burr. 2814. 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 stranger to hold a coextensive right with himself. Woolr. on Wat. 96.
4. - 2. Free fisheries. 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, Com. 329. Mr. Woolrych says, that sometimes a free fishery is confounded with a several, sometimes it is said to be synonymous with common, and again treated as distinct from either. Law of Waters, &c. 97.
5. - 3. Common of Fishery. A common of fishery is not an exclusive right, but one enjoyed in common with certain other persons. 3 Kent, Com. 329. A distinction has been made between a common fishery, (commune piscarium,) which may mean for all mankind, as in the sea, and a common of fishery, (communium piscariae,) which is a right, in common with certain other persons, in a particular stream. 8 Taunt. R. 183. Mr. Angell seems to think that common of fishery and free fishery, are convertible terms, Law of Water Courses, c. 6., s. 3, 4.
6. These distinctions in relation to several, free, and common of, fishery, are not strongly marked, and the lines are sometimes scarcely perceptible. "Instead of going into the black letter books, to learn what was a fishery, and a free fishery, and a several fishery," says Huston, J., "I am disposed to regard our own acts, even though differing, from old feudal times." 1 Whart. R. 132. See 14 Mus. R. 488; 2 Bl. Com. 39, 40; 7 Pick. R. 79. Vide, generally, Ang. Wat. Co.; Index, h. t; Woolr. on Wat. Index, h. t; Schul. Aq. R. Index, h. t; 2 Rill. Ab. ch. 18, p. 1,63; Dane's Ab. h. t; Bac. Ab. Prerogative, B 3; 12 John. R. 425; 14 John. R. 255 14 Wend. R. 42; 10 Mass., R. 212; 13 Mass. R. 477; 20 John. R. 98; 2 John. It. 170; 6 Cowen, R. 369; 1 Wend. R. 237; 3 Greenl. R. 269; 3 N. H. Rep. 321; 1 Pick. R. 180; 2 Conn. R. 481; 1 Halst. 1; 5 Harr. and Johns. 195; 4 Mass. R. 527; and the articles Arm of the sea; Creek; Navigable River; Tide.
TO FIX. To render liable.
2. This term is applied to the condition of special bail; when the plaintiff has issued a ca. sa. which has been returned by the sheriff, non est, the bail are said to be fixed, unless the defendant be surrendered within the time allowed ex gratia, by the practice of the court. 5 Binn. R. 332; Coxe, R. 110; 12 Wheat. R. 604; 4 John. R. 407; 1 Caines, R. 588. The defendant's death after the return is no excuse for not surrendering him during the time allowed ex gratia. See Act of God; Death. In New Hampshire, 1 N. H. Rep. 472, and Massachusetts, 2 Mass. R. 485, the bail are not fixed until judgment is obtained against them on a scire facias, or unless the defendant die after, the return of non est or) the execution against him. In North Carolina, the bail are not fixed till judgment against them. 3 Dev. R. 155. When the bail are fixed, they are absolutely responsible.
FIXTURES, property. Personal chattels annexed to land, and which may be afterwards severed and removed by the party who has annexed them, or his personal representative, against the will of the owner of the freehold.
2. Questions frequently arise as to whether fixtures are to be considered real estate, or a part of the freehold; or whether they are to be treated as personal property. To decide these, it is proper to consider the mode of annexation, the object and customary use of the thing, and the character of the contending parties.
3. - 1. The annexation may be actual or constructive; 1st. By actual connexation or annexation is understood every mode by which a chattel can be joined or united to the freehold. The article must not however be laid upon the ground; it must be fastened, fixed or set into the land, or into some such erection as is unquestionably a part of the realty. Bull. N. P. 34; 8 East, R. 38; 9 East, R. 215; 1 Tauut. 21; Pothier, Traite des Choses, §1. Looks, iron stoves set in brick-work, posts, and window blinds, afford examples of actual annexation. See 5 Rayw. 109; 20 John. 29; 1 Harr. and John. 289; a M'chrd, 553; 9 Conn. 63; 1 Miss. 508, 620; 7 Mass. 432; 15 159; 3 Stew. 314. 2d. Some things have been held to be parcel of the realty, which are not in a real sense annexed, fixed, or fastened to the freehold; for example, deeds or chattels which relate to the title of the, inheritance, go to the heir; Shep. Touch. 469; but loose, movable machinery, not attached nor affixed, which is used in prosecuting any business to which the freehold is adapted, is not considered as part of the real estate, nor as an appurtenance to it. 12 New H. Rep. 205. See, however, 2 Watts,& S. 116, 390. It is also laid down that deer in a park, fish in a pond, and doves in a dove-house, go to the heir and not to the executor, being with keys and heir-looms, constructively annexed to the inheritance. Shepb. Touchs. 90; Pothier, Traite des Choses, §1.
4. - 2. The general rule is, that fixtures once annexed to the freehold, become a part of the realty. But to this rule there are exceptions. These are, 1st. Where there is a manifest intention to use the fixtures in some employment distinct from that of the occupier of the real estate. 2d. Where it has been annexed for the purpose. of carrying on a trade; 3 East, 88; 4 Watts, 330; but the distinction between fixtures for trade and those for agriculture does not in the United States, seem to have been generally admitted to prevail. 8 Mass. R. 411; 16 Mass. R. 449; 4 Pick. R. 311; and set, 2 Peter's Rep. 137. The fact that it was put up for the purposes of trade indicates an intention that the thing should not become a part of the freehold. See 1 H. B]. 260. But if there be a clear intention that the thing should be annexed to the realty, its being used for the purposes of trade would not perhaps bring the case within one of the exceptions. 1 H. BI, 260.
5. - 3. There is a difference as to what fixtures may or may not be removed, as the parties claiming them stand in one relation or another. These classes of persons will be separately considered.
6. - lst. When the question as to fixtures arises between the executor and the heir. The rule, as between these persons has retained much of its original strictness, that the fixtures belong to the real estate, or the heir i but if the ancestor manifested an intention, which is to be inferred from circumstances, that the things affixed should be considered as personally, they must be so considered, and will belong to the executor. See Bac. Abr. Executors and Administrators; 2 Str. 1141; 1 P. Wms. 94 Bull. N. P. 34.
7. 2d. As between vendor and vendee. The rule is as strict between these persons as between the executor and the heir; and fixtures erected by the vendor for the purpose of trade and manufactures, as pot-ash kettles for manufacturing ashes, pass to the vendee of the land. 6 Cowen, R. 663; 20 Johns. R. 29. Between mortgagor and mortgagee, the rule seems to be the same as that between vendor and vendee. Amos & F. on Fixt. 188; 1 5 Mass. R. 1 5 9; 1 Atk. 477 16 Verm. 124; 12 N. H. Rep. 205.
8. - 3d. Between devisee and executor. On a devise of real estate, things permanently annexed to the realty at the time of the testator's death, will pass to the devisee. His right to fixtures will be similar, to that of the vendee. 2 Barn. & Cresw. 80.
9. - 4th. Between landlord and tenant for years. The ancient rule is relaxed, and the right of removal of fixtures by the tenant is said to be very extensive. 3 East, 38. But his right of removal is held to depend rather upon the question whether the estate will be left in the condition in which he took it. 4 Pick. R. 311.
10. - 5th. In cases between tenants for life or their executors and the remainder-men or reversioners, the right to sever fixtures seems to be the same as that of the tenant for years. It has been held that the steam engines erected in a colliery, by a tenant for life, should belong to the executor and not go to the remainder-man. 3 Atk. R. 1 3.
11. - 6th. In a case between the landlord and a tenant at will, there seems to be no reason why the same privilege of removing fixtures should not be allowed. 4 Pick. R. 511; 5 Pick. R. 487.
12. The time for exercising the right of removal of fixtures is a matter of importance a tenant for years may remove them at any time before he gives up the possession of the premises, although it should be after his term has expired, and he is holding over. 1 Barn. & Cres. 79, 2 East, 88. Tenants for life or at will, having uncertain, interests in the land, may, after the determination of their estates, not occasioned by their own faults, have a reasonable time within which to remove their fixtures. Hence their right to bring an action for them. 3 Atk. 13. In case of their death the right passes to their representatives. See, generally, Vin. Abr. Landlord and Tenant, A; Bac. Abr. Executors, &c. H 3; Com. Dig. Biens, B and C; 2 Chitty's Bl. 281, n. 23 Pothier, Traite des Choses; 4 Co. 63, 64 Co. Litt. 53, a, and note 5, by Hargr.; Moore, 177; Hob. 234; 3 Salk. 368; 1 P. Wins. 94; 1 Atk. 553; 2 Vern. 508; 3 Atk. 13; 1 H. Bl. 259, n Ambl. 113; 2 Str. 1141; 3 Esp. 11; 2 East, 88; 3 East, 38; 9 East, 215; 3 Johns. R. 468; 7 Mass. 432; 6 Cowen, 665; 2 Kent, Com. 280; Ham., Part. 182; Jurist, No. 19, p. 53; Arch. L. & T. 359; Bouv. Inst. Index, h. t.
FLAG OF THE UNITED STATES. By the act entitled, "An act to establish the flag of the United States," passed April 4, 1818, 3 Story's L. U. S., 1667, it is enacted-
2. - §1. That from and after the fourth day of July next, the flag of the United States be thirteen horizontal stripes, alternate red and white: that the union be twenty stars, white in a blue field.
3. - §2. That, on the admission of every new state into the Union, one star be added to the union of the flag; and that such addition shall take effect on the fourth day of July then next succeeding such admission.
FLAGRANS CRIMEN. This, among the Romans, signified. that a crime was then or had just been committed for example, when a crime has just been committed and the corpus delictum is publicly exposed; or if a mob take place; or if a house be feloniously burned, these are severally flagrans cri men.
2. The term used in France is flagrant delit. The code of criminal instruction gives the following concise definition of it, art. "Le delit qui se commet actuellement ou qui vient de se coramettre, est un flagrant delit."
FLAGRANTE DELICTO. The act of committing a crime; when a person is arrested flagrante delicto, the only evidence required to convict him, is to prove that fact.
FLEET, punishment, Eng. law, Saxon fleot. 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.
FLETA. The title of an ancient law book, supposed to have been written by a judge who was confined in the Fleet prison. It is written in Latin, and is divided into six books. The author lived in the reigns of Ed. II. and Ed. III. See lib. 2, cap. 66, § Item quod nullus; lib. 1, cap. 20, § qui coeperunt, pref. to 10th Rep. Edward II. was crowned, A. D. 1306. Edward III. was crowned 1326, and reigned till A. D. 1377. During this period the English law was greatly improved, and the lawyers and judges were very learned. Hale's Hist. C. L. 173. Blackstone 4 Com. 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.
FLIGHT, crim. law. The evading the course of justice, by a man's voluntarily withdrawing himself. 4 Bl. Com. 387. Vide Fugitive from justice.
FLORIDA. The name of one of the new states of the United States of America. It was admitted into the Union by virtue of the act of congress, entitled An Act for the admission of the states of Iowa and Florida into the Union, approved March 3, 1845.
2. The constitution was adopted on the eleventh day of January, eighteen hundred and thirty-nine. The powers of the government are divided into three distinct branches, namely, the legislative, the executive, and the judicial,
3. - §1. Of the legislative power. 1. The legislative power of this state shall be vested in two distinct branches, the one to be styled the senate, the other the house of representatives, and both together, "The General Assembly of the State of Florida," and the style of the laws shall be, "Be it enacted by the Senate and House of Representatives of the State of Florida in General Assembly convened."
4. 2. A majority of each house shall constitute a quorum to do business, but smaller number may adjourn from day to day, and may compel the attendance of absent members in such. manner, and under such penalties, as each house may prescribe.
5. - 3. Each house may determine the rules of its own proceedings, punish its members for disorderly behaviour, and, with the consent of two-thirds, expel a member; but not a second time for the same cause.
6. - 4. Each house, during the session, may punish by imprisonment, any person not a member, for disrespectful or disorderly behaviour in its presence, or for obstructing any of its proceedings, provided such imprisonment shall not extend beyond the end of the session.
7. - 5. Each house shall keep a journal of its proceedings, and cause the same to be published immediately after its adjournment, and the yeas and nays of, the members of each house shall be taken, and entered upon the journals, upon the final passage of every bill, and may, by any two members, be required upon any other question, and any member of either house shall have liberty to dissent from, or protest against, any act or resolution which he may think injurious to the public, or an individual, and have the reasons of his dissent entered on the journal.
8. - 6. Senators and representatives shall in all cases, except treason, felony or breach of the peace, be privileged from arrest during the session of the general assembly, and in going to, or returning from the same, allowing one day for every twenty miles such member may reside from the place at which the general assembly is convened; and for any speech or debate, in either house, they shall not be questioned in any other place.
9. - 7. The general assembly shall make provision, by law, for filling vacancies that may occur in either house, by the death, resignation, (or otherwise,) of any of its members.
10. - 8. The doors of each house shall be open, except on such occasions as, in the opinion of the house, the public safety may imperiously require secrecy.
11. - 9. Neither house shall, without the consent of the other, adjourn for more than three days, nor, to any other place than that in which they may be sitting.
12. - 10. Bills may originate in either house of the general assembly, and all bills passed by one house may be discussed, amended or rejected by the other; but no bill shall have the force of law until, on three several days, it be read in each house, and free discussion be allowed thereon, unless in cases of urgency, four-fifths of the house in which the same shall be depending, may deem it expedient to dispense with the rule; and every bill, having passed both houses, shall be signed by the speaker and president of their respective houses.
13. - 11. Each member of the general assembly shall receive from the public treasury such compensation for his services,as may be fixed by law, but no increase of compensation shall take effect during the term for which the representatives were elected when such law passed.
14. - 12. The sessions of the general assembly shall be annual, and commence on the fourth Monday in November in each year, or at such other time as may be prescribed by law.
15. The senators will be considered with regard, 1. To the qualification of the electors. 2. The qualification of the members. 3. The number of members. 4. The time of their election. 5. The length of service.
16. - 1st. The senators shall be elected by the qualified voters. Const. art. 4, s. 5.
17. - 2d. No man shall be a senator unless be be a white man, a citizen of the United States, and shall have been an inhabitant of Florida two years next preceding his election, and the last year thereof a resident of the district or county for which he shall be chosen, and shall have attained the age of twenty-five years. Const. art. 4, s. 5. And to this there are the following exceptions: All banking officers of any bank in the state are ineligible until after twelve-months after they shall go out of such office. Art. 6, 3. All persons who shall fight, or send, or accept a duel, the probable issue of which may be death, whether committed in or out of the state. Art. 6, s. 5. All collectors or holders of public money. Art. 6, s. 6. All ministers of the Gospel. Art. 6, s. 1 0. All persons who shall have procured their elections by bribery. All members of congress, or persons holding or exercising any, office of profit under the United States, or under a foreign power. Art. 6, s. 18.
18. - 3d. The number of senators may be varied by the general assembly, but it shall never be less. than one-fourth, nor more than one-half of the whole number of the house of representatives. Art. 9, s. 2.
19. - 4th. The time and place of their election is the same as those for the house of representatives. Art. 4, s. 5.
20. - 5th. They are elected for the term of two years. Art. 4, s. 5.
21. The house of representatives will be considered under the same beads.
22. - 1st. Members of the house of representatives shall be chosen by the qualified voters.
23. - 2d. No person shall be a representative unless he be a white man, a citizen of the United States, and shall have been an inhabitant of the state two years next preceding his election, and the last year thereof a resident of the county for which he shall be chosen, and have attained the age of twenty-one years. Art. 4, s. 4. And the same persons are disqualified, who are disqualified as senators.
24. - 3d. The number of members shall never exceed sixty. Art. 4, s. 18.
25. - 4th. The. time of holding the election is the first Monday of October annually.
26. - 5th. Members of the house of representatives are elected for one year from the day of the commencement of the general election, andno longer. Art. 4, s. 2.
27. - §2. Of the executive. The supreme executive power is vested in a chief magistrate, who is styled the governor of Florida. Art. 3.
28. No person shall be eligible to the office of governor, unless he shall have attained the age of thirty years, shall have been a citizen of the United States ten years, or an inhabitant of Florida at the time of the adoption of the constitution, (being a citizen of the United States,) and shall have resided in Florida at least five years preceding the day of election.
29. The governor shall be elected for four years, by the qualified electors, at the time and place where they shall vote for representatives; and shall remain in office until a successor shall be chosen and qualified, and shall not be eligible to reelection until the expiration of four years thereafter. 30. His general powers are as follows: 1. He is commander-in-chief of the army, navy, and militia of the state. 2. He shall take care that the laws be faithfully executed. 3 . He may require information from the officers of -the executive department. 4. He may convene the general assembly by proclamation upon particular occasions. 5. He shall, from time to time, give information to the general assembly. 6. He may grant pardons, after conviction, in all cases except treason and impeachment, and in these cases, with the consent of the senate; and he may respite the sentence in these cases until the end of the next session of the senate. 7. He, may approve or veto bills.
31. In case of vacancy in the office of governor, the president of the senate shall act in his place, and in case of his default, the speaker of the house of representatives shall fill the office of governor. Art. 3, s. 21.
32. - §3. Of the judicial department. 1. The judicial power of this state, both as to matters of law and equity, shall be vested in a supreme court, courts of chancery, circuit courts, and justices of the peace: Provided, the, general assembly may also vest such criminal jurisdiction as may be deemed necessary in corporation courts; but such jurisdiction shall not extend to capital offences. Art. 5, s. 1.
33. - 2. Justices of the supreme court, chancellors, and judges of the circuit courts, shall be elected by, the concurrent vote of a majority of both houses of the general assembly. Art. 5, s. 11.
34. - 3. The judges of the circuit courts shall, at the first session. of the general assembly to be holden under the constitution, be elected for the term of five years and shall hold their office, for that term, unless sooner removed, under the provisions in the constitution; and at the expiration of five years, the justices of the supreme courts, and the judges of the circuit courts, shall be elected for the term of, and during their good behaviour.
35. Of the supreme court. 1. The powers of the supreme court are vested in, and its duties performed by, the judges of the several circuit courts, and they, or a majority of them, shall hold such session of the supreme court, and at such time and place as may be directed by law. Art. 5, s. 3. But no justice of the supreme court shall sit as judge, or take any part in the appellate court, on the trial or hearing of any case which shall have been decided by him in the court below. Art. 5, s. 18.
36. - 2. The supreme court, except in cases otherwise directed in this constitution, shall have appellate jurisdiction only. Provided, that the said court shall always have power to issue writs of injunction, mandamus, quo warranto, habeas corpus, and such other remedial and original writs, as may be necessary to give it a general superintendance and control of all other courts. Art. 5, s. 2 .
37. - 3. The supreme court shall exercise appellate jurisdiction in all cases brought by appeal or writ of error from the several circuit courts, when the matter in controversy exceeds in amount or value fifty dollars.
38. Of the circuit courts. 1. The state is to be divided into circuits, and the circuit courts, held within such circuits, shall have original jurisdiction in all matters, civil and criminal, within the state, not otherwise excepted in this constitution. Art. 5, s. 6.
FLORIN. The name of a foreign coin. In all computations of customs, the florin of the southern states of Germany, shall be estimated at forty cents; the florin of the Austrian empire, and of the city of Augshurg, at forty-eight and one-half cents. Act March 22, 1846. The florin of the United Netherlands is computed at the rate of forty cents. Act of March 2, 1799, §61. Vide Foreign Coins.
FLOTSAM, or FLOTSAN. A name for the goods which float upon the sea when a ship is sunk, in distinction from Jetsam, (q. v.) and Legan. (q. v.) Bract. lib. 2, c. 5; 5 Co. 106; Com. Dig. Wreck, A Bac. Ab. Court of Admiralty, B.
FLUMEN, civ. law. The name of a servitude which consists in the right of turning the rain water, gathered in a spout, on another's land., Ersk. Inst. B. 2, t. 9, n. 9. Vicat, ad vocem. See Stillicidium.
FOEDUS. A league; a compact.
FOENUS NAUTICUS . The name given to marine interest. (q. V.)
2. The amount of such interest is not limited by law, because the lender runs the risk of losing, his principal. Ersk. Inst. B. 4, t. 4, n. 76. See Marine Interest.
FOETICIDE, med. jur. Recently, this term has been applied to designate the act by which criminal abortion is produced. 1 Beck's Med. Jur. 288; Guy, Med. Jur. 133. See Infanticide; Prolicide.
FOETURA, civil law. The produce of animals, and the fruit of other property, which are acquired to the owner of such animals and property, by virtue of his right. Bowy. Mod. C. L. c. 14, p. 81.
FOETUS, med. jur. The unborn child. The name of embryo is sometimes given to it; but, although the terms are occasionally used indiscriminately, the latter is more frequently employed to designate the state of an unborn child during the first three months after conception, and by some until quickening. A foetus is sometimes described by the uncouth phrase of infant in ventre sa mere.
2. It is sometimes of great importance, particularly in criminal law, to ascertain the age of the foetus, or how far it has progressed towards maturity. There are certain signs which furnish evidence on this subject, the principal of which are, the size and weight, and the formation of certain parts as the cartilages, bones, &c. These are not always the same, much of course must depend upon the constitution and health of the mother, and other circumstances which have an influence on the foetus. The average length and weight of the foetus at different periods of gestation, as deduced by Doctor Beck, from various observers, as found by Maygrier, is here given.
ȸ¸¸¸¸¸¸¸¸¸®¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸®¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸®¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸®¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸Ø - - Beck. - Maygrier. - Beck. - Maygrier. - - ý¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸ƒ¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸ƒ¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸ƒ¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸* - - Length. - Weight. - - ý¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸®¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸®¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸®¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸* -30 days. -3 to 5 lines. -10 to 12 lines.- -9 to 10 grains.- - 2 Months -2 inches -4 inches. -2 ounces. -5 drachms. - - 3 do. -3€ inches. -6 inches. -2 to 3 ounces. -2€ ounces. - - 4 do. -5 to 6 inches.-8 inches. -4 to 6 ounces. -7 to 8 ounces. - - 5 do. -7 to 9 inches -10 inches. -9 to 10 ounces. -16 ounces. - - 6 do. -9 to 12 inches-12 inches. -1 to 2 pounds. -2 pounds. - - 7 do. -12 to 14 inches.-14 inches. -2 to 3 pounds. -3 pounds. - - 8 do. -16 inches. -16 inches. -3 to 4 pounds. -4 pounds. - ¯¸¸¸¸¸¸¸¸¸¸ƒ¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸ƒ¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸ƒ¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸ƒ¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸Á
3. The discordance apparent between them proves that the observations which have been made, are only an approximation to truth.
4. It is proper to remark that the Paris pound poids de marc, which was the weight used by Maygrier, differs from avoirdupois weight used by Dr. Beck. The pouud poids de marc, of sixteen ounces, contains 9216 Paris grains, whilst the avoirdupois contains only 8532.5 Paris grains. The Paris inch is 1.065977 English inch. Vide, generally, 1 Beck's Med. Jur. 239; 2 Dunglison's Human Physiology, 391; Ryauls Med. Jur. 137; 1 Chit. Med. Jur. 403; I Briand, Med. Leg. prem. partie, c. 4, art. 2; and the articles Birth; Dead Born; Foeticide; In ventre sa mere; infanticide; Life; and Quick with child.
FOLCMOTE. The name of a court among the Saxons. It was literally an assembly of the people or inhabitants of the tithing or town, its jurisdiction extended over disputes between neighbors, as to matters of trespass in meadows, corn, and the like.
FOLD-COURSE, Eng. law. By this phrase is understood land used as a sheepwalk; it also signifies land to which the sole right of folding the cattle of others is appurtenant; sometimes it means merely such right of folding. It is also used to denote the right of folding on another's land, which is called common foldage. Co. Litt. 6 a, note 1; W. Jo. 375 Cro. Cal. 432; 2 Vent. 139.
FOLK-LAND, Eng. law. Land formerly held at the pleasure of the lord, and resumed at his discretion. It was held in villenage. 2 Bl. Com. 90.
FOOT. A measure of length, containing one-third of a yard, or twelve inches. See Ell. Figuratively, it signifies the conclusion, the end; as, the foot of the fine, the foot of the account.
FOOT OF THE FINE, estates, conveyancing. The fifth part of the conclusion of a fine. It includes the whole matter, reciting the names of the parties, day, year, and place, and before whom it was acknowledged or levied. 2 Bl. Com. 351.
FOR THAT, pleading. It is a maxim in law, regulating alike every form of action, that the plaintiff shall state his complaint in positive and direct terms, and not by way of recital. "For that," is a positive allegation; "For that whereas," in Latin "quod cum," (q. v.) is a recital. Hamm. N. P. 9.
FORBEARANCE, contracts. The act by which a creditor waits for the payment of the debt due him by the debtor, after it has become due.
2. When the creditor agrees to forbear with his debtor, this is a sufficient consideration to support an assumpsit made by the debtor. 4 John. R. 237; 2. Nott & McCord, 133; 2 Binn. R. 510; Com. Dig. Action upon the case upon assumpsit, B 1; Dane's Ab. Index, h. t.; 1 Leigh's N. P. 31; 1 Penna. R. 385; 4 Wash. C. C. R. 148; 5 Rawle's R. 69.
3. The forbearance must be of some right which can be enforces with effect against the party forborne; if it cannot be so enforced by the party forbearing, he has sustained no detriment, and the party forborne has derived no benefit. 4 East, 455 5 B. & Ald. 123. See 1 B. & A. 605 Burge on Sur. 12, 13. Vide Giving time. FORCE. A power put in motion. It is: 1. Actual; or 2. Implied.
2. - §1. If a person with force break a door or gate for an illegal purpose, it is lawful to oppose force to force; and if one enter the close of another, vi et armis, he may be expelled immediately, without a previous request; for there is no time to make a request. 2 Salk. 641; 8 T. R. 78, 357. And see tit. Battery, §2. When it is necessary to rely upon actual force in pleading, as in the case of a forcible entry, the words "manu forti," or with a strong hand should be adopted. 8 T. R. 357 358. But in other cases, the words "vi et armis," or " with force and arms," is sufficient. Id.
3. - §2. The entry into the ground of another, without his consent, is breaking his close, for force is implied in every trespass quare clausum fregit. 1 Salk. 641; Co. Litt. 257, b; 161, b; 162, a; 1 Saund: 81, 140, n. 4 8 T: R. 78, 358; Bac. Ab. Trespass; this Dict. tit. Close. In the case of false imprisonment, force is implied. 1 N. R. 255. And the same rule prevails where a wife, a daughter or servant, have been enticed away or debauched, though in fact they consented, the law considering them incapable of consenting. See 3 Wils. 18; Fitz. N. B. 89, 0; 5 T. R. 361; 6 East, 387; 2 N. R. 365, 454.
4. In general, a mere nonfeasance cannot be considered as forcible; for where there has been no act, there cannot be force, as in the case of the mere detention of goods without an unlawful taking. 2 Saund. 47, k 1. In general, by force is understood unlawful violence. Co. Litt. 161, b.; Bouv. Inst. Index, h. t. Vide Arms.
FORCE AND ARMS. The same as vi et armis. (q. v.)
FORCED HEIRS. In Louisiana they are those persons whom the testator or donor cannot deprive of the porttion of his estate reserved for them by law, except in cases where he has a just cause to disinherit them. Civ. Code of Lo. art. 1482. As to the portion of the estate they are entitled to, see the article Legitime. As to the causes for which forced heirs may be deprived of this right, see Disinherison.
FORCIBLE ENTRY or DETAINER, crim. law. An offence committed by unlawfully and violently taking or keeping possession of lands and tenements, with menaces, force and, arms, and without the authority of law. Com. Dig. h. t.
2. The proceedings in case of forcible entry or detainer, are regulated by statute in the several states. ( q. v.) The offence is generally punished by indictment. 4 Bl. Com. 148 Russ. on Cr. 283. A forcible entry and a forcible detainer, are distinct offences. 1 Serg. & Rawle, 124; 8 Cowen, 226.
3. In the civil and French law, a similar remedy is given for thing offence. The party injured has two actions, a criminal or a civil. The action is called actio interdictum undevie. In French, l'action reintegrande. Poth. Proc. Civ. Partie 2, c. 3, art. 3; 11 Toull. Nos. 123, 134, 135, 137, pp. 179, 180, 182, and, generally, from p. 163. Vide, generally, 3 Pick. 31; 3 Halst. R. 48; 2 Tyler's R. 64; 2 Root's R. 411; Id . 472; 4 Johns. R. 150; 8 Johns. R. 44; 10 Johns. R. 304; 1 Caines' R. 125; 2 Caines' R. 98; 9 Johns. R. 147; 2 Johns. Cas. 400; 6 Johns. R. 334; 2 Johns. R. 27; 3 Caines' R. 104; 11 John. R. 504; 12 John. R. 31; 13 Johns. R. 158; Id. 340; 16 Johns. R. 141; 8 Cowen, 226; 1 Coxe's R. 258; Id. 260; 1 South. R. 125; 1 Halst. R. 396; 3 Id. 48; 4 Id. 37; 6 Id. 84; 1 Yeates, 501; Addis. R. 14, 17, 43, 316, 355; 3 Serg. & Rawle, 418; 3 Yeates, 49; 4 Dall. 212; 4 Yeates, 326; 3 Harr. & McHen. 428; 2 Bay, R. 355; 2 Nott & McCord, 121; 1 Const. R. 325; Cam. & Norw. 337, 340; Com. Dig. h. t.; Vin. &b. h. t.; Bac. Ab. h. t.; 2 Chit. Pr. 281 to 241.
4. The civil law punished even the owner of an estate, in proportion to the violence used, when he forcibly took possession of it, a fortiori, a stranger. Domat, Supp. au Dr. Pub. 1. 3, t. 4, s. 3.
FORECLOSURE, practice. A proceeding in chancery, by which the mortgagor's right of redemption of the mortgaged premises is barred or foreclosed forever.
2. This takes place when the mortgagor has forfeited his estate by non-payment of the money due on the mortgage at the time appointed, but still retains the equity of redemption; in such case the mortgagee may file a bill, calling on the mortgagor, in a court of equity, to redeem his estate presently, or in default thereof, to be forever closed or barred from any right of redemption.
3. In some cases, however, the mortgagee obtains a decree for a sale of the land, under the direction of an officer of the court, in which case the proceeds are applied to the discharge of encumbrances, according to their priority. This practice has been adopted in Indiana, Kentucky, Maryland, South Carolina, Tennessee, and Virginia. 4 Kent, Com., 180. When it is the practice to foreclose without a sale, its severity is mitigated by enlarging the time of redemption from six months to six months, or for shorter periods, according to the equity arising from the circumstances. Id. Vide 2 John. Ch. R, 100; 6 Pick. R. 418; 1 Sumn. R. 401; 7 Conn. R. 152; 5 N; H. Rep. 30; 1 Hayw. R. 482; 5 Han. R. 554; 5 Yerg. 240; 2 Pick. R. 40; 4 Pick. R. 6; 2 Gallis. 154; 9 Cow n's R. 346; 4 Greenl. R. 495; Bouv. Inst. Index, h. t.
FOREHAND RENT, Eng. law. A species of rent which is a premium given by the tenant at the time of taking the lease, as on the renewal of leases by ecclesiastical corporations, which is considered in the nature of an improved rent. 1 T. R. 486; 3 T. R. 461; 3 Atk. 473; Crabb. on R. P. §155.
FOREIGN. That which belongs to another country; that which is strange. 1 Peters, R. 343.
2. Every nation is foreign to all the rest, and the several states of the American Union are foreign to each other, with respect to their municipal laws. 2 Wash. R. 282; 4 Conn. 517; 6 Conn. 480; 2 Wend. 411 1 Dall. 458, 463 6 Binn. 321; 12 S. & R. 203; 2 Hill R. 319 1 D. Chipm. 303 7 Monroe, 585 5 Leigh, 471; 3 Pick. 293.
3. But the reciprocal relations between the national government and the several states composing the United States are not considered as foreign, but domestic. 9 Pet. 607; 5 Pet. 398; 6 Pet. 317; 4 Cranch, 384; 4 Gill & John. 1, 63. Vide Attachment, for foreign attachment; Bill of exchange, for foreign bills of exchange; Foreign Coins; Foreign Judgment; Foreign Laws; Foreigners.
FOREIGN ATTACHMENT. The name of a writ. By virtue of a foreign attachment, the property of an absent debtor is seised for the purpose of compelling an appearance, and, in default of that, to pay the claim of the plaintiff. Vide Attachment.
FOREIGN COINS, com. law. The money of foreign nations.
2. Congress have, from time to time, regulated the rates at which certain foreign coins should pass. The acts now in force are the following.
3. The act of June 25, 1834, 4 Shaisw. Cont. of Story's L. U. S. 2373, enacts, sec. 1. That from and after the passage of this act, the following silver coins shall be of the legal value and shall pass current as money within the United States, by tale, for the payment of all debts and demands, at the rate of one hundred cents the dollar, that is to say, the dollars of Mexico, Peru, Chili,.and Central America, of not less weight than four hundred and fifteen grains each, and those re-stamped in Brazil of the like weight, of not less fineness than ten ounces, fifteen pennyweights of pure silver, in the troy pound of twelve ounces of standard silver; and five franc pieces of France, when of not less fineness than ten ounces and sixteen pennyweights in twelve ounces troy weight of standard silver, and weighing not less than three hundred and eighty-four grains each, at the rate of ninety-three cents each.
4. The act of June 28, 1834, 4 Sharsw. Cont. of Story's L. U. S, 2377, enacts) sect. 1. That from and after the thirtyfirst day of July next, the following gold coins shall pass current as money within the United States, and be receivable in all payments, by weight, for the payment of all debts and demands, at the rates following, that is to say: the gold coins of Great Britain and Portugal and Brazil, of not less than twenty-two, carats fine, at the rate of ninety-four cents and eight-tenths of a cent per pennyweight; the gold coins of France nine-tenths fine, at the rate of ninety-three cents and one-tenth of a cent per pennyweight; and the gold coins of Spain, Mexico, and Colombia, of the fineness of twenty carats three. grains and seven-sixteenths, of a grain, at the rates of eighty-nine events and nine-tenths of a cent per pennyweight.
5. By the act of. March 3, 1823, 3 Story's L. U. S. 1923, it is enacted, sect. 1. That from and after the passage of this act, the following gold coins shall be received in all payments on account of public lands, at the several and respective rates following, and not otherwise, viz.: the gold coins of Great Britain and Portugal, and of their present standard, at the rate of one hundred cents for every twenty-seven grains, or eighty-eight cents and eight-ninths per pennyweight; the gold coins of France of their present standard, at the rate of one hundred cents for every twenty-seven and a half grains, or eighty-seven and a quarter cents per pennyweight; and the gold coins of Spain of their present standard, at the rate of one hundred cents for every twenty-eight and a half grains or, eighty-four cents per pennyweight.
6. The act of March 2, 1 799, 1 Story's L. U. S. 573, to regulate the collection of duties on imports and tonnage, sect. 61, p. 626, enacts, That the ad valorem rates of duty upon goods, wares, and merchandise, at the place ofimportation, shall be estimated by adding twenty per cent to the actual costs thereof, if imported from the Cape of Good Hope, or from any place beyond the same; and ten per cent. on the actual cost thereof, if imported from any other place or country, including all charges; commissions, outside packages, and insurance, only excepted. That all foreign coins and currencies shall be estimated at the following rates; each pound sterling of Great Britain, at four dollars and forty-four cents; each livre tournois of France, at eighteen and a half cents; each florin, or guilder of the United Netherlands, at forty cents; each marc-banco of Hamburg, at thirty-three and one-third cents; each rix dollar of Denmark, at one hundred cents: each rial of plate, and each rial o vellon, of Spain, the former at ten cents, the latter at five cents, each; each milree of Portugal, at one dollar and twenty-four cents; each pound sterling of Ireland, at four dollars and ten cents; each tale o China, at one dollar and forty-eight cents; each pagoda of India, at one dollar and ninety four cents; each rupee, of Bengal, at fifty-five cents and one half; and all other denominations of money, in value as nearly as may be to the said rates, or the intrinsic value thereof, compared with money of the United States: Provided, that it shall be lawful for the president of the United States to cause to be established fit and proper regulations for estimating the duties on goods, wares, and merchandise, imported into the United States, in respect to which the original cost shall be exhibited in a depreciated currency, issued and circulated under authority of any foreign government.
7. By the act of July 14 1832, s 16, 4 Sharsw. Cont. of Story's L. U. S. 2326, the law is changed as to the value of the pound sterling, in calculating the rates of dutics. It is thereby enacted, that from and after the said third day of March, one thousand eight hundred and thirty-three, in calculating the rate of duties, the pound sterling shall be considered and taken as of the value of four dollars and eighty cents.
8 . The act of March 3, 1843, provides, That in all computations of the value of foreign moneys of account at the custom houses of the United States, the thaler of Prussia shall be deemed and taken to be of the value of sixty-eight and one-half cents; the mii-reis of Portugal shall be deemed and taken to be of the value of one hundred and twelve cents; the rix dollar of Bremen shall be deemed and taken to be of the value of seventy-eight and three quarter cents; the thaler of Bremen, of seventy-two grotes, shall be deemed and taken to be of the value of seventy-one cents; that the mil-reis of Madeira shall be deemed and taken to be of the value of one hundred cents; the mil-reis of the Azores shall be deemed and taken to be of the value of eighty-three and one-third cents; the marc-banco of Hamburg shall be deemed and taken to be of the value, of thirty-five cents; the rouble of Russia shall be deemed and taken to be of the value of seventy-five cents; the rupee of British India shall be deemed and taken to be of the value of forty-four and one half cents; and all former laws inconsistent herewith are hereby repealed.
9. And the act of May 22, 1846, further directs, That in all computations at the custom-house, the foreign coins and money of account herein specified shall be estimated as follows, to wit: The specie dollar of Sweden and Norway, at one hundred and six cents. The specie dollar of Denmark, at one hundred and five cents. The thaler of Prussia and of the Northern States of Germany, at sixty-nine cents. The florin of the Southern States of Germany, at forty cents. The florin of the Austrian empire, and of the city of Augshurg, at forty-eight and one half cents. The lira of the Lombardo-Venetian Kingdom, and the lira of Tuscany, at sixteen cents. The franc of France, and of Belgium, and the lira of Sardinia, at eighteen cents six mills. The ducat of Naples, at eighteen cents. The ounce of Sicily, at two dollars and forty cents. The pound of the British provinces of Nova Scotia, New Brunswick, Newfoundland, and Canada, at four dollars. And all laws inconsistent with this act are hereby repealed.
FOREIGN JUDGMENT, evidence, remedies. A judgment rendered in a foreign state.
2. In Louisiana it has been decided that a judgment rendered by a Spanish tribunal, under the former governmeut of the country, is not a foreign judgment. 4 M. R. 301 Id. 310.
3. The subject will be considered with regard, 1st. To the manner of proving such judgment; and 2d. Its efficacy.
4. - 1. Foreign judgments are authenticated in various ways; 1. By an exemplification, certified under the great seal of the state or country where it was rendered. 2. By a copy proved to be a true copy. 3. By the certificate of an officer authorized by law, which certificate must, itself, be properly authenticated. 2 Cranch, 238; 2 Caines' R. 155; 5 Cranch, 335; 7 Johns. R. 514 Mass. R. 273 2 Munf. R. 43 4 Camp. R. 28 2 Russ. on Cr. 723. There is a difference between the judgments of courts of common law jurisdiction and courts of admiralty, as to the mode of proof of judgments rendered by them. Courts of admiralty are under the law of nations; certificates of such judgments with their seals affixed, will therefore be admitted in evidence without further proof. 5 Cranch, 335; 3 Conn. R. 171.
5. - 2. A judgment rendered in a foreign country by a court de jure, or even a court defacto, 4 Binn. 371, in a matter within its jurisdiction, when the parties litigant had been notified and have had an opportunity of being heard, either establishing a demand, against the defendant or discharging him from it, is of binding force. 1 Dall. R. 191; 9 Serg. & Rawle, 260; 10 Serg. & Rawle, 240; 1 Pet. C. C. R. 155; 1 Spears, Eq. Cas. 229; 7 Branch, 481. As to the plea of the act of limitation to a suit on a foreign judgment, see Bac. Ab. h. t.; 2 Vern. 540; 5 John. R. 132; 13 Serg. & Rawle, 395; 1 Speer's, Eq. Cas. 219, 229.
6. For the manner of proving a judgment obtained in a sister state, see the article Authentication. For the French law in relation to the force of foreign judgments, see Dalloz, Dict. mot Etranger, art. 6.
FOREIGN LAWS, evidence. The laws of a foreign country. They will be considered with regard to, 1. The manner in which they are to be proved. 2. Their effect when proved.
2. - l. The courts do not judicially take notice of foreign laws, and they must therefore be proved as facts. Cowp. 144; 3 Esp. C. 163 3 Campb. R. 166; 2 Dow & Clark's R. 171; 1 Cranch, 38; 2 Cranch, 187, 236, 237; 6 Cranch, 274; 2 Harr. & John. R. 193; 3 Gill & John. R. 234; 4 Conn. R. 517; 4 Cowen, R. 515, 516, note; Pet. C. C. R. 229; 8 Mass. R. 99; 1 Paige's R. 220 10 Watts, R. 158. The manner of proof varies according to circumstances. As a general rule the best testimony or proof is required, for no proof will be received which pre-supposes better testimony attainable by the party iybo offers it. When the best testimony cannot be obtained, secondary evidence will be received. 2 Cranch, 237.
3. Authenticated copies of written laws and other public documents must be produced when they can be procured but should they be refused by the competent authorities, then inferior proof may be admissible. Id.
4. When our own government has promulgated a foreign law or ordinance of a public nature as authentic, that is held sufficient evidence of its existence. 1 Cranch, 38 1 Dall. 462; 6 Binn. 321 12 Serg. & Rawle, 203.
5. When foreign laws cannot be proved by some mode which the law respects as being of equal authority to an oath, they must be verified by the sanction of an oath.
6. The usual modes of authenticating them are by an exemplification under the great seal of a state; or by a copy proved by oath to be a true copy - or by a certificate of an officer authorized by law, which must, itself, be duly authenticated. 2 Cranch, 238; 2 Wend. 411; 6 Wend. 475; 5 Serg. &. Rawle, 523; 15 Serg. & Rawle, 84: 2 Wash. C. C. R. 175.
7. Foreign unwritten laws, customs and usages, may be proved, and are ordinarily proved by parol evidence; and when such evidence is objected to on the ground that the law in question is a written law, the party objecting must show that fact. 15 Serg. & R. 87; 2 L. R. 154. Proof of such unwritten law is usually made by the testimony of witnesses learned in the law, and competent to state it correctly under oath. 2 Cranch, 237; 1 Pet. C. C. R. 225; 2 Wash. C. C. R. 175; 15 Serg. & R. 84; 4 John. Ch. R. 520; Cowp. 174; 2 Hagg. R. App. 15 to 144.
8. In England certificates of persons in high authority have been allowed as evidence in such cases. 3 Hagg. Eccl. R. 767, 769.
9. The public seal of a foreign sovereign or state affixed to a writing purporting to be a written edict, or law, or judgment, is, of itself, the highest evidence, and no further proof is required of such public seal. 2 Cranch, 238; 2 Conn. R. 85; 1 Wash. C. C. R. 363; 4 Dall. 413, 416; 6 Wend. 475; 9 Mod. 66.
10. But the seal of a foreign court is not, in general, evidence, without further proof, and it must therefore be established by competent testimony. 3 John. R. 310; 2 Harr. & John. 193; 4 Cowen, 526, n.; 3 East, 221.
11. As courts of admiralty are courts under the laws of nations, their seals will be admitted as evidence without further proofs. 5 Cranch, 335; 3 Conn. 171. This is an exception to the general rule.
12. The mode of authenticating the laws and records of the several states of the American Union, is peculiar, and will be found under the article Authentication. It may hereby be observed that the rules prescribed by acts of congress do not exclude every other mode of authentication, and that the courts may admit, proof of the acts of the legislatures of the several, states, although not authenticated under the acts of congress. Accordingly a printed volume, purporting on its face to contain the laws of a sister, state, is admissible, as prima facie evidence; to prove the statute law of that state. 4 Cranch, 384; 12 S. & R. 203; 6 Binn, 321; 5 Leigh, 571.
13. - 2. The effect of such foreign laws, when proved, is properly referable to the court; the object of the proof of foreign laws, is to enable the ourt to instruct the jury what is, in point of law, the result from foreign laws, to be applied to the matters in controversy before them. The court are therefore to decide what is the proper evidence of the laws of a foreign country; and when evidence is given of those laws, the court are to judge of their applicability to the matter in issue. Story, Cont. of L. §638 2 Harr. & John. 193. 219; 4 Conn. R. 517; 3 Harr. & John. 234, 242; Cowp. 174. Vide Opinion.
FOREIGN NATION or STATE. A nation totally independent of the United States of America
2. The constitution authorizes congress to regulate commerce with "foreign nations." This phrase does not include an Indian tribe, situated within the boundaries of a state, and exercising the powers of government and sovereignty. 5 Pet. R. 1. Vide Nation.
FOREIGN PLEA. One which, if true, carries the cause out of the court where it is brought, by showing that the matter alleged is not within its jurisdiction. 2 Lill. Pr. Reg. 374; Carth. 402; Lill. Ent. 475. It must be on oath and before imparlance. Bac. Ab. Abatement, R.
FOREIGNERS. Aliens; persons born in another country than the United States, who have not been naturalized. 1 Pet. R. 349. Vide 8 Com. Dig. 615, and the articles Alien; Citizens.
FOREJUDGED THE COURT. An officer of the court who is expelled the same, is, in the English law, said to be forejudged the court. Cunn. Dict. h. t.
FOREMAN. The title of the presiding member of a grand jury.
FOREST. By the English law, a forest is a circuit of ground properly under the king's protection, for the peaceable living and abiding of beasts of hunting and the chase, and distinguished not only by having bounds and privileges, but also by having courts and offices. 12 do. 22. The signification of forest in the United States is the popular one of an extensive piece of woodland. Vide Purlieu.
FORTSTALLING, crim. law. Every practice or device, by act, conspiracy, words, or news, to enhance the price of victuals or other provisions. 3 Inst. 196; Bac. Ab. h. t.; 1 Russ. Cr. 169; 4 Bl. Com. 158.
2. All endeavors whatever to enhance the common price of any merchandise, and all kinds of practices which have that tendency, whether by spreading false rumors, or buying things in a market before the accustomed hour, are offences at common law, and come under the notion of forestalling, which includes all kind of offences of this nature. Hawk. P. C. b. 1 c. 8 0, s. 1. Vide 13 Vin. Ab. 430; Dane's Ab. Index, h. t.; 4 Com. Dig. 391 1 East, Rep. 132.
FORFEITURE, punishment, torts. Forfeiture is 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. Com. 267.
2. Lands, tenements and hereditaments, may be forfeited by various means: 1. By the commission of crimes and misdemeanors. 2. By alienation contrary to law. 3. By the non-performance of conditions. 4. By waste.
3. - 1. Forfeiture for crimes. By the Constitution of the United States, art. 3, s. 3, it is declared that no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted. And by the Act of April 30, 1790, s. 24, 1 Story's Laws U. S. 88, it is enacted, that no conviction or judgment for any of the offences aforesaid, shall work corruption of blood, or any forfeiture of estate. As the offences punished by this act are of the blackest dye, including cases of treason, the punishment of forfeiture may be considered as being abolished. The forfeiture of the estate for crime is very much reduced in practice in this country, and when it occurs, the stater takes the title the party had, and no more. 4 Mason's R. 174; Dalrymple on Feudal Property, c. 4, p. 145-154; Fost. C. L. 95.
4. - 2. Forfeiture by alienation. By the English law, estates less than a fee may be forfeited to the party entitled to the residuary interest by a breach of duty in the owner of the particular estate. When a tenant for life or years, therefore, by feoffment, fine, or recovery, conveys a greater estate than he is by law entitled to do, he forfeits his estate to the person next entitled in remainder or reversion. 2 Bl. Com. 274. In this country, such forfeitures are almost unknown, and the more just principle prevails, that the conveyance by the tenant operates only on the interest which he possessed, and does not affect the remainder-man or reversioner. 4 Kent, Com. 81, 82, 424; 1 Hill. Ab. c. 4, s. 25 to 34; 3 Dall. Rep. 486; 5 Ohio, R. 30.
5. - 3. Forfieture by non-performance of conditions. An estate may be forfeited by a breach, or non-performance of a condition annexed to the estate, either expressed in the deed at its original creation, or impliedly by law, from a principle of natural reason. 2 Bl. Com. 281; and see Ad Eject. 140 to 173. Vide article Reentry; 12 Serg. & Rawle, 190.
6. - 4. Forfeiture by waste. Waste is also a cause of forfeiture. 2 Bl. Com. 283. Vide article Waste.
7. By forfeiture is also understood the neglect of an obligor to fulfil his obligation in proper time: as, when one has entered into a bond for a penal sum, upon condition to pay a smaller at a particular day, and he fails to do it, there is then said to be a forfeiture. Again, when a party becomes bound in a certain sum by a recognizance to pay a certain sum, with a condition that he will appear at court to answer or prosecute a crime, and he fails to do it, there is a forfeiture of the recognizance. Courts of equity, and now courts, of law, will relieve from the forfeiture of a bond; and upon a proper case shown, criminal courts will in general relieve from the forfeiture of a recognizance to appear. See 3 Yeates, 93; 2 Wash. C. C. 442 Blackf. 104, 200; Breeze, 257. Vide, generally, 2 Bl. Com. ch. 18; Bouv. Inst. Index, h. t.; 2 Kent's Com; 318; 4 Id. 422; 10 Vin. Ab. 371, 394 13 Vin. Ab. 436; Bac. Ab. Forfeiture Com. Dig. h. t.; Dane's Ab. h. t.; 1 Bro Civ. L. 252 4 Bl. Com. 382; and Considerations on the Law of Forfeiture for High Treason, London ed. l746.
FORFEITURE OF MARRIAGE, Old law. The name of a penalty formerly incurred by a ward in chivalry, when he or she married contrary to the wishes of his or her guardian in chivalry. The latter, who was the ward's lord, had an interest in controlling the marriage of his female wards, and he could exact a price for his consent and, at length, it became customary to sell the marriage of wards of both sexes. 2 Bl. Com . 70.
2. When a male ward refused an equal match provided by his guardian, he was obliged, on coming of age, to pay him the value of the marrriage; that is, as much as he had been bona fide offered for it; or, if the guardian chose, as much as a jury would assess, taking into consideration all the real and personal property of the ward; and the guardian could claim this value, although he might have made no tender of the marriage. Co. Litt. 82 a; 2 Inst. 92 5 Co: 126 b; 6 Co. 70 b.
3. When a male ward between his age of fourteen and twenty-one years, refused to accept an offer of an equal match, and during that period formed an alliance elsewhere, without his permission, he incurred forfeiture of marriage; that is, he became liable to pay double the value of, the, marriage. Co. Litt. 78 b, 82 b.
FORGERY, crim. law. Forgery at common law has been held to be "the fraudulent making and alteration of a writing to the prejudice of another man's right." 4 Bl. Com. 247. By a more modern writer, it is defined, as " a false making; a making malo animo, of any written instrument, for the purpose of fraud and deceit." 2 East, P. C. 852.
2. This offence at common law is of the degree of a misdemeanor. 2 Russel, 1437. There are many kinds of forgery, especially subjected to punishment by statutes enacted by the national and state legislatures.
3. The subject will be considered, with reference, .1. To the making or alteration requisite to constitute forgery. 2. The written instruments in respect of which forgery may be committed. 3. The fraud and deceit to the prejudice of another man's right. 4. The statory provisions under the laws of the United States, on the subject of forgery.
4. - 1. The making of a whole written instrument in the name of another with a fraudulent intent is undoubtedly a sufficient making but a fraudulent insertion, alteration, or erasure, even of a letter, in any material part of the instrument, whereby a new operation is given to it, will amount to a forgery; and this, although it be afterwards executed by a person ignorant of the deceit. 2 East, P. C. 855.
5. The fraudulent application of a true signature to a false instrument for which it was not intended, or vice ve7-sa, will also be a forgery. For example, it is forgery in an individual who is requested to draw a will for a sick person in a particular way, instead of doing so, to insert legacies of his own head, and then procuring the signature of such sick person to be affixed to the paper without revealing to him the legacies thus fraudulently inserted. Noy, 101; Moor, 759, 760; 3 Inst. 170; 1 Hawk. c. 70, s. 2; 2 Russ. on Cr. 318; Bac. Ab. h. t. A.
6. It has even been intimated by Lord Ellenborough, that a party who makes a copy of a receipt, and adds to such copy material words not in the original, and then offers it in evidence on the ground that the original has been lost, may be prosecuted for forgery. 5 Esp. R. 100.
7. It is a sufficient making where, in the writing, the party assumes the name and character of a person in existence. 2 Russ. 327. But the adoption of a false description and addition, where a false name is not assumed, and there is no person answering the description, is not a forgery. Russ. & Ry. 405.
8. Making an instrument in a fictitious name, or the name of a non-existing person, is equally a forgery, as making it in the name of au existing person; 2 East, P. C. 957; 2 Russ. on Cr. 328; and although a man may make the instrument in his own name, if he represent it as the instrument of another of the same name, when in fact there is no such person, it will be a forgery in the name of a non-existing person.; 2 Leach, 775; 2 East, P. C. 963; but the correctness of this decision has been doubted. Rosc. Cr. Ev. 384.
9. Though, in general, a party cannot be guilty of forgery by a mere non-feasance, yet, if in drawing a will, he should fraudulently omit a legacy, which he had been directed to insert, and by the omission of such bequest, it would cause a material alteration in the limitation of a bequest to another; as, where the omission of a devise of an estate for life to one, causes a devise of the same lands to another to pass a present estate which would otherwise have passed a remainder only, it would be a forgery. Moor, 760; Noy, 101; 1 Hawk. c. 70, s. 6; 2 East, P. C. 856; 2 Russ. on Cr. 320.
10. It may be observed, that the offence of forgery may be complete without a publication of the forged instrument. 2 East, P. C. 855; 3 Chit. Cr. L. 1038.
11. - 2. With regard to the thing forged, it may be observed, that it has been holden to be forgery at common law fraudulently to falsify, or falsely make records and other matters of a public nature; 1 Rolle's Ab. 65, 68; a parish register; 1 Hawk. c. 70; a letter in the name of a magistrate, the governor of a gaol, directing the discharge of prisoner. 6 Car. & P. 129; S. C. 25 Eng. C. L. R. 3 1 5.
12. With regard to private writings, it is forgery fraudulently to falsify or falsely to make a deed or will; 1 Hawk. b. 1, c. 70, s. 10 or any private document, whereby another person may be prejudiced. Greenl. Rep. 365; Addis. R. 33; 2 Binn. R. 322; 2 Russ. on Or. b. 4, c. 32, s. 2; 2 East, P. C. 861; 3 Chit. Cr. Law, 1022 to 1038.
13. - 3. The intent must be to defraud another, but it is not requisite that any one should have been injured it is sufficient that the instrument forged might have proved prejudicial. 3 Gill & John. 220; 4 W. C. C. R. 726. It has been holden that the jury ought to infer an intent to defraud the person who would have to pay the instrument, if it were genuine, although from the manner of executing the forgery, or from the person's ordinary caution, it would not be likely to impose upon him; and although the object was general to defraud whoever might take the instrument, and the intention of the defrauding in par ticular, the person who would have to pay the instrument, if genuine, did not enter into the contemplation of the prisoner. Russ. & Ry. 291; vide Russ.. on Cr. b. 4, c. 32, s. 3; 2 East, P. C. 853; 1 Leach, 367; 2 Leach, 775; Rosc. Cr. Ev. 400.
14.- 4. Most, and perhaps all the states in the Union, have passed laws making certain acts to be forgery, and the national legislature has also enacted several on this subject, which are here referred to. Act of March 2, 1803, 2 Story's L. U. S. 888; Act of March 3, 1813, 2 Story's L. U. S. 1304 Act of March 1, 1823, 3 Story's L. U. S. 1889; Act of March 3, 1825, 3 Story's L. U. S. 2003; Act of October 12, 1837, 9 Laws U. S. 696.
15. The term forgery, is also applied to the making of false or counterfeit coin. 2 Virg. Cas. 356. See 10 Pet. 613; 4 Wash. C. C. 733. For the law respecting the forgery of coin, see article Money. And for the act of congress punishing forgery in the District of Columbia, see 4 Sharsw. Cont, of Story's Laws U. S. 2234. Vide, generally, Hawk. b. 1, c. 51 and 70; 3 Chit. Cr. Law, 1022 to 1048; 4 Bl. Com. 247 to 250; 2 East, P. C. 840 to 1003; 2 Russ. on Cr. b. 4, c. 32; 13 Vin. Ab. 459; Com. Dig. h. t.; Dane's Ab. h. t. Williams' Just. h. t. Burn's Just. h. t.; Rose. Cr. Ev. h. t.; Stark. Ev. h. t. Vide article Frank.
FORISFAMILIATION, law of Scotl. By this is understood the act by which a father gives to a child his share of his legitime, and the latter renounces all further claim. From this time, the child who has so received his share, is no longer accounted 4 child in the division of the estate. Ersk. Inst. 655, n. 23; Burt. Man. P. R. part 1, c. 2, s. 3, page 35.
FORM, practice. The model of an instrument or legal-proceeding, containing the substance and the principal terms, to be used in accordance with the laws; or, it is the act of pursuing, in legal proceedings, and in the construction of legal instruments, the order required by law. Form is usually put in contradistinction to substance. For example, by the operation of the statute of 27 Eliz. c. 5, s. 1, all merely formal defects in pleading, except in dilatory pleas, are aided on general demurrer.
2. The difference between matter of form, and matter of substance, in general, under this statute, as laid down by Lord Hobart, is, that " that without which the right doth sufficiently appear to the court, is form;" but that any defect " by reason whereof the right appears not," is a defect in substance. Hob. 233.
3. A distinction somewhat more definite, is, that if the matter pleaded be in itself insufficient, without reference to the manner of pleading it, the defect is substantial; but that if the fault is in the manner of alleging it, the defect is formal. Dougl. 683. For example, the omission of a consideration in a declaration in assumpsit; or of the performance of a condition precedent, when such condition exists; of a conversion of property of the plaintiff, in trover; of knowledge in the defendant, in an action for mischief done by his dog of malice, in action for malicious prosecution, and the like, are all defects in substance. On the other hand, duplicity; a negative pregnant; argumentative pleading; a special plea, amounting to the general issue; omission of a day, when time is immaterial; of a place, in transitory actions, and the like, are only faults in form. Bac. Ab. Pleas, &c. N 5, 6; Com. Dig. Pleader, Q 7; 10 Co. 95 a; 2 Str. 694 Gould; Pl. c. 9, §17, 18; 1 Bl. Com. 142.
4. At the same time that fastidious objections against trifling errors of form, arising from mere clerical mistakes, are not encouraged or sanctioned by the courts, it has been justly observed, that "infinite mischief has been produced by the facility of the courts in overlooking matters of form; it encourages carelessness, and places ignorance too much upon a footing with knowledge amongst those who practice the drawing of pleadings." 1 B. & P. 59; 2 Binn. Rep. 434. See, generally, Bouv. Inst. Index, h. t.
FORMA PAUPERIS, English law. When a person is so poor that he cannot bear the charges of suing at law or in equity, upon making oath that he is not worth five pounds, and bringing a certificate from a counselor at law, that he believes him to have a just cause, he is permitted to sue informa 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. Com. 400. See 3 John. Ch. R. 65; 1 Paige, R. 588; 3 Paige, R. 273; 5 Paige, R. 58; 2 Moll. R. 475; 1 Beat. R. 54.
FORMALITY. The conditions which must be observed in making contracts, and the words which the law gives to be used in order to render them valid; it also signifies the conditions which the law requires to make regular proceedings.
FORMEDON, old English law. The writ of formedon is nearly obsolete, it having been superseded by the writ of ejectment. Upon an alienation of the tenant in tail, by which the estate in tail is discontinued, and the remainder or reversion is by the failure, of the particular estate, displaced and turned into a mere right, the remedy is by action of formedon, (secundum formam doni,) because the writ comprehends the form of the gift. This writ is in the nature of a writ of right, and the action of formedon is the highest a tenant in tail can have. This writ is distinguished into three species; a formedon in the descender, in the remainder, and in the reverter. 8 Bl. Com. 191 Bac. Ab. h. t.; 4 Mass. 64.
FORMER RECOVERY. A recovery in a former action.
2. It is a general rule, that in a real or personal action, a judgment unreversed, whether it be by confession, verdict or demurrer, is a perpetual bar, and may be pleaded to any new action of the same or a like nature, for the same cause. Bac. Ab. Pleas, I 12, n. 2; 6 Co. 7; Hob. 4, 5 Ventr. 170.
3. There are two exceptions to this general rule. 1. The case of mutual dealings between the parties, when the defendant omits to set off his counter demand in that case he may recover in a cross action. 2. When the defendant in ejectment neglects to bring forward his title, he may avail himself of a new suit. 1 John Cas. 492, 502, 510. It is evident that in these cases the cause of the second action is not the same as that of, the first, and, therefore, a former recovery cannot be pleaded. In real actions, one is not a bar to an, action of a. higher nature. 6 Co. 7. Vide 12 Mass. 337; Res Judicata; Thing Adjudged.
FORMULARY. A book of forms or precedents for matters of law; the form.
FORNICATION, crim. law. The unlawful carnal knowledge of an unmarried person with another, whether the latter be married or unmarried. When the party is married, the offence, as to him or her, is known by the name of adultery. (q. v.) Fornication is, however, included in every case of adultery, as a larceny is included in robbery. 2 Hale's P. C. 302.
FORPRISE. Taken before hand. This word is sometimes, though but seldom, used in leases and conveyances, implying an exception or reservation. Forprise, in another sense, is taken for any exaction. Cunn. Dict. h. t.
TO FORSWEAR, crim. law, torts. To swear to a falsehood.
2. This word has not the same meaning as perjury. It does not, ex vi termini, signify a false swearing before an officer or court having authority to administer an path, on an issue. A man may be forsworn by making a false oath before an incompetent tribunal, as well as before a lawful court. Hence, to say that a man is forsworn, will or will not be slander, as the circumstances show that the oath was or was not taken before a lawful authority. Cro. Car. 378; Lut. 1292; 1 Rolle, Ab. 39, pl. 7 Bac. Ab. Slander, B 3; Cro. Eliz. 609 13 Johns. R. 80 Id. 48 12 Mass. 496 1 Johns. R. 505 2 Johns. R. 10; 1 Hayw. R, 116.
FORTHWITH. When a thing is to be done forthwith, it seems that it must be performed as soon as by reasonable exertion, confined to that object, it may be done. This is the import of the term; it varies, of course, with every particular case. 4 Tyr. 837; Styles' Register, 452, 3.
FORTIORI or A FORTIORI. An epithet for any conclusion or inference, which is much stronger than another. "If it be so, in a feoffment passing a new right, a fortiori, much more is it for the restitution of an ancient right." Co. Litt. 253, 260.
FORTUITOUS EVENT. A term in the civil law to denote that which happens by a cause which cannot be resisted. Louis. Code, art. 2522, No. 7. Or it is that which neither of the parties has occasioned, or could prevent. Lois des Bat. Pt. 2, c. 2, §1. It is also defined to be an unforeseen event which cannot be prevented. Dict. de Jurisp. Cas fortuit.
2. There is a difference between a fortuitous event or inevitable accident, and irresistible force. By the former, commonly called the act of God, is meant any accident produced by physical causes, which are irresistable; such as a loss by lightning or storms, by the perils of the seas, by inundations and earthquakes, or by sudden death or illness. By the latter is meant such an interposition of human agency, as is, from its nature and power, absolutely uncontrollable. Of this nature are losses occasioned by-the inroads of a hostile army, or by public enemies. Story on Bailm. §25; Lois des Bat. Pt. 2, c. 2, §1.
3. Fortuitous events are fortunate or unfortunate. The accident of finding a treasure is a fortuitous event of the first class. Lois des Bat. Pt. 2, c. 2, §2.
4. Involuntary obligations may arise in consequence of fortuitous events. For example, when, to save a vessel from shipwreck, it is necessary to throw goods overboard, the loss must be borne in common; there arises, in this case, between the owners of the vessel and of the goods remaining on board, an obligation to bear proportionably the loss which has been sustained. Lois desBit. 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; Act of God; Accident; Perils of the Sea.
FORUM. This term signifies jurisdiction, a court of justice, a tribunal.
2. The French divide it into for exterieur, which is the authority which human justice exercises on persons and property, to a greater or lesser extent, according to the quality of those to whom it is entrusted; and for interieur, which is the moral sense of justice which a correct conscience dictates. Merlin, Repert. mot For.
3. By forum res sitae is meant the tribunal which has authority to decide respecting something in dispute, located within its jurisdiction; therefore, if the matter in controversy is land, or other immovable property, the judgment pronounced in the forum res sitae is held to be of universal obligation, as to all matters of right and title on which it professes to decide, in relation to such property. And the same principle applies to all other cases of proceedings in rem, where the subject is movable property, within the jurisdiction of the court pronouncing the judgment. Story, Const. Laws, §§532, 545, 551, 591, 592; Kaims on Eq. B. 3, c. 8, s. 4 1 Greenl. Ev. §541.
FORWARDING MERCHANT, contracts. 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 transported, and no interest in the freight. Such an one is Dot deemed a common carrier, but a mere warehouseman or agent. 12 Johns. 232; 7 Cowen's R. 497. He is required to use only ordinary diligence in sending the property by responsible persons. 2 Cowen's R. 593.
FOSSA, Eng. law. A ditch full of water, where formerly women who had committed a felony were drowned; the grave. Cowel, Int.
FOUNDATION. 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 foundation. 10 Co. 23, a.
FOUNDLING. A new-born child, abandoned by, its parents, who are unknown. The settlement of, such a child is in the place where found.
FOURCHER, English law. A French word, which means to fork. Formerly, when an action was brought against two, who, being jointly concerned, mere not bound to answer till both appeared, and they agreed not to appear both in one day; the appearance 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 wanner they forked each other, and practiced this for delay. Vide 2 Inst. 250; Booth, R. A. 16.
FRACTION. A part of any thing broken. A combination of numbers, in arithmetic and algebra, representing one or more parts of a unit or integer. Thus, four-fifths is a fraction, formed by dividing a unit into-five equal parts, and taking one part four times. In law, the term fraction is usually applied to the division of a day.
2. In general, there are no fractions in days. Co. Litt. 225 2 Salk. 625; 2 P. A. Browne, 18; II Mass. 204. But in some cases a fraction will be taken into the account, in order to secure a party his rights; 3 Chit. Pr. 111; 8 Ves. 80 4 Campb. R. 197; 2 B. & Ald. 586; Savig. Dr. Rom. §182; Rob. Dig. of Engl. Statutes in force in Pennsylvania, 431-2 and when it is required by a special law. Vide article Date.
FRANC, com. law. The name of a French coin. Five franc pieces, when not of less fineness than ten ounces and sixteen pennyweights in twelve ounces troy weight of standard silver, and weighing not less than three hundred and eighty-four grains each, are made a legal tender, at the rate of ninety-three cents each. Act of June 25, 1834, s. 1, 4 Sharsw. Cont. of Story's L. U. S. 2373.
2. In all computations at the custom house, the franc of France and of Belgium shall be estimated at eighteen cents six. mills. Act of May 22, 1846. See Foreign coins.
FRANCHISE. This word has several significations: 1. It is a right reserved to the people by the constitution; hence we say, the elective franchise, to designate the right of the people to elect their officers. 2. It is a certain privilege, conferred by grant from the government, and Vested in individuals.
2. Corporations, or bodies politic, are the most usual franchises known to our law. They have been classed among incorporeal hereditaments, perhaps improperly, as they have no inheritable quality.
3. In England, franchises are very numerous; they, are said to be royal privileges in the hands of a subject. Vide 3 Kent, Com. 366; 2 Bouv. Inst. n. 1686; Cruise,' Dig. tit. 27; 2 Bl. Com. 37; 15 Serg. & Rawle, 130; Finch, 164.
FRANCIGENA. Formerly, in England, every alien was known by this name, as Franks is the generic name of foreigners in the Turkish dominions.
FRANK. The privilege of sending and receiving letters, through the mails, free of postage.
2. This privilege is granted to various officers, not for their own special benefit, but with a view to promote the public good.
3. The Act of the 3d of March, 1845, s. 1, enacts, That members of congress, and delegates from the territories, may receive letters, not exceeding two ounces in weight, free of postage, during the recess of congress; and the same privilege is extended to the vice-president of the United States.
4. It is enacted, by 3d section, That all printed or lithographed circulars and handbills, or advertisements, printed or lithographed, on quarto post or single cap paper, or paper not larger than single cap, folded, directed, and unsealed, shall be charged with postage, at the rate of two cents for each sheet, and no more, whatever be the distance the same may be sent; and all pamphlets, magazines, periodicals, and every other kind and description of printed or other matter, (except newspapers,) which shall be unconnected with any manuscript communication whatever, and which it is or may be lawful to transmit by the mail of the United States, shall be charged with postage, at the rate of two and a balf cents for each copy sent, of no greater weight than one ounce, and one cent additional shall be charged for each additional ounce of the weight of every such pamphlet, magazine, matter, or thing, which may be transmitted through the mail, whatever be the distance the tame may be transported and any fractional excess, of not less than one-half of an ounce, in the weight of any such matter or thing, above one or more ounces, shall be charged for as if said excess amounted to a full ounce.
5. And, by the 8th section, That each member of the senate, each member of the house of representatives, and each delegate from a territory of the United States, the secretary of the senate, and the clerk of the house, of representatives, may, during each session of congress, and for a period of thirty days before the commencement, and thirty days after the end of each and every session of congress, Bend and receive through the mail, free of postage, any letter, newspaper, or packet, not exceeding two ounces in weight; and all postage charged upon any letters, packages, petitions memorials, or other matters or things, received during any session of congress, by any senator, member, or delegate of the house of representatives, touching his official or legislative duties, by reason of any excess of weight, above two ounces, on the matter or thing so received, shall be paid out of the contingent fund of the house of which the person receiving the same may be a member. And they shall have the right to frank written letters from themselves during the whole year, as now authorized by law.
6. The 5th section repeals all acts, and parts of acts, granting or conferring upon any person whatsoever the franking privilege.
7. The 23d section enacts, That nothing in this act contained shall be construed to repeal the laws granting the franking privilege to the president of the United States when inoffice, and to all ex-presidents, and the widows of the former presidents, Madison and Harrison.
8. The Act of March 1, 1847, enacts as follows
§3. That all members of Congress, delegates from territories, the vice-president of the United States, the secretary of the senate, and the clerk of the house of representatives, shall have the power to send and receive public documents free of postage during their term of office; and that the said members and delegates shall have the power to send and receive public documents, free of Postage, up to the first Monday of December following the expiration of their term of office.
§4. That the secretary of the senate and clerk of the house of representatives shall have the power to receive, as well as to send, all letters and packages, not weighing over two ounces, free of postage, during their term of office.
§5. That members of congress shall have the power to receive, as well as to send, all letters and packages, not weighing over two ounces, free of postage, up to the first Monday in December following the expiration of their term of office.
FRANK, FREE. This word is used in composition, as frank-almoign, frank-marriage, frank-tenement, &c.
FRANK-ALMOIGN, old English law. This is a French law word, signifying free-alms.
2. Formerly religious corporations, aggregate or sole, held lands of the donor, to them and their successors forever, in frank almoign. The service which they, were bound to render for these lands was not certainly defined; they were, in general, to pray for the souls of the donor; his ancestors, and successors. 2 Bl. Com. 101.
FRANK-MARRIAGE, English law. It takes place, according to Blackstone, when lands are given by one man to another, together with a wife who is daughter or kinswoman of the donor, to hold in frank-marriage. By this gift, though nothing but, the word frank-marriage is expressed, the donees shall have the tenements to them and the heirs of their two bodies begotten that is, they are tenants in special tail. It is called frank or free marriage, because the donees are liable to no service but fealty. This is now obsolete, even in England. 2 Bl. Com. 115.
FRANK-TENEMENT, estates. Same as freehold, (q. v.) or liberum tenementum.
FRATER. A brother. Vide Brother.
FRATRICIDE, criminal law. He who kills his brother or sister. The crime of such a person is also called fratricide.
FRAUD, TO DEFRAUD, torts. Unlawfully, designedly, and knowingly, to appropriate the property of another, without a criminal intent.
2. Illustrations. 1. Every appropriation of the right of property of another is not fraud. It must be unlawful; that is to say, such an appropriation as is not permitted by law. Property loaned may, during the time of the loan, be appropriated to the use of the borrower. This is not fraud, because it is permitted by law. 2. The appropriation must be not only unlawful, but it must be made with a knowledge that the property belongs to another, and with a design to deprive him of the same. It is unlawful to take the property of another; but if it be done with a design of preserving it for the owners, or if it be taken by mistake, it is not done designedly or knowingly, and, therefore, does not come within the definition of fraud. 3. Every species of unlawful appropriation, not made with a criminal intent, enters into this definition, when designedly made, with a knowledge that the property is another's; therefore, such an appropriation, intended either for the use of another, or for the benefit of the offender himself, is comprehended by the term. 4. Fraud, however immoral or illegal, is not in itself a crime or offence, for want of a criminal intent. It only becomes such in the cases provided by law. Liv. System of Penal Law, 789.
FRAUD, contracts, torts. Any trick or artifice employed by one person to induce another to fall into an error, or to detain him in it, so that he may make an agreement contrary to his interest. The fraud may consist either, first, in the misrepresentation, or, secondly, in the concealment of a material fact. Fraud, force and vexation, are odious in law. Booth, Real Actions, 250. Fraud gives no action, however, without damage; 3 T. R. 56; and in matters of contract it is merely a defence; it cannot in any case constitute a new contract. 7 Vez. 211; 2 Miles' Rep. 229. It is essentially ad hominem. 4 T. R. 337-8.
2. Fraud avoids a contract, ab initio, both at law and in equity, whether the object be to deceive the public, or third persons, or one party endeavor thereby to cheat the other. 1 Fonb. Tr. Equity, 3d ed. 66, note; 6th ed. 122, and notes; Newl. Cont. 352; 1 Bl. R. 465; Dougl. Rep. 450; 3 Burr. Rep. 1909; 3 V. & B. Rep. 42; 3 Chit. Com. Law, 155, 806, 698; 1 Sch. & Lef. 209; Verpl. Contracts, passim; Domat, Lois Civ. p. 1, 1. 4, t. 6, s. 8, n. 2.
3. The following enumeration of frauds, for which equity will grant relief, is given by Lord Hardwicke, 2 Ves. 155. 1. Fraud, dolus malus, may be actual, arising from facts and circumstances of imposition, which is the plainest case. 2. It may be apparent from the intrinsic nature and subject of the bargain itself; such as no man in his senses, and not under delusion, would make on the one hand, and such as no honest and fair man would accept on the other, which are inequitable and unconscientious bargains. 1 Lev. R. 111. 3. Fraud, which may be presumed from the circumstances and condition of the parties contracting. 4. Fraud, which may be collected and inferred in the consideration of a court of equity, from the nature and circumstances of the transaction, as being an imposition and deceit on other persons, not parties to the fraudulent agreement. 5. Fraud, in what are called catching bargains, (q. v.) with heirs, reversioners) or expectants on the life of the parents. This last seems to fall, naturally, under one or more of the preceding divisions.
4. Frauds may be also divided into actual or positive and constructive frauds.
5. An actual or positive fraud is the intentional and successful employment of any cunning, deception, or artifice, used to circumvent, cheat, or deceive another. 1 Story, Eq. Jur. §186; Dig. 4, 3, 1, 2; Id. 2, 14, 7, 9.
6. By constructive fraud is meant such a contract or act, which, though not originating in any actual evil design or contrivance to perpetrate a positive fraud or injury upon other persons, yet, by its tendency to deceive or mislead. them, or to violate private or public confidence, or to impair or injure the public interests, is deemed equally reprehensible with positive fraud, and, therefore, is prohibited by law, as within the same reason and mischief as contracts and acts done malo animo. Constructive frauds are such as are either against public policy, in violation of some special confidence or trust, or operate substantially as a fraud upon private right's, interests, duties, or intentions of third persons; or unconscientiously compromit, or injuriously affect, the private interests, rights or duties of the parties themselves. 1 Story, Eq. ch. 7, §258 to 440.
7. The civilians divide frauds into positive, which consists in doing one's self, or causing another to do, such things as induce a belief of the truth of what does not exist or negative, which consists in doing or dis-simulating certain things, in order to induce the opposite party. into error, or to retain him there. The intention to deceive, which is the characteristic of fraud, is here present. Fraud is also divided into that which has induced the contract, dolus dans causum contractui, and incidental or accidental fraud. The former is that which has been the cause or determining motive of the contract, that without which the party defrauded would not have contracted, when the artifices practised by one of the parties have been such that it is evident, without them, the other would not have contracted. Incidental or accidental fraud is that by which a person, otherwise determined to contract, is deceived on some accessories or incidents of the contract; for example, as to the quality of the object of the contract, or its price, so that he has made a bad bargain. Accidental fraud does not, according to the civilians, avoid the contract, but simply subjects the party to damages. It is otherwise where the fraud has been the determining cause of the contract, qui causam dedit contractui; in that case. the contract is void. Toull. Dr. Civ. Fr. Liv. 3, t. 3, c. 2, n. §5, n. 86, et seq. See also 1 Malleville, Analyse de la, Discusssion de Code Civil, pp. 15, 16; Bouv. Inst. Index, h. t. Vide Catching bargain; Lesion; Voluntary Conveyance.
FRAUDS, STATUTE OF. The name commonly given to the statate 29 Car. II., c. 3, entitled " An act for prevention of frauds and perjuries." This statute has been re-enacted in most. of the states of the Union, generally with omissions, amendments, or alterations. When the words of the statute have been used, the construction put upon them has also been adopted. Most of the acts of the different states will be found in Anthon's Appendix to Shep. Touchst. See also the Appendix to the second edition of Roberts on Frauds.
FRAUDULENT CONVEYANCE. A conveyance of property without any consideration of value, for the purpose of delaying or bindering creditors. These are declared void by the statutes 13 Eliz. c. 6, and 27 Eliz. c. 4, the principles of which have been adopted in perhaps all the states of the American Union. See Voluntary Conveyance.
2. But although such conveyance is void as regards purchasers and creditors, it is valid as between the parties. 6 Watts, 429, 453; 5 Binn. 109; 1 Yeates, 291; 3 W. & S. 255; 4 Iredell, 102; 9 Pick. 93; 20 Pick. 247; 3 Mass. 573, 580; 4 Mass. 354; 1 Hamm. 469; 2 South. 738; 2 Hill, S. C. Rep. 488; 7 John. 161; 1 Bl. 262.
FREE. Not bound to servitude; at liberty to act as one pleases. This word is put in opposition to slave.
2. Representatives and direct taxes shall be apportioned among the several states, which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. Const. U. S. art. 1, s. 2. 3. It is also put in contradistinction to being bound as an apprentice; as, an apprentice becomes free on attaining the age of twenty-one years.
4. The Declaration of Independence asserts that all men are born free, and in at sense, the term includes all mankind.
FREE COURSE, Mar. law. Having the wind from a favorable quarter.
2. To prevent collision of vessels, it is the duty of the vessel having a free course to give way to a vessel beating up. to windward and tacking. 3 Hagg. Adm. R. 215, 326. And at sea, it is the duty of such vessel, in meeting another, to go to leeward. 3 Car. & P. 528. See 9 Car. & P. W. Rob. 225; 2 Dodson, 87.
FREE ships. By this is understood neutral vessels. Free ships are sometimes considered as making free goods.
FREE WARREN, Eng. law. A franchise erected for the preservation and custody of beasts and fowls of warren. 2 Bl. Com. 39; Co. Litt. 233.
FREEDMEN. The name formerly given by the Romans to those persons who had been released from a State of servitude. Vide Liberti libertini.
FREEDOM, Liberty; the right to do what is not forbidden by law. Freedom does not preclude the idea of subjection to law; indeed, it presupposes the existence of some legislative provision, the observance of which insures freedom to us, by securing the like observance from others. 2 Har. Cond. L. R. 208.
FREEHOLD, estates. An estate of freehold is an estate in lands or other real property, held by a free tenure, for the life of the tenant or that of some other person; or for some uneertain period. It is called liberum tenementum, frank tenement or freehold; it was formerly described to be such an estate as could only be created by livery of seisin, a ceremony similar to the investiture of the feudal law. But since the introduction of certain modern conveyances, by which an estate of freehold may be created without livery of seisin, this description is not sufficient.
2. There are two qualities essentially requisite to the existence of a freehold estate. 1. Iramobility; that is, the subject-matter must either be land, or some interest issuing out of or annexed to land. 2. A sufficient legal indeterminate duration; for if the utmost period of time to which an estate can last, is fixed and determined, it is not an estate of freehold. For example, if lands are conveyed to a man and his heirs, or for his life, or for the life of another, or until he shall be married, or go to Europe, he has an estate of freehold; but if such lands are limited to a man for one hundred or five hundred years, if he shall so long live, he has not an estate of freehold. Cruise on Real Property t. 1, s. 13, 14 and 15 Litt. 59; 1 Inst. 42, a; 5 Mass. R. 419; 4 Kent, Com. 23; 2 Bouv. Inst. 1690, et seq. Freehold estates are of inheritance or not of inheritance. Cruise, t. 1, s. 42.
FREEHOLDER. A person who is the owner of a freehold estate.
FREEMAN. One who is in the enjoyment of the right to do whatever he pleases, not forbidden by law. One in the possession of the civil rights enjoyed by, the people generally. 1 Bouv. Inst. n. 164. See 6 Watts, 556:
FREIGHT, mar. law, contracts. The sum agreed on for the hire of a ship, entirely or in part, for the carriage of goods from one port to another; l3 East, 300, note; but in, its more extensive sense it is applied to all rewards or compensation paid for the use of ships. 1 Pet. Adm. R. 206; 2 Boulay-Paty, t. 8, s. 1; 2 B. & P. 321; 4 Dall. R. 459; 3 Johns. R. 335; 2 Johns. R. 346; 3 Pardess, n. 705.
2. It will be proper to consider 1. How the amount of freight is to be fixed. 2. What acts must be done in order to be entitled to freight. 3. Of the lien of the master or owner.
3. - l. The amount of freight is usually fixed by the agreement of the parties, and if there be no agreement, the amount is to be ascertained by the usage of the trade, and the circumstances and reason of the case. 3. Kent, Com. 173. Pothier is of opinion that when the parties agree as to the conveyance of the goods, without fixing a price, the master is entitled to freight at the price usually paid for merchandise of a like quality at the time and place of shipment, and if the prices vary he is to pay the mean price. Charte-part, n. 8. But there is a case which authorizes the master to require the highest price, namelly, when goods are put on board without his knowledge. Id. n. 9. When the merchant hires the whole ship for the entire voyage, he must pay the freight though he does not fully lade the ship; he is of course only bound to pay in proportion to the goods he puts on board, when he does not agree to provide a full cargo. If the merchant agrees to furnish a return cargo, and he furnishes none, and lets the ship return in ballast, he must make compensation to the amount of the freight; this is called dead freight, (q. v.) in contradistinction to freight due for the actual carriage of goods. Roccus, note 72-75; 1 Pet. Adm. R. 207; 10 East, 530; 2 Vern. R. 210.
4. - 2. The general rule is, that the delivery of the goods at the place of destination, in fulfilment of the agreement of the charter party, is required, to entitle the master or owner of the vessel to freight. But to this rule there are several exceptions .
5.- 1. When a cargo consists of live stock, and some of the animals die in the course of the voyage, without any fault or negligence of the master or crew, and there is no express agreement respecting the payment of freight, it is in general to be paid for all that were put on board; but when the contract is to pay for the, transportation of them, then no freight is due for those which die on the voyage. Molloy, b. 2, c. 4, s. 8 Dig. 14, 2, 10; Abb. Ship. 272.
6.-2. An interruption of the regular course of the voyage, happening without the fault of the owner, does not deprive him of his freight if the ship afterwards proceed with the cargo to the place of destination, as in the case of capture and recapture. 3 Rob. Adm. R. 101.
7. - 3. When the ship is foreed into a port short of her destination, and cannot finish the voyage, if the owner of the goods will not allow the master a reasonable time to repair, or to proceed in another ship, the master will be entitled to the whole freight; and, if after giving his consent the master refuse to go on, he is not entitled to freight.
8. - 4. When the merchant accepts of the goods at an intermediate port, it is the general rule of marine law, that freight is to be paid according to the proportion of the voyage performed, and the law will imply such contract. The acceptance must be voluntary, and not, one forced upon the owner by any illegal or violent proceedings, as, from it, the law implies a contract that freight pro rata parte itineris shall be accepted and paid. 2 Burr. 883; 7 T. R. 381; Abb. Shipp. part 3, c. 7, s. 13; 3 Binn. 445; 5 Binn. 525; 2 Serg. & Rawle, 229; 1 W. C. C. R. 530; 2 Johns. R. 323; 7 Cranch, R. 358; 6 Cowen, R. 504; Marsh. Ins. 281, 691; 3 Kent, Com. 182; Com. Dig. Merchant, E 3 a note, pl. 43, and the cases there cited.
9. - 5. When the ship has performed the whole voyage, and has brought only a part-of her cargo to the place of destination; in this case there is a difference between a general ship, and a ship chartered for a specific sum for the whole voyage. In the former case, the freight is to be paid for the goods which may be, delivered at their place of destination; in the latter it has been questioned whether the freight could be apportioned, and it seems, that in such case a partial performance is not sufficient, and that a special payment cannot be claimed except in special cases. 1 Johns. R. 24; 1 Bulstr. 167; 7 T. R. 381; 2 Campb. N. P. R. 466. These are some of the excep tions to the general rule, called for by principles of equity, that a partial performance is not sufficient, and that a partial payment or rateable freight cannot be claimed.
10. - 6. In general, the master has a lien on the goods, and need not part with them until the freight is paid; and when the regulations of the revenue require them to be landed in a public warehouse, the master may enter them in his own name and preserve the lien. His right to retain the goods may, however, be waived either by an express agreement at the time of making the original contract, or by his subsequent agreement or consent. Vide 18 Johns. R. 157; 4 Cowen, R. 470; 1 Paine's R. 358; 5 Binn. R. 392. Vide, generally, 13 Vin. Ab. 501 Com. Dig. Merchant, E 3, a; Bac. Ab. Merchant, D; Marsh. Ins. 91; 10 East, 394 13 East, 300, n.; 3 Kent, Com. 173; 2 Bro. Civ. & Adm. L. 190; Merl. Rep. h. t. Poth. Charte-Partie, h. t.; Boulay-Paty, h. t.; Pardess. Index, Affretement.
FREIGHTER, contracts. He to whom a ship or vessel has been hired. 3 Kent, Com. 173; 3 Pardess. n. 704.
2. The freighter is entitled to the enjoyment of the vessel according to contract, and the vessel hired is the only one that he is bound to take there can, therefore, be no substitution without his consent. When the vessel has been chartered only in part, the freighter is only entitled to the space he has contracted for; and in case of his occupying more room or putting on board a greater weight, he must pay freight on the principles mentioned under the article of freight.
3. The freighter is required to use the vessel agreeably to the provisions of the charter party, or, in the absence of any such provisions, according to the usages of trade he cannot load the vessel with merchandise which would render it liable to condemnation for violating the laws of a foreign state. 3 John. R. 105. The freighter is also required to return the vessel as soon as the time for which he chartered her has expired, and to pay the freight.
FRESH PURSUIT. The act of pursuing cattle which have escaped, or are being driven away from land, when they were liable to be distrained, into other places. 3 Bouv. Inst. n. 2470.
FRESH SUIT, Eng. law. An earnest pursuit of the offender when a robbery has been committed, Without ceasing, until he has been arrested or discovered. Towl. Law Dict. h. t.
FRIBUSCULUM, civil law. A slight dissension between hushand and wife, which produced a momentary separation, without any intention to dissolve the marriage, in which it differed from a divorce. Poth. Pand. lib. 50, s. 106. Vicat, Vocab. This amounted to a separation, (q. v.) in our law.
FRIENDLESS MAN. This name was sometimes anciently given to an outlaw.
FRIGIDITY, med juris. The same as impotence. (q. v.)
FRUCTUS INDUSTRIALES. The fruits or produce of the earth which are obtained by the industry of man, as growing corn.
FRUIT, property. The produce of tree or plant containing the seed or used for food. Fruit is considered real estate, before it is separated from the plant or tree on which it grows; after its separation it acquires the character of personally, and may be the subject of larceny; it then has all the qualities of personal property,
2. The term fruit, among the civilians, signifies not only the production of trees and other plants, but all sorts of revenue of whatever kind they may be. Fruits may be distinguished into two kinds; the first called natural fruits, are those which the earth produces without culture, as bay, the production of trees, minerals, and the like or with culture, as grain and the like. Secondly, the other kind of fruits, known by the name of civil fruits, are the revenue which is not produced by the earth, but by the industry of man, or from animals, from some estate, or by virtue of some rule of law. Thus, the rent of a house, a right of fishing, the freight of a ship, the toll of a mill, are called, by a metaphorical expression, fruits. Domat, Lois Civ. liv. 3, tit. 5, s. 3, n. 3. See Poth. De la Communaute, n. 45.
FUERO JURGO. A Spanish code of laws, said to, be the most ancient in Europe. Barr. on the Stat. 8, note.
FUGAM FECIT, Eng. law. He fled. This phrase, in an inquisition, signifies that a person fled for treason or felony. The effect of this is to make the party forfeit his goods absolutely, and the profits of his lands until he has been pardoned or acquitted.
FUGITIVE. A runaway, one who is at liberty, and endeavors, by, going away, to escape.
FUGITIVE SLAVE. One who has escaped from the service of his master.
2. The Constitution of the United States, art. 4, s. 2, 3, directs that "no person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any laws or regulation therein, be discharged from such service or labor, but shall be delivered up, on claim of the party to whom such service or labor may be clue." In practice summary ministerial proceedings are adopted, and not the ordinary course of judicial investigations, to ascertain whether the claim of ownership be established beyond all legal controversy. Vide, generally, 3 Story, Com. on Const. §1804-1806; Serg. on Const. ch. 31, p. 387; 9 John. R. 62; 5 Serg. & Rawle, 62; 2 Pick. R. 11; 2 Serg. & Rawle, 306; 3 Id. 4; 1 Wash. C. C. R. 500; 14 Wend. R. 507, 539; 18 Wend. R. 678; 22 Amer. Jur. 344.
FUGITIVE, FROM JUSTICE, crim. law. One who, having committed a crime within a jurisdiction, goes into another in order to evade the law, and avoid its punishment.
2. By the Constitution of the United States, art. 4, s. 2, it is provided, that "a person charged in any state with treason, felony or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the same state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime." The act of thus delivering up a prisoner, is, by the law of nations, called extradition. (q. v.)
3. Different opinions are entertained in relation to the duty of a nation, by the law of nations, independently of any treaty stipulations, to surrender fugitives from justice when' properly demanded. Vide 1 Kent, Com. 36; 4 John. C. R. 106; 1 Amer. Jurist, 297; 10 Serg. & Rawle, 125; 3 Story, Com. Const. United States, §1801; 9 Wend. R. 218; 2 John. R. 479; 6 Binn. R. 617; 4 Johns. Ch. R. 113; 22 Am. Jur. 351: 24 Am. Jur. 226; 14 Pet. R. 540; 2 Caines, R. 213.
4. Before the executive of the state can be called upon to deliver an individual, it must appear, first, that a proper and formal requisition of another governor has been made; secondly, that the requisition was founded upon an affidavit that the crime was committed by the person charged, or such other evidence of that fact as may be sufficient; thirdly, that the person against whom it is directed, is a fugitive from justice. 6 Law Report, 57.
FULL AGE. A. person is said to have full age at twenty-one years, whether the person be a man or woman. See Age.
FULL COURT. When all the judges are present and properly organized, it -is said there is a full court; a court in banc.
FULL DEFENCE, pleading. A denial of all wrong or injury. It is expressed in the following formula: And the said C D, (the defendant,) by E F, his attorney, comes, and defends the wrong or injury, (or force and injury,) when and where it shall behoove him, and the damages and whatsoever else he ought to defend." Bac. Ab. Pleas, &c. D; Co. Litt. 127 b; Lawes on Pl. 89; 2 Chit. Pl. 409; 2 Saund. 209 c; Gould on Pl. c. 2, §6. See Defence; Et Cetera; Half Defence.
FUNCTION, office. Properly, the occupation of an office; by the performance of its duties, the officer is said to fill his function. Dig. lib. 32, 1. 65, §1.
FUNCTIONARY. One who is in office or in some public employment.
FUNCTUS OFFICIO. This term is applied to something which once had life and power, but which now has no virtue whatsoever; as, for example, a warrant of attorney on which a judgment has been entered, is, functus officio, and a second judgment, cannot be entered by virtue of its authority. When arbitrators cannot agree and choose an umpire, they are said to be functi officio. Watts. on Arb. 94. If a bill of exchange be sent to the drawee, and he passes it to the credit of the holder, it is functus officio, and cannot be further negotiated. 5 Pick., 85. When an agent has completed the business with which he was entrusted,.his agency is functus officio. 2 Bouv. Inst. n. 1382.
FUNDAMENTAL. This word is applied to those laws which are the foundation of society. Those laws by which the exercise of power is restrained and regulated, are fundamental. The Constitution of the United States is the fundamental law of the land. See Wolff, Inst. Nat. §984.
FUNDED DEBT. That part of the national debt for which certain funds are appropriated towards the payment of the interest.
FUNDING SYSTEM, Eng. law. The name given to a plan which provides that on the creation of a public loan, funds shall immediately be formed, and secured by law, for the payment of the interest, until the state shall redeem the whole, and also for the gradual redemption of the capital itself. This gradual redemption of the capital is called the sinking of the debt, and the fund so appropriated is called the sinking fund.
FUNDS. Cash on hands; as, A B is in funds to pay my bill on him; stocks, as, A B has $1000 in the funds. By public funds is understood, the taxes, customs, &c . appropriated by the, government for the discharge of its obligations.
FUNDUS, civil raw. Any portion of land whatever, without considering the use or employ to which it is applied.
FUNERAL EXPENSES. Money expended in procuring the interment of a corpse.
2. The person who orders the funeral is responsible personally for the expenses, and if the estate of the deceased should be insolvent, he must lose the amount. But if there are assets sufficient to pay these expenses, the executor or administrator is bound, upon an implied assumpsit, to pay them. 1 Campb. N. P. R. 298; Holt, 309 Com. on Contr. 529; 1 Hawke's R. 394; 13 Vin. Ab. 563.
3. Frequent questions arise as to the amount which is to be allowed to the executor or administrator for such expenses. It is exceedingly difficult to gather from the numerous cases which have been, decided upon this subject, any certain rule. Courts of equity have taken into consideration the circumstances of each case, and when the executors have acted with common prudence and in obedience to the will, their expenses have been allowed. In a case where the testator directed that his remains should be buried at a church thirty miles distant from the place of his death, the sum of sixty pounds sterling was allowed. 3 Atk. 119. In another case, under peculiar circumstances, six hundred pounds were allowed. Preced. in Ch. 29. In a case in Pennsylvania, where the intestate left a considerable estate, and no children, the sum of two hundred and fifty-eight dollars and seventy-five cents was allowed, the greater part of which had been expended in erecting a tombstone over a vault in which the body was interred. 14 Serg. & Rawle, 64.
4. It seems doubtful whether the hushand can call upon the separate personal estate of his wife, to pay her funeral expenses. 6 Madd. R. 90. Vide 2 Bl. Com. 508; Godolph. p. 2 3 Atk. 249 Off. Ex. 174; Bac. Ab. Executors, &c., L 4; Vin. Ab. h. t.
FUNGIBLE. A term used in the civil, French, and Scotch law, it signifies anything whatever, which consists in quantity, and is regulated by number, weight, or measure; such as corn, wine, or money.. Hein. Elem. Pand. Lib. 12, t. 1, §2;.1 Bell's Com. 225, n. 2; Ersk. Pr. Scot. Law, B. 3, t. 1, §7; Poth. Pret de Consomption, No. 25; Dict. de Jurisprudence, mot Fongible Story, Bailm, §284; 1 Bouv. Inst. n. 987, 1098.
FURCA. The gallows. 3 Inst. 58.
FURIOSUS. An insane man; a madman; a lunatic.
2. In general, such a man can make no contract, because he has no capacity or will: Furiosus nullum negotium genere potest, quia non intelligit quod agit. Inst. 3, 20, 8. Indeed, he is considered so incapable of exercising a will, that the law treats him as if he were absent: Furiosi nulla voluntas est. Furiosus absentia loco est. Dig. lib. 1, tit. ult. 1. 40, 1. 124, §1. See Insane; Non compos mentis.
FURLINGUS. A furlong, or a furrow oneeighth part of a mile long. Co. Litt. 5. b.
FURLONG. A measure of length, being forty poles, or one-eighth of a mile. Vide Measures.
FURLOUGH. A permission given in the army and-navy to an officer or private to absent himself for a limited time.
FURNITURE. Personal chattels in the use of a family. By the term household furniture in a will, all personal chattels will pass which may contribute to the use or convenience of the householder, or the ornament of the house; as, plate, linen, china, both useful and ornamental, and pictures. Amb. 610; 1 John. Ch. R. 329, 388; 1 Sim. & Stu. 189; S. C. 3 Russ. Ch. Cas. 301; 2 Williams on Ex. 752; 1 Rop. on Leg. 203-4; 3 Ves. 312, 313.
FURTHER ASSURANCE. This phrase is frequently used in covenants, when a covenantor has granted an estate, and it is supposed some further conveyance may be required. He then enters into a covenant for further assurance, that is, to make any other conveyance which may be lawfully required.
FURTHER HEARING, crim. law, practice. Hearing at another time.
2. Prisoners are frequently committed for further hearing, either when there is not sufficient evidence for a final commitment, or because the magistrate has not time, at the moment, to hear the whole of the evidence. The magistrate is required by law, and by every principle of humanity, to hear the prisoner as soon as possible after a commitment for further hearing; and if he neglect to do so within a reasonable time, he becomes a trespasser. 10 Barn. & Cresw. 28; S. C. 5 Man. & Ry. 53. Fifteen days were held an unreasonable time, unless under special circumstances. 4 Carr. & P. 134; 4 Day, 98; 6 S. & R. 427.
3.
In
4.
It is the practice in
FUTURE
DEBT. In
2. A witness who does not believe in any future state of existence was formerly inadmissible as a witness. The true test of a witnesses competency, on the ground of his religious principles, is, whether he believes in the existence of a God, who will punish him if he swears falsely; and within this rule are comprehended those who believe future punishments will not be eternal. 2 Watts' & Serg. 263. See the authorities cited under the article Infidel. But it seems now to be settled, that when the witness believes in a God who will reward or punish him, even in this world, he is competent. Willes, 550. Vide Atheist.